Last Updated: October 6, 2016
Your Consent and Use of the Website
This Agreement is current as of the Last Updated date shown above. We may from time to time change or modify the terms and conditions that govern your use of our Website and Services and this Agreement by updating this posting. Your use of our Website and Services following any such change constitutes your agreement to follow and be bound by the terms and conditions as changed. We may terminate your right to and deny you access to this Website, or remove any material you may have posted at the Website, if, in our sole discretion, you fail to comply with any term or provision of this Agreement, or for any other reason whatsoever. Except as otherwise provided herein, however, we undertake no obligation to police, supervise, or monitor materials posted to this Website by you or other third parties.
Use of this Website and Services is limited to persons over the age of eighteen (18) who are residents of the United States. You must be 18 years or older to register for an account, transmit/submit/post any content, material or personally identifiable information or place an order on the Website.
This Website is not directed to children under 13 years old. The policy of Thoughtfully, as the operator of this Website, is NOT to knowingly collect any personal information from children under 13, including “individually identifiable information,” as defined by the Children’s Online Privacy Protection Act (COPPA). If you are under 13, you should leave the Website without providing any information about yourself. Any access to or use of this Website or Services by anyone under the age of majority requires consent to this Agreement by a parent or legal guardian. By accessing or using the Website and/or Services, you represent and warrant to us that you are either a legal adult or, if under the age of majority, have obtained proper consent from a parent or legal guardian to your use of the Website, Services and this Agreement, and that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement.
Thoughtfully imposes certain restrictions on your permissible use of the Website. You are prohibited from violating or attempting to violate any security features of the Website, including without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Website, or any associated system, service or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including without limitation, by means of submitting a virus to the Website, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing”; (d) using the Website to send unsolicited email, including without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any email or in any posting using the Website; or (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Thoughtfully in providing the Website. Any violation of system or network security may subject you to civil and/or criminal liability. Without limiting the foregoing, you may not use “bots,” spiders or intelligent agent software (or similar technologies) for any purposes other than accessing publicly posted portions of the Website and only for purposes consistent with this Agreement. You may not circumvent any access or use restrictions, data encryption or content protection related to the Website. You may not data mine the Website or in any way cause harm to the Website.
Website Contents and Intellectual Property Rights
The design of the Website, the Website as a whole, and all materials that are part of the Website and Services (collectively, “Contents”) are copyrights, trademarks, trade dress or other intellectual properties owned, controlled or licensed by Thoughtfully or its subsidiaries and affiliates or others. No right, title or interest in any of the information, material, or other Contents of this Website is granted to you under any circumstances and Thoughtfully reserves and retains all intellectual property rights in and to the Website and its Contents. Linking or framing to this Website or any of its Contents is prohibited without the prior written permission of Thoughtfully.
Except as expressly noted herein, you may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of, or exploit in any way the Website or its Contents. Unauthorized use or copying (including electronic copying or downloading) of the Website and Contents without Thoughtfully’s express written consent is expressly prohibited by law, and may result in severe civil and criminal penalties. All Contents and Thoughtfully trademarks, copyrights, trade dress and/or intellectual property used on the Website may not be used in connection with any product or service that is not offered for sale or otherwise provided by Thoughtfully, or in any manner that is likely to cause confusion among customers, or in any manner that disparages or defames Thoughtfully or the Website.
Opinions, advice, statements, testimonials, reviews, offers or other information or content made available on this Website or through our Services, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content.
The Website may also contain references to trademarks, copyrighted materials, technologies, products or other proprietary rights of third parties, who may or may not be affiliated with, connected to, or sponsored by Thoughtfully. No license to or right in any such trademarks, copyrighted materials, technologies, products or other proprietary rights is granted to or conferred upon you without our written permission or that of the third party rights holder.
Disclaimer of Warranties and Limitation of Liabilities
ALL USE OF THIS WEBSITE, ANY INFORMATION, CONTENT, PRODUCTS, OR SERVICES HEREIN CONTAINED OR PROVIDED AT OR PURCHASED FROM THIS WEBSITE, AND ANY FUNCTIONALITY OR SOFTWARE OR PROGRAMMING CONTAINED OR PROVIDED AT THIS WEBSITE, IS PROVIDED ON AN ‘AS IS’ BASIS WITHOUT GUARANTEE OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. WITHOUT LIMITING THE FOREGOING, we make no warranty, promise or guarantee of any kind that (A) Operation of our Website and/or Services will be continuous, TIMELY, uninterrupted, secure, or that this Website or its server are free of ERRORS, viruses or other harmful effects; (b) the Website or Services will meet your requirements or expectations; (c) the results that may be obtained from use of the Website, PRODUCTS or Services will be effective, typical, accurate or reliable; AND (d) the quality of any products, services or information purchased or obtained by you from the Website or Services will meet your expectations or be free from mistakes, errors or defects. YOUR USE OF THE WEBSITE, PRODUCTS AND SERVICES ARE AT YOUR OWN RISK.
FURTHER, WITHOUT LIMITING THE FOREGOING, ALL INFORMATION PROVIDED ON THIS WEBSITE IS WITHOUT WARRANTY AS TO ITS COMPLETENESS, TIMELINESS, ACCURACY, SUITABILITY OR AUTHENTICITY. You should conduct your own due diligence as to the truth, accuracy, completeness, and continuing validity of any information set forth in or referenced at this Website. Likewise, THOUGHTFULLY does not warrant the accuracy of third party content contained within or referred to at this Website, including reference by any links to third party Websites. THOUGHTFULLY IS NOT LIABLE FOR ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY USER.
UNDER NO CIRCUMSTANCES OR LEGAL THEORY SHALL THOUGHTFULLY OR ITS AFFILIATED OR RELATED ENTITIES OR ITS VENDORS OR CONTENT PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES (WHETHER DIRECT, INDIRECT, GENERAL, COMPENSATORY, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR OTHERWISE), INJURY, CLAIM OR LIABILITY OF ANY KIND OR CHARACTER BASED UPON OR ARISING FROM YOUR USE OF OR INABILITY TO USE THIS WEBSITE OR SERVICES. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR SERVICES, OR ANY MATERIALS ON THE WEBSITE, OR WITH ANY OF THE TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE AND SERVICES.
WITHOUT LIMITING THE FOREGOING, THE LIABILITY OF THOUGHTFULLY FOR ANY DAMAGE OF ANY KIND, DIRECT OR INDIRECT, ARISING FROM YOUR USE OF THIS WEBSITE OR SERVICES, ANY INFORMATION, CONTENT, PRODUCTS OR SERVICES OBTAINED AT OR FROM THIS WEBSITE, OR OTHERWISE RELATING TO YOUR USE OF THIS WEBSITE, PRODUCTS OR SERVICES, SHALL NOT EXCEED THE DOLLAR AMOUNT PAID BY YOU, IF ANY, TO THOUGHTFULLY FOR USE OF THIS WEBSITE, PRODUCTS OR SERVICES.
Release and Indemnification
IN THE EVENT YOU HAVE A DISPUTE WITH ONE OR MORE USERS of the WEBSITE OR SERVICES (INCLUDING, BUT NOT LIMITED TO, ANY DISPUTE REGARDING ANY TRANSACTION OR USER GENERATED CONTENT) OR ANY THIRD PARTY WEBSITE THAT MAY BE LINKED TO OR OTHERWISE INTERACT WITH THE WEBSITE, INCLUDING WITHOUT LIMITATION, ANY SOCIAL MEDIA SITE, YOU HEREBY AGrEE TO RELEASE AND FOREVER DISCHARGE THOUGHTFULLY AND ITS RESPECTIVE AGENTS, DIRECTORS, OFFICERS, EMPLOYEES AND ALL OTHER RELATED PERSONS OR ENTITIES FROM ANY AND ALL RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABILITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO, OR ARE CONNeCTED WITH SUCH DISPUTE AND/OR YOUR USE OF THE WEBSITE AND/or SERVICES.
You agree to indemnify, defend and hold harmless THOUGHTFULLY, its directors, shareholders, officers, employees, agents, distributors, vendors and affiliates (collectively the “Indemnified Parties”) from and against all claims, demands, liabilities, losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from, arising out of OR IN CONNECTION WITH your use, unlawful use or other misuse, or inability to use the Website or Services, your breach of this Agreement, OR otherwise RELATING TO THE BUSINESS WE CONDUCT ON THE WEBSITE (INCLUDING WITHOUT LIMITATION ANY POTENTIAL OR ACTUAL COMMUNICATION, TRANSACTION OR DISPUTE BETWEEN YOU AND ANY OTHER THIRD PARTY), ANY CONTENT POSTED BY YOU OR ON YOUR BEHALF TO THE WEBSITE, ANY USE OF ANY SERVICE PROVIDED BY A THIRD PARTY PROVIDER, OR ANY USE OF A SERVICE OFFERED BY US THAT INTERACTS WITH A THIRD PARTY WEBSITE, INCLUDING ANY SOCIAL MEDIA SITE. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENSE OF ANY CLAIM. WE RESERVE THE RIGHT, AT OUR OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU AND YOU SHALL NOT SETTLE ANY MATTER WITHOUT OUR WRITTEN CONSENT. THIS SECTION SURVIVES TERMINATION OF THIS AGREEMENT.
Choice of Law, Arbitration, and Venue
This Agreement and any claim or controversy relating to or arising from the use of this Website or Services, including without limitation, any transactions made or entered into at this Website, any information, content, products, services or promotions herein contained or provided from this Website, or any functionality, software or programming contained or provided at or from this Website (hereafter, “Claims”), shall be governed by the laws of the State of California without regard to principles of conflicts of law and, as applicable, the laws of the United States of America. All Claims shall be decided by one arbitrator pursuant to this provision and the commercial arbitration rules and procedures of JAMS, Inc. at their offices located in Orange County, California. For more information on JAMS and/or the rules of JAMS, visit http://www.jamsadr.com. All Claims shall be brought solely in the parties’ individual capacity, and not as a plaintiff or class member in any purported class or representative proceeding. The arbitrator may not consolidate more than one person’s Claims, and may not otherwise preside over any form of a representative or class proceeding with respect to any such Claims. NEITHER PARTY SHALL BE PERMITTED TO OBTAIN AWARDS FOR, AND EACH PARTY HEREBY WAIVES ALL RIGHTS TO CLAIM, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES AND ANY OTHER DAMAGES, OTHER THAN FOR ACTUAL OUT-OF-POCKET EXPENSES, AND WAIVES ALL RIGHTS TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED. The decision of the arbitrator shall be final and binding. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, shall be conducted in the Superior Court of the State of California, in and for the County of Orange or, where applicable, the federal District Court sitting in the County of Orange, State of California. Likewise, in the event that this arbitration agreement is for any reason held to be unenforceable, any litigation shall be commenced only in the federal or state courts located in Orange County, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
By using the Website and/or Services in any manner, you agree to the above arbitration agreement. In doing so, you give up your right to go to court to assert or defend any claims between you and us. You also give up your right to participate in a class action or other class proceeding.
Submission and Posting of Information, Comments, Writings and Other User-Generated Content and Materials
As a user of this Website, you may be able to post content on the Website, including providing testimonials or reviews, leaving comments, sending personalized messages to gift recipients, etc. You are solely responsible for the content that you publish, display or post on the Website or Services, or transmit or display to other users or gift recipients. However, Thoughtfully reserves the right to block or remove any communications or materials that it determines to be (a) abusive, defamatory, or obscene, (b) fraudulent, deceptive, or misleading, (c) in violation of copyright, trademark or other intellectual property rights, (d) in violation of any law, regulation or this Agreement, or (e) offensive or otherwise unacceptable to Thoughtfully in its sole discretion. Thoughtfully reserves the right, but undertakes no duty, to review, edit, move or delete any communication or material provided for display, in personal gift messages, or placed on the Website, in its sole discretion, without notice. If at any time Thoughtfully chooses, in its sole discretion, to monitor the content, Thoughtfully nonetheless assumes no responsibility for the content, no obligation to modify or remove any inappropriate content, and no responsibility for the conduct of the user submitting any such content. You agree that Thoughtfully shall under no circumstances be held liable on account of any action it takes, in good faith, to remove from the Website or restrict access to material that it or any user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.
Your submission of such information and material shall further constitute an assignment to Thoughtfully of all worldwide rights, titles, interests and goodwill in the information and materials without payment of any compensation. By posting content to any public area of the Website, you automatically grant and represent and warrant that you have the right to grant, to us, our affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid, worldwide license to use, copy, perform, display, reproduce, adapt, modify and distribute such information and content and to prepare derivative works of, or incorporate into other works, such information and content, and to grant and authorize sublicenses of the foregoing.
If you provide or post any information, materials, text, images, music, video, or other content or works of any nature (collectively, “Posted Content”) at or through the Website, you represent, warrant, and agree that any such Posted Content:
- (a) is not defamatory, obscene, pornographic, abusive, harassing, offensive, profane, or otherwise in violation of any law or right of any third party;
- (b) is not false, inaccurate, misleading, or fraudulent;
- (c) does not infringe any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy;
- (d) does not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- (e) does not contain personal identifying information of any person other than you;
- (f) does not contain any advertising of any nature whatsoever;
- does not contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any system, data, or personal information, or the operation of any computer or computer program, including, without limitation, any mechanism for overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Website or any system, or intended to send unsolicited e-mail, including without limitation, promotions, or advertisements for products or services; and
- (h) shall become and be the property of Thoughtfully with the full and unrestricted right of Thoughtfully to distribute, copy, transfer, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise use such Posted Content without compensation to you.
Copyright/ DMCA Notice and Procedure
If you believe that your work was copied or posted on our Website in a way that constitutes copyright infringement, please contact our designated agent at:
Coastal Cocktails, Inc.
18011 Mitchell South, Suite B
Irvine, CA, 92614
Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing.
Your notification must include the following information:
- (A) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- (B) Identification of the copyrighted work claimed to have been infringed or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- (C) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- (D) Information reasonably sufficient to permit the service provider to contact the complaining party such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted.
- (E) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.
- (F) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Only DMCA notices should go to the Thoughtfully agent designated above. Communications regarding other matters directed to that address or DMCA notices which do not comply with the requirements of DMCA may be ignored.
Upon receipt of the written notification containing the information outlined above:
- (A) Thoughtfully shall remove or disable access to the material that is alleged to be infringing.
- (B) Thoughtfully shall use reasonable efforts to forward the written notification to such alleged infringer (“User”).
- (C) Thoughtfully shall take reasonable steps to notify the User that it has removed or disabled access to the material.
To be effective, a Counter Notification must be a written communication provided to Thoughtfully’s designated agent that includes substantially the following:
- (A) A physical or electronic signature of the User.
- (B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- (C) A statement under penalty of perjury that the User has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- (D) The User’s name, address, and telephone number, and a statement that the User consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the User’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the User will accept service of process from the person who provided notification or an agent of such person.
Upon receipt of a Counter Notification containing the information outlined above:
- (A) Thoughtfully shall promptly provide you with a copy of the counter notification and inform you that Thoughtfully will replace the removed material or cease disabling access to it in 10 business days; and
- (B) Thoughtfully shall replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless Thoughtfully’s designated agent first receives notice from you that you have filed an action seeking a court order to restrain the User from engaging in infringing activity relating to the material at the Website.
Thoughtfully may, in appropriate circumstances, terminate an account holder or user of the Website if he or she is a repeat infringer. If you believe that an account holder or user is a repeat infringer, please follow the instructions above to contact Thoughtfully’s DMCA agent and provide information sufficient for us to verify that the account holder or user is a repeat infringer.