This User Agreement, the User Privacy Notice, the Mobile Devices Terms, and all policies posted on our sites set out the terms on which DrinkEataly offers you access to and use of our sites, services, applications and tools (collectively “Services”). You can find an overview of our policies here. All policies, the Mobile Devices Terms, and the User Privacy Notice are incorporated into this User Agreement. You agree to comply with all of the above when accessing or using our Services.
The entity you are contracting with is DrinkEataly .
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt out: (1) you will only be permitted to pursue claims against us on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
DrinkEataly is a marketplace that allows users to offer, sell and buy just about anything in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. DrinkEataly is not a traditional auctioneer.
While we may provide pricing, shipping, listing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, DrinkEataly has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
In connection with using or accessing the Services you will not:
post, list or upload content or items in inappropriate categories or areas on our sites;
breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
fail to pay for items purchased by you, unless you have a valid reason as set out in an DrinkEataly policy, for example, the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the seller (see our Unpaid item policy);
fail to deliver items sold by you, unless you have a valid reason as set out in an DrinkEataly policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
manipulate the price of any item or interfere with any other user’s listings;
post false, inaccurate, misleading, defamatory, or libelous content;
take any action that may undermine the feedback or ratings systems (see about our Feedback policies);
transfer your DrinkEataly account (including Feedback) and user ID to another party without our consent;
distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm DrinkEataly, or the interests or property of users;
use any robot, spider, scraper, or other automated means to access our Services for any purpose;
bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
export or re-export any DrinkEataly application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to DrinkEataly, or that comes from the Services and belongs to another DrinkEataly user or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of DrinkEataly and/or any other party holding the right to license such use;
commercialize any DrinkEataly application or any information or software associated with such application;
harvest or otherwise collect information about users without their consent; or
circumvent any technical measures we use to provide the Services.
Sellers must meet DrinkEataly’s minimum performance standards. Failure to meet these standards may result in DrinkEataly limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing DrinkEataly in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
The fees we charge for using our Services are listed on our Standard Selling Fees page. We may change our seller fees from time to time by posting the changes on the DrinkEataly site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
You must have a payment method on file when selling on DrinkEataly and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed by charging other payment methods on file with us, retaining collection agencies and legal counsel, and, for accounts over 180 days past due, requesting that PayPal deduct the amount owed from your PayPal account balance. In addition, you will be subject to late fees. DrinkEataly, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information DrinkEataly reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at DrinkEataly Inc., C/O Global Collections, 7700 West Parmer Lane, Building D, Austin, TX 78729. If you wish to dispute the information a collection agency reported to a credit bureau regarding your DrinkEataly account, you must contact the collection agency directly.
When listing an item, you agree to comply with DrinkEataly’s rules for listing and Selling Practices policy and that:
You are responsible for the accuracy and content of the listing and item offered;
Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). DrinkEataly can’t guarantee exact listing durations;
Content that violates any of DrinkEataly’s policies may be deleted at DrinkEataly’s discretion;
We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
buyer’s location, search query, browsing site, and history;
item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
seller’s history, including listing practices, Detailed Seller Ratings, DrinkEataly policy compliance, Feedback, and defect rate; and
number of listings matching the buyer’s query.
Accordingly, to drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.
Some advanced listing upgrades will only be visible on certain Services.
DrinkEataly’s Duplicate Listing Policy may also affect whether your listing appears in search results.
Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results.
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers.
When buying an item, you agree to the rules for buyers and that:
You are responsible for reading the full item listing before making a bid or commitment to buy.
You enter into a legally binding contract to purchase an item when you commit to buy an item or if you have the winning bid (or your bid is otherwise accepted).
For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer’s serious expression of interest in buying the seller’s item and does not create a formal contract between the buyer and the seller.
We do not transfer legal ownership of items from the seller to the buyer.
Utah Code Annotated § 70A-2-401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
International Buying and Selling; Translation
Many of our Services are accessible to international sellers and buyers. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items. If you purchase an item on an DrinkEataly site other than DrinkEataly.com, you are subject to the User Agreement of that other DrinkEataly site with respect to that particular purchase.
You may list your items directly on one or more of DrinkEataly’s international sites. Additionally, you may direct us to display your listing on DrinkEataly sites other than the original DrinkEataly listing site, including where you choose to list an item with an international shipping option (such as worldwide shipping or the Global Shipping Program): the appearance of your listings on these sites is not guaranteed. When you sell your items internationally, you agree to be subject to that other site’s User Agreement, policies, and the DrinkEataly International Selling Policy. You may restrict international buyers from purchasing your items if you explicitly exclude international shipping from your listings and apply an exclusion list to your listings.
You authorize us to use automated tools to translate your DrinkEataly content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark, and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.
You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with this User Agreement.
We may offer catalogs including stock images, descriptions and product specifications that are provided by third-parties (including users). You may use catalog content solely in connection with your DrinkEataly listings. The permission to use catalog content is subject to modification or revocation at any time at DrinkEataly’s sole discretion.
While we try to offer reliable data, we cannot promise that the catalogs will always be available, accurate, and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings).
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. DrinkEataly’s Verified Rights Owner (VeRO) program works to ensure that listed items and content on our site or in our apps do not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our VeRO team through our VeRO program and we will investigate. Learn how to submit a notice to DrinkEataly.
To protect DrinkEataly from risk of liability for your actions as a seller, DrinkEataly has at times recommended, and may continue to recommend, that PayPal restrict access to funds in a seller’s PayPal account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, transaction value, or the filing of an DrinkEataly Money Back Guarantee case. This may result in PayPal restricting funds in your PayPal account.
Authorization to Contact You; Recording Calls
DrinkEataly may contact you using autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. DrinkEataly may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. As described in our User Privacy Notice, DrinkEataly may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. If you do not wish to receive such communications, you may change your communications preference at any time, including through the communication preferences section of your My DrinkEataly.
DrinkEataly may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by DrinkEataly to carry out the purposes we have identified above.
DrinkEataly may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with DrinkEataly or its agents for quality control and training purposes or for its own protection.
Privacy of Others; Marketing
If DrinkEataly provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
Returns and Cancellations
Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, DrinkEataly will set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within My DrinkEataly. Where settings have been set to automatically accept requests for returns or replacements, an DrinkEataly-generated return shipping label will be provided to your buyer. You agree to comply with our returns policy.
When an item is returned, to refund the buyer, you (as seller) authorize DrinkEataly to request that PayPal remove the refund amount (in same or other currency) from your PayPal account, place the amount on your invoice, and/or charge your payment method on file.
The cost of return shipping for an item that is not as described is the seller’s responsibility.
You (as seller) authorize DrinkEataly to place the return shipping label cost on your invoice, subject to your automatic payment method on file when:
An DrinkEataly-generated return shipping label is used, and the seller is responsible for its cost;
Returns have been automated; and/or
You fail to send your buyer a return shipping label and, instead, an DrinkEataly-generated shipping label is used.
When a transaction is cancelled, to refund the buyer, you (as seller) authorize DrinkEataly to request that PayPal remove the refund amount (in same or other currency) from your PayPal account. See our Cancellation Policy for more details.
Global Shipping Program
One of the ways that we may make DrinkEataly.com listings available to international buyers on DrinkEataly.com and on DrinkEataly’s International Sites is through the Global Shipping Program. For eligible items located in the United States and purchased by an international buyer through the Global Shipping Program, you (as seller) will simply ship the item to a parcel processing facility located in the United States. Pitney Bowes Inc., a third-party global shipping provider, will oversee the processing, customs clearance, and international shipment of the item on behalf of your international buyer. To the extent a buyer has a question about your Global Shipping Program listings, DrinkEataly may respond directly to the buyer if the question pertains to the services overseen by Pitney Bowes Inc. (for example, customs or international shipping). You pay no additional fees for selling through the Global Shipping Program.
Pursuant to a routed export transaction under the U.S. Export Administration Regulations and Foreign Trade Regulations, your buyer, as the Foreign Principal Party in Interest, will agree to assume responsibility for the export shipment, with Pitney Bowes Inc. acting as your buyer’s forwarding agent. You remain liable for the accuracy of information you provide about items, and you agree to provide timely responses to requests for additional information.
You consent to the disclosure of certain personally identifiable information, as well as listing and order information, by DrinkEataly to Pitney Bowes Inc., and by Pitney Bowes Inc. to its affiliates, service providers, and other third parties (such as customs and revenue authorities, as well as other government agencies), in connection with the processing, export and customs clearance, and international transportation of any item. DrinkEataly does not control the privacy policies of Pitney Bowes Inc., its affiliates, or its service providers, and you are subject to the privacy policies of those parties, as applicable.
You may prevent your listings from being made available to international buyers through the program by adjusting your account settings within My DrinkEataly. Additional information about the program, including policies governing feedback, the handling of lost, damaged, and undeliverable items, returns, and the resolution of buyer protection claims for items that you sell through the program, can be found on the Global Shipping Program Seller Policies and Frequently Asked Questions page.
DrinkEataly Money Back Guarantee
Most DrinkEataly sales go smoothly, but if there’s a problem with a purchase, the DrinkEataly Money Back Guarantee helps buyers and sellers communicate and resolve issues. You agree to comply with the policy and permit us to make a final decision on any DrinkEataly Money Back Guarantee case.
If you (as seller), choose to reimburse a buyer, or are required to reimburse a buyer or DrinkEataly under the DrinkEataly Money Back Guarantee, you authorize DrinkEataly to request that PayPal remove the reimbursement amount (in same or other currency) from your PayPal account, place the amount on your invoice, and/or charge your payment method on file. If we cannot get reimbursement from you, we may collect the outstanding sums using other collection mechanisms, including retaining collection agencies.
We may suspend the DrinkEataly Money Back Guarantee in whole or in part without notice if we suspect abuse or interference with the proper working of the policy.
Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in DrinkEataly’s applications may not occur in real time. Such functionality is subject to delays beyond DrinkEataly’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
your use of or your inability to use our Services;
pricing, shipping, format, or other guidance provided by DrinkEataly;
delays or disruptions in our Services;
viruses or other malicious software obtained by accessing or linking to our Services;
glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any DrinkEataly Service;
the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
a suspension or other action taken with respect to your account or breach of the Abusing DrinkEataly Section above;
the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) any amounts due under the DrinkEataly Money Back Guarantee up to the price the item sold for on DrinkEataly (including any applicable sales tax) and its original shipping costs, (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (c) $100.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of DrinkEataly’s Services or your breach of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND DrinkEataly HAVE AGAINST EACH OTHER ARE RESOLVED.
You and DrinkEataly agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the DrinkEataly User Agreement, your use of or access to the Services, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and DrinkEataly, except as otherwise stated in the User Agreement.
B. Agreement to Arbitrate
You and DrinkEataly each agree that any and all disputes or claims that have arisen or may arise between you and DrinkEataly relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to DrinkEataly’s Services, or any products or services sold, offered, or purchased through DrinkEataly’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND DrinkEataly AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND DrinkEataly AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and DrinkEataly’s right to appeal the court’s decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). You may download a form Notice here. The Notice to DrinkEataly should be sent to DrinkEataly Inc., Attn: Litigation Department, Re: Notice of Dispute, 583 W. DrinkEataly Way, Draper, UT 84020. DrinkEataly will send any Notice to you to the physical address we have on file associated with your DrinkEataly account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and DrinkEataly are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or DrinkEataly may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to DrinkEataly at the following address: firstname.lastname@example.org
In the event DrinkEataly initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your DrinkEataly account. Any settlement offer made by you or DrinkEataly shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or DrinkEataly may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and DrinkEataly subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or DrinkEataly may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same DrinkEataly user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, DrinkEataly will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by DrinkEataly should be submitted by mail to the AAA along with your Demand for Arbitration and DrinkEataly will make arrangements to pay all necessary fees directly to the AAA. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse DrinkEataly for all fees associated with the arbitration paid by DrinkEataly on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW DrinkEataly USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO DrinkEataly INC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 583 WEST DrinkEataly WAY, DRAPER, UT 84020.
For your convenience, we are providing an Opt-Out Notice form you must complete and mail to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the DrinkEataly account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against DrinkEataly prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and DrinkEataly. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.DrinkEataly.com at least 30 days before the effective date of the amendments and by providing notice through the DrinkEataly Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and DrinkEataly must be resolved exclusively by a state or federal court located in Salt Lake County, Utah. You and DrinkEataly agree to submit to the personal jurisdiction of the courts located within Salt Lake County, Utah for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.tikitaly.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you through the DrinkEataly Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an DrinkEataly representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the DrinkEataly site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement, the User Privacy Notice, and all polices set forth the entire understanding and agreement between you and DrinkEataly and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.