Welcome to the BottleCapps App (the "App"), 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 YOUR RELATIONSHIP WITH BOTTLECAPPS.
IN CONSIDERATION FOR ACCESS TO THE APP, YOU AGREE TO READ THE AGREEMENT CAREFULLY BEFORE FURTHER ACCESSING OR USING THE APP. BY FURTHER ACCESSING OR USING THE APP, YOU REPRESENT, WARRANT, AND ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE AGREEMENT, THAT YOU HAVE THE AUTHORITY AND CAPACITY AND ARE LEGALLY ENTITLED TO ENTER INTO THE AGREEMENT, AND THAT YOU AGREE TO BE BOUND BY THE AGREEMENT, WHICH GOVERNS YOUR ACESS TO AND USE OF THE APP AND YOUR RELATIONSHIP WITH BOTTLECAPPS. THE AGREEMENT IS A LEGALLY BINDING ELECTRONIC CONTRACT BETWEEN YOU AND BOTTLECAPPS, AND GOVERNS YOUR ACCESS TO AND USE OF THE APP. YOU MUST ACCEPT THIS AGREEMENT TO FURTHER ACCESS OR USE THE APP. IF YOU DO NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS HEREIN, CLOSE THE APP IMMEDIATELY AND DO NOT FURTHER ACCESS OR OTHERWISE USE THE APP.
Eligibility. THE APP IS NOT INTENDED FOR CHILDREN. YOU MUST BE AT LEAST TWENT ONE (21) YEARS OF AGE TO USE THE APP. By accessing the App, you agree that such access is for your sole and personal use. When using the App, 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, you thereby represent and warrant that you are not a competitor of BottleCapps, are not accessing or using the App on behalf of a competitor of BottleCapps, and will not use the App in a competitive atmosphere with BottleCapps.
Your Account. In order to use the App, you must first download the App to your mobile device and then sign up and create a personal account ("Your Account") by Sharing certain User Information with the App 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.
Your Privacy. BottleCapps respects your privacy and is committed to protecting the personally identifiable information we collect from you as you access and use the App. When you access or use the App, the App will automatically collect certain information, such as your IP address and GPS location. By accessing or using the App you are also agreeing to allow the App to directly call phone numbers, take pictures and videos, access your location via GPS, read the contents of your SD card, and modify or delete the contents of your SD card. When you use the App, you represent and warrant that you understand that BottleCapps and your Retailer will have access to the User Information that you Share with the App, and that BottleCapps, your Retailer, and other Users will have access to certain of Your Content that you Share via the App and may use and store such Content. By Sharing Your Content and your User Information via the App, you represent and warrant that you understand that BottleCapps may Share such Content with your Retailer, other Users, and any third party BottleCapps deems necessary or as required by applicable law or by proper legal, governmental, or regulatory authority. The User Information that you voluntarily provide via the App may be used by BottleCapps and your Retailer for administrative purposes; for demographic analysis; for authentication purposes; to properly operate, maintain, and provide you with the features and functionality of the App to customize and personalize features for you and otherwise enrich your experience when using the App; to enable our affiliates to assist us in operating, maintaining, and providing products and services to you; to enable us to carry out our obligations arising from any contracts and subscriptions you entered into with BottleCapps or your Retailer; to notify you about changes to the Agreement or the App; to investigate and help prevent potentially unlawful activity or activities that threaten the integrity of the App or any BottleCapps IP; to investigate allegations of fraud or violations of the Agreement; to enforce or apply our rights under the Agreement or any cause of action at law or in equity; or to protect the rights, property, or safety of any of our Users, your Retailer, our affiliates, or other parties; to improve the quality and design of the App and our services; and to create new features, promotions, functionality, and services by storing, tracking, and analyzing your preferences and trends. Additionally, the Content that you share may be used by BottleCapps to determine your product and service preferences and tailor marketing of similar products and services to you and for demographic analysis. FOR USERS FROM THE EUROPEAN ECONOMIC AREA OR OTHER NON-U.S. TERRITORIES, PLEASE NOTE THAT ANY CONTENT YOU VOLUNTARILY SHARE WILL BE TRANSFERRED OUTSIDE THE EUROPEAN ECONOMIC AREA OR SUCH OTHER NON-U.S. TERRITORY FOR USE BY US FOR ANY OF THE PURPOSES DESCRIBED HEREIN.
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, the Console, and the System and how the App, 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 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 is at your own risk.
BottleCapps IP. 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, 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 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 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, 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 any 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.
Reservation of Rights. BottleCapps reserves all rights not expressly granted in the Agreement unless otherwise noted in writing by BottleCapps.
Prevention of Unauthorized Access or Use. 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.
Prohibitions. You may not, nor shall you permit any third party to, directly or indirectly: (i) modify, edit, copy, reproduce, create any Derivative Work from, or reverse engineer, alter, enhance, use, or exploit any BottleCapps IP for any purpose unless otherwise stated in writing by BottleCapps; (ii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of the System; (iii) "scrape" the Site or the System, including, but not limited to, the App and the Console, or use any bot, spider, scraper, data miner, or automated agent to access or use the System or gain access to or use any information on System; (iv) decipher, decompile, reverse engineer, reverse compile, or otherwise dissemble or attempt to decipher, decompile, reverse engineer, reverse compile, or otherwise dissemble any BottleCapps IP, including, but not limited to the source and object code thereof, or otherwise determine the source code of any BottleCapps IP; (v) rent, sell, lease, license, sublicense, lend, distribute, or otherwise transfer or assign Your Account or any BottleCapps IP or any portion thereof to any third party, or otherwise use or allow the use of Your Account, any BottleCapps IP, or any portion thereof to be used for any purpose outside the purposes of the Agreement or on behalf of any third party other than BottleCapps or your Retailer; (vi) remove any proprietary notices from any BottleCapps IP; (vii) post or otherwise make available any BottleCapps IP, or any portion thereof, in any form, available on any publicly available forum, including, but not limited to the Internet; (viii) use a previous version of the App after you have received a new version and are asked to discontinue using the previous version; (ix) use or access any BottleCapps IP for any unauthorized purpose; (x) use any BottleCapps IP in a competitive manner with BottleCapps; (xi) use any BottleCapps IP to violate any U.S. federal, state, or local law, rule, or regulation; (xii) interfere with or disrupt the integrity or performance of System or the Content contained thereon; or (xiv) attempt to gain unauthorized access to the App, the Console, the Site, the System, or any other BottleCapps IP, system, or network.
Your Content and User Information. BottleCapps hereby allows you to Share Your Content and your User Information via the App.
Sharing Your Content. The App allows you to Share Your Content over the System with, between, and amongst BottleCapps, your Retailer, and other parties with access to the System. By choosing to Share Your Content via the App, you represent and warrant that you are solely responsible for Your Content and the ramifications and results of your choice to Share Your Content.
Sharing Your User Information. The App allows you to Share your User Information over the System with, between, and amongst BottleCapps 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.
Retention of Ownership. BottleCapps does not claim any ownership rights in any of Your Content or your User Information Shared via the App. By simply Sharing Your Content or your User Information via the App, 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 must comply with the Agreement.
License Grants to BottleCapps. By Sharing Your Content via the App, 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 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, 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 or our services, or as required by applicable law or by proper legal, governmental, or regulatory authority. By downloading and installing the App, 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, 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 for marketing purposes.
License Grant to Other Users. By Sharing Your Content via the App, 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. By Sharing Your Content via the App, you represent, warrant, and affirm that: (i) you are solely responsible for Your Content and all the consequences, ramifications, and results of Sharing Your Content via the App; (ii) you are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and for BottleCapps, our Retailers, and other Users to use Your Content as necessary to exercise the licenses granted by you in this Section VII of the Agreement and in the manner contemplated by BottleCapps and the Agreement; (iii) Your Content does not and will not slander, defame, or libel any other person; (iv) the use of Your Content as permitted herein does not and will not infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (v) Your Content does not contain any viruses, adware, spyware, worms, or other malicious code; and (vi) Your Content is free of any digital rights management, including any software designed to limit the number of times Your Content may be copied or played. Violators of this Section VII of the Agreement may be subject to criminal and civil liability. BottleCapps reserves all rights and remedies against any Users who violate the Agreement.
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:
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.
Counter Notice. 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:
The Counter Notice must be submitted to BottleCapps' Designated Copyright Agent by mail or email as set forth below:
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.
Trademark Notice. 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.
Derivative Work. 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.
Unsolicited Suggestions. 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.
Links to Sites or Services. The App and the Site may include links or references to websites or services ("Linked Sites"). Linked Sites are provided for your convenience and information only. BottleCapps does not control the availability and content of Linked Sites. Access and use of Linked Sites, including the information, materials, products, and services on or available through Linked Sites is solely at your own risk. Any concerns regarding Linked Sites, or any information, resources, or services therein, should be directed to that particular Linked Site.
Transactions with Retailer. The App 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. 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, 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 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 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. 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 are subject to change without notice. Whilst 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. 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. Other Users use the App to access and use the System for their own purposes in accordance with the Agreement.
User Disputes. 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.
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, 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, the System, or the Site at any time with or without notice.
Changes to the Agreement. Notwithstanding Section XXX of this Agreement, BottleCapps may modify, alter, or otherwise update the Agreement at any time. Such modifications shall be effective immediately upon posting on the App. You are responsible for regularly reviewing the Agreement. Your continued access to or use of the App constitutes your agreement to all such modifications.
Acknowledgement. THE SYSTEM, INCLUDING, BUT NOT LIMITED TO, THE APP AND THE CONSOLE, IS CURRENTLY UNDER 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, 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.
User Warranties. 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."
Indemnification. 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.
Equitable Relief. You agree and acknowledge that the protections in Sections VI, VII, X, and XI the 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.
Liquidated Damages. 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' actual damages resulting from such breach and shall not be construed as penalty or punitive damages against you.
Law and Venue. You agree that 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 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 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 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 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.
Dispute Resolution. 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 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.
Attorney Fees. 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.
International Use. BottleCapps makes no representation that the Site or the System is appropriate or available for use in locations outside the United States. If you choose to access or use the Site or the System from a location outside the U.S., 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 Section XVII of 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, unless the waiver or modification is made in accordance with Section XVII of the Agreement or executed in writing between the parties in writing. The parties further agree that the provisions of this Section XXX of the 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.
Severability. 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 is 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.
Assignment. 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.
Headings. 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.
Relationship of the Parties. 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.
Construction. Any capitalized terms used in the Agreement but not defined in the Agreement shall have the meaning given it by context in the common technical parlance of the Texas technology community. Additionally, when context requires, singular nouns and pronouns include the plural and possessive.
Notices. All notices, requests, demands, consents, permissions, and other communications hereunder shall be in writing by email: a) to BottleCapps at firstname.lastname@example.org; b) to you via the App 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.
Contact Information. Any comments, complaints, or requests for further information can be directed to email@example.com.