BOTTLECAPPS APP AND WEBSITE
TERMS OF SERVICE
Effective as of October 7, 2022
Welcome to the BottleCapps App and Website (the “App and Website”), a product of Critical Telephone Applications, Inc. d/b/a BottleCapps (“BottleCapps”, “we”, or “us”) that is being provided to you on behalf of our service partner retail liquor store (“Retailer”) to allow you to search your Retailer’s product inventory, order products and services from your Retailer, gain access to product and service promotions, and track your frequent shopper/loyalty credits all from the convenience of your iOS or Android mobile device.
THE FOLLOWING TERMS OF SERVICE (THE “AGREEMENT”) GOVERN YOUR ACCESS TO AND USE OF THE APP AND WEBSITE AND YOUR RELATIONSHIP WITH BOTTLECAPPS.
THE APP AND WEBSITE IS NOT INTENDED FOR CHILDREN. YOU MUST BE AT LEAST TWENTY-ONE (21) YEARS OF AGE TO USE THE APP AND WEBSITE. When using the App and Website, you agree to comply with all applicable laws of your home territory and the territory in which you are physically present from which you access the App and Website, you thereby represent and warrant that you are not a competitor of BottleCapps, are not accessing or using the App and Website on behalf of a competitor of BottleCapps, and will not use the App and Website in a competitive atmosphere with BottleCapps.
In order to use the App and Website, you must first download the App and Website to your mobile device and then sign up and create a personal account (“Your Account”) by Sharing certain User Information with the App and Website and choosing a password. You are solely and personally responsible for maintaining the confidentiality and security of Your Account and the password associated with it. You may not authorize others to use Your Account or rent, sell, lease, license, sublicense, lend, distribute, or otherwise transfer or assign Your Account to any other person. You agree to immediately notify BottleCapps of any actual or suspected breach of security or unauthorized use of Your Account.
Security of Information
BottleCapps maintains our systems in accordance with commercially reasonable industry standards to preserve the integrity and security of your User Information and Your Content. BottleCapps is constantly seeking to improve the App and Website, the Console, and the System and how the App and Website, the Console, and the System Shares your User Information and Your Content. We cannot, however, ensure or warrant the security of any such information you Share via the App and Website and you do so at your own risk. Once we receive your User Information and Your Content, we make commercially reasonable efforts to ensure the security of our systems. However, this is not a guarantee that such information may not be accessed, disclosed, altered, or destroyed by breach of any of our physical, technical, or managerial safeguards. “Perfect security" does not exist on the Internet, and your use of the App and Website is at your own risk.
BottleCapps Intellectual Property
You hereby represent, warrant, and acknowledge that all BottleCapps IP is owned, controlled, or licensed by BottleCapps and is protected by copyright, as a trademark, by patent, or by other intellectual property rights. Unless otherwise noted, the App and Website, the Site, and the Console, and all intellectual property on or that constitutes the Site and the System, including, but not limited to the App and Website and the Console is BottleCapps IP, including, but not limited to, the object code and underlying source code thereof, the tradenames thereof and trademarks thereon, and the selection, sequence, "look and feel", and arrangement of items thereon. You agree that you shall acquire no rights in any BottleCapps IP unless otherwise noted in writing by BottleCapps. You may not copy, reproduce, frame, republish, download, upload, post, transmit, distribute, hyperlink, or exploit any BottleCapps IP for commercial use in any way beyond what is permitted by the Agreement without the prior written consent of BottleCapps.
License to User
BottleCapps hereby grants you a limited, personal, non-exclusive, non-assignable, non-transferable, non-sub-licensable, freely and fully revocable license to access and use the App and Website in order to Share Your Content and your User Information with BottleCapps and your Retailer via the System, to Share Your Content with other Users via the App and Website, to access the System in order to purchase products and services from your Retailer, to contact BottleCapps and your Retailer, to access and use Content Shared via the System by BottleCapps, your Retailer, other Users, and our affiliates, to store your User Information and Your Content on the System for such purposes, and to scan product bar codes in order to determine if your Retailer carries such product. You acknowledge and agree that with exception to this limited license you have no right to modify, edit, copy, reproduce, create derivative works, or reverse engineer, alter, enhance, or in any way exploit the System or any other BottleCapps IP in any manner unless otherwise noted in writing by BottleCapps. This license terminates automatically, without notice to you, if you breach the Agreement.
BottleCapps reserves all rights not expressly granted in the Agreement unless otherwise noted in writing by BottleCapps.
BottleCapps reserves the right to exercise whatever lawful means BottleCapps deems necessary to prevent unauthorized access to or use of any BottleCapps IP, including, but not limited to, technological barriers, IP mapping, and directly contacting your internet service provider or law enforcement regarding such unauthorized use.
You may not, nor shall you permit any third party to, directly or indirectly:
We maintain a number of administrative, physical, and technological measures to protect the confidentiality, privacy, and security of your Personal Information. These controls vary based on the nature of the information. Unfortunately, no website, server or database is completely secure or "hacker proof." We therefore cannot guarantee that Personal Information you provide will not be disclosed, misused, or lost by accident or by the unauthorized acts of others.
We may retain Personal Information after we cease providing Services to you for the purpose of fraud monitoring, detection, and prevention. We also retain Personal Information to comply with our tax, accounting, and financial reporting obligations, as required by our contractual commitments, and as otherwise mandated by applicable law. When we retain data, we do so in accordance with any limitation periods and records retention obligations that are imposed by applicable law.
If you have consented to receive marketing materials from us, we will retain your Personal Information for as long as we have your consent to send you marketing materials. You may withdraw this consent at any time following the instructions in this Privacy Notice. Additionally, we indefinitely retain data that is anonymized, de-identified, and/or aggregated in a manner that removes identifiable Personal Information from it.
Our Platform and Services may contain links to other websites. Please be aware that we are not responsible for the privacy practices of other websites, regardless of whether the link was provided by us or posted by a user on the Platform. Bottlecapps does not monitor the content, safety, or suitability of such external websites. As such, this Privacy Notice only applies to information collected by us through the Services or on the Platform. We do not control and are not responsible for any use of your Personal Information by or through any third-party sites. By clicking a link to an external website, you assume the risk that Personal Information you provide on that website may be viewed or used by third parties. When visiting any website, it is in your best interest to review that site's privacy notice and terms of service before providing any Personal Information.
Personal Information About Underage Users and Children
You must be at least twenty-one (21) years of age to access the Platform or Services in the United States and eighteen (18) years of age to access the Platform and Services in Canada (the “Minimum Age” in that country). We do not knowingly request or collect Personal Information from any person under the Minimum Age. If a user submitting Personal Information is suspected of being younger than the Minimum Age in your jurisdiction, we will require the user to close his or her account, and we will also take steps to delete that person’s information as soon as possible. If you know of any individuals under the Minimum Age using the Platform, please email us at firstname.lastname@example.org so we can take action to prevent such access.
If you have any questions about these Terms of Service or our privacy practices, or would like to contact Bottlecapps’s Privacy Officer, please send an email to email@example.com or by write to us at:
Attn: Privacy Officer
PO Box 1059
Grapevine, TX 76099
We may occasionally update this Terms of Service. If we make material changes, we will notify users by updating the “last updated” date at the top of this Terms of Service. Your continued use of our Platform or Services after we have posted the revised Terms of Service constitutes your agreement to be bound by the revised Terms of Service to the extent permitted by law.
The App and Website allows you to Share your User Information over the System with, between, and amongst BottleCapps BOTTLECAPPS Rewards, and your Retailer. By choosing to Share your User Information, you represent and warrant that your User Information is true, up to date, and that you are solely responsible for your User Information and the ramifications and results of your choice to Share your User Information. You also agree that Apple is not a sponsor of, nor endorses the use of, BOTTLECAPPS Rewards. By using the App and Website, you also affirm that you conform to the eligibility requirements set forth in the section entitled “Eligibility”.
Retention of Ownership
BottleCapps does not claim any ownership rights in any of Your Content or your User Information Shared via the App and Website. By simply Sharing Your Content or your User Information via the App and Website, you continue to retain ownership of Your Content and your User Information and continue to have the right to use and license Your Content and your User Information in any way you choose unless otherwise stated herein. However, any of Your Content and your User Information Shared via the App and Website must comply with the Agreement.
License Grants to BottleCapps
By Sharing Your Content via the App and Website, you thereby grant BottleCapps a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share Your Content with BottleCapps, your Retailer, other Users, and our affiliates for the purposes of the App and Website or our services or as required by applicable law or by proper legal, governmental, or regulatory authority and a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide license right and license to use, display, perform, distribute, modify, adapt, abridge, exploit, and promote Your Content in any way and in any commercial or non-commercial medium or form without compensation.
By Sharing your User Information via the App and Website, you thereby grant BottleCapps a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to Share your User Information with BottleCapps, our Retailers, and our affiliates for the purposes of the App and Website or our services, or as required by applicable law or by proper legal, governmental, or regulatory authority. By downloading and installing the App and Website, you thereby agree that BottleCapps, Your Retailer, and our affiliates may send you “push notifications” if your device supports such communications.
License Grants to Retailer
By using the App and Website, you thereby grant your Retailer a paid-in-full, royalty free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide right and license to use your User Information and Your Content for the purposes herein, specifically including, but not limited to providing you with the products and services you order and to contact you via the App and Website for marketing purposes.
License Grant to Other Users
By Sharing Your Content via the App and Website, you thereby grant to other Users a limited, non-exclusive license to access and use Your Content. Notwithstanding the foregoing, you also hereby grant to each other User at least a limited, non-exclusive, license to view, download, including, without limitation download to a portable device, print, and have printed Your Content for personal use.
Your Content Representations and Warranties
You are solely responsible for Your Content and all the consequences, ramifications, and results of Sharing Your Content via the App and Website. By Sharing Your Content via the App and Website, you represent, warrant, and affirm that:
Bottlecapps Rewards Amendment
Bottlecapps may amend, modify or end any content within Bottlecapps Rewards in whole or in part from time to time, without notice, including suspension of the entire reward program, by posting an amended agreement on the website. Such updated version of the agreement will be effective at the time we post it. Bottlecapps also reserves the right to expire accrued points of users at any time.
Any fraudulent, deceptive, unauthorized, or unlawful participation is strictly prohibited, and may result in immediate termination or disqualification from the rewards program. The reward points cannot be sold, copied, shared or transferred. Any violation of the provisions in this TOS may result in cancelation of the account and the expiration of all accumulated points and rewards.
Digital Millennium Copyright Act Policy
BottleCapps takes intellectual property rights very seriously and demands the same from all Users. BottleCapps will respond to allegations of copyright violations in accordance with the Digital Millennium Copyright Act [17 U.S.C. 512] (the “DMCA”). The DMCA provides a process for a copyright owner to give notification to BottleCapps concerning alleged copyright infringement (“Notice of Infringement”). When a valid Notice of Infringement is received, BottleCapps shall respond under this process by taking down the offending Content.
In accordance with the DMCA, upon taking down the Content, BottleCapps shall take reasonable steps to contact the owner of the removed Content so that a counter-notification (“Counter Notice”) may be filed. On receiving a valid Counter Notice, BottleCapps will generally restore the Content in question, unless BottleCapps receives notice from the original provider of the Notice of Infringement that a legal action has been filed seeking a court order to restrain the alleged infringer from engaging in the infringing activity.
THESE NOTICES OF INFRINGEMENT AND COUNTER NOTICES ARE REAL-WORLD LEGAL NOTICES PROVIDED OUTSIDE THE AGREEMENT. BOTTLECAPPS MAY PROVIDE COPIES OF SUCH NOTICES TO THE PARTICIPANTS IN THE DISPUTE OR THIRD PARTIES, AT BOTTLECAPPS’S DISCRETION AND AS REQUIRED BY APPLICABLE LAW OR BY PROPER LEGAL, GOVERNMENTAL, OR REGULATORY AUTHORITY; THE AGREEMENT DOES NOT PROTECT INFORMATION PROVIDED IN THESE NOTICES.
Notice of Infringement
If you are a copyright owner and have a good faith belief that any Content posted on or transferred through the System infringes your copyright(s), you may send BottleCapps’ “Designated Copyright Agent”, as identified hereinafter, written Notice of Infringement pursuant to the DMCA. This Notice of Infringement must contain the information specified below in the following format:
The Notice of Infringement must be submitted to BottleCapps’s Designated Copyright Agent by mail or email as set forth below:
Mail: Critical Telephone Applications, Inc.
Attn: Designated Copyright Agent
PO Box 1059
Grapevine, Texas 76099
Subject: DMCA Notice
Be advised that failure to comply with all of the above requirements may invalidate your Notice of Infringement under the DMCA. BottleCapps’ response to a proper Notice of Infringement will be to remove or disable access to the Content claimed to be infringing and notify the alleged infringer of your claim so he or she can submit a Counter Notice to BottleCapps.
If Your Content was removed or access was blocked and you have a good faith belief that it is not infringing on any copyrighted material, you may send BottleCapps a written Counter Notice pursuant to Section 512 of the DMCA. The Counter Notice must contain the information specified below in the following format:
(i) identify in sufficient detail the Content that BottleCapps has removed or to which BottleCapps has disabled access and the location of the material (e.g., the URL) before it was removed/disabled;
(ii) provide your name, address, telephone number, and email address;
(iii) a statement that you consent to the jurisdiction of the federal district court in which your address is located, and a statement that you will accept service of process from the person who provided notification of the alleged infringing activity;
(iv) provide a statement, made under penalty of perjury, that you have a good faith belief that the material was removed/disabled as a mistake or misidentification of the material; and
(v) provide your physical or electronic signature.
The Counter Notice must be submitted to BottleCapps’ Designated Copyright Agent by mail or email as set forth below:
Mail: Critical Telephone Applications, Inc.
Attn: Designated Copyright Agent
PO Box 1059
Grapevine, Texas 76099
Subject: DMCA Notice
Be advised that failure to comply with all of the above requirements may invalidate your Counter Notice under the DMCA. If the Designated Copyright Agent receives your valid Counter Notice, BottleCapps may restore your removed Content or cease disabling it within ten to fourteen (10-14) business days, unless BottleCapps receives notice from the alleged copyright owner (who filed the initial Notice of Infringement) that said party has filed a court action seeking to stop your alleged infringement.
You agree that in the event that BottleCapps receives a written demand alleging that any of Your Content infringes upon, dilutes, tarnishes, or otherwise violates a party’s trademark rights, BottleCapps may in its sole discretion, remove or disable access to such Content until BottleCapps receives either:
(a) written confirmation from the party sending such demand that the demand is withdrawn or has been resolved or
(b) you submit sufficient evidence to satisfactorily rebut the allegations contained in such demand, the adequacy of such evidence to be determined by BottleCapps in BottleCapps’ sole discretion and which BottleCapps may reject for any reason without penalty or liability to you.
In order for BottleCapps to accept such rebuttal, you expressly acknowledge and agree that such rebuttal shall include:
1) the information set forth in Section VIII hereinabove, except that the such information shall relate to the disputed trademark at issue rather than disputed copyrighted material and
2) an express, irrevocable, and binding obligation pursuant to which you shall indemnify, defend, and hold harmless BottleCapps from damages, costs, or expenses that BottleCapps may incur, in any manner whatsoever, arising out of or in connection with the disputed Content and BottleCapps’ restoration thereof.
The procedures of the DMCA apply only to copyrighted works and expressly exclude any other forms of intellectual property rights, including any rights in trademarks; the process hereinabove is intended only to provide a convenient mechanism for addressing trademark disputes and does not, and shall not, be construed, as imposing any obligation on BottleCapps under the DMCA with regards to response times or the like. BottleCapps is under no obligation to restore access to any removed Content even if you provide the aforementioned rebuttal.
To the extent that you create any Derivative Work absent an explicit agreement with BottleCapps, such Derivative Work shall be owned by BottleCapps and all right, title, and interest in and to each such Derivative Work shall automatically vest in BottleCapps. Such right, title, and interest shall be deemed paid-in-full and royalty free, and BottleCapps shall have no obligation to grant you any right in any such Derivative Work. You hereby irrevocably assign to BottleCapps any and all joint or individual ownership, rights, titles, and interests in and to any and all such Derivative Work, including, but not limited to all:
(a) copyrights, patents, inventions, rights in mask works, trademarks, trade secrets, and other intellectual property rights, and all other rights that may hereafter be vested relating to the Derivative Work, arising under U.S. or any other law, together with all national, foreign, state, provincial, and common law registrations, applications for registration, and renewals and extensions thereof;
(b) goodwill associated with the Derivative Work; and
(c) all benefits, privileges, causes of action, and remedies relating to any of the foregoing, whether before or hereafter accrued, including, but not limited to, the exclusive rights to apply for such registrations, renewals, or extensions, to sue for all past infringements or violations of any the foregoing, and to settle and retain proceeds from any such actions. You further assign to BottleCapps, during the full copyright or patent terms and any extensions or renewals of that term, all copyrights and patents in and to the Derivative Work. In the event that the assignment in this Section of the Agreement does not provide BottleCapps with full ownership, rights, titles, and interests in and to the Derivative Work, you hereby grant BottleCapps an exclusive, freely transferable, freely assignable, irrevocable, paid-in-full, royalty-free, perpetual, fully worldwide license to reproduce, create derivative works from, distribute, publicly display, publicly perform, use, make, have made, offer for sale, sell or otherwise dispose of, and import the Derivative Work in any and every way BottleCapps sees fit, with the right to sublicense each and every such right. Furthermore, you hereby assign and transfer any and all moral rights in any Derivative Work to BottleCapps. You agree where such rights may not be assigned as a matter of law to cooperate fully with BottleCapps during the lifetime of such rights and agree not to take any interest with regard to such rights that is contrary to the will and goals of BottleCapps, and you agree not to exercise any such moral rights without the explicit prior written consent of BottleCapps. Where any such moral rights may not be assigned as a matter of law, but may pass on to your heirs at law, you hereby disclaim any and all such moral rights.
BottleCapps welcomes your feedback, suggestions, and recommendations. By submitting any feedback, suggestions, or recommendations to BottleCapps you agree that BottleCapps may, but shall have no obligation to, use, modify, distribute, copy, and otherwise exploit such feedback, suggestions, or recommendations in any manner, as BottleCapps sees fit, without restriction or limitation of any kind, and you thereby grant to BottleCapps a paid-in-full, royalty-free, freely and fully transferable, freely and fully assignable, freely and fully sub-licensable, irrevocable, perpetual, worldwide license to do so and to allow others to do so, and agree not to permit or prosecute any action or lawsuit on the ground that BottleCapps’ use or alleged use of such feedback, suggestion, or recommendation infringes any of your rights.
Transactions with Retailer
The App and Website is a software application that allows you to purchase products and services from your Retailer (a “Transaction”). You hereby represent and warrant that all Transactions are between you and your Retailer, that BottleCapps is not a party to such Transactions, that BottleCapps bears no responsibility for examining or evaluating the quality or any other aspect of products and services provided by your Retailer, and that BottleCapps shall bear no liability or responsibility to you or any third party resulting from the Transaction or the products or services provided to you by your Retailer. You also agree that unless otherwise stipulated by the Retailer, all sales are final and no refunds are permitted.
BottleCapps is not a bank, credit union, payment processor, or other financial institution. Transactions are processed by your Retailer’s payment processor and point of sale system vendor. By placing a Transaction via the App and Website, you are authorizing your Retailer‘s payment processor and point of sale system vendor to charge your credit card or other payment method. Transactions processed via the App and Website may also be subject to the terms and conditions of your Retailer and your Retailer’s payment processor and point of sale system vendor. BottleCapps does not provide refunds via the App and Website for any Transactions. You hereby agree to address any disputes or refunds regarding any Transaction directly with your Retailer. You hereby represent and warrant that should you dispute any charge that appears on your credit card or other payment statement related to any Transaction that any chargeback shall apply directly to your Retailer.
Product and Service Availability, Timeliness, and Pricing Disclaimer
You hereby represent and warrant that you understand that BottleCapps and your Retailer cannot guarantee the availability of any product or service offered via the App and Website. Furthermore, should you request delivery, neither BottleCapps nor your Retailer can guarantee delivery at any particular time or within any particular period of time.
Additionally, all prices of all products and services displayed in the App and Website are subject to change without notice. While BottleCapps and your Retailer make every effort to provide you the most accurate, up-to-date information, occasionally, one or more products or services may be mis-priced on occasion on the App and Website. In the event a product or service is listed at an incorrect price due to typographical, photographic, or technical error or error in pricing information received from our suppliers, your Retailer shall have the right to refuse or cancel any orders placed for product listed at the incorrect price.
Other Users use the App and Website to access and use the System for their own purposes in accordance with the Agreement.
While BottleCapps reserves the right, but has no obligation, to monitor or moderate disputes between you and other Users, you are solely responsible for your interactions with other Users.
Deleting your information
You may request that we delete your Personal Information from our systems by notifying us at firstname.lastname@example.org. Please note that it may take us several days to verify your identity and process your request. You can also request this by going to the profile section of the app and clicking on the remove profile button.
Off-System Interaction with Other Users
You are solely responsible for Your Content and all the consequences of Sharing Your Content with other Users. You understand that you are solely responsible for any interaction with any other Users that takes place outside of the System whether online or offline.
Changes to the App and Website, the System, and the Site
BottleCapps, our Retailers, and our affiliates are seeking to improve our integration and the services available to you. BottleCapps may discontinue or change any content, service, function, or feature of the App and Website, the System, or the Site at any time with or without notice.
Changes to the Agreement
THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE APP AND WEBSITE AND THE CONSOLE, IS ALWAYS UNDER ONGOING DEVELOPMENT AND TESTING. BOTTLECAPPS, OUR RETAILERS, AND OUR AFFILIATES DESIRE TO OBTAIN INPUT FROM YOU TO ASSIST US IN THE ONGOING DEVELOPMENT OF THE SYSTEM. YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE WILLING TO PROVIDE THAT INPUT. ACCORDINGLY, YOU ACKNOWLEDGE THAT THE SYSTEM MAY CONTAIN ‘‘BUGS’’ AND OTHER ERRORS THAT COULD ADVERSELY AFFECT THEIR USE OR PERFORMANCE; THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE APP AND WEBSITE, MAY CONTAIN INOPERABLE FEATURES, MAY CONTAIN ERRORS, AND MAY BE INCOMPLETE; AND YOU SHOULD TAKE EXTRA CARE IN PRESERVING YOUR CONTENT IN ORDER TO AVOID ANY LOSS OF YOUR CONTENT AS A RESULT OF USING THE APP AND WEBSITE.
Disclaimer of Warranties
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, BOTTLECAPPS DISCLAIMS ALL WARRANTIES, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS WITH REGARDS TO THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE APP AND WEBSITE.
YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE APP AND WEBSITE, IS SOLELY AT YOUR OWN RISK. THE SITE AND THE SYSTEM, INCLUDING, BUT NOT LIMITED TO THE APP AND WEBSITE AND CONSOLE, ALL CONTENT THEREON, AND ALL BOTTLECAPPS IP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED. BOTTLECAPPS DOES NOT WARRANT THAT THE DATA, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SITE OR THE SYSTEM WILL BE UNINTERRUPTED OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS AND DOES NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
You hereby represent and warrant that:
(a) you have the right to enter into and fully perform the mutual covenants contemplated herein, consistent with the Agreement;
(b) there is no outstanding contract, commitment, or agreement to which you are a party that conflicts with the Agreement;
(c) you are not subject to any injunctions or settlement agreement with private or public parties that may limit your ability to comply with the terms of the Agreement;
(d) you shall comply with all applicable laws and regulations;
(e) you understand that use of any product or service, specifically, including, but not limited to, the consumption of any product is at your own risk and BottleCapps and your Retailer shall bear no responsibility resulting from your consumption of any product.
Limitation of Liability and Damages
IN NO EVENT WILL BOTTLECAPPS BE LIABLE TO YOU FOR ANY THIRD PARTY CLAIM FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, YOUR USE OF THE SITE OR THE SYSTEM, OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL BOTTLECAPPS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SITE, THE SYSTEM, ANY OTHER BOTTLECAPPS IP, OR ANY CONTENT SHARED BY YOU, OUR RETAILERS, OR OTHER USERS, OR THAT RESULT FROM YOUR USE OF OR YOUR INABILITY TO ACCESS OR USE THE SITE, THE SYSTEM, ANY OTHER BOTTLECAPPS IP, ANY CONTENT SHARED BY BOTTLECAPPS OR OUR RETAILERS, ANY OF OUR RETAILERS SERVICES, ANY LINKED SITES, OR ANY USER CONTENT, ANY OTHER INTERACTIONS WITH BOTTLECAPPS, OR ANY OF YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, YOUR INTERACTIONS WITH ANY OTHER USERS, OUR RETAILERS, OR THIRD PARTIES EVEN IF BOTTLECAPPS OR AN AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.
IF YOU RESIDE IN SUCH A JURISDICTION, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. THE LIMITATIONS OR EXCLUSIONS OF WARRANTIES, REMEDIES, OR LIABILITY CONTAINED IN THIS AGREEMENT APPLY TO YOU TO THE FULLEST EXTENT SUCH LIMITATIONS OR EXCLUSIONS ARE PERMITTED UNDER THE LAWS OF THE JURISDICTION WHERE YOU ARE LOCATED.
IF YOU ARE CALIFORNIA RESIDENTS, YOU HEREBY AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD BOTTLECAPPS AND OUR RETAILERS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, LOSSES, EXPENSES, OR DAMAGES, INCLUDING REASONABLE ATTORNEY FEES AND EXPENSES, WHICH MAY HEREAFTER ARISE, WHICH BOTTLECAPPS AND OUR RETAILERS MAY SUSTAIN DUE TO OR ARISING OUT OF ANY BREACH OF ANY REPRESENTATION OR WARRANTY MADE HEREIN, YOUR BREACH OF THE AGREEMENT, YOUR NEGLIGENT ACT OR OMISSION, YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER, YOUR ACTS IN VIOLATION OF THE AGREEMENT OR ANY APPLICABLE LAW, STATUTE, OR REGULATION OF THE UNITED STATES OR THE JURISDICTION IN WHICH YOU RESIDE, OR YOUR CONTENT, OR CAUSED OR ALLEGED TO BE CAUSED, DIRECTLY OR INDIRECTLY, BY YOUR ACCESS TO AND USE OF THE SITE, THE SYSTEM, ANY OTHER BOTTLECAPPS IP, OR CONTENT SHARED BY BOTTLECAPPS, OUR RETAILERS, OR OUR AFFILIATES OR YOUR USE OF ANY PRODUCT OR SERVICE FROM YOUR RETAILER.
You agree and acknowledge that the protections in Agreement are directly related to BottleCapps’ goodwill and vital business interests and that a breach of the Agreement would cause BottleCapps significant and irreparable injury, the degree of which may be difficult to ascertain and for which monetary damages may not provide adequate compensation. Accordingly, in addition to any other remedy, BottleCapps will be entitled to seek immediate injunctive relief against such breach or threatened breach in any court of competent jurisdiction, without proving actual damage or posting a bond or other security.
You agree and acknowledge that the protections in Sections VI, VII, and X of the Agreement are directly related to BottleCapps’ goodwill and vital business interests and that such breach of these Sections of the Agreement would cause BottleCapps significant and irreparable injury, the degree of which may be difficult to ascertain. Accordingly, in addition to all other remedies available to BottleCapps, BottleCapps shall be entitled to liquidated damages in the amount of ONE MILLION U.S. DOLLARS ($1,000,000). You agree and acknowledge that these liquidated damages are a fair and accurate estimate of BottleCapps’s actual damages resulting from such breach and shall not be construed as penalty or punitive damages against you.
Law and Venue
You agree that any action at law or in equity arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and Website and the Console, any other BottleCapps IP, any Content Shared by BottleCapps, or BottleCapps, and all suits and special proceedings relating to the Agreement, the Site, the System, including, but not limited to the App and Website and the Console, any other BottleCapps IP, any Content Shared by BottleCapps, or BottleCapps, shall be construed in accordance with and under and pursuant to the laws of the State of Texas, without giving effect to any principles of conflicts of law.
You further agree that any action at law or in equity arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and Website and the Console, any other BottleCapps IP, any Content Shared by BottleCapps, or BottleCapps, and all suits and special proceedings relating to the Agreement, the Site, the System, including, but not limited to the App and Website and the Console, any other BottleCapps IP, any Content Shared by BottleCapps, or BottleCapps, will be filed only in the Dallas Division of the Northern District of Texas or the state courts in and for Dallas, Texas, and you hereby consent and submit to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action and expressly submit to extraterritorial service of process.
You agree that you will first try to resolve any controversy, claim, or dispute arising out of or relating to the Agreement, the Site, the System, including, but not limited to the App and Website and the Console, any other BottleCapps IP, any Content Shared by BottleCapps, or BottleCapps, with the help of a mutually agreed upon mediator in Dallas, Texas. Any costs and fees other than attorney fees associated with the mediation shall be paid by you. Attorney fees associated with the mediation shall be paid by the respective parties.
In the event that BottleCapps must initiate proceedings in connection with or for the enforcement of the Agreement, BottleCapps shall be entitled to recover its cost of suit, including reasonable attorney fees, both at trial and appellate level.
Survivorship of Benefits
The Agreement shall be binding on and inure to the benefit of the respective parties and their executors, administrators, heirs, personal representatives, successors, and assigns.
BottleCapps makes no representation that the Site or the System is appropriate or available for use in locations outside the United States or Canada. If you choose to access or use the Site or the System from a location outside the U.S. or Canada, you do so on your own initiative and you are responsible for compliance with local laws.
Waiver of Modification of Agreement
A waiver or modification of the Agreement or of any covenant, condition, or limitation in the Agreement shall not be valid unless made in accordance with the Agreement or executed in writing between the parties, and evidence of any waiver or modification shall not be offered into or received in evidence in any proceeding, mediation, arbitration, or litigation between the parties arising out of or affecting the Agreement, or the right or obligations of any party under the Agreement. The parties further agree that the provisions of this Agreement may not be waived except as set forth in the Agreement. The failure of BottleCapps to exercise or enforce any right or provision of the Agreement will not constitute a waiver of such right or provision.
To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any terms of the Agreement invalid or otherwise unenforceable in any respect. In the event that any terms of the Agreement are held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from the Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining terms of the Agreement.
Your rights and licenses under the Agreement may not be assigned, transferred, or sub-licensed by you, but BottleCapps’ rights and licenses under the Agreement may be freely and fully assigned, transferred, or sublicensed by BottleCapps without restriction. Any assignment, transfer, or sublicense attempted to be made by you in violation of the Agreement shall be void ab initio.
Hierarchy of Documents
The heading references herein are for convenience purposes only, do not constitute a part of the Agreement, and will not be deemed to limit or affect any of the provisions hereof.
Both you and BottleCapps are independent contractors. The Agreement creates no agency, partnership, joint venture, franchise, or employee-employer relationship between the parties unless otherwise noted in writing by the parties. Both you and BottleCapps represent, warrant, and acknowledge that neither party has the authority to bind the other party or incur any obligation on the other party’s behalf, or represent, cause, or allow to be represented, encourage, aid, or abet any other third party in the making of representations that such third party possesses any such authority in any capacity other than as specified in the Agreement.
All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing by email:
a) to BottleCapps at email@example.com;
b) to you via the App and Website or at the email address or phone number listed in Your Profile and shall be deemed received when transmitted and confirmation of delivery or receipt is received.
Any comments, complaints, or requests for further information can be directed to firstname.lastname@example.org.