Welcome to Froth! The following document sets forth the legally binding terms that regulate your use of this website, and the widgets, features, apps and other services available through Froth.nyc (Platform). Please read the Terms of Service carefully. It details the conditions for your use of Froth and also contains important waivers of liability.
A.1 Froth Inc. (Froth, “we,” “us,” “our”) is the owner of the Froth apps, widgets, software and the www.froth.nyc website (collectively, the Platform).Froth is a software platform and web application that offers its customers (Froth Users) bar recommendations, drink discounts and other services (theService).
A.4 OUR LIABILITY IS SUBJECT TO LIMITATIONS AND EXCLUSIONS AS SET OUT IN ITEM B (FROTH’S LIMITED ROLE), SECTION 8 (INDEMNITY), SECTION9 (LIMITATION OF LIABILITY) AND SECTION 10 (DISPUTES) OF THE GENERAL CONDITIONS. PLEASE READ THESE SECTIONS CAREFULLY BECAUSE THEY LIMIT YOUR RIGHTS.
SECTION 10 (DISPUTES) CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. IF YOU LIVE OUTSIDE OF THE UNITED STATES, SOME OR ALL OF SECTION 11 MIGHT NOT APPLY TO YOU.
B FROTH'S LIMITED ROLE
B.1 Froth is not the owner of any Bar, Restaurant or other Establishment (collectively, the Establishments) listed on the Platform (collectively, thePartners). Froth provides a Service that allows Froth Users to discover new Establishments and access discounts on beverages and other services. It is the Partner’s sole obligation to ensure that its Establishment and services meet all applicable local, state, provincial, national and other laws, rules and regulations, and that the goods and services described on the Platform are actually delivered in a satisfactory manner.
B.2 ANY ALCOHOL PURCHASED BY FROTH USERS THROUGH THE PLATFORM IS SOLD TO THE FROTH USER BY THE THIRD PARTY MERCHANT WHO OWNS THE ESTABLISHMENT WHERE THE ALOCOHOL IS PURCHASED. FROTH DOES NOT SELL ALCOHOL. FROTH ONLY PROCESSES ORDERS FOR ALCOHOL. YOU ACKNOWLEDGE THAT ANY ALCOHOL PURCHASED THROUGH THE APP IS BEING PURCHASED BY YOU FROM THE THRID PARTY MERCHANT AND IS NOT BEING PURCHASED FROM FROTH.
B.3 In processing any alcoholic beverage order(s), neither Froth nor any officer, director, employee, shareholder or agent of Froth shall be liable to the Froth User or any third-party for any claims relating to the purchase, sale, delivery and/or consumption of the alcoholic beverage or any consequences which may result thereof.
B.4 Froth User shall indemnify and hold harmless Froth and its directors, officers, employees, shareholders, affiliates, agents, representatives, third-party information providers, delivery agents, merchants, or licensors (collectively, the Froth Parties) from and against, for and in respect of, any and all claims, demands, losses, costs and expenses (including the cost of any investigation and reasonable attorneys' fees), damages, obligations, deficiencies, and liabilities, which arise or result from or are related to (a) the processing of the alcoholic beverage order; (b) the purchase of the alcoholic beverage(s); (c) access to any Establishment listed or recommended on the Platform and/or where alcohol is consumed; (d) the consumption of the alcoholic beverage(s) and/or any consequences which result thereof.
B.5 The Service is available only to individuals who are at least 21 years old. If you are not at least 21 years of age, please immediately discontinue use of this Service.
C FROTH USER ACCOUNTS
C.1 Registration. In order to access Froth’s full array of services, Froth Users are required to register, and select a Froth Username and password. The registration information must be accurate, complete, and current at all times. Failure to do so constitutes a breach of the Terms, which may result in immediate termination of the Froth account.
C.2 Fees. Fees are described below in Section E.
D MEMBERSHIP TERMS
D.1 Froth offers a monthly membership that provides a number of free drinks, cocktails, etc. (collectively, the Beverages) each month, subject to limited time periods. Pricing information and other details are listed on the website.
D.2 By selecting a Membership plan you agree to pay Froth the monthly Membership fees for the service and any additional usage fees indicated for that Membership plan. Our Membership packages will auto-renew every month at the price originally agreed to unless cancelled. You may cancel your Membership at any time.
D.3 Payment for Services will be made by a valid credit card accepted by Froth, unless other payment arrangements have been made. You hereby authorize Froth to charge your credit card for such amounts according to your Membership.
D.4 By activating a Froth Membership, you agree to the following requirements:
(a) I am legally capable of entering into a binding Membership agreement;
(b) I am of legal drinking age in the United States and the recipient of the Froth Membership is also of legal drinking age in the United States;
(c) Additionally, you grant Froth irrevocable non-exclusive license to use for any purpose any content you post on our website or communicate with us through any other media instruments
D.5 Pricing. All Goods and Services on Froth Platform are currently priced at Partner's suggested prices, including any discounts then in effect, including any shipping, handling, fulfillment fees, taxes, and other surcharges applied by Source Partner, but without any mark-up or fees applied by Froth. Froth reserves the right to alter pricing at its discretion.
D.6 Payment Method. Froth Users will make payment via a secure payment gateway.
(a) Froth reserves the right to modify the payment method at its sole discretion.
(b) Payment shall be made in U.S. dollars.
(c) Froth User is responsible for all currency costs incurred to make full payment in the currency specified on the website, regardless of the Froth User’s home currency or payment method.
When Froth User provides payment information to Froth or to one of its payment processors, Froth User represents to Froth that Froth User is the authorized Froth User of the card, PIN, key or account associated with that payment, and Froth User authorize Froth to charge Froth User’s credit card or to process Froth User’s payment with the chosen third-party payment processor for any fees incurred by Froth User. Froth may require Froth User to provide his or her address or other information in order to meet Froth’s obligations under applicable tax law.
E FROTH USER WARRANTIES
E.1 Froth User warrants and represents that:
(a) Froth User is at least 21 years of age;
(b) All information and Content posted or transmitted through the Platform is the sole responsibility of the Froth User from which such content originated. Froth will not be liable for any errors or omissions in any content;
(c) Froth does not endorse and has no control over any Partner representations, nor can it guarantee the authenticity of any data that Partners may provide about their goods, services and/or Establishments. All content accessed by Froth Users using the Service is at Froth User’s own risk. Froth User is solely responsible for any damage or loss to any party resulting therefrom.
F.1 Froth respects the intellectual property rights of others. It is our policy to respond promptly to any claim that Content posted on the Site infringes the copyright or other intellectual property infringement (Infringement) of any person. Froth will use reasonable efforts to investigate notices of alleged Infringement and will take appropriate action under applicable intellectual property law and these Terms where it believes an Infringement has taken place, including removing or disabling access to the Content claimed to be infringing and/or terminating accounts and access to the Site.
F.2 To notify Froth of a possible Infringement you must submit your notice in writing to the attention of “Copyright Infringement” care of firstname.lastname@example.org include in your notice a detailed description of the alleged Infringement sufficient to enable Froth to make a reasonable determination. Please note that you may be held accountable for damages (including costs and attorneys’ fees) for misrepresenting that any Content is infringing your copyright.
F.3 If you are uncertain whether an activity constitutes Infringement, we recommended seeking advice of an attorney.
G GOVERNMENT WARNING
G.1 ACCORDING TO THE SURGEON GENERAL, WOMEN SHOULD NOT DRINK ALCOHOLIC BEVERAGES DURING PREGNANCY BECAUSE OF THE RISK OF BIRTH DEFECTS.
G.2 WARNING: NO PERSON SHALL SELL OR GIVE AWAY ANY ALCOHOLIC BEVERAGES TO: ANY PERSON UNDER THE AGE OF TWENTY-ONE YEARS; OR ANY VISIBLY INTOXICATED PERSON. IT IS A VIOLATION PUNISHABLE UNDER LAW FOR ANY PERSON UNDER THE AGE OF TWENTY-ONE TO PRESENT ANY WRITTEN EVIDENCE OF AGE WHICH IS FALSE, FRAUDULENT OR NOT ACTUALLY HIS OR HER OWN FOR THE PURPOSE OF ATTEMPTING TO PURCHASE ANY ALCOHOLIC BEVERAGE.
H.1 Froth may terminate or suspend any and all Services and/or your Froth account immediately, without prior notice or liability, for any reason whatsoever, including without limitation if you breach the Terms. Upon termination of your account, your right to use the Services will immediately cease. If you wish to terminate your Froth account, you may simply discontinue using the Services.
H.2 All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
1.1 Compliance with these Terms is a condition to all use of the Platform by any person and or entity (Froth User). By using the Platform, each Froth User accepts and agrees to be bound by these Terms.
1.2 Froth may update these Terms at its absolute discretion from time-to-time, and unless stated otherwise by Froth in writing, such updates shall come into effect once made available on the Platform or otherwise notified to Froth Users.
1.3 The Terms and the General Conditions form a single legal agreement. To the extent that the Terms are inconsistent with the General Conditions, the Terms will prevail.
2 MODIFICATION OF THE SERVICE OR PLATFORM
2.1 Froth reserves the right, at its sole discretion, to change, modify, suspend or discontinue the Service and/or Platform, including, without limitation, the availability of any feature, database, function, or content, at any time. Froth may impose limits on certain features, services, and/or function, or restrict Froth User access to parts or all of the Service without notice or liability.
2.2 It is Froth User’s responsibility to check these Terms periodically for changes. Froth User’s continued use of the Service following the posting of any changes to these Terms constitutes acceptance of those changes. Notwithstanding the preceding sentences of this section, no modifications to these Terms will apply to any dispute between Froth Users that arose prior to the date of such modification.
3 LICENSE & USE
3.1 By accepting these Terms, Froth User is granted a limited, non-exclusive, and revocable license and use of the Platform for the duration of these Terms, in accordance with these Terms.
3.2 Froth may revoke or suspend the Froth User’s license(s) (and prevent future use of the Platform) in its absolute discretion for any reason that it sees fit, including for breach of these Terms by the Froth User. Froth will ordinarily advise the Froth User of any suspension or revocation, however it is under no obligation to do so.
3.3 The Froth User agrees that it shall only access and use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Froth in its discretion.
3.4 Froth User promises not to use Platform for any purpose prohibited by these Terms of Service.
3.5 Froth may limit or restrict access to the Platform from time-to-time as it sees fit, including (but not limited to):
(a) Location. Froth may restrict access to the Platform for Froth Users from any location and may restrict transactions, payments or any other activity on our platform in any location in its absolute discretion.
(b) Verifications. Froth may limit Froth Users and access to the Platform where it cannot, in its absolute discretion, verify any of the information provided to it by Froth Users.
4 PROHIBITED FROTH USER CONDUCT
4.1 Each Froth User warrants and agrees that, while using the Platform and the various services and features offered on or through the Platform, the Froth User shall not (and shall not permit any third party to) take any action, upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Service that:
(a) Impersonates any person or entity, whether actual or fictitious, or misrepresent affiliation with any other person or entity;
(b) Inserts its own or a third party's advertising, branding or other promotional content into any of the Platform' content, or uses, redistributes, republishes or exploits such content or service for any further commercial or promotional purposes without a license or our express permission;
(c) Attempts to gain unauthorized access to other computer systems through the Platform;
(d) Engages in spidering, "screen scraping," "database scraping," harvesting of catalogue information, e-mail addresses, wireless addresses or other contact or personal information, or any other means of obtaining lists of property, Froth Users or other information from or through the Platform;
(e) Obtains or attempt to obtain unauthorized access to computer systems, Content or information through any means;
(f) Uses the Platform or the services made available on or through the Platform in any manner with the intent to interrupt, damage, disable, overburden, or impair the Platform or such services, including sending mass unsolicited messages or "flooding" servers with requests;
(g) Is unlawful, threatening, abusive, harassing, defamatory, libellous, deceptive, fraudulent, or is otherwise inappropriate as determined by Froth in its sole discretion;
(h) Uses the Platform in violation of Froth or any third party's intellectual property or other proprietary or legal rights; or
(i) Uses the Platform in violation of any applicable law.
4.2 Each Froth User further agrees not to attempt (or encourage or support anyone else's attempt) to engage in any of the foregoing prohibited activities or to circumvent, reverse engineer, decrypt, disassemble, decompile or otherwise alter or interfere with the Platform or make unauthorized use thereof.
4.3 Each Froth User must not use the Platform in any manner that could damage, disable, overburden, or impair the Platform or interfere with any other party's use and enjoyment of the Platform, nor obtain, use or access, or attempt to obtain, use or access, any Content or information through any means not intentionally made publicly available or provided for through the Platform.
5.1 Froth User agrees to pay any and all fees notified by Froth as and when they fall due and to the extent permissible by law.
5.2 Froth may introduce new services and/or fees by giving the Froth User written notice of their availability and applicability. Froth Users will be given an opportunity to opt-in to any new fees.
5.3 Froth reserves the right to change the fees at any time at its absolute discretion.
6 INTELLECTUAL PROPERTY
6.1 Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property.
6.2 Proprietary Information. The Platform may use and incorporate software and other proprietary systems and Intellectual Property for which Froth has appropriate authority to use, and the Froth User agrees that such use is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally. The Froth User warrants that it shall not infringe on any Intellectual Property or other third-party rights through the use of the Platform(U.S. Copyright Act of 1976, Title 17 U.S.C).
6.3 Platform. The Froth User agrees and accepts that the Platform (including any source code, ideas, enhancements, feature requests, suggestions or other information provided by the Froth User or any other party with respect to the Platform) is the Intellectual Property of Froth and the Froth User further warrants that by using the Platform the Froth User will not:
(a) Copy the Platform or the services that it provides for the Froth User’s own commercial purposes; and
(b) Directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
6.4 Trademarks. Froth, Froth.nyc and other Froth graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of Froth. Froth’s trademarks and trade dress may not be used in connection with any product or service without the prior written consent of Froth. The images and icons available in the Froth icon pack may be used by partners and third party sites in connection with providing appropriate links to the Froth Site.
7.1 Own Risk. The Froth User agrees that it uses the Platform at its own risk.
7.2 Errors or Failures. The Froth User acknowledges that Froth is not responsible for the conduct or activities of any Froth User and that Froth is not liable for such under any circumstances or any errors or failures to execute requests or offers on the Platform, including errors or failures caused by: (1) loss of connection to the internet or to the Platform by any party, or (2) a breakdown or failure of the Platform or software.
7.3 Froth User Interactions. Froth User releases Froth from all liability relating to any connections and relationships with other Froth Users. Froth makes no representations or warranties as to the conduct of Froth Users or the veracity of any information they provide. In no event shall Froth be liable for any damages whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of the Services, including, without limitation, bodily injury, emotional distress, and any damages resulting in any way from communications or meetings with Froth Users that meet through the Service. Froth Users are encouraged to take reasonable precautions and exercise the utmost personal care in all interactions with any individual they come into contact with through the Service.
7.4 Links. Where the Platform contains links to other websites and resources provided by third parties or Source Partners, these links are provided to Froth Users for information only without any endorsement or warranty whatsoever from Froth. Froth User enters those websites solely at its own risk and acknowledges that Froth has no control over and accepts no responsibility whatsoever for those websites or resources.
7.5 Password. Froth Users are solely responsible for the use and security of their Froth Usernames and passwords which provide access to the Platform. Froth Users must give prompt notice of any compromise or unauthorised access to these details. Each Froth User must ensure and accept all liability for any breach of these Terms arising from access with its Froth Username and password.
7.6 Confidentiality. Electronic Communications Privacy Act Notice (18 U.S.C. §§ 2701-2711): Froth makes no guarantee of confidentiality or privacy of any communication or information transmitted on the Site or any website linked to the Site. Froth will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Froth’s equipment, transmitted over networks accessed by the Site, or otherwise connected with Froth User’s use of the Service.
7.7 Indemnification. The Froth User agrees to indemnify Froth for any loss, damage, cost or expense that Froth may suffer or incur as a result of any breach by the Froth User of these Terms.
(a) The Froth User’s indemnification of Froth will survive the termination of these Terms and any use of the Platform.
8.1 Each Froth User acknowledges and agrees that:
(a) The Platform (including all content, function, Content and services) is provided "as is," without warranty of any kind, either express or implied, including any warranty for information, data, data processing services or uninterrupted access, any warranties concerning the availability, accuracy, completeness, usefulness, or content of information, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose.
(b) Froth does not warrant that the Platform (or the function, content or services made available thereby) will be timely, secure, uninterrupted or error free, or that defects will be corrected. Froth makes no warranty that the Platform will meet Froth Users' expectations or requirements. No advice, results or information, or Content whether oral or written, obtained through the Platform shall create any warranty not expressly made herein. If a Froth User is dissatisfied with the Platform, the sole remedy is to discontinue using the Platform.
(c) Any material downloaded or otherwise obtained through the use of the Platform remains at the discretion and risk of the Froth User and the Froth User will be solely responsible for any damage that results from the download of any such material.
(d) Froth does not endorse, warrant or guarantee any products or services offered or provided by or on behalf of third parties on or through the Platform. Froth is not a party to, and does not monitor, any transaction between Froth Users and third parties.
8.2 Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in these Terms.
9 LIMITATION OF LIABILITY
9.1 In no event shall Froth or any of its suppliers, distributors, vendors, contractors, galleries, institutions, content or service providers be liable for any indirect, special, incidental, consequential, exemplary or punitive damages arising from or directly or indirectly related to the use of, or the inability to use, the Platform (or the information, content, Content and function related thereto), including loss of revenue, or anticipated profits, or lost or corrupted data, or lost business or sales, or cost of substitute services, even if Froth or such person has been advised of the possibility of such damages.
9.2 The above limitations only apply to the extent permitted in the relevant jurisdiction.
10.1 Where a dispute arises between Froth and a Froth User, the following process shall apply:
(a) Negotiation. If there is a dispute between the parties relating to or arising out of these Terms, then within 30 business days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;
(b) Arbitration. All disputes arising from or related to this Agreement must be submitted for binding arbitration before a single arbitrator under the rules of the American Arbitration Association (AAA) as in effect at such time. The location for such arbitration will be New York City, New York. Froth User and Froth agree that either Froth User or Froth may, within 30 days after the filing of a demand for Arbitration, demand that the parties' dispute first be submitted to a neutral evaluator pursuant to the American Arbitration Association's Early Neutral Evaluation Procedures prior to proceeding with arbitration. Any resulting arbitration award may be enforced in any court having valid jurisdiction, wherever located. In addition, Froth User and Froth hereby irrevocably submit to the jurisdiction of the state and federal courts located in Borough of Manhattan in the City of New York in the State of New York for the enforcement of any such arbitration award.
Parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, except as prohibited by law. Each party shall separately pay for its respective attorneys’ fees and costs.
(c) Class Action. Froth User AND Froth AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR COLLECTIVE ARBITRATION, EVEN IF AAA PROCEDURES OR RULES WOULD OTHERWISE ALLOW ONE. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT OF THAT PARTY’S INDIVIDUAL CLAIM. Froth User and Froth also agree not to seek to combine any action or arbitration with any other action or arbitration without the consent of all parties to this Agreement and all other actions or arbitrations.
If the agreement in this Section not to bring or participate in a class or representative action, private attorney general action or collective arbitration should be found illegal or unenforceable, Froth User and Froth agree that it shall not be severable, that this entire Section shall be unenforceable and any claim or dispute would be resolved in court and not in collective arbitration.
(d) Court proceedings. A party may not commence court proceedings in relation to a dispute relating to or arising out of these Terms, unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that damages are inadequate to compensate.
(e) Small Claims Court. Notwithstanding this Section, Froth User has the right to litigate any dispute in small claims court, if all the requirements of the small claims court, including any limitations on jurisdiction and the amount at issue in the dispute, are satisfied.
11 ATTORNEY'S FEES
11.1 The prevailing Party in an action to enforce these Terms may recover from the other its reasonable attorneys’ fees and costs, if employment of an attorney was necessary.
12 GOVERNING LAW AND JURISDICTION
(a) These Terms, as well as the respective rights and obligations hereunder, shall be governed by and construed and enforced in accordance with the laws of the State of New York without regard to conflict of laws principles. Please note that use of the Platform by any Froth User may be subject to other local, state, national, and international laws.
(b) Each Froth User expressly:
i Agrees that exclusive jurisdiction for resolving any claim or dispute with Froth relating in any way to use of the Platform resides in the state and federal courts of the State of New York;
ii Agrees and consents to the exercise of personal jurisdiction in the state and federal courts of the State of New York;
iii Waives any right to a jury trial in any legal proceeding against Froth; and
iv Agrees that any claim or cause of action with respect to use of the Platform must be commenced within one (1) year after the claim arises.
(c) If Froth User is accepting these Terms on behalf of a United States federal government entity that is legally unable to accept the controlling law, jurisdiction or venue clauses above, then those clauses do not apply to Froth User. In this event, these Terms and any action related thereto will be will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of New York (excluding choice of law).
13.1 Waiver. No clause of these Terms will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
13.2 Further Assurances. Each party must do anything necessary (including executing agreements and documents) to give full effect to these Terms and the transaction facilitated by it.
13.3 Severability. Any clause of these Terms, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of these Terms.
14.1 To contact us with any questions or concerns in connection with these Terms or the Platform, or to provide us with any notice under these Terms, please write to us at:
Updated: October 28, 2015