WEBSITE TERMS OF USE

Welcome to the Agave Undergound Website located at www.agaveunderground.com (the “Website”) that is owned and operated by Agave Underground, Inc. (collectively “Agave,” “we,” “our,” or “us”). The terms “you,” “your,” and “yours” refer to anyone accessing, viewing, browsing, visiting or using the Website.

IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS OF USE (THE “TERMS”) IS A LEGALLY BINDING AGREEMENT WHICH GOVERN YOUR USE OF THIS WEBSITE. BY ACCESSING, VIEWING, BROWSING, VISITING OR USING THIS WEBSITE OR ANY CONTENT OFFERED THROUGH THE WEBSITE YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THE TERMS. IF YOU DO NOT ACCEPT ANY OF THE TERMS STATED HERE, PLEASE DO NOT USE THIS WEBSITE. FURTHER, IN ORDER TO USE THE WEBSITE, YOU MUST BE AT LEAST 21 YEARS OF AGE.

Authorized Use

Subject to your acceptance and compliance with these Terms, Agave grants you a non-exclusive, non-transferable, limited right to access, use and display the Website and the materials thereon for your personal use only, provided that you fully comply with these Terms. You shall not interfere or attempt to interfere with the operation of the Website in any way through any means or device including, but not limited to, spamming, hacking, uploading computer viruses or time bombs, or the means expressly prohibited by these Terms. Except as expressly provided herein or otherwise allowed by Agave, you may not use the Website for any commercial purpose.

Additional terms and conditions may apply to your use of any products and services offered through this Website. Please review all such terms and conditions before you use any of our products and services.

Registration

You are not required to register in order to access the Website. However, in order to use certain features of the Website or products and services offered through the Website, you will have to register and create a unique, password-protected account (“Account”). You agree to: (a) provide true, accurate, current, and complete information as prompted by the registration form; and (b) maintain and update such information to keep it true, accurate, current, and complete at all times. We reserve the right to delete your Account without warning if you are found to have misrepresented your age or any of the registration information submitted. You are responsible for maintaining the confidentiality of your password and email address. You agree to (a) immediately notify us of any unauthorized use of your password or account, or any other breach of security, and (b) ensure that you exit from your account at the end of each session. You will be solely responsible for safeguarding your password and also for any actions under your password and Account, whether authorized by you or not.

Ownership

You acknowledge and agree that the Website uses and contains proprietary and confidential technology and information owned by or licensed to Agave, and protected by applicable intellectual property and other laws and international treaties. Except for Your Submissions (as defined below), the content displayed on or through the Website, including without limitation all information, data, text, software, music, sound, photographs, graphics, video, messages, tags, or other materials (collectively, the “Website Content”) is copyrighted by Agave and its licensors under United States and international copyright laws. The Website Content may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without the prior written permission of Agave. You must abide by all copyright notices, information, or restrictions contained in or attached to any Website Content. Agave Underground, the Agave Underground logo, as well as certain other of the words and logos displayed on the Website, constitute trademarks, trade names, or service marks (“Marks”) of Agave or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with Agave or those other entities.

Changes

The Website Content, including these Terms, may be changed at the sole discretion of Agave and without notice. You shall be bound by any such updates or changes, so you should periodically review these Terms. If any modification is not acceptable to you, your sole remedy and recourse is to discontinue use of the Website.

Acceptable Use Policy

As a condition of your use of the Website, you warrant to Agave that you: (i) will only use the Website for lawful purposes in accordance with these Terms; (ii) agree and consent to our Privacy Policy; (iii) will not modify, adapt, translate, or reverse engineer any portion of the Website; (ii) will not remove any copyright, trademark or other proprietary rights notices contained in or on the Website or in or on any Website Content or other material obtained via the Website; (iv) agree not to infringe the proprietary rights, intellectual property rights, rights of publicity or privacy rights of Agave or third parties in connection with your use of the Website and will not upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Website any content that infringes the intellectual property rights of any third party; (v) will not intentionally or unintentionally violate any applicable local, state, national or international law, including but not limited to any regulations having the force of law, while using or accessing the Website; (vi) will not harvest, gather or otherwise collect contact information of other users of the Website, for any purpose including, without limitation, transmitting any unsolicited advertising, junk mail, spam, or chain letters; (vii) will refrain from using unlawful, tortuous, profane, vulgar, harassing, abusive, threatening, inflammatory, libelous, defamatory, fraudulent or similarly harmful or discourteous language in any e-mail or form entry created through the Website; (viii) will not interfere with others’ right of enjoyment of the Website; (ix) will not access or attempt to access unauthorized areas of the Website, tamper with other users’ postings, or unreasonably load or burden the Website servers; (x) will not use the Website to display, distribute or make available any material that is sexual, pornographic, erotic, obscene, indecent or profane in its use of sexual language or description or depictions of sexual acts (hereinafter, “Pornographic Content”) nor upload, email, post, publish, distribute, transmit, submit or otherwise make available through the Website any Pornographic Content. Members who violate these Terms, at Agave’s sole discretion, may have their Account suspended or terminated, and may be prohibited from receiving any services thereafter.

Your Submissions, License and Warranties

The Website may allow you to upload, post, publish, display or make available any information, data, text, software, music, sound, photographs, graphics, video, messages, tags or other materials, whether created by or for you, (“Your Submission(s)”). Subject to the licenses you are granting hereunder, you retain all right, title and interest, including without limitation all worldwide intellectual property rights, in and to Your Submissions. We shall not acquire any right, title or interest in or to Your Submissions, except as provided herein.

You hereby grant Agave a worldwide, perpetual, royalty-free, irrevocable, non-exclusive, sub-licensable and transferable right and license to use, reproduce, store, host, index, cache, distribute (through multiple tiers), publicly perform, publicly display, (each of the foregoing in any form, medium or technology now known or later developed), modify and adapt including without limitation the right to adapt for streaming, downloading, broadcasting, distribution, publicly displaying, publicly performing (each of the foregoing in any form, medium or technology now known or later developed), create derivative works from, and exercise all aforesaid rights with respect to such derivative works, and otherwise exploit in any manner, Your Submissions or any part thereof. You hereby expressly waive any and all so-called moral rights you may have in Your Submissions.

We may provide bulletin boards, blogs, instant messaging, wikis and the like for posting user feedback, comments or other input, including but not limited to, on the Website. You understand and acknowledge that, subject and pursuant to the licenses set forth hereunder, we may display your feedback, comments or other input on the Website and use it for other marketing and business activities. In addition, we may in our sole discretion decide not to use your feedback, comments or other input, delete it from the Website, and even edit your feedback, comments or other input for both content and format. You hereby expressly waive any and all so-called moral rights you may have in your feedback, comments or other input.

You hereby represent and warrant to Agave that: (i) you have all the requisite power and authority, corporate or otherwise, to agree to these Terms, conduct yourself and your business and to execute, deliver, and perform all of your obligations under these Terms; (ii) you are the owner – or the authorized agent of the owner – of Your Submissions; (iii) you have the right to grant the licenses granted under these Terms; (iv) your performance under these Terms and/or the rights granted herein do not and will not conflict with or result in a breach or violation of any of the terms or provisions, or constitute a default under any contract or agreement, to which You are currently bound or will become bound in the future; (v) your performance under these Terms will comply with all applicable laws, rules and regulations (including, without limitation, export control, privacy and obscenity laws), domestic or foreign.

Copyright Policy

It is Agave’s policy to comply with the Digital Millennium Copyright Act (“DMCA”). In accordance with the DMCA, Agave shall: (i) block access to, or remove material that it believes in good faith infringes copyright of a third party; and (ii) remove and discontinue service to repeat infringers.

If you believe that any Website Content infringes one or more of your copyrights, please immediately notify Agave’s Copyright Agent by means of a mailed or faxed notice (“Infringement Notice”) providing the information described below to the address or fax number listed below. If Agave takes action in response to an Infringement Notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by such party to Agave. Please be advised that you may be held liable for damages based on certain material misrepresentations contained in an Infringement Notice. Thus, if you are not sure that any Website Content infringes your copyright, you should consider first contacting an attorney.

All Infringement Notices should include the following (see 17 U.S.C 512(c)(3) for further detail):
(i) A signature, electronic or physical, of the copyright owner or a person authorized to act on their behalf;
(ii) An identification of the copyright claimed to have been infringed;
(iii) A description of the nature and location of the content that you claim to infringe your copyright, in sufficient detail to permit Agave to find and positively identify that content;
(iv) Your name, address, telephone number and email address; and
(v) A statement by you: (i) that you believe in good faith that the use of the content that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; and, (ii) under penalty of perjury, that all of the information contained in your Infringement Notice is accurate, and that you are either the copyright owner or a person authorized to act on their behalf.

Infringement Notices should be sent to the following:

By mail:

Agave Underground, Inc. 16171 Scientific Way Irvine, California 92618 Attn: Website Content Manager

By fax:

(949)679-9606 Attn: Website Content Manager

If you receive a notice from us advising that we have received an Infringement Notice with respect to any of Your Submissions, you may send us a counter notice to challenge the Infringement Notice. To be effective, the counter notice must be a written communication provided to our designated agent that includes substantially the following (please consult your legal counsel or see 17 U.S.C. Section 512(g)(3) to confirm these requirements):
i. A physical or electronic signature of the subscriber.
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed
or access to it was disabled.
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Indemnification

You agree to defend, indemnify and hold harmless Agave, its contractors and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Website, including but not limited to out of your violation of any representation or warranty contained in these Terms.

Warranty Disclaimer

YOUR USE OF THE WEBSITE IS AT YOUR SOLE DISCRETION AND RISK. THE WEBSITE AND THE WEBSITE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. AGAVE AND ITS LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE WEBSITE AND WEBSITE CONTENT, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COURSE OF DEALING OR COURSE OF PERFORMANCE. AGAVE AND ITS LICENSORS EXPRESSLY DISCLAIM ANY WARRANTIES: (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY, TIMELINESS AND PERFORMANCE OF THE WEBSITE AND THE WEBSITE CONTENT; (II) REGARDING THE GOODS, SERVICES, ADVICE, INFORMATION OR LINKS PROVIDED BY ANY THIRD PARTY; (III) THAT THE WEBSITE WILL MEET YOUR REQUIREMENTS; OR (IV) THAT THE WEBSITE WILL BE ERROR-FREE OR UNINTERRUPTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM AGAVE OR FROM YOUR USE OF THE WEBSITE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Limitation of Liability

EXCEPT AS OTHERWISE EXPRESSLY STATED, INCLUDING BUT NOT LIMITED TO IN A LICENSE OR OTHER AGREEMENT GOVERNING THE USE OF SPECIFIC CONTENT, IN NO EVENT WILL AGAVE, ITS CONTRACTORS OR ITS LICENSORS BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, REGARDLESS OF THE BASIS OR NATURE OF THE CLAIM, RESULTING FROM ANY USE OF THE WEBSITE, OR THE WEBSITE CONTENT THEREOF OR OF ANY HYPERLINKED WEB SITE, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHERWISE, EVEN IF AGAVE, ITS CONTRACTORS OR ITS LICENSORS WERE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH ABOVE ARE AN ESSENTIAL BASIS OF THE BARGAIN AND OF THE ALLOCATION OF RISKS BETWEEN THE PARTIES. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Third Party Websites

Agave has not reviewed, and cannot review, any of the material, including computer software, made available through the websites to which the Website links, and that link to the Website. Agave does not have any control over those non-Agave websites, and is not responsible for their contents or their use. By linking to a non-Agave website, Agave does not represent or imply that it endorses such website. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses and other harmful or destructive content. Agave disclaims any responsibility for any harm resulting from your use of non-Agave websites.

Miscellaneous

These Terms shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of laws principles. The United Nations Convention on Contracts for the International Sale of Products is excluded and does not apply to these Terms. If any dispute relating in any way to these Terms or the policies or your use of the Website shall be submitted to confidential arbitration in Orange County, California, USA, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of California, USA and you consent to exclusive jurisdiction and venue in such courts. Arbitration under these Terms shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. To the fullest extent permitted by applicable law, no arbitration under these Terms shall be joined to an arbitration involving any other party subject to these Terms, whether through class arbitration proceedings or otherwise. The failure to require performance of any provision shall not affect our right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any portion of these Terms is found to be unenforceable, such portion will be modified to reflect the parties’ intention and only to the extent necessary to make it enforceable, and the remaining provisions of these Terms will remain in full force and effect. These Terms constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and supersedes any and all prior or contemporaneous agreements or understandings, written and oral.