These Terms and Conditions of Service were last modified as of July 12, 2018.
These Terms and Conditions of Service (the “Terms of Service”) apply to your use of the website located at www.margaritaville.com and any website operated by Margaritaville Enterprises, LLC (“Margaritaville”, “we”, “us” and “our”) or its affiliates or subsidiaries on which these Terms of Service are posted (collectively, the “Site”), and any services, content or applications made available on the Site (the Site and these services, content and applications collectively constituting, the “Service”). These Terms of Service represent a binding contract between you and Margaritaville. Regardless of how you use the Service, you must agree to the terms set forth in these Terms of Service, and by using the Service you agree to be bound by these Terms of Service. If you do not agree to any of the terms in these Terms of Service, do not access, visit or use the Service.
Notice Regarding Dispute Resolution: These Terms of Service contains provisions that govern how claims you and we may have against each other are resolved (see Section 17 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 17(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, in our discretion, to change, modify or amend these Terms of Service at any time without notice and, unless otherwise indicated, such changes will become effective immediately upon posting; therefore, please check these Terms of Service periodically for changes. We will display the effective date of these Terms of Service at the top of this page. If you do not agree with the changes, you should not access or use the Service after a new version of these Terms of Service takes effect, and if you are a registered user, you may cancel your account with us by contacting us at [email protected]. Your use of the Service constitutes your consent to be bound by the terms of the Terms of Service in effect at the time you use the Service. Accordingly, if you continue to use the Service after a new Terms of Service takes effect you will be deemed bound by the terms of the amended Terms of Service. You are responsible for regularly reviewing the Terms of Service. None of our employees, representatives or agents have the right to modify these Terms of Service orally or otherwise.
In connection with your use of the Service, please review our Privacy Notice located at margaritaville.com/privacy.html in order to understand how we use information we collect from you when you access, visit or use the Service. If you do not want your information used as outlined in our Privacy Notice, you should not use the Service.
4. Service Offerings
We may make certain services available to visitors of the Service. 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 these Terms of Service as the “Service Offerings”).
We reserve the right, for any reason and in our sole discretion, to terminate, change, suspend or discontinue any of our Service Offerings or other feature of the Service, including, but not limited to, content, features or hours of availability. We may also impose limits on certain features of the Service or restrict your access to part or all of the Service without notice or penalty. We may also require that you register with us (as described below) to use the Service or any of the Service Offerings. Our right to suspend or terminate access to the Service Offerings at any time is further described in Section 12.
5. Your Affirmative Representations
By using the Service, 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 these Terms of Service or other important information; (c) your use of the Service 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 these Terms of Service; and (f) you are of sufficient legal age or otherwise have legal capacity to legally enter into these Terms of Service.
6. Registration; Usernames and Passwords
You may be required to register with us to access certain areas of the Service. 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 Service. 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 Service, 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 Service. You acknowledge that we are not responsible for third party access to your account that results from theft or misappropriation of your user name or password.
7. User Content
Users are entirely and solely responsible for the comments, information and other content they provide and post on or transmit through the Service (“User Content”). By contributing in any way to the Service, including, but not limited to, posting comments to the Service 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 the Service that allow users to post comments, communicate with us or other users, or otherwise interact with the Service.
8. 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 Service, any and all communications and/or information transmitted by you to or through the Service will not be treated as confidential or proprietary.
9. Prohibited User Conduct
You represent and warrant that, while using the Service, you will not upload, post, transmit to, distribute or otherwise publish through the Service 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 Service;
- (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 Service 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 Service 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 Service or the networks or services connected to the Service 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 Service;
- (v) use the Service for any unauthorized purpose;
- (vi) modify the Materials (as defined below) or use them for any commercial purpose, or any other public display, performance, sale, or rental;
- (vii) decompile, reverse engineer, disassemble, sell, sublicense, or created derivative works from the Service; or
- (viii) remove any copyright notice or other proprietary notices.
10. Our Intellectual Property Rights
The Service and its entire contents, including, but not limited to, the trademarks, service marks, logos, text, information, material, software and graphics contained on the Service, are owned by us, our affiliates or our or their licensors or licensees (collectively, the “Materials”). As a user of the Service, we grant you a non-exclusive, non-transferable, revocable, limited license to use the Service and Materials. 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 the Service, which are the properties of their respective owners. The Service and the Materials are for your information and personal use only and not for commercial exploitation by you. We reserve all rights not expressly granted in this Agreement.
11. 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”), notifications of claimed copyright infringement must be sent to our designated agent:
Margaritaville Enterprises, LLC
3379 Peachtree Road, Suite 900
Atlanta, Georgia 30326
Email: [email protected]
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 Service, 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.
12. Our Right to Manage the Service
We reserve the right, but do not undertake the obligation, to (a) monitor or review the Service for violations of these Terms of Service and for compliance with our policies; (b) report to law enforcement authorities and/or take legal action against anyone who violates these Terms of Service; (c) manage the Service in a manner designed to protect our and third parties’ rights and property or to facilitate the proper functioning of the Service; (d) screen our users, or attempt to verify the statements of our users; and/or (e) monitor disputes between you and other users or to terminate or block you and other users from violating these Terms of Service. We reserve the right to investigate complaints or reported violations of our Terms of Service and to take any action we deem appropriate including but not limited to reporting any suspected unlawful activity to law enforcement officials, regulators, or other third parties and disclosing any information necessary or appropriate to such persons or entities relating to user profiles, e-mail addresses, usage history, posted materials, IP addresses and traffic information.
AS PERMITTED BY APPLICABLE LAW, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO RESTRICT OR TERMINATE YOUR ACCESS TO THE SERVICE OR ANY FEATURE OR PART OF IT, OR TO CHANGE, SUSPEND OR DISCONTINUE ANY ASPECT OF THIS SERVICE FOR ANY REASON OR NO REASON AT ALL, AT ANY TIME, WITH OR WITHOUT NOTICE. WE FURTHER RESERVE THE RIGHT TO SEEK ALL REMEDIES AVAILABLE AT LAW AND IN EQUITY FOR VIOLATIONS OF THESE TERMS OF SERVICE.
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 Service, including, without limitation, your User Content. You will not be required to indemnify and hold us harmless from and against any claims, liabilities, damages, losses, or expenses resulting from our own negligent conduct.
14. Disclaimer of Warranties
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, INFORMATION, SOFTWARE, SERVICES, GRAPHICS, FUNCTIONS AND MATERIALS, ARE 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 SERVICE, THE MATERIALS OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, THAT THE MATERIALS OR CONTENT WILL BE CORRECT, ACCURATE OR RELIABLE, OR THAT THE SERVICE, 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 SERVICE WILL MEET USERS' REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. IF YOU ARE DISSATISFIED WITH THE SERVICE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SERVICE.
15. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, 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 SERVICE 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 SERVICE.
16. Links to Third Party Sites
17. 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 [email protected] to address any concerns you may have regarding your use of the Service. 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 17(a) above, then either party may initiate binding arbitration. All claims arising out of or relating to these Terms of Service (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Service shall be finally settled by binding arbitration administered on a confidential basis by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. 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 these Terms of Service, including, but not limited to, any claim that all or any part of these Terms of Service 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 in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of these Terms of Service shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), we will pay the additional cost. If we are required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and we will make arrangements to pay all necessary fees directly to JAMS. We will also be responsible for paying all other arbitration costs arising in connection with the arbitration other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by Margaritaville if you do not prevail in arbitration.
The parties understand that, absent this mandatory provision, they would have the right to sue in court. 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 17(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 17(b), 17(c), and 17(d) by sending written notice of your decision to opt-out to the following address: Legal Department, Margaritaville Enterprises, LLC, 3715 Northside Parkway, Suite 4-475, Atlanta, GA 30327, or by email to [email protected]. The notice must be sent within thirty (30) days of commencing use of the Service, 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 17(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 these Terms of Service and any claim or dispute that has arisen or may arise between you and Margaritaville.
18. Notice to New Jersey Users.
Notwithstanding any terms set forth in these Terms of Service, if any of the provisions set forth in Sections 14, 15 or 17 are held unenforceable, void or inapplicable under New Jersey law, then any such provision shall not apply to you but the rest of these Terms of Service shall remain binding on you and Margaritaville. In addition, for New Jersey residents, the limitation on liability is inapplicable where attorneys’ fees, court costs, or other damages are mandated by statue. Notwithstanding any provision in these Terms of Service, nothing in these Terms of Service is intended to, nor shall it be deemed or construed to, limit any rights available to you under the Truth-in-Consumer Contract, Warranty and Notice Act.
19. Notice to California Users.
Under California Civil Code Section 1789.3, users located in California are entitled to the following consumer rights notice: If a user has a question or complaint regarding the Service, please send an email to [email protected]. Users may also contact us by writing to 3715 Northside Parkway, Suite 4-475, Atlanta, GA 30327. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
20. Independent Contractors
No agency, partnership, joint venture, or employment is created as a result of these Terms of Service and you do not have any authority of any kind to bind us in any respect whatsoever.
21. No Third Party Beneficiaries
These Terms of Service are between you and us. There are no third-party beneficiaries to these Terms of Service.
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 these Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms of Service 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 these Terms of Service and our rights and obligations without consent.
25. Entire Agreement
These Terms of Service supersede all prior and contemporaneous agreements, representations and warranties and understandings, whether oral or written, with respect to the Service, the Service’s contents and any services provided on the Service. In the event of any conflict between these Terms of Service and any other agreement or understanding related to the Service, these Terms of Service shall control.