Retailer terms
DRINKUN US RETAILER TERMS AND CONDITIONS
Thank you for your interest in services offered by Drinkun, INC (“Drinkun”). These Retailer Terms and Conditions (“Terms”) apply to Drinkun’s marketplace, insights, and other related services (“Services”).
By using the Services, you are accepting these Terms and represent that you have the authority to do so as an owner or principal of a beverage alcohol retailer (“Retailer”), or as an authorized employee or agent acting on behalf of a Retailer.
Drinkun and Retailer may collectively be referred to as the “Parties” and/or individually as a “Party.”
Definitions.
“Drinkun Content” means (i) URLs, domain names, on-screen layouts, keywords, links, pointers and other navigational elements, product categories and descriptions, editorial copy, text, photos, graphics, images, artwork, videos, audio content, advertisements and promotions, manuals, training documents, insights, reports and analyses, artistic designs, textual materials and articles, and other tangible, visual or audible works of any nature, (ii) technology, HTML formatting code, source and object code, programming code and software, and data, and (iii) any modifications, extensions, updates and replacements of (i) or (ii), all of which are created by or on behalf of, owned, controlled or provided by, or licensed (other than by Retailer) to, Drinkun
“Drinkun Data” means information collected by Drinkun from and about Retailer (excluding the information licensed to Drinkun under Section 6(b)) and Drinkun Users when they use the Services, Drinkun Platform, and/or other services offered by Drinkun. Drinkun Data includes Drinkun PII.
“Drinkun PII” means any information that Drinkun provides to Retailer in connection with these Terms relating to an identified individual or an identifiable individual, device, or household or which can be reasonably used to identify an individual, device, or household or that may otherwise be considered "personal data" under applicable Laws.
“Drinkun Platform” means the consumer-facing websites and applications that are operated by Drinkun.
“Drinkun Users” mean consumers who access or make purchases through the Drinkun Platform.
“Insights” mean market analyses, industry trends and other informational reports provided by Drinkun.
“Intellectual Property” means intellectual property regardless of form, including any idea, design, concept, technique, invention, discovery, or improvement, regardless of patentability, software development tools, trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin, trade secrets, know-how, processes, methodologies, templates, frameworks, algorithms, software code, databases, creative content, works of authorship, and other materials, and all intellectual property rights therein including copyrights and patents.
“Laws” mean all applicable laws, regulatory rules, guidelines, regulations, ordinances, codes and administrative or judicial precedent, including but not limited to all applicable federal, national and state privacy and data protection laws, rules, and regulations pertaining to privacy, data processing and use, data protection, data security, or confidentiality, including, without limitation, the California Consumer Privacy Act (as amended by the California Privacy Rights Act, and together with related regulations when effective, the “CCPA”), the Virginia Consumer Data Protection Act, the Colorado Privacy Act, the Utah Consumer Privacy Act, the Connecticut Data Privacy Act, and any other U.S. state or federal laws governing personal information or personal data. For the avoidance of doubt, unless specified otherwise, references to “Data Protection Laws” herein mean Data Protection Laws that are applicable in a given situation.
“Order Tracking Information” means precise or approximate location from Retailer’s and Retailer delivery persons used while fulfilling an order. Drinkun collects precise or approximate location data from Retailers and Retailer’s delivery persons mobile devices when an order is marked as EN ROUTE and stops when the order is COMPLETE. Order tracking information is collected when the Drinkun app is running in the foreground (app open and on-screen) or background (app open but not on screen) for order tracking to provide delivery information, confirm delivery and/or to prevent, detect, and combat fraud.
"Retailer Content" means text, images, audio content, and other tangible, visual and audible works of any nature, all of which are created by or on behalf of (other than by Drinkun in connection with Services), owned or controlled by, or licensed (other than by Drinkun in connection with Services) to Retailer.
“Marks” mean trade names, trademarks, service marks, logos, trade dress and other similar indicia of origin owned by a Party, and the goodwill associated therewith.
Retailer Account and Portal.
Once Drinkun activates Retailer’s account, Retailer is responsible for the activity and transactions in its account. Retailer may not under any circumstances share its account login credentials with a third or party or allow a third party to utilize its login credentials. Retailer agrees to comply with the Information Security and Privacy Addendum attached as Exhibit A, including but not limited to: (i) Keeping its account login credentials secure and confidential at all times; (ii) using unique, strong passwords for account access; (iii) implementing and using multi-factor authentication for access to account access; (iv) notifying Drinkun immediately of any suspected or actual unauthorized use or security issue related to its account or the portal by sending an email to security@drinkun.com
Retailer represents and warrants that it has all required authorizations and has and will train its employees, agents and users about the use of Drinkun Data, Drinkun PII, Order Tracking Information and data provided by Retailer or required by Drinkun to fulfill orders, information related to Retailer Personnel (as defined in Exhibit A) including any personally identifiable information, and Order Tracking Information. Retailer expressly consents to receive messages about the Services and its Drinkun account through email, phone, or text/SMS messaging.
License and Insurance. Retailer must provide a copy of its current retail alcoholic beverage license to Drinkun upon request and cooperate with Drinkun’s ongoing efforts to maintain an accurate, detailed record of its license. Retailer must maintain liquor liability insurance and general liability insurance with minimum limits of
$1,000,000 per occurrence and $2,000,000 aggregate. Retailer must ensure that the policies include coverage for claims that are submitted after expiration or termination of the term but arise out of incidents that occur during the term. Retailer must notify Drinkun at least thirty (30) days prior to any cancellation of, or material change to, its license or insurance. Upon Drinkun’s request, Retailer must name Drinkun and/or any Drinkun Service Provideras additional insured(s) on each policy and provide certificates of insurance to Drinkun.
Access to and Use of Services. During the term, Retailer may access and use the Services on a non-exclusive basis to (a) review, accept, decline, monitor, process and execute purchase orders and transactions with Drinkun Users of legal drinking age; and (b) review Insights. Retailer may review and utilize Insights solely for its own educational and internal, non-commercial purposes and in a manner non-competitive to Drinkun. Drinkun is not liable if Retailer does not have compatible technology or if Retailer accesses or use the wrong version of Services or any software made available by Drinkun. Retailer may not solicit, induce, or suggest that any Drinkun User connect directly with Retailer, to use a competitive service or Retailer’s own service, or solicit, induce or suggest that any Drinkun User cease using the Drinkun Platform.
Retail Activities.
Retailer is responsible for controlling and managing all aspects of the sale and delivery of alcoholic beverages ordered from Retailer by Drinkun Users, including the selection and pricing of inventory, receipt & acceptance of orders, and the processing of payments, chargebacks and refunds. Retailer is responsible for any allegations of “bait and switch” made by a Drinkun User.
Transactions between Retailer and Drinkun Users through the Services and Drinkun Platform are completed and supervised by Retailer, and not by Drinkun. Drinkun does not offer, provide or sell alcoholic beverages or transportation services and is not responsible for the decisions, acts or omissions of Retailer or any third-party service provider used by Retailer. Payments for the sale and transportation of alcoholic beverages are directed to and processed by Retailer’s payment processor, or where legally allowed, the payment processor of Retailer’s transportation provider.
Retailer must comply with all Laws governing its retail license. Retailer expressly agree that it will comply with all Laws, including Laws: (i) requiring Retailer verify the age of any person to whom it sells and furnishes alcoholic beverages; (ii) requiring that Retailer determine whether the sale and furnishing of alcoholic beverage to a person is otherwise safe and appropriate; (iii) concerning the tips and gratuities paid to Retailer’s employees, contractors, and agents; and (iv) concerning data privacy and security.
Drinkun does not accept or process any payments for beverage alcohol products. Retailer must control brand selection and quantity in its purchase and sale of alcoholic beverages, with no influence or inducement from any manufacturer, importer, supplier, wholesaler or distributor.
Retailer acknowledges that consumers will have up to five (5) days to report any issues with an order placed through the Drinkun Platform, including (but not limited to) incorrect products, damaged products, and spoiled products. Retailer is responsible for determining how to respond to any reported issues, including whether to issue any refunds or offer replacement products.
Retailer consents to Drinkun’s monitoring and recording of telephone calls and written communications between Retailer and Drinkun for purposes of quality assurance and improving the Services.
Performance of Services; Retailer Information.
The Services depend on Retailer’s diligence, responsiveness, commitment to safe practices, and cooperation with Drinkun. Retailer agrees to promptly integrate its systems with Drinkun’s systems, and to provide timely information requested by Drinkun.
Retailer is responsible for maintaining current and accurate information in its Drinkun account, including location, hours of operation, availability to make deliveries, scope of service area, inventory, store sales, pricing, policies for consumers and other information that does not identify a specific individual, device, or household (“Retailer Data”). Retailer grants Drinkun a perpetual, irrevocable, nonexclusive, royalty free, fully paid up, worldwide license, with right of sublicense through multiple tiers, to use Retailer Data in connection with the Services and for Drinkun’s marketing and other business purposes.
Retailer expressly agrees that Retailer Data may be: (i) incorporated into a data product or offering that Drinkun makes available to third parties; and (ii) shared and processed with Drinkun Affiliates subject to the restrictions in these Terms.
Privacy and Security.
Drinkun collects, processes, stores, and discloses personal information in a manner consistent with its Privacy Notice, available at https://Drinkun.com/privacy. In providing Retailer with the Services, Drinkun may share Drinkun PII with Retailer subject to these Terms, including the terms of Exhibit C.
Each party shall comply with the obligations applicable to it under the Data Protection Law with respect to the processing of personal data.
Retailer agrees that it will: (i) operate and handle Drinkun PII as a Service Provider; (ii) only process Drinkun PII for the purpose of performing its obligations under these Terms and not use Drinkun PII for any other purpose unless otherwise agreed by the Parties in writing; and (iii) under no circumstances Sell or Share information provided or made available by Drinkun that includes or incorporates Drinkun PII. Retailer expressly agrees that “Service Provider”, “Share” and “Sell” shall have the definitions set forth in the CCPA and other
applicable Laws. Retailer further agrees it shall not use Drinkun Data in any way that harms Drinkun or that benefits a competitor of Drinkun. Retailer agrees that it shall not disclose Drinkun Data to any third parties, except as necessary for the purposes set forth herein.
Retailer will provide reasonable assistance to Drinkun as necessary for Drinkun to: (i) comply with applicable Laws; and (ii) fulfill requests by Drinkun Users to exercise their rights under applicable data protection Laws that implicate Drinkun PII made available under these Terms.
Without limiting any other provision of these Terms, Retailer will not scrape or merge any of the data collected or otherwise obtained in connection with the Services, including any Drinkun PII, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with the Drinkun Platform, including any Drinkun PII, for the purpose of re-identification, targeted marketing, or any other similar purpose. For clarity, this section does not restrict Retailer in its use of data it has collected, either on its own or in conjunction with data collected from sources other than the Drinkun Platforms, that Retailer obtained directly from the data subjects in question, in accordance with Retailer’s own privacy policy.
Retailer will securely delete all Drinkun PII in its possession: (i) no later than ninety (90) days after receiving such data; and (ii) upon termination of these Terms. Notwithstanding the previous sentence, Retailer may store Drinkun PII if required to do so for legal compliance purposes provided that Retailer continues to comply with the restrictions contained in this Section 7 and promptly deletes such data when Retailer is no longer required to store it.
Retailer shall implement appropriate technical and organizational measures to protect Drinkun PII and Drinkun data as further detailed in Exhibit A against unauthorized or unlawful processing and against unauthorized loss, destruction, damage, alteration, or disclosure, as well as any breach of Retailer’s security measures ("Information Security Incident").
Retailer shall promptly notify Drinkun in the event that Retailer learns or has reason to believe that an Information Security Incident has occurred. This notification includes at least: (1) the nature of the breach of security measures, (2) the potentially compromised personal data and data subjects, (3) the duration and expected consequences of the Information Security Incident, and (4) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, Retailer shall (a) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident; and (b) provide Drinkun with assurances reasonably satisfactory to Drinkun that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Breach occurs as a result of an act or omission of Retailer, and if Drinkun determines that notices (whether in Drinkun or Retailer’s name) or other remedial measures are warranted, Retailer shall, at Drinkun’s request and at Retailer’s cost and expense, undertake the aforementioned remedial actions.
Retailer shall notify Drinkun without undue delay upon discovery of actual or suspected unauthorized access to, acquisition, or disclosure of Drinkun PII, or another actual or suspected breach of security or confidentiality with respect to Drinkun PII in Retailer’s possession or its representatives’ control or possession. Notice shall be sent to security@Drinkun.com.
Personnel. Each Party is liable for the acts and omissions of their respective employees and agents.
Intellectual Property.
Drinkun Intellectual Property. Drinkun’s Intellectual Property includes Drinkun Content, Drinkun Data, Drinkun Marks, Services, and all of their components and elements, except to the extent they include or incorporate Retailer Intellectual Property.
Scope of Use. During the term, Retailer may publicly display Drinkun Content and Drinkun Marks in accordance with these Terms to market the availability of the Services to end consumers of legal drinking age. Retailer may not: (i) distribute, publish, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit Drinkun’s Intellectual Property in any unauthorized manner, including by trespass or burdening network capacity; (ii) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify Drinkun’s Intellectual Property; (iii) attempt to obtain any information or content from Drinkun’s Intellectual Property using any robot, spider, scraper or other automated means for any purpose; (iv) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in any visible, audible or tangible embodiments of Drinkun’s Intellectual Property; (v) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer Drinkun’s Intellectual Property (except as and only to the extent any foregoing restriction is prohibited by applicable Law or to the extent permitted by the licensing terms governing use of any open sourced components included therein); (vi) use any means to discover the trade secrets in Drinkun’s Intellectual Property; (vii) to otherwise circumvent any functionality that controls access to or otherwise protects Drinkun’s Intellectual Property; (viii) use Drinkun’s Intellectual Property to commit fraud or engage in anti-competitive practices, or for any purpose that facilitates illegal activity or is unlawful, harmful, threatening or harassing; or (ix) permit any third party to engage in any of the acts described in clauses (i) through (viii).
Retailer Intellectual Property. Retailer Intellectual Property includes Retailer Content and Retailer Marks. Drinkun may, on a non-exclusive, royalty-free, worldwide basis, use and reproduce Retailer Intellectual Property during the term for purposes of performing the Services.
General. Except as expressly stated in these Terms, no right, title, license, or interest in either Party’s Intellectual Property is intended to be given to or acquired by the other Party. Neither Party will take any action that would interfere with or diminish the other Party’s rights in its Intellectual Property.
Feedback. Retailer may, but is not obligated to, provide feedback, suggestions, comments, ideas, or other concepts relating to Drinkun and its Affiliate’s products and services (together, “Feedback”). To the extent that Retailer provides or otherwise makes available Feedback, Retailer hereby grants to Drinkun and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Feedback in all formats and distribution channels now known or hereafter devised (including in connection with the Drinkun, and on third-party sites and services), without further notice to or consent from Retailer, and without the requirement of payment to Retailer or any other person or entity.
Marketing and Promotion. Retailer understands that Drinkun may promote the Services, Drinkun Platform, and other Drinkun offerings from time to time. Such promotions are intended to raise awareness and may provide Drinkun Users with certain benefits applicable to their orders, such as savings on orders and delivery, all subject to applicable laws. Retailer agrees to participate in all such promotions. If a promotion is applicable to an order Retailer receives, and the Drinkun User will be receiving any sort of benefit, Retailer will be informed when Retailer receives the order and before Retailer accepts it. Retailer is free to market and promote any brands of alcoholic beverages. The marketing and promotion of any alcoholic beverages by Retailer must not be influenced or induced by any manufacturer, importer, supplier, wholesaler or distributor.
Service Fees.
Drinkun Fees for Retailers. The fees Retailer will be charged by Drinkun for use of the Services (“Fees”) are outlined in writing at the time of registration, and Drinkun may increase these Fees upon thirty (30) days prior written notice. Drinkun will invoice Retailer for these Fees, minus any credits (e.g., from promotions), on a monthly basis. Retailer shall pay each invoice within fifteen (15) days of the date that such invoice is issued by ACH transaction or another payment method mutually agreed upon by the parties. Failure to pay any outstanding Fees shall be considered a material breach of these Terms. Late payments are subject to a charge equal to the lesser of: (i) one and one-half percent (1½%) per month; and (ii) the highest rate permitted by applicable Law.
Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Retailer is responsible for the payment of all Taxes. If Drinkun is required by law to pay or collect Taxes for which Retailer is responsible, Drinkun will invoice Retailer for the amounts due, which Retailer must pay to Drinkun, unless it provides Drinkun with a valid tax exemption certificate authorized by the proper taxing authority (except to the extent Drinkun may have collected applicable Taxes directly from consumers on your behalf as required by law).
Drinkun Fees for Consumers. Drinkun reserves the right to charge Drinkun Users a services fee for use of the Drinkun Platform. Drinkun Users will be made aware of any such service fees and such fees will be collected directly by Drinkun from the Drinkun Users.
Marketplace Facilitator Designation. In states where Drinkun is registered to collect and remit sales tax as a marketplace facilitator, Drinkun, rather than Retailer, pursuant to state law, will collect the sales tax for the alcoholic beverages and other products sold by Retailer. Retailer will have access to all information regarding the tax charged to Drinkun Users as well as the tax payments collected by Drinkun from Drinkun Users in accordance with state law. Please note, where Drinkun is designated a marketplace facilitator Drinkun is only responsible for the collection and remittance of taxes accrued for sales facilitated by Drinkun and only those sales. Retailer remains responsible and liable for all other tax collection and remittance for sales made by any other means other than those facilitated by Drinkun.
Term and Termination. These Terms become effective on the date Retailer registers with Drinkun or first access the Services, whichever is earlier, and will continue until terminated in accordance with these Terms.
Termination At-will. Either Party may terminate these Terms during the first twelve (12) months of the term by providing at least ninety (90) days written notice to the other Party. Thereafter, either Party may terminate by providing at least sixty (60) days written notice to the other Party.
Termination for Cause. If a Party materially breaches any provision of these Terms and fails to remedy such breach within thirty (30) days of receiving written notice from the other Party of the breach, the other Party may terminate these Terms upon a final written notice. If the operation of Services is determined by either Party, or by a regulatory authority or court having competent jurisdiction, to violate any applicable Law, these Terms may be immediately terminated by either Party.
Termination for Non-Payment. Drinkun may terminate these Terms or suspend Services immediately if Retailer (i) fails to pay any Fees due under these Terms by the deadlines specified herein or otherwise agreed to in writing by the Parties; or (ii) breaches Sections 3, 4, 5(c) or 9(b).
Termination for Consumer Protection. Drinkun may terminate these Terms or suspend Services by providing five (5) days written notice to Retailer if Drinkun, in its sole discretion, believes that Retailer has interacted with a Drinkun User in an inappropriate or unprofessional manner or otherwise acted in manner that would materially harm Drinkun’s reputation by continued association with Retailer.”
Insolvency; Cessation of Business. Either Party may terminate these Terms upon written notice to the other Party if the other Party has ceased operations in the normal course of business or has sought or is seeking to make a compromise, assignment or other arrangement for the benefit of creditors, or if the other becomes a party to bankruptcy, receivership or similar proceedings affecting its financial condition, unless such proceedings are discharged within sixty (60) days after their initiation.
Suspension of Services. Drinkun, may in its sole discretion, temporarily suspend Services by providing Retailer with written notice if: (i) either Party is in the process of remedying a breach or addressing a regulatory or legal concern; (ii) Retailer fails to pay any fees due under these Terms; (iii) Drinkun reasonably believes that Retailer or Retailer’s account is compromised or involved in activities that violate that may compromise the security or integrity of the Drinkun Platform.
Effect of Termination. All rights and licenses to a Party’s Intellectual Property granted hereunder terminate on the effective date of termination or expiration. Each Party must remove the other Party’s Intellectual Property from such Party’s physical and digital properties by the same date, except as expressly set forth elsewhere in these Terms. All outstanding Fees will be due immediately upon termination. However, final payments by Retailer to Drinkun may be delayed for a period of sixty (60) days in order to account for any chargebacks or returns on sales made by Retailer to an end consumer who used Drinkun’s services, which chargebacks or returns may require a true-up of fees payable to Drinkun. The following provisions survive expiration or termination: Sections 3, 6(b)-(c), 11, 12(g) 13(b), 14, 18 through 33.
Confidential Information.
Definition. “Confidential Information” refers to any information provided by one Party (“Discloser”) to the other (“Recipient”) in connection with these Terms, whether prior to the date of these Terms or at any time during the term, and that is of a nature that a reasonable person would understand is confidential, whether in oral form, machine-readable form, written, digital, electronic or other tangible form. Confidential Information includes business strategies and information, marketing concepts, advertising and promotional plans, technical information, network information, information regarding software applications, systems and procedures, financial information, sales data, Retailer lists, customer information, creative concepts, specifications and designs. Confidential Information also includes notes prepared based on any other Confidential Information, regardless of the preparer.
Exceptions. Sections 14(c) and 14(d) do not apply to information that Recipient can demonstrate by documentary evidence: (i) is publicly known through no violation of these Terms by Recipient; (ii) is rightfully received from a third party not known by Recipient to be prohibited from disclosing such Confidential Information to Recipient; (iii) is approved for release by Discloser in writing; (iv) must be disclosed pursuant to law or an order of a court or governmental agency, provided that Recipient gives advance notice to Discloser so that Discloser has sufficient opportunity to seek protective relief; or (v) is developed by Recipient without use of Discloser’s Confidential Information.
Use and Disclosure of Confidential Information. Discloser’s Confidential Information must be used solely in connection with the Services and must not, without the prior written consent of Discloser, be voluntarily disclosed, orally or in writing. Confidential Information or portions thereof, however, may be disclosed to employees, officers, directors, contractors and legal counsel of Recipient with a need to know such Confidential Information and who are under confidentiality obligations no less restrictive than those contained in these Terms. Recipient must use the same measures to avoid disclosure of the Confidential Information as Recipient uses with similar information of its own which it desires not to have disclosed, and in no event less than reasonable measures. Neither Party may, without the prior written consent of the other, disclose to any person, other than to those specifically authorized herein on a confidential basis, any of the terms of or other facts regarding any proposed or actual business relationship or agreement between the Parties; however, Drinkun may publish its standard US Retailer Terms and Conditions.
Return of Property. Upon expiration or termination of these Terms or at any other time requested by a Party, each Party must turn over to the other Party all Confidential Information of the other Party in such Party’s possession or control, except for Retailer Data provided by Retailer to Drinkun prior to expiration or termination under Section 6.
Unauthorized Disclosure. If either Party learns of an unauthorized access to or disclosure of any of the other Party’s Confidential Information, it must promptly notify the other Party.
Drinkun Representations and Warranties. Drinkun represents and warrants that: (a) it has the full right, power and authority pursuant to applicable Law to enter into and to perform its obligations under these Terms and to grant the rights and licenses in these Terms; and (b) no manufacturer, importer, supplier, wholesaler or distributor has influenced or induced Drinkun to enter into these Terms with Retailer.
Retailer Representations and Warranties. Retailer represents and warrants that: (a) Retailer has the full right, power and authority pursuant to applicable Laws to enter into and to perform its obligations under these Terms and to grant the rights and licenses in these Terms; (b) Retailer holds and will maintain for the entire term a valid, current retail license issued by the licensing board or authority for the city, town, county and state in which Retailer operates its store(s) and the alcohol licensing commission for each state in which in which Retailer operate; (c) Retailer will comply with all applicable Laws, including Laws related to delivery, tied-house, tipping and gratuity, and data protection; (d) Drinkun’s use of Retailer Intellectual Property will not infringe any Intellectual Property rights of any third party; and (e) the execution and performance of these Terms by Retailer does not, and will not, violate any agreements, rights or obligations between Retailer and any third party.
Mutual Acknowledgment. Neither Party intends for any promotional or marketing activity conducted hereunder to result in the exclusion, in whole or in part, of any products of any manufacturer, importer, supplier, wholesaler or distributor, or retailer, or to result in any unfair trade practices. Neither Party will knowingly cause the other Party to act in violation of any applicable Law.
Drinkun Liabilities.
Drinkun will defend Retailer from and against any claims made or brought against it by a third party alleging that the Services infringe such third party’s Intellectual Property rights or misappropriate such third party’s trade secrets (each, a “Third Party Infringement Claim”). Drinkun will pay any damages finally awarded by a court or agreed to by Drinkun in a settlement with respect to such Third Party Infringement Claim, provided that Retailer: (i) promptly give written notice of the Third Party Infringement Claim to Drinkun; (ii) give Drinkun or Drinkun Affiliates sole control of the defense and settlement of the Third Party Infringement Claim (provided that Drinkun may not agree to any settlement that imposes any liability or obligation on Retailer without its prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provide reasonable assistance to Drinkun.
Drinkun does not have any obligation to defend or indemnify a Third Party Infringement Claim that arises as a result of or in connection with: (i) Retailer’s use of the Services in violation of these Terms; (ii) modifications to the Services not made by Drinkun; (iii) combination of the Services with services or technologies not approved by Drinkun; (iv) Retailer’s use of the Services after Drinkun has terminated these Terms; (v) Retailer’s negligence or willful misconduct; or (vi) Retailer’s Intellectual Property.
If Drinkun determines that the Services are infringing or likely to infringe any third party’s Intellectual Property rights, or if as a result of any claim or litigation Drinkun or Retailer is temporarily or permanently enjoined from licensing or using the Services, Drinkun may: (i) procure for Retailer the right to continue to use the potentially infringing portion of Services as contemplated by these Terms; (ii) replace or modify the Services, or the potentially infringing portion thereof, to avoid the potential infringement; or (iii) if Drinkun determines that neither (i) nor (ii) is commercially reasonable, terminate the relationship and these Terms immediately without incurring liability and refund the amount of any fees pre-paid by Retailer. THIS SECTION 18 SETS FORTH DRINKUN’S SOLE AND EXCLUSIVE LIABILITY AND RETAILER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS.
Retailer Liabilities. Retailer will defend, indemnify and hold Drinkun and Drinkun Affiliates harmless from and against any taxes, losses, liabilities, damages, claims, suits, liabilities, costs and expenses including reasonable attorney’s fees and other legal costs that arise out of or relate to any: (a) act or omission by Retailer, its employees or agents under these Terms, including a breach of these Terms; (b) Intellectual Property or data provided by Retailer to Drinkun; or (c) Retailer’s alleged violation of any Laws. Drinkun and/or Drinkun Affiliates agrees to: (i) promptly give written notice of the claim to Retailer; (ii) give Retailer sole control of the defense and settlement of the claim (provided that Retailer may not agree to any settlement that imposes any liability or obligation on Drinkun and/or Drinkun Affiliates without their prior written consent, not to be unreasonably conditioned, delayed or withheld); and (iii) provides reasonable assistance to Retailer.
WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICES AND DRINKUN INTELLECTUAL PROPERTY (INCLUDING THIRD PARTY MATERIALS, SOFTWARE AND SERVICES) ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OF ANY KIND (ALL OF WHICH ARE HEREBY DISCLAIMED), WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF RETAILERABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRINKUN MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY OF ANY RESULTS OF ANY KIND. DRINKUN MAY INTRODUCE RETAILER TO THIRD PARTY TRANSPORTATION AND OTHER SERVICE PROVIDERS. DRINKUN MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY OR AVAILABILITY OF SUCH SERVICE PROVIDERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY. CONTENT AND ANALYSES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. DRINKUN HAS NOT MADE ANY CLAIMS OR REPRESENTATIONS OF GUARANTEED OR ANTICIPATED PROFITS THAT MAY RESULT FROM USE OF THE SERVICES AND DRINKUN EXPRESSLY DISCLAIMS LIABILITY FOR ANY PROFIT PROJECTIONS WHICH MAY HAVE BEEN PROVIDED. CONTENT AND ANALYSES ARE BASED IN PART FROM MATERIAL SUPPLIED BY RETAILER AND OTHER PARTIES AND SO DRINKUN DOES NOT WARRANT THE ACCURACY OF SUCH INFORMATION AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF ANY RELIANCE PLACED ON SUCH INFORMATION.
LIMITATION OF LIABILITY. DRINKUN’S (AND/OR ITS LICENSORS’ AND/OR DRINKUN AFFILIATES’) AGGREGATE LIABILITY FOR ANY CLAIM ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY RETAILER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT AS EXPRESSLY SET FORTH HEREIN, DRINKUN, ITS AFFILIATES (AND/OR ITS LICENSORS) ARE NOT LIABLE FOR (A) ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, LOSS OF USE, DATA OR PROFITS, OR ANY OTHER DAMAGES OR LOSSES OF ANY TYPE OR KIND ARISING OUT OF, OR IN ANY WAY CONNECTED WITH, THESE TERMS, OR (B) ANY SERVICES OR INTELLECTUAL PROPERTY PROVIDED BY DRINKUN (INCLUDING ANY THIRD PARTY MATERIALS, SOFTWARE, OR SERVICES), OR (C) ANY CLAIM, DEMAND OR DAMAGES RESULTING FROM OR ARISING OUT OF THE SALE, PURCHASE, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM (I) ANY TRANSACTION BETWEEN RETAILER AND ANY CONSUMER THROUGH THE SERVICES, (II) ANY RELATIONSHIP BETWEEN RETAILER AND ANY THIRD PARTY SERVICE PROVIDER, OR (III) ANY ADVERTISING THROUGH SERVICES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF DRINKUN, ITS AFFILIATES, AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DRINKUN AND AFFILIATES WILL NOT BE A PARTY TO TRANSACTIONS, DISPUTES, OR ANY NEGOTIATIONS BETWEEN RETAILER AND OTHER PARTIES.
Each party acknowledges that the foregoing limitations are an essential element of the agreement between the Parties and that in the absence of such limitations these Terms would be substantially different.
Delays. Timely performance of obligations is material under these Terms, however, any delay in performance by a Party will be excused to the extent the delay is a result of the other Party’s delay. If an external event that is beyond a Party’s reasonable control prevents the Party from performing its obligations, such as an act of a civil or military authority, civil disturbance, or a natural disaster, any delay or failure in performance will be excused to the extent caused by such event. If the delay or failure exceeds twenty (20) consecutive days, either Party may terminate the relationship and these Terms without incurring liability, except that Retailer must still complete payment of any fees owed to Drinkun.
Assignment. Retailer may not assign or transfer any of its rights or obligations under these Terms without Drinkun’s prior written consent. Drinkun may assign or delegate these Terms or any or all of its rights and obligations under these Terms to a successor in interest in connection with a merger, consolidation, reorganization or sale of all or substantially all of its assets or equity or the portion of its business to which these Terms relates. Any attempted assignment or delegation in violation of this section is void and without effect. Subject to the foregoing, these Terms bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
Governing Law; Disputes .
Governing law. This Agreement is governed by the law of the State of maryland, except that the mutual arbitration provision is governed by both the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the law of the State of Maryland. The parties agree that all disputes outside of the arbitration provisions will be heard in federal or state courts of the State of Maryland.
Scope of arbitration. This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from arbitration.
Negotiation of disputes. The parties will attempt to resolve all disputes between the parties arising out of or relating to this Agreement amicably through good faith negotiations upon the written request of any party.
Commencing arbitration. In the event that any dispute cannot be resolved within a period of 45 days after notice of a dispute has been given, all such disputes will, at election of either party, be finally resolved by final and binding arbitration in the State of Maryland administered by the Judicial Arbitration and Mediation Service, Inc. (“JAMS”), and in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one arbitrator with substantial experience in the technology industry selected in accordance with JAMS rules.
No class actions. All disputes will be resolved on an individual basis and neither party has the right to arbitrate on a class action basis any dispute, controversy or Claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including this arbitration clause.
Arbitration costs. The arbitrator will have the authority to allocate between the parties the costs of arbitration (including service fees, arbitrator fees, reasonable attorneys’ fees, expert witness fees and all other fees and expenses related to the arbitration) in such equitable manner as the arbitrator may determine. Judgment on the arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction.
Court action. Notwithstanding the foregoing provisions of this “Governing Law/Disputes” section, each party may seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute related to the actual or threatened infringement, misappropriation of a party’s intellectual property rights or breach of confidentiality obligations.
Equitable Relief. The Parties agree that a Party’s breach of the confidentiality provisions of these Terms or infringement or violation of the other Party’s Intellectual Property rights, may cause irreparable damage to the other Party and so if such event occurs the other Party will have, in addition to any and all remedies at law, the right to seek an injunction, specific performance or other equitable relief in a court of law.
Severability. If application of any provision of these Terms (or any portion of a provision) is held as invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, such invalidity, illegality or unenforceability will not affect any other provision (or the remaining portion of the provision) or the application of such provision to any other persons or circumstances, and the Parties will endeavor to fulfill the intent of the severed provision to the extent permitted by applicable Law.
Notices. Notices to Retailer under these Terms may be delivered by email at the email address listed in the registration form accompanying these Terms, and such email message will be deemed to have been given and received upon the date it was sent by Drinkun. Alternatively, notices may be sent in writing by registered U.S. mail, return receipt requested, to the addresses listed in the Retailer’s registration form accompanying these Terms. Notices to Drinkun shall be sent to: 8640 Vintage Earth Path, Laurel, MD 20723. Such notices are deemed to have been given and received as of the seventh (7th) day following the first postmarked date.
Relationship. The Parties are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency between the Parties. Neither Party has the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
Waiver; Cumulative Remedies. Failure of either Party to exercise or enforce any of its rights under these Terms is not a waiver of such right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity.
Headings; “Includes” and “Including”. All captions, titles or section headings of these Terms are for ease of reference only, should not affect the interpretation or construction of any provisions of these Terms, and should not be deemed part of these Terms. Wherever the word “including” or “includes” appears in these Terms, it should be construed to mean “including without limitation” or “include without limitation,” as the case may be.
Entire Agreement. These Terms and the registration form Retailer completed contain the entire agreement and understanding between Retailer and Drinkun and supersede and replace all prior and contemporaneous agreements between Retailer and Drinkun. Drinkun may amend these Terms of Service from time to time.
Amendments. These Terms may be amended, modified, or updated by Drinkun, in its sole discretion, from time to time, effective upon posting an updated version. Retailer is responsible for updating contact information and regularly reviewing the Terms updates and information from Drinkun. Continued use of the Drinkun Services, Drinkun Retailer, or accepting orders after any such modifications or updates constitutes Retailer’s consent to such changes.
