Chihuahua Terms and Conditions
These Terms and Conditions (these “Terms”) constitute a binding agreement between you, either an individual user (“you”, “your”, or “user”, or collectively, “Users”) and Chihuahua Brewing Company LLC (“Chihuahua”, “we”, “us”, or “our”). These Terms govern your access to and use of the Services (as defined below). Your access to and use of the Services is conditioned on your acceptance of and compliance with these Terms. By accessing or using the Services you agree to be bound by these Terms. If you do not agree to these Terms, please do not use the Services.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CHIHUAHUA ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
Age Requirement
You must be at least 21 years old or the minimum legal drinking age in the relevant jurisdiction to use our software application programs or services.
DEFINITIONS
“Personal Information” means information that alone or when in combination with other information may be used, directly or indirectly, to practicably identify, contact, or locate you, such as: information about your mobile device, including the Operating System, type of mobile device, and mobile device ID. In addition, we collect location data, such as global positioning system (GPS) location data. This data is used and saved in accordance with the Chihuahua Privacy Policy.
We do not consider Personal Information to include information that has been anonymized so that it does not allow a third-party to practicably identify a specific individual, whether directly or indirectly.
“Services” means the Chihuahua mobile application and all other interactive features, services, and communications provided by Chihuahua, however accessed and/or used, that are operated, made available, produced, and maintained by Chihuahua.
“User(s)” means a user of the Services provided by Chihuahua.
1. Limited License
Subject to your compliance with these Terms, Chihuahua grants you a personal, limited, revocable, non-exclusive, non-transferable license to access and use the Services. The Services may only be used for the intended purpose for which the Services are being made available. Any unauthorized use automatically terminates the licenses we grant to you.
2. Intellectual Property Rights; Ownership
2.1 The Services and all of the Content displayed on the Services are the intellectual property of Chihuahua. All elements of the Services and Content are protected by copyright, trade dress, trade secret, patent, trademark and/or other laws and international conventions relating to intellectual property rights. All ownership rights to the Content and Services, including all associated intellectual property rights (including trademarks, service marks and trade names included in the Content or available on the Services), shall remain with Chihuahua, its licensors or its suppliers, as applicable. Except as permitted by applicable copyright law or as otherwise expressly authorized by Chihuahua, you may not modify, copy, license, distribute, transmit, display, publicly perform, reproduce, publish, adapt, create derivative works from, transfer or sell any of the Content or Services. Except as authorized under applicable copyright law, you are responsible for obtaining permission before reusing any copyrighted material that is available on the Services. You will comply with all applicable laws, statutes, ordinances, and regulations (“Laws”) regarding your use of the Services and Content. You will not remove any copyright, trademark, or other proprietary notices from materials found on the Services and Content.
2.2 Except as expressly authorized by Chihuahua, you will not use Chihuahua’s name or imply Chihuahua’s endorsement in any (i) advertising or presentation, or (ii) website, brochure, newsletter, book, or other written or digital material or works, without Chihuahua’s prior written consent.
3. Disclaimers
CHIHUAHUA DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO THE SERVICES OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS. THE OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. YOUR USE OF thE services is at your OWN risk. THE SERVICES AND THE CONTENT PROVIDED ON OR THROUGH THE SERVICES ARE PROVIDED "AS IS" WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SUBJECT TO ANY SUCH WARRANTIES, CONDITIONS OR GUARANTEES WHICH CANNOT LAWFULLY BE EXCLUDED, Chihuahua, ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS, SERVICE PROVIDERS, AND LICENSORS MAKE NO WARRANTY AND DISCLAIM ALL responsibility AND LIABILITY FOR: (I) THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE CONTENT OR SERVICES; (II) any loss of data, damages to, or any viruses that may infect your computer, phone, or other property caused by or arising from your use of the SERVICES or access to the content; OR (IIi) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT MAINTAINED BY THE SERVICES. THE CONTENT AND SERVICES MAY BE OUT OF DATE. NO ADVICE NOR INFORMATION OBTAINED FROM CHIHUAHUA OR THROUGH THE CONTENT OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. Through your use of the Services, you may be exposed to Submitted Content that you may find offensive, objectionable, harmful, inaccurate, or deceptive. There may also be risks of dealing with underage persons, people acting under false pretense, international trade issues, or other legal issues. By using our Services, you assume all associated risks. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
4. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CHIHUAHUA, NOR ANY OF ITS PARENTS, SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, PARTNERS, SUPPLIERS, SERVICE PROVIDERS, LICENSORS, SUCCESSORS OR ASSIGNS, NOR ANY PARTY INVOLVED IN THE CREATION, PRODUCTION, HOSTING, DISPLAY, OR TRANSMISSION OF THE SERVICES OR CONTENT, BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR PURE ECONOMIC LOSS (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, LOSS OF GOOD-WILL, OR BUSINESS INTERRUPTION) ARISING OUT OF (I) THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICES, THE CONTENT, OR THE MATERIALS AND INFORMATION CONTAINED IN THE SERVICES; OR (II) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT (INCLUDING FUNDAMENTAL BREACH) OR OTHERWISE, EVEN IF FORESEEABLE, AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
IN THE EVENT OF ANY PROBLEM WITH THE SERVICES OR ANY CONTENT, YOU AGREE THAT YOU ARE NOT ENTITLED TO A REFUND OR CREDIT AND YOUR SOLE REMEDY IS TO CEASE USING THE SERVICES. IN NO EVENT SHALL CHIHUAHUA'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), strict liability, infringement of third-party intellectual property rights or other third-party claims AGAINST CHIHUAHUA OR OTHERWISE, EXCEED TWENTY FIVE DOLLARS (US $25.00). NOTHING IN THIS SECTION 4 SHALL LIMIT OR EXCLUDE LIABILITY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (2) FRAUD OR FRAUDULENT MISREPRESENTATION AND (3) ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
5. Release for Disputes Among Users
In the event that you have a dispute with one or more other Users of the Services, you agree to release Chihuahua, and its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, representatives, partners, suppliers, service providers, licensors, successors and assigns from all claims, demands, and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes, including without limitation any intellectual property dispute or any dispute over the products and materials contained in the Content.
6. Indemnification
You will defend, indemnify, and hold Chihuahua and its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, representatives, partners, suppliers, service providers, licensors, successors and assigns harmless from any and all claims, demands, liabilities, losses, damages, costs, and expenses, including reasonable attorneys’ fees, related to or in connection with (i) your use of the Services; (ii) your material violation of any provision in these Terms; (iii) your violation of any third-party right, including, without limitation, any right of privacy, publicity, or intellectual property; (iv) your violation of any applicable law, rule, or regulation; (v) any claim or damages that arise as a result of your Submitted Content or your participation in any community made available by Chihuahua; or (vi) any other party’s access and use of the Services or your Submitted Content under your account.
7. Termination
7.1 Termination by Chihuahua. You agree that Chihuahua may, in its sole discretion, for any reason or no reason, and without penalty, suspend or terminate your use of the Services. You agree that any termination or suspension of your access to the Services or to your account may be done by Chihuahua with or without notice, and you agree that Chihuahua will not be liable to you for any such termination or suspension.
7.2 Termination by You. You may terminate these Terms by discontinuing use of the Services at any time, for any reason or for no reason. In such event, you may select to submit a written request for Chihuahua to delete any Personal Information held by Chihuahua.
7.3 Survival. Upon termination of these Terms, any provision which by its nature should survive will survive the termination of these Terms, including Section 2 (Intellectual Property Rights; Ownership),, Section 3 (Disclaimers), Section 4 (Limitation of Liability), Section 5 (Release for Disputes Among Users), Section 6 (Indemnification), Section 7.3 (Survival), and Sections 8 through 22.
8. Force Majeure
Neither Chihuahua nor you shall be responsible for damages or for delays or failures in performance resulting from acts or occurrences beyond our or your reasonable control, including, without limitation: fire, lightning, explosion, power surge or failure, internet outage, water, acts of God, war, revolution, civil commotion or acts of civil or military authorities or public enemies; any law, order, regulation, ordinance, policy, or requirement of any government or legal body or any representative of any such government or legal body; or labor unrest.
9. Privacy Policy
Data collection, use, and disclosure by Chihuahua, including data collection, use, and disclosure of Personal Information and personally identifiable information is governed by Chihuahua’s Privacy Policy which is provided in a companion document, and which is hereby incorporated into and made a part of these Terms.
10. Choice of Law and Jurisdiction
These Terms and any claim relating to the use of the Services and the content contained herein are governed by the laws of the State of California. You consent to the exclusive jurisdiction of the state and federal courts located in Orange County, California. A printed version of these Terms will be admissible in judicial and administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
11. No Agency
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
12. No Third-party Beneficiaries
Except for those identified in Section 6 of these Terms, no person, except for the parties to these Terms, and their permitted assigns, shall have any rights hereunder nor any right of enforcement hereof.
13. Severability
If any provision of these Terms is held to be invalid or unenforceable, such provision shall be deemed to be deleted from these Terms and the remaining provisions of these Terms will remain in full force and effect.
14. Assignment
These Terms and all rights and licenses granted hereunder, incorporated agreements and policies may not be transferred or assigned by you, but may be transferred or assigned by us in our sole discretion and without restriction.
15. Headings
Section headings are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section.
16. Waiver
Our failure to enforce any right or provision of these Terms will not be deemed a waiver of such right or provision.
17. Entire Agreement
Unless otherwise expressly agreed upon by Chihuahua in a separate written agreement entered into by Chihuahua, these Terms, and the Chihuahua Privacy Policy are the entire agreement between you and Chihuahua regarding the Services, and these Terms supersede and replace any prior understandings or agreements (written or oral) between you and Chihuahua regarding the Services.
18. Amendments
We may revise these Terms from time to time, the most current version of which is provided with the Chihuahua software application. Updated Terms may be provided with software updates available through the app store from which the Chihuahua software was downloaded. We will notify you by e-mail to the e-mail address associated with your account or through the Services of any changes to these Terms which we deem material in our sole discretion. Your continued use of the Services after the changes become effective will constitute your acceptance of the changes and your agreement to continue to be bound to these Terms. If you do not desire to be bound by any such changes to these Terms, then you must terminate these Terms with us as set forth in Section 7 above.
19. Additional Assistance and Disclosure
The Services are offered by Chihuahua, LLC, 660 Newport Center Dr., Suite 200, Newport Beach, CA 92660. If you do not understand these Terms or if you have any questions or comments regarding these Terms, we invite you to contact our Customer Service Department by e-mail at info@chihuahuabrew.com.
20. Copyright Notice
All Site design, graphics, text selections, arrangements, and all software are Copyright © 2018, Chihuahua, LLC or its licensors. ALL RIGHTS RESERVED.
21. Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Chihuahua, LLC, 660 Newport Center Dr., Suite 200, Newport Beach, CA 92660.
22. Dispute Resolution By Binding Arbitration:
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Chihuahua, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and Chihuahua are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND CHIHUAHUA AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CHIHUAHUA AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
c. Pre-Arbitration Dispute Resolution
Chihuahua is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at info@chihuahuabrew.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Chihuahua should be sent to Chihuahua, LLC 660 Newport Center Dr., Suite 200, Newport Beach, CA 92660 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Chihuahua and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Chihuahua may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Chihuahua or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Chihuahua is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Chihuahua and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Chihuahua agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Chihuahua may pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Chihuahua may elect to pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Chihuahua may elect to pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
f. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Terms of Service to the contrary, Chihuahua agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Chihuahua written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Last Updated: September 11, 2018