Last Updated: 03/02/2014
Welcome to Bottles Tonight! Please read these Terms of Service (the “Terms”) carefully because they form an agreement between you and Bottles Tonight, Inc. (“Bottles Tonight”) and govern your use of our mobile application (the “App”), our website located at www.bottlestonightapp.com (the “Site”) and our listing and reservation platform for bottle service at night clubs, bars and other venues as well as related services accessible via our Site or App. To make these Terms easier to read, the Site, App, and our services are collectively called the “Services.”
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, “you” and “your” will refer to that company or other legal entity.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site, App, or through other communications. It’s important that you review the modified Terms because if you continue to use the Services after we’ve let you know that the Terms have been modified, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms then you may no longer use the Services. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services
You may use the Services only if you are over 21 years of age and are not barred from using the Services under applicable law.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this via the App or through your account with certain third-party social networking services such as Facebook or Twitter (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
If you are a venue owner (or authorized personnel), you must register with Bottles Tonight and create an Account and register separately for access to the portions of the App and our Services applicable to venue owners; your use of the App is governed by the Venue Owner Agreement between you and Bottles Tonight and not these Terms. However, as stated in the Venue Owner Agreement, Bottles Tonight’s services are still developing and subject to additional terms. You are hereby notified that Bottles Tonight uses Balanced as its third party service provider for payment services (e.g. card acceptance, merchant settlement and related services) and by listing or selling on Bottles Tonight, you agree to be bound by the Balanced Seller Terms, available at https://www.balancedpayments.com/terms/selleragreement, in addition to the Venue Owner Agreement. For questions regarding access please email us at email@example.com.
Bottles Tonight publishes venue listings of available bottle service on the App every day around 12:00pm PST/PDT. Account holders may browse listings and make reservations for that evening.
Bottles Tonight does not act as a contracting agent for you or as your representative. You agree and acknowledge that when you make a reservation via the Services, for bottle service at a particular venue, you are entering into an agreement directly with the venue owner who posted the listing. Bottles Tonight is not a party to that agreement. You acknowledge and agree that you and the venue owner, and not Bottles Tonight, will be responsible for performing the obligations of any such agreement and fulfilling any reservation, and Bottles Tonight disclaims all liability arising from or related to any such agreement.
If you choose to reserve bottle service offered in a listing, you will be required to pay, and you agree to pay, a Reservation Fee equal to (i) the price listed by the venue, (ii) a tip calculated as twenty percent (20%) of the price listed by the venue and (ii) a service fee that is charged by Bottles Tonight (all together, the “Reservation Fee”). Prices included in listings are set by the venue. Bottles Tonight reserves the right to change the amount of its service fee from time to time in its discretion, provided that no such change will impact a standing reservation.
Bottles Tonight utilizes a third party payment processor. In order to make a reservation, you must provide credit card information as well as customary billing information for processing by the third party payment processor. By submitting such information, you acknowledge and consent to such processing.
If you reserve bottle service, Bottles Tonight may place a hold on funds from your credit card for the amount of the Reservation Fee. You remain solely and independently liable for any additional charges or payments incurred by you at the venue; Bottles Tonight is not responsible for processing any such payments.
If you are invited, via the Services, by another Account holder to join a confirmed reservation, and you are agree to share the Reservation Fee with other Account holders who are also joining the confirmed reservation, you agree to pay the portion of the Reservation Fee that is presented to you via the Services prior to you agreeing to join the confirmed reservation.
All sales are final upon confirmation of your reservation and your credit card will be charged automatically at that time. If you wish to cancel a reservation made via the Services, please contact the applicable venue directly. Please note that Bottles Tonight is not responsible for resolving any disputes between you and a venue owner, whether related to a reservation cancellation initiated by you or otherwise, or processing any changes to or cancellations of reservations, and disclaims any and all liability in this regard. Bottles Tonight reserves the right, in its sole discretion, to take whatever action it deems appropriate in relation to cancellations.
If you make a reservation via the Services and do not show to claim your reservation or cancel your reservation, you are not entitled to a refund from Bottles Tonight. Please note that if you cancel a reservation, such cancellation will be subject to the cancellation policy provided by the applicable venue and you may be responsible for paying certain cancellation fees or penalties. Bottle Tonight’s services fees are non-refundable. If we notice or are informed of recurring or numerous cancellations made by you, we reserve the right to limit or deactivate your Account.
If the venue cancels your reservation or otherwise does not provide the bottle service, please contact us immediately by emailing us at firstname.lastname@example.org. If such notification is provided within twenty-four (24) hours of the scheduled reservation, Bottles Tonight may be able to refund or release your Reservation Fee (minus any non-refundable service fee charged by Bottles Tonight).
Bottles Tonight invites both venue owners and users to rank one another and evaluate their experience on a scale of 1 to 5 stars. Initially, scores will not be made public, but Bottles Tonight reserves the right to make any such score public in its discretion. Bottles Tonight also reserves the right to suspend or terminate your access to the Services if you, as a user, receive at least 5 scores that average below 3 stars. (Different standards apply for venues, which will be communicated to venue owners.) Upon receiving such reviews, we will contact both parties involved and attempt to obtain more information to determine whether such suspension or termination is warranted, which shall be determined in Bottles Tonight’s sole discretion and be a binding decision.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at FEEDBACK@bottlestonightapp.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, transferable license, with the right to grant sublicenses, under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms, “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services.
Bottles Tonight and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in Content Granted by Bottles Tonight
Subject to your compliance with these Terms, Bottles Tonight grants you a limited, non-exclusive, non-transferable license to access and view the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
You agree not to do any of the following:
Use, display, mirror or frame the Services, or any individual element within the Services, Bottles Tonight’s name, any Bottles Tonight trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Bottles Tonight’s express written consent; Access, tamper with, or use non-public areas of the Services, Bottles Tonight’s computer systems, or the technical delivery systems of Bottles Tonight’s providers; Attempt to probe, scan, or test the vulnerability of any Bottles Tonight system or network or breach any security or authentication measures; Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Bottles Tonight or any of Bottles Tonight’s providers or any other third party (including another user) to protect the Services or Content; Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Bottles Tonight or other generally available third party web browsers; Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; Use any meta tags or other hidden text or metadata utilizing a Bottles Tonight trademark, logo, URL or product name without Bottles Tonight’s express written consent; Use the Services or Content for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms; Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services or Content to send altered, deceptive or false source-identifying information; Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content; Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services; Collect or store any personally identifiable information from the Site or Services from other users of the Services without their express permission; Impersonate or misrepresent your affiliation with any person or entity; Violate any applicable law or regulation; or Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
Termination and Account Cancellation
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of Services or your Account, the following Sections will survive: Feedback, Rights in User Content Granted By You, General Prohibitions, Links to Third Party Websites or Resources, Termination and Account Cancellation, Warranty Disclaimers, Indemnity, Limitation of Liability, Dispute Resolution, and General Terms.
The Services and Content are provided “AS IS,” without warranty of any kind. Without limiting the foregoing, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify, defend and hold harmless Bottles Tonight and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content; (ii) your User Content; (iii) your violation of these Terms; or (iv) your attendance at any venue for bottle service reserved via the Services.
Limitation of Liability
NEITHER Bottles Tonight NOR ANY OTHER party involved in creating, producing, or delivering the services will be liable for any incidental, special, exemplary or consequential damages, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES arising ouT of or in connection with thESE TERMS or from the use OF or inability to use the ServiceS, whether based on warranty, contract, tort (including negligence), PRODUCT LIABILITY or any other legal theory, and whether or not BOTTLES TONIGHT has been informed of the possibility of such damage, EVEN IF A limited REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PUrPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
In no event will Bottles Tonight’S total liability arising out of or in connection with THESE TERMS OR FROM THE USE OF OR INABILITY TO USE the ServiceS or content EXCEED THE AMOUNTS YOU HAVE PAID TO BOTTLES TONIGHT FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT MADE ANY PAYMENTS TO BOTTLES TONIGHT PRIOR TO THE EVENT GIVING RISE TO LIABILITY, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN BOTTLES TONIGHT AND YOU.
Rights in App Granted by Bottles Tonight
Subject to your compliance with these Terms, Bottles Tonight grants you a limited non-exclusive, non-transferable, non-sublicenseable license to download and install a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Bottles Tonight reserves all rights in and to the App not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you download the App through or from any app store or distribution platform (like the Apple App Store or Google Play) where the App is made available (each, an “App Provider”), then you acknowledge and agree that:
· These Terms are concluded between you and Bottles Tonight, and not with the App Provider, and that Bottles Tonight (not the App Provider), is solely responsible for the App.
· The App Provider has no obligation to furnish any maintenance and support services with respect to the App.
· In the event of any failure of the App to conform to any applicable warranty, you may notify the App Provider, and the App Provider will refund the purchase price for the App to you (if applicable) and, to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the App. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Bottles Tonight.
· The App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
· In the event of any third-party claim that the App or your possession or use of that App infringes that third party’s intellectual property rights, Bottles Tonight will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms.
· The App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the App, and that, upon your acceptance of the terms and conditions of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the App against you as a third-party beneficiary thereof.
· You must also comply with all applicable third-party terms of service when using the App.
· You agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the App nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws or regulations. By using the App you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
You may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means.
Governing Law and Jurisdiction
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms shall be the state and federal courts located in the Northern District of California and/or County of San Francisco and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Agreement to Arbitrate
You and Bottles Tonight agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Bottles Tonight are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Bottles Tonight otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Bottles Tonight otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Bottles Tonight submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Bottles Tonight will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Bottles Tonight will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Changes to Terms or Services” section above, if Bottles Tonight changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Bottles Tonight’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Bottles Tonight in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Bottles Tonight and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Bottles Tonight and you regarding the Services and Content. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Bottles Tonight’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Bottles Tonight may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Bottles Tonight under these Terms, including those regarding modifications to these Terms, will be given by Bottles Tonight: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Bottles Tonight’s failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Bottles Tonight. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services please contact Bottles Tonight at email@example.com or 415-250-1392 PO Box #590141 San Francisco CA 94159.