Effective as of August 1^st, 2022.

FMS Holdings LLC and affiliates (“Gameday Beverages“, “we“, “our“, or “us“) own and operate certain websites and other tools, technology, and programs (collectively, the “Platform“), as well as services associated with or made available through the Platform (collectively, the “Services“). These Terms of Service (“Terms“) govern your access to the Platform and Services and constitute a legal agreement between you and Gameday Beverages. So please read them carefully.

THE PLATFORM AND SERVICES ARE FOR PERSONS 21 YEARS OF AGE AND OLDER. YOU MAY NOT USE OUR PLATFORM OR SERVICES IF YOU ARE UNDER 21. YOU MAY NOT PURCHASE FOR, PICK-UP FOR, RECEIVE OR SEND A DELIVERY OR SHIPMENT TO ANYONE UNDER 21. DO NOT SEND US INFORMATION ABOUT ANYONE UNDER 21.

Notwithstanding the foregoing, these Terms do not supersede or otherwise impact the enforceability of any agreements you may have with Gameday Beverages if you are a Retailer (defined below), advertiser, or other company with which we partner.

1. Shopping with Gameday Beverages

Gameday Beverages does not sell, offer to sell or solicit sales of alcohol: our Services enable you to search online for alcohol and other products available for sale by licensed alcohol retailers that have agreed to use Gameday Beverages’s Platform (“Retailers“). The Services are not meant to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler, or distributor of alcohol beverages to any retailer of alcoholic beverages or to facilitate any improper exclusionary practices by any alcohol beverage licensee. When you search for a product, the Services show you its availability, price and other information based on your location and information provided by the Retailers that service your location; if you prefer, you may sort and filter results based on search criteria. Our Services may be limited or not available at all in some locations due to local law or other restrictions.

Gameday Beverages may charge you a Service Fee when you place an order. Any Service Fee will be disclosed to you before you finalize your order and will charged to you in addition to the purchase amount and any required taxes. When you place an order through the Platform, it is an offer to purchase from a Retailer. The total purchase amount (plus any additional Service Fee and required taxes) may be authorized by your payment card company, but your offer is not accepted by the Retailer at that time. The Retailer reviews your order and decides whether to accept it. If the Retailer decides to accept your order, they will charge your payment card for the purchase amount (plus any additional Service Fee) and arrange for the delivery.

Gameday Beverages is not a delivery company or a common carrier. The delivery of your order will be facilitated by the Retailer or a delivery service utilized by the Retailer. Gameday Beverages does not employ, select, or supervise any delivery drivers. Gameday Beverages does not guarantee shipping or delivery times and is not liable for the actions, omissions, products, or content of Retailers or any delivery driver or service.

2. Account registration

You will be required to register an account to use parts of the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services. Additionally, you must update your account information to keep it accurate, current, and complete.

You are the sole authorized user of any account you create and responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by any person under the age of 21, and you will accept full responsibility for any unauthorized use of your password or your account. You may not authorize others to use your account and you may not assign or otherwise transfer your account to any other person or entity. Should you suspect that any unauthorized party may be using your password or account, you will notify Gameday Beverages’s Customer Experience Team by sending an email to team@gamedaydelivers.com

Gameday Beverages will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by Gameday Beverages or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or Gameday Beverages has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, Gameday Beverages has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof). Gameday Beverages may also suspend or terminate your account if, in its sole discretion, it believes: (a) you have violated these Terms; (b) you have violated any applicable law in connection with your use of the Platform or Services; (c) your continued use of the Platform or Services may endanger your health and safety or the health and safety of others; or (d) you have communicated or acted in an inappropriate, offensive, or discriminatory manner towards any Gameday Beverages employee, Retailer, or delivery driver. You agree not to create an account or use the Services if you have been previously removed by Gameday Beverages, or if you have been previously banned from use of the Services.

The information you provide must be accurate and complete, and you must keep it current. Use your legal name and actual date of birth on all accounts and orders you create, or your order may be declined

If you wish to deactivate your account for any reason, send an email to team@gamedaydelivers.com

3. Privacy and data

By accessing the Platform, using the Services, or registering for an account, you agree that we may collect, process, and disclose your personal information in accordance with our Privacy Notice, available at https://gamedaydelivers.com/privacy.

4. Restrictions on use

You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Platform; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Services except as expressly permitted by Gameday Beverages; (c) decompile, reverse engineer or disassemble the Platform except as may be permitted by applicable law; (d) link to, mirror or frame any portion of the Platform; (e) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Platform or Services; or (f) attempt to gain unauthorized access to or impair any aspect of the Platform, Services, or their related systems or networks.

5. Prices, taxes, and fees

Retailers set the price of their products on Gameday Beverages, and Retailers and their delivery providers may charge you additional fees such as a Delivery Fee, Shipping Fee, Redelivery Fee, and Restocking Fee as described in these Terms. Your order, including a Delivery Fee, may be subject to tax. The amount of the tax depends on things like the products ordered, delivery location, and the legal obligations of the Retailer.

Gameday Beverages reserves the right to charge a Service Fee for Gameday Beverages’s administrative costs. If a Service Fee is charged by Gameday Beverages you will be made aware of any such Service Fee and such fee will be collected by Gameday Beverages.

In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal, fees, and gratuity, displayed to you at checkout and/or after gratuity is selected, Gameday Beverages reserves the right to initiate an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout and/or after gratuity is selected. All payments will be processed by Gameday Beverages’s designated payment processor, using the preferred payment method designated in your account. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.

6. Returns, refunds, and exchanges

Retailers and the laws in your state determine whether a return, refund or exchange is available to you. For example, you may be able to return a tainted or damaged product for a refund or credit, or exchange it for something else. In some states, you can exchange a product you bought (or received as a gift) if you want something else. Gameday Beverages makes no representations concerning your ability to return a product.

7. Promotional and referral codes

Gameday Beverages and Retailers, at their sole discretion, may make promotional offers available to you. You agree that promotional offers: (a) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (b) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by Gameday Beverages; (c) are subject to the specific terms that Gameday Beverages and Retailers establish for such promotional offer; (d) cannot be redeemed for cash or cash equivalent; and (e) are not valid for use after the date indicated in the offer or one year.

Gameday Beverages and Retailers reserve the right to modify or cancel an offer at any time. If you attempt to evade restrictions on offer redemption, Gameday Beverages and Retailers may decline to redeem your code.

8. Changes to orders

If you wish to change your order for any reason after it has been placed, you may contact us by emailing team@gamedaydelivers.com , but we cannot guarantee that your changes will be accepted by the Retailer. If they are accepted, you will be responsible for any difference in charges and fees resulting from the change(s).

9. ID verification; other safety checks

It is the responsibility of the Retailer and any delivery provider they use to verify identification and age, and to determine whether it is otherwise safe and appropriate to furnish you with alcohol. They may require a valid form of photo identification with birthdate and a signed acknowledgment confirming acceptance at the time of pick-up or delivery. If they cannot verify your age or identity, if you appear intoxicated, or if the situation is otherwise unsafe or inappropriate (for example, you are 25 but appear to be in the company of only 18 year olds), they may refuse to furnish you with alcohol.

Alcohol cannot be left unattended—someone 21 or older must be present to accept and sign for it. If a Retailer is unable to deliver your product for this or a similar reason, the Retailer may charge a restocking fee.

If we believe that your order is fraudulent or unlawful, we may alert the Retailer and suspend your use of the Platform.

10. Retailer right to refuse
11. Retailer right to refuse, cancel and adjust orders

     

A Retailer may refuse, cancel or adjust your order for any reason. If the product you want is not available, the Retailer will notify you and offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.

Some Retailers limit where they deliver (for example, some Retailers will not deliver to hotels and restaurants). If a Retailer policy prohibits delivery to your address, the Retailer will notify you, cancel your order and issue a refund.

Sometimes the law requires Retailers to limit the number or type of product(s) in your order. If this happens, the Retailer will notify you and offer a reasonable substitute or refund your money. If you accept the substitution, the order total will be adjusted accordingly.

1. Retailer right to refuse multiple delivery attempts and charge a Restocking and Redelivery Fee

    

A Retailer or their delivery provider may refuse to deliver your order if they believe that furnishing alcohol to you or the person accepting the delivery on your behalf is illegal, unsafe or inappropriate. If a delivery cannot be made for this or any other reason, you may be charged a Restocking Fee. Subsequent delivery attempts are at the discretion of the Retailer and are subject to a Redelivery Fee.

11. Errors

Sometimes product information—such as images, descriptions, availability, pricing and reviews—contains errors. If a Retailer identifies such an error, they will notify you and either offer a reasonable substitute or refund your money. If you accept the substitute, the order total will be adjusted accordingly.

If you receive a product that is not as described (or that you did not order), your sole remedy is to notify the Retailer and the Retailer will in its sole discretion either allow you to return the unused product (within the time period specified by the Retailer) for a refund or provide you with a reasonable substitute. If you accept the substitution, the order total will be adjusted accordingly.

12. Communications and text messages

When you use the Services, or send emails, text messages, and other communications from your desktop or mobile device to us, you may be communicating with us electronically. You consent to receive communications from us electronically, such as e-mails, texts, mobile push notices, or notices and messages through the Services, and you agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.

Your voluntary provision to Gameday Beverages of your cell phone number represents your consent that Gameday Beverages, Retailers with which you place an order, delivery drivers, and delivery services may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes. When you provide your phone number to Gameday Beverages, you warrant that you are the current subscriber or authorized user of the relevant account. You understand and agree that such messages may be sent using automated technology. You may unsubscribe from receiving text messages from Gameday Beverages at any time. To revoke your consent to receiving SMS or MMS messages from Gameday Beverages, you must reply “STOP” from the mobile device receiving the messages.

If you unsubscribe from receiving text messages from Gameday Beverages, you may continue to receive text messages for a short period while Gameday Beverages processes your request(s). If you change or deactivate the phone number you provided to Gameday Beverages, you have an affirmative obligation to immediately update your account information and the phone number(s) attached to your account to prevent us from inadvertently communicating with anyone who acquires any phone number(s) previously attributed to you, and any new phone number(s) you attach to your account may receive Gameday Beverages’s standard SMS or MMS messages unless you also unsubscribe via the above procedures.

13. Disclaimer of warranties

THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” GAMEDAY BEVERAGES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, GAMEDAY BEVERAGES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE PLATFORM AND SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE PLATFORM AND SERVICES, OR THAT THE PLATFORM AND SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

GAMEDAY BEVERAGES DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF ANY THIRD PARTY. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE PLATFORM OR SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

GAMEDAY BEVERAGES DOES NOT CONTROL, MANAGE OR DIRECT ANY THIRD-PARTY PROVIDERS INCLUDING RETAILERS, DELIVERY SERVICES, AND DELIVERY DRIVERS. THIRD PARTY PROVIDERS ARE NOT ACTUAL AGENTS, APPARENT AGENTS, OSTENSIBLE AGENTS, OR EMPLOYEES OF GAMEDAY BEVERAGES.

GAMEDAY BEVERAGES DOES NOT CONTROL, ENDORSE OR TAKE RESPONSIBILITY FOR ANY USER CONTENT OR THIRD-PARTY CONTENT AVAILABLE ON OR LINKED TO BY THE PLATFORM OR SERVICES. GAMEDAY BEVERAGES CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM, SERVICES, OR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

14. Limitation of liability

GAMEDAY BEVERAGES SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE PLATFORM OR SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF GAMEDAY BEVERAGES, EVEN IF GAMEDAY BEVERAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

GAMEDAY BEVERAGES SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE PLATFORM OR SERVICES OR YOUR INABILITY TO ACCESS OR USE THE PLATFORM OR SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF GAMEDAY BEVERAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. GAMEDAY BEVERAGES SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND GAMEDAY BEVERAGES’S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT RETAILERS, DELIVERY SERVICES, AND DELIVERY DRIVERS ARE NOT OSTENSIBLE AGENTS, APPARENT AGENTS, ACTUAL AGENTS, OR EMPLOYEES OF GAMEDAY BEVERAGES.

THE LIMITATIONS AND DISCLAIMERS IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, GAMEDAY BEVERAGES’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON GAMEDAY BEVERAGES’S CHOICE OF LAW PROVISION SET FORTH BELOW.

15. Indemnification

You agree to indemnify and hold Gameday Beverages and its affiliates and their officers, directors, employees, and agents harmless from and against any and all actions, claims, demands, losses, liabilities, costs, damages, and expenses (including attorneys’ fees), arising out of or in connection with: (a) your use of the Platform and Services or goods obtained through your use of the Platform and Services; (b) your breach or violation of any of these Terms; (c) Gameday Beverages’s use of your User Content; or (d) your violation of the rights of any third party, including Retailers, delivery services, and delivery drivers.

16. Applicable law

You must comply with any local, state or national laws applicable to your use of the Platform and Services, such as rules and regulations regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages. You must comply with all applicable U.S. or other export and re-export restrictions.

17. Updates

Gameday Beverages may make changes to these Terms from time to time. If Gameday Beverages makes changes, it will provide you with notice of such changes, such as by sending an email, providing a notice through the Platform, or updating the date at the top of these Terms. Unless Gameday Beverages says otherwise in its notice, the amended Terms will be effective immediately and your continued access to and use of the Platforms after Gameday Beverages provides such notice will confirm your acceptance of the changes.