THE BOSTON BEER COMPANY BUSINESS WEB SITE USAGE TERMS AND CONDITIONS
1. Authorized Use and Users
The Boston Beer Company Promotional Allowance System (“PAS”) is an electronic communication tool made available by The Boston Beer Company (the “Company”) to certain of its business partners, such as its authorized wholesale distributors (the “Distributor”), for use in selected business transactions.
This document contains the terms and conditions for use of the PAS (the “Terms”), and applies to all communications and transactions by any Distributor principal, employee, consultant, or agent (“User”) occurring over the PAS. The PAS is to be used solely by the Distributor for the purpose of conducting business with the Company. The Distributor must restrict access to the system to only those Users who have a bona fide business purpose to use the system. Improper use of the PAS may create potential legal liability, compromise proprietary and/or confidential business information, or otherwise undermine the business efforts of the Company and its business partners. Every Distributor shall share these Terms with each User of the system, noting that use of the PAS constitutes the User’s consent to be bound by these Terms. Distributors are responsible for the content of all communication transmitted over or entered into the PAS by its Users.
User shall create a unique user name and password upon initial log-in to the PAS. The Company shall verify User’s identity with an appropriate contact at the relevant Distributor. User shall use his/her best efforts to maintain the security of the user name and password. User is responsible for controlling access to his or her computer workstation. User should contact the Company immediately if he or she believes that the integrity of the user name, password, or other information has been compromised.
Misrepresenting one’s identity through the use of aliases, or other anonymous features while using the PAS is strictly prohibited. Distributors and Users must promptly report any suspected security violations of the PAS to the Company.
3. Licensing and Intellectual Property Rights
Software provided by the Company to enable Distributors and their Users to access PAS shall be solely for use with PAS, and shall not be modified, copied, or transferred without the express written consent of the Company.
The Company-owned trademarks, trade names and logos that appear in the PAS shall be used only as permitted under the written agreement (hereinafter referred to as the “Wholesaler Agreement”) between the Company and its authorized Distributor.
The Company retains ownership in the Software, the Company-owned trademarks, trade names and logos that appear in the PAS, and in all of its other intellectual property rights. Except as expressly specified to the contrary, the Company reserves all rights in its intellectual property.
In no event shall any User misuse the intellectual property of a third party via the PAS.
4. Data Integrity and Confidentiality
Although the Company has taken steps to ensure the integrity of the system and maintain the confidentiality of the data contained in the system, the Company cannot guarantee that such steps will be to Distributor’s or User’s satisfaction, and there is a risk of unauthorized access to the system due, among other things, to the use of unsecured telephone lines.
Distributor and its Users shall not knowingly submit false or inaccurate data to the Company. The Company reserves the right to retain or dispose of information provided to it and to audit any and all information submitted via the PAS, in accordance with the terms of the Wholesaler Agreement.
5. Limitation of Liability and Disclaimers
The PAS is provided by the Company “as-is” and without warranty of any kind, either express or implied, including without limitation any implied warranties of merchantability, fitness for a particular purpose, expectation of privacy, or non-infringement. In no event shall the Company be liable for any damages arising out of, or in any way connected with, the use of or inability to use the PAS system or for any information or software obtained through or otherwise used in connection with the PAS, including but not limited to interruptions, errors, defects, viruses, delays in operation or transmission, or any failure of performance, whether or not resulting from communications failure, theft, destruction, acts of God or unauthorized access to the system.
6. Prohibited Conduct
Users shall not transmit any unlawful, harmful, threatening, abusive, harassing defamatory, vulgar, obscene, sexually explicit, profane, or otherwise inappropriate or objectionable material of any kind via the PAS.
Users shall not install any unauthorized software on the PAS unless specifically authorized by the Company or the applicable Distributor. Access to PAS or other Company systems via unauthorized methods is strictly prohibited.
Failure to adhere to these Terms and/or improper use of the PAS or other Company systems may result in actions permissible under law or by contract, including the loss of use of the system by Distributor.
Distributor and User agree to indemnify and hold harmless the Company, and its parents, subsidiaries, affiliates, officers, directors, shareholders, employees, and agents, from any claim or demand, including, without limitation, penalties, interest, reasonable attorneys’ fees and costs, made by any third party due to or arising directly or indirectly out of Distributor’s or User’s conduct, use or misuse of the PAS, or breach of any representations and warranties contained in these Terms. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Distributor or User, but doing so shall not excuse Distributor’s or User’s indemnity obligations. The Company shall have the right to participate in the defense of all claims pursuant to this Section.
8. Force Majeure
Under no circumstances shall the Company be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces or causes beyond its reasonable control, including without limitation, internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties, or loss of or fluctuation in heat, light or air conditioning.
The Company reserves the right, in its sole discretion, to change, modify, add or remove all or part of the Terms, without any notice beyond posting the most recent version of the Terms on this web site. All amendments and modifications shall be effective immediately upon posting. Distributor’s or User’s only right with respect to any dissatisfaction with any modifications made pursuant to this provision, or any policies or practices of the Company in providing the PAS, is to terminate in accordance with Section 10 below.
The Terms, and Distributor’s and User’s participation in the PAS, are terminable at any time, for any reason, or for no reason at all, upon notice to the other party. Such notice shall be by email, and if to the Company, shall be sent to “email@example.com” and, if to the User or Distributor, shall be sent to the email address provided in registration.
11. Entire Agreement
These Terms constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all previous proposals, both oral and written, negotiations, representations, writings, and all other communications between the parties. All provisions in these Terms which by their nature extend beyond the termination of the Terms remain in effect until fulfilled and apply to respective successors and assigns. However, nothing herein shall abrogate Distributor’s obligations under Distributors Wholesaler Agreement.
12. Choice of Law and Forum
These Terms shall be governed by and construed in accordance with, and all legal issues arising from or related to your use of or participation in the PAS shall be determined by, the laws of the Commonwealth of Massachusetts without regard to that state’s conflict of law provisions. The state and federal courts of Massachusetts shall be the exclusive forum and venue to resolve any and all disputes arising out of or relating to the Agreement or to your use of or participation in the PAS. You consent to personal jurisdiction and venue in the appropriate state court in Suffolk County, Commonwealth of Massachusetts or the United States District Court for the District of Massachusetts.
13. Non-Waiver and Severability
The Company’s failure to exercise or enforce any right or provision of these Terms shall not be construed as a waiver of such right or provision. If a court of competent jurisdiction holds any provision of these Terms to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties intentions as reflected in the provision, and agree that the other provisions of the Terms remain in full force and effect.
14. Relationship of the Parties
You agree that the Company and you are independent contractors under these Terms, and nothing herein shall be construed to create a partnership, joint venture or agency relationship. Neither party pursuant to these Terms has authority to enter into agreements of any kind on behalf of the other and neither party shall be construed the agent of the other.
No User or Distributor may assign any rights or obligations under these Terms without the express written consent of the Company.
16. Binding Agreement
These Terms shall be binding as a valid and enforceable agreement upon each User who fills out the appropriate registration information and upon each Distributor whose User so acts. By filling out the appropriate information, each Distributor and each User represents and warrants that the User is 18 years of age or older and authorized and capable of binding the Distributor to these terms.