Customer Agreement - Terms of Use

The following terms and conditions, along with the Privacy Policy and Shipping Policy (collectively the “Terms”) constitute a binding agreement between you and Golden Barrel Trading, a Cayman Island Corporation, and its subsidiaries and affiliates (referred to herein collectively as “Frootbat” “we,” or “us”) with respect to your use of this website and any other Frootbat owned websites, micro-sites, subdomains, social media pages and accounts, all mobile versions and any associated applications and services (collectively, the “Frootbat Sites”), and the services available on such platforms (together with the Frootbat Sites, the “Services”), including any User Content (as defined below). 

If you do not agree to these Terms, please do not use or access the Frootbat Services for any purpose. Additional policies, terms, and conditions applicable to certain Frootbat Services, specific areas of certain Frootbat Sites or to particular content or transactions, may also be posted in particular areas of certain Frootbat Sites and, together with these Terms, govern your use of those areas. Any such additional policies, terms, and conditions are incorporated into these Terms. If any inconsistency exists between these Terms and such additional policies, terms, and conditions, such additional policies, terms, and conditions applicable to those specific areas of the Frootbat Sites will be controlling with respect to those particular areas. 

Frootbat reserves the right to cancel and/or terminate any user’s account for any violation of these Terms or other terms stated on Frootbat Sites. Fraudulent behaviour, creating multiple accounts to acquire additional credits, spamming, flaming, excessive use of profanity or abusive language on Frootbat Sites or any other website in regard to Frootbat, or while contacting any of our services team, will not be tolerated.

BEFORE USING THE SERVICES, PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, OR USING THE SERVICES, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS, INCLUDING THE GUIDELINES, AND ANY FUTURE MODIFICATIONS. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF THE SERVICES.

1. Minors Prohibited:

By accessing the Frootbat Sites and/or using the Services you swear and affirm that you are over the age of 18. You must be 18 years of age or older to purchase from Frootbat Sites. The purchase of alcohol by persons under the age of 18 is strictly prohibited by law. By placing an order on Frootbat Sites, you are expressly warranting that you are at least 18 years of age and you will present a valid government-issued ID to a carrier upon delivery.  

Any items purchased from Frootbat Sites will be delivered with an "Adult Signature Required" designation, and the third party carrier that delivers the items must verify identification upon delivery. Please note you, or someone at least 18 years or older, must be present at the time of delivery. 

Please do not provide any of your information to us if you are under the age of 18. We do not knowingly collect or maintain any personally identifiable information about anyone under the age of 18. If we become aware that you are under the age of 18 and are attempting to or have submitted personal information via the Frootbat Sites, we will not accept such information and we will take steps to remove such information from our records. This may involve us having to access and verify your age and other relevant details. 

2. Site Access:

Frootbat grants you permission to use the Frootbat Sites and Services as set forth in these Terms, provided that and for so long as (i) you are 18 years of age or older; and the person to whom any alcohol beverages will be delivered is 18 years old of age or older; (ii) you use the Frootbat Sites and Services solely for your personal, non-commercial use; (iii) except as expressly permitted in these Terms, you do not download, reproduce, redistribute, retransmit, publish, resell, distribute, transfer, sublicense, publicly display or otherwise use, distribute or exploit any portion of the Frootbat Sites or Services in any medium or to any person without Frootbat’s prior written authorization; (iv) you do not alter or modify any part of the Frootbat Sites other than as may be reasonably necessary to use the Frootbat Sites and Services for its intended purposes; (v) you do not engage in any of the prohibited uses described in the Terms; (vi) you do not allow other persons to access you’re your account; (vii) you otherwise fully comply with these Terms. Frootbat Sites and Services are controlled and offered by Frootbat from its principal office in Delaware. Frootbat makes no representations that the Frootbat Sites or Services are appropriate or available for use in other locations. If you are accessing or using the Frootbat Sites or Services from other jurisdictions, you do so at your risk, and you are responsible for compliance with local laws.

3. Privacy Policy:

Your use of the Frootbat Sites and Services is subject to our Privacy Notice available at www.frootbat.com/legal/privacy-policy, incorporated herein by reference, which applies to the collection, use, disclosure and other processing of your personal information by Frootbat.

4.  Shopping With Frootbat:

Frootbat Services enable you to search on Frootbat Sites for alcohol and other products available for sale by licensed alcohol sellers that have agreed to use Frootbats Sites ("Sellers") to advertise their products. YOU AGREE THAT ALL PRODUCTS OFFERED THROUGH THE FROOTBAT SERVICES ARE ADVERTISED SOLICITED, OFFERED, ACCEPTED, MADE, SHIPPED AND DELIVERED BY THE SELLERS WHO RECEIVED SUCH ORDERS. The Services are not meant to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler, or distributor of alcohol beverages to any retailer of alcoholic beverages or to facilitate any improper exclusionary practices by any alcohol beverage licensee. When you search for a product, the Services show you its availability, price and other information based on your location and information provided by the Sellers that service your location; if you prefer, you may sort and filter results based on search criteria. Our Services may be limited or not available at all in some locations due to local law or other restrictions.

Frootbat may charge you a service fee when you place an order. Any service fee will be disclosed to you before you finalize your order and will be charged to you in addition to the purchase amount, any required taxes, shipping and handling fees. When you place an order through the Services, it is an offer to purchase from a Seller. 

The total purchase amount (plus any additional service fee, required taxes, shipping and handling) may be authorized by your payment card company, but your offer is not accepted by the Seller at that time. The Seller reviews your order and decides whether to accept it. If the Seller decides to accept your order, they will charge your payment card for the purchase amount (plus any additional service fee) and arrange for the delivery, pick-up, or shipment; provided, your order is not deemed accepted until the order is shipped from the Seller. Any credit card payments will not be processed if you are notified that the Seller has rejected your offer. Frootbat may at any time and for any reason cancel an order, provided you are refunded in full the purchase amount for that order including charges for shipping and local taxes associated with that order.

The delivery of your order to you will be facilitated solely by the Seller. Frootbat does not guarantee shipping or delivery times and is not liable for the actions, omissions, products, or content of a Seller or any delivery driver or delivery service.

5. Purchases:

Please carefully read all pricing terms available in the areas of the Frootbat Sites that allow you to make purchases. You acknowledge that entering into a transaction electronically (including without limitation all records relating to such transactions) constitutes your agreement and intent to be bound by and to pay for such agreements and transactions, including all fees and applicable taxes incurred by you or anyone using your account. Frootbat is not responsible for typographic errors. We may revise the pricing for products, services or features offered through the Frootbat Sites and Services at any time. Unless otherwise noted, all currency references are in U.S. dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. If there is a dispute regarding payment of fees to, or products or services provided by a Seller or us, your account may be closed without warning or notice at our sole discretion. EXCEPT AS OTHERWISE SET FORTH IN ANY RETURN POLICY OR CANCELLATION POLICY APPLICABLE TO OUR FEE-BASED PRODUCTS, SERVICES OR FEATURES, YOU ACKNOWLEDGE AND AGREE THAT ANY APPLICABLE FEES AND OTHER CHARGES FOR FEE-BASED PRODUCTS, SERVICES OR FEATURES ARE NOT REFUNDABLE IN WHOLE OR IN PART. YOU ARE FULLY LIABLE FOR ALL CHARGES TO YOUR ACCOUNT, INCLUDING ANY UNAUTHORIZED CHARGES.

6. Prices, Taxes, and Fees:

Sellers set the price of their products on Frootbat, and Sellers and their delivery providers may charge you additional fees such as a delivery fee, shipping fee, insurance fee, redelivery fee, and restocking fee as described in these Terms. Your order, including without limitation fee therein, may be subject to tax. The amount of the tax depends on things like the products ordered, delivery location, and the legal obligations of the Seller.

All flat rate shipping, or if flat rate is not available for your purchase, then shipping costs, including insurance, assessed by the third party carrier are to be paid by you, the purchaser. An insurance fee may be placed on transportation arrangements for rare or expensive items.

Frootbat reserves the right to charge a service fee for Frootbat’s Services. If a Service Fee is charged by Frootbat you will be made aware of any such service fee and such fee will be collected by the credit processor for the Seller to remit Frootbat.

In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, displayed to you at checkout, Frootbat reserves the right to initiate an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout. All payments will be processed by a designated payment processor, using the preferred payment method designated in your account. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.

Prices and availability of products and Services are subject to change without notice. Errors will be corrected where discovered and we have the right to refuse or cancel any orders placed for products and/or services listed at an incorrect price, rebate or refund or other promotional offer or containing any incorrect information or typographical errors. We have the right to refuse or cancel any such orders, whether or not the order has been confirmed and/or your credit card charged. If your credit card has already been charged for the purchase and your order is canceled, we shall issue a credit to your credit card account in the amount of the charge. Individual bank policies will dictate when this amount is credited to your account.

7. Title:

For all items purchased through Frootbat Services, title is passed from the Seller to a purchaser at the Seller’s store, in the state the Seller’s store is located, and it is the purchaser’s sole responsibility to ship and/or arrange for shipping from that Seller to the state chosen by purchaser. By placing an order through the Frootbat Services, you expressly agree to assume title to the merchandise in the state of Seller’s store. All items must be paid for in full prior to arrangements for delivery. 

By arranging for transportation or shipping of any alcoholic beverage under your instructions, Frootbat is providing a service to, and acting on behalf of you, or the purchaser if another party. Under these Terms, the common carrier providing shipping services is your agent. By having us or the Seller arrange the shipping on your behalf, you are also representing that you are acting in a fashion compliant with the laws and regulations of your state, municipality and any other state that apply to you and the purchase, shipping, transportation and delivery of alcoholic beverages, including spirits. You further represent and warrant that you have obtained any required permission, paid any required fees, are working through properly licensed intermediates where required, are legally entitled to take possession of the alcoholic beverages, are legally entitled to take the quantities ordered, will comply with any applicable tax laws, and that you and the person accepting delivery of the alcoholic beverages are at least 18 years of age.

IF YOU DO NOT WISH TO MAKE THE REPRESENTATIONS AND WARRANTIES IN THIS PARAGRAPH, DO NOT PLACE AN ORDER.

8. Shipping Regulations:

Purchaser acknowledges that within the United States, many states have laws regulating the importation and/or shipment of alcohol into their jurisdiction and may limit the amount of alcohol that can enter the state without permits or licenses. By placing an order with Frootbat, you are expressly representing and warranting that you have reviewed any pertinent local and state laws before purchasing alcohol through Frootbat Services and that your purchase complies with all applicable local, state, and federal laws and regulations. Frootbat makes no representation to the legality of shipping to any state and does not assume any responsibility for obtaining any necessary licenses or permits to do so. Frootbat makes no warranties or guarantees regarding the transportation or delivery by the third party common carrier.

9. Returns and Cancellations:

Sellers and the laws in your state determine whether a return, refund or exchange is available to you. Frootbat makes no representations concerning your ability to return a product. 

If permitted then damaged, missing or incorrect merchandise can be exchanged within 14 days of receipt of order. There are absolutely no returns or exchanges on all other orders. Additional information, photos & statutory declaration may be required from customer to receive a refund or reship for a product that is lost or damaged in transit. Each incident of product loss or damage is reviewed on a case by case basis to resolve it in a satisfactory manner. If you believe any product(s) are damaged during shipping, missing or incorrect, then please email Frootbat at orders@frootbat.com.

10. Proprietary Rights:

The Frootbat, including the content, interactive features, audio, video, audio-visual material, information, graphics, design, compilation, computer code, products, software, services, proprietary information, copyrights, service marks, trademarks, trade names, distinctive information such as logos, the selection, sequence, “look and feel” and arrangement of items, and all other elements of the Frootbat Sites that are provided by Frootbat (“Frootbat Materials”) are owned and/or licensed by Frootbat and are legally protected, without limitation, under U.S. federal and state laws and regulations, as well as applicable foreign  laws, regulations and treaties. Frootbat Materials do not include Non-Frootbat Content (as defined below). Except as expressly authorized by Frootbat, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish,  edit, adapt, create derivative works from, or otherwise make unauthorized use of the Frootbat Sites, Services or the Frootbat Materials. Frootbat reserves all rights not expressly granted in these Terms. You shall not acquire any right, title, or interest to the Frootbat Materials, except for the limited rights expressly set forth in these Terms.

11. User Content:

a. General. 

The Frootbat Sites may now or in the future permit you and other Users to post or link media, text, audio and video recordings, photos, graphics, commentary or other information or content (“User Content”), and to host and/or share such User Content. User Content is controlled by Frootbat. Frootbat makes no representations that your User Content will remain available via the Frootbat Sites in any way. We may remove your User Content at our sole discretion. YOU UNDERSTAND THAT ANY USER CONTENT THAT YOU POST FOR VIEWING ON THE FROOTBAT SITES IS MADE PUBLICLY AVAILABLE TO USERS OF THE FROOTBAT SITES, AND FROOTBAT DOES NOT GUARANTEE ANY CONFIDENTIALITY WITH RESPECT TO ANY SUCH USER CONTENT, NOR DOES IT GUARANTEE THAT YOUR INTELLECTUAL OR PROPRIETARY RIGHTS IN SUCH USER CONTENT WILL NOT BE INFRINGED OR MISAPPROPRIATED.

b. Grant of Rights. 

By submitting User Content to Frootbat, you hereby grant Frootbat a worldwide, non-exclusive, fully paid-up, royalty-free, transferable license, with the right to grant and authorize sublicenses, to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, perform, and otherwise exploit your User Content in connection with the Frootbat Services and Frootbat’ (and its successor’s, transferees’, sublicensees’ and their respective affiliates’) business, including without limitation for promoting and redistributing part or all of the Frootbat Services (and derivative works thereof) in any media formats and through any media channels or through merchandising. You grant Frootbat, transferees and sublicensees (and their respective affiliates) the right to use the name that you submit in connection with such User Content if they choose. You also agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. You also hereby grant to each User of the Frootbat Services a non-exclusive license to access your User Content through the Frootbat Services, and to use, reproduce, distribute, modify, adapt, translate, prepare derivative works of, display, and perform such User Content as permitted by the functionality of the Frootbat Sites and these Terms. The above licenses granted by you in User Content you submit to the Frootbat Sites shall be perpetual and irrevocable, except that with respect to any User Content that you have removed or deleted while maintaining your Frootbat user account, or any User Content following any deactivation or deletion of your Frootbat user account, you may specifically notify Frootbat regarding the termination of the foregoing license from you to Frootbat, specifically identifying the item(s) of User Content to which such termination applies, in which case the foregoing license will terminate within a commercially reasonable time after you provide such notice to Frootbat. You understand and agree, however, that even following such termination, Frootbat may retain, but not display or perform, server copies of such User Content. Notwithstanding anything to the contrary herein, the above licenses granted by you in user comments you submit are perpetual and irrevocable.

c. Your Representations and Warranties Regarding User Content. 

You shall be solely responsible for your own User Content and the consequences of posting such User Content. In connection with User Content, you affirm, represent, and/or warrant that: (i) your User Content is not confidential or secret, (ii) you own, or have the necessary licenses, rights, consents, and permissions to use and authorize Frootbat to use, all patent, trademark, copyright, or other proprietary rights in and  to any and all User Content to enable inclusion  and use of User Content in the manner contemplated by Frootbat and these Terms, and to grant the rights and license set forth in this Section, and (iii) your User Content, Frootbat’ use of such User Content pursuant to these Terms, and Frootbat’ exercise of the license rights set forth in this Section, do not and will not: (A) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (B) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (C) violate any applicable law or regulation, (iv) you have no expectation of compensation or confidentiality of any nature with respect to your User Content and we, our affiliates, our licensors and/or their affiliates may already have projects under consideration or are independently developing projects that are similar to your User Content; and (v) you shall indemnify and hold us (including without limitation, all affiliates and subsidiaries of Frootbat) harmless from and against any and all claims, actions and damages (including, without limitation, court costs, legal fees, accounting fees and amounts paid in settlement) that are related to or result from your use of the Frootbat Services, your User Content or its posting on, or submission to, the Frootbat Sites, and/or your violation of these Terms or your representations and warranties hereunder. You will cooperate as fully as reasonably required in the defense of any such claim or action; however, we reserve the right, at our own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

d. Prohibited Uses of User Content. 

Except as otherwise permitted by these Terms, in connection with your User Content, you further agree that you will not publish, post, submit, transmit through or otherwise make available to the Frootbat Sites: (i) any falsehoods or misrepresentations that could damage Frootbat or any third party; (iii) any material which  is unlawful, defamatory, libelous, slanderous, pornographic, obscene, abusive, profane, vulgar, sexually explicit, threatening, harassing, harmful, hateful, racially or ethnically offensive or otherwise objectionable, or which encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or any right of privacy or publicity, or is otherwise inappropriate; (iv) advertisements or solicitations of business, products, or services; or (v) any material that would be harmful to minors in any manner.

No Responsibility for User Content. With the exception of the limited license granted above, we do not obtain or control any rights in, and do not exert editorial control over, User Content. Nothing herein obligates us to verify, and we have not necessarily verified, the representations and warranties made by Users with respect to such User Content.

e. Non-Frootbat Content Disclaimer:

You understand that when using the Frootbat Services you will be exposed to User Content, advertising and other third party content (together, the “Non-Frootbat Content”) from a variety of sources and that you may be exposed to Non-Frootbat Content that is inaccurate, offensive, indecent, or otherwise objectionable. Frootbat does not endorse any Non-Frootbat Content or any opinion, recommendation, or advice expressed therein. Under no circumstances will Frootbat be liable in any way for or in connection with the Non-Frootbat Content, including, but not limited to, for any inaccuracies, errors or omissions in any Non-Frootbat Content, any intellectual property infringement or misappropriation with regard to any Non-Frootbat Content, or for any loss or damage of any kind incurred as a result of the use of any Non- Frootbat Content posted, emailed or otherwise displayed or transmitted through the Frootbat Services.

f. Non-Monitoring of Users and Non-Frootbat Content: 

You understand that you, and not Frootbat, are entirely responsible for all User Content that you upload, post, e-mail, transmit or otherwise make available through the Frootbat Services. Frootbat does not control Non-Frootbat Content posted by Users or otherwise made available by other persons or entities and does not have any obligation to monitor such Non-Frootbat Content for any purpose. If at any time Frootbat chooses, in its sole discretion, to monitor the Non-Frootbat Content, Frootbat nonetheless assumes no responsibility for the Non-Frootbat Content, no obligation to modify or remove any inappropriate Non-Frootbat Content, no obligation to continue to monitor the Non-Frootbat Content and no responsibility for the conduct of the User or other person or entity submitting any such Non-Frootbat Content. You agree that you must evaluate, and bear all risks associated with the use of any User Content or other Non- Frootbat Content, including any reliance on the accuracy, completeness, usefulness, non- infringement or legality of such User Content or other Non-Frootbat Content.

g. Removal of Non-Frootbat Content:

Frootbat and its designees shall have the right (but not the obligation) in their sole discretion to refuse to post or remove any Non-Frootbat Content that is available on the Frootbat Sites in whole or in part at any time for any reason or no reason, with or without notice and with no liability of any kind.

12. Prohibited Uses of the Service:

As a condition of your use of the Frootbat Services, you hereby represent and warrant that you will not use the Frootbat Services for any purpose that is unlawful or prohibited (including, without limitation, the prohibitions in this Section) by these Terms.

Any use by you of any of the Frootbat Materials and Frootbat Services other than for your personal use is strictly prohibited. You agree not to reproduce, duplicate, copy, sell, trade, resell, distribute, or exploit any portion of the Frootbat Services, use of the Frootbat Services, access to the Frootbat Services, or Non-Frootbat Content obtained through the Frootbat Services, for any purpose other than for your personal use.

Except as otherwise expressly permitted herein these Terms, you agree not to create derivative works of the Frootbat Sites content, including, without limitation, montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards or merchandise, unless permitted under these Terms or with the prior written authorization of Frootbat and any applicable licensors.

You agree not to use the Frootbat Services if you do not meet the eligibility requirements described herein.

You agree not to defame, harass, abuse, threaten, stalk or defraud Users of the Frootbat Services, or collect, or attempt to collect, personal information about Users or third parties without their consent.

You agree not to intentionally interfere with or damage, impair or disable the operation of the Frootbat Services or any User’s enjoyment of it by any means, including but not limited to uploading or otherwise disseminating viruses, worms, spyware, adware, or other malicious code, or placing a disproportionate load on the Frootbat Services with the intended result of denying service to other Users.

You agree not to remove, circumvent, disable, damage or otherwise interfere with any security- related features of the Frootbat Services, features that prevent or restrict the use or copying of any part of the Frootbat Services, or features that enforce limitations on the use of the Frootbat Services.

You agree not to attempt to gain unauthorized access to the Frootbat Services or any part of it, including gaining access or attempting to gain access to another user’s account, computer systems or networks connected to the Frootbat Services or any part of it, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Frootbat Services or any activities conducted through the Frootbat Services.

You agree not to obtain or attempt to obtain any materials or information through any means not intentionally made available through the Frootbat Services. You agree neither to modify the Frootbat Services in any manner or form (other than contributing User Content as enabled by the Frootbat Services’ functionality and in accordance with these Terms), nor to use modified versions of the Frootbat Services, including (without limitation) for the purpose of obtaining unauthorized access to the Frootbat Services or for the removal of any proprietary notices or labels on the Frootbat Services.

You agree that you will not use any robot, spider, scraper, or other automated means to access the Frootbat Services for any purpose without our express prior written permission or bypass our robot exclusion headers or other measures we may use to prevent or restrict access to the Frootbat Services.

You agree not to utilize framing techniques to enclose any trademark, logo or other Frootbat Materials without our express prior written consent. You agree not to use any Meta tags or any other “hidden text” utilizing Frootbat’s name or trademarks without Frootbat’s express prior written consent.

You agree not to use any Frootbat’s logos, graphics, or trademarks as part of the link without our express prior written consent.

You agree not to sell, rent, lease, distribute, broadcast, sublicense or otherwise assign any right to the Frootbat Services to any third party.

You agree not to make unsolicited offers, advertisements, proposals, or send junk mail or spam to other users of the Frootbat Services or to insert your own or a third party’s advertising, branding or other promotional content on the Frootbat Service. This includes, but is not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures.

You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Frootbat Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

You agree not to use the Frootbat Services in any manner that could interrupt, damage, disable, overburden or impair the Frootbat Services, or interfere with any other party’s use and enjoyment of the Frootbat Services, including, without limitation, sending mass unsolicited messages or “flooding” servers.

You agree not to modify, adapt, translate, or create derivative works based upon the Frootbat Services or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.

You agree not to impersonate another person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.

You agree not to use the Frootbat Services to “stalk” or otherwise harass or harm another in any way.

You agree not to post, transmit or otherwise disseminate through the Frootbat Services any User Content that, as we determine in our sole discretion: (i) is unlawful, harmful, harassing, fraudulent, threatening, abusive, libelous, defamatory, vulgar, obscene, hateful, or racially, ethnically or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights, (ii) is derogatory or harmful to our reputation, the reputation of our licensors, or any of our or their respective officers, members, employees, representatives, licensors and/or suppliers, in any way; (iii) may incite violence or other unlawful activity; or (iv) is harmful to children in any manner.

Unauthorized or prohibited use of the Frootbat Services or the Frootbat Materials may subject you to civil liability, criminal prosecution, or both under federal, state and local laws.

13. Account Information: 

In order to use, access or become a member of the Frootbat Sites and use the Services, you may have to create an account and/or submit a registration application. Your account enables you to utilize the Services and such account shall be restricted to one individual only. You may not register for or maintain more than one account. There is no fee or charge for you to create an account. When any of the Frootbat Sites content or functions on the Frootbat Sites require you to register with us, or otherwise provide user information, you must complete the registration process by providing us with complete and accurate account information. You grant to us and to all other persons and entities involved in the operation of the Frootbat Services, including, but not limited to our third party shopping cart provider, the right to use, store, monitor, retrieve and transmit your account information in connection with the operation of the Frootbat Services and as otherwise provided herein. Our information collection and use policies with respect to the privacy of your account information are set forth in our Privacy Policy, which is incorporated into these Terms by reference for all purposes. 

You acknowledge, consent, and agree that Frootbat may access, preserve and disclose your account information and User Content if required to do so by law or in a good- faith belief that such access preservation or disclosure is reasonably necessary to (a) comply with legal process; (b) enforce the Terms; (c) respond to any claim that User Content violates the rights of third parties; (d) provide certain customized features of the Frootbat Services to you, if any; (e) respond if you contact Frootbat for any reason; or (f) protect the rights, property, or personal safety of Frootbat, its other Users, and the public. You may cancel your account with Frootbat at any time. Accounts terminated by us for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated. We reserve the right to immediately terminate your account in our sole discretion, and without prior notice to you if, for example, you violate the Terms. Without limiting the foregoing, if you are a repeat copyright infringer, we will, in appropriate circumstances, permanently terminate your account and remove all of your User Content from the Frootbat Service. You agree to promptly update your registration information through the Services or as otherwise directed by Frootbat in order to keep such information true, accurate, current, complete and up to date. 

By creating an account you consent to the use of: (i) electronic means to complete the Terms and to provide you with any notices given pursuant to the Terms; and (ii) electronic records to store information related to the Terms or your use of the Frootbat Services. By registering an account, you further represent that you are of legal age to form a binding contract and are not a person barred by any laws from using the Services. To create an account you must be of legal drinking age. Frootbat reserves the right at any time to refuse you access to the Services, terminate, suspend or bar your access to the Frootbat Sites and Services, or deny your registration and/or creation of an account for any reason. 

14. Password:

If you register, you will be asked to provide a password. As you will be responsible for all activities that occur under your password, you should keep your password confidential. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft, or unauthorized disclosure or use of your account ID or password), you shall immediately notify Frootbat. YOU ARE SOLELY LIABLE FOR LOSSES INCURRED BY YOU, FROOTBAT OR OTHERS DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT.

15. Dealings with Advertisers and other Users:

Your correspondence or business dealings with, or participation in promotions of, advertisers and other Users found on or through the Services are solely between you and such advertiser or User. YOU AGREE THAT FROOTBAT WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY SUCH DEALINGS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS OR USERS ON THE FROOTBAT SITES.

16. Links and Third Party Websites:

a. Linking to the Site. 

You agree that if you include a link from any other web site to the Frootbat Sites, such link shall open in a new browser window and shall link to the full version of an HTML formatted page of the Frootbat Sites. You are not permitted to link directly to any image hosted on the Frootbat Sites, such as using an “in-line” linking method to cause the image hosted on the Frootbat Sites to be displayed on another web site. You agree not to download or use images hosted on the Frootbat Sites on another web site, for any purpose, including, without limitation, posting such images  on another web site. You agree not to link from any other web site in any manner such that the Frootbat Sites, or any page of the Frootbat Sites, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Frootbat Sites be discontinued, and to revoke your right to link to the Frootbat Sites from any other web site at any time.

b. Reference Sites. 

Frootbat, Users and other third parties may provide links on the Frootbat Sites to other sites, including the content therein (“Reference Sites”). Frootbat has no control over such Reference Sites or their content, privacy policies or practices and therefore makes no claim or representation regarding, and expressly disclaims responsibility for, the accuracy, quality, legality, nature, availability, or reliability of Reference Sites or other content linked to by the Frootbat Sites. Frootbat provides links to you only as a convenience, and the inclusion of any link on the Frootbat Sites does not imply our affiliation, endorsement, or adoption of the linked Reference Site or other content or any information therein. If you choose to correspond or engage in transactions with any other person, organization or business found on or through the Frootbat Services, you acknowledge and agree that we are not a party to, and will not be responsible for, your interaction with such person, organization or business, including its treatment of your information, your User  Content, and/or the terms and conditions applicable to any transaction between you and  such  third party. You agree that we have no responsibility or liability for any loss or damage of any kind that you may suffer as the result of any such interaction or the presence of such person, organizations or businesses on the Frootbat Sites. ACCESS AND USE OF REFERENCE SITES, INCLUDING THE INFORMATION, CONTENT, MATERIAL, PRODUCTS, AND SERVICES ON REFERENCE SITES OR AVAILABLE THROUGH REFERENCE SITES, IS SOLELY AT YOUR OWN RISK AND YOU RELEASE AND HOLD HARMLESS FROOTBAT FROM ANY DAMAGE, CLAIMS OR LIABILITIES ARISING FROM YOUR USE OF THIRD PARTY WEBSITES. Our terms and policies do not govern your use of any site other than the Frootbat Sites and Services. You should review applicable terms and policies, including the privacy and data gathering practices, of any Reference Sites.

17. Purchases on Third Party Websites: 

In addition to purchases through the Frootbat Services, the Frootbat Sites may permit you to make purchases of products or services through third party websites or may direct link to such websites. The term associated with your transactions for third party services and/or products are subject to the terms and conditions and privacy policies of the third party websites. If you have problems or questions regarding a transaction with a third-party website, please contact the third-party website directly.

18. Service Availability: 

Frootbat may make changes to or discontinue any of the media, web communities, products, or services available through the Frootbat Services at any time, and without notice. The media, products, or services on the Frootbat Sites may be out of date, and Frootbat makes no commitment to update these materials on the Frootbat Sites.

19. Communications and Text Messages:

When you use the Services, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Services, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

As part of the Services we provide, you may receive emails or other types of notifications directly sent to you from the Frootbat Services (the “Subscriber Emails”). Such Subscriber Emails will update you on incoming products, discounts, and links to articles and content located on the Frootbat Sites. You have control over the Subscriber Email settings and can opt in or out of these Subscriber Emails through the Services. 

We may offer you the opportunity to invite your friends or contacts to visit the Frootbat Sites and enjoy the Services. If you click to invite one or more of your friends or contacts using email we may suggest content for the message. If you choose to send such email invitations, you represent to Frootbat that the recipients of such invitations have consented to receive such messages from you, and that those recipients do not consider such messages unwanted or unsolicited. Further such invitation emails should be directed only to recipients that are of legal drinking age or older.

Your voluntary provision to Frootbat of your cell phone number represents your consent that Frootbat, Sellers with which you place an order, delivery drivers, and delivery services may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes. When you provide your phone number to Frootbat, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from Frootbat at any time. To revoke your consent to receiving SMS or MMS messages from Frootbat, you must reply “STOP” from the mobile device receiving the messages.

If you unsubscribe from receiving text messages from Frootbat, you may continue to receive text messages for a short period while Frootbat processes your request(s). If you change or deactivate the phone number you provided to Frootbat, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Frootbat’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.

20. Feedback: 

You agree that with respect to any feedback, analysis, suggestions and comments to Frootbat provided by you (collectively, “Feedback”), IN CONSIDERATION OF FROOTBAT PROVIDING ACCESS TO THE FROOTBAT SERVICES FREE OF CHARGE, USER HEREBY GRANTS TO FROOTBAT THE EXCLUSIVE PERPETUAL, IRREVOCABLE AND WORLDWIDE RIGHT TO USE, COPY, DISPLAY, PERFORM, TRANSLATE, MODIFY, LICENSE, SUBLICENSE AND OTHERWISE EXPLOIT ALL OR PART OF THE FEEDBACK OR ANY DERIVATIVE THEREOF IN ANY EMBODIMENT, MANNER OR MEDIA NOW KNOWN OR HEREAFTER DEVISED WITHOUT ANY REMUNERATION, COMPENSATION OR CREDIT TO USER. User represents and warrants that User has the right to make the foregoing grant to Frootbat and that any Feedback which is provided by User to Frootbat does not infringe any third-party intellectual property rights. Notwithstanding the foregoing, Frootbat grants to you a non-exclusive, non-transferable, non-sublicensable, world-wide, perpetual and irrevocable license to use the Feedback for your own personal, non-commercial purposes that do not compete, directly or indirectly, with our use of such Feedback.

21. Terms Violations; Termination: 

You agree that Frootbat, in its sole discretion, may terminate any account (or any part thereof) you may have through the Frootbat Serviceses or your use of the Frootbat Sites, and remove and discard all or any part of your account or any User Content with or without cause. You agree that your access to the Frootbat Services or any account you may have or portion thereof may be terminated without prior notice, and you agree that Frootbat shall not be liable to you or any third-party for any such termination. Frootbat reserves the right to modify, suspend or discontinue the Frootbat Services and/or access to it at any time and without notice to you, and Frootbat will not be liable to you should it exercise such rights, even if your use of the Frootbat Services is impacted by the change. These remedies are in addition to any other remedies Frootbat may have at law or in equity.

22. DISPUTE RESOLUTION:

PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH FROOTBAT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

YOU AND FROOTBAT AGREE TO ARBITRATE ANY DISPUTE ARISING FROM THESE TERMS OF USE, OR YOUR USE OF THE FROOTBAT SERVICES, OR ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE FROOTBAT SERVICES, EXCEPT THAT YOU AND FROOTBAT ARE NOT REQUIRED TO ARBITRATE ANY DISPUTE IN WHICH EITHER PARTY SEEKS EQUITABLE AND OTHER RELIEF FOR THE ALLEGED UNLAWFUL USE OF COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS, OR PATENTS. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. YOU AND FROOTBAT AGREE: (A) THAT ANY ARBITRATION WILL OCCUR IN DOVER, DELAWARE; (B) THAT ARBITRATION WILL BE CONDUCTED CONFIDENTIALLY BY A SINGLE ARBITRATOR IN ACCORDANCE WITH THE RULES OF JAMS; AND (C) THAT THE STATE OR FEDERAL COURTS OF KENT COUNTY, DELAWARE HAVE EXCLUSIVE JURISDICTION OVER ANY APPEALS OF AN ARBITRATION AWARD AND OVER ANY SUIT, IF ANY, BETWEEN THE PARTIES NOT SUBJECT TO ARBITRATION. OTHER THAN CLASS PROCEDURES AND REMEDIES DISCUSSED BELOW, THE ARBITRATOR HAS THE AUTHORITY TO GRANT ANY REMEDY THAT WOULD OTHERWISE BE AVAILABLE IN COURT. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND FROOTBAT AGREE THAT ALL CLAIMS WILL BE RESOLVED INDIVIDUALLY, AND NOT ON A CLASS, CONSOLIDATED, OR REPRESENTATIVE BASIS. YOU AND FROOTBAT HEREBY WAIVE ANY RIGHT TO A JURY TRIAL OR TO PARTICIPATE IN A CLASS ACTION AGAINST THE OTHER PARTY.

INDEMNIFICATION; HOLD HARMLESS: 

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FROOTBAT, INCLUDING ALL ITS AFFILIATES AND SUBSIDIAREIS, AND ITS AND THEIR MANAGERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND REPRESENTATIVES (“FROOTBAT PARTIES”) FROM ANY AND ALL CLAIMS, LOSSES, OBLIGATIONS, DAMAGES, LIABILITIES, COSTS, DEBT, AND EXPENSES (INCLUDING ATTORNEY’S FEES) ARISING OUT OF (I) YOUR USE OR MISUSE OF THE FROOTBAT SERVICES; (II) YOUR USER CONTENT, INCLUDING FROOTBAT’S USE, DISPLAY OR OTHER EXERCISE OF ITS LICENSE RIGHTS GRANTED HEREIN WITH RESPECT TO YOUR USER CONTENT; (III) YOUR VIOLATION OF THESE TERMS; (IV) YOUR VIOLATION OF THE RIGHTS OF ANY OTHER PERSON OR ENTITY, INCLUDING CLAIMS THAT ANY USER CONTENT INFRINGES OR VIOLATES ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS; (V) YOUR BREACH OF THE FOREGOING REPRESENTATIONS, WARRANTIES, AND COVENANTS; AND (VI) ANY UNAUTHORIZED USE OF YOUR ACCOUNT NOT CAUSED BY FROOTBAT. FROOTBAT RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER FOR WHICH YOU ARE REQUIRED TO INDEMNIFY THE FROOTBAT PARTIES AND YOU AGREE TO COOPERATE WITH OUR DEFENSE OF THESE CLAIMS. YOU AGREE NOT TO SETTLE ANY MATTER GIVING RISE TO YOUR INDEMNIFICATION OBLIGATIONS WITHOUT THE PRIOR WRITTEN CONSENT OF FROOTBAT. FROOTBAT WILL USE REASONABLE EFFORTS TO NOTIFY YOU OF ANY SUCH CLAIM, ACTION, OR PROCEEDING UPON BECOMING AWARE OF IT.

23. DISCLAIMERS; NO WARRANTIES:

a. ACKNOWLEDGMENT. 

YOU EXPRESSLY ACKNOWLEDGE THAT AS USED IN THIS SECTION AND THE TWO SECTIONS BELOW, THE TERM FROOTBAT INCLUDES EACH OF ITS MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, MEMBERS, AGENTS AND SUBCONTRACTORS.

b. NO WARRANTIES. 

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FROOTBAT DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON- INFRINGEMENT OF PROPRIETARY RIGHTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FROOTBAT OR THROUGH THE FROOTBAT SERVICES, WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.

c. “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS.” 

YOU EXPRESSLY AGREE THAT THE USE OF THE FROOTBAT SERVICES IS AT YOUR SOLE RISK. THE FROOTBAT SERVICES, FROOTBAT MATERIALS, USER CONTENT, NON-FROOTBAT CONTENT, AND ANY OTHER THIRD-PARTY MEDIA, CONTENT, SOFTWARE, GOODS, SERVICES OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE FROOTBAT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE,” “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED.

d. WEBSITE OPERATION AND NON-FROOTBAT CONTENT. 

FROOTBAT DOES NOT WARRANT THAT THE FROOTBAT MATERIALS, USER CONTENT, NON-FROOTBAT CONTENT, FROOTBAT SERVICEES, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE FROOTBAT SERVICES OR ANY REFERENCE SITES WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.

e. ACCURACY.

FROOTBAT DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE FROOTBAT SERVICES OR ANY REFERENCE SITES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

f. HARM TO YOUR COMPUTER. 

YOU UNDERSTAND AND AGREE THAT YOUR USING, ACCESSING, DOWNLOADING, OR OTHERWISE OBTAINING INFORMATION, MATERIALS, OR DATA THROUGH THE FROOTBAT SERVICES (INCLUDING RSS FEEDS) OR ANY REFERENCE SITES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE USE OR DOWNLOAD OF, OR OTHER ACCESS TO SUCH MATERIAL OR DATA. ANY HEALTH AND WELLNESS CONTENT AND OR INFORMATION IS DESIGNED FOR EDUCATIONAL AND INFORMATIONAL PURPOSES ONLY AND DOES NOT AND IS NOT INTENDED AS MEDICAL ADVICE, TO SERVE AS A SUBSTITUTE FOR MEDICAL ADVICE AND DOES NOT CONSTITUTE THE PRACTICE OF MEDICINE. YOUR USE OF THE FROOTBAT SERVICES DOES NOT CREATE A DOCTOR / PATIENT RELATIONSHIP. THE FROOTBAT SERVICES DO NOT OFFER MEDICAL ADVICE AND NOTHING CONTAINED IN THE CONTENT IS INTENDED TO CONSTITUTE PROFESSIONAL ADVICE FOR MEDICAL DIAGNOSIS OR TREATMENT. USE OF THE FROOTBAT SERVICES DOES NOT REPLACE MEDICAL CONSULTATIONS WITH A QUALIFIED HEALTH OR MEDICAL PROFESSIONAL TO MEET THE HEALTH AND MEDICAL NEEDS OF YOU OR ANY OTHER PARTY. FROOTBAT DISCLAIMS ALL RESPONSIBILITY FOR THE PROFESSIONAL QUALIFICATIONS AND LICENSING OF, AND SERVICES PROVIDED BY, ANY PHYSICIAN OR OTHER HEALTH PROVIDER REFERRED TO ON THE FROOTBAT SERVICES AND/OR ANY THIRD PARTY WEBSITE. NEVER DISREGARD THE MEDICAL ADVICE OF A PHYSICIAN OR HEALTH PROFESSIONAL, OR DELAY IN SEEKING SUCH ADVICE, BECAUSE OF SOMETHING YOU READ ON THE FROOTBAT SITES. ALTHOUGH FROOTBAT STRIVES TO ENSURE THAT THE INFORMATION FROOTBAT PROVIDES ON THE FROOTBAT SITES IS CORRECT, FROOTBAT CANNOT GUARANTEE THAT IT IS ALWAYS ACCURATE AND UP-TO-DATE. FROOTBAT OFFERS THE FROOTBAT SERVICES AS IS AND WITHOUT ANY WARRANTIES.

g. NOT A PARTY TO TRANSACTION WITH SUPPLIERS.

FROOTBAT WILL NOT BE A PARTY TO OR RESPONSIBLE FOR ANY TRANSACTIONS BETWEEN USERS OF FROOTBAT SERVICES AND SUPPLIERS. FROOTBAT WILL ONLY NOTIFY BOTH PARTIES WHEN THERE IS AN OFFER TO PURCHASE A PRODUCT AND PROCESS PAYMENT ONCE THERE IS AN ACCEPTANCE. FROOTBAT WILL NOT BE A PARTY OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND SUPPLIERS, OR THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

24. LIMITATION OF LIABILITY AND DAMAGES:

a. LIMITATION OF LIABILITY.

UNDER NO CIRCUMSTANCES, AND UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL FROOTBAT OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, DATA OR USE OR COST OF COVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OF, OR THE INABILITY TO USE, THE FROOTBAT SERVICES, MATERIALS AND USER CONTENT ON THE FROOTBAT SITES OR ANY REFERENCE SITES, THE FROOTBAT SITES ITSELF, OR ANY OTHER INTERACTIONS WITH FROOTBAT, EVEN IF FROOTBAT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

LIMITATION OF DAMAGES. IN NO EVENT SHALL FROOTBAT OR ITS THIRD PARTY COLLABORATORS, LICENSORS OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THESE TERMS, THE SERVICES OR YOUR USE OF THE FROOTBAT SITES (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE) EXCEED THE LESSOR OF ONE HUNDRED DOLLARS (USD $100) OR ONE-HALF OF THE ANNUAL FEES PAID BY YOU TO FROOTBAT (IF APPLICABLE) IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE THAT SUCH CLAIM AROSE.

b. THIRD PARTY PRODUCTS AND SERVICES.

SOME USERS MAY USE THE FROOTBAT SERVICES TO MARKET PRODUCTS AND/OR SERVICES.  THE ABOVE LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY REASON OF ANY SUCH PRODUCTS OR SERVICES MARKETED, SOLD OR PROVIDED BY USERS, OR OTHERWISE BY THIRD PARTIES OTHER THAN FROOTBAT AND RECEIVED BY YOU THROUGH OR ADVERTISED ON THE FROOTBAT SERVICES OR THIRD PARTY SITES, INCLUDING WITHOUT LIMITATION ANY REFERENCE SITES.

25. Digital Millennium Copyright Act Compliance:

a. Infringement Claims. 

If you are a copyright owner or an agent thereof and believe that any User Content or other Non-Frootbat Content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C. 512(c)(3) for further detail).

• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative listing of such works or a link or URL to all such works.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity on the Frootbat Sites and that is to be removed or access to which is to be disabled, including the link or URL for all such material on the Frootbat Sites.
• Information reasonably sufficient to permit Frootbat to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
• A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Frootbat’ designated Copyright Agent to receive notifications of claimed infringement is: 800 N King Street Suite 304 Wilmington, DE 19801

FAILURE TO INCLUDE ALL OF THE ABOVE INFORMATION, ESPECIALLY SPECIFIC INFORMATION ABOUT WHERE INFRINGING CONTENT MAY BE FOUND, WILL RESULT IN A DELAY IN THE PROCESSING OF YOUR DMCA NOTIFICATION AND MAY RESULT IN YOUR HAVING TO REPEAT SOME OR ALL OF THE ABOVE PROCESS.

b. Notice and Takedown. 

If we receive proper notification of claimed copyright infringement, we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing, as described below, or to be the subject of infringing activity. We will also comply with the appropriate provisions of the DMCA in the event a counter-notification is received, as described below.

We may, at our discretion, deny access to the Frootbat Services by, or disable and/or terminate the accounts of, Users who may be infringers.

c. Copyright Counter-Notices. 

If content you posted on the Frootbat Sites was removed for copyright or intellectual property infringement, and you would like to dispute that removal, the process for counter-notifications, which is governed by Section 512(g) of the DMCA, is as follows:

• To file a counter-notification with us, you must provide our Copyright Agent, at the address set forth above, with a written communication that sets forth the items specified below
• Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Please also be advised that we enforce a policy that provides for the termination, in appropriate circumstances, of the accounts of (or access privileges by) Users who are infringers. Accordingly, if you are not sure whether certain material infringes your copyright or the copyrights of others, we suggest that you first contact an attorney.
• Elements of Counter-Notification. To expedite our ability to process your counter- notification, please use the following format (including section numbers):
• Identify the specific URLs of (or other information sufficient to allow us to identify) material that Frootbat has removed or to which Frootbat has disabled access.
• Provide your full name, address, telephone number, email address and, if you are a registered User, the User name of your Frootbat account.
• Provide a statement that you consent to the jurisdiction of the federal district court for the judicial district in which the address is located (or if you are outside of the United States, that you consent to jurisdiction of any judicial district in which the service provider may be found), and that you will accept service of process from the person who provided notification to our Copyright Agent in accordance with the process outlined above or an agent of such person.
• Include the following statement: “I swear, under penalty of perjury, that I have a good- faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”
• Sign the notice. If you are providing notice by email, a scanned physical signature or a valid electronic signature will be accepted. Send the communication to the following address: 800 N King Street Suite 304 Wilmington, DE 19801

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement. Please note that when we forward the counter- notification, it includes any of your Identifying Information set forth in the counter- notification. By submitting a counter-notification, you consent to having such Identifying Information revealed in this way. We will not forward the counter-notification to any party other than the original claimant. After we send out the counter-notification, the claimant must then notify us within ten (10) days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on the Frootbat Sites. If we receive such notification, we will be unable to restore the items. If we do not receive such notification, we may, but are not obligated to, reinstate the disputed item(s).

Foreign Counter-Notification: If you reside outside of the United States, please understand that filing a counter-notice may lead to legal proceedings between you and the complaining party to determine ownership. Be aware that there may be adverse legal consequences in your country and/or the United States of America if you make a false or bad faith allegation by using this process. Please also be advised that we enforce a policy that provides for the termination in appropriate circumstances of access privileges for Users who are infringers. So, if you are not sure whether content you posted on the Frootbat Sites is being infringed or are otherwise unsure of whether to file a counter-notification using these procedures, we strongly recommend you first contact a lawyer knowledgeable in the laws of the United States and the State of Delaware. If you do wish to file a counter-notice, you should follow the process set forth above under the heading “Elements of Counter-Notification.”

26. Proposition 65.

Disclaimer: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY.

PROPOSITION 65:

Prop 65, officially known as the Safe Drinking Water and Toxic Enforcement Act of 1986, protects California citizens and the state’s drinking water sources from being contaminated with chemicals known to cause cancer, birth defects or other reproductive harm, and requires businesses to inform citizens about exposures to such chemicals. Pursuant to Prop 65, California consumers are entitled to the following WARNINGS:

• Alcoholic beverages: Drinking distilled spirits, beer, coolers, wine and other alcoholic beverages may increase cancer risk, and, during pregnancy, can cause birth defects. For more information go to www.P65Warnings.ca.gov/alcohol.
• Canned and Bottled Foods and Beverages: BPA is a widely used chemical. It is used in some protective coatings, including some linings that prevent rust, corrosion, and contamination in metal food and drink cans. Some jar lids and bottle caps also have these linings. You can be exposed to BPA when you consume foods or beverages packaged in these containers. BPA can harm the female reproductive system, including effects on ovaries and eggs. For more information, go to: https://www.p65warnings.ca.gov/BPA.

27. Waiver:

No waiver of these Terms by Frootbat shall be deemed a further or continuing waiver of the Terms or any other policy or condition adopted by Frootbat, and any failure by Frootbat to assert a right or provision under Terms shall not constitute a waiver of the right or provision. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision

28. Severability:

If any provision of these Terms or the Privacy Notice or Shipping Policy, or the application thereof to any person or circumstance, is determined by an arbitrator or court of competent jurisdiction to be invalid, illegal, or unenforceable to any extent, such provision shall be severed from this Agreement and shall not affect the validity or enforceability of the remaining provisions of this Agreement. The remaining provisions shall continue in full force and effect and shall be interpreted to give effect to the original intent of the parties as closely as possible. To the extent permitted by applicable law, the parties further agree to replace any such invalid, illegal, or unenforceable provision with a valid and enforceable provision that most closely reflects the original intent and economic effect of the invalid provision.

29. Entire Agreement:

The Terms and the Privacy Notice and Shipping Policy constitute the sole and entire agreement between you and Frootbat with respect to all products, Services and the Frootbat Sites, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the products, services and  Frootbat Services.

30. Modification:

Frootbat reserves the right to add, remove or otherwise modify the Terms at any time, at its discretion. We may notify you of such changes through any of a variety of means, including a change to the “Last Updated” date set forth above and other reasonable means to be determined at our discretion. All changes shall be effective immediately. Please check these Terms periodically for changes.

If you wish to terminate your use of the Frootbat Services  to order our products due to a modification of the Terms, please contact us at admin@Frootbat.co.  If you choose to continue using the Frootbat Services to order our products after receiving notice of modification, you agree that continuing to use the Frootbat Services shall be deemed as your acceptance of the new Terms.

31. Force Majeure:

We shall be excused from performance under the Terms if we fail or are prevented, forbidden or delayed from performing by reason of: (a) any provision of any present or future law or regulation or order of any court, the United States of America, or any State or local government body, (b) any act or omission of a third party, or (c) any act, emergency condition, war, computer or telecommunications failure or other circumstance beyond our control.

32. Drink Responsibly: 

Frootbat is committed to promoting the responsible consumption of alcohol. Excessive or irresponsible consumption of alcohol may lead to harmful personal, social or health consequences. As a part of our commitment to provide you with everything you need in order to enjoy alcoholic products responsibly, we ensure that communications regarding alcoholic products do not show or encourage excessive consumption or misuse of any kind.

33. Accessibility

We are committed to making the Frootbat Sites content accessible and user friendly to everyone. If you are having difficulty viewing or navigating the content on a Frootbat Site, or notice any content, feature, or functionality that you believe is not fully accessible to people with disabilities, please email our team at admin@frootbat.com  with “Accessibility” in the subject line and provide a description of the specific feature that you believe is not fully accessible or a suggestion for improvement. You may also call 302-406-4129. We take your feedback seriously and will consider it as we evaluate ways to accommodate all of our customers and our overall accessibility policies. Additionally, while we do not control third party vendors, we strongly encourage vendors of third-party digital content to provide content that is accessible and user friendly. 

34. General Provisions:

You agree that Frootbat and its licensors may make improvements and/or changes in the Frootbat Site Content and Services or events described on Frootbat Sites, if any, at any time without notice and without liability to you of any kind. You are responsible for compliance with applicable local laws, keeping in mind that access to Frootbat Services may not be legal by certain persons or in certain countries. If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties, with all other provisions remaining in full force and effect. The failure of Frootbat to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Frootbat in writing. The Terms, along with the Frootbat Privacy Policy, comprises the entire agreement between you and Frootbat and supersede all prior or contemporaneous negotiations, discussions or agreements, if any, between the parties regarding the subject matter contained herein. These Terms are personal to you and you may not transfer, assign, or delegate these Terms and Conditions to anyone without the express written permission of Frootbat. Any attempt by you to assign, transfer, or delegate these Terms and Conditions without the express written permission of Frootbat shall be null and void. These Terms and Conditions will insure to the benefit of Frootbat successors, assigns, and licensors. The paragraph headings in these Terms, shown in boldface type, are included to help make the agreement easier to read and have no binding effect. Delaware law and controlling U.S. federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, will govern any action related to these Terms. Subject to dispute resolution proceedings defined above, you agree to submit to the jurisdiction of the courts located in Dover, Delaware for the resolution of all disputes arising from or related to these Terms and Conditions and/or your use of the Site.

If you have any questions about these Terms and Conditions, please contact us via email at admin@frootbat.com.

Disclosures. The services hereunder are offered by Frootbat, located at:

800 N King Street Suite 304

Wilmington, DE 19801

LAST UPDATED: June 25, 2025

Privacy Policy

This “Privacy Policy” explains how information about you is collected, used and disclosed by Frootbat. and our subsidiaries (collectively "Frootbat") when you use our Website (the "Services") or when you otherwise interact with us.

Frootbat may change this Privacy Policy from time to time. If Frootbat makes changes to this Privacy Policy, Frootbat will notify you by revising the date at the top of this Privacy Policy and, in some cases; Frootbat may provide you with additional notice (such as sending you an email notification). Frootbat encourages you to review the Privacy Policy whenever you access the Website or use the Services to stay informed about Frootbat information practices and the ways you can help protect your privacy. Unless otherwise defined in this Privacy Policy, terms used in this Privacy Policy have the same meanings as in our Terms of Use.

COLLECTION OF INFORMATION:

NON-PERSONALLY IDENTIFIABLE INFORMATION:

When you register for an Account with Frootbat or use the Services (either on your computer, mobile phone or other device), Frootbat servers may (i) automatically record information that your computer, mobile phone or device sends or transmits, including your device type, your device ID number (for example, your UDID), user settings, and information about your use of the Services such as promotions viewed, purchases made, and information you submitted, (ii) record which search terms you used, or which referring/exit pages brought you to the Website, and date/time information, (iii) record certain non-personally identifying information provided by you, such as your gender, age or date of birth, (iv) record, determine or use information about or from another content delivery platform, and (v) record information derived from such above information and other third party sources such as offers and advertisements viewed on the Website, or any information provided by affiliated partners (collectively the “Non-Identifiable Information”).

PERSONAL INFORMATION YOU MAY PROVIDE TO US:

When you use the Services, Frootbat may ask you to provide some personally identifiable information—information about you that can be used to contact or identify you, and information on your use or potential use of the Services and related services (the “Personal Information”). Personal Information that Frootbat may collect include things like your name, date of birth, age, mobile phone number, other phone numbers, email address, home address, PayPal or credit card billing information and any other submissions provided by you. Personal Information may also include other information you supply to Frootbat concerning your preferences and interests expressed in the course of using the Services.

INFORMATION ABOUT YOU WE MAY OBTAIN THROUGH OTHER SOURCES:

Frootbat may also receive Personal Information provided by affiliated partners or third parties in the course of your using their services, or from third parties subject to the limitations of the privacy policies of those affiliated partners or third parties.

DATA DELETION

Users may at any time request the deletion of their personal data held by Frootbat. In order to do so, a request should be submitted to orders@frootbat.com.

USE OF INFORMATION

Frootbat may use information about you for various purposes, including, but not limited to:

• Providing, maintaining and improving the Services or Website, including to provide additional features and content for you;
• Responding or processing your comments, questions, inquiries and requests, and providing customer service;
• Sending you technical notices, updates, security alerts, support and administrative messages;
• Communicating with you about products, services, offers, trends, promotions, industry news and events offered by Frootbat and others, and providing news and information Frootbat thinks will be of interest to you;
• Monitoring and analyzing trends, usage and activities in connection with the Services and Website;
• Personalizing and improving the Services and providing advertisements, content or features that match user profiles or interests;
• Anonymizing or aggregating your non-identifying information for business purposes, including for reporting and researching;
• Linking or combining the information Frootbat gets from others to help understand your needs and to provide you with better service; and
• Carrying out any other purpose for which the information was collected.

Frootbat is based in Australia and Australian law governs the information Frootbat collects. By accessing or using the Services or otherwise providing information to Frootbat, you consent to the processing and transferring of information in and to Australia and other countries. Notwithstanding anything to the contrary in this Privacy Policy, Frootbat may preserve or disclose your information if Frootbat believes that it is reasonably necessary to comply with a law, regulation or legal request; to protect the safety of any person; to address or investigate fraud or other illegal activities, security or technical issues; or to protect Frootbat’s rights or property. However, nothing in this Privacy Policy is intended to limit any legal defenses or objections that you may have against a third party, including a government request to disclose your information.

Rakuten Advertising may collect personal information when you interact with our digital property, including IP addresses, digital identifiers, information about your web browsing and app usage and how you interact with our properties and ads for a variety of purposes, such as personalization of offers or advertisements, analytics about how you engage with websites or ads and other commercial purposes. For more information about the collection, use and sale of your personal data and your rights, please use these links: Privacy policy. Your rights

USE OF COOKIES

The terms “using” and “processing” information, as used in this Privacy Policy, include using cookies or other storage means on a computer or mobile device, subjecting the information to statistical or other analysis and collecting, storing, evaluating, modifying, deleting, using, combining, disclosing and transferring information within Frootbat's organization or Frootbat Affiliates within Australia or internationally.

Frootbat may use “cookies” (a cookie is a small data file that is kept in your device’s memory for record-keeping purposes), and/or other storage on your device to help Frootbat collect, maintain, and use this information, for two purposes. First, to make the interactions easier and more personalized for you, Frootbat may utilize persistent cookies to save information relating to your Account and/or activity for future interactions with the Services. Second, to better understand how you interact with the Services and to monitor aggregate usage by Frootbat users and web traffic routing on the Services, Frootbat may utilize session ID cookies to enable certain features of the Services. Unlike persistent cookies, session cookies are deleted from your device when you log off from the Services and then close your browser. Third party advertisers on the Services may also place or read cookies on your browser. At any time, you can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from the websites you visit. Please understand that if you do not accept cookies, you may not be able to use all portions or all functionality of the Services.

USAGE PATTERNS

Frootbat may also use data collection tags or directives such as “pixel tags,” Javascript scripts, API calls, or similar means (individually or collectively, “Usage Tracking”) in combination with cookies and the demographic or psychographic data we have collected, and with third-party analysis partners, to analyze usage patterns of users anonymously and to serve advertisements to you that are tailored based on the analysis of what Frootbat believes you would respond favorably to in light of the information that Frootbat has collected or accessed about you as described above. A “pixel tag” is an electronic image, often a single pixel and often transparent, that is placed on a web page and may be associated with cookies on your hard drive. Usage Tracking allows Frootbat to count users who have visited certain websites and pages within websites, or used websites or features, to analyze the behavior of users of the Website, in order to improve the Website, and to personalize and determine the effectiveness of promotional or advertising campaigns.

SHARING INFORMATION

Frootbat will not share your Personal Information with anyone else except to provide the Services, when Frootbat otherwise has your permission, or under the following circumstances:

NON-PERSONALLY IDENTIFIABLE INFORMATION:

As discussed above, Frootbat may share with third parties or the public aggregated information in a form that does not disclose your Personal Information, nor be reasonably likely to allow you to be personally identified, for industry analysis, demographic profiling and similar purposes. Frootbat share this aggregated information so that its partners also understand how interested users are in their products and services, so that they may also provide you with an optimal online experience, and so that additional retail or brand partners can see the opportunity in Frootbat and may also become partners and further enrich the Services and offers for our users.

COMPLIANCE WITH LAWS AND LAW ENFORCEMENT:

Frootbat cooperates with government and law enforcement officials and private parties to enforce and comply with the law. Frootbat reserves the right to track IP addresses for the purposes of fraud prevention, and to release IP addresses to legal authorities. Frootbat will disclose information about you to government or law enforcement officials or private parties when Frootbat believes reasonably necessary to comply with law, to protect the property and rights of Frootbat or a third party, to protect the safety of the public or any person, or to prevent or stop activity Frootbat may consider to be, or to pose a risk of being, any illegal, unethical or legally actionable activity.

BUSINESS TRANSFERS

Frootbat may sell, transfer or otherwise share your Personal Information in connection with a merger, acquisition, reorganization or sale of our company (or our assets) or in the event of its bankruptcy; this is the only case in which Frootbat may sell Personal Information it collects from you or from your use of the Services.

SECURITY:

Frootbat takes reasonable measures to help protect information about you from loss, theft, misuse and unauthorized access, disclosure, alteration and destruction. Frootbat does not disclose your Personal Information except in the limited circumstances described herein.

LINKS TO OTHER SITES

The Services may contain links or API’s (e.g. data or content exchange interfaces), to external services or websites of other partners or advertisers, including any affiliated partners, for information or functionality of services. If you choose to visit a partner or advertiser by “clicking on” or selecting a button, service, banner ad, or other type of advertisement, or click on another third party link, you will be directed to that third party’s resources. The fact that Frootbat may link to or incorporate a partner's services, functionality, or website, or present a banner ad or other type of advertisement, is not an endorsement, authorization or representation of its affiliation with that third party, nor is it an endorsement of their privacy or information security policies or practices. Frootbat does not exercise control over third party services, functionality, websites or other resources, including their use of personal information, and you should exercise caution when deciding to disclose any personal information to a third party. Frootbat encourages you to read the privacy policies or statements of the other websites you visit to learn more about their privacy practices. These other parties may place their own cookies or other files on your computer or device, collect data or solicit personal information from you. Other services follow different rules regarding the use or disclosure of the personal information you submit to them. This Privacy Policy only applies to the Services, and neither Frootbat nor Frootbat Affiliates are responsible for the privacy practices or the content of other websites.

AGREEMENT AND CHANGES TO THIS PRIVACY POLICY

By using any part of the Services, you agree to the current Agreements, to which this Privacy Policy is incorporated. Frootbat reserves the right, in its sole discretion, to modify, discontinue, or terminate any or all of the Services or to modify this Privacy Policy at any time, without notice to you. Any modifications will be effective immediately as of the date the modified Privacy Policy is posted on the Website. By continuing to access or use the Services after Frootbat has posted a modification, you are indicating that you agree to be bound by the modified Privacy Policy. If the modified Privacy Policy is not acceptable to you, your only recourse is to cease using the Services.

UNDERAGE INDIVIDUALS

The Services are not directed to persons under the legal drinking age in their Country of residence. Frootbat does not knowingly collect personal information from anyone under the legal drinking age. If Frootbat becomes aware that an individual under the legal drinking age has provided it with personal information, Frootbat will take steps to remove such information and terminate the individual's Account. Frootbat products that contain alcohol should not be purchased or used by anyone under the the legal drinking age provided by the laws of jurisdiction or territory they are located in.

If you become aware that an individual under the the legal drinking age has provided Frootbat with personal information, created an Account, or is purchasing products containing alcohol, please contact us at orders@frootbat.com.

YOUR CHOICES

ACCOUNT INFORMATION

If you are a registered user of the Services, Frootbat provides you with tools and account settings to access or modify the Personal Information you provided to Frootbat and associated with your Account. You can also permanently delete your Account.

PUSH NOTIFICATIONS/ALERTS

Frootbat may send Subscriber Emails and/or notifications to your device. When you first launch any features of the Services, you will be asked to consent to Frootbat ability to send Subscriber Emails to you. If you initially consent to Subscriber Emails, you can subsequently stop the emails by changing the preferences in your Account. You may also stop Subscriber Emails by following the standard uninstall process to remove the Services from your device.

CONTACT INFORMATION

Rock Hill Trading PTY LTD

PO Box 3142 Tamarama NSW 2026 Australia

Email: orders@frootbat.com

LAST UPDATED: 30th October 2023