PourThat terms of service
Last updated: August 16, 2023
Welcome to PourThat! Please read the following Terms of Service carefully.
We Scan, LLC d/b/a PourThat (“PourThat,” “we,” “our,” or “us”) makes its website, mobile applications, software, services, extensions, and application programming interfaces (collectively, the “Services”) available to you (“Customer”, “you”, or “your”) for your use subject to the terms and conditions in this Terms of Service Agreement (the “Agreement”).
By accessing or using the Services in any way, you agree to be bound by this Agreement. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not use the Services. The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose.
IMPORTANT NOTICE: YOUR USE OF THE SERVICES IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 9 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. Please carefully review Section 9 of this Agreement for more information.
1.1.PourThat’s Rights in and to PourThat Materials.Our Services, our systems, and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans, specifications, or reports, that are provided or used by PourThat or any subcontractor engaged by PourThat in connection with the Services or otherwise comprise or relate to the Services, the designs of each of the foregoing, and any and all intellectual property rights in the foregoing (collectively, the “PourThat Materials”) shall at all times remain the exclusive property of PourThat and its third-party licensors. Any third-party software included in the Services is licensed subject to the additional terms of the applicable third-party license.
1.2.Grant of License. On the condition that you comply with all your obligations under this Agreement, and subject to additional terms of any third-party licenses applicable to third-party software included in the Services, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, right to access and use the Services solely for your own personal purposes. We reserve all rights not otherwise expressly granted by this Agreement. If you do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to the Services. Any use of the Services that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Services. You are not acquiring any rights in or to the PourThat Materials other than a non-exclusive right to access and use the Services solely in accordance with the term of this Agreement.
1.3.Modification. We may discontinue or alter any aspect of the Services, restrict the time the Services are available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to the Services without prior notice or liability to you. Your only remedy is to discontinue using the Services if you do not want a modification we make to the Services.
1.4.Removal of Access. Your access to the Services is provided on a temporary basis with no guarantee for future availability. You agree that we may immediately suspend or terminate your access to the Services or any part thereof. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to the Services; (3) unexpected technical or security issues or problems; (4) extended periods of inactivity; or (5) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
1.5.Defects and Availability. We use commercially reasonable efforts to maintain the Services, but we are not responsible for any defects or failures associated with the Services, any part thereof, any Feedback you provide, or any damages (such as lost profits or any other consequential or indirect damages) that may result from any such defects or failures. The Services may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time to time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that the Services are provided over the Internet, so the quality and availability of the Services may be affected by factors outside of our control. The Services are not intended to be available 100% of the time and we do not make any representations, warranties, or guarantees regarding the reliability or availability of the Services. We do not represent, warrant, or guarantee that the Services will always be completely free of human or technological errors. We will not be liable to you or any third party for damages or losses related to the Services being unavailable.
1.6.Restrictions.You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of the Services in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Services are based; (3) use the Services or PourThat Content (defined below) to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of the Services, servers, or networks connected to the Services or take any other action that interferes with any other person’s use of the Services; (5) decrypt, transfer, create Internet links to the Services, or “frame” or “mirror” the Services on any other server or wireless or Internet-based device; (6) use or merge the Services or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to the Services; (8) use the Services for unlawful purposes; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with the Services; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Services for any reason; (11) access or attempt to access any other user’s account; (12) use any PourThat Content made available through the Services in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into the Services any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm the Services, or perform any such actions; (14) introduce into the Services any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter the Services, PourThat Content, or notices on the Services; (16) connect to or access any PourThat computer system or network other than the Services; or (17) impersonate any other person or entity to use or gain access to the Services. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
2. Content and materials on the services
2.1.PourThat Content. The Services may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “PourThat Content”) that are protected by copyrights, patents, trademarks, trade secrets, or other intellectual property laws. You understand and agree that these rights in any PourThat Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the PourThat Content.
2.2.User Content. The Services may allow you to upload, download, store, or transmit user-generated data or information (“User Content”). By submitting User Content to the Services, you grant PourThat a nonexclusive, worldwide, right and license to use, copy, and display User Content to provide the Services. You further grant PourThat a nonexclusive, perpetual, worldwide, royalty-free right and license to use, copy, display, reproduce, modify, edit, adapt, publish, translate, display, distribute, sell, transfer, sublicense, create derivative works of, and compilations incorporating, User Content to provide benchmarking, performance improvement, marketing and advertising, and other lawful purposes in connection with the Services. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, USER CONTENT THAT YOU POST OR PROVIDE THROUGH THE SERVICES. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, POURTHAT CONTENT, OR OTHER CONTENT YOU FIND ON THE SERVICES ARE SOLELY YOUR RESPONSIBILITY. Under no circumstances will we be liable in any way for User Content or for any loss or damage of any kind incurred as a result of the transmission of any of User Content through the Services.
2.3.User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of PourThat or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, PourThat, or the Services; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; (e) hacking or cracking; (f) illicit drugs and drug paraphernalia; (g) sale of tobacco, or tobacco-related products; or (h) the sale of weapons or ammunition. We reserve the right, but have no obligation, to pre-screen, review, flag, filter, modify, refuse, and remove any and all User Content from the Service. We cannot and do not assume any responsibility for your use or misuse of PourThat Content, User Content, or any other information transmitted, monitored, stored, or received while using the Services. We reserve the right to amend or delete any PourThat Content (along with the right to terminate or restrict use of or access to the Services) that in our sole discretion violates any of the above. By providing User Content via the Services, you further understand and agree that you do so at your own risk and that we are not responsible for the damage or loss of any such User Content. You agree that we are not liable for any legal violation caused by your use or misuse of PourThat Content or other information transmitted, monitored, stored, or received while using the Services.
2.4.Feedback. We welcome your comments, feedback, information, or materials regarding the Services or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
2.6.Ownership of Intellectual Property. PourThat or its licensors exclusively own all right, title and interest in and to the Services, the PourThat Materials, the PourThat Content, and Feedback, including but not limited to, all ideas, inventions, inferences, discoveries, source and object software code, developments, derivative works, enhancements, upgrades, fixes and patches, formats and processes, and all images, trademarks, service marks, logos and icons displayed or related therein or thereto (collectively, “PourThat IP”). Except as expressly provided herein, you have no right, license, or authorization with respect to any of the PourThat IP. You shall not assert any claims to the contrary or otherwise do anything inconsistent with the allocation of ownership herein, including, but not limited to, challenging the validity of the authorizations or any intellectual property rights granted herein. In the event you are ever deemed to be the owner of any of the PourThat IP, you shall immediately take all necessary steps to evidence, transfer, perfect, vest, or confirm PourThat’s right, title and interest in the PourThat IP. PourThat is not transferring or granting to you any right, title, or interest in or to (or granting you any license or other permissions in or to) any PourThat IP. The sole exception of the foregoing reservation of rights is the limited, non-exclusive, and non-transferable authorization explicitly granted in Section 1.2, and which shall automatically terminate upon expiration or termination of this Agreement. Any unauthorized use of any PourThat IP, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Trademarks owned by third parties are the property of those respective third parties.
3.2.Unauthorized Use and Information Changes.You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your account or any other breach of security. You are responsible for maintaining the confidentiality of your username and password (both to your PourThat account and any other third party login) and are fully responsible for all activities that occur under your account. You also agree that you will provide truthful and accurate information during the registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates another person or entity, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
3.3.Storing Credentials. The Services may allow you to store your Entity Login so that you can be automatically logged in each time you access the Services. If someone else has access to your device, application, or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any damages to PourThat or the Services resulting from unauthorized access to the Services from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
3.4.Users. You may allow certain members of your management team (“Managers”) to establish unique usernames and passwords, all of which will be linked to and made a part of your account (“Management Logins”). To the extent that you enable any Managers to create Management Logins, you will be responsible for any and all activities that occur under the Management Logins (whether or not such activities are authorized by you). You will ensure that all persons with access to your account (whether through Management Logins or your Entity Login) will comply with the terms and conditions set forth in this Agreement.
4. ACCESS THROUGH MOBILE DEVICES
4.1.Mobile Use.Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using the Services on your mobile, handheld device (“Mobile Device”). You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using the Services, for data downloading, e-mail, text messages, for roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES.
4.2.Additional Terms Applicable on the Android Market/Google Play.PourThat and you both agree and acknowledge that neither Google Inc., nor any of its subsidiaries or affiliates (“Google”), are a party to this Agreement, and you will look to PourThat for any recourse, and not Google. You agree to be bound by the then-current Android Market Terms of Services as found on Google’s website: http://www.google.com/mobile/android/market-tos.html ) and the Google Play Terms of Services (located at https://play.google.com/about/play-terms.html). You acknowledge that Google has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in either the Android Market Terms of Services or Google Play Terms of Service, the Android Market Terms of Services or Google Play Terms of Services, whichever is applicable, will prevail and govern.
4.3.Additional Terms Applicable to iOS Devices.PourThat and you both agree and acknowledge that neither Apple Inc., nor any of its subsidiaries or affiliates (“Apple”), are a party to this Agreement, and you will look to PourThat for any recourse, and not Apple. You agree to be bound by the then-current Apple Media Services Terms and Conditions as found on Apple’s website: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html . You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to our Services. To the extent there is a conflict between any of the terms contained herein and those set forth in the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions will prevail and govern.
5.1.General.This Section 5 of the Agreement governs your sale of food and beverage items (“Products”) through the Services. PourThat does not sell, offer to sell, or solicit sales of Products: our Services enable you to upload menus describing Products that are available for sale to your individual restaurant or bar patrons (“Patrons”). When Patrons search for a Product, the Services show them its availability, price and other information based on their location, Order history (including recommendations based on such Order history), and other information that you may provide. Our Services may be limited or not available at all in some places due to local law or other restrictions.
5.2.Orders. All orders for Products (each, an “Order”) placed by a Patron are subject to your acceptance. Once an Order is placed, PourThat will transmit the Order to you (either directly or through an integration partner), and you can then accept and complete the Order. We and you reserve the right to cancel or refuse any Order for any reason at any time prior to completion, including after an Order has been submitted, whether or not the Order has been confirmed.
5.3. Payment. To receive Orders through the Service, you must (i) be registered with a PourThat integration partner, (ii) already utilize a supported payment processor, and/or (iii) register as a merchant through our third-party payment processer(s) by establishing a merchant account with such entity (“Merchant Account”) and executing a separate agreement with such third-party payment processor, if requested. If applicable, rou represent and warrant to PourThat that you have, and will maintain throughout the Term, a Merchant Account. PourThat is neither responsible nor liable for any issues, errors, incorrect amounts, processing delays or complications, payment disputes, or other problems that may arise in connection with any payment processing activities that originate through or make use of the Services. PourThat makes no representations or warranties on behalf of its third-party payment processor. Should you have any problems with payment-related matters, you shall direct inquiries to (1) the Patron; (2) the Patron’s bank, clearinghouse, or credit card company; or (3) our third party payment processor as applicable. You agree to indemnify, defend, and hold harmless PourThat, its affiliates, its parent company, its successors and assigns, and all of their respective officers, directors, members, managers, employees, contractors, and agents from and against any and all claims, liabilities, losses, costs, fees (including attorney’s fees) or other damages arising from or related to (a) your relationship with the third-party payment processor and/or (b) any matters involving payment processing, reconciliation of outstanding balances, and/or closing of Orders or other transactions that you have initiated, accrued, or requested through the Services.
5.4.Service Fees. PourThat and/or our third-party payment processor may charge certain fees for your access to, or use of, the Services (“Fees”), which such fees are subject to change from time to time. Additional details regarding Fees can be accessed through your Merchant Account, may be set forth in your agreement with PourThat, or may be viewable through PourThat’s integration partner. If you fail to pay or remit the Fees for any reason, then your account and your right to access the Services will be suspended without any notice to you. If your account is suspended, PourThat may automatically terminate your account at a time determined by PourThat in its sole discretion. In all instances, you will pay and be responsible for paying any and all sales, use, excise, personal property or other taxes of similar nature levied upon Fees or your access to or use of the Services. In its sole discretion, PourThat may offer a trial period with limited or no Fees from time-to-time as a promotional matter.
5.5.Age of Majority. Prior to delivering any Product, you should require each Patron to present a government-issued identification card, evidencing his or her age, consistent with applicable legal requirements. You acknowledge and agree that the Services are not designed to verify that any Patron is of the legal age to purchase the Product he or she has specified in an Order, and all responsibility, liability, and risk lies with either you or the Patron, as determined by applicable law. Further, the Services are neither designed nor intended to be used by you as a substitute for your own independent judgement as a Patron’s age, sobriety, or capacity to imbibe or consume the Products he or she purchases under any Order. You reserve the right to withhold delivery of the Products under any Patron’s Order containing alcohol if such Patron appears or the recipient of the delivery appears intoxicated when receiving delivery of such Products. We shall not be liable to you or any Patron for any independent decision you make to withhold Products from a Patron under any circumstance.
6.2.Systems Representations. You represent that you shall, at all times during the term, procure, set up, maintain, and operate in good repair, at your sole cost and expense, all equipment, resources, technology, or systems, including computer hardware and equipment, any Internet access, third party software, and telecommunications services (such as a smart phone), necessary for you to access and use the Services (collectively, the “Customer Systems”). You further represent that in connection with your Customer Systems, you shall employ all physical, administrative, and technical controls, screening and security procedures, and other safeguards necessary to securely administer the distribution and use of the Services, and protect against any unauthorized access to or use of the Services.
6.3.Feedback Representations. In the event you provide any Feedback via the Services, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
7. Disclaimers of Warranty
TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON THE SERVICES WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF THE SERVICES WILL BE CORRECTED, THAT THE SERVICES AND ANY CONTENT OR INFORMATION FOUND ON THE SERVICES WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY CONTENT OR OTHER MATERIALS DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO ADVICE OR INFORMATION, OBTAINED BY YOU THROUGH THE SERVICES OR ANY PRODUCT WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE SERVICES ARE NEITHER DESIGNED FOR, NOR INTENDED TO BE, USED TO DETERMINE A PERSON’S AGE, SOBRIETY, OR CAPACITY TO IMBIBE ALCOHOLIC BEVERAGES. POURTHAT DISCLAIMS ANY RESPONSIBILITY TO YOU RELATED TO (I) THE PURCHASE BY ANY PATRON OF ANY ALCOHOLIC PRODUCT THROUGH THE SERVICES; (II) ANY OVERCOMSUMPTION BY ANY PATRON OF ALCOHOLIC PRODUCTS AND THE DIRECT AND INDIRECT CONSEQUENCES OF SUCH OVERCONSUMPTION; (III) ANY ILLEGAL ACTIVITY OR FRAUD PERPETRATED BY YOU INCLUDING, BUT NOT LIMITED TO, THE ILLEGAL SALE OF ALCOHOL TO MINORS; (IV) YOUR VIOLATION OF APPLICABLE LAW, INCLUDING THE ILLEGAL SALE OF ALCOHOL BY YOU DUE TO ANY COURT ORDER, ADMINISTRATIVE ORDER, RESTRAINING ORDER, OR OTHER TEMPORARY OR Permanent STATUS; AND (V) ANY OTHER CLAIM, PENALTY, VIOLATION, FINE, FEE (INCLUDING ATTORNEYS FEES), OR OCCURENCE ARISING FROM YOUR USE OR MISUSE OF THE SERVICES.
POURTHAT DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO YOU OR ANY PATRON UNDER OR IN CONNECTION WITH ANY “DRAM SHOP” LAWS, STATUTES, ORDINANCES, ADMINISTRATIVE LAWS, OR CASE LAW (COLLECTIVELY, “DRAM SHOP LIABILITY”), INCLUDING BUT NOT LIMITED TO, ANY LIABILITY ARISING UNDER OR RELATED TO Tex. Alco. Bev. Code Ann. §§ 2.02, 57.09, 106.14, and 16 Tex. Admin. Code §§ 50.1 – 50.32 or any similar state law. YOU FURTHER ACKNOWLEDGE AND AGREE THAT ANY DRAM SHOP LIABILITY ARISING FROM OR RELATED TO ANY OVERCONSUMPTION SHALL BE SOLELY DETERMINED AND RESOLVED BETWEEN YOU, THE PATRON, AND THE STATE OR GOVERNMENT AGENCY INVOLVED AS APPLICABLE.
8. Indemnity; LIMITATION OF LIABILITY
8.1.Indemnity. You agree to defend, indemnify, and hold harmless PourThat, our officers, members, managers, employees, partners, and agents from and against any and all claims, liabilities, damages, losses, demands, or expenses, including attorney’s fees and costs and expenses, arising out of or in any way connected with: (a) your use OR MISUSE of our SERVICES, (b) your violation of this Agreement, (c) any USER CONTENT you provide through our SERVICES, (d) your violation of any law or the rights of any third party, (e) your negligence or willful misconduct; (F) THE SALE BY YOU OF ANY ALCOHOLIC PRODUCT THROUGH THE SERVICES; (G) ANY ILLEGAL ACTIVITY OR FRAUD PERPETRATED BY YOU INCLUDING, BUT NOT LIMITED TO, THE ILLEGAL SALE OF ALCOHOL TO MINORS; (H) YOUR VIOLATION OF APPLICABLE LAW, INCLUDING THE ILLEGAL SALE OF ALCOHOL BY YOU DUE TO ANY COURT ORDER, ADMINISTRATIVE ORDER, RESTRAINING ORDER, OR OTHER TEMPORARY OR Permanent STATUS; AND (I) ANY OTHER CLAIM, PENALTY, VIOLATION, FINE, FEE (INCLUDING ATTORNEYS FEES), OR OCCURENCE ARISING FROM YOUR USE OR MISUSE OF THE SERVICES, INCLUDING DRAM SHOP LIABILITY.
8.2.Limitation of Liability.UNDER NO CIRCUMSTANCES SHALL POURTHAT BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH: (I) THE USE OF OR INABILITY TO USE OUR SERVICES (II) ANY CLAIM OR CLAIMS FOR WHICH POURTHAT HAS DISCLAIMED UNDER SECTION 7; (III) ANY CLAIM OR CLAIMS YOU HAVE AGREED TO INDEMNIFY POURTHAT FOR UNDER SECTION 8.1. IF YOU ARE DISSATISFIED WITH OUR SERVICES, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICES. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICES IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO THE LESSER OF (A) THE AMOUNT OF FEES YOU HAVE PAID TO POURTHAT WITHIN THE LAST THREE (3) MONTHS; OR (B) ONE HUNDRED DOLLARS ($100.00). WITHOUT LIMITING SECTION 10.7, THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.Dispute Resolution and Governing Law, Jurisdiction and Costs
9.1.Governing Law.This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Texas without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Fort Worth, Texas, and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Fort Worth, Texas. You irrevocably submit and consent to the personal jurisdiction of such courts.
9.2.Dispute Resolution.To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to the Services or PourThat Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. You agree to attempt to resolve any Disputes by negotiation with us (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and PourThat agree to resolve such Dispute through confidential binding arbitration as set forth below.
9.3.Binding Arbitration. If you and PourThat are unable to resolve a Dispute through informal negotiations, either you or PourThat may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and PourThat may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
9.4.Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have under Article 13 of the State Bar Act to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
10.1.Term.This Agreement is effective upon your acceptance and will continue in full force until terminated by you or us. You may terminate this Agreement at any time by immediately discontinuing all access to the Services. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to the Services or any part thereof.
10.2.Independent Contractors.You understand and expressly agree that you and PourThat are independent contractors and not agents or employees of the other party. Neither you nor PourThat has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
10.3.Consent to Do Business Electronically.We use and rely upon electronic records and electronic signatures for the execution and delivery of this Agreement and any other agreements, undertakings, notices, disclosures or other documents, communications or information of any type sent or received in accordance with this Agreement and in performing our obligations and exercising our rights under this Agreement. Neither you nor PourThat will prevent or inhibit in any way the other party from printing, saving, or otherwise storing electronic records sent or otherwise made available to the other party. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby. You will bear your own costs and expenses in conducting business electronically, and will undertake all steps necessary, including software, hardware, and other equipment upgrades and purchases, in order to be able to conduct business electronically.
10.4.Equitable Relief.You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
10.6.Entire Agreement.This Agreement and any hyperlinked policies and procedures constitute the entire agreement between you and PourThat with respect to the subject matter hereof and supersede all prior agreements, both oral and written, with respect to the subject matter hereof. We may revise and update this Agreement from time to time, and will post the updated Agreement to the portal. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of the Services will constitute your agreement to any new provisions within the revised Agreement.
10.7.Waiver; Severability.Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect.
10.8.Assignment.You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement, nor delegate your duties hereunder to any other person, without our prior written consent. Any purported assignment without our prior written consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
10.9.Survival.The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
10.10.Contact Us.With questions, email our support services at firstname.lastname@example.org .