Effective on: February 26, 2020.
THESE TERMS OF SERVICE (“TERMS”) GOVERN YOUR USE OF OUR SERVICE.
1. ACCEPTANCE OF TERMS
A. Lick the Whip Inc. (“LTW”, “we” or “our”) provides its Services (as defined below) to you through its web site located at LickTheWhip.com (the “Site”), subject to these Terms.
B. By accepting the Terms, or by accessing or using the Services or Site, you represent and acknowledge that you have read, understood, and agree to be bound by these Terms, and that the information you provide in registering to the Services is accurate, complete, and is yours or within your right to use. If you are entering into these Terms on behalf of a company or another legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “you,” “your” or related capitalized terms herein shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Services.
C. You acknowledge that these Terms constitute a contract between you and LTW, even though it is electronic and is not physically signed by you and LTW. You further acknowledge that these Terms govern your use of the Services and, except for written agreements or addendums signed by the parties that specifically modify or that conflict with these Terms, these Terms supersede any other agreements between you and LTW absent a written agreement signed by you and LTW that expressly states these Terms are superseded by it.
2. AVAILABILITY OF THE SITE AND TERMINATION OF ACCOUNT
- You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control, Site access may be interrupted, suspended or terminated. You further understand that there may be interruptions in service or events on third party sites that may affect your use of the Services (defined below) and that are beyond our control to prevent or correct. Interruptions in the Services or delays in delivering the Services that are beyond our control shall not serve as a basis for a refund or as a basis not to comply your contractual obligations.
- If LTW terminates your account without cause, your sole and exclusive remedy will be a pro rata refund of your membership fee, to the extent one was paid and to the extent it was paid in advance. If your credit card has already been charged for the purchase and your order is cancelled, LTW will refund to the credit card used for the purchase the amount charged.
- LTW RESERVES THE RIGHT, AT ANY TIME, TO CHANGE ITS PRICES AND BILLING METHODS FOR SERVICES SOLD.
3. DESCRIPTION OF SERVICES
LTW’s “Services” include all products and services offered through the Site, including without limitation, alcohol penetrated whip cream. LTW has the right to refuse or cancel any orders placed for Services described incorrectly, listed at an incorrect price, having an incorrect rebate listed, or containing any other incorrect information or errors in the listing of the Services.
4. THIRD PARTY SERVICES—EXTERNAL SITES
The Services may contain links to, or otherwise may allow you to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Third Party Services”) in conjunction with our Services. If you decide to access and use such Third Party Services, be advised that your use is governed solely by the terms and conditions of such Third Party Services, and we do not endorse, are not responsible for, and make no representations as to such Third Party Services, their content or the manner in which they handle your data, or they provide their services. LTW is not liable for any damage or loss caused or alleged to be caused by or in connection with your access, use or purchase of any such Third Party Services, or your reliance on the privacy practices or other policies of such Third Party Services.
5. REGISTRATION AND ORDERING
- Registration. No registration is required in order to use the Site; however, you must create an account prior to completing any purchase. Users are required to provide their name, date of birth, email address, zip code, and a password of 6-16 characters in length. This information is necessary in order for us to contact you about the Services on the Site for which you have expressed interest. It is optional for you to provide a phone number, but we encourage you to do so in order to have an alternate means of contact regarding your purchase(s).
A. Payments. Unless otherwise agreed to in writing by LTW, Services must be paid for at the time of purchase.
B. Authorization to Charge Your Credit Card. By submitting your credit card information to LTW, you authorize LTW to store your payment card information directly or with a third party service provider to charge the billing source you have provided for your account according to the Services purchased.
C. Billing Privacy. LTW uses a third party intermediary to manage credit card processing and this intermediary is not permitted to store, retain, or use your billing information except to process your credit card information for LTW.
D. Taxes. Unless otherwise stated, our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against LTW based on its income. We will invoice you for such taxes if we believe we have a legal obligation to do so.
7. INTELLECTUAL PROPERTY RIGHTS
A. LTW, its affiliates and licensors maintain and reserve all rights, title and interest in and to all our patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how, and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). Intellectual Property Rights also include, all text, prices, graphics, logos, icons, images, product names, brand names, audio clips and software on or provided through the Site (“Site Content”). The rights granted to you to use the Services under these Terms do not convey any additional rights in the Services or in any Intellectual Property Rights associated therewith.
B. Unless LTW, its affiliates or licensors claim an interest or ownership right in information submitted by you through the Site, you own the information you provide LTW through the Site or input on third party websites through the Services. You grant LTW a nonexclusive, revocable, worldwide, perpetual, unlimited fully paid up and royalty-free right to us to use copy, prepare derivative works of, distribute, publish, remove, retain, add, process, or analyze the foregoing described information for the sole purpose of providing you with the Services. By providing information to us or to third parties through the Services, you represent and warrant that you are entitled to and authorized to submit the information and that the information is accurate, not confidential, and not in violation of any contractual restrictions or other third party rights.
C. LTW shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you. LTW and LTW’s other product and service names, and logos used or displayed on the Services are registered or unregistered trademarks of LTW (collectively, “Marks”), and you may not attempt, now or in the future, to claim any rights in the Marks, degrade the distinctiveness of the Marks, or use the Marks to disparage or misrepresent LTW, its services or products.
D. All rights, title and interest in and to the Services and its components, including all related intellectual property rights, will remain with and belong exclusively to LTW and its third party vendors. Nothing herein or on the Site will confer any license or right to any Intellectual Property, which LTW expressly reserves for itself, its affiliates and licensors.
8. ACCOUNT REGISTRATION AND SALE OF ALCOHOLIC BEVERAGES
The Services include the sale of alcoholic beverages. To be eligible to use the Site or the Services, you must meet the following criteria and represent and warrant that you: (1) are 21 years of age or older or the required legal age in your geographic location for purchasing the Services; (2) are not currently restricted from the Services, or not otherwise prohibited from having a LTW account, (3) are not a competitor of LTW or are not using the Services for reasons that are in competition with LTW; (4) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; and (5) will not violate any rights of LTW, including intellectual property rights such as patent, copyright or trademark rights. By purchasing any of the Services, you warrant that the foregoing representations are true and correct.
9. USE OF THE SERVICE
A. You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than as expressly permitted by these Terms; (b) modify, adapt or hack the Services to falsely imply any sponsorship or association with LTW, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (c) use the Services in any unlawful manner, (d) use the Services in any manner that interferes with or disrupts the integrity or performance of the Site or the Services and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Site or the Services; (f) use the Site or the Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (g) attempt to use any method to gain unauthorized access to parts of the Site requiring an account or that have restricted access; (h) use automated scripts to collect information from or otherwise interact with the Site or the Services; (i) deep-link to the Site for any purpose (other than LTW’s home page), unless expressly authorized in writing by LTW; (j) try to use, or use the Services in violation of these Terms; (k) use the Services for any purpose competitive with LTW; or (l) use, sell, reproduce, distribute, copy, duplicate, resell, modify, display, or make derivative works of any of the Intellectual Property Rights except for the purchase of Services through the Site.
B. You are responsible for all information, data, text, messages or other materials that you post or is otherwise transmitted on or through the Site. You are responsible for maintaining the confidentiality of your login and account, and are fully responsible for any and all activities that occur under your login or account. You agree and acknowledge that your login may only be used by one (1) person, and that you will not share a single login among multiple people. You agree that you will not sell, trade or otherwise transfer your login or account to another party. You agree that you are responsible for anything that happens through your account until you cancel and close your account or prove that your account security was compromised due to no fault of your own.
10. DATA PRIVACY AND SECURITY
A. We shall maintain appropriate administrative, physical and technical safeguards to protect, to the extent reasonably possible, the security, confidentiality and integrity of your personal data.
B. You agree that LTW can access your account information in order to respond to your service requests and/or as necessary, in our sole discretion, to provide you with the Services.
11. DISCLAIMER OF WARRANTIES AND LIABILITY
A. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND LTW EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
B. We do not monitor content published by third parties through the Site and we are not responsible for said content published through the Site. Notwithstanding the foregoing, LTW reserves the right to delete, move, or edit messages or materials, including, but not limited to, advertisements, public postings, and messages, that we, in our sole discretion, deem necessary to be removed.
12. LIMITATION OF LIABILITY
A. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL WE OR OUR AFFILIATES OR OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THESE TERMS OR THE SERVICES, REGARDLESS OF WHETHER WE HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
B. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, LTW’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THESE TERMS CLAIMED BY YOU OR ANY THIRD PARTY ARISING FROM THE SERVICES, SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) PAYMENTS MADE BY YOU TO LTW FOR THE SERVICES RELATED TO THE CLAIM AT ISSUE. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.B. IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF LTW WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
C. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, LTW’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You agree to defend, indemnify, and hold harmless LTW from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from your breach of these Terms or your obligations under these Terms, or your access to, use, misuse or illegal use of the Site or any Services provided by or through LTW. LTW will provide you notice of any such claim, suit, or proceeding. LTW reserves the right to assume the exclusive defense and control of any matter that is subject to indemnification under this section, in which case you agree to cooperate with any reasonable requests to assist LTW’s defense of such matter.
LTW may assign these Terms or any of its rights under these Terms to a third party. You may not, without the express written consent of LTW, assign these Terms or any of your rights under these Terms, directly, by operation of law or otherwise, without the prior written consent of LTW. Subject to the foregoing restrictions on assignment, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns. Any assignment in violation of this Section will be void. These Terms shall be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties hereto.
15. ENTIRE AGREEMENT; AMENDED TERMS
EXCEPT TO THE EXTENT THAT LTW AND YOU HAVE ENTERED INTO AND EXECUTED ANOTHER FULLY INTEGRATED WRITTEN AGREEMENT THAT EXPRESSLY SUPERSEDES THIS AGREEMENT AND THAT IS SIGNED BY YOU AND LTW:
A. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, all previous understandings whether oral or written having been merged herein. No representations or warranties have been made other than those expressly set forth herein. Without limiting the foregoing, the parties have not relied on any oral statements that are not included in the Terms. The Terms may not be changed, modified, renewed, extended, or discharged or any covenant or provision hereof waived except by an agreement in writing signed by both parties. These Terms supersede prior versions of these Terms.
B. Notwithstanding the foregoing, we may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify you of such changes.
If any provision of these Terms, or the application thereof under certain circumstances, is held to be invalid or unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms, or the application of such provision under other circumstances, shall remain in full force and effect.
17. RELATIONSHIP; INEDEPENT CONTRACTOR
Nothing herein contained shall be so construed as to constitute the parties as principal and agent, employer and employee, partners or joint venturers, nor shall any similar relationship be deemed to exist between the parties. Neither party shall have any power to obligate or bind the other party, except as specifically provided herein.
Sections 1 (Acceptance of Terms), 6 (Billing, Plan Modifications and Payments), 7.A-F. (Intellectual Property Rights) 11 (Disclaimer of Warranties and Liability), 12 (Limitation of Liability), 13 (Indemnification), 14 (Assignment), 15 (Entire Agreement; Amended Terms), 16 (Severability), 17 (Relationship; Independent Contractor), 18 (Survival), 19 (Governing Law), 20 (Arbitration of Disputes), 21 (No Waiver) and 22 (Risk of Loss), 23 (Force Majeure), and 28 (Notices) will survive any termination of these Terms.
19. GOVERNING LAW
The validity, interpretation and performance of these Terms shall be governed by the laws of the State of Michigan without giving effect to the conflicts of laws provisions or principals thereof. You agree to the exclusive jurisdiction of the courts located within the State of Michigan to resolve any disputes between the parties and you agree that proper venue is in Wayne County, Michigan or in the Federal District Courts located in Detroit, Colorado.
20. ARBITRATION OF DISPUTES
A. If we cannot amicably resolve any legal dispute or damage claim that should arise from your interactions with the Site, the Services, and/or LTW, you agree to resolve any such dispute or damage claim by arbitration. The arbitration proceeding shall be conducted in Oakland County, Michigan, in accordance with the rules of the American Arbitration Association then in effect with one (1) arbitrator to be selected by mutual agreement of both you and LTW. If we cannot agree on an arbitrator, then the American Arbitration Association shall select an arbitrator from the National Panel of Arbitrators. The laws of the State of Michigan shall apply to the arbitration proceedings. You agree that the arbitrator cannot award punitive damages to either of us and agree to be bound by the arbitrator’s findings. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, which shall include, but not be limited to, the courts within Oakland County, Michigan. The fees and expenses paid to the American Arbitration Association for arbitration, including without limitation, the cost of the arbitrator, will be equally divided between LTW and you.
B. You agree that (i) no arbitration proceeding hereunder whether a CONSUMER DISPUTE or a BUSINESS DISPUTE shall be certified as a class action or proceed as a class action, or on a basis involving claims brought in a purported representative capacity on behalf of the general public, other customers or potential customers or persons similarly situated, and (ii) no arbitration proceeding hereunder shall be consolidated with, or joined in any way with, any other arbitration proceeding. YOU AGREE TO ARBITRATE A CONSUMER DISPUTE OR BUSINESS DISPUTE ON AN INDIVIDUAL BASIS AND YOU WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION. We agree to the same limitations set forth in this section.
21. NO WAIVER
LTW’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.
22. RISK OF LOSS
Upon purchase of any products, title to, and ownership of, all wine and other products passes from LTW to you at the warehouse and state it is purchased in and you take all responsibility for shipping it from the warehouse to the destination designated in your order. By arranging for transportation of the products, LTW is providing a service to, and acting on behalf of the purchaser. By utilizing this service from LTW, you are representing that you are acting in compliance with your local and state laws regarding the purchase, transportation and delivery of products and your actions do not cause LTW to violate any applicable law. Your further represent that you have obtained the required permission, paid any required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of the product and are legally entitled to purchase and possess the quantities of the product ordered.
23. FORCE MAJEURE
LTW shall be excused from performance under these Terms if LTW is prevented, forbidden or delayed from performing, or omits to perform, any act or requirement under this Terms by reason of: (a) any provision of any present or future law or regulation or order of the United States of America, or any state thereof, (b) any act or omission of a third party, or (c) any act of God, emergency condition, war, computer or telecommunications failure or other circumstance beyond the control of LTW.
24. RETURN POLICY
A. Returns and cancellations are only accepted within 10 days of the date of purchase. To be eligible for a return, your item must be unused and in the same condition that you received it. It must also be in the original packaging.
B. To return your purchased product, please contact us at [email protected]. If the product is received by us in unused and undamaged condition and in its original packaging, we will refund your purchase.
25. DAMAGED PRODUCT
If you receive your purchased product and it has been damaged during shipment, please email us at [email protected] within 3 days of receiving the shipment. Include a description of the damages and include pictures if possible. This information is extremely helpful to us in making sure that our products are packaged and shipped properly. Provided that the purchased product was damaged during shipping and not by you, we will arrange for the damaged products to be replaced.
LTW only replaces purchased products if they are defective or damaged when you receive them, provided that they were defective at the time of shipment or damaged during shipping, and not damaged by you.
27. DIGITAL MILLENNIUM COPYRIGHT ACT NOTICE
A. If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible through the Site or Services, please notify LTW’s copyright agent, as set forth in the Digital Millennium Copyright Act of 1998 (DMCA). For your complaint to be valid under the DMCA, you must provide the following information in writing: an electronic or physical signature of a person authorized to act on behalf of the copyright owner; identification of the copyrighted work that you claim is being infringed; identification of the material that is claimed to be infringing and where it is located on the Site or Services; information reasonably sufficient to permit LTW to contact you, such as your address, telephone number, and email address; a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and a statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
B. LTW’s Designated Copyright Agent can be reached to receive notifications of claimed infringement as follows:
Attention: Copyright Agent: Lick the Whip, Inc. at [email protected]
For clarity, only DMCA notices should go to LTW’s Designated Copyright Agent. Any other feedback, comments, requests for technical support or other communications should be directed to LTW via [email protected].
LTW will give you any necessary notices by posting them on the Site. You authorize LTW to send notices via electronic mail as well if LTW decides, in its sole discretion, to do so. You agree to check the Site for notices, and that you will be considered to have received a notice when it is made available to you by posting on the Site.