Terms and Conditions
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED TO USE THE SITE AND YOU MUST PROMPTLY CEASE USING IT.
You must be over 16 years old in order to use the Site. If you are under 18, you must read these Terms with your parent or guardian to make sure you and your parent or guardian understand and agree to these Terms. Your parent or guardian must agree to these Terms on your behalf.
1.YOUR ACCESS TO THE SITE
2.PERMITTED USE AND RESTRICTIONS
7.MOBILE MESSAGING TERMS AND CONDITIONS
8.INTELLECTUAL PROPERTY RIGHTS
9.THIRD-PARTY SITES AND SERVICES
10.NOTICE FOR CALIFORNIA RESIDENTS PURSUANT TO CA CIVIL CODE SECTION 1789.3
13.LIMITATION OF LIABILITY
15.COMMUNICATION BETWEEN US
17.OTHER IMPORTANT TERMS
18.CHANGES TO THESE TERMS
Internet Access. When using the Site on your mobile, laptop, desktop or other device (your “Device”), you acknowledge and agree that you are responsible for (i) maintaining Internet access for your Device through a Wi-Fi or LTE data communication network and (ii) any Internet connection and telecommunications fees and charges that you incur.
• Your Device. Update is not responsible for the operation of your Device. You are responsible for ensuring the system functions of your Device are in working order when accessing the Site, including, but not limited to screen display operation features of your Device.
• No Guarantee. Access to the Site may be suspended temporarily and without notice (a) in the event of system failure, (b) for maintenance or repair, (c) where we reasonably suspect there has been a breach of these Terms, (d) for reasons reasonably beyond our control, or (e) as otherwise explained in these Terms.
2.1 License Grant. Subject to the terms and conditions of these Terms, Update hereby grants you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Site (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely for your personal use on a Device that you own or control. We reserve all other rights, which are not granted in these Terms.
2.2 Use Restrictions. You may not access or use the Site in any way that is not expressly permitted by these Terms. You may not: (a) cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of the Site; (b) sell, assign, rent, lease, or grant rights in the Site, including, without limitation, through sublicense, to any other person or entity; or (c) use the Site for any unlawful, prohibited, abnormal or unusual activity as determined by Update in its sole discretion.
2.3 Investigations. We may, but are not obligated to, monitor or review our Site at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Site pursuant to Section 14 below.
2.4 Violation of these Terms. You must not use (or permit a third-party to use) the Site: (a) in any unlawful manner, for any unlawful purpose, or to act fraudulently or maliciously, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Site or any operating system used by the Site; (b) in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users; (c) to collect or harvest any information or data from the Site or our systems or attempt to decipher any transmissions to or from the servers running the Site; (d) via use of a robot, spider, or other automated device to monitor or copy the Site or any information provided by the Site; (e) to send, knowingly receive, upload, download, use or re-use any material which does not comply with these Terms; or (f) to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam). You acknowledge and agree that you are solely responsible, and Update has no responsibility or liability to you or any other person or entity for, any breach by you of these Terms or for the consequences of any such breach.
If you choose, at your sole discretion, to purchase goods from us, you agree that, with your authorization, we may charge your credit card, or other chosen payment method the amount selected by you, and you understand that, all payments must be in U.S. dollars. We accept the following credit cards at this time: Visa, MasterCard, American Express, or Discover. Update uses authorized third-parties for the purpose of processing your transactions, including fraud prevention, vendor direct shipping, and credit card authorization.
All prices displayed on the Site are quoted in U.S. Dollars. We cannot guarantee the availability of a particular product at any particular time, and we reserve the right to change and/or cancel our merchandise offerings on the Site, without notice, at any time.
Unless you are an authorized retailer, all products sold by or received from Update are intended to be used for personal purposes only, and you may not sell or resell any products you purchase or otherwise receive from Update. Update reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you that may result in a violation of these Terms, as determined by Update in its sole discretion.
With respect to products purchased through our third party partners, please see Section 9 below.
By agreeing to these Terms or using the Site, you also agree to receive communications from us, including via email, text message (to the extent permitted by applicable law), calls, and push notifications. Communications from us may include responses to your inquiries or marketing materials.
If you wish to opt-out of promotional emails, you can unsubscribe from our promotional email list by following the unsubscribe options in the promotional email itself.
User Opt-In: The Program allows users to receive SMS/MMS mobile messages by affirmatively opting-into the Program, such as through online or application-based enrollment forms. Regardless of the opt-in method you utilized to join the Program, you agree that this Agreement applies to your participation in the Program. By affirmatively opting into the Program, you provide Update with your express written consent, via e-signature, to deliver or cause to be delivered advertising and marketing mobile messages through an automatic telephone dialing system or an artificial or prerecorded voice at the phone number associated with your opt-in. You also understand your express written consent is not a direct or indirect condition of making any purchase from Update. While you consent to receive messages sent using an automatic telephone dialing system, the foregoing shall not be interpreted to suggest or imply that any or all of our mobile messages are sent using an automatic telephone dialing system (“ATDS” or “auto-dialer”). Message and data rates may apply.
User Opt-Out: If you do not wish to continue participating in the Program or no longer agree to this Agreement, you agree to reply STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to any mobile message from Update in order to opt out of the Program. You may receive an additional mobile message confirming your decision to opt-out. You understand and agree that the foregoing options are the only reasonable methods of opting-out. You also understand and agree that any other method of opting-out, including, but not limited to, texting words other than those set forth above or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting-out.
Duty to Notify and Indemnify: If at any time you intend to stop using the mobile telephone number that has been used to subscribe to the Program, including canceling your service plan or selling or transferring the phone number to another party, you agree that you will complete the User Opt-Out process set forth above prior to ending your use of the mobile telephone number. You understand and agree that your agreement to do so is a material part of these Terms. You further agree that, if you discontinue the use of your mobile telephone number without notifying Update of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Update, or any party that assists in the delivery of the mobile messages, as a result of claims brought by individual(s) who are later assigned that mobile telephone number. This duty and Agreement shall survive any cancellation or termination of your agreement to participate in any of our Programs. YOU AGREE THAT YOU SHALL INDEMNIFY, DEFEND, AND HOLD US HARMLESS FROM ANY CLAIM OR LIABILITY RESULTING FROM YOUR FAILURE TO NOTIFY US OF A CHANGE IN THE INFORMATION YOU HAVE PROVIDED, INCLUDING ANY CLAIM OR LIABILITY UNDER THE TELEPHONE CONSUMER PROTECTION ACT, 47 U.S.C. § 227, et seq., OR SIMILAR STATE AND FEDERAL LAWS, AND ANY REGULATIONS PROMULGATED THEREUNDER RESULTING FROM US ATTEMPTING TO CONTACT YOU AT THE MOBILE TELEPHONE NUMBER YOU PROVIDED.
Program Description: Without limiting the scope of the Program, users that opt-into the Program can expect to receive messages concerning the marketing and sale of products, services, and events.
Cost and Frequency: Message and data rates may apply. The Program involves recurring mobile messages, and additional mobile messages may be sent periodically based on your interaction with Update.
MMS Disclosure: The Program will send SMS TMs (terminating messages) if your mobile device does not support MMS messaging.
Our Disclaimer of Warranty: The Program is offered on an “as-is” basis and may not be available in all areas at all times and may not continue to work in the event of product, software, coverage or other changes made by your wireless carrier. We will not be liable for any delays or failures in the receipt of any mobile messages connected with this Program. Delivery of mobile messages is subject to effective transmission from your wireless service provider/network operator and is outside of Update’s control.
Participant Requirements: You must have a wireless Device of your own, capable of two-way messaging, be using a participating wireless carrier, and be a wireless service subscriber with text messaging service. Not all cellular phone providers carry the necessary service to participate. Check your Device capabilities for specific text messaging instructions.
8.1 Trademarks. The Update name and logo are trademarks and service marks of Update. You do not have the right to use any of our trademarks, service marks or logos, and your unauthorized use of any of these may be a violation of federal and state trademark laws.
8.2 Ownership. You acknowledge that all intellectual property rights in the Site, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” trade dress, structure, organization, code, and all content in the Site and compilation thereof, anywhere in the world, belong to us or our licensors and are valuable trade secrets and confidential information of Update, protected by intellectual property laws. You acknowledge and agree that Update, and/or its licensors, owns all right, title and interest in and to the Site, including all intellectual property, industrial property and proprietary rights recognized anywhere in the world at any time and that the Site is protected by U.S. and international copyright laws. Further, you acknowledge that the Site may contain information that Update has designated as confidential and you agree not to disclose such information without Update’s prior written consent. Nothing posted on the Site grants a license to any Update trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise. You should assume that everything you see or read on the Site is proprietary information protected by copyright or trademark unless otherwise noted and may not be used except with the written permission of Update. When accessing the Site, you agree to obey the law and to respect the intellectual property rights of others. Your use of the Site is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.
The Site may contain links to or allow you to share content directly with other third-party websites (“Third-Party Sites”), like Facebook and Instagram. You acknowledge that we have no control over the Third-Party Sites and are not responsible for their contents and/or availability. We do not assume any liability for your use of any of the foregoing, which use you acknowledge and agree shall be at your own risk.
These links are provided to you for convenience only and do not constitute an endorsement or approval by us of the organizations that operate such websites, the content, or other material contained in the Third-Party Sites and we have no association with their operators. Your use of the Third-Party Sites will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.
Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: 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., Sacramento, CA 95834, or by telephone at 916-445-1254 or 800-952-5210.
You agree to indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and costs), arising out of or in connection with: (a) your use of the Site; (b) your breach or violation of any of these Terms; or (c) your violation of the rights of any third-party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by the Indemnified Parties.
WE PROVIDE THE SITE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SITE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE SITE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SITE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included on the Site is accurate, complete or up-to-date.
To the maximum extent permitted by law, we exclude all conditions, warranties, representations and other terms, which may apply to the Site, whether express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement of the rights of third-parties with respect to the Site and all information and content included on the Site.
No information or advice obtained through the Site, or affirmation by us, by words or actions, shall constitute a warranty.
We only supply the Site for domestic, personal and private use. You agree not to use the Site for any commercial, business or resale purposes, and we have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Because some states or jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.
IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR DEVICE, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SITE OR YOUR INABILITY TO ACCESS OR USE THE SITE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SITE OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT OR TORT, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF UPDATE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your sole remedy for dissatisfaction with the Site including, without limitation, content on the Site, is to stop using the Site. Such limitation shall also apply with respect to damages incurred by reason of services or products received through or advertised in connection with the Site or any links on the Site, as well as by reason of any information or advice received through or advertised in connection with the Site or any links on the Site. Such limitation shall also apply with respect to damages incurred by reason of any content posted by a third-party or conduct of a third-party on the Site.
In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, then the Indemnified Parties’ liability arising in connection with the Site or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances, the greater of: (i) the total amount paid for goods in the preceding 30 days, or (ii) One Hundred Dollars ($100). You agree that any claim or cause of action arising under these Terms or the performance or non-performance of the Site must be brought within one year after such claim or cause of action arises or be forever barred.
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, UPDATE’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON UPDATE’S CHOICE OF LAW PROVISION SET FORTH BELOW.
We may terminate these Terms and/or your permission to use the Site immediately, without prior notice or liability, if you commit any breach of these Terms. Further, with respect to the Site, we may terminate these Terms, and/or your permission to use the Site immediately, without prior notice or liability, if (a) we discontinue the Site, or (b) we are prevented from providing the Site for any reason.
Furthermore, we reserve the right to change, edit, suspend, delete and/or cancel any part of the Site and/or your access to it at any time with or without notice to you: (a) if required by law, or (b) due to an event beyond our control.
On termination of these Terms for any reason: (a) all rights granted to you under these Terms will cease immediately, (b) you must immediately cease all activities authorized by these Terms (including your use of the Site), and (c) you acknowledge that we may restrict your access to the Site. Sections 6-8, and 11-17 will survive any termination or expiration of these Terms.
If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us by email or as otherwise indicated in the Contact Us section at the bottom of these Terms. If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.
Certain portions of this Section 15 are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Update agree that we intend that this Section 16 satisfies the “writing” requirement of the Federal Arbitration Act.
A. Try to Resolve Disputes and Excluded Disputes. If any controversy, allegation, or claim arises out of or relates to the Site, these Terms, our products, or any additional terms, whether heretofore or hereafter arising (collectively, “Dispute”), or to any of our actual or alleged intellectual property rights (an “Excluded Dispute”), which includes those actions set forth herein, then the parties agree to send a written notice to the other providing a reasonable description of the Dispute or Excluded Dispute, along with a proposed resolution of it. Our notice to you will be sent to you using the most recent contact information that you provide to us; if no such information has been provided or if such information is not current, then we owe you no obligation under this Section. Your notice to us must be sent to: Update, Attn: Legal, 1185 Avenue of the Americas, C/O Hess Corporation, New York, NY 10036 and firstname.lastname@example.org. For a period of sixty (60) days from the date of receipt of notice from the other party, Update and you will engage in a dialogue in order to attempt to resolve the Dispute or Excluded Dispute, though nothing will require either you or Update to resolve the Dispute or Excluded Dispute on terms which you or Update, in each of our/your sole discretion, are not comfortable.
B. Forums for Alternative Dispute Resolution. If you are located in, are based in, have offices in, or do business in a jurisdiction in which this Section 16 is enforceable, the following mandatory arbitration provisions apply to you:
(i) Arbitration. If we cannot resolve a Dispute as set forth in Section 16(A) within sixty (60) days of receipt of the notice, then either you or we may submit the Dispute to formal arbitration. If we cannot resolve an Excluded Dispute as set forth in Section 16(A) within sixty (60) days of our receipt of the notice, then either you or we may submit the Excluded Dispute to formal arbitration only if you and Update consent, in a writing signed by you and an officer or legal representative of Update, to have that Excluded Dispute subject to arbitration. In such a case, (and only in such a case), that Excluded Dispute will be deemed a “Dispute” for the remainder of this Section 16(B).
You can obtain JAMS procedures, rules, and fee information by calling (949) 224-1810 or visiting http://www.jamsadr.com.
(ii) Nature, Limitations, and Location of Alternative Dispute Resolution. In arbitration, as with a court, the arbitrator must honor the terms of these Terms (and any additional terms) and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (A) THERE IS NO JUDGE OR JURY, (B) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (C) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in the City and County of New York, New York. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require Update to pay a greater portion or all of such fees and costs in order for this Section 16 to be enforceable, then Update will have the right to elect to pay the fees and costs and proceed to arbitration, or to decline to do so and have the matter resolved through the courts. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to the Federal Arbitration Act.
17.1 Assignment. The rights granted to you under these Terms may not be assigned without Update’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
17.2 Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.
17.3 Attorneys’ Fees. The prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.
17.4 No Waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision at a later time. An express waiver by Update of any provision, condition or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition or requirement at a later time.
17.5 Equitable Remedies. You acknowledge and agree that Update would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that we shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.
17.6 Entire Agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and Update with respect to the Site and supersedes any and all prior agreements between you and Update relating to the Site.
17.7 Transfer. We may transfer our rights and obligations under these Terms to another organization, but this will not affect your rights or our obligations under these Terms.
We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Site (we may also email you about any material changes to these Terms). We want you to be informed of important changes to our Terms, but some changes are not that important — we don't want to bother you every time we fix a typo. So, while we may modify these Terms at any time, we will notify you of any changes that affect your rights. We reserve the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Site (or any part of it) with or without notice.
If you have any questions or comments relating to the Site or these Terms, please contact us at:
Update Beverages Inc.
Contact email address: email@example.com
1185 Avenue of the Americas,
C/O Hess Corporation
New York, NY 10036