Terms and Conditions and User Generated Content Agreement
This User Generated Content Agreement (the "Agreement") contains the complete terms and conditions between Four Loko ("us", "we" or "Four Loko") and you, regarding your participation in Four Loko’s User Generated Content Loyalty Program (the "Program") as a Four Loko content creator ("you" or "Participant").
BY ENROLLING IN THE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.1. ELIGIBILITY TO PARTICIPATE IN THE PROGRAM
To participate in the Program and be eligible for Rewards, you must sign up on this page and follow all terms and conditions set forth in this Agreement. You must be a legal resident of the fifty (50) United States or District of Columbia and at least twenty-one (21) years of age or older in your state of legal residence. Employees, officers and directors of Four Loko and/or any of its parent, subsidiaries, affiliates or related companies, advertising and promotional agencies, any alcohol beverage licensee (whether a manufacturer, distributor or retailer) and the immediate families (parents, spouse, children, siblings including foster and step-relations), or persons, whether related or not, living in the same household as any of the individuals in the preceding categories any are not eligible to participate.
Enrolling in the Program allows you to earn Rewards from Four Loko by sharing qualifying content that tags or mentions @FourLoko on Instagram and/or @FourLoko on TikTok.2. DEFINITIONS
"Participant" shall mean the individual participating in the Program by displaying Four Loko Products on the social media accounts owned or controlled by Participant, including but not limited to, Instagram and TikTok (individually and collectively, "Participant's Social Platform(s)"), and tagging Four Loko in exchange for receiving Rewards from Four Loko.
"Rewards" shall mean the amount Participant will receive from Four Loko for displaying and sharing qualifying Post(s), pursuant to the terms of this Agreement.
"Post" shall mean a post (Instagram feed, reel)(TikTok post), as applicable, made by Participant on Participant's Social Platform(s), showcasing the Product and subject to the terms of this Agreement.
"Product" shall mean Four Loko beverage product available for purchase from retail locations carrying product across the U.S. or Four Loko trademarks as may be depicted on beverage products, branded merchandise, advertising materials or other items. Participant is solely responsible for acquiring (by purchase, borrow or otherwise) any such Product.3. POSTS
(a) The Post: (i) must depict only Participant and no other person, unless such other person is at least twenty-one (21) years of age or older and a legal resident of the fifty (50) United States or District of Columbia and Participant has obtained the consent of such person to be depicted in the Post (the "Permitted Third Party"); (ii) must depict Participant and/or the Permitted Third Party with Product or likeness clearly in focus; (iii); (iv) must tag and mention in captions @fourloko and [#LokoLoyalty] (as applicable) in a clear and conspicuous manner (for example, in an Instagram Post, it must appear "above the fold" within the first three (3) lines of the post); (v) may not mention, reference or show any brand that is competitive to Four Loko; (vi) must not defame, misrepresent or disparage Four Loko, its business, products or brands, or any third party brands, products or services competitive to Four Loko and/or its business, products or brands; (vii) must reflect Participant's actual, honest opinions, findings, beliefs, or experiences with Four Loko and its business and products and will not contain any statements or representations about Company or its business and products which are not true or that is misleading or deceptive; (viii) shall be Participant's own original work, created solely by Participant, and will not infringe the copyright, trademark, privacy, publicity, or other personal or proprietary rights of any person or entity; and (ix) shall not contain or reference content which is lewd, obscene, sexually explicit, pornographic, disparaging, defamatory, libelous, or otherwise illegal, offensive or inappropriate in any way.
(a) Once you earn Rewards, you will be emailed those Rewards to the email address you registered with the Program. Rewards and the criteria to qualify for Rewards may change from time to time, and Rewards may be offered on a limited basis.
(b) We reserve the right to suspend the distribution of Rewards at any time and indefinitely, if we suspect any improper activity or a potential breach of any of the terms of this Agreement by the Participant.
(c) We reserve the right to immediately cancel or withhold for later review any Rewards for any Post(s) that fail to comply with Section 3 or Section 8 of this Agreement.
(d) We reserve the right, in our discretion, to change or modify the available Rewards at any time.5. POLICIES
We may change our terms, policies and procedures at any time consistent with applicable laws.6. OWNERSHIP
As between Participant and Four Loko, Four Loko shall own all right, title and interest, including all Intellectual Property Rights, in and to the Four Loko website and this Program. For the purposes of this Agreement, "Intellectual Property Rights" means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.7. LICENSE TO USE OF POSTS AND PARTICIPANT'S IMAGE
We agree that you shall retain ownership rights to your Posts and you hereby grant us the perpetual, worldwide, royalty-free right and license to publish, copy, re-post, link to or otherwise use your Posts, your Social Platform handle, your name, and your image and likeness as depicted in a Post, in whole or in part, for any purposes in our discretion, in any and all medium, without limitation, additional compensation, notice, review or approval.8. RESPONSIBILITY FOR PARTICIPANT'S SOCIAL PLATFORM
Participant will be solely responsible for all content that appears on Participant's Social Platform. Such responsibility includes, without limitation: (i) the accuracy, timeliness and appropriateness of content posted on or to Participant's Social Platform; (ii) ensuring that posted materials do not violate or infringe upon the rights of any third party; and (iii) ensuring that posted content is not libelous or otherwise illegal.9. COMMUNICATIONS
By enrolling in the Program, you agree to be subscribed to Four Loko marketing emails and SMS, including but not limited to Program-related communications, at the email address registered with the Program. You may opt-out of receiving marketing emails from Four Loko at any time by clicking the "unsubscribe" link in the email to manage your preferences.10. INDEMNITY
Participant shall defend, indemnify and hold Four Loko and its officers, directors and employees harmless from all claims, damages, and expenses (including, without limitation, reasonable attorneys' fees) relating to Participant's breach of this Agreement or gross negligence.11. TERM AND TERMINATION
(a) The term of this Agreement will begin as soon as Participant enrolls into the Program and will end when terminated by either party (the "Term"). Either party may terminate this Agreement at any time, with or without cause, by giving the other party notice by email. (b) Four Loko expressly reserves all rights to terminate the Program, in whole or in part, at any time for any or no reason, as determined in its sole discretion, by giving Participant notice by email. (c) Upon termination of this Agreement, Participant shall promptly remove all Program-related content from Participant's Social Platform. Participant is only eligible to earn Rewards for Posts displayed during the Term. Any provisions that by their express terms do, or by their nature should, shall survive the termination of this Agreement.12. MODIFICATION
We may modify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein. Modifications may include, but are not limited to, changes in the scope of available Rewards and Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. Your continued participation in the Program following our posting of any modification will constitute binding acceptance of the change.13. INDEPENDENT CONTRACTOR RELATIONSHIP
For purposes of this Agreement, Participant will not be considered an agent, employee or representative of Four Loko and shall remain in all respects an independent contractor. You will have no authority to make or accept any offers or representations on our behalf. Participant has no authority to act for or on behalf of Four Loko or to bind Four Loko in any legal contracts.14. LIMITATION OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT Four Loko SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN OR INABILITY TO PARTICIPATE IN THE PROGRAM (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR TOTAL LIABILITY TO PARTICIPANT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).15. DISCLAIMER OF WARRANTY
THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND. Four Loko EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, Four Loko MAKES AND GIVES NO WARRANTY (i) THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THAT THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. Four Loko FURTHER MAKES NO REPRESENTATION THAT THE OPERATION OF THE Four Loko WEBSITE AND/OR THE LOUDCROWD WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR ANY SUCH INTERRUPTIONS OR ERRORS.16. MISCELLANEOUS
(a) Any notice provided for or permitted under this Agreement will be treated as having been given when (i) delivered personally, (ii) sent by email; (iii) sent by nationally recognized commercial overnight courier with written verification or receipt; or (iv) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address provided by Participant during enrollment, in the case of Participant, and the postal and/or email address, as applicable, set forth below for Four Loko. This provision shall not apply to Section 12, "Modifications."
Phusion Projects, LLC
640 N. LaSalle St., Suite 620
Chicago, IL 60654
Attn: Four Loko Loyalty
(b) If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not impair, affect or render invalid or unenforceable any other provision of this Agreement, and such invalid or unenforceable provision shall be replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provisions.17. GOVERNING LAW; ARBITRATION; NO CLASS ACTION
This Agreement shall be governed by and construed under the laws of the State of Illinois, without regard to its conflict of laws principals. All claims, disputes or causes of action between us relating to or arising from this Agreement and/or the Program shall be resolved by mandatory, binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("AAA"), which must be commenced within one (1) year after such claim, dispute or cause of action arises. The arbitration shall be conducted in New York, New York, and the Federal Arbitration Act, and not any state law concerning arbitration, shall apply. The arbitration award shall be final and exclusive, and the prevailing party in the arbitration may file an action in court to confirm and to enforce the arbitration award. Any such action, or any claim, cause of action or proceeding not subject to arbitration as set forth in this Section, shall be filed and adjudicated in a state or federal court in New York, New York, and all parties agree to submit to the personal jurisdiction of those courts. You irrevocably waive any rights to seek and/or obtain injunctive or other equitable relief and any defense of forum non conveniens. Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses and attorneys' fees incurred as a result of such action. Further, any and all disputes, claims and causes of action arising out of or connected with this Agreement and/or the Program, will be resolved individually, without resort to any form of class action.18. CONFIDENTIALITY
Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, Four Loko pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process.19. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreement, whether written or oral.