InstaDrink-US LLC
User Guidelines – Terms of Service
1. Contractual Relationship
These Terms of Use (“Terms”) govern your access or use, from within the United
States and its territories and possessions, of the applications, websites, content,
products, and services (the “Services,” as more fully defined below in Section 3)
made available in the United States and its territories and possessions by
InstaDrink-US LLC and its parents, subsidiaries, representatives, affiliates,
officers and directors (collectively, “InstaDrink”).
Please read these terms carefully, as they constitute a legal agreement between
you and InstaDrink.
In these Terms, the words “including” and “include” mean “including, but not
limited to.”
By accessing or using the Services, you confirm your agreement to be bound by
these Terms. If you do not agree to these Terms, you may not access or use the
Services. These Terms expressly supersede prior agreements or arrangements
with you. InstaDrink may immediately terminate these Terms or any Services
with respect to you, or generally cease offering or deny access to the Services
or any portion thereof, at any time for any reason.
Important: Please review the Arbitration Agreement set forth below carefully, as
it will require you to resolve disputes with InstaDrink on an individual basis
through final and binding arbitration. By entering this Agreement, you expressly
acknowledge that you have read and understand all of the terms of this
Agreement and have taken time to consider the consequences of this important
decision.
Supplemental terms may apply to certain Services, such as policies for a
particular event, program, activity or promotion, and such supplemental terms
will be disclosed to you in separate disclosures in connection with the
applicable Service(s). Supplemental terms are in addition to, and shall be
deemed a part of, the Terms for the purposes of the applicable Service(s).
Supplemental terms shall prevail over these Terms in the event of a conflict with
respect to the applicable Services.
InstaDrink may amend the Terms from time to time. Amendments will be
effective upon InstaDrink’s posting of such updated Terms at this location or in
the amended policies or supplemental terms on the applicable Service(s). Your
continued access or use of the Services after such posting confirms your
consent to be bound by the Terms, as amended. If InstaDrink changes these
Terms after the date you first agreed to the Terms (or to any subsequent
changes to these Terms), you may reject any such change by providing
InstaDrink written notice of such rejection within 30 days of the date such
change became effective, as indicated in the “Effective” date above. This written
notice must be provided either (a) by mail or hand delivery to our registered
agent for service of process, c/o InstaDrink-US, LLC (the name and current
contact information for the registered agent in each state are available online at
www.InstaDrink.com), or (b) by email from the email address associated with
your Account to: Contact@InstaDrink.app. In order to be effective, the notice
must include your full name and clearly indicate your intent to reject changes to
these Terms. By rejecting changes, you are agreeing that you will continue to be
bound by the provisions of these Terms as of the date you first agreed to the
Terms (or to any subsequent changes to these Terms).
InstaDrink’s collection and use of personal information in connection with the
Services is described in InstaDrink’s Privacy Policy and made available on the
InstaDrink Website or within the InstaDrink App.
2. Arbitration Agreement
Any dispute, whether contractual or otherwise, arising out of or in connection
with this Agreement or these dispute resolution procedures, including any
question regarding its existence, performance, validity, or termination, will be
referred to and finally resolved by arbitration administered by JAMS in
accordance with its Comprehensive Arbitration Rules and Procedures (the
“JAMS Rules”), which are deemed to be incorporated by reference into this
clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal,
state, or local court or agency, shall have exclusive authority to resolve any
disputes relating to the interpretation, applicability, enforceability or formation of
this Agreement, including any claim that all or any part of this Agreement is void
or voidable. The Arbitrator shall also be responsible for determining all threshold
arbitrability issues, including issues relating to whether this Agreement is
unconscionable or illusory and any defense to arbitration, including waiver,
delay, laches, or estoppel. In the event of a dispute, controversy or claim arising
out of or relating in any way to this Agreement, the complaining party shall notify
the other party in writing thereof. Within thirty (30) days of such notice,
representatives of both parties shall attempt to resolve the dispute in good faith.
Should the dispute not be resolved within thirty (30) days after such notice, the
complaining party shall seek remedies exclusively through arbitration.
Furthermore, the parties agree:
i) A party who desires to initiate arbitration must provide the other party with a
written Demand for Arbitration as specified in the JAMS Rules.
ii) The seat, or legal place, of arbitration will be New York, New York
(Manhattan), USA or the JAMS location closest to the complaining party’s place
of business.
iii) The language to be used in the arbitral proceedings will be English.
iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be
nominated and appointed by JAMS in accordance with the JAMS Rules.
v) To the extent permitted by applicable law, the parties agree to keep all
materials related to the dispute, including the existence of the dispute itself,
content of the arbitration, and all the submissions by the parties in the
arbitration and awards rendered by the arbitral tribunal, confidential.
vi) This agreement to arbitrate will not preclude the parties from seeking
provisional remedies from a court of competent jurisdiction. The parties each
retain the right to seek injunctive or other equitable relief in a court of competent
jurisdiction to prevent the actual or threatened infringement, misappropriation or
violation of a party’s copyrights, trademarks, trade secrets, patents or other
intellectual property rights.
vii) Neither party may bring any class, collective, or representative action against
the other party, and will preclude a party from participating in or recovering relief
under any current or future class, collective, consolidated, or representative
action brought against the other party by someone else.
viii) Each party shall pay its own proportionate share of Arbitrator fees and
expenses plus and expenses of JAMS. The Arbitrator shall be entitled to award
the foregoing arbitration and administrative fees and expenses as damages in
his/her discretion.
ix) Notwithstanding any choice of law or other provision in this Agreement, the
parties agree and acknowledge that this Agreement evidences a transaction
which may involve interstate commerce and that the Federal Arbitration Act, 9
U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and
proceedings pursuant thereto. It is the intent of the parties that the FAA and
JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If
the FAA and JAMS Rules are found to not apply to any issue that arises under
this Agreement or the enforcement thereof, then that issue shall be resolved
under the laws of the state of New York.
x) The Arbitrator’s award will be final and binding and judgment on the award
rendered by the Arbitrator may be entered in any court having jurisdiction
thereof, provided that any award may be confirmed in a court of competent
jurisdiction.
3. The Services
The Services comprise mobile applications and related services (each, an
“Application”), which enable users to purchase certain food and beverage items,
including with third party providers of such services and goods under agreement
with InstaDrink or certain of InstaDrink’s affiliates (“Third Party Providers”). In
certain instances the Services may also include an option to receive said food
and beverage items for an upfront price, subject to acceptance by the
respective Third Party Providers. Unless otherwise agreed by InstaDrink in a
separate written agreement with you, the Services are made available solely for
your personal, noncommercial use. You acknowledge that your ability to obtain,
order and pick-up said food and beverage items through the use of InstaDrink
Services does not establish InstaDrink as a provider of these food or beverage
items.
License.
Subject to your compliance with these Terms, InstaDrink grants you a limited,
non-exclusive, non-sublicensable, revocable, non-transferable license to: (i)
access and use the Applications on your personal device solely in connection
with your use of the Services; and (ii) access and use any content, information
and related materials that may be made available through the Services, in each
case solely for your personal, noncommercial use. Any rights not expressly
granted herein are reserved by InstaDrink and InstaDrink’s licensors.
Restrictions.
You may not: (i) remove any copyright, trademark or other proprietary notices
from any portion of the Services; (ii) reproduce, modify, prepare derivative works
based upon, distribute, license, lease, sell, resell, transfer, publicly display,
publicly perform, transmit, stream, broadcast or otherwise exploit the Services
except as expressly permitted by InstaDrink; (iii) decompile, reverse engineer or
disassemble the Services except as may be permitted by applicable law; (iv) link
to, mirror or frame any portion of the Services; (v) cause or launch any programs
or scripts for the purpose of scraping, indexing, surveying, or otherwise data
mining any portion of the Services or unduly burdening or hindering the
operation and/or functionality of any aspect of the Services; or (vi) attempt to
gain unauthorized access to or impair any aspect of the Services or its related
systems or networks.
Provision of the Services.
You acknowledge that portions of the Services may be made available under
InstaDrink’s various brands or request options associated with food and
beverage ordering and pick-up services, including the food and beverage
ordering and pick-up brands currently referred to as “InstaDrink-US LLC,” and
“InstaDrink”. You also acknowledge that the Services may be made available
under such brands or request options by or in connection with: (i) certain of
InstaDrink’s subsidiaries and affiliates; or (ii) independent Third Party Providers.
Third Party Services and Content.
The Services may be made available or accessed in connection with third party
services and content (including advertising) that InstaDrink does not control.
You acknowledge that different terms of use and privacy policies may apply to
your use of such third party services and content. InstaDrink does not endorse
such third party services and content and in no event shall InstaDrink be
responsible or liable for any products or services of such third party providers.
Additionally, Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry
Limited will be a third-party beneficiary to this contract if you access the
Services using Applications developed for Apple iOS, Android, Microsoft
Windows, or Blackberry-powered mobile devices, respectively. These third party
beneficiaries are not parties to this contract and are not responsible for the
provision or support of the Services in any manner. Your access to the Services
using these devices is subject to terms set forth in the applicable third party
beneficiary’s terms of service.
Ownership.
The Services and all rights therein are and shall remain InstaDrink’s property or
the property of InstaDrink’s licensors. Neither these Terms nor your use of the
Services convey or grant to you any rights: (i) in or related to the Services except
for the limited license granted above; or (ii) to use or reference in any manner
InstaDrink’s company names, logos, product and service names, trademarks or
services marks or those of InstaDrink’s licensors.
4. Access and Use of the Services
User Accounts.
In order to use most aspects of the Services, you must register for and maintain
an active personal user Services account (“Account”). You must be at least 21
years of age, or the age of legal majority in your jurisdiction (if different than 21),
to obtain an Account, unless a specific Service permits otherwise. Account
registration requires you to submit to InstaDrink certain personal information,
such as your name, address, mobile phone number and age, as well as at least
one valid payment method supported by InstaDrink. You agree to maintain
accurate, complete, and up-to-date information in your Account. Your failure to
maintain accurate, complete, and up-to-date Account information, including
having an invalid or expired payment method on file, may result in your inability
to access or use the Services. You are responsible for all activity that occurs
under your Account, and you agree to maintain the security and secrecy of your
Account username and password at all times. Unless otherwise permitted by
InstaDrink in writing, you may only possess one Account.
User Requirements and Conduct.
The Service is not available for use by persons under the age of 21. You may not
authorize third parties to use your Account, and you may not allow persons
under the age of 21 to receive alcoholic beverages from Third Party Providers
unless they are accompanied by you. You may not assign or otherwise transfer
your Account to any other person or entity. You agree to comply with all
applicable laws when accessing or using the Services, and you may only access
or use the Services for lawful purposes (e.g., no transport of unlawful or
hazardous materials). You may not in your access or use of the Services cause
nuisance, annoyance, inconvenience, or property damage, whether to the Third
Party Provider or any other party. In certain instances you may be asked to
provide proof of identity or other method of identity verification to access or use
the Services, and you agree that you may be denied access to or use of the
Services if you refuse to provide proof of identity or other method of identity
verification.
Text Messaging and Telephone Calls.
You agree that InstaDrink may contact you by telephone or text messages
(including by an automatic telephone dialing system) at any of the phone
numbers provided by you or on your behalf in connection with an InstaDrink
account, including for marketing purposes. You understand that you are not
required to provide this consent as a condition of purchasing any property,
goods or services. You also understand that you may opt out of receiving text
messages from InstaDrink at any time, either by texting the word “STOP” to
___________ using the mobile device that is receiving the messages, or by
contacting InstaDrink Customer Service. If you do not choose to opt out,
InstaDrink may contact you as outlined in its User Privacy Policy.
User Provided Content.
InstaDrink may, in InstaDrink’s sole discretion, permit you from time to time to
submit, upload, publish or otherwise make available to InstaDrink through the
Services textual, audio, and/or visual content and information, including
commentary and feedback related to the Services, initiation of support requests,
and submission of entries for competitions and promotions (“User Content”).
Any User Content provided by you remains your property. However, by
providing User Content to InstaDrink, you grant InstaDrink a worldwide,
perpetual, irrevocable, transferable, royalty-free license, with the right to
sublicense, to use, copy, modify, create derivative works of, distribute, publicly
display, publicly perform, and otherwise exploit in any manner such User
Content in all formats and distribution channels now known or hereafter devised
(including in connection with the Services and InstaDrink’s business and on
third-party sites and services), without further notice to or consent from you, and
without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of
all User Content or you have all rights, licenses, consents and releases
necessary to grant InstaDrink the license to the User Content as set forth above;
and (ii) neither the User Content, nor your submission, uploading, publishing or
otherwise making available of such User Content, nor InstaDrink’s use of the
User Content as permitted herein will infringe, misappropriate or violate a third
party’s intellectual property or proprietary rights, or rights of publicity or privacy,
or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful,
violent, obscene, pornographic, unlawful, or otherwise offensive, as determined
by InstaDrink in its sole discretion, whether or not such material may be
protected by law. InstaDrink may, but shall not be obligated to, review, monitor,
or remove User Content, at InstaDrink’s sole discretion and at any time and for
any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the
Services. Your mobile network’s data and messaging rates and fees may apply
if you access or use the Services from your device. You are responsible for
acquiring and updating compatible hardware or devices necessary to access
and use the Services and Applications and any updates thereto. InstaDrink does
not guarantee that the Services, or any portion thereof, will function on any
particular hardware or devices. In addition, the Services may be subject to
malfunctions and delays inherent in the use of the Internet and electronic
communications.
5. Payment
You understand that use of the Services may result in charges to you for the
services or goods you receive (“Charges”). InstaDrink will receive and/or enable
your payment of the applicable Charges for services or goods obtained through
your use of the Services. Charges will be inclusive of applicable taxes where
required by law. Charges may include other applicable fees, and/or surcharges
including processing fees for split payments.
All Charges and payments will be enabled by InstaDrink using the preferred
payment method designated in your Account, after which you will receive a
receipt by email. If your primary Account payment method is determined to be
expired, invalid or otherwise not able to be charged, you agree that InstaDrink
may use a secondary payment method in your Account, if available. Charges
paid by you are final and non-refundable, unless otherwise determined by
InstaDrink.
As between you and InstaDrink, InstaDrink reserves the right to establish,
remove and/or revise Charges for any or all services or goods obtained through
the use of the Services at any time in InstaDrink’s sole discretion. Further, you
acknowledge and agree that Charges applicable in certain Restaurant and Bar
Establishments may increase substantially during times of high demand.
InstaDrink will use reasonable efforts to inform you of Charges that may apply,
provided that you will be responsible for Charges incurred under your Account
regardless of your awareness of such Charges or the amounts thereof.
InstaDrink may from time to time provide certain users with promotional offers
and discounts that may result in different amounts charged for the same or
similar services or goods obtained through the use of the Services, and you
agree that such promotional offers and discounts, unless also made available to
you, shall have no bearing on your use of the Services or the Charges applied to
you. You may elect to cancel your request for Services at any time prior to the
commencement of such Services, in which case you may be charged a
cancellation fee on a Third Party Provider’s behalf. After you have received
services or goods obtained through the Service, you will have the opportunity to
rate your experience and leave additional feedback. InstaDrink may use the
proceeds of any Charges for any purpose, subject to any payment obligations it
has agreed to with any Third Party Providers or other third parties.
In certain cases, with respect to Third Party Providers, Charges you incur may
be owed directly to Third Party Providers, and InstaDrink will collect payment of
those charges from you, on the Third Party Provider’s behalf as their limited
payment collection agent, and payment of the Charges shall be considered the
same as payment made directly by you to the Third Party Provider.
You understand and agree that, while you are free to provide additional payment
as a gratuity to any Third Party Provider who provides you with services or
goods obtained through the Service, you are under no obligation to do so.
Gratuities are voluntary.
6. Disclaimers; Limitation of Liability; Indemnity.
Disclaimer.
The Services are provided “As Is” and “As Available.” InstaDrink disclaims all
representations and warranties, express or implied, or statutory, not expressly
set out in these terms, including the implied warranties of merchantability,
fitness for a particular purpose and non-infringement. In addition, InstaDrink
makes no representation, warranty or guarantee regarding the reliability,
timeliness, quality, suitability, or availability of the Services or any Services or
Goods requested through the use of the Services, or that the Services will be
uninterrupted or error-free. InstaDrink does not guarantee the quality, suitability,
safety or ability of Third Party Providers or their eating/drinking establishments.
You agree that the entire risk arising out of your use of the Services, and any
Service or Goods requested in connection therewith, remains solely with you, to
the maximum extent permitted under applicable law.
Limitation of Liability.
InstaDrink shall not be liable for indirect, incidental, special, exemplary, punitive
or consequential damages, including lost profits, lost data, personal injury or
property damage related to, in connection with, or otherwise resulting from any
use of the Services, regardless of the negligence (either active, affirmative, sole
or concurrent), of InstaDrink, even if InstaDrink has been advised of the
possibility of such damages.
InstaDrink shall not be liable for any damages, liability or losses arising out of: (i)
your use of or reliance on the Services or your inability to access or use the
Services; or (ii) any transaction or relationship between you and any third party
provider, even if InstaDrink has been advised of the possibility of such damages.
InstaDrink shall not be liable for delay or failure in performance resulting from
causes beyond InstaDrink’s reasonable control.
The Services may be used by you to request and schedule food and beverage
for pick-up or restaurant consumption with Third Party Providers, but you agree
that InstaDrink has no responsibility or liability to you related to any goods or
pick-up services provided to you by Third Party Providers other than as
expressly set forth in these terms.
The limitations and disclaimer in this section do not purport to limit liability or
alter your rights as a consumer that cannot be excluded under applicable law.
Because some states or jurisdictions do not allow the exclusion of or the
limitation of liability for consequential or incidental damages, in such states or
jurisdictions, InstaDrink’s liability shall be limited to the extent permitted by law.
This provision shall have no effect on InstaDrink’s choice of law provision set
forth below.
Indemnity.
You agree to indemnify and hold InstaDrink and its affiliates and their officers,
directors, employees, and agents harmless from any and all claims, demands,
losses, liabilities, and expenses (including attorneys’ fees), arising out of or in
connection with: (i) your use of the Services or services or goods obtained
through your use of the Services; (ii) your breach or violation of any of these
Terms; (iii) InstaDrink’s use of your User Content; or (iv) your violation of the
rights of any third party, including Third Party Providers.
7. Other Provisions
Choice of Law.
These Terms are governed by and construed in accordance with the laws of the
State of New York, U.S.A., without giving effect to any conflict of law principles,
except as may be otherwise provided in the Arbitration Agreement above or in
supplemental terms applicable to your region. However, the choice of law
provision regarding the interpretation of these Terms is not intended to create
any other substantive right to non-New Yorkers to assert claims under New York
law whether that be by statute, common law, or otherwise. These provisions,
and except as otherwise provided in Section 2 of these Terms, are only intended
to specify the use of New York law to interpret these Terms and the forum for
disputes asserting a breach of these Terms, and these provisions shall not be
interpreted as generally extending New York law to you if you do not otherwise
reside in New York. The foregoing choice of law and forum selection provisions
do not apply to the arbitration clause in Section 2 or to any arbitrable disputes
as defined therein. Instead, as described in Section 2, the Federal Arbitration Act
shall apply to any such disputes.
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to InstaDrink’s designated
agent. See InstaDrink’s website for additional information.
Notice.
InstaDrink may give notice by means of a general notice on the Services,
electronic mail to your email address in your Account, telephone or text
message to any phone number provided in connection with your account, or by
written communication sent by first class mail or pre-paid post to any address
connected with your Account. Such notice shall be deemed to have been given
upon the expiration of 48 hours after mailing or posting (if sent by first class mail
or pre-paid post) or 12 hours after sending (if sent by email or telephone). You
may give notice to InstaDrink, with such notice deemed given when received by
InstaDrink, at any time by first class mail or pre-paid post to our registered agent
for service of process, c/o InstaDrink-US LLC. The name and current contact
information for the registered agent in each state are available online at
InstaDrink’s website.
General.
You may not assign these Terms without InstaDrink’s prior written approval.
InstaDrink may assign these Terms without your consent to: (i) a subsidiary or
affiliate; (ii) an acquirer of InstaDrink’s equity, business or assets; or (iii) a
successor by merger. Any purported assignment in violation of this section shall
be void. No joint venture, partnership, employment, or agency relationship exists
between you, InstaDrink or any Third Party Provider as a result of this
Agreement or use of the Services. If any provision of these Terms is held to be
invalid or unenforceable, such provision shall be struck and the remaining
provisions shall be enforced to the fullest extent under law. InstaDrink’s failure
to enforce any right or provision in these Terms shall not constitute a waiver of
such right or provision unless acknowledged and agreed to by InstaDrink in
writing. This provision shall not affect the Severability and Survivability section of
the Arbitration Agreement of these Terms.
Version 1.a
Updated March 20, 2020