Last Updated: October 13, 2023
Welcome to the Promenade Group, Inc. (“Promenade” or “Swigg” or “DIG-IN, or “we” or “us”) website hosted at https://www.promenade.co and getpromenade.com (“Website” or “Site”) and accessed via https://www.swiggwithus.com or unique DIG-IN website login and any other affiliate websites or apps related to Promenade, Swigg, or DIG-IN (together, collectively the “Service”).
NOTICE OF ARBITRATION AGREEMENT AND CLASS ACTION WAIVER: THIS AGREEMENT INCLUDES A BINDING ARBITRATION CLAUSE AND A CLASS ACTION WAIVER, SET FORTH BELOW, WHICH AFFECT YOUR RIGHTS ABOUT RESOLVING ANY DISPUTE WITH THE COMPANY. PLEASE READ IT CAREFULLY.
Please review the following terms and conditions concerning your use of and access to the service. By accessing AND/OR using the SERVICE, you agree to follow and be bound by these terms of service (“Terms”). If you do not agree with these Terms, you may not use the service.
Promenade, Swigg, and DIG-IN (collectively “Promenade”) are platforms to help alcohol sellers, restaurant owners/food sellers, and other business owners (“Company” or “User” or “You”) manage and grow their online business. Promenade provide services to build and design your website, manage your online orders, and market to your customers. Promenade are not directly involved in or otherwise a party to any transactions that may take place between the Company and its Customers. Promenade have no control over the quality, safety, morality or legality of any aspect of the Company’s listings or any claims made by Company about the products or services they offer, the truth or accuracy of the listings created by Company, the ability of Company to sell the items, the ability of Customer to pay for the items, or the ability of the Company to fulfill an order.
Content and Accuracy of Information. We attempt to ensure that information on this Service is complete, accurate and current. Despite our efforts, the information on this Service may be inaccurate, incomplete or out of date. We make no representation as to the completeness, accuracy or currentness of any information on this Service.
Use of Service Content. All materials provided by the Service, including, but not limited to, marketing materials, information, images, graphics, logos, sounds, compilations, content and services (“Materials” or “Content”) are protected by and subject to copyright, trademark, patent, trade secret and other laws and are owned or controlled by Promenade, or their respective partners, vendors, licensors, agents and/or representatives (whether or not such persons are credited as the provider of the Content). Promenade reserve all rights in and to the Content not expressly granted to you hereunder. Company shall have no rights to the Content, and Company shall abide by all additional copyright notices, information, or restrictions contained in any Content presented through the Service.
None of the Content may be modified, copied, stored, printed, reproduced, distributed, republished, hosted, performed, downloaded, displayed, posted, reposted, transmitted and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, recording, or other means, without the prior express written permission of the Company. Also, you may not “mirror” or “archive” any Content contained on the Service on any other server without Promenade’ prior express written permission.
You may not sublicense, assign or transfer any licenses granted by Promenade, and any attempt at such sublicense, assignment or transfer shall be null and void. You may not otherwise copy, distribute, modify, reverse engineer, or create derivative works of the Materials or Content.
Except where expressly provided otherwise by Promenade, nothing on the Service shall be construed to confer any license or ownership right in or to the Materials, under any of Promenade’ intellectual property rights, whether by estoppel, implication, or otherwise.
Any unauthorized use of any Materials contained on the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and/or communications regulations and statutes. It is the Users obligation to comply with all applicable state, federal and international laws. Users are responsible for maintaining the confidentiality of their account information and password and for restricting access to such information and to their computer. Users agree to accept responsibility for all activities that occur under your account or password.
Termination. You or we may suspend or terminate your account or your use of this Service at any time, for any reason or for no reason. We reserve the right to change, suspend, or discontinue all or any aspect of this Service at any time without notice.
INFORMATION FOR USERS
Account Creation. You are eligible to use the Service if you are the age of 18 or older. You are ineligible to use the Service if you have been suspended by Promenade or you are under the age of 18. By registering with the Service, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. We may, in our sole discretion, refuse to offer access to or use the Service to any person or entity and change the eligibility criteria at any time.
Authority. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity you are acting on behalf of to this Agreement.
Except where expressly provided otherwise by Promenade, all comments, feedback, information and data submitted to Promenade through, in association with or in regard to the Service (“Submissions”) shall be considered non-confidential and Promenade’ property. This may not include copyright ownership of images which Company may upload, but does include an express license to use said images in any method Promenade see fit and make compilations and derivative works thereof in all media now known or hereafter devised. Except as expressly enumerated in the preceding sentence, by providing such Submissions to Promenade, you agree to assign to Promenade, as consideration in exchange for the use of the Service, all worldwide rights, title and interest in copyrights and other intellectual property rights to the Submissions. You represent that you have the right to grant Promenade these rights. Promenade shall be free to use and/or disseminate such Submissions on an unrestricted basis for any purpose. You acknowledge that you are responsible for the Submissions that you provide, and that the User, not Promenade, have full responsibility for the Submissions, including their legality, reliability, appropriateness, originality and copyright.
Promenade prohibit the sending of unsolicited email or text messages (spam) or other communications that violate applicable privacy and anti-spam legislation. Spam is defined for this purpose as sending any message that encourages participation in a commercial activity or multiple messages similar in content to any person(s), entity(ies), newsgroup(s), forum(s), email list(s), or other group(s), individual(s) or list(s) unless prior authorization has been obtained from the recipient or unless a business or personal relationship has already been established with the recipient in accordance with the requirements under applicable law. Promenade also prohibit using false headers in emails or falsifying, forging or altering the origin of any email or text message in connection with Promenade and its Services. Promenade prohibit engaging in any of the foregoing activities by using the service of another provider, remailer service, or otherwise.
Promenade may report to law enforcement authorities any actions that we may believe in our sole and unfettered discretion may be illegal, and any reports we receive of such conduct. When we believe we are legally required to do so or at our sole and unfettered discretion, we may cooperate with law enforcement agencies, regulators, or parties to a civil action in any investigation or requests for information, including of alleged illegal activity, and may disclose information that we have about you. Some or all of our business affiliates or partners may have their own terms and privacy policies, and You agree with and to those in connection with those business affiliates or partners.
LINKS TO THIRD PARTY SITES
The website or application may contain links or have references to websites controlled by parties other than Promenade. Promenade are not responsible for and do not endorse or accept any responsibility for the contents or use of these third-party websites. Promenade are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by Swigg of the linked website and/or the content and materials found at the linked website, except as specifically stated otherwise by Promenade. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature.
LIMITATION OF LIABILITY
IN NO EVENT SHALL THE PLATFORMS OR ANY THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES to your computer, telecommunication equipment, or other property and/or FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS, INCLUDING BUT NOT LIMITED TO THE accessing or USE of, OR INABILITY TO USE, THE WEBSITE AND THE SERVICES ASSOCIATED THEREWITH including but not limited to the downloading of any materials, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
LICENSES FROM THE PLATFORMS
Users are being granted solely a limited, non-exclusive, non-transferrable, license to access the Service and view the Content through the Service. Except for the limited license, no right, title, interest shall be transferred to you.
REPRESENTATIONS AND WARRANTIES
Each User represents and warrants that it has the power and authority to enter into these Terms. Promenade warrant that it will provide the Service in a manner consistent with its business practices, as Promenade, in its sole and absolute discretion, deems fit.
DISCLAIMER OF WARRANTIES
EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY Promenade, THE MATERIALS ON THE SERVICE ARE PROVIDED “AS IS,” AND ARE FOR USE AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, THE PLATFORMS AND ITS THIRD PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO THE WEBSITE, THE MATERIALS, AND THe GOODS AND SERVICES ASSOCIATED THEREWITH INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF GOODS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. THE PLATFORMS AND ITS THIRD PARTY PROVIDERS MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE website and the GOODS, SERVICES AND/OR MATERIALS ASSOCIATED WITH THE WEBSITE, OR THE RESULTS YOU MAY OBTAIN BY accessing or USING THE WEBSITE AND/OR THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE PLATFORMS AND ITS THIRD PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR MATERIALS WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS; OR (C) THE GOODS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICES AND WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT NEITHER THE PLATFORMS NOR ITS THIRD PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE WEBSITE AND SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE PLATFORMS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY THE PLATFORMS, THE WEBSITE AND THE GOODS, SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH ARE PROVIDED TO YOU ON AN “AS IS” BASIS. THE PLATFORMS EXPRESSLY DISCLAIMS ANY WARRANTY RELATED TO THE QUALITY OF GOODS AND/OR SERVICES AND THE PERSONS OR BUSINESSES REFERENCED ON THE WEBSITE. YOU USE THIRD PARTY PROVIDERS AND AFFILIATED SERVICES AT YOUR PERIL AND ASSUME ALL RISKS RELATED TO USE OF SAID THIRD-PARTY PROVIDERS AND SERVICES.
Users will comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with your use of the Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Promenade controls and operates the Service associated therewith.
Promenade may give notice by means of a general notice on the website, app, or by electronic mail to your e-mail address on record in the Company’s account information. All notices shall be deemed to have been given four days after mailing or 36 hours after sending by email or posting to the Website.
Furthermore, Promenade comply with the Digital Millennium Copyright Act (“DMCA”). Any notices given pursuant to the DMCA shall be given to Promenade’ designated agent via email at email@example.com or via registered US mail sent return receipt to: DMCA Compliance Agent, Promenade, Inc., 1316 Third Street, Suite 301, Santa Monica, CA 90401.
You may give notice to Promenade at any time by letter sent by registered mail with return receipt to: Promenade, Inc., 1316 Third Street, Suite 301, Santa Monica, CA 90401.
RESOLUTION OF DISPUTES – MANDATORY ARBITRATION AND CLASS ACTION WAIVER
We offer the following process to help you resolve a complaint or Dispute (as defined below) that you may have with Promenade or its Third Party Providers in connection with the use of this Service. Please read this section carefully. Our Customer Service Department, which you can reach at the email address listed at the end of these Terms, can help you resolve most of your concerns. If our Customer Service Department is unable to resolve your complaint or Dispute, you agree to take the following steps to resolve any Dispute you may have with us.
Step 1. Notice of Dispute
You must first try to resolve any complaint or Dispute with us through our Notice of Dispute process. You begin by submitting a “Notice of Dispute” with any supporting documents by emailing Promenade at the email address listed at the end of these Terms. A “Notice of Dispute” is a written form in which you provide your name, address, contact information, email address, the facts regarding your Dispute, and the relief you are requesting from us. Once we receive your Notice of Dispute, you and we will attempt to resolve any Dispute through informal negotiation within forty-five (45) days from the date the Notice of Dispute is received by us. If an agreement cannot be reached within forty-five (45) days of receipt of the Notice of Dispute, you or we may initiate an arbitration proceeding or small claims action as described below.
Step 2: Arbitration
If your Dispute is not resolved to your satisfaction within 45 days from when we received your Notice of Dispute, you and we agree to arbitrate all Disputes between us. As explained below, you and we also may also have the right to bring an individual action before a Small Claims Court for certain claims. You agree that arbitration or a small claims action will be your sole and exclusive remedy to resolve any dispute with us. The Federal Arbitration Act applies to this Agreement.
By agreeing to arbitrate, you are giving up the right to litigate (or participate in as a party or class member) any and all Disputes in a court before a judge or jury (except Small Claims Court). Instead, a neutral arbitrator will resolve all Disputes.
To read more about arbitration, visit www.adr.org. The American Arbitration Association (“AAA”) will conduct any arbitration under its Consumer Arbitration Rules in effect at that time. You can review the Consumer Arbitration Rules here: http://www.adrservices.com/wp-content/uploads/2020/01/ADR-ARBITRATION-RULES-Version-1-28-20-FINAL.pdf. You may begin an arbitration with us by completing a Demand for Arbitration form, available by clicking here: http://www.adrservices.com/wp-content/uploads/2016/10/Demand-for-Arbitration-form-Updated-1-1-20.pdf. The completed form(s) should be returned directly to the AAA. The AAA will assign someone to manage your case. You will be contacted with instructions for continuing the arbitration process. Be sure to keep a copy of everything you send to the administrator of your arbitration or us. If, for any reason, the AAA is unavailable, the parties shall mutually select another arbitration forum which will be governed by the AAA Consumer Arbitration Rules. The AAA rules will determine whether the arbitration will take place through written submissions by you and us, by telephone, or in person.
Class Action Waiver
Any proceedings to resolve or litigate any Dispute in any forum will be conducted solely on an individual basis. Class arbitrations, class actions, private attorney general actions, consolidation of your Dispute with other arbitrations, or any other proceeding in which either party acts or proposes to act in a representative capacity or as a private attorney general are not permitted and are waived by you, and an arbitrator will have no jurisdiction to hear such claims. If a court or arbitrator finds that the class action waiver in this section is unenforceable as to all or some parts of a Dispute, then the class action waiver will not apply to those parts. Instead, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration. If any other provision of this Dispute resolution section is found to be illegal or unenforceable, that provision will be severed with the remainder of this section remaining in full force and effect.
If you initiate an arbitration proceeding with the AAA, we will promptly reimburse you for any standard filing fee you may have been required to pay by the AAA, once you have notified us in writing and provided a copy of the arbitration demand. However, if we are the prevailing party in the arbitration, we will be entitled to seek and recover our attorneys’ fees and costs, subject to the arbitrator’s determination and applicable law.
Small Claims Option
You may also litigate any Dispute in Small Claims Court in the County of Los Angeles, California, if the Dispute meets all requirements to be heard in the small claims court. You can learn more about the Small Claims Court in the County of Los Angeles by clicking here: http://www.lacourt.org/division/smallclaims/smallclaims.aspx. However, if you initiate a Small Claims case, you are responsible for all your court costs.
Choice of Law and Forum Selection
You agree that the laws of the State of California govern this agreement and any claim or Dispute or issues arising from it, without regard to California’s conflict of laws rules. 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 as a result of a decision by the arbitrator or a court order, you agree that any Disputes or claims that you may have against us reside in and will be resolved by a state or federal court located in the County of Los Angeles in the State of California and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. The choice of law of and exclusive venue in California apply to you regardless of where you are accessing the Service from even if you are accessing the Service from outside of the United States of America.
UNITED STATES ONLY
Unless otherwise specified, the Service is solely for use within the United States. We make no representation that the Service is appropriate or available for use in other locations. If you access the Service from locations other than the United States, you do so at your own risk. Whether inside or outside the United States, you are solely responsible for compliance with any applicable local laws.
If you have any questions regarding these terms or wish to contact us for any matter:
Compliance with privacy laws
The App Provider makes the following additional commitments, representations, and warranties to Customer:
The App Provider will only process Customer Data and Personal Information on behalf of, and as Service Provider of, the Customer, and not collect, retain, use, or disclose that data for any purpose other than to perform the App Provider’s obligations under this Agreement, as permitted under CCPA and other applicable privacy and data protection laws (collectively, “Privacy Laws”). In no event will the App Provider “sell” (as defined by Privacy Laws) any such personal information.
The App Provider will not collect, use, retain, disclose, sell, or otherwise make Customer Data or Personal Information available for App Provider’s own commercial purposes or in a way that does not comply with the CCPA or other Privacy Laws.
App Provider will limit personal information collection, use, retention, and disclosure to activities reasonably necessary and proportionate to provide the Services set forth in the Agreement or another compatible operational purpose.
Data subject rights – assistance with requests
App Provider will reasonably cooperate and assist Customer with meeting Customer’s CCPA and Privacy Law compliance obligations and respond to CCPA-related inquiries, including responding to verifiable consumer requests, taking into account, the nature of App Provider’s processing, and the information available to App Provider. App Provider will make available to Customer, in a manner consistent with the functionality of the Service and App Provider’s role as a Service Provider of Personal Information of data subjects, the ability to fulfill data subject requests to exercise their rights under Privacy Laws.
If App Provider receives a request from Customer’s data subject to exercise one or more of its rights under Privacy Laws in connection with the Services, App Provider will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where possible, by using the functionality of the Services. App Provider shall comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
App Provider must notify the Customer immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party’s compliance with Privacy Laws relating to provisioning of the Services.
Last updated: October 13, 2023