Last Updated: October 11, 2018
1. DrinkTV Accounts and Internet Connection.
In order to access some features of the Sites, you will have to create a DrinkTV account. You may never use another's DrinkTV account without permission. When creating your account you must provide accurate and complete information. You must keep your account password confidential and secure because you are solely responsible for the activity that occurs on your DrinkTV account. You must notify DrinkTV immediately if you become aware of any breach of security or unauthorized use of your account.
You are solely responsible for any Internet connection and telecommunication fees or charges that you may incur when accessing the Service.
2. TOU Updates.
DrinkTV will revise this TOU as the Sites and/or Service evolves. You must agree to all revisions if you choose to continue using the Sites and/or Service. By using the Sites and/or Service, you agree to the then-current version of this TOU as posted on the Sites. If at any point you do not agree to any portion of the then-current version of this TOU, you must immediately stop using the Sites and/or Service.
3. Termination of Service.
You represent that you are 18 years old or older and have the legal capacity to enter a contract in the jurisdiction where you reside, or that you have the permission, consent and agreement of your parent or authorized legal guardian where applicable.
Unsolicited Idea Submissions.
5. Unsolicited Ideas.
DrinkTV values your feedback on its Services, Sites and products, but please do NOT submit any creative ideas, suggestions or materials to us. Neither DrinkTV nor any of its employees and/or subcontractors accept or consider unsolicited ideas, original creative artwork or other works, including, without limitation, ideas or suggestions for new or improved business concepts or technologies, product enhancements, improvements to existing programs, marketing plans or names for new content (collectively "Unsolicited Ideas"). Please do not send your Unsolicited Ideas to DrinkTV or its employees and/or subcontractors. This policy is aimed at avoiding potential misunderstandings or disputes when DrinkTV products, Sites or Services might seem the same or similar to Unsolicited Ideas that were submitted.
6. Rights to Unsolicited Ideas.
If you do submit your Unsolicited Ideas to DrinkTV, or to any of its employees and/or subcontractors, then you hereby acknowledge and agree that, from the time of uploading, transmission or dispatch, you grant DrinkTV and its designees a worldwide, perpetual, irrevocable, sublicensable, transferable, assignable, and royalty-free right to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, digitally perform, make, have made, sell, offer for sale and import your Unsolicited Ideas, including, without limitation, all copyrights, trademarks, trade secrets, patents, industrial rights, so-called "moral rights" and all other intellectual and proprietary rights related thereto, in any media now known or hereafter created, devised or developed, for any purpose whatsoever, commercial or otherwise, including, without limitation, giving the Unsolicited Ideas to others, without any compensation or attribution to you. You also waive any claim that any use by DrinkTV and/or its licensees of your Unsolicited Ideas violates any of your rights, including but not limited to moral rights, privacy rights, rights to publicity, proprietary or any other rights, and/or rights to credit for the material or ideas set for therein.
Restrictions and Conditions of Use.
8. Use of Sites and Service.
DrinkTV authorizes you to view and use the Sites solely for your personal, non-commercial use. This authorization is not a transfer of title in the Sites, any information or any copies of any information, or to any text, graphics, logos, images (including without limitation, audio-video content), data compilations, software or other materials on or related to the Sites ("Materials"), and is subject to the following restrictions: (a) you may not remove or modify any copyright, trademark, logo or any other proprietary notices affixed to any information and/or Materials; (b) you may not modify any information and/or Material in any way, or reproduce or publicly display, distribute or otherwise use the information and/or Material for any public or commercial purpose. You agree not to license, create derivative works from, transfer, sell or re-sell any information, Material or Services obtained from the Sites. You agree to abide by all additional restrictions displayed on the Sites, as updated from time to time.
9. No Violation of Laws.
You agree that you will not, in connection with your use of the Sites or the Service, violate any applicable law or regulation. Without limiting the foregoing, you agree that you will not make available through the Sites and/or Service any material or information that infringes any copyright, trademark, patent, trade secret, or any other right of any party (including rights of privacy or publicity).
10. Misuse of Sites and/or Service.
You may not connect to or use the Sites and/or Service in any way not expressly permitted by this TOU. Without limiting the foregoing, you agree that you will not: (a) institute, assist, or become involved in any type of attack, including without limitation denial of service attacks, upon the Sites and/or Service or otherwise attempt to disrupt the Sites and/or Service or any other person's use of the Sites and/or Service; or (b) attempt to gain unauthorized access to the Sites, Service, accounts registered to other users, or the computer systems or networks connected to the Sites and/or Service. Furthermore, you may not use the Sites or Service to develop, generate, transmit or store information that: (i) is defamatory, harmful, abusive, obscene or hateful; (ii) in any way obstructs or otherwise interferes with the normal performance of another person's use of the Sites and/or Service; (iii) performs any unsolicited commercial communication not permitted by applicable law; (iv) constitutes harassment or a violation of privacy or threatens other people or groups of people; (v) is harmful to children in any manner; (vi) violates any applicable law, regulation or ordinance; (vii) makes any false, misleading or deceptive statement or representation regarding DrinkTV, DrinkTV and/or the Service; (viii) constitutes phishing, pharming or impersonates any other person, or steals or assumes any person's identity (whether a real identity or online nickname or alias); or (ix) generates artificial, automated or fraudulent views of pages or videos or 'clicks' on advertisements or offers.
11. No Commercial Uses.
You agree that you will not use the Sites or the Service for any commercial purpose or the benefit of any third party or charge any person, or receive any compensation for, the use of the Sites or Service.
12. No Data Mining or Harmful Code.
You agree that you will not: (a) obtain or attempt to obtain any information from the Service, including without limitation email information of other account holders; (b) intercept, examine or otherwise observe any proprietary communications protocol used by the Service, whether through the use of a network analyzer, packet sniffer or other device; or (c) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan-horse routing, trap door, time bomb or any other codes, instructions, malware or third-party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble the Sites or the Service.
13. Mobile Devices.
The Sites and Service contains services and features that are available to or through certain mobile devices. Your carrier's normal rates and fees apply. We do not guarantee that any or all Services will work with or be accessible through all carriers or devices.
14. Third Party Links from the Sites.
The Sites may contain links to websites, Apps and content platforms operated by other parties (for example: Amazon, Apple, Roku, YouTube, Google, Facebook, Twitter, Instagram, etc.). DrinkTV provides these links to other websites and content platforms as a convenience, and use of these websites and content platforms is at your own risk. The linked websites, APPs and content platforms are not under the control of DrinkTV, and DrinkTV is not responsible for the content available on the other websites, Apps and content platforms. Such links do not imply DrinkTV's endorsement of information or material on any other website, App or content platform and DrinkTV disclaims all liability with regard to your access to and use of such linked websites, Apps and content platforms. Products and/or services offered on or in association with the third party linked websites and Apps are provided through independent third party vendors, and you agree to look solely to such third party vendors, and not DrinkTV, for any issues related to such products and/or services.
15. Links to the Sites.
Unless otherwise set forth in a written agreement between you and DrinkTV, you must adhere to DrinkTV's linking policy as follows: (i) the appearance, position and other aspects of the link may not be such as to damage or dilute the goodwill associated with DrinkTV's and/or its licensors' names and trademarks, (ii) the appearance, position and other attributes of the link may not create the false appearance that you or your organization or entity is sponsored by, affiliated with, or associated with DrinkTV, (iii) when selected by a user, the link must display the Sites on full-screen and not within a "frame" on the linking Sites, and (iv) DrinkTV reserves the right to revoke its consent to the link at any time and in its sole discretion.
16. Social Networks.
The Service includes features that operate in conjunction with certain third party social networking websites or APPs that you visit, including the use of such features to log into your account on the Sites ("Social Network Features"). While your use of the Social Network Features is governed by this TOU, your access and use of third party social networking websites and the services provided through those websites is governed by the terms of service and other agreements posted on those third party websites. It is impossible for DrinkTV to determine in each case whether your use of the Social Network Features would cause you to violate or breach the terms of service and/or other agreements posted on those third party websites. You understand and acknowledge that your actions in association with your use of the Social Network Features may possibly cause you to violate or breach the terms of service and other agreements posted on those third party websites which could result in the termination of your account and ability to access those third party websites and, in some cases, could give rise to the possibility of liability for damages. You agree that you alone are responsible for your use of the social network features and that DrinkTV will not be liable to you or anyone else for your violation or breach of any terms of service or other agreement of any third party website, App or service that may result from your use of the Social Network Features.
"DrinkTV" and the DrinkTV logos are the trademarks and/or service marks of DrinkTV. Unauthorized use of any DrinkTV trademark, service mark or logo would be a violation of international and U.S. Federal and State trademark laws.
The Sites and Service and the content made available through the Sites and the Service are protected by U.S. and international copyright laws. Except as authorized in this TOU, you may not use, modify, reproduce or distribute any of the content, or the design or layout of the Sites or Service, or individual sections of the content, design or layout of the Sites without DrinkTV's express prior written permission.
Copyright Claim and Agent. Note: the following information is provided exclusively for notifying DrinkTV that your copyrighted material may have been infringed. All other inquiries, such as requests for technical assistance, reports of social media or email abuse or piracy reports, will not receive a response through this process. DrinkTV respects the intellectual property rights of others, and requires that visitors and users who use the Sites and the Service do the same.
Infringement Claim: If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the DrinkTV Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below:
5757 W. Century Blvd., Suite 810,
Los Angeles, CA 90045, USA
Inquiries not compliant with the procedure outlined above may not receive a response. DrinkTV may, in appropriate circumstances, terminate an account holder or subscriber to a Site or Service if he or she is a repeat infringer. If you believe that an account holder or subscriber is a repeat infringer, please follow the instructions above to contact DrinkTV's DMCA agent and provide information sufficient for us to verify that the account holder or subscriber is a repeat infringer.
If you believe that your user Posting that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content in your Posting, you may send a counter-notice containing the following information to the DrinkTV Copyright Agent:
To be effective, a Counter Notification must be a written communication provided to DrinkTV's Designated Agent that includes substantially the following:
Upon receipt of a Counter Notification containing the information as outlined in 1 through 4 above:
The Sites and the Service are operated by DrinkTV in the United States. Those who choose to access the Sites, and/or the Service from locations outside the United States do so on their own initiative and are solely responsible for compliance with applicable local laws.
21. User Postings on the Sites.
The Sites may provide users with the ability to post messages on the Sites. DrinkTV is under no obligation to review any messages; information or content ("Postings") posted on the Sites by users and assumes no responsibility or liability relating to any Postings. Notwithstanding the above, DrinkTV may from time to time monitor the Postings on the Sites and may remove any Postings at its sole discretion. You grant other users of the Sites permission to access, use, record, reproduce, distribute, publicly display, publicly perform, and prepare derivative works of your Postings in any medium (whether now known or later developed). We do not guarantee any confidentiality with respect to any Postings that you may submit, upload, post or otherwise provide to the Sites, and it is your responsibility to protect any rights that you may have in your Postings. Please also be aware that any personally identifiable information that you choose to include in your Postings for publication on the Sites will not be protected. If DrinkTV has provided you with any free or discounted product or other item of value (other than sales and discounts available to the general public), you agree to disclose the value received in your Postings in compliance with Section 5 of the U.S. Federal Trade Commission Act.
22. Submitted Content.
DrinkTV does not claim ownership of any materials of the Postings you make available through the Sites. At DrinkTV's sole discretion, such materials in the Postings may be included in the Service in whole or in part or in a modified form. With respect to such materials in the Postings you submit or make available for inclusion on the Sites, you grant DrinkTV a perpetual, irrevocable, non-terminable, worldwide, royalty-free, fully paid-up and non-exclusive license to use, copy, distribute, publicly perform, display, modify, create derivative works, and sublicense such materials in the Postings or any part of such materials and Postings. You hereby represent and warrant: that any materials or Postings you provide do not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified above in this Section entitled "Submitted Content". You also grant us the right, but not the obligation, to use your name, likeness, and identity in connection with your materials and Postings. You voluntarily waive all so-called "moral rights" or similar rights you may have in your materials and Postings.
The Sites and the Service are not directed toward children under 13 years of age nor does DrinkTV knowingly collect information from children under 13 or allow them to create an account or access account features. The Children's Online Privacy Protection Act (COPPA) of 1998 provides safeguards to protect children who use the Internet by regulating the online collection of personal information from children under the age of 13. To ensure compliance with this law, DrinkTV does not knowingly collect or maintain information provided by children under the age of 13 unless expressly authorized by a parent or legal guardian. DrinkTV does not sell products, services or other activities by or for purchase by children, and we ask that minors (under the age of 13) do not submit any personal information to us. If we learn that we have inadvertently collected personal information from a child we will make all reasonable efforts to delete that data from our records.
24. Disclaimer of Warranties.
The Sites and Service are provided on an "AS IS" and "AS AVAILABLE " basis for your use, without warranties of any kind, either express or implied, including without limitation the warranties of merchantability, fitness for a particular purpose, title, non-infringement, and those arising from course of dealing or usage of trade. DrinkTV makes no warranty as to the accuracy, completeness or reliability of any content available through, or the performance of, the Sites or the Service. You are responsible for verifying any information before relying on it. Use of the Sites and/or the Service is at your sole risk. DrinkTV does not warrant that you will be able to access or use the Sites and/or Service at the times or locations of your choosing; that the Sites or the Service will be uninterrupted or error-free; that defects will be corrected; or that the Sites or the Service are free of viruses or other harmful components.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimer may not apply to you.
25. Limitation of Liability; Sole and Exclusive Remedy.
To the maximum extent permitted by law, DrinkTV, its affiliates, licensors and business partners (collectively, the "Related Parties") disclaim all liability, whether based in contract, tort (including negligence), strict liability or otherwise, and further disclaims all losses, including without limitation direct, indirect, incidental, consequential, or special damages arising out of or in any way connected with access to or use of the Sites and/or Service, even if DrinkTV and/or Related Parties have been advised of the possibility of such damages. Without limiting the foregoing, in no case will the liability of DrinkTV or any of the Related Parties exceed the amount that you paid to us or our designees during the 6 months prior to the time the cause of action giving rise to liability arose or $100, whichever amount is less.
DrinkTV will not be responsible or liable, under any circumstances, for any loss, liability, expenses or damages incurred in connection with the Site and/or the Service to the extent caused by or resulting from: (a) your acts, defaults or omissions; (b) your violation of any of any term, condition, representation or warranty contained in this TOU; or (c) acts or omissions of third parties, including third parties contracted by DrinkTV.
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 liability of DrinkTV and its affiliates shall be limited to the fullest extent permitted by law.
You agree to indemnify, defend and hold DrinkTV and the Related Parties harmless from any and all claims, demands, damages or other losses, including reasonable attorneys' fees, resulting from or arising out of your use of the Sites and/or the Service or any breach by you of this TOU or any other policies that DrinkTV may issue for the Sites and/or Service from time to time.
27. Governing Law; Jurisdiction.
This TOU is governed by, and will be construed under, the laws of the United States of America and the law of the State of California, without regard to conflict of law principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Except as expressly provided below (and claims proceeding in any small claims court), all disputes arising out of or related to your use of the Sites and/or the Service shall be subject to binding arbitration as provided in paragraph 28. To the extent any matter is excluded from arbitration as set forth below, all such disputes, shall be subject to the exclusive jurisdiction of the state and federal courts located within Los Angeles, California and you agree to submit to the personal jurisdiction and venue of such courts. You and DrinkTV agree that any cause of action arising out of or related to the Sites or Services must commence within 1 year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
28. Binding Arbitration.
28.1 Arbitration Procedures.
You and DrinkTV agree that, except as provided in this Section 28, all disputes, controversies and claims related to this TOU (each a "Claim"), will be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party will be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the "JAMS Rules") and under the terms set forth in this TOU. In the event of a conflict between the terms set forth in this Section and the JAMS Rules, the terms in this Section will control and prevail.
Except as otherwise set forth in this Section, you may seek any remedies available to you under federal, state or local laws in an arbitration action. As part of the arbitration, discovery shall be permitted pursuant to the JAMS Rules. The arbitrator will provide a written statement of the arbitrator's decision regarding the Claim, the award given and the arbitrator's findings and conclusions on which the arbitrator's decision is based. The determination of whether a Claim is subject to arbitration (arbitrability) will be governed by the JAMS Rules and shall be determined by an arbitrator. Notwithstanding the foregoing, you and DrinkTV may litigate in court to compel arbitration, stay proceedings pending arbitration, obtain interim equitable relief, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
By agreeing to this arbitration provision, you understand that you and DrinkTV waive the right to sue in court and have a jury trial.
28.2 Location and Timing.
The arbitration will take place within 30 days following receipt by either party of the other party's notice of arbitration. The arbitration will be conducted in Los Angeles, California.
You and DrinkTV agree that any arbitration will be limited to the Claim between DrinkTV and you individually. You and DrinkTV agree that: (a) there is no right or authority for any dispute to be arbitrated on a class-action basis or to utilize class action procedures; (b) there is no right or authority for any dispute to be brought in a purported representative capacity or as a private attorney general; and (c) no arbitration will be joined with any other arbitration.
You and DrinkTV agree that if any portion this Section 28 is found illegal or unenforceable, that portion will be severed and the remainder of the Section will be given full force and effect.
29. TOU Revisions.
This TOU may only be revised in a writing signed by DrinkTV, or published by DrinkTV on the Sites.
30. No Partnership.
You agree that no joint venture, partnership, employment, or agency relationship exists between you and DrinkTV as a result of this TOU or your use of the Service.
DrinkTV may assign this TOU, in whole or in part, to any person or entity at any time with or without your consent. You may not assign the TOU without DrinkTV's prior written consent, and any unauthorized assignment by you will be null and void.
If any part of this TOU is determined to be invalid or unenforceable, then that portion will be severed, and the remainder of the TOU will be given full force and effect.
33. Attorneys' Fees.
In the event any litigation or arbitration is brought by either party in connection with this TOU, the prevailing party will be entitled to recover from the other party all the reasonable costs, attorneys' fees and other expenses incurred by such prevailing party in the litigation.
34. No Waiver.
Our failure to enforce any provision of this TOU will in no way be construed to be a present or future waiver of such provision, nor in any way affect the right of any party to enforce each and every such provision thereafter. The express waiver by us of any provision, condition or requirement of this TOU will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
All notices given by you or required under this TOU will be in writing and addressed to: DrinkTV, LLC., 5757 W. Century Blvd., Suite 810, Los Angeles, CA 90045, USA, ATTN: Legal Department. Email: email@example.com.
36. Equitable Remedies.
You hereby agree that DrinkTV would be irreparably damaged if the terms of this TOU were not specifically enforced, and therefore you agree that we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to breaches of this TOU, in addition to such other remedies as we may otherwise have available to us under applicable laws.
37. Terms Applicable for Apple iOS
If you are accessing or using one of our Apps through a device manufactured and/or sold by Apple, Inc. ("Apple"), such a device will be referenced as an "Apple Device":
38. Entire Agreement.
This TOU, including documents expressly incorporated by reference, constitutes the entire agreement between you and us with respect to the Sites and/or Service and supersedes all prior or contemporaneous communications, whether electronic, oral or written, between you and us with respect to the Sites and/or Service.