DRINKS APP TERMS OF SERVICE
Last updated on: November 30, 2022
Welcome to the DRINKS real-time alcohol tax and compliance application (the “App”). By signing up for a DRINKS account or by using DRINKS’ services through the App (the “Services”), you (on behalf of the business entity you represent, or on your own behalf if you are a sole proprietor) hold one or more beverage alcohol licenses allowing for the sale of alcohol directly to consumers and are agreeing to be bound by these terms of service, all duly executed addenda and amendments, and our Privacy Policy, all of which are incorporated herein (collectively, the “Agreement”) and which shall govern your use of the DRINKS Services, as defined herein.
As used in this Agreement, “we”, “us”, “our” and “DRINKS” means Drinks Holdings, Inc. and “you” and “your” mean the legal entity or sole proprietor using DRINKS’ Services. You and DRINKS are each a “Party” to this Agreement.
You acknowledge that this Agreement is a contract between you and DRINKS, even though it is electronic and is not physically signed by you , and it governs your use of the DRINKS App and the Services (as defined below).
PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT GOVERNS YOUR USE OF THE APP AND THE SERVICES. BY CLICKING ON THE “CREATE ACCOUNT” BUTTON, COMPLETING THE REGISTRATION PROCESS OR ACCESSING OR USING ANY OF THE SERVICES, YOU REPRESENT AND WARRANT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DRINKS, (3) YOU, OR THE ENTITY YOU HAVE NAMED AS THE USER, HOLD ONE OR MORE BEVERAGE ALCOHOL LICENSES ALLOWING FOR THE SALE OF ALCOHOL DIRECTLY TO CONSUMERS; (4) THE INFORMATION YOU PROVIDED IN CONNECTION WITH YOUR REGISTRATION FOR THE SERVICES IS ACCURATE AND COMPLETE, AND (5) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU DO NOT HAVE SUCH AUTHORITY OR ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH DRINKS, OR YOU DO NOT HOLD ONE OR MORE BEVERAGE ALCOHOL LICENSES ALLOWING FOR THE SALE OF ALCOHOL DIRECTLY TO CONSUMERS, YOU MAY NOT ACCESS OR USE THE SERVICES.
If you have any questions about these Terms of Service or the Services, please email legal@drinks.com.
1. Description of Services
DRINKS provides the App under this Agreement designed for use by Shopify merchants to enable simplified controls for alcohol beverage-related compliance, tax and reporting in connection with your Shopify storefront (collectively, the “Services”). New features or tools may be added to the Services from time to time and will be subject to the terms and conditions of this Agreement. Not all features may be available at all times and we are under no obligation to make any Services or features available. Except where prohibited in this Agreement or by applicable local, state, provincial, federal or international law, regulation, order or other requirement imposed or compelled by a governing or regulatory authority having legal force (whether local, city, county, provincial, state or federal) including any treaty, statute, common law, judicial decision, rule, regulation, code, or ordinance (collectively, “Applicable Law”), we reserve the right to modify the Services or any part thereof for any reason, without notice at any time. We reserve the right to provide the Services to your competitors and make no promise of exclusivity.
2. Access and Use
To access and use the Services, you must register for a DRINKS account (“Account”). To complete your Account registration, you must provide us with your full legal name, business name, address, phone number, a valid email address, and any other information indicated as required. DRINKS may reject your application for an Account, or cancel an existing Account, for any reason, in DRINKS’ sole discretion. You will designate a specific person or persons authorized by you to manage and support the Account. You are responsible for keeping access to your Account secure. DRINKS cannot and will not be liable for any loss or damage from your failure to maintain the security of access to your Account or the Shopify password you use to access your Account.
You agree to use the App and the Services only as set forth in this Agreement and not for the benefit of any third party. You shall not (a) reverse engineer, reverse assemble, decompile, disassemble or otherwise attempt to derive source code from the App, from the Services or from any DRINKS technology; (b) reproduce, modify, create or prepare derivative works of the App, the Services or any DRINKS technology; (c) work around, bypass, or circumvent any of the technical limitations of the Services, or use any tool to enable features or functionalities that are otherwise disabled in the App or Services or that you have not paid for or agreed to purchase; (d) access the App or Services, or monitor any material or information from the App or Services, using any robot, spider, scraper, or other automated means; (e) alter, destroy, or otherwise remove any proprietary notices in the App or the Services; and (f) reproduce, duplicate, copy, sell, resell or exploit any portion of the App, the Services, use of the App or Services, or access to the App or Services, without the express written permission of DRINKS. You shall comply with any and all codes of conduct, policies or other notices DRINKS provides to you or publishes in connection with the App and the Services, and you shall promptly notify DRINKS if you learn of a security breach related to the App or the Services.
Technical support regarding the Services is only provided to DRINKS users. Questions about the App or Services should be sent to DRINKS support at app.support@drinks.com.
3. Limited License
Subject to your full compliance with all of the terms and conditions of this Agreement, DRINKS grants you a limited, non-exclusive, nontransferable, non-sublicensable, revocable license to access and use the Services solely in accordance with this Agreement. As a condition of your use, you warrant to DRINKS that you will not use the Services for any unlawful or prohibited purpose. You shall not use the Services in a way that could damage, disable, overburden, or otherwise impair the App or interfere with any other party’s use. You shall not obtain, or try to obtain, any materials or information that we have not intentionally made available to you. We do not grant you license, express or implied, to any DRINKS intellectual property except as expressly stated in this Agreement. DRINKS reserves the right, in its sole discretion and without notice, to (a) revise the App and Services, and any content, features or functions therein; (b) impose rules for and limits on use of, or access to, the Services; (c) revoke your access to part, or all, of the Services; or (d) change, suspend, or discontinue any aspect of the Services. We will not be liable to you or to any third party for taking any of the actions listed in (a)-(d) above.
4. No Professional Tax Opinion or Legal Advice
You acknowledge that Services provided by DRINKS involve the calculation of taxes based on information you provide, and that you control the setting of certain compliance controls provided in the App. You acknowledge and agree that DRINKS does not provide tax or legal advice or guidance, including legal or professional tax opinions, regulatory compliance advice or any other professional advice. Although DRINKS strives to ensure that calculations and information contained in the App and provided through the Services are current, YOU AGREE THAT YOUR USE AND RELIANCE UPON THE SERVICES, CONTENT AND CONTROLS PROVIDED WHEN YOU USE THE SERVICES IS AT YOUR OWN RISK AND YOU ACKNOWLEDGE THAT DRINKS CANNOT GUARANTEE THAT ANY DATA OR INFORMATION CONTAINED OR PROVIDED IN THE APP AND THE SERVICES IS ACCURATE OR CURRENT. You are encouraged to consult your own tax advisor and lawyer for tax and legal advice.
5. DRINKS’ Rights
DRINKS reserves all rights not expressly granted to you in this Agreement. The Services are protected by copyright, trade secret and other intellectual property laws. This Agreement does not grant you any right to trademarks or service marks of DRINKS or any third party. Notwithstanding anything to the contrary, DRINKS shall have the right to collect and analyze data and other information relating to the App and Services and related to systems and technologies (including, without limitation, information concerning your Content (as defined below) and data derived therefrom), and DRINKS will be free, during and after the Term, to (a) use such information and data to improve and enhance the App and the Services, and for other development, diagnostic and corrective purposes in connection with the App and the Services, and (b) use and disclose such data solely in aggregate or other deidentified form in connection with its business.
If you provide DRINKS with any suggested improvements or additions to the App or the Services, under no circumstances will any such disclosure of any idea, suggestion or related material or any review of the Services (collectively, “Feedback”) to DRINKS be subject to any obligation of confidentiality or expectation of compensation. By submitting Feedback to DRINKS, you waive any and all rights in the Feedback and DRINKS is free to implement and use the Feedback if desired, as provided by you or as modified or derived by DRINKS, without obtaining permission or license from you or from any third party.
6. Your Responsibilities
YOU ACKNOWLEDGE THAT YOU BEAR FULL RESPONSIBILITY TO DETERMINE THE APPLICABILITY OF THE OUTPUT GENERATED BY THE SERVICES AND TO CONFIRM ITS ACCURACY AND APPLICABILITY AS IT PERTAINS TO YOUR BUSINESS. YOU ARE RESPONSIBLE FOR DETERMINING AND SETTING YOUR OWN TAX POLICIES AND COMPLIANCE POSITIONS WITHIN THE APP AND YOU MUST CONDUCT YOUR OWN DUE DILIGENCE REGARDING THE APPLICABILITY OF THE SERVICES, AND ANY ASPECT THEREOF, TO YOUR BUSINESS. You are solely responsible for all transactions and all goods or services you may sell through your Shopify Store including, but not limited to, product descriptions, prices, customer support, fees, taxes, required legal disclosures, and regulatory compliance, and you are solely responsible for conducting your business in compliance with all Applicable Law and regulations including obtaining any licenses required in order for you to operate and to offer the products or services associated with your business. You are solely responsible for all data, information, trademarks, copyright content, text, photos, images, code, content, product description, product units, pricing, and other information and materials, including, but not limited to, Personal Information (as defined below), that you upload, post, provide or otherwise transmit or store in connection with the App and the Services (collectively, the “Content”). You shall ensure that you have all necessary rights and permissions required by Applicable Law to use, and permit DRINKS to use, the Content in accordance with the terms of this Agreement. You understand that the Content may be transferred unencrypted and may involve (a) transmissions over various networks; and (b) changes to adapt to technical requirements of connecting networks or devices. You acknowledge that you bear sole responsibility for adequate security, protection, and backup of your Content. DRINKS will have no liability to you for any unauthorized access or use of any of your Content or any corruption, deletion, destruction or loss of any of your Content. You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services including, without limitation, hardware, software, server, operating system, web servers, and Internet connection (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the App and the Services and complies with all configurations and specifications set forth in DRINKS’ published documentation and policies then in effect.
7. Payment of Fees and Taxes
In consideration for the Services, you will pay to DRINKS the fees displayed when you set up your Account unless otherwise set forth in an applicable pricing amendment signed by both parties (“Fees”). DRINKS will be entitled to withhold performance and suspend or discontinue the Services until all amounts due are paid in full. DRINKS will provide you no less than thirty (30) days advance notice of any increase in Fees. Your continued use of the Services after a Fee increase goes into effect constitutes your agreement to the Fee increase. All Fees for Services are due and payable in U.S. Dollars and are non-refundable. DRINKS may terminate your Account due to non-payment. You agree to notify DRINKS in writing of all billing disputes within fourteen (14) days of billing, and disputes not submitted to DRINKS within that time are waived. Late payments will accrue interest at a rate of one and one-half percent (1.5%) per month, or the highest rate allowed by Applicable Law, whichever is lower. If DRINKS must initiate a collections process to recover Fees due and payable hereunder, then DRINKS shall be entitled to recover from you all costs and fees associated with such collection efforts, including but not limited to reasonable attorneys’ fees. In the event DRINKS delivers an invoice for any Fees or interest payments owed hereunder, such invoiced amounts shall be due and payable upon receipt, unless otherwise expressly set forth in the invoice.
The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and you will be responsible for determining and remitting all such taxes (other than taxes based on DRINKS’ income), fees, duties, and charges and any related penalties and interest, arising from the payment of the Fees and the delivery of the Services. Such amounts are in addition to the Fees. You will make all payments of Fees free and clear of, and without reduction for, any withholding taxes, and you agree to indemnify, defend, and hold DRINKS harmless in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
8. Term and Termination
The term of this Agreement will begin as of the date DRINKS first provides you with access to, or use of, any portion of the App or Services (deemed the “Effective Date”) and will continue for one month, and will automatically renew from month to month thereafter for subsequent and successive one-month terms unless and until terminated upon no less than thirty (30) days advance written notice. You may notify DRINKS of your intent to cancel your Account and terminate this Agreement by emailing app.support@drinks.com and then following the specific instructions provided to you. Without limitation of its other termination rights under this Agreement, DRINKS may notify you of its intent to cancel your Account and terminate this Agreement upon thirty (30) days advance notice to you by emailing you at the primary contact email you provided when you created your account. Notwithstanding anything to the contrary herein, either Party may terminate this Agreement upon notice to the other Party if the other Party materially breaches this Agreement and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both Parties, including all licenses granted hereunder, shall immediately terminate (except that all payment obligations accrued prior to termination or expiration shall survive); (b) each Party shall comply with the obligations to return or destroy all Confidential Information of the other Party, as set forth in Section 10; and (c) all liabilities accrued under this Agreement prior to the effective date of termination will survive expiration or termination of this Agreement for any reason, and any outstanding balance owed to DRINKS for your use of the Services through the effective date of such termination will immediately become due and payable in full, and you will not be entitled to any refunds of any Fees, pro rata or otherwise. Additionally, DRINKS shall have no obligation to retain any of your Content after any termination or expiration of this Agreement and may delete all Content unless required by Applicable Law to retain it.
9. Privacy and Data Protection; Security
By using the Services, you acknowledge and agree that DRINKS’ collection, use, disclosure and protection of the Personal Information (as defined below) and any other information you share with us through your use of the App or the Services, is governed by our Privacy Policy. If DRINKS processes Personal Information on your behalf in order to provide the Services, the Parties acknowledge and agree that DRINKS is a “Service Provider” as defined in the California Consumer Privacy Act, Cal. Civ. Code §§ 1798.100 et seq., including any amendments and any implementing regulations thereto that become effective on or after the effective date of this Agreement (collectively, the “CCPA”). When DRINKS, or any consultant or third-party service provider DRINKS uses to provide the Services (collectively, “TPSPs”), processes Personal Information for you or on your behalf, DRINKS collects, retains, uses, and discloses, and requires its TPSPs to collect, retain, use and disclose, such Personal Information solely for the permitted purposes described in the Agreement.
DRINKS may retain, use, and disclose Personal Information to (a) fulfill its obligations under this Agreement and provide the Services; (b) to provide customer support; (c) for internal business purposes to maintain, evaluate, develop and improve the Services; and (d) to comply with Applicable Law. For purposes of this Agreement, “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal Information does not include any of the following: (a) information that is lawfully made available from federal, state, or local government records; (b) information that relates to a group or category of consumers, from which individual consumer identities have been removed, that is not linked or reasonably linkable to any consumer or household, including via a device (“Aggregate Consumer Information”); and (c) information that cannot reasonably identify, relate to, describe, be capable of being associated with, or be linked, directly or indirectly, to a particular consumer, provided that a business that uses such deidentified information: (i) has implemented technical safeguards that prohibit reidentification of the consumer to whom the information may pertain; (ii) has implemented business processes that specifically prohibit reidentification of the information; (iii) has implemented business processes to prevent inadvertent release of deidentified information; and (iv) makes no attempt to reidentify the information (collectively “Deidentified Information”). DRINKS may create, generate, use, combine and sell Aggregate Consumer Information and Deidentified Information, and any data derived therefrom, for any lawful purpose.
DRINKS uses technical, organizational, and physical measures designed to protect the integrity, confidentiality, security, and availability of Personal Information. Among other measures, only authorized personnel of DRINKS and of our TPSPs with a legitimate need to know are provided access to Personal Information, and these employees and TPSPs are required to treat this information as confidential where applicable. DRINKS’ security program is aligned with applicable industry standards and encompasses information security capabilities that protect the Personal Information you provide to us. Our security program is continuously reviewed and strengthened as necessary to ensure responsiveness to, and protection against, emerging threats. DRINKS maintains a highly qualified workforce and uses external experts to support the program. We administer internal education, training, and communication programs to ensure ongoing awareness and vigilance. We maintain and communicate formal documented policies and standards. We monitor and assess the overall operating effectiveness of our program through risk assessments that include identification and remediation of vulnerabilities and threats. We maintain and test our security incident response plan, and undertake various independent reviews in conjunction with PCI DSS, external audits and internal audits. Various additional operational protections, controls, and processes exist, including but not limited to malware protection, intrusion prevention and detection protocols, user access reviews, network segmentation, implementation and maintenance of network and application firewalls, vulnerability scanning, data encryption, penetration testing, and patching. In addition, DRINKS requires its TPSPs to implement and maintain reasonable security procedures and practices appropriate to the nature of the Personal Information, to protect the Personal Information from unauthorized access, destruction, use, modification, or disclosure.
DRINKS certifies that it understands the obligations set forth in this Section 9 and shall comply with them for the term of the Agreement and for as long as DRINKS processes the Personal Information you provide in connection with the Services. Despite these precautions and the reasonable security measures we have in place, we cannot guarantee that unauthorized persons will not obtain access to Personal Information. DRINKS will notify you in writing if it makes a determination, in its sole discretion, that it no longer able to meet its obligations under this Agreement or under any Applicable Law. You may take reasonable and appropriate steps to help ensure that TPSPs use Personal Information you provide to us in a manner that is consistent with your obligations under Applicable Law, and you may take reasonable and appropriate steps to stop and remediate the unauthorized use of Personal Information upon notice to DRINKS.
10. Confidential Information
During the term of this Agreement, each Party (the “Disclosing Party”) may provide the other Party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services, or other confidential or proprietary information (collectively, “Confidential Information”) in whatever form (written, oral or visual) that is furnished or made available to the Receiving Party by or on behalf of the Disclosing Party that (a) if in tangible form, the Disclosing Party has labeled in writing as proprietary or confidential, (b) if in oral or visual form, the Disclosing Party has identified as proprietary or confidential at the time of disclosure, or (c) is of a character that is commonly and reasonably regarded as confidential or proprietary. For the avoidance of doubt, the Services, all DRINKS documentation, digital or otherwise, pertaining to the use, set-up or configuration of the App or the Services, and all enhancements and improvements thereto, will be considered the Confidential Information of DRINKS.
The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except for exercising its rights and performing its obligations under this Agreement. The Receiving Party will limit access to the Confidential Information to its employees and contractors who have a need to know, who are subject to confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall, upon request, provide the Disclosing Party written notice certifying compliance with this sentence, unless prohibited by Applicable Law.
The confidentiality obligations set forth in this Section 10 will not apply to any information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) the Receiving Party can prove, by clear and convincing evidence, was already known to the Receiving Party without restriction at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees or contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly (to the extent legally permitted) notifies the Disclosing Party in writing of such required disclosure and reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order. Any breach or threatened or attempted breach of this Section 10 may result in immediate, irreparable harm for which monetary damages would be an inadequate remedy. If a court of competent jurisdiction finds that the Receiving Party has breached (or attempted or threatened to breach) any of the obligations set forth in this Section 10, the Receiving Party agrees that, without any additional findings of irreparable injury or other conditions to injunctive relief, it will not oppose the entry of an appropriate order compelling its performance and restraining it from any further breaches (or attempted or threatened breaches).
11. ModificationsWe reserve the right, in our sole discretion, to update or change any portion of the App or Services at any time. We will provide you with reasonable advance notice of changes to the App or Services that materially adversely affect your use of the Services or your rights under this Agreement by sending an email to the primary contact email address you provide in your Account, by providing notice through the App administrative console, or by similar means. In any event, DRINKS may make changes that materially adversely affect your use of the App, the Services or your rights under this Agreement at any time and with immediate effect for legal, regulatory, fraud prevention, or security reasons. Unless we indicate otherwise in our notice (if applicable), any changes to this Agreement will be effective immediately upon posting such updated terms at this location, and your continued access to or use of the App or the Services thereafter constitutes your acceptance of the changes and consent to be bound by the Agreement as amended. If you do not agree to the amended Agreement, you must stop accessing and using the App and the Services.
12. Disclaimer of Warranty
THE APP AND THE SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DRINKS DISCLAIMS ALL GUARANTEES AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, QUALITY, TIMELINESS, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, DRINKS FURTHER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, THAT THE SERVICES SATISFY ALL OF YOUR REQUIREMENTS. DRINKS DOES NOT WARRANT THAT SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER HARMFUL COMPONENTS OR LIMITATIONS, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. NO INFORMATION ADVICE OR SERVICES OBTAINED BY YOU FROM DRINKS OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO 60 DAYS FROM THE DATE OF PURCHASE OF THE SERVICES, AS APPLICABLE. HOWEVER, SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE.
13. Limitation of Liability and Damages
DRINKS WILL HAVE NO LIABILITY WITH RESPECT TO THE APP, THE SERVICES OR DRINKS’ OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSSES OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES RESULTING IN ANY WAY FROM THE SERVICES, THE APP, OR THE INTELLECTUAL PROPERTY, EVEN IF DRINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU UNDERSTAND THAT DRINKS IS NOT RESPONSIBLE FOR ANY RESULTING TAXES, PENALTIES, FINES OR INTEREST FEES YOU MAY INCUR AS A RESULT OF INCORRECT OR INCOMPLETE INFORMATION THAT YOU PROVIDE, OR SETTINGS THAT YOU SELECT, IN THE APP OR IN CONNECTION WITH YOUR USE OF THE SERVICES. IN NO EVENT WILL DRINKS BE LIABLE FOR ANY LOSS, COST, LIABILITY OR DAMAGES INCURRED AS A RESULT OF YOUR RECEIPT OF, OR PARTICIPATION IN, THIRD-PARTY SERVICES OR THIRD-PARTY WEBSITES. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, DRINKS’ ENTIRE CUMULATIVE LIABILITY TO YOU UNDER THIS AGREEMENT FOR ANY REASON FROM OR RELATING TO THIS AGREEMENT WILL BE LIMITED TO THE FEES PAID OR PAYABLE BY YOU TO DRINKS DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM FOR DAMAGES OR, IF NO FEES APPLY, THEN ONE HUNDRED U.S. DOLLARS ($100). THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BUT NOT LIMITED TO, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS. THE RELATIONSHIP BETWEEN YOU AND YOUR CUSTOMERS IS STRICTLY BETWEEN YOU AND THE CUSTOMER, AND DRINKS IS NOT OBLIGATED TO INTERVENE IN ANY DISPUTE ARISING BETWEEN YOU AND ANY CUSTOMER. UNDER NO CIRCUMSTANCES WILL DRINKS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR OTHER DAMAGES WHATSOEVER, THAT RESULT FROM OR RELATE TO YOUR RELATIONSHIP WITH ANY CUSTOMER. THESE LIMITATIONS WILL APPLY EVEN IF DRINKS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN DRINKS AND YOU. DRINKS WOULD NOT BE ABLE TO PROVIDE THE SERVICES WITHOUT SUCH LIMITATIONS.
14. Indemnification
You shall indemnify, defend and hold harmless DRINKS, and any related DRINKS entities, and the directors, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “Claims”) of or by a third party to the extent that such Claim is based upon or arises out of: (a) your breach of any representation, warranty, obligation or covenant under this Agreement; (b) your gross negligence or willful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to DRINKS granted by you to any customer, prospective customer or other third party; (d) your use of the DRINKS App and Services; (e) your breach of any term of this Agreement (including any documents or terms it incorporates by reference); (f) an allegation or contention that your products or services infringe the intellectual property or other rights of a third party; (g) all taxes including, but not limited to, federal, provincial, state, local or other governmental sales, value added, goods and services, harmonized, excise or other taxes, fees or charges now in force or enacted in the future, and including any audits or penalties related thereto; (h) the performance, non-performance or improper performance of your products or services; (i) your relationship with any customer; and (j) any breach of Applicable Law by you.
15. Relationship of the Parties
You agree that you are not a contractor, employee, agent, joint venturer or partner of DRINKS for any reason, and you act exclusively on your own behalf and for you and your customers’ benefit, and not on behalf, or for the benefit, of DRINKS. DRINKS does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of services for your customers.
16. Third-Party Applications
DRINKS is not responsible for and does not in any way endorse any third-party applications or websites linked or connected to by the App or the Services.
17. Entire Agreement
This Agreement constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written, electronic, or oral communications, representations, agreements, or understandings between the Parties with respect thereto. Except as specified in Section 11 (Modifications) above, this Agreement may not be modified or amended except by a written instrument executed by both Parties. Your terms of purchase are inapplicable.
18. Severability
If any portion of this Agreement is determined to be invalid or unenforceable by any court, then to the fullest extent permitted by law, that provision will be deemed modified to the extent necessary to make it enforceable and consistent with the original intent of the Parties and all other provisions of the Agreement will remain in full force and effect.
19. No Waiver
No waiver of any provision of this Agreement, nor any consent by a Party to the breach of, or departure from any provision of this Agreement will in any event be binding on or effective against such Party unless it is in writing and signed by such Party, and then the waiver or consent will be effective only in the specific instance and for the purpose for which it was given.
20. Attorneys’ Fees
DRINKS shall have the right to collect from you its reasonable costs and necessary disbursements and attorneys’ fees incurred in enforcing this Agreement.
21. Legal Notices
Unless otherwise expressly stated in this Agreement, any notice or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to the primary email address you provided when creating your Account, if to you, and to legal@drinks.com, if to DRINKS; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice via mail to you will be sent to the address you provide in your Account, and notice via mail to DRINKS will be sent to 1125 E. Broadway #173, Glendale, CA, 91205, Attention: Legal Department.
22. Assignment
All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. DRINKS will be permitted to assign this Agreement without notice to or consent from you. You will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without DRINKS’ prior written consent, to be given or withheld in DRINKS’ sole discretion. Transfer or assignment may result from merger, change of control, or other forms of transfer. To submit a request for DRINKS’ consent to assignment or transfer, contact legal@drinks.com.
23. Force Majeure
If the performance of any part of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action (including, but not limited to, any law, regulation or embargo prohibiting the performance contemplated under this Agreement or the failure or refusal of a government agency to issue a license required for any performance pursuant to this Agreement), labor disputes, act of God or any cause beyond the reasonable control of that Party, the Party will be excused from such performance to the extent that it is prevented, hindered or delayed by such cause provided such Party (a) provides written notice of such circumstances to the other Party as soon as practicable; (b) uses commercially reasonable efforts to avoid or mitigate such circumstances, and (c) uses best efforts to resume performance as soon as practicable upon the cessation of the circumstances.
24. Governing Law
This Agreement and all matters in connection with the Agreement will be governed by the laws of the state of California, without regard to any laws, treaties, or conflicts of laws principles that would apply the law of any other jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. For any Claims or causes of action arising out of the Agreement, the Parties agree to the exclusive jurisdiction of, and venue in, the state and federal courts located in the County of Los Angeles, State of California.
25. Export Controls
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. By using the Services, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
26. Survival
All provisions of this Agreement which, by their nature, are intended to survive termination hereof shall so survive and shall be binding upon the Parties and their successors and permitted assigns including, without limitation, the introduction; all definitions; Section 4 (No Professional Tax Opinion or Legal Advice); Section 5 (DRINKS’ Rights); Section 6 (Your Responsibilities); Section 7 (Payment of Fees and Taxes); Section 8 (Term and Termination); Section 9 (Privacy and Data Protection; Security); Section 10 (Confidentiality); Section 12 (Disclaimer of Warranties); Section 13 (Limitation of Liability and Damages); Section 14 (Indemnification); Section 16 (Third-Party Applications); Section 17 (Entire Agreement); Section 18 (Severability); Section 19 (No Waiver); Section 20 (Attorneys’ Fees); Section 21 (Legal Notices); Section 24 (Governing Law); Section 26 (Survival); and any representations and warranties, whether express or implied stated herein.