Terms of Use

These Terms of Use govern your use of the POEMA website (the “Site”), which is owned and operated by Kobrand Corporation (“Kobrand”).  All references to Poema shall also be deemed a reference to Kobrand. Please read these Terms of Use carefully before using the Site.

PLEASE NOTE THAT SECTION 10 OF THESE TERMS CONTAINS AN ARBITRATION CLAUSE AND A CLASS ACTION WAIVER PROVISION. IT AFFECTS HOW DISPUTES BETWEEN YOU AND POEMA MAY BE RESOLVED.

1.    AGREEMENT TO TERMS

Poema maintains the Site for the personal use of individuals who are of the legal age to consume alcoholic beverages under the laws of their jurisdiction of residence. Please exit the Site immediately if you are not of the legal age to consume alcoholic beverages under the laws of your jurisdiction of residence.
By using the Site, you agree to these Terms of Use and the Privacy Policy, which is incorporated herein by reference. Each time you use the Site, you reaffirm your acceptance of the then-current Terms of Use. If you do not wish to be bound by these Terms of Use, your only remedy is to discontinue using the Site.
Poema may change these Terms of Use at any time and in its sole discretion. The modified Terms of Use will be effective immediately upon posting and you agree to the new posted Terms of Use by continuing your use of the Site. You are responsible for staying informed of any changes. If you do not agree with the modified Terms of Use, your only remedy is to discontinue using the Site.

2.    ACCOUNTS

You may be required to create an account and specify a password to use certain features on the Site. You agree to provide, maintain and update true, accurate, current, and complete information about yourself as prompted by the registration processes. You may not impersonate any person or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password, or other account information.
You are entirely responsible for maintaining the confidentiality of your password and your account. And you are entirely responsible for all activity made by you or anyone that uses your account. You agree to safeguard your password from access by others. If you believe that your account has been compromised, you must immediately contact us via [Poema@kobrand.com]. You agree to indemnify and hold harmless Poema for losses incurred by Poema or another party due to someone else using your account as a result of your failure to use reasonable care to safeguard your password.

3.    SITE INTEGRITY

You may not use any computer program tools including, but not limited to, web spiders, bots, indexers, robots, crawlers, harvesters, or any other automatic device, program, algorithm or methodology, or any similar or equivalent manual process (“Tools”) to access, acquire, copy, mirror or monitor any portion of the Site or any content, or in any way reproduce or circumvent the navigational structure or presentation of the Site or any content, to obtain or attempt to obtain materials, documents or information through any means not purposely made available through the Site. Tools that use the Site shall be considered agents of the individual(s) who control or author them. Your use of this Site is restricted. The transmission of any material or data to this Site which is harmful, contains corrupt computer code, contains a virus, could damage, disable, overburden or impair the Site, interferes with another party’s use and enjoyment of the Site, or is otherwise malicious or harmful to Poema, or attempts to corrupt the material, images or files of this Site is strictly prohibited.

4.    USER SUBMISSIONS

This Site may contain interactive services, including, but not limited to, discussion groups, news groups, bulletin boards, chat rooms blogs, or other similar mechanisms (collectively, “Public Forums”), which may allow you to post, transmit or submit information, including, but not limited to, writings, photographs, images, illustrations, audio recordings, video recordings, essays and/or other communications submitted by you and other users (“User Submissions”) and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Poema does not guarantee any confidentiality with respect to any submissions. You shall be solely responsible for your own User Submissions and the consequences of posting or publishing them. In connection with User Submissions, you affirm, represent, and/or warrant that: (i) you own or have the necessary licenses, rights, consents, and permissions to use and authorize Poema to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User submissions in the manner contemplated by the Site and these Terms of Use; and (ii) you have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Site and these Terms of Use. For clarity, you retain all of your ownership rights in your User Submissions. However, by submitting the User Submissions to Poema, you hereby grant Poema a perpetual, worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Site and Poema’s (and its successor’s) business, including without limitation for promoting and redistributing part or all of the Site (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Site a non-exclusive license to access your User Submissions through the Site and to display and perform such User Submissions as permitted through the functionality of the Site and under these Terms of Use. The foregoing license granted by you terminates once your User Submission is permanently removed or deleted from the Site by Poema. In connection with User Submissions, you further agree that you will not: (i) submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant Poema all of the license rights granted herein; (ii) publish falsehoods, misrepresentations, or derogatory messages that could damage the reputation of Poema or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, is excessive in length, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person. Poema does not endorse any User Submission or any opinion, recommendation, or advice expressed therein, and Poema expressly disclaims any and all liability in connection with User Submissions. Poema reserves the right to deny the publishing of User Submissions, to remove User Submissions, and/or to terminate your access for uploading User Submissions in its sole discretion at any time, without prior notice and at its sole discretion. You understand that when using the Site, you will be exposed to User Submissions from a variety of sources, and that Poema is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Submissions. You further understand and acknowledge that you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Poema with respect thereto, and agree to indemnify and hold Poema, its affiliates and subsidiaries harmless to the fullest extent allowed by law regarding all matters related to your use of the Site.

Poema does not solicit nor does it wish to receive any confidential, secret or proprietary information or other material from you through the Site, any of its services, by email, or in any other way. Any information or material submitted by you, including User Submissions, will be deemed not to be confidential, secret or proprietary. Further, you agree that User Submissions and any information or materials submitted by you to the Site, whether ideas, creative concepts or other materials, in any format, including, but not limited to, writings, images, illustrations, audio recordings, and video recordings, may be used, reproduced and disclosed by us without restriction for whatever purpose we deem fit and without payment of any sum or acknowledgement of you as their source. You also warrant that any “moral rights” in User Submissions have been irrevocably waived by the appropriate authors. WE SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY YOU AS A RESULT OF USE OR DISCLOSURE OF SUCH MATERIALS BY US TO THE EXTENT PERMITTED BY LAW. This paragraph does not affect any rights you may have under data privacy laws that protect your personal information or similar privacy laws, to the extent that such rights cannot be excluded.

5.       ACCEPTABLE USAGE POLICY

We may or may not actively monitor use of User Submissions posted on our Public Forums or otherwise submitted to Poema. Similarly, we may or may not exercise editorial control over the content of any Public Forum. As a result, you may be exposed to content on our Public Forums that is inaccurate, fraudulent or deceptive or that you find offensive or objectionable. Your use of Public Forums is at your own risk. However, we reserve the right, but are not obliged, to monitor our Public Forums and to remove or alter any content, which we consider, in our sole discretion, constitutes a misuse of these rules. We may restrict, suspend or terminate your use of the Site where we believe that there has been such a misuse. The following examples constitute a misuse of our Public Forums:

  1. using the Site for any improper, unlawful or immoral purpose, causing any nuisance by your use of the Site or causing the operation of the Site to be jeopardized or impaired;

  2. using the Site to create, host or transmit (whether in a Public Forum or otherwise) any defamatory, offensive, or obscene material or engaging in activities which would cause offence to others on grounds of race, religion, creed or sex;

  3. using the Site to harm, or attempt to harm, minors in any way;

  4. using the Site to create, host or transmit any material that threatens or encourages bodily harm or the destruction of property or would constitute a criminal offence or give rise to civil liability;

  5. using the Site to create, host or transmit material which infringes the copyright, trademark, patent, trade secret, privacy, publicity or other intellectual property or proprietary rights of any other party;

  6. using the Site to create, host or transmit unsolicited advertising material to other users;

  7. using the Site to create, host or transmit any material that harasses another;

  8. using the Site to make false, misleading, deceptive or fraudulent offers to sell or buy products, items or services or to send chain letters or pyramid schemes and the like;

  9. adding, removing or modifying identifying network header information or copyright management information including author names, publication dates or clearance agency names in an effort to deceive or mislead;

  10. using the Site to access, or to attempt to access, the accounts of others or to penetrate, or attempt to penetrate, our or a third party’s security measures, computer software, hardware, electronic communication system, or telecommunications systems;

  11. using the Site to collect, or attempt to collect, personal information about third parties without their knowledge or consent or to engage in screen scraping, database scraping or any other activity with the purpose of obtaining lists of users or other data;

  12. using the Site for any activity which adversely affects the ability of other people or systems to use the services or the internet generally, including, without limitation, flooding and hacking;

  13. reselling, repurposing or redistributing any services provided by us our contractors or our licensees without our prior written consent; or impersonating any person or entity or using a false name that you are not authorized to use;

  14. encouraging, condoning or glamorizing under-age drinking, drunk-driving or excessive consumption of alcoholic beverages; or

  15. disclosing any personally identifiable information about yourself or any other party (e.g. telephone number, geographic address or any other information from which an individual’s identity or contact information can be derived).

This list only serves to provide examples and is not meant to be an exhaustive list of the type of unacceptable uses of the Public Forums that may result in the restriction, suspension or termination of your use of the Public Forums or of our Site. Due to the global nature of the Internet, users hereby agree to comply with all local rules regarding on-line conduct and acceptable content. Users also agree to comply with any applicable rules regarding the export of any data from any country.

You understand that personal and other information (e.g., username, email address, phone number) that you post on or through Public Forums is generally accessible to, and may be collected and used by, others and may result in unsolicited messages or other contact from others. You should not include any personally identifiable information about yourself or any other person in any User Submissions. We reserve the right, but not the obligation, to remove any User Submissions that contain personally identifiable information. We shall not be liable for the use or misuse of any information or data, including personal information, that you post on our Public Forums.

6.       COPYRIGHT PROTECTION

If you believe that any User Submission infringes your copyrights, you may request that Poema remove the User Submission from the Site (or disable access to that User Submission) by contacting our Designated Agent (identified below) and providing the following information pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”):

  • Identification of the copyrighted work that you believe to be infringed. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of the work.

  • Identification of the material that you believe to be infringing and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.

  • Your name, address, telephone number, and e-mail address.

  • A statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law.

  • A statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf.

  • A signature or the electronic equivalent from the copyright holder or authorized representative.

Send this information to us by mail or e-mail to our Designated Agent: J. Katz, 3 World Trade Center, 175 Greenwich Street, 68th Floor, New York, NY  10007 (jkatz@kelleydrye.com). 

Once the Designated Agent receives a notification that meets the requirements set forth above, it is our policy to: (a) review the request; (b) remove or disable access to the infringing User Submission; and (c) notify the provider of the User Submission that we have removed or disabled access to such User Submission.

If you receive a notification of alleged copyright infringement, and believe that the claim is erroneous, you may submit a counter-notification to Poema’s Designated Agent within thirty (30) days of the date the User Submission was removed from the website. A counter-notification must be a written communication that includes substantially the following:

  • Identification of the material that has been removed or disabled and its location. Please describe the material, and provide us with its URL or any other pertinent information that will allow us to locate the material.

  • Your name, address, telephone number, and e-mail address.

  • A statement “under penalty of perjury” that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material.

  • A signature or the electronic equivalent of the person submitting the counter-notification.

Upon receipt of a counter-notification in accordance with the above, Poema shall promptly provide the complaining party with a copy. The complaining party shall have within ten (10) business days to inform Poema that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity on the website. If Poema receives such notification within ten (10) business days, Poema shall not replace the removed User Submission or cease disabling access to it. If Poema does not receive such notification from the complaining party that an action has been filed seeking a court order to restrain the alleged infringer from engaging in infringing activity on the website, then Poema shall replace the removed User Submission or cease disabling access to it within four (4) business days following the expiration of the ten (10) business day deadline.

In accordance with the DMCA and other applicable law, Poema may, in its sole discretion, terminate access to the Site of any user that Poema finds to be a repeat infringer. Poema reserves the right to define the criteria by which Poema will determine that a user is a “repeat infringer.”

If you believe that a user is a repeat infringer, please follow the instructions above to contact Poema Designated Agent and provide information sufficient for us to verify that the user has been determined to be in violation of the DMCA repeatedly.

 7.       POEMA TRADEMARKS AND COPYRIGHTS

All trademarks, logos, and service marks displayed on the Site are registered and unregistered trademarks of Poema and/or third parties who have authorized their use (collectively the “Trademarks”). You may not use, copy, reproduce, republish, upload, post, transmit, distribute, or modify these Trademarks in any way. The use of Poema’s Trademarks on any other website is strictly prohibited. All of the materials contained on the Site, such as text, graphics, images, photographs, illustrations, and other materials, are protected by copyright under both United States and foreign laws, except where explicitly noted otherwise. Title to such materials retains with Poema. Poema will aggressively enforce its intellectual property rights to the fullest extent of the law. Any use of the materials no expressly permitted by these Terms of Use is a breach of these Terms of Use and may violate copyright, trademark, and other laws. Poema authorizes you to view and download a single copy of the materials solely for your own lawful, persona, non-commercial use if you include the following copyright notice: “Please enjoy responsibly. Kobrand Corporation, Purchase, NY. Copyright © 2022,  All rights reserved” and retain other Trademark, copyright and other proprietary rights notices which were contained in the materials. Poema neither warrants nor represents that your use of materials displayed on the Site will not infringe rights of third parties not owned by or affiliated with Poema. Use of any materials on the Site is at your own risk.

8.       HYPERLINKS

This Site may contain hyperlinks to third-party websites. Poema does not control or endorse these third-party websites or any goods or services sold on those websites. Some of these websites may contain materials that are objectionable, unlawful, or inaccurate. You acknowledge and agree that Poema is not responsible or liable for any content or other materials on these third party websites.

9.       LINKING THIS SITE

If you would like to link to this Site you may only do so on the basis that you link to, but do not replicate, the home page of this Site, and subject to the following conditions: (1) you do not remove, distort or otherwise alter the size or appearance of the Poema Trademarks or the logos of its imported / distributed products; (2) you do not create a frame, table or any other browser or border environment around this Site; (3) you do not in any way imply that Poema is endorsing any products or services other than its own and those of its portfolio; (4) you do not misrepresent your relationship with Poema nor present any other false information about Poema or the contents of its portfolio; (5) you do not otherwise use any Poema Trademarks without written permission from Poema; (6) you do not link from a website that is not owned by you; and (7) your website does not contain content that is distasteful, offensive or controversial, infringes any intellectual property rights or other rights of any other person or otherwise does not comply with all applicable laws and regulations.

10.     DISPUTES

You agree that agree that any dispute or claim arising out of your use of the Site, including any dispute or claim as to the application, enforceability, scope, or interpretation of this agreement to arbitrate, shall be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief, or statutory damages), and must follow these Terms of Use.

Arbitration shall be administered by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”), pursuant to the most-current JAMS Streamlined Arbitration Rules & Procedures, and conducted by a single, neutral arbitrator. Arbitration shall take place by phone, unless an in-person hearing is requested by either party. In that case, the hearing shall take place in the county where you reside. To the extent this agreement to arbitrate conflicts with the JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness (the “Minimum Standards”), the Minimum Standards in that regard will apply.

Disputes may also be referred to another arbitration organization if you and the Company agree in writing, or to an arbitrator appointed pursuant to Section 5 of the Federal Arbitration Act.

You and Poema each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.

11.     GOVERNING LAW AND SEVERABILITY

These Terms of Use shall be governed by and construed in accordance with the laws of New York, without regard to its conflict of laws rules. Except as provided for above, you expressly agree that the exclusive jurisdiction for any claim or dispute under the Terms of Use and or your use of the Site resides in the courts located in New York, New York, and you further expressly agree to submit to the personal jurisdiction of such courts for the purpose of litigating any such claim or action.  If any provision of these Terms of Use is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect. No waiver of any provision in these Terms of Use shall be deemed a further or continuing waiver of such provision or any other provision.

12.     WARRANTIES

The Site and the products offered on the Site (“the Products”) are provided on an “as is” basis. YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SITE AND PRODUCTS IS AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, KOBRAND, ITS SHAREHOLDERS, SUBSIDIARIES, AND AFFILIATES (THE “POEMA ENTITIES”), AND EACH OF THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS, DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. The Poema Entities, their agents, representatives and service providers cannot and do not guarantee or warrant that: (a) the Site will be reliable, accurate, complete, or updated on a timely basis; (b) the Site will be free of human and machine errors, omissions, delays, interruptions or losses, including loss of data; (c) any files available for downloading from the Site will be free of infection by viruses, worms, Trojan horses, or other codes that manifest contaminating or destructive properties; or (d) the functions or services performed on the Site will be uninterrupted or error-free or that defects in the Site will be corrected.

13.     LIMITATION OF LIABILITY

THE POEMA ENTITIES’, THEIR AGENTS’, REPRESENTATIVES’ AND SERVICE PROVIDERS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY DISPUTE WITH RESPECT TO YOUR USE OF THE SITE IS TO DISCONTINUE YOUR USE OF THE SITE. THE POEMA ENTITIES, THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING FROM YOUR USE OF THE SITE OR THE PRODUCTS OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE SITE OR THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, LOST OR STOLEN PRODUCTS. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, AND EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF THE POEMA ENTITIES, THEIR AGENTS, REPRESENTATIVES AND SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE POEMA ENTITIES’, THEIR AGENTS’, REPRESENTATIVES’ AND SERVICE PROVIDER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.

14.     INDEMNIFICATION

You agree to indemnify, defend, and hold the Poema Entities, and each of their agents, representatives, and service providers harmless from and against any and all claims, including but not limited to third party claims, damages, costs, and liabilities, including reasonable attorneys’ fees arising out of, or in connection with, your violation of these Terms of Use.

15.     TERMINATION

Poema has the right to terminate your account and access to the Site for any reason, including, without limitation, if Poema, in its sole discretion, considers your use to be unacceptable, or in the event of any breach by you of the Terms of Use. Poema may, but shall be under no obligation to, provide you a warning prior to termination of your use of the Site.

16.     GENERAL

Poema makes no claim that the Site or any material on the Site is appropriate or may be downloaded outside of the United States. If you access the Site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction.