Terms of Service

Effective Date: October 2019

 

This website (https://theplugdrink.com/policies/terms-of-service) (the “Site”) is operated by The Plug Drink, Inc. (“The Plug,” “Company,” “we,” “our” or “us”).  By visiting our site, using our services and/ or purchasing something from us, you agree to be bound by these terms and conditions (“Terms of Use”, “Terms”), including those additional terms and conditions and policies referenced herein. These Terms of Use apply to all users of the site, including without limitation users who are browsers, vendors, customers, merchants, and/ or contributors of content on the Site. Please read these Terms carefully before accessing or using our Site. By accessing or using any part of the Site, you agree to be bound by these Terms. 

 

By accessing or using the Site you acknowledge that you have read, understood and agree to be bound by these Terms and our <<Privacy Policy>>.

 

PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SITE, AS THEY AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS. THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE, WHICH REQUIRES THAT YOU AND THE COMPANY ARBITRATE CERTAIN CLAIMS BY BINDING, INDIVIDUAL ARBITRATION INSTEAD OF GOING TO COURT AND LIMITS CLASS ACTION CLAIMS, UNLESS YOU OPT OUT OF THE AGREEMENT TO ARBITRATE AS DESCRIBED IN THE ARBITRATION SECTION.

 

If you do not agree to these Terms, please stop using the Site immediately.

 

A few important points:

  • THE STATEMENTS MADE ON THE SITE HAVE NOT BEEN EVALUATED BY THE FDA. THESE PRODUCTS ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE. THE PLUG DRINK IS NOT A PROVIDER OF MEDICAL ADVICE, TREATMENT OR DIAGNOSIS. BEFORE YOU TAKE ANY ACTION THAT MAY AFFECT YOUR HEALTH OR SAFETY, PLEASE CONSULT WITH A HEALTHCARE PROFESSIONAL. 
  • You are only eligible to use the Site if you are a United States resident who is of the age of majority in the jurisdiction where you reside.
  • We may update these Terms from time to time and such changes will become applicable to you if you continue to use the Site at any time after such changes are posted. If a material change is made, we will notify you through the Site. Read through any changes, and if you do not agree to them, please stop using the Site.
  • Additional terms and conditions may apply to specific products or your use of certain portions of the Site. These additional terms are also legally binding.

1. Your Account

 

You may be asked to create an account in order to access certain features of the Site. In order to create an account, we will ask you to provide an email address, and create a password (“Account Information”).  

 

When you register for an account with us, the following rules apply:

  • Only provide accurate and current Account Information.
  • Inform the Company immediately of any unauthorized use of your account.  You are responsible for anything that happens through your account – with or without your permission.  The Company is not responsible for any loss or activity that results from the unauthorized use of your account.

We may suspend or terminate your account or access to the Site at any time with or without notice if we suspect an unauthorized use of your account.

 

By registering for an account, you acknowledge and agree that the Company may contact you using the information that you provide to us.

 

2. Your Orders

 

Placing Your Order.  Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to refund or exchange only according to our <<Refund Policy>>.

 

We have made every effort to display as accurately as possible the colors and images of our products that appear on the Site but we cannot guarantee that your computer monitor's display of any color will be accurate.

 

We reserve the right, but are not obligated, to limit the sales of our products to any person, geographic region or jurisdiction. We may exercise this right on a case-by-case basis. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change at any time without notice, at the sole discretion of us. We reserve the right to discontinue any product at any time. Any offer for any product or service made on this site is void where prohibited.

 

We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Site will be corrected.

 

We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made. We reserve the right to limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.

 

You agree to provide current, complete and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.

 

Payment Methods. You will be required to provide your credit card or bank account details to process your payment. This information is provided to our third-party payment processors including, PayPal, Stripe, and Shopify.

 

You authorize us to process payment for our products and services, using the payment information you supplied. You agree to provide the third-party service provider with accurate and complete information about you; and you authorize us to share it and any transaction information related to your use of the Site with our third-party payment processors as required to process your payment, including but not limited to any fees owed to us. We reserve the right, in our sole discretion to refund, provide credits for or arrange for the third-party payment processor to do the same, as we deem necessary. 

 

If you believe a payment has been processed in error, you must provide written notice to us within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by the us within such thirty (30) day period, the payment will be deemed final and valid.  We are not responsible for any fees or charges assessed by third party payment processor, or any errors in the processing of your payment by a third party payment processor, including any errors that result from third-party negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information. Your sole recourse is with the third-party payment processor which processed the payment.

 

Refunds & Shipping.  For more information, please review our <<Refund Policy>>.

 

Promotions & Offers.  We may offer promotions or discounts from time to time, as described in connection with each offer.  Additional terms may apply to these promotional offers. Eligibility for a promotional offer will be determined by the Company, in our sole discretion.  We may limit the eligibility or duration of our promotional offers at any time and for any reason. We reserve the right to revoke any offer and put your account on hold if we determine that you are not eligible for the offer.

 

Products are Not for Resale.  Our products are not intended for resale and you may not offer, sell or resell any product featured on the Site without the Company’s express prior written consent.

 

California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.  If you have any questions about these Terms, please contact us at info@theplugdrink.com. 

 

3. Site Use & Restrictions

The Site may contain areas in which you may post or submit information (“User Content”).  Please review the guidelines below carefully.  We reserve the right to remove or refuse any User Content that does not comply with these guidelines or these Terms:

  • Only post User Content to the Site if you have all permissions and rights needed to make that content available, including from any individuals who appear or are mentioned in your User Content. 
  • Do not post User Content, link to a website, or do anything that is illegal, misleading, malicious, harassing, inaccurate, discriminatory, or otherwise objectionable or inappropriate.
  • Do not post any advertising, solicitation or commercial content on the Site or accept payment from a third party in exchange for performing commercial activity on the Site without permission from the Company.
  • Do not collect or solicit personal information from other Site users or send unsolicited messages.
  • Do not use automated technology to interact with the Site.
  • Do not impersonate any person or entity or falsely state or misrepresent your affiliation with any person or entity.

 

No Obligation to Monitor. The Company has the right to prescreen, monitor, or remove User Content – but we have no obligation to do so.

 

Ownership of User Content. User Content is owned by you or whoever created it. By submitting or posting any User Content on the Site, you grant the Company a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use your User Content, including the likeness of any person that appears in the User Content, or any of the concepts or ideas contained in the User Content, for any purpose, including commercial use, which includes the right to translate, display, reproduce, modify, create derivative works, sublicense, distribute and assign these rights. Please do not post any content unless you have permission from the person who took the picture and anyone who is depicted in the picture.  The Company will be entitled to use your User Content without incurring obligations of confidentiality, attribution or compensation to you.

 

Liability.  We take no responsibility for, we do not expressly or implicitly endorse, and we expressly disclaim any liability for the conduct of users or for any views, opinions and statements expressed in User Content.  You use the Site and view the User Content strictly at your own risk. You shall be solely liable for any damages resulting from any infringement of copyrights, trade secret, or other intellectual property rights, or any other harm resulting from your uploading, posting or submission of User Content to the Site. 

 

We reserve the right to revoke your use or access to the Site at any time, in our discretion, including, without limitation, if we believe that your conduct violates applicable law or is harmful to the interests of the Company or its subsidiaries and affiliates.

 

4. Proprietary Rights

 

Except for User Content, all of the content on our Site – including materials, text, images, software, scripts, code, designs, graphics, photos, sounds, music, videos, applications, interactive features, and other content (“Site Content“) – is owned by the Company or others we license Site Content from, and is protected under the United States’ and other countries’ copyright laws. All trademarks, logos, service marks and trade names are owned, registered and/or licensed by the Company or its parent or affiliate companies.

 

You agree not to change or delete any ownership notices from materials downloaded or printed from the Site.

 

 You agree not to copy, edit, translate, display, distribute, download, transmit, sell, redistribute, publish, or create derivate works from any content appearing on the Site, including Site and User Content, without the Company’s prior written consent, unless it is your own User Content that you legally post on the Site.

5. Additional Terms  

 

Any new features or tools which are added to the current store shall also be subject to these Terms. You can review the most current version of the Terms at any time on this page. We reserve the right to update, change or replace any part of these Terms by posting updates and/or changes to our Site. It is your responsibility to check this page periodically for changes. Your continued use of or access to the Site following the posting of any changes constitutes acceptance of those changes.

 

Our portions of the Site (such as our online store) are hosted by Shopify Inc. They provide us with the online e-commerce platform that allows us to sell our products and services to you.  For additional information about Shopify visit https://www.shopify.com/. 

 

6. Links to Other Websites

 

The Site may contain links to other sites maintained by third parties. These links are provided only as a convenience to you.  The Company, its subsidiaries and affiliated companies, have no control over, and are not responsible for any content, products or services offered by or found on third party sites, or their privacy policies. Links to third party sites do not constitute an assumption of liability or sponsorship, endorsement or approval of these sites or the content contained in these sites.

 

7. Important Disclaimers

 

The Site and any product information provided are intended for informational purposes only. The Site and any product information is not intended to provide medical information. DO NOT USE THE INFORMATION AVAILABLE ON OR THROUGH THE WEBSITE FOR DIAGNOSING OR TREATING A HEALTH PROBLEM OR DISEASE, OR PRESCRIBING ANY MEDICATION.

 

THE SITE AND ANY PRODUCT INFORMATION IS NOT PROVIDED WITH AN INTENT TO OFFER MEDICAL ADVICE, NOR ACT AS A SUBSTITUTE FOR ANY ADVICE, DIAGNOSIS, TREATMENT OR CONSULTATION WITH A QUALIFIED HEALTHCARE PROVIDER SUCH AS A DOCTOR OR OTHER MEDICAL PROFESSIONAL.  ALWAYS SEEK THE ADVICE OF A DOCTOR OR OTHER QUALIFIED HEALTHCARE PROVIDER WITH ANY QUESTIONS REGARDING A MEDICAL CONDITION. NEVER DISREGARD MEDICAL ADVICE OR DELAY IN SEEKING IT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITE.

 

Unless otherwise stated, all product names, descriptions and labeling are of U.S. origin. No director, employee, agent, or representative of the Company, its subsidiaries and affiliates are engaged in rendering medical advice, diagnosis, treatment or other medical services that in any way create a physician-patient relationship through this Site.

 

8. Warranty Disclaimer 

 

Reasonable efforts have been made to include accurate and up-to-date information on the Site. However, the Company its subsidiaries and affiliated companies make no representations or warranties, express or implied, as to the completeness or accuracy of any content included on the Site. All such documents, information and content on the Site is provided "as is" without warranty of any kind. 

 

YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF AND RELIANCE ON ANY ADVICE OR INFORMATION OBTAINED FROM OR THROUGH THE SITE.  YOUR USE OF THE SITE IS AT YOUR OWN RISK. THIS SITE AND ANY FEATURE ON THE SITE IS PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. THE COMPANY AND ITS SUBSIDIARIES AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSEES (the “COMPANY PARTIES”) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE ACCURACY OF ANY INFORMATION INCLUDED ON THIS SITE, THE OPERATION OF THIS SITE OR THE INFORMATION, CONTENT, FEATURES, MATERIALS, OR PRODUCTS INCLUDED HEREIN.

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY PARTIES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHER PROPRIETARY RIGHTS, AND FREEDOM FROM ERRORS, VIRUSES, BUGS, OR OTHER HARMFUL COMPONENTS.

 

9. Limitation of Liability

THE COMPANY PARTIES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SITE OR THE ACCURACY OF ANY INFORMATION INCLUDED HEREIN, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, OR BUSINESS INTERRUPTION ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITE, ANY DELAYS ON THE SITE, OR THE INABILITY TO USE THE SITE, ANY PORTION THEREOF, OR ANY HYPERLINKED SITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

 

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER, EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES, LIABILITIES AND DAMAGES, SO SOME OF THE ABOVE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.  IN SUCH JURISDICTIONS, THE LIABILITY OF THE COMPANY PARTIES WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

 

10. Indemnification 

 

You agree to indemnify, defend and hold harmless the Company Parties from and against any losses, expenses, damages, claims, actions, demands or expenses (including reasonable attorney’s fees) including personal injury and death, regardless of whether they arise out of or are attributable to any act or omission, negligent or otherwise, of the Company Parties or any third party vendor, arising out of or in connection with: (a) your use of the Site, (b) your breach of these Terms, including any abusive or unlawful behavior, or (c) your infringement of any intellectual property or privacy right of any third party.  This indemnification provision shall apply to third party claims as well as claims between you and the Company Parties under these Terms.

 

11. Dispute Resolution – Arbitration Agreement

 

If a dispute arises between you and the Company, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly.  When you have a problem with the Company, you agree that you will first give the Company an opportunity to resolve your problem or dispute. You may send a written description of your problem or dispute to: info@theplugdrink.com.  If for some reason your problem or dispute is not resolved satisfactorily within sixty (60) days after the Company’s receipt of your written description of it, you agree to the arbitration provisions below.

 

We will make every reasonable effort to informally resolve any claims, complaints, disputes, or disagreements that you may have with us.

 

To the extent permitted by applicable law, by agreeing to these Terms and by using the Site, you agree that, if those efforts fail, any complaint, dispute, or disagreement you may have against the Company and any claim that the Company may have against you, arising out of, relating to, or connected in any way with these Terms or our Privacy Policy, shall be resolved exclusively by final and binding arbitration (“Arbitration”) administered by JAMS or its successor (“JAMS”) and conducted in accordance with the JAMS Streamlined Arbitration Rules and Procedures (in effect at the time the Arbitration is initiated) or, if the amount in controversy exceeds $100,000, in accordance with the JAMS Comprehensive Arbitration Rules And Procedures then in effect (respectively, the “Applicable Rules”).  The Applicable Rules can be found at www.jamsadr.com.

 

YOU AND THE COMPANY AGREE THAT ALL CLAIMS SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY.

 

The arbitration shall be conducted in Los Angeles, California and judgment on the arbitration award may be entered by any court of competent jurisdiction.  Either you or the Company may seek any interim or preliminary relief from a court of competent jurisdiction in Los Angeles County, California, necessary to protect the rights or property of you or the Company pending the completion of arbitration.

 

A single arbitrator will be selected in accordance with JAMS.  The arbitration shall be conducted in English. The arbitrator will have the power to grant whatever relief would be available in court under law or in equity and any award of the arbitrator will be final and binding on each of the parties. The arbitrator will not, however, have the power to award punitive or exemplary damages, the right to which each party hereby waives.  The arbitrator will apply applicable law and the provisions of these Terms (or our Privacy Policy, if necessary) and the failure to do so will be deemed an excess of arbitral authority and grounds for judicial review. The arbitrator's decision must include a written explanation and will remain confidential.

 

If any provision of this agreement to arbitrate in this Dispute Resolution Section is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration).  Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).  Furthermore, this Dispute Resolution Section shall not prevent any party from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.

 

This Dispute Resolution Section shall survive any termination of your account or the Site.  In the event that the arbitration provisions above are found not to apply to you or to a particular claim or controversy, either as a result of your decision or as a result of a decision by the arbitrator or a court order, you agree that any claim must be resolved exclusively by a state or federal court located in Los Angeles County, California.  You and the Company agree to submit to the personal jurisdiction of the courts located within Los Angeles County, California for the purpose of litigating all such claims or controversies.

 

Arbitration Opt-Out.  YOU HAVE A RIGHT TO OPT-OUT OF THIS ARBITRATION AGREEMENT. IF YOU DO NOT AGREE TO THIS MANDATORY ARBITRATION PROVISION WITH REGARD TO ANY PARTICULAR INTERACTION WITH THE SITE, THEN WITHIN THIRTY (30) DAYS FROM THE DATE OF SUCH INTERACTION, YOU MAY OPT-OUT OF THIS PART OF THE AGREEMENT BY SENDING AN EMAIL TO INFO@THEPLUGDRINK.COM. Any opt-out received after the thirty (30) day time period will not be valid and you must pursue your claim via arbitration pursuant to these Terms.

 

12. Void Where Prohibited

 

The Site and its contents are intended to comply with the laws and regulations of the U.S.  Although the information on the Site may be accessible outside of the U.S., the information pertaining to the Company or our products and services is intended for use only by residents of the U.S.  The Company reserves the right to limit the provision of its products and services to any person, geographic region or jurisdiction and/or to limit the quantities of any products or services we provide.  Any offer for any product or service made on this Site is void where prohibited.

 

13. General

 

Governing Law.  These Terms of Use and our Privacy Policy shall be governed by and construed in accordance with the laws of the State of California, U.S., without respect to its choice of law principles.

 

No Waiver.  No failure or delay by the Company in exercising any right, power or privilege under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these Terms.

 

Severability.  Unless otherwise expressly provided herein, the invalidity or enforceability of any provision of these Terms will not affect the validity or enforcement of any other provision, all of which remain in full force and effect.

 

Headings.  The headings in these Terms are for convenience only and have no legal or contractual effect.

 

Entire Agreement.  These Terms and the Privacy Policy represent the entire understanding between the parties regarding its subject matter, and supersede all prior and contemporaneous agreements and understandings between you and the Company regarding its subject matter, and may not be amended, altered or waived.

 

Assignment.  You may not assign these Terms without the prior written consent of the Company but we may assign these Terms without any notice to you.

 

14. Contact Us

 

If you have any questions or concerns about these Terms of Use, please contact us by email at info@theplugdrink.com or write us at:

 

The Plug Drink

1840 E. 46th St.

Los Angeles, CA 90058 

15. SMS/MMS MOBILE MESSAGE MARKETING PROGRAM TERMS AND CONDITIONS

 

The Plug Drink (hereinafter, “We,” “Us,” “Our”) is offering a mobile messaging program (the “Program”), which you agree to use and participate in subject to these Mobile Messaging Terms and Conditions and Privacy Policy (the “Agreement”). By opting in to or participating in any of our Programs, you accept and agree to these terms and conditions, including, without limitation, your agreement to resolve any disputes with us through binding, individual-only arbitration, as detailed in the “Dispute Resolution” section below. This Agreement is limited to the Program and is not intended to modify other Terms and Conditions or Privacy Policy that may govern the relationship between you and Us in other contexts.

 

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 participating in the Program, you agree to receive autodialed or prerecorded marketing mobile messages at the phone number associated with your opt-in, and you understand that consent is not required to make any purchase from Us. While you consent to receive messages sent using an autodialer, 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 “autodialer”). 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 Us 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 and conditions. You further agree that, if you discontinue the use of your mobile telephone number without notifying Us of such change, you agree that you will be responsible for all costs (including attorneys’ fees) and liabilities incurred by Us, 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 digital and physical 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 Us.

 

Support Instructions: For support regarding the Program, text “HELP” to the number you received messages from or email us at justinkim1993@gmail.com. Please note that the use of this email address is not an acceptable method of opting out of the program. Opt outs must be submitted in accordance with the procedures set forth above.

 

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 Our control. T-Mobile is not liable for delayed or undelivered mobile messages.

 

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 phone capabilities for specific text messaging instructions.

 

Age Restriction: You may not use of engage with the Platform if you are under thirteen (13) years of age. If you use or engage with the Platform and are between the ages of thirteen (13) and eighteen (18) years of age, you must have your parent’s or legal guardian’s permission to do so. By using or engaging with the Platform, you acknowledge and agree that you are not under the age of thirteen (13) years, are between the ages of thirteen (13) and eighteen (18) and have your parent’s or legal guardian’s permission to use or engage with the Platform, or are of adult age in your jurisdiction. By using or engaging with the Platform, you also acknowledge and agree that you are permitted by your jurisdiction’s Applicable Law to use and/or engage with the Platform.

 

Prohibited Content: You acknowledge and agree to not send any prohibited content over the Platform. Prohibited content includes:

 

  • Any fraudulent, libelous, defamatory, scandalous, threatening, harassing, or stalking activity;
  • Objectionable content, including profanity, obscenity, lasciviousness, violence, bigotry, hatred, and discrimination on the basis of race, sex, religion, nationality, disability, sexual orientation, or age;
  • Pirated computer programs, viruses, worms, Trojan horses, or other harmful code;
  • Any product, service, or promotion that is unlawful where such product, service, or promotion thereof is received;
  • Any content that implicates and/or references personal health information that is protected by the Health Insurance Portability and Accountability Act (“HIPAA”) or the Health Information Technology for Economic and Clinical Health Act (“HITEC” Act); and
  • Any other content that is prohibited by Applicable Law in the jurisdiction from which the message is sent.

 

Dispute Resolution: In the event that there is a dispute, claim, or controversy between you and Us, or between you and Stodge, LLC d/b/a Postscript or any other third-party service provider acting on Our behalf to transmit the mobile messages within the scope of the Program, arising out of or relating to federal or state statutory claims, common law claims, this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, such dispute, claim, or controversy will be, to the fullest extent permitted by law, determined by arbitration in Los Angeles, California before one arbitrator.

 

The parties agree to submit the dispute to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) then in effect. Except as otherwise provided herein, the arbitrator shall apply the substantive laws of the Federal Judicial Circuit in which The Plug Drink’s principle place of business is located, without regard to its conflict of laws rules. Within ten (10) calendar days after the arbitration demand is served upon a party, the parties must jointly select an arbitrator with at least five years’ experience in that capacity and who has knowledge of and experience with the subject matter of the dispute. If the parties do not agree on an arbitrator within ten (10) calendar days, a party may petition the AAA to appoint an arbitrator, who must satisfy the same experience requirement. In the event of a dispute, the arbitrator shall decide the enforceability and interpretation of this arbitration agreement in accordance with the Federal Arbitration Act (“FAA”). The parties also agree that the AAA’s rules governing Emergency Measures of Protection shall apply in lieu of seeking emergency injunctive relief from a court. The decision of the arbitrator shall be final and binding, and no party shall have rights of appeal except for those provided in section 10 of the FAA. Each party shall bear its share of the fees paid for the arbitrator and the administration of the arbitration; however, the arbitrator shall have the power to order one party to pay all or any portion of such fees as part of a well-reasoned decision. The parties agree that the arbitrator shall have the authority to award attorneys’ fees only to the extent expressly authorized by statute or contract. The arbitrator shall have no authority to award punitive damages and each party hereby waives any right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The parties agree to arbitrate solely on an individual basis, and this agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. If any term or provision of this Section is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Section or invalidate or render unenforceable such term or provision in any other jurisdiction. If for any reason a dispute proceeds in court rather than in arbitration, the parties hereby waive any right to a jury trial. This arbitration provision shall survive any cancellation or termination of your agreement to participate in any of our Programs.

 

Miscellaneous: You warrant and represent to Us that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in this Agreement or in the performance of such obligations will place you in breach of any other contract or obligation. The failure of either party to exercise in any respect any right provided for herein will 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 will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Any new features, changes, updates or improvements of the Program shall be subject to this Agreement unless explicitly stated otherwise in writing. We reserve the right to change this Agreement from time to time. Any updates to this Agreement shall be communicated to you. You acknowledge your responsibility to review this Agreement from time to time and to be aware of any such changes. By continuing to participate in the Program after any such changes, you accept this Agreement, as modified.