Date Last Updated: July 11, 2023
The Cierto website (the “Site”) is owned and operated by Elevated Spirits LLC (“Cierto,” “we,” “us,” “our”). These Terms and Conditions (the “Terms”) are entered into by and between you (“you,” “your,” or “user”) and us. Please read these Terms carefully before ordering any distilled spirits products (“Products”) or shopping on the Site (together, the “Site Services”). By using the Site or Site Services, you agree to be bound by these Terms at the time you access and use the Site and the Site Services. We reserve the right to modify these Terms at any time. If we makes changes to these Terms, the date last updated at the top of this page will be modified. We recommend that you read these Terms carefully each time you use the Site. If you do not agree with these Terms, your sole and exclusive remedy is to terminate your use of the Site and Site Services.
PLEASE READ THIS PARAGRAPH CAREFULLY. THESE TERMS INCLUDE A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER WHICH, NOTWITHSTANDING CERTAIN LIMITED EXCEPTIONS, (I) REQUIRE ANY DISPUTES BETWEEN US TO BE RESOLVED THROUGH INDIVIDUAL AND BINDING ARBITRATION RATHER THAN BY A JUDGE OR JURY IN COURT; AND (II) LIMIT THE TIME PERIOD WITHIN WHICH YOU MAY BRING A CLAIM AGAINST US.
The Marketing and Sale of Products
Cierto and the Site are marketing agents for one or more licensed sellers of alcoholic beverages, (each a “Seller,”) through which all orders for, and purchases of alcoholic beverages are processed. We reserve the right to limit your order or the quantity of a specific Product that you order. At the time you submit an order for Products on the Site, your credit card will be charged by AccelPay and we will submit your order to a licensed Seller for acceptance. If the Seller accepts your order, AccelPay will transfer and deliver your funds to the Seller. Sellers will not accept an order from anyone who is not at least 21 years of age. Third Party Retailers are solely responsible for all activities related to the sale and provision of alcoholic beverages, including but not limited to: (a) selecting the Products to be offered for sale via the Site, (b) setting the purchase price of all Products made available for sale via the Site, (c) accepting or rejecting all customer orders, and (d) fulfilling all customer orders, including but not limited to, completing any deliveries or shipments of orders either directly or through a third party shipping company, if applicable. Cierto shall have no liability to you for lost, unprocessed, or mishandled orders. Shipping dates and/or arrival times given are only estimates. Unless otherwise indicated at the time of your purchase, shipping and handling fees are not included with your order, and such fees will be added on to the price of your purchased Products. You acknowledge and agree that any Products purchased through the Site from a Seller are intended for personal consumption and will not be used for resale.
Delivery of Products
We disclaim all responsibility and liability for the delivery of orders of Products within the United States.
Delivery for Products purchased from the Site will be fulfilled by Third Party Retailers. As a result, title and risk of loss or damage for such products will pass to you upon our delivery to the carrier. All deliveries must be signed for by an individual who can provide proof that he or she is 21 years of age or older by providing a valid form of identification at the time of delivery. If there is no individual 21 years of age or older to accept the delivery, the delivery will be refused. If an individual 21 years of age or older is not available to sign for your package, you should contact your carrier and request that the tracking number be routed to a local location that allows for package collection. After three failed delivery attempts, the package will be returned to the retailer. You will be required to pay an additional re-shipping fee of $25 in order to receive the package. Any refunds for packages, and the associated shipping costs, that are returned to the Third Party Retailers due to failed delivery attempts will be issued at the discretion of the Third Party Retailer. Please note that packages cannot be sent to PO boxes or local carrier locations. Orders that are placed and addressed to these locations will be rejected and refunded. Third Party Retailers reserve the right to refuse delivery for any reason. Packages will not be left unattended at an address for any reason. Neither we, nor AccelPay or our Third Party Retailer partners, accept responsibility for any packages that cannot be delivered because of the inaccuracy of the delivery address that you provide for your order.
Title and Ownership of Products
Title to, and ownership of, all alcoholic beverages passes from Seller to you at the Seller’s licensed premises in the State of California. By arranging for transportation of the Products, the Seller is providing a service to you, and acting on your behalf. By utilizing this service, you are representing that you are acting in compliance with applicable state and local laws regarding the purchase, transportation, and delivery of alcohol. You represent and warrant that you have obtained any required permissions, paid any required fees, and/or are working through properly licensed intermediaries where required.
The prices displayed on the Site reflect the prices determined by the licensed Third Party Retailer with whom we choose to partner. Please be advised that the Third Party Retailer may choose to accept or reject any offer to purchase the Products due to lack of availability, inability to verify your age, or for any other reason. If your offer to purchase the Products is declined in full or in part for any reason, you will receive a refund for any portions of your order that are rejected by the Third Party Retailer. Refunds are at the sole discretion of Cierto, AccelPay, Inc. or its Third Party Retailers.
Membership Fees and Special Offers
Cierto and its affiliates may from time to time offer certain benefits, rewards, loyalty programs, subscription services, membership clubs, or other special offers (“Offers”), which may include a fee payable by the users to accept such Offers. In such cases, any fees paid by you that are not applied to a purchase of alcoholic beverages will be retained by Cierto and our affiliates as marketing fees, and will not be transferred to Seller. These Terms, including but not limited to the requirement that you be 21 years of age or older, the Warranty Disclaimer, Limitations of Liability, and Indemnification provisions, as well as any additional terms and conditions related to such Offers, apply to all Offers and any transactions related to the additional terms. To access the Offers, you may be required to register and to select a user name and password during the account registration process. When you register, you agree to provide us with accurate and complete registration information. You are responsible for maintaining the security and confidentiality of your user name and password and are not authorized to share your user name, password, or other personal information with any other person. We are not responsible for any losses arising out of the unauthorized use of your account and have the right to cancel, any Offers provided to you, in our sole discretion.
Intellectual Property Rights
The Site, including, but not limited to, their features and functionality, associated software, code, source code, technology tools and content, any trademarks, logos, identifying marks, graphics, images, illustrations, designs, icons, photographs, videos, sound, recordings, text and other written and multimedia materials, the content displayed on the Site, and other materials produced by, or on behalf of, and related to us (collectively, the “Cierto Intellectual Property“) are, as between you and us, solely and exclusively owned by us. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Cierto Intellectual Property shall, as between you and us, at all times remain the sole and exclusive property of us. Except as expressly set forth herein, nothing in these Terms grants you any rights in respect of any intellectual property owned by us or our licensors, and you acknowledge that you do not acquire any ownership rights by accessing or using the Site or Site Services. All intellectual property rights in the Site, including the content, are owned by us or our licensors.
You acknowledge and agree that the Site, its content, and content contained in sponsor advertisements and information presented to you through the Site, contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Except as expressly authorized by us in writing, you agree not to copy, modify, publish, transmit, transfer, display, rent, lease, loan, sell, distribute or create derivative works based on the Site, in whole or in part. You are granted a limited, non-exclusive, non-assignable, non-transferable, non-sublicensable, revocable, and personal license only to access the Site and any software, content, or other materials owned by, controlled by, or licensed to us and that are distributed or made available to you as part of your use of the Site, and subject to the restrictions provided in this these Terms, for purposes of viewing the material contained on the Site.
All graphics, logos and service names used on the Site depicting, identifying, or relating to “Cierto” and “Cierto Tequila” are our trademarks, and may not be used except with our express written permission, or in any manner that is likely to cause confusion among the public, or in any manner that disparages or discredits us. You acknowledge and agree that the content accessible through the Site that is not expressly designated as being provided by a third party is the property of us and the party owning such property retains all right, title, and interest in the content.
In these Terms, “Your Content” shall mean any audio, video, text, images or other material you choose to display on the Site. By displaying Your Content, you grant us a non-exclusive, worldwide, irrevocable, royalty-free, sublicensable license to use, reproduce, adapt, publish, translate and distribute Your Content through any and all media. Your Content must be your own and must not infringe on any third party’s rights. We reserve the right to remove any of Your Content from the Site at any time, and for any reason, without notice.
Restrictions on Use
We restrict certain areas of the Site from access in our sole and absolute discretion. You acknowledge and agree that you are expressly restricted from performing any of the following actions on the Site:
- publishing any Site material through any media;
- selling, sublicensing, and/or otherwise commercializing any Site material;
- publicly performing and/or showing any Site material;
- using the Site in any way that is, or may be, damaging to the Site;
- uploading files or otherwise transmit any information or material to the Site that contains any unlawful, threatening, abusive, libelous, defamatory, discriminatory, obscene, vulgar, pornographic, profane, obscene, lewd, lascivious, vile or indecent information of any kind;
- using the Site in any way that impacts any user’s access to the Site;
- using the Site contrary to applicable laws and regulations, or in a way that causes, or may cause, harm to the Site, or to any person or entity;
- uploading files or otherwise transmitting any information or material that contains viruses, Trojan horses, malware, viruses, worms, time bombs, corrupted files, harmful component or any other similar software that may harm or damage the operation of another’s computer or the Site;
- engaging in any data mining, data harvesting, data extracting or any other similar activity in relation to the Site, or while using the Site; or
- using the Site to engage in any advertising or marketing;
Third Party Properties
We may refer you to physical venues, geographical sites, websites on the Internet, and/or products or services that are owned, under the control of, or maintained by a third party (together, the “Third Party Properties”). Your browsing and interaction on any Third Party Property website is subject to that website’s own terms, rules, and policies. If you decide to use Third Party Properties, you acknowledge and agree that (i) you will be responsible for reviewing and understanding the terms and conditions for those Third Party Properties; and (ii) we are not responsible or liable for the performance of any Third Party Properties. You agree to resolve any disagreement between you and a third party regarding the terms and conditions of any Third Party Properties with that third party directly. Unless expressly stated to the contrary, references to Third Party Properties do not constitute an affiliation with or endorsement by us of any such Third Party Properties. You acknowledge and agree that we are providing any references to such Third Party Properties to you solely as a convenience, and you acknowledge and agree that we are not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Properties. We do not endorse or make any representations about any Third Party Properties. If you access, visit, or use any Third Party Properties referred to through the Site, you do so at your own risk.
You may not assign or transfer these Terms or the rights hereunder, including but not limited to, the limited right for you to access and use the Site in accordance with these Terms. We may assign these Terms (and any rights and/or obligations hereunder) without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of the Cierto's equity, business, or assets; or (iii) a successor by merger. Any permitted assignment or transfer of or under these Terms shall be binding upon, and inure to the benefit of the successors, executors, heirs, representatives, administrators and permitted assigns of the parties hereto.
You acknowledge and agree that we may, in our sole discretion and without prior notice to you, terminate, restrict, or suspend your access to or use of any part of the Site or the Site Services at any time and for any reason, with or without cause. You acknowledge and agree that we have the right to change the content or technical specifications of any aspect of the Site at any time, in our sole discretion. You further agree that such changes may result in your inability to access the Site. You acknowledge and agree that we will not be liable to you or to any third party for any unavailability, modification, suspension, or termination of any of the Site, or any content or any features of the Site, or Site Services. Upon termination of access to the Site, your right to use Site Services will automatically terminate immediately.
You acknowledge and agree that a breach of these Terms may cause irreparable injury to us for which monetary damages would not be an adequate remedy. Notwithstanding anything to the contrary herein, we shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security, or proof of damages.
Operation of the Site
The Site is operated in the United States and is intended for use by users located in the United States. Unless expressly stated to the contrary, we make no representation that the Site is appropriate or will be available for use in other locations. Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the Site are solely directed to individuals, companies, or other entities located in the United States. We reserve the right to limit, in our sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area. Any offer for any feature, product, or service made on or through the Site is void where prohibited by applicable law.
You acknowledge and agree that any dispute, claim or controversy (“Claim” or “Claims”) relating in any way to these Terms will be resolved by binding arbitration as provided in this section, rather than in court.
We seek to resolve any and all disputes that may arise between us in a cost-effective and non-disruptive manner. You agree to the following dispute resolution procedure for disputes arising between you and us. If you are unable to resolve any dispute in the ordinary course of business, you shall send a written notice to us in which you outline the issues in dispute, enclose any relevant documents, and state the requested relief. We shall respond as quickly as we are reasonably able, and will attempt to resolve the matter.
If, within sixty (60) days of the first communication, the parties fail to resolve the matter, the dispute will be resolved exclusively by binding arbitration. The party seeking arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with the American Arbitration Association (“AAA”) and the written Demand for Arbitration (available at www.adr.org) must be provided to the other party, as specified in the Commercial Arbitration Rules (the “AAA Rules”). You acknowledge and agree that the arbitration will be administered by the Judicial Arbitration and Mediation Services (“JAMS”) or the AAA before a single arbitrator in Los Angeles, California, in accordance with the then-current Commercial Rules of the AAA Rules. You acknowledge and agree that any Claims arising under these Terms include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events arising out of or relating to: these Terms and prior versions (including the breach, termination, enforcement, interpretation or validity thereof); the Site; the Site Services; breach of any express or implied contract or breach of any express or implied covenant; or claims arising under federal or state consumer protection law.
This agreement to binding arbitration is intended to require arbitration of every claims or dispute that can be lawfully arbitrated, except those claims and disputes that are expressly excluded. The arbitration will be final and binding, and the judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Please be advised that all arbitration proceedings are confidential unless the parties agree otherwise. Arbitration orders are required to be filed with applicable courts of competent jurisdiction and are not confidential and may be disclosed by the parties to such courts. Any Claim you may have arising out of or relating to these Terms must be commenced within one year after the cause of action accrues, otherwise, such Claim is permanently barred.
We retain the right to petition any court of competent jurisdiction for the entry of injunctive relief and orders for specific performance relating to any alleged violation of our intellectual property rights.
Class Action Waiver
You agree to pursue your Claims in your individual capacity and not as a plaintiff or class member in any purported class, collective action, or representative proceeding. Any arbitrator may not consolidate more than one person’s Claims or engage in any class arbitration. You acknowledge and agree that, by agreeing to these Terms, you and Cierto are each waiving the following: the right to sue in court, have a trial by jury, and the right to participate in a class action.
Warranty Disclaimer; Limitation of Liability; Indemnification
In processing any alcoholic beverage order(s), you agree that we, (including any officers, directors, employees, members, shareholders, affiliates, representatives, successors and assigns, service providers, licensors, or agents of ours (collectively, the “Cierto Parties”)) shall not be liable to you or any third-party for any claims relating to the use of the Site or Site Services, the purchase, sale, delivery and/or consumption of alcoholic beverages, or any consequences which may result thereof. You shall indemnify and hold harmless the Cierto Parties from and against any and all claims, demands, losses, costs and expenses (including the cost of any investigation and reasonable attorneys’ fees), damages, obligations, and liabilities, which arise or result from or are related to your use of the Site, or your improper or illegal: (a) placing of an alcoholic beverage order; (b) purchase of alcoholic beverage(s); (c) receipt of delivery of alcoholic beverage(s); or (d) consumption of alcoholic beverage(s), and/or any consequences which result therefrom. You hereby further indemnify the Cierto Parties from and against any and all liabilities, costs, demands, causes of action, damages and expenses (including reasonable attorney’s’ fees) arising out of or in any way related to your breach of any of the provisions of these Terms.
THE SITE, SITE SERVICES, AND ITS CONTENTS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. WE DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO THE SITE OR ITS CONTENTS, OR WITH RESPECT TO ANY INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SITE SERVICES OR THE SITE. THE CIERTO PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF ANY INFORMATION, SERVICES, OR PRODUCTS OBTAINED THROUGH THE SITE. WE DO NOT WARRANT THAT THE FUNCTIONALITY WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE SITE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS.
THE CIERTO PARTIES SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS, OR DAMAGES RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE SITE, THE SITE SERVICES, OR THE CONTENT, EVEN IF THE CIERTO PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE WARRANTY DISCLAIMER, LIMITATION OF LIABILITY, AND THE INDEMNIFICATION PROVISIONS SET FORTH ABOVE IN THIS SECTION ARE MATERIAL AND FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE CIERTO PARTIES AND YOU WITH REGARD TO THESE TERMS.
To contact us with any questions or concerns or to provide any notice in connection with these Terms, please contact us at: