Terms and Conditions

Elbow Room Wine and Whiskey Club Terms and Conditions November 9 th 2022 Welcome to the Internet home of the Elbow Room Wine & Whiskey Club at elbowroomfresno.com. These Terms and Conditions (“Terms and Conditions”) are a legally binding agreement between you and Elbow Room, Inc., its affiliates, and its and their respective parents and subsidiaries (individually and collectively, “Company,” “we,” “our” or “us”), and governs your access to and use of the URL, www.elbowroomfresno.com (“Site”) and other retailer websites, social media pages, accounts, and mobile applications owned by or licensed to us (collectively, “Sites”), any order you place through the Sites and, as applicable, your use of the products you purchase. Through use of the Sites, we provide an opportunity for California residents to buy alcoholic beverages and related products from our Company (collectively the “Services”). The sale and delivery of orders purchased by you will be executed and fulfilled by licensed third-party retail entities that hold valid licenses issued by state alcohol beverage agencies allowing for the legal sale of alcohol (“Licensed Retailers” or “Licensed Retailer”). The Sites are directed to adults aged twenty-one (21) or older. You must be at least 21 years of age to make a purchase through the Sites and to receive delivery of the products purchased, and a valid government-issued ID will be required upon delivery. Minimum Age Requirement If you use the Sites, you represent and warrant that you are at least twenty-one (21) years of age and that the recipient of any alcoholic beverage purchase you may make is at least 21 years of age. In no event shall you use the Sites nor the Services, nor make a purchase or purchase a gift for someone else if you are under the age of 21, nor may you do any of the foregoing activities for the benefit, or on behalf, of any person under the age of 21. We may refuse to register any person, or service any order at any time, in our sole discretion. By using the Sites, including, without limitation, by participating in the Services, you hereby agree to the terms and conditions set forth below (“Terms of Sale”). IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SITES, YOU SHALL NOT PLACE AN ORDER, AND YOU SHALL NOT USE ANY PRODUCTS SOLD VIA THE SITES. THESE TERMS AND CONDITIONS INCLUDE A MANDATORY AGREEMENT TO RESOLVE ANY DISPUTES IN THE STATE OR FEDERAL COURTS OF FRESNO, CALIFORNIA, AND INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS PART OF A CLASS. Sale of Alcoholic Beverages Our role in the transactions contemplated by these Terms and Conditions is that of a marketer and service provider that enables you, the consumer, to purchase alcohol and related products from Licensed Retailers via the Sites, and to participate in the Services and/or any other product offers offered on the Sites. You acknowledge that all orders of alcohol and related products you place through the use of the Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of the Products, and not by us. Any purchase you make through the use of the Sites from the Licensed Retailers must be for personal consumption only and not for resale. In the unlikely event that a particular product is unavailable at the time of shipping, the Licensed Retailer may substitute a product of similar style and of equal or greater value in your shipment. Account Registration To use the Services, you will be asked to provide personally identifiable information such as your name, address, phone number, shipping address, email address, date of birth, and payment information (collectively, “Personal Information”) as well as a password in order to make a purchase and create a personal account with us (“Account”). Please be sure to protect the confidentiality of the password you create for your Account. Please review our Privacy Policy regarding the Personal Information we collect, use and share, and the terms of such collection, use and sharing. You are responsible for, and agree to pay promptly, all charges to your Account including applicable taxes and purchases by you or anyone you allow to use your Account. You represent and warrant that all Personal Information you provide in connection with registering your Account is complete, accurate, and non-fraudulent, and that you are authorized to use the method of payment you provide in connection with your use of the Services. We reserve the right to contact the service provider of your method of payment to conduct fraud or security checks. You acknowledge and agree that you may never use another customer’s Account without their prior approval. You also agree to review and update your Account as and when necessary to maintain the most current Personal Information. Orders, Shipping, and Delivery If you are an adult over the age of 21, you may make an offer to purchase alcoholic beverages or associated non-alcoholic merchandise (“Products”) using the Sites from the Licensed Retailers. Prices displayed on the Sites are the manufacturers’ or distillers’ suggested retail price, and prices of the Licensed Retailers may be less than or greater than the advertised price prior to checkout. Licensed Retailers may choose to accept or reject any offer to purchase the Products due to lack of availability, inability to verify your age, or any other reason. If your offer to purchase the Products is declined in full or in part for any reason, you will receive a refund for any portions of your order that are declined by the Licensed Retailer. Products purchased from the Sites will be shipped to you via a third party carrier unless you choose to retrieve those Products from the Elbow Room restaurant located at 731 W. San Jose Ave., Fresno, CA 93704 within five (5) calendar days of purchase. Purchased items not retrieved within five (5) calendar days of purchase will then be shipped to you at your shipping address on file with Elbow Room, Inc. Whenever purchased items are shipped to you, title and risk of loss or damage for such Products will pass to you upon our delivery to the third party carrier. Unless otherwise indicated at the time of your purchase, shipping and handling fees are NOT included with your order. Such fees will be added to the price of your purchased Products. Shipping dates and/or arrival times given are only estimates. Refunds are at the sole discretion of Elbow Room, Inc. All deliveries must be signed for by an individual who is capable of proving that he or she is 21 years of age or older by providing a valid form of identification at the time of delivery. If there is no individual 21 years of age or older to accept the delivery, the delivery will not be able to be completed at that time. After three failed delivery attempts, the package will be returned to us and your credit card will be charged an additional shipping fee in order to receive the package. We recommend that if there is a possibility an individual 21 years of age or older is not available to sign for your package, you should contact your carrier and request the tracking number be routed to a local location or store for that carrier in order for you to pick up the package at that location. We reserve the right to refuse delivery for any reason. Packages cannot and will not be left unattended for any reason. Payment Your credit or debit card will be charged immediately upon checkout. We will not process orders that attempt to use an incorrect, expired, or over-the-limit credit card. However, in the event such an order is processed, we reserve the right to collect funds for any uncollected transactions owed to us. If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, we may charge such amount directly to the credit card identified in your Account and may suspend or terminate your access to the Services, including your subscription. You shall be responsible and liable for any fees, including attorneys’ fees and collection costs, that we may incur in our efforts to collect any unpaid balances from you. Your right to use the Services is subject to limits established by us and/or by your credit card issuer. We use a third party payment service in lieu of directly processing your credit card information. By submitting your credit card information, you grant Elbow Room, Inc. the right to store and process your information with the third party payment service, which it may change from time to time; you agree that Elbow Room, Inc. will not be responsible for any failures of the third party payment service to adequately protect such information. All financial matters regarding your information are subject to the conditions of the third party payment service provider’s terms of service. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology. Subscription Program In order to start a periodic subscription, you must register as a member on the Sites. To register you can simply provide the information required in our registration forms, which can be accessed through the Sites. All information that you provide to us is subject to the Privacy Policy. You are responsible for keeping your registration information up to date. If you are a member of a periodic subscription, each period a Licensed Retailer will ship you a package with a selection of wine, whiskey, and/or related Products (a “Subscription Program”). The selection of Products may change during a particular subscription period. Accordingly, Elbow Room, Inc. cannot guarantee that a selection of any such Products available in a particular timeframe will be available in any subsequent timeframe. The periodic subscription terms incorporate the terms of the particular periodic subscription package, as described in the subscription and checkout pages of the Sites. Please see the subscription page for a description of the current subscriptions and prices on the Sites. Note that any payment terms presented to you in the process of using or signing up for a paid subscription are deemed part of this Agreement. Automatic Subscription Renewal If you purchase a periodic subscription, you acknowledge and consent to being charged a recurring payment and you accept responsibility for all recurring charges prior to the cancellation of your membership. We will send you an email at least thirty (30) days prior to the renewal of your periodic subscription to remind you that the subscription will renew. Your subscription will be automatically renewed for successive renewal periods of the same duration as the subscription period originally selected, at the then-current non-promotional rate. You may cancel your ongoing membership by emailing your request to cancel, along with your name and account email to Julie@elbowroomfresno.com Each subscription automatically renews Quarterly March, June, September and December. Following the end of the previous period’s subscription. You must notify us by emailing Julie@elbowroomfresno.com prior to the 28th of the month following the end of the subscription period to cancel the subscription and the next period’s shipment. IF YOU DO NOT CANCEL PRIOR TO THE 28TH OF THE MONTH FOLLOWING THE END OF THE SUBSCRIPTION PERIOD, YOU WILL BE CHARGED FOR RENEWING THE SUBSCRIPTION. All cancellation requests received after the 28th day of the month following the end of the subscription period will apply to the following subscription period. No prorated refund of any portion of the subscription fee paid for the then-current subscription period will be given. We may terminate your membership, without notice, for any reason, whatever. If we terminate your membership or periodic subscription, we will refund prorated fees you paid for the periodic subscription that you have not yet received. Promotional Emails When you first subscribe or make a purchase through the Sites, you agree to receive transactional and promotional emails from us. These emails may include, but are not limited to, tasting notes or recipes, promotional offers, subscription information, or other offers. We will never rent, sell, or share your email address except to the limited extent set forth in the Privacy Policy or otherwise in these Terms and Conditions. Privacy Policy Your use of the elbowroomfresno.com Site is governed by our Privacy Policy available here: elbowroomfresno.com/privacy. Notices Elbow Room, Inc. will give you any necessary notices by posting them on the elbowroomfresno.com Site. You authorize Elbow Room, Inc. to send notices via electronic mail as well if Elbow Room, Inc. decides, in its sole discretion, to do so. You agree to check the elbowroomfresno.com Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the elbowroomfresno.com Site. Modification We may modify these Terms and Conditions at any time, at our sole discretion, without specific notice to you, provided, however, that (a) any amendment or modification to the provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification (as the Terms and Conditions in effect at the time of the subject dispute or incurred changes shall govern, as applicable). The latest version of these Terms and Conditions will be posted to the elbowroomfresno.com Site, and you should review these Terms and Conditions prior to using the Sites. Any such changes to these Terms and Conditions will become effective immediately and your continued use of the Sites and your Account following such notification will be deemed confirmation of your acceptance of such changes. You will not be eligible for any compensation because you cannot use any part of the Sites or because of a failure, suspension or withdrawal of all or part of the Sites. Acceptable Use Policy You hereby agree that you are solely responsible for your conduct in connection with your use of the Sites and for any and all acts and omissions that occur under your Account or password. In connection with your use of the Sites, you further agree not to engage in any of the following prohibited activities: (a) create an Account or make any purchase if you are under twenty-one (21) years of age; (b) interfere with or inhibit the use of the Sites by other users; (c) use the Sites for commercial purposes for yourself and/or third parties (for example, by selling, or attempting to sell, your purchases to others, etc.); (d) create an Account using a false identity, alter-ego, by impersonating a third party, or creating any other false account; (e) interfere with, disrupt or attempt to gain unauthorized access to other Accounts on the Sites or any other computer network; (f) copy, reverse engineer, or attempt to derive the source code of any part of the Sites; (g) post any comment or product review on the Sites or Social Media Pages that is private, libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to our products or services or is clearly false or misleading; (h) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property of any person; (i) disseminate or transmit viruses, Trojan Horses, or any other malicious code or program; or (j) use the Sites in a manner or engage in any other activity that would violate any of the terms and conditions contained in these Terms and Conditions or any applicable laws. Violation of the foregoing restrictions will result in immediate termination of your Account, and may potentially subject you to further liability. We may investigate any reported violation of these Terms and Conditions and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, closing your Account, suspending future shipments to you, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties. Limited License We grant you the limited right to access and make use of the Sites as a user. The Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Sites (“Content”) are owned by or licensed to us. Unless authorized in writing and in advance by us or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of these Terms and Conditions shall be construed to convey any property right in or license to the Content unless expressly provided to the contrary. Copyright Policy Elbow Room, Inc. respects the intellectual property rights of others. If you believe that any Site Content infringes upon your copyright, please notify us at daniel@elbowroomfresno.com. Your notice should include (a) a description of the copyrighted work that you claim has been infringed; (b) the URL where the allegedly infringing Site Content is located; (c) your full name, postal address, telephone number, and email address; (d) a statement that you have a good faith belief that the use of the allegedly infringing material on the Site is not authorized; (e) your physical or electronic signature; and (f) a statement that you are the copyright owner or an authorized agent of the copyright owner, including any applicable United States copyright registration number(s). Claims of copyright infringement take time to review, but we will endeavor to respond to a complete and accurate takedown notice within ten (10) business days of receipt. Disclaimer and Limits on Liability THE SITES AND THE CONTENT ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON- INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW. YOUR USE OF THE SITES IS SOLELY AT YOUR OWN RISK. IN NO EVENT SHALL ELBOW ROOM, INC. OR ITS OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS RELATING TO THE PURCHASE, SALE, DELIVERY AND/OR CONSUMPTION OF THE ALCOHOLIC BEVERAGE OR ANY CONSEQUENCES WHICH MAY RESULT THEREOF. THE PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESS DISCLAIMED TO THE EXTENT PERMITTED BY LAW. TO THE EXTENT PERMITTED BY LAW, ELBOW ROOM, INC. SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR INABILITY TO USE THE SITES, YOUR PLACEMENT OR DELIVERY OF ORDERS OF ALCOHOL, MEMBERSHIPS OR GIFTS, OR YOUR USE OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE SITES EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. Errors, Omissions, and Inaccuracies We strive to provide complete, accurate, up-to-date information on our Sites. Unfortunately, despite those efforts, human or technological errors may occur. For example, our Sites may contain typographical errors, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted, and to change or update information at any time without prior notice. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Sites. Indemnification You agree to indemnify, defend, and hold Elbow Room, Inc. and its employees, officers, members, directors, agents, representatives, affiliates, service partners, Licensed Retailers, licensors, successors, and assigns harmless from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys’ fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from, or in any way attributable to: (i) your use of the Sites; (ii) anything you post to the Sites; (iii) your violation of these Terms and Conditions; (iv) your violation of the rights of any third parties; and/or (v) use of the Sites or your Account by any other person accessing the Sites using your computer or Internet access account. Governing Law, Jurisdiction, and Limitation of Actions These Terms and Conditions, and any disputes arising out of it, will be governed by the laws of the State of California, regardless of its conflict of law principles. You and we agree that in the event of any dispute between us, you and we will first try to resolve the dispute by talking with each other. Accordingly, neither you nor we may start a formal proceeding for at least thirty (30) days after one of us notifies the other in writing of a dispute. The parties shall attempt to resolve any controversy or claim arising out of, or relating to, any provision of the agreement or the breach thereof by good faith negotiations between the parties. If you and we are unable to resolve our dispute by talking to each other, you and we each agree that (1) ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO OUR RELATIONSHIP, THESE TERMS AND CONDITIONS, OR THE PRIVACY POLICY (INCLUDING ANY DISPUTE AS TO THEIR BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION, OR VALIDITY), THE SITES, OR ANY PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH OUR RELATIONSHIP THAT IS NOT RESOLVED, TO THE FULLEST EXTENT PERMITTED BY LAW, MUST BE BROUGHT IN A FEDERAL OR STATE COURT LOCATED IN FRESNO, CALIFORNIA, AND THAT YOUR CLAIM(S) WILL BE FOREVER WAIVED AND BARRED UNLESS FILED WITHIN ONE YEAR OF THE TIME IN WHICH THE EVENT(S) GIVING RISE TO SUCH CLAIM(S) BEGAN. YOU EXPRESSLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SAID COURTS AND CONSENT TO EXTRATERRITORIAL SERVICE OF PROCESS; AND (2) YOU HEREBY WAIVE ANY RIGHT TO BRING A CLASS ACTION OR PRIVATE ATTORNEY GENERAL CLAIM AGAINST US. Notice to California Users Residents of California who use the Sites are entitled to know there are no charges to the consumer for use of our Sites, other than the cost of any products or services purchased therein and any applicable taxes, shipping fees, and other charges associated with such purchases. Unless otherwise stated, these charges appear for each purchase on the order confirmation pages relating to each purchase and e-mailed to the consumer after purchase. We reserve the right to change our pricing. You may contact us to resolve a complaint regarding any aspect of our service by emailing us at jeramy@elbowroomfresno.com. Assignment These Terms and Conditions are personal to you and your Account. You may not assign these Terms and Conditions without our prior written consent. We may assign any of our rights and delegate any of our duties hereunder at any time, without your consent, at our sole discretion. These Terms and Conditions and the Privacy Policy will inure to the benefit of our successors, assigns, and licensors. Force Majeure Neither Elbow Room, Inc. nor any service provider, including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives, or affiliates, shall be liable for performance of its obligations under these Terms and Conditions if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest, or emergency condition, (iii) the unavailability, failure or interruption of the Internet; or (iv) any other circumstances beyond the reasonable control of the Company or its service providers including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives, or affiliates. Waiver Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Severability In the event that any provision of these Terms and Conditions is declared void or unenforceable, such provision shall be deemed severed from these Terms and Conditions, and these Terms and Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision. Headings The section headings used in these Terms and Conditions are for convenience only. Entire Agreement These Terms and Conditions and the Privacy Policy constitute the entire agreement between you and us with respect to the subject matter hereof, and supersede all prior agreements, whether written or oral. You may be required to agree to additional terms and conditions to access particular sections or functions of the Site.