These Terms and Conditions of Use are effective as of March 16, 2015.
These Terms and Conditions of Use (the “Agreement”) apply to your use of the website located at www.margaritaville.com and any website operated by Margaritaville or its affiliates or subsidiaries on which this Agreement is posted (collectively, the “Site”), and any services, content or applications made available on the Site. The Agreement represents a binding contract between you and Margaritaville Enterprises, LLC (“Margaritaville”, “we”, “us” and “our”). Regardless of how you use the Site, you must agree to the terms set forth in this Agreement, and by using the Site you agree to be bound by this Agreement. If you do not agree to any of the terms in this Agreement, do not access, visit or use the Site.
Notice Regarding Dispute Resolution: This Agreement contains provisions that govern how claims you and we may have against each other are resolved (see Section 18 below), including an agreement and obligation to arbitrate disputes, which will, subject to limited exceptions, require you to submit claims you have against us to binding arbitration, unless you opt-out in accordance with Section 18(e). Unless you opt-out of arbitration: (a) you will only be permitted to pursue claims against us on an individual basis, not as part of any class or representative action or proceeding and (b) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
We reserve the right to change, modify or amend this Agreement from time to time. If we make any material changes, we will post notice of the material changes and the amended version of this Agreement on the Site at least 30 days prior to their taking effect. If you have provided us with your email address, we will also send you a copy to the email address that we have on file for you. We therefore encourage you to keep the email address you provide to us current and to promptly notify us if your email address changes by contacting us at firstname.lastname@example.org so that you may receive any notices we send to you regarding material changes to this Agreement. If you do not agree with the changes, you should not access or use the Site after a new version of this Agreement takes effect, and if you are a registered user, you may cancel your account with us by contacting us at email@example.com. Your use of the Site constitutes your consent to be bound by the terms of the Agreement in effect at the time you use the Site. Accordingly, if you continue to use the Site after a new Agreement takes effect you will be deemed bound by the terms of the amended Agreement. You are responsible for regularly reviewing this Agreement and familiarizing yourself with any material changes that we send you as a registered user and post on the Site 30 days prior to the time they take effect. None of our employees, representatives or agents have the right to modify this Agreement orally or otherwise.
3. Site Offerings
We may make certain services available to visitors of the Site. For example, you may be able to purchase goods or services, sign up for a mailing list to receive relevant advertisements and other information that may be of interest to you, post comments and communicate with us or other users, sign up for promotional offers and sweepstakes, download screensavers or other software, or use any other services we may offer from time to time (collectively referred to in this Agreement as the “Site Offerings”).
We reserve the right, for any reason and in our sole discretion, to terminate, change, suspend or discontinue any of our Site Offerings or other feature of the Site, including, but not limited to, content, features or hours of availability. We may also impose limits on certain features of the Site or restrict your access to part or all of the Site without notice or penalty. We may also require that you register with us (as described below) to use the Site or any of the Site Offerings. Our right to suspend or terminate access to the Site Offerings at anytime is further described in Section 13.
4. Your Use of the Site and Affirmative Representations
By entering into this Agreement and using the Site, you represent and warrant that: (a) the information you submit is truthful and accurate; (b) you will update your contact information if it changes so that we may contact you about changes to this Agreement or other important information; (c) your use of the Site will not violate any applicable law or regulation; (d) you are 13 years of age or older; (e) you will comply with the obligations and restrictions set forth in this Agreement; and (f) you are of sufficient legal age or otherwise have legal capacity to legally enter into this Agreement.
5. User Content
Users are entirely and solely responsible for the comments, information and other content they provide and post on or transmit through the Site (“User Content”). By contributing in any way to the Site, including, but not limited to, posting comments to the Site through an applicable third-party social media service, you represent and warrant that you own or have sufficient rights to the User Content you submit or post.
Users are encouraged to exercise caution and good judgment when disclosing personal information (such as, name or user name, email address, phone number) on the public portions of this Site that allow users to post comments, communicate with us or other users, or otherwise interact with the Site.
6. License to Your User Content
You hereby expressly grant us a perpetual, non-exclusive, royalty-free, sublicenseable, world-wide license to use in any way, copy, republish or sell your User Content. You agree and acknowledge that by using the Site, any and all communications and/or information transmitted by you to or through the Site will not be treated as confidential or proprietary.
7. Prohibited User Conduct
You represent and warrant that, while using the Site, you will not upload, post, transmit to, distribute or otherwise publish through the Site any User Content that:
(a) violates our or any other person's privacy rights, publicity rights, intellectual property rights (including without limitation copyrights and trademarks) or contract rights;
(b) is unlawful, threatening, harassing, profane, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, contains explicit or graphic descriptions or accounts of sexual acts (including but not limited to sexual language of a violent or threatening nature directed at another individual or group of individuals), is invasive of another's privacy, or hateful, or solicits personal information from anyone under the age of 13 or exploits anyone in a sexual or violent manner;
(c) restricts or inhibits any other user from using and enjoying the Site;
(d) constitutes or encourages conduct that would constitute a criminal offense or give rise to civil liability; or
(e) contains a virus or other harmful component, advertising of any kind, or false or misleading indications of origin or statements of fact.
You also represent and warrant that while using the Site you will not:
(i) impersonate or misrepresent your affiliation with any other person or entity;
(ii) upload, post, publish, transmit, reproduce, distribute or in any way exploit any information or other material obtained through the Site for commercial purposes (other than as expressly permitted by the provider of such information or other material);
(iii) engage in spamming or otherwise send unsolicited commercial communications, or interfere with or disrupt the Site or the networks or services connected to the Site in any other way;
(iv) install or attempt to install or promote spyware, malware or other computer code, to enable you or others to gather information about or monitor activities of other persons, or otherwise attempt to gain unauthorized access to other computer systems through the Site; or
(v) use the Site for any unauthorized purpose.
8. Registration; Usernames and Passwords
You may be required to register with us to access certain areas of the Site. In our sole discretion, we may refuse to grant you, and you may not use, a user name or email address that: (a) belongs to or is already being used by another person or entity; (b) may be construed as impersonating another person; (c) violates the intellectual property or other rights of any person; (d) is offensive; or (e) we reject for any other reason.
You are responsible for maintaining the confidentiality of any password you may use to access the Site. You represent and warrant that you will not transfer your password or user name, or lend, sell, link, exploit for any commercial purposes or otherwise transfer your use of or access to the Site, to any third party. You are fully responsible for all actions that occur in connection with your user name. You agree to immediately notify us of any unauthorized use of your password or user name or any other breach of security related to your account, your user name or the Site.
9. Our Intellectual Property Rights
The Site and its entire contents, including, but not limited to, the trademarks, service marks, logos, text, information, material, software and graphics contained on this Site, are owned by us, our affiliates or our or their licensors or licensees (collectively, the "Materials"), or our users who submit contributions. The Materials are protected by copyright, trademark and other intellectual property laws and treaties. We make no proprietary claim to any third-party content, names, trademarks or service marks appearing on this Site, which are the properties of their respective owners. The Site and the Materials are for your information and personal use only and not for commercial exploitation by you. In addition, you may not (a) modify the Materials or use them for any commercial purpose, or any other public display, performance, sale, or rental; (b) decompile, reverse engineer, or disassemble software materials; (c) remove any copyright notice or other proprietary notices from the Materials; or (d) transfer the materials to another person. We reserve all rights not expressly granted in this Agreement.
10. Copyright Policy and DMCA Notification
We have a policy of terminating, in appropriate circumstances, the access rights of repeat infringers. Pursuant to the Digital Millennium Copyright Act ("DMCA") (available at http://www.copyright.gov/title17/92chap5.html#512), notifications of claimed copyright infringement must be sent to our designated agent:
Margaritaville Enterprises, LLC
3379 Peachtree Road, Suite 900
Atlanta, Georgia 30326
To be effective, the notification must be a written communication that includes the following:
A physical or electronic signature of person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website;
Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
Information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
A statement that the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If we give you notice that we have removed or disabled access to material that you uploaded to this Site, you may provide a counter notification in writing to our designated agent to have the material restored. To be effective, the counter notification must be a written communication that includes the following:
Your physical or electronic signature;
Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a United States District Court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be found, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
A copy of your counter notification will be forwarded to the person who filed the original notification of claimed copyright infringement against you. If you file a counter notice, access to your material will be restored unless the copyright owner files suit against you for copyright infringement.
Sanctions for False Statements
Pursuant to the DMCA, 17 U.S.C. § 512(f), you may be held liable for damages, including costs and attorneys' fees, for making false statements under oath in a notification or counter notification.
11. Our Right to Monitor the Site
We reserve the right, but do not undertake the obligation, to monitor conduct or content posted on or transmitted through the Site. We may disclose any information as necessary or appropriate to satisfy any law, regulation or other governmental request, to operate the Site properly, or to protect ourselves or our users. We reserve the right, but undertake no obligation, to refuse to post or to remove any User Content or Materials, in whole or in part, that, in our sole discretion, are unacceptable, undesirable, inappropriate or in violation this Agreement.
You agree to defend, indemnify and hold us, our directors, officers, employees, agents and affiliates harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Site, including, without limitation, your User Content.
13. Termination of Access; Changes to the Site
WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SITE OR ANY FEATURE OR PART OF IT, OR TO CHANGE, SUSPEND OR DISCONTINUE ANY ASPECT OF THIS SITE FOR ANY REASON OR NO REASON AT ALL, AT ANY TIME, WITH OR WITHOUT NOTICE.
14. Disclaimer of Warranties
THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, INFORMATION, SOFTWARE, SERVICES, GRAPHICS, FUNCTIONS AND MATERIALS, IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, OR UNINTERRUPTED ACCESS; ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT WARRANT THAT THE SITE OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, THAT THE CONTENT WILL BE CORRECT, ACCURATE OR RELIABLE, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITE WILL MEET USERS' REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE.
15. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE IS AT YOUR OWN RISK AND THAT IN NO EVENT SHALL WE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED TO IT, OR ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATIONAL TRANSMISSION, COMPUTER VIRUSES OR LINE FAILURE, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF WE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL WE BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITE.
16. Links to Third Party Sites
The Site contains links to third-party websites that are not controlled by us or our affiliates. We do not make any representations and warranties, express or implied, regarding the content of any of these third-party websites. These links do not constitute or imply an endorsement, authorization or, sponsorship by or affiliation with us with respect to any third party, any third party's website, the content of any third party's website, or any products or services provided by a third party.
17. Other Countries
We control and operate the Site from our offices in the United States of America. We do not represent that materials on the Site are appropriate or available for use in other locations. Persons who choose to access the Site from other locations do so at their own risk, and are responsible for compliance with the laws of that territory.
18. Legal Disputes and Arbitration
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court
a. Initial Dispute Resolution. We are available by email at firstname.lastname@example.org to address any concerns you may have regarding your use of the Site. Most concerns may be quickly resolved in this manner. Each of you and Margaritaville agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
b. Agreement to Binding Arbitration. If we do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 18(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to this Agreement (including its formation, performance and breach) and/or your use of the Site shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association (the “AAA”) in accordance with the provisions of the AAA’s Consumer Arbitration Rules, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to, any claim that all or any part of this Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act.
The AAA’s rules governing the arbitration may be accessed at www.adr.org or by calling the AAA at 1.800.778.7879. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, we will pay the additional cost. A request for payment of fees should be submitted to AAA along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to AAA. The arbitration rules also permit you to recover attorney’s fees in certain circumstances.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
c. Class Action and Class Arbitration Waiver. You and Margaritaville each further agree that any arbitration shall be conducted in your respective individual capacities only and not as a class action or other representative action, and you and Margaritaville each expressly waive your respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above in Section 18(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
d. Exception - Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
e. 30 Day Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 18(b), 18(c), and 18(d) by sending written notice of your decision to opt-out to the following address: Legal Department, Margaritaville Enterprises, LLC, 3379 Peachtree Road NE, Suite 900, Atlanta, GA 30326, or by email to email@example.com. The notice must be sent within thirty (30) days of commencing use of the Site, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
f. Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 18(b) do not apply, the parties agree that any litigation between them shall be filed exclusively in state or federal courts located in Orange County, Florida and the United States District Court for the Middle District of Florida, Orlando Division (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in in Orange County, Florida for any litigation other than small claims court actions.
g. Applicable Law. You agree that federal laws and the laws of the State of Florida, without regard to principles of conflict of laws, will govern this Agreement and any claim or dispute that has arisen or may arise between you and Margaritaville.
19. Independent Contractors
No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind us in any respect whatsoever.
20. No Third Party Beneficiaries
This Agreement is between you and us. There are no third-party beneficiaries to this Agreement.
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
This Agreement is not assignable, transferable or sublicensable by you except with our prior written consent. We may transfer, assign or delegate this Agreement and our rights and obligations without consent.
24. Entire Agreement
This Agreement supersedes all prior and contemporaneous agreements, representations and warranties and understandings, whether oral or written, with respect to the Site, the Site's contents and any services provided on the Site, including amendments to this Agreement that are not posted on the Site and that do not fall under Section 1 (Modifications). In the event of any conflict between this Agreement and any other agreement or understanding related to the Site, this Agreement shall control.