Effective Date: July 10, 2019
THE FOLLOWING PROGRAM TERMS GOVERN YOUR ACCESS TO AND USE OF THE Walter Drake VIP Rewards WEBSITE (“SITE”) AND ALL PROGRAMS OFFERED THROUGH THE SITE, INCLUDING HOW DISPUTES BETWEEN US SHALL BE HANDLED AS DESCRIBED IN SECTION 9, BELOW. ACCORDINGLY, PLEASE READ THESE TERMS CAREFULLY.
- Program Terms. These Program Terms (“Terms” or “Program Terms”) constitute the legally binding terms governing your use of the Site and the membership programs available to you through the Site (each, a “Program”). The full details of the Program are available at WalterDrakeVIPRewards.com/how-it-works.
- 1.1 Acceptance. When you enroll in a Program, and each time you use or access the Site or Program, you signify your agreement with these Terms. If you do not agree to these Terms, you must discontinue using the Site and terminate your membership in the Program (as applicable). The Site and Programs are provided by Clarus Commerce, LLC on behalf of and for the benefit of Silver Star Brands, Inc. (“Silver Star Brands”). Unless otherwise noted, all references to “us,” “our,” or “we” will be deemed to include Clarus Commerce, LLC and Silver Star Brands, Inc.
- 1.2 Updates to Terms. We reserve the right to update or change these Terms at any time by posting the most current version of the Terms on the Site. We will provide notice of changes to the Terms by posting the new Terms on the Site with a new Effective Date shown. All such changes in the Terms shall be effective from the Effective Date set when it is posted on the Site or Programs. Your continued use of the Site after we post any changes to the Terms signifies your agreement to any such changes. If you do not agree to these Terms, you must discontinue using the Site and Programs by terminating your membership in the Programs.
- 1.3 Electronic Form. By accessing the Site or enrolling in a Program (thus becoming a “Member”), you consent to have these Terms provided to you in electronic form. You have the right to receive these Terms in non-electronic form at any time by contacting us online or send a letter and self-addressed stamped envelope to: Clarus Commerce, LLC, 500 Enterprise Drive, 2nd Floor, Rocky Hill, CT 06067.
- 2.1 Registration. You do not have to subscribe to the Programs to view benefits available through this Site, but only Members can access the Programs. By registering and becoming a Member, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted by the registration form, and (ii) maintain and properly update your account information to keep it true, accurate, current, and complete. If you provide information that is untrue, inaccurate, not current, or incomplete, or if we have reasonable grounds to suspect that you have, or you violate these Terms, as determined in our sole discretion, we have the right to suspend or terminate your membership and refuse any and all current or future use of the Site and the Programs (or any portion thereof). Registration is currently available only to U.S. and Canadian residents residing in eligible states. There is a limit of one membership and one introductory/premium offer per household.
- 2.2 Membership Charges; Recurring Billing. You will be charged for your membership using the billing information you provide or authorize at the time of enrollment (your “Billing Account”). By enrolling in the Program, you authorize your Billing Account to be charged the fees then in effect for the Program on a recurring basis without any further authorization from you. Your enrolment might include a trial or promotional period and your non-termination or continued use of the Program during and following such period constitutes your authorization for your Billing Account to be charged in accordance with and at the frequency (e.g., monthly or yearly) identified at the time of enrolment. If the amount to be charged to your Billing Account varies from the current rate set forth in your initial offer you will receive notice of the amount to be charged and the date of the charge at least 10 days before the scheduled date of the transaction. We reserve the right to correct any errors or mistakes contained in your Billing Account information and to update your Billing Account information from available third-party sources.
- 2.3 Cancellation. To change or cancel your membership at any time, go to the “Help” tab, or send your request to us using the “Contact Us” link on any page of the Site or by calling the Customer Program Department toll-free at 833-352-8785. Unless cancelled, your membership will be automatically extended as described above. If you cancel a membership, you may use your membership until the end of your then-current paid-for membership term (ie., month or year). Your membership will not be renewed after your then-current term expires. You will not be eligible for a prorated refund of any portion of the monthly membership fee paid for the then-current membership period. If you cancel an annual membership, you are eligible for a prorated refund of any portion of the membership fee paid for the then-current membership period, unless you have simply requested that your membership not be renewed, in which case you may continue to access your membership benefits until the end of your current term. If your enrolment includes a trial period and you choose to cancel your membership within your trial period, your access to the site will be disabled, effective immediately, regardless of how many days are left in your trial.
- 2.4 Reactivating a Cancelled Account. If you cancel your membership but want to become a member again, please contact [email protected] for assistance.
- 2.5 Termination. We may suspend or terminate your Membership and your access to the Site or the Programs, in whole or in part, at any time, immediately and without notice if, at our sole discretion, you fail to comply with any of these Terms or engage in any conduct that we deem unacceptable in our sole discretion. Any order that is deemed a commercial (non-personal) use or high-volume/reseller order, at our sole discretion, will not be eligible for membership benefits, and your membership may be suspended or terminated. Upon termination, you must destroy all materials obtained from this Site and the Programs and all copies thereof. In the event of suspension or termination, you are no longer authorized to access the Programs, and the restrictions imposed on you with respect to any materials downloaded from the Site or the Programs and the disclaimers and limitations of liabilities set forth in the Terms shall survive.
- Use of the Site and Programs.
- 3.1 Access and Use. This Site and the Programs are for your personal, non-commercial use in accordance with these Terms. Your membership is non-transferable. You agree that only You and Your Immediate Family may use the membership. "Immediate Family" means You, Your spouse or partner and Your children living in Your home. Benefits are not for resale. You agree that you will not (i) copy, display, or distribute any part of the Site, in any medium, without our prior written consent, (ii) alter or modify any part of the Site other than as may be reasonably necessary to use the Site for its intended purpose, or (iii) use the Program for any commercial benefit. You further agree that you will not use any automated devices, such as spiders, robots, or data-mining techniques, to catalog, download, store, or otherwise reproduce, store, or distribute content available on the Site, manipulate the Site or the Programs, or otherwise exceed the limited access granted to you by us. You will take no action to interfere with, interrupt, destroy, or limit the functionality of the Site or any computer software or hardware or telecommunications equipment. You will not distribute or transmit any content or software or other computer files that contain a computer virus or other harmful component.
- 3.2 User Submissions. By submitting content to the Site, for instance, in the form of a testimonial (“User Content”), you grant to us and our partners, licensees and successors in business a perpetual, worldwide, royalty-free, and non-exclusive license to reproduce, distribute, modify, edit, display, adapt, create derivative works from, market, and promote the User Content for any commercial purposes, and in any medium now existing or hereinafter developed, and to use your name, likeness, and any personal information you submit with the Use Content without your prior approval or the payment of any compensation.
- 3.3 Proprietary Rights. The Site and all material published on the Site, including but not limited to text, photographs, video, text, graphics, music, sounds, messages, comments, ratings, and other materials, is owned by us or our licensors and is protected by copyright, patents, trademarks, trade secrets, and/or other proprietary rights, including under the United States copyright laws. We own a copyright in the selection, coordination, arrangement, and enhancement of such content and a copyright in the Site. All of our logos are trademarks of Clarus Commerce, LLC, and are protected by state and federal laws. All other trademarks appearing on this Site (“Third Party Marks”) are trademarks of their respective owners. Users are prohibited from using any Third Party Marks without the written permission of such third party that may own the Marks. You agree not to reproduce, duplicate, copy, sell, resell, or exploit for any commercial purposes any aspect of the Site or Program. You may download content for your personal, non-commercial use only as provided in these Terms, provided that you keep intact all copyright and other proprietary notices. Copying or storing of content for other than personal use is expressly prohibited without prior permission from us or the copyright holder identified in the copyright notice contained in the content.
- 3.4 Limitation on License. Except for allowing you to use the Site and Programs for your personal use as set forth in the paragraph above, when you use the Site or Programs, you are not receiving a license or any other rights from us, including intellectual property or other proprietary rights. You understand that you have no rights to the Programs or any other of our property except as we indicate in these Terms.
- 3.5 Age Requirements. You must be at least 18 years old or the age of majority in your state of residence, whichever is older, to join and to use the Programs.
- Links. You may be able to access other websites or resources through links on the Site. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and not responsible or liable for any content, advertising, products, or other materials available from such sites or resources. You further acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods, or Programs available on or through any such site or resource.
- Indemnity/Release. You understand that you are personally responsible for your behavior while on the Site and agree to indemnify and hold us and our affiliates, business partners, and their respective officers, directors, employees, and agents (collectively, “Covered Parties”), harmless from and against any loss, damage, liability, cost, or expense of any kind (including attorneys’ fees) that any Clarus Party may incur arising out of or related to any products or Programs purchased by you in connection with the Site or the Programs and in connection with a third-party claim or otherwise, in relation to your use of the Programs or access to the Site, or your violation of either these Terms, applicable law, or the rights of any third party. You are solely responsible for your own interactions with any merchants accessed through the Site or Programs. To the extent permitted under applicable laws, you hereby release the Covered Parties from any and all claims or liability related to any product or Program of a merchant, any action or inaction by a merchant, including any merchant’s failure to comply with applicable law and/or failure to abide by the Programs Terms and any conduct or speech, whether online or offline, of any other user.
In connection with the foregoing release, you hereby waive California Civil Code Section 1542 (and any similar provision in any other jurisdiction), which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
- Disclaimer of Warranties. YOU UNDERSTAND THAT YOUR USE OF THE SITE AND PROGRAMS (INCLUDING ANY DOWNLOADS OR ANY LOSS OF DATA OR OTHER DAMAGE TO YOUR COMPUTER SYSTEM YOU EXPERIENCE FROM USING THE SITE AND PROGRAMS) IS AT YOUR SOLE RISK. YOU UNDERSTAND THAT THE SITE AND PROGRAMS AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITE OR PROGRAMS, ARE PROVIDED ON AN “AS IS,” “WHERE IS,” AND “WHERE AVAILABLE” BASIS, AND ARE SUBJECT TO CHANGE AT ANY TIME WITHOUT NOTICE TO YOU. YOU ACKNOWLEDGE THAT WE MAKE NO WARRANTY THAT THE SITE OR PROGRAMS WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. YOU UNDERSTAND THAT WE DO NOT WARRANT THAT THE RESULTS OBTAINED FROM YOUR USE OF THE SITE OR PROGRAMS WILL MEET YOUR EXPECTATIONS. NO WARRANTY OF ANY KIND, WHETHER ORAL OR WRITTEN, CAN MODIFY THE TERMS OF THE DISCLAIMER SET FORTH IN THIS DOCUMENT. YOUR USE AND BROWSING OF THE SITE IS AT YOUR OWN RISK. IF YOU ARE DISSATISFIED WITH ANY OF THE MATERIALS CONTAINED IN THE SITE OR PROGRAMS, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SITE AND PROGRAMS. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS OF ANY KIND (EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) AS TO THE SITE AND PROGRAMS AND ALL INFORMATION, PRODUCTS, AND OTHER CONTENT (INCLUDING THIRD-PARTY INFORMATION, PRODUCTS, AND CONTENT) INCLUDED IN OR ACCESSIBLE FROM THE SITE AND PROGRAMS.
ALL CONTENT, PRODUCTS, AND THIRD-PARTY PROGRAMS ON THE SITE, OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED, ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY. WE DO NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE MERCHANTABLITY OF ANY PRODUCT OR PROGRAM ACCESSED FROM THE SITE OR A LINKED SITE. OTHER THAN AS REQUIRED BY LAW, UNDER NO CIRCUMSTANCE WILL WE BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY YOUR RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE OR A LINKED SITE, OR YOUR RELIANCE ON ANY PRODUCT OR PROGRAM OBTAINED FROM THE SITE OR A LINKED SITE.
- Liability Limitation.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR AFFILIATES AND PARTNERS BE LIABLE TO YOU (OR ANY THIRD PARTY MAKING CLAIMS THROUGH YOU) FOR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR INCIDENTAL DAMAGES, OR DAMAGES FOR LOSS OF USE, PROFITS, DATA, OR OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR PROGRAMS, UNAUTHORIZED ACCESS TO AND TAMPERING WITH YOUR PERSONAL INFORMATION OR TRANSMISSIONS, ARISING OUT OF OR RELATED TO THE USE, INABILITY TO USE, UNAUTHORIZED USE, PERFORMANCE, OR NON-PERFORMANCE OF THE SITE OR THE PROGRAMS, EVEN IF WE HAVE BEEN ADVISED PREVIOUSLY OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER SUCH DAMAGES ARISE IN CONTRACT, NEGLIGENCE, TORT, UNDER STATUTE, IN EQUITY, AT LAW, OR OTHERWISE. UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, WAIVERS, AND LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. OUR LICENSORS AND CONTRACTORS ARE INTENDED THIRD-PARTY BENEFICIARIES OF THESE DISCLAIMERS. IF ANY PART OF THESE WARRANTY DISCLAIMERS OR LIMITATIONS OF LIABILITY IS FOUND TO BE INVALID OR UNENFORCEABLE FOR ANY REASON, THEN OUR AGGREGATE LIABILITY FOR ALL CLAIMS UNDER SUCH CIRCUMSTANCES FOR LIABILITIES SHALL NOT EXCEED TEN DOLLARS ($10).
- Dispute Resolution.
Notwithstanding the foregoing, to the extent the dispute arises from a violation of your or our intellectual property rights in any manner, both parties agree that the non-infringing party may seek injunctive remedies (or an equivalent type of urgent legal relief) in a state or federal court consistent with the subsections below, and both parties consent to exclusive jurisdiction and venue in such courts. Additionally, you or we may take the dispute to small claims court if the dispute qualifies for small claims court.
- 9.2 Waiver of Class Arbitration: To the fullest extent permissible under applicable law, all disputes shall be resolved by binding confidential arbitration on an individual basis. You expressly agree that no other disputes shall be consolidated or joined with your dispute, whether through class arbitration proceedings or otherwise. You further acknowledge and agree that any arbitrator assigned to a dispute shall not and shall lack the authority to conduct class arbitration or award class-wide relief and that such arbitrator shall only hear your individual dispute. You acknowledge that you are voluntarily and knowingly waiving any right to participate as a representative of any class of claimants pertaining to any dispute subject to arbitration, such that you shall not be entitled to arbitrate any dispute as a representative plaintiff or claimant, class representative, class member, or private attorney general.
- 9.3 Governing Law: These Terms and all disputes between the parties shall be governed in all respects by the laws of the State of Connecticut, consistent with the Federal Arbitration Act, as they apply to agreements entered into and to be performed entirely within Connecticut between Connecticut residents, without regard to any conflict-of-law provisions. Further, in any arbitration, both parties agree the arbitrator shall honor claims of privilege and privacy recognized under Connecticut law.
- 9.4 Enforcement of Arbitration Award: The arbitrator’s award shall be final and binding on all parties and may be entered as a judgment in any court of competent jurisdiction.
- 9.5 Severability: If any portion of this Dispute Resolution section (with the exception of the Waiver of Class Arbitration subsection) is deemed invalid or unenforceable by any arbitrator or court of competent jurisdiction, the invalid or unenforceable portion shall be severed and removed from the Terms, and the remaining portions (including the Agreement to Arbitrate Disputes subsection) shall remain binding on you and us. If any arbitrator deems the Waiver of Class Arbitration subsection to be invalid or unenforceable, then the entire Agreement to Arbitrate Disputes subsection shall be null and void. Under such circumstances, you expressly acknowledge and agree that the Governing Law and Jurisdiction subsections apply to any disputes between you and us, and both parties consent to exclusive jurisdiction and venue in such courts.
- 9.6 Jurisdiction: If, in any dispute, this subsection is determined to be invalid or unenforceable, notwithstanding the Severability subsection above, or null and void by any arbitrator or court of competent jurisdiction, or if the dispute seeks injunctive remedies arising from a violation of your or our intellectual property rights, the dispute shall be resolved by a state or federal court located in Hartford County, Connecticut, USA. The parties agree to submit to the personal jurisdiction of such Connecticut state or federal courts for the purposes of litigating any such dispute. This subsection does not apply disputes made in small claims court.
- Miscellaneous. These Terms and policies incorporated herein are the entire agreement between you and us and supersede any and all prior or contemporaneous agreements between you and us relating to your use of the Site or the Programs. If any part of these Terms is determined to be invalid or unenforceable, it will not impact any other provision of these Terms, all of which will remain in full force and effect. Our failure to partially or fully exercise any rights, shall not prevent our subsequent exercise of such right or be deemed a waiver by us of any subsequent breach by you of the same or any other term of these Terms. Our rights and remedies under these Terms and any other applicable agreement between you and us shall be cumulative, and the exercise of any such right or remedy shall not limit our right to exercise any other right or remedy. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement.