UPDATED: 12/07/2021

Terms of Service

These Terms of Service (“Terms”) apply to your use of the Fat Tuesday website (the “Services”) provided by 190 Octane Retail, LLC d/b/a Fat Tuesday (“Company,” “we,” “us” or “our”). Please read these Terms carefully and in their entirety, as they include important information about your legal rights, remedies, and obligations. By accessing and using our Services, you agree to be bound by these Terms. If you do not agree to these Terms, you may not use the Services.

We may operate additional programs or services which require separate or additional terms. In such cases, you agree to be further bound by the terms specific to the additional program or service, and such terms shall control to the extent there is a conflict with these Terms.

PLEASE NOTE THE ARBITRATION PROVISION SET FORTH BELOW, WHICH MAY, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW, REQUIRE YOU TO ARBITRATE ANY CLAIMS YOU MAY HAVE AGAINST COMPANY ON AN INDIVIDUAL BASIS. ARBITRATION ON AN INDIVIDUAL BASIS MEANS THAT YOU WILL NOT HAVE, AND YOU WAIVE, THE RIGHT FOR A JUDGE OR JURY TO DECIDE YOUR CLAIMS, AND THAT YOU MAY NOT PROCEED IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE CAPACITY.

Age Restriction

Please exit our Services immediately if you are not of legal age for consuming alcoholic beverages in the country or other territory in which you are located, or if you are accessing our Services in a country or other territory where use of our Services is not permitted.

Content is to be shared only with those over the legal drinking age.

User Conduct and Responsibilities

As a condition of your use of the Services, you agree that you will not use the Services for any purpose that is unlawful or prohibited by these Terms. Additionally, you agree, without limitation, not to:

Use any content or information available on the Services for any unauthorized purpose;
Interfere with or damage the Services or servers or networks connected therewith or disobey any requirements, procedures, policies, or regulations of networks connected to the Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, denial of service attacks, forged routing of electronic mail address information, or similar methods or technology;
Upload, post, e-mail, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
Upload, post, e-mail, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, “pyramid schemes”, or any other form of solicitation;
Upload, post, e-mail, or otherwise transmit any materials that you do not have a right to transmit under any law or under contractual or fiduciary relationships;
Attempt to reverse engineer, reverse assemble, reverse compile, decompile, disassemble, translate, or otherwise alter, defraud, or create false results from any executable code, information on, or received by the Services;
Harvest or collect Personal Information (as defined in our Privacy Policy) about any other individual who uses the Services;
Make any statements, express or implied, that you are endorsed by Company without our specific prior written consent;
Infringe or facilitate infringement on any copyright, patent, trademark, trade secret, or other proprietary, publicity, or privacy rights of any party, including, but not limited to, such rights of third parties;
Upload, post, submit, publish, transmit or display in connection with the Services any information or material that threatens or abuses others, libels, defames, invades privacy, is false, discriminatory, hateful, harassing, or offensive, or otherwise injurious or objectionable; or
Assist any third party in engaging in any activity prohibited by these Terms.

You are solely responsible for your conduct and any data that you submit, post, transmit, or display on or through the Services. We reserve the right to remove, block, and/or monitor, without notice, any visitor that we consider, for any reason, to violate these Terms or to be outside the subject scope of the Services. In addition to any remedies that we may have at law or in equity, if we determine, in our sole discretion, that you have violated or are likely to violate these Terms, we may take any action we deem necessary to cure or prevent the violation.

Ownership

Unless otherwise explicitly specified, the Services and all materials that are included in or are otherwise a part of the Services, including, without limitation: graphics; layout; text; instructions; images; designs; trademarks and logos; any and all copyrightable material; the “look and feel” of the Sites; (collectively, the “Content”) are owned, controlled or licensed by us, our subsidiaries, or affiliates and are protected from unauthorized use, copying, and dissemination by copyright, trademark, patent, and other laws, rules, regulations and international treaties. The Content may not be copied, reproduced, downloaded, or distributed in any way, in whole or in part, without the prior written authorization of Company, unless and except as is expressly provided in these Terms.

License

You hereby grant to Company a royalty-free, perpetual, irrevocable, worldwide, non-exclusive, fully transferable and sub-licensable right and license to use, reproduce, modify, adapt, reformat, publish, translate, create derivative works from, distribute, transmit, perform, and display all data, feedback, or other information submitted, posted, published, transmitted, or displayed on or via the Services, and to incorporate such data in other works in any form, media, or technology now known or later developed. Company shall have no obligation of any kind with respect to any such data that you submit, post, publish, display, or transmit via the Services. You represent and warrant that you have proper authority to grant this license.

Privacy

We respect your privacy and have taken specific steps to protect it. Your submission of personal information through the Services is governed by our Privacy Policy.

Linking and Third Parties

The Services or communications you receive from the Services may contain links to third-party websites, applications, or features such as plug-ins or embedded services (together, the “Third Party Services”). Wherever such a Third Party Service is utilized, we will, to the extent possible, state so on our Services and provide you with the name or other identification of the Third Party Services. We do not control any of these Third Party Services or any of their content. The inclusion of any link to Third Party Services does not necessarily imply Company’s endorsement of or affiliation with that third party. You acknowledge and agree that Company has no responsibility or liability for any such Third Party Services. Unless otherwise noted, your correspondence and dealings with third parties found on or through the Services are solely between you and the third party and are governed by the third party’s Terms of Use and Privacy Policy. By using such Third Party Services, you acknowledge and agree that your use of Third Party Services is at your own option and risk, and you will hold the Company harmless for activity related to the Third Party Services.

Disclaimer of Warranties

YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK (INCLUDING BUT NOT LIMITED TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, LOSS OF DATA, DAMAGE RESULTING FROM RELIANCE ON THE SERVICES, OR OTHER DAMAGES THAT RESULT FROM OBTAINING ANY CONTENT FROM THE SERVICES INCLUDING COMPUTER VIRUSES). TO THE EXTENT PERMITTED BY LAW, COMPANY, ITS SUBSIDIARIES, AFFILIATES, LICENSORS, SERVICE PROVIDERS, CONTENT PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, AND DIRECTORS (COLLECTIVELY, THE “COMPANY PARTIES”) PROVIDE THE SERVICES, INCLUDING WITHOUT LIMITATION, THE COMPANY MATERIALS, “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS,” WITHOUT WARRANTY OF ANY KIND, AND SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, AND FREEDOM FROM COMPUTER VIRUSES.

NO INFORMATION PROVIDED VIA THE SERVICES SHALL CREATE ANY WARRANTY. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION, COVENANT, OR GUARANTEE WHATSOEVER, EXPRESS OR IMPLIED: (i) AS TO THE VALUE, QUALITY, TIMELINESS, USEFULNESS, RELIABILITY, SECURITY, SUITABILITY, ACCURACY, TRUTHFULNESS, OR COMPLETENESS OF THE SERVICES; (ii) THAT THE SERVICES WILL OPERATE UNINTERRUPTED OR ERROR-FREE; (iii) THAT THE SERVICES WILL MEET YOUR NEEDS OR EXPECTATIONS; (iv) AS TO THE QUALITY OR VALUE OF ANY OF COMPANY’S PRODUCTS, SERVICES, CONTENT, INFORMATION, OR OTHER MATERIAL YOU PURCHASE OR OBTAIN VIA THE SERVICES; (v) THAT ANY ERRORS PERTAINING TO THE SERVICES WILL BE CORRECTED.

THE COMPANY PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE COMPANY PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. BY ACCESSING OR USING THE SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.

Limitation of Liability

UNDER NO CIRCUMSTANCES WILL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICES; (B) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICES; (C) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE SERVICES; (D) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (E) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE SERVICES; OR (F) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE).

IN NO EVENT WILL THE COMPANY PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT WILL THE COMPANY PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION EXCEED THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICES DURING THE PRECEDING YEAR.

YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF COMPANY'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE COMPANY PARTIES. BY ACCESSING THE SERVICES, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.

Company reserves the right, at any time, in Company’s sole and exclusive discretion, to amend, modify, suspend, or terminate the Services, or any part thereof, and/or your use of or access to them, with or without notice. Company shall have no liability to you or any other person or entity for any modification, suspension, or termination, or any loss of related information.

Indemnification

You (and any third party on whose behalf you use the Services) agree to indemnify, defend, and hold harmless the Company Parties from any claims, liabilities, damages, losses, costs, and/or expenses, including without limitation, reasonable attorney’s fees and costs, arising out of or in any way connected with the following (whether resulting from your activities on the Services or those conducted on your behalf): (i) your access to or use of the Services; (ii) your breach or alleged breach of these Terms; (iii) your violation of any third-party right, including without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances, or orders of any governmental and quasi-governmental authority, or (v) any misrepresentation made by you. You agree that the Company Parties will have no liability in connection with any such breach or unauthorized use, and you agree to indemnify, defend, and hold harmless any and all resulting loss, damages, judgments, awards, costs, expenses, and attorneys’ fees of the Company Parties in connection therewith. You also agree to indemnify, defend, and hold harmless the Company Parties from and against any claims brought by third parties arising out of your use of the Services, your violation of these Terms, or the infringement by you or made on your behalf, of any intellectual property or other right of any person or entity. You will cooperate as fully required by Company in the defense of any claim. The Company Parties reserve the right to assume exclusive control of its defense in any matter subject to your indemnification, which shall not excuse your obligation to indemnify the Company Parties. You shall not settle any dispute subject to your indemnification under these Terms without written consent from Company. You will not settle any claim without the prior written consent of Company.

Dispute Resolution

Any controversy or claim arising out of or relating to these Terms, or the breach thereof, including all questions of arbitrability, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules by a sole arbitrator. The parties hereto shall endeavor to agree upon the arbitrator, and if they fail to do so within twenty-one (21) days of the commencement of the arbitration, the appointment shall be made by the AAA in accordance with the Commercial Arbitration Rules. The place, or legal seat of arbitration, shall be Florida, and the language of the arbitration shall be English.

You may only bring claims in your individual capacity on your own behalf, and not in any representative capacity or on behalf of any class or purported class, and no arbitration you commence hereunder may be joined with or include any claims by any other persons. Each party shall be exclusively responsible for paying its own arbitration filing fees, which may later be allocated by the arbitrator as set forth below.

The arbitrator shall issue a reasoned award and, subject to the limitation of liability set forth above, shall have the power to grant any interim or provisional measures that the arbitrator deems appropriate, including, but not limited to, injunctive relief and specific performance, and any interim or provisional measures ordered by the arbitrator may be specifically enforced by any court of competent jurisdiction as a final award. Nothing herein, however, shall authorize the arbitrator to act as amiable compositeurs, to proceed ex aequo et bono, or to exercise rights of iura novit curia. Each party hereto retains the right to seek interim measures from a judicial authority, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The arbitrator shall award the prevailing party, if any as determined by the arbitrator, its reasonable costs, including reasonable attorney’s fees. Judgment on any award rendered by the arbitrator may be entered in any court of competent jurisdiction. No information concerning an arbitration, beyond the names of the parties, their counsel or the relief requested, may be unilaterally disclosed to a third party by any party unless required by law. Any documentary or other evidence given by any party or witness in any arbitration shall be treated as confidential by any party whose access to such evidence arises exclusively because of its participation in the arbitration and shall not be disclosed to any third party (other than a witness or expert), except as may be required by law. Any party who commences any judicial proceeding in connection with an arbitration initiated hereunder shall endeavor to have the judicial record of any such proceeding sealed to the extent permitted by law.

YOU AGREE THAT ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO YOUR RELATIONSHIP WITH COMPANY MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER SUCH CLAIM AROSE; OTHERWISE, YOUR CLAIM WILL BE PERMANENTLY BARRED.

Consent to Communications

By providing us with your contact information and using the Services, you agree to receive communications via e-mail and/or social media from or on behalf of Company at the email address or telephone number (including mobile number) you provided. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

Governing Law

These Terms shall be governed by and construed and enforced in accordance with the laws of the State of Florida, without regard to its principles of conflicts of laws.

No Third Party Rights

Unless expressly stated in these Terms to the contrary, nothing herein is intended to confer any rights or remedies on any persons other than you, Company, and our successors and assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to you and Company and our successors and assigns, nor shall any provision give any third parties any right of subrogation or action over against you, Company, and our successors and assigns.

Force Majeure

We will not be deemed to be in breach of these Terms or liable for any breach of these Terms due to any event or occurrence beyond our reasonable control, including without limitation, acts of God, terrorism, war, invasion, failures of any public networks, electrical shortages, earthquakes or floods, civil disorder, strikes, fire, pandemics/epidemics, or other disaster.

No Waiver; Assignment Rights

Company’s failure to exercise or enforce any right or provision of these Terms shall not be deemed a waiver of such right or provision in that or any other instance. We may assign these Terms at any time without notice to you. You may not assign to anyone else and any attempt by you to assign shall be void.

If any provision of these Terms is held invalid, illegal, or unenforceable under any applicable statute or rule of law, it is, to the extent necessary, deemed modified in order to comply with applicable law, and the remaining provisions shall not be affected in any way.

Modification

We reserve the right to change these Terms from time to time. When we do, we will also revise the “Last Updated” date at the top. If we make material changes to these Terms, we may choose to notify you more directly, such as by placing a prominent notice on our website or via email at the email address we have on file for you. We encourage you to periodically review these Terms, so you are aware of any revisions to which you are bound.

DMCA Notice and Procedure for Copyright Infringement Claims

a) Procedure for Reporting Copyright Infringements

If you believe your work has been used or copied in a way that constitutes copyright infringement and such infringement is occurring on the Services, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Designated Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):

An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright’s interest;
A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
Identification of the URL or other specific location on the Services where the material that you claim is infringing is located; your address, telephone number, and E-mail address;
A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf

You acknowledge that if you fail to comply with all of the requirements of this section, your DMCA notice may not be valid and we will have no obligation to respond or acknowledge receipt of your notice. Please note that you will be liable for damages (including costs and attorneys’ fees) if you misrepresent or make bad faith claims that any material on our Website or Mobile Apps infringes your copyrights. You can contact our Designated Agent via e-mail at dmca@fat-tuesday.com.

THE DESIGNATED AGENT SHOULD BE CONTACTED ONLY IF YOU BELIEVE THAT YOUR WORK HAS BEEN USED OR COPIED IN A WAY THAT CONSTITUTES COPYRIGHT INFRINGEMENT AND SUCH INFRINGEMENT IS OCCURRING ON THE SERVICES OR ON SITES LINKED TO AND FROM THE SERVICES. ALL OTHER INQUIRIES DIRECTED TO THE DESIGNATED AGENT WILL NOT RECEIVE A RESPONSE.

b) Receipt of Proper Infringement Notification

Once a proper bona fide infringement notification has been received by the Designated Agent, it is Company’s policy:

To remove or disable access to the infringing content;
To notify the content provider, member, or user (“Content Provider”) that it has removed or disabled access to the content; and
That repeat offenders will have the infringing content removed from the system and that Company may terminate such Content Provider’s access to the Services.

c) Procedure to Supply a Counter-Notice to the Designated Agent

If the Content Provider believes that the content that was removed or to which access was disabled is either not infringing or the Content Provider believes that it has the right to post and use such content, the Content Provider may send the Designated Agent a counter-notice, which must contain the following:

Content Provider’s contact information, including full legal name (not that of a company) of the submitter, an email address, a physical address, and a phone number.
The location, including any URL, of the content that has been removed or disabled.
The following statement, to which Content Provider must agree: "I consent to the jurisdiction of the Federal District Court for the district in which my address is located, or if my address is outside of the United States, the judicial district in which Company is located, and will accept service of process from the claimant."
The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
A physical or electronic signature. To satisfy this requirement, Content Provider may type the submitter’s full legal name (not that of a company) at the bottom of your electronic counter-notification.

If a counter-notice is received by the Designated Agent, Company may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in ten business days.

If Company does not receive notice within ten business days that the original complaining party is seeking a court order to prevent further infringement of the content, we may replace or cease disabling access to the material that was removed. The decision to replace or cease disabling access to any content is at Company’s sole discretion.

Contact Us

If you have any questions, comments or concerns regarding these Terms, please contact us at: web@fat-tuesday.com