These terms of service (“Terms”) constitute a legal agreement between you and The Bottlelfy, Inc. (“Tastry”, “we” or “us”). Please read these Terms carefully. If you do not agree to these Terms, please do not access, install or use our Website, App or Services (each as defined in the next paragraph)
By accessing or using our website (www.Tastry.com) and any subdomains of our website (“Website”), or accessing, installing or using the “Tastry” mobile application (“App”), or using or receiving the Website, App and any services supplied to you by Tastry (collectively, “Services”), you represent to us that you are legally competent to enter into and agree to these Terms.
THE SERVICES ARE INTENDED SOLELY FOR USERS WHO ARE 21 YEARS OF AGE OR OLDER, AND ANY REGISTRATION, USE OR ACCESS TO THE SERVICES BY ANYONE UNDER 21 IS STRICTLY PROHIBITED AND IN VIOLATION OF THESE TERMS. BY USING THE APP OR THE SERVICES, YOU EXPRESSLY REPRESENT AND WARRANT THAT YOU ARE AT LEAST 21 YEARS OF AGE.
PLEASE NOTE THAT THESE TERMS CONTAIN A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES (EXCEPT IN CERTAIN CIRCUMSTANCES), RATHER THAN JURY TRIALS OR CLASS ACTION LAW SUITS.
You acknowledge that these Terms are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your use of the Services and receipt or use of data, content, products and/or services through the Services.
1. OUR SERVICES.
Our Services enable you to search for alcohol beverages and other products and place and schedule orders with independent, licensed alcohol beverage retailers, and other licensees with retail privileges, (“Licensed Retailers”) for the purchase and sale of such beverages and products, among other things. All orders placed through the App or the Website are accepted, reviewed, and ultimately fulfilled by Licensed Retailers. All sales are solely transacted between you and Licensed Retailers. Each product listed on Tastry is not an offer to purchase such product but an invitation to make an offer by placing an order. You acknowledge and agree that Tastry does not sell, offer to sell, invite to sell, or solicit any offers. In all instances, all sales are advertised, accepted, made and delivered by licensed retailers who receive all orders and offers. In all instances, any solicitation, invitation, offer, advertisement or communication is void where prohibited by law. Tastry does not sell or deliver alcohol beverages. No part of the Services is intended to facilitate any improper furnishing of inducements by any manufacturer, importer, supplier, wholesaler or distributor of alcohol beverages to any Licensed Retailer or any improper exclusionary practices by any alcohol beverage licensee.
Tastry does not currently charge users a fee to use its Services; however, the Licensed Retailer fulfilling your order and/or its third party service provider(s) may charge fees in connection with your transaction, including but not limited to shipping or delivery fees in cases where you have placed an order for shipment or delivery and Restocking Fees, which are described in the next paragraph. Any such fees are due immediately. In the future, we may, in our sole discretion, begin charging fees for our Services. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services at that time, you will be required to pay all applicable fees for such Services. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed by any authority on you by virtue of your transacting with retailers or otherwise by using the Services.
3. ORDER PROCESS.
If a Licensed Retailer accepts your order request, your credit or debit card will be charged for the amount of your purchase plus any additional fees that the Licensed Retailer may charge. Once the charge is authorized, the Licensed Retailer will package your order for either pick-up, shipment or delivery, as indicated by you in your order request. The individual picking-up the order or accepting the order shipment or delivery must provide a valid form of photo identification proving that he or she is at least 21 years old and sign for the order at the time of pick-up, receipt of shipment or delivery. It is solely the responsibility of each Licensed Retailer, and its employees and agents, or the shipping or delivery company used by the Licensed Retailer and that shipping or delivery company’s employees and agents, to verify such proof of identification. Your order request, pick-up, shipment or delivery may be declined for any reason by the Licensed Retailer, or its employee or agent, or the shipping or delivery company used by the Licensed Retailer or that shipping or delivery company’s employee or agent. If declining because the requested item(s) or acceptable substitutions are not in stock, the Licensed Retailer may offer you a full refund. If your order request, pick-up, shipment or delivery is declined or cannot be completed for any other reason, you may be charged a non-refundable restocking fee of twenty dollars ($20.00) (“Restocking Fee”. Without limiting the foregoing, THE RESTOCKING FEE WILL BE AUTOMATICALLY CHARGED TO YOU IF YOU, OR IF APPLICABLE THE ORDER RECIPIENT, FAILS TO PROVIDE ACCEPTABLE PROOF OF IDENTIFICATION AND AGE, OR IF THE LICENSED RETAILER, OR ITS EMPLOYEE OR AGENT, OR THE SHIPPING OR DELIVERY COMPANY USED BY THE LICENSED RETAILER OR THAT SHIPPING OR DELIVERY COMPANY’S EMPLOYEE OR
AGENT, IN ITS SOLE DISCRETION, DETERMINES THAT THE TRANSFER OF POSSESSION OF THE ITEMS IS OTHERWISE ILLEGAL, UNSAFE OR INAPPROPRIATE. YOU AGREE THAT YOU MAY NOT PROVIDE TASTRY OR A LICENSED RETAILER ANY INFORMATION OF, OR USE THE SERVICES TO PURCHASE OR PICK-UP FOR OR SEND A DELIVERY OR SHIPMENT TO, ANY INDIVIDUAL UNDER 21 YEARS OF AGE. Sales by Licensed Retailers are made at their licensed premises and title to, and ownership of, all ordered items pass from them to you at their licensed premises and you assume all responsibility for the pick-up, shipment or delivery of your order. By arranging for the pick-up or transportation of your order on your behalf, the Licensed Retailer is providing a service to you. Pick-up, shipment and delivery services may be subject to additional policies and procedures of the Licensed Retailers and their shipping or delivery company. By using pick-up, shipping or delivery services, you represent that you are of legal drinking age and are in compliance with your local and state laws applicable to the purchase, transportation, receipt and/or reporting of your order. You also represent that you have obtained all required permissions, paid all required fees, are working through properly licensed intermediaries where required, are legally entitled to take possession of the order and are legally entitled to take the quantities ordered. You further represent that you are using the Services for lawful purposes and to place orders for personal consumption and not for any re-sale or distribution. You acknowledge that certain Services may not be available to you due to local rules applicable to your location.
The prices published on the Website and App are suggested retail prices based on pricing information provided to us by Licensed Retailers and may not always reflect the prevailing pricing. The Licensed Retailers reserve the right to determine final prices of all their products.
5. PROMOTIONAL OFFERS; CREDITS.
Tastry, in its sole discretion, may offer certain promotions and credits from time to time for users, to the extent permissible under applicable laws. Depending upon where you are, you may or may not receive or be eligible to participate in these promotional offers and credits. If we choose to extend a promotion or credit to you, it will be issued by Tastry and not the Licensed Retailers, unless otherwise specifically stated in the terms and conditions of such promotion or credit. Any such promotions and credits are non-transferrable and may only be used in connection with the Services.
6. LICENSE GRANT.
Tastry hereby grants to you, subject to these Terms, a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Services (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) solely for your personal use on a mobile or other device that you own or control. These Terms do not permit you to install or use the App on a mobile or other device that you do not own or control and you may not distribute or make all or any portion of the Services available over a network where it could be used by multiple devices at the same time. All rights not expressly granted herein are reserved by Tastry.
7. MOBILE AND OTHER DEVICES.
You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App, Website or Services. WE DO NOT GUARANTEE THAT THE APP, WEBSITE OR SERVICES CAN BE ACCESSED AND USED ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP, WEBSITE OR SERVICES WILL BE AVAILABLE IN, OR THAT ORDERS FOR PRODUCTS CAN BE PLACED FROM, ANY PARTICULAR GEOGRAPHIC LOCATION. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications on your mobile device (“Push Messages”), as well as via email or other types of messages. You acknowledge that, when you use the App, Website or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless or Internet access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages).
8. ACCEPTABLE USE AND RESTRICTIONS.
You agree to protect the Services, and their proprietary content, information and other materials, from any unauthorized access or use, and you agree that you will not use the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by Tastry. You agree that: (i) you will not use the Services if you are not fully able and legally competent to agree to these Terms; (ii) you will only use the Services for lawful purposes and you will not use the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct or to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party; (iii) you will not use the Services to advertise, solicit or transmit commercial advertisements, including “spam”; (iv) you will not use the Services to cause nuisance, annoyance or inconvenience; (v) you will not impair the proper operation of the Services’ network; (vi) you will not try to harm the Services in any way whatsoever; (vii) you will not copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the Services, any updates, or any part of the Services or content therein without written permission from Tastry; (viii) you will only use the Services for your own use, not for commercial use, and will not distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity, or use the Services in any service bureau arrangement; (ix) you will not attempt to obtain any information or content from the Services using any robot, spider, scraper or other automated means for any purpose; (x) you will keep secure and confidential your account password or any identification we provide you which allows access to the Services; (xi) you will only use an access point or data account which you are authorized to use; (xii) you and any recipient of your orders will provide whatever proof of identity and age reasonably requested by the Licensed Retailer, its employee or agent, or the shipping or delivery company used by the Licensed Retailer or that shipping or delivery company’s employee or agent; and (xii) you will not permit any third party to engage in any of the acts described in clauses (i) through (xi). You understand and agree that you are not permitted to: (w) remove or alter any copyright or other proprietary rights’ notice or restrictive rights legend contained or included in the Services; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the App, Website, any updates to or portion of the App or Website (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the App or Website); (y) use any means to discover the source code of the App or Website or to discover the trade secrets in the Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the Services. Any attempt to do any of the foregoing is a violation of the rights of Tastry and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
9. OBJECTIONABLE MATERIAL.
You understand that by using any of the Services, you may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. If you object to any part of the Services, you should cease using the Services.
10. APPLICABLE LAWS.
The laws of the State of California, excluding its conflicts of law rules, govern these Terms. Your use of the Services may also be subject to other local, state, national, or international laws. Tastry makes no representation as to any laws, rules or regulations of any jurisdiction regarding the sale, service, transportation, import, shipment or delivery of alcoholic beverages. Tastry shall not be liable for any loss or damage arising from your failure to comply with the terms set forth in these Terms or to comply with applicable laws. You agree to comply at your sole expense with all applicable United States laws and regulations. Tastry explicitly reserves the right to refuse access to any portion of the Services at any time without notice for your failure to abide by the terms as set forth in these Terms or your failure to comply with applicable laws.
11. APPLE APP STORE.
This Paragraph 11 applies to you only if you are using the App from the Apple App Store. Tastry and you, the end-user of the Services, acknowledge that these Terms are entered into by and between Tastry and you and not with Apple, Inc. (“Apple”). Notwithstanding the foregoing, you acknowledge that Apple and its subsidiaries are third-party beneficiaries of these Terms and that Apple has the right (and is deemed to have accepted the right) to enforce these Terms. Tastry is solely responsible for the App and any content contained therein. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You and we acknowledge that in the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and will have no responsibility for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty. You and we acknowledge that Apple is not responsible for addressing any claims made by you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims, (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement, and (iii) claims arising under consumer protection or similar legislation. You and we acknowledge that in the event of any third party claim that the App, or your possession or use of the App, infringes such third party’s intellectual property rights, Apple will not be responsible for the investigation, defense, settlement and discharge of any such claim. You acknowledge that you have reviewed the App Store Terms and Conditions Capitalized terms not defined in this Paragraph 11 shall have the meanings set forth in the App Store Terms and Conditions. Your use of the App must comply with the App Store Terms and Conditions.
12. GOOGLE PLAY STORE.
This Paragraph 12 applies to you only if you are using the App from Google, Inc. or one of its affiliates or successors (“Google”) via Google Play. To the extent of any conflict between the Google Terms of Service, the Google Play Business and Program Policies and such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “Google Play Terms”) on the one hand and these Terms, the Google Play Terms shall apply with respect to your use of the App. The Google Play Terms can be accessed here: Google Play Terms. Tastry and you hereby acknowledge that Google does not have any responsibility or liability related to compliance or non-compliance by Tastry or you (or any other user) under these Terms or the Google Play Terms.
By entering into these Terms and using any portion of the Services, you agree that you shall defend, indemnify and hold Tastry, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation, (b) your violation of any rights of any third party, (c) your use or misuse of the Services, or (d) your negligence or willful misconduct.
14. YOUR DATA.
15. THIRD PARTY SERVICES AND MATERIALS.
Certain Services may display, include or make available content, data, information, applications, services or materials from third parties (“Third Party Services and Materials”) or provide links to certain third party web sites and apps. By using the Services, you acknowledge and agree that Tastry is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, availability, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Services and Materials, web sites or apps. Tastry does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third Party Services and Materials. Third Party Services and Materials and links to other web sites are provided solely as a convenience to you.
16. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ANY CONTENT, INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SERVICES AND MATERIALS) ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED. NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY TASTRY OR ITS AUTHORIZED AGENT OR REPRESENTATIVE WILL BE DEEMED TO CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. TASTRY MAKES NO REPRESENTATION OR WARRANTY AS TO YOUR LEGAL RIGHT TO PICK-UP OR HAVE ALCOHOL BEVERAGES TRANSPORTED TO YOU OR YOUR INTENDED RECIPIENT.
17. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TASTRY BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF USE, DATA OR PROFITS OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES, OR FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES, OR THE PROCESSING, PURCHASE, SALE, TRANSPORTATION, SHIPMENT, DELIVERY OR CONSUMPTION OF ALCOHOLIC BEVERAGES, INCLUDING ANY CLAIM, DEMAND OR DAMAGES ARISING FROM ANY TRANSACTION THROUGH THE SERVICES INITIATED OR COMPLETED BETWEEN YOU AND ANY RETAILER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF TASTRY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM, DEMAND OR DAMAGE. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. If, for any reason, a court or arbitral body finds Tastry liable for damages notwithstanding the foregoing, in no event shall Tastry’s total liability for all damages exceed the amount paid by you to Tastry for your use or receipt of the Services. The foregoing limitations will apply even if the above-stated remedy fails of its essential purpose.
NEITHER TASTRY NOR THE FULFILLING LICENSED RETAILER NOR THE SHIPPING OR DELIVERY COMPANY USED BY THE LICENSED RETAILER SHALL BE LIABLE FOR ANY DAMAGES TO GOODS CAUSED BY WEATHER CONDITIONS AND OTHER “ACTS OF GOD” DURING TRANSPORTATION. WEATHER CONDITIONS MAY CHANGE AT ANY TIME, SO TASTRY, THE FULFILLING LICENSED RETAILER OR THE SHIPPING OR DELIVERY COMPANY USED BY THE LICENSED RETAILER CANNOT ASSUME LIABILITY FOR DAMAGE CAUSED BY CHANGES IN WEATHER DURING TRANSPORTATION. “ACTS OF GOD” INCLUDE UNFORESEEABLE DELAYS OR ACCIDENTS, PUBLIC UNREST, CONFISCATION AND NATURAL DISASTERS.
You agree that the above limitations of liability together with the other provisions in these Terms that limit liability are essential terms of these Terms and that Tastry would not be willing to grant you the rights set forth in these Terms but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce Tastry to grant you the rights set forth in these Terms.
(a) The Services and their content, including “look and feel” (e.g., text, graphics, images and logos), proprietary content, information and other materials, are protected under intellectual property, copyright, trademark and other laws. You acknowledge and agree that Tastry and/or its licensors own all right, title and interest in and to the Services and their content (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and you agree not to take any action(s) inconsistent with such ownership interests. Except for the limited license to the Services granted to you in Section 6 above, you do not acquire any rights or licenses under any of Tastry’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of these Terms.
(b) Any and all (i) suggestions for correction, change and modification to the Services and other feedback, information and reports provided to Tastry by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements thereto, whether made, created or developed by Tastry or otherwise relating to the Services (collectively, “Revisions”), are and will remain the property of Tastry. You acknowledge and expressly agree that any contribution of Feedback or Revisions does not and will not give or grant you any right, title or interest in the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of Tastry and Tastry may use and disclose Feedback and/or Revisions in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to Tastry any and all right, title and interest that you may have in and to any and all Feedback and Revisions. At Tastry’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
19. COPYRIGHT DISPUTE POLICY. Tastry has adopted and implemented a policy that provides for the termination in appropriate circumstances of users of the Website and App who are found repeatedly to provide or post protected third party content without necessary rights and permissions, including content on our social media properties. Please review our complete Copyright Dispute Policy and learn how to report potentially infringing content.
20. MODIFICATIONS. We may modify these Terms at any time. Modifications become effective immediately upon your first access to or use of the Services after the “Last Revised” date at the end of these Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified Terms. If you do not agree with the modifications, then please uninstall the App and do not access or use the Services.
21. TERMINATION. These Terms are effective until you or Tastry terminates these Terms. Tastry may suspend or terminate your account(s) or cease providing you with all or any portion of the Services at any time for any reason, with or without notice to you. Upon termination, you will cease all use of the Services and will disable or destroy all copies (full or partial) of the App in your possession or control. Termination will not limit any of Tastry’s other rights or remedies at law or in equity. Sections 6, 8, and 10-26 shall survive termination or expiration of these Terms for any reason, provided however, that the license granted in Section 6 shall cease immediately upon termination or expiration.
22. EXPORT LAWS. You agree that you will not export or re-export, directly or indirectly the App, or any portion of the Services and/or other information or materials provided by Tastry hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list.
23. U.S. GOVERNMENT RESTRICTED RIGHTS. The App and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
24. INJUNCTIVE RELIEF. You agree that a breach of these Terms will cause irreparable injury to Tastry for which monetary damages would not be an adequate remedy and Tastry shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security or prove damages.
25. DISPUTE RESOLUTION – ARBITRATION, NO CLASS ACTIONS. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THESE TERMS OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to these Terms. If you do not want to arbitrate disputes with Tastry and you are an individual, you may opt out of this arbitration agreement by sending an email to Hello@Tastry.com within 30 days of the day you first access or use the Services.
THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.
If you intend to seek arbitration you must first send written notice to Tastry’s Customer Service Center of your intent to arbitrate (“Notice”). The Notice to Tastry should be sent by any of the following means: (i) electronic mail to Hello@Tastry.com or (ii) U.S. Postal Service certified mail to Tastry, Attn: Client Services, P.O. Box 1091, Grover Beach, CA 93433. The Notice must: (x) describe the nature and basis of the claim or dispute; (y) set forth the specific relief sought; and (z) set forth your name, address and contact information. If we intend to seek arbitration against you, we will send any notice of dispute to you at the contact information we have for you. If we do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Tastry may commence an arbitration proceeding.
The arbitration will be conducted before a neutral single arbitrator, whose decision will be final and binding, and the arbitral proceedings will be governed by the American Arbitration Association (“AAA”) under its AAA Commercial Arbitration Rules, Consumer Due Process Protocol, and Supplementary Procedures for Resolution of Consumer Related Disputes, as modified by these Terms. The AAA’s rules are available at ADR.org or by calling 1-800-778-7879. All issues are for the arbitrator to decide, including the scope of this arbitration clause, but the arbitrator is bound by these Terms. If you initiate arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA’s Consumer Arbitration Rules. We will reimburse all other AAA filing, administration and arbitrator fees paid by you for claims totaling less than $10,000, unless the arbitrator determines that the arbitration was frivolous or brought for an improper purpose, in which case the payment of all such fees shall be governed by the AAA Rules. In such case, you agree to reimburse Tastry for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Tastry will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim or the relief sought is improper or not warranted. The arbitration shall be conducted, at the option of the party seeking relief, by telephone, online, based solely on written submissions or in person in the State of California or at a mutually agreed location. The arbitration will be conducted in the English language. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. No claim or action arising from or concerning the Services or otherwise hereunder may be brought later than one (1) year from the date the claim or cause of action arose. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this arbitration agreement, including any claim that all or any part of this arbitration agreement is void or voidable.
WE EACH AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL. If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and we each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the State of California for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. We also both agree that Tastry may bring suit in court for injunctive relief to enjoin infringement or other misuse of intellectual property rights.
26. MISCELLANEOUS. These Terms may not be modified by you except by a writing executed by the duly-authorized representatives of Tastry. These Terms will inure to the benefit of and will be binding upon each party’s successors and assigns. These Terms and the rights granted under these Terms may be assigned by Tastry but may not be assigned by you without the prior express written consent of Tastry. If any provision of these Terms is or becomes, at any time or for any reason, unenforceable or invalid, no other provision of these Terms will be affected, and the remaining provisions will continue to be enforceable and valid according to the terms of such provisions. It is expressly understood that in the event either party fails to perform any term of these Terms and the other party does not enforce that term, the failure to enforce not constitute a waiver of any term. Nothing contained in these Terms will be deemed to constitute either party as the agent or representative of the other party or both parties as joint venturers or partners for any purpose. No joint venture, partnership, employment, or agency relationship exists between Tastry and you or any third party as a result of these Terms or your use of the Services. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under these Terms due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be extended for the period of delay or inability to perform due to such occurrence. You and Tastry agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms. The headings and captions contained in these Terms will not be considered to be part of these Terms but are for convenience only.
You may contact us regarding the Services or these Terms at: Tastry, Attn: Client Services, P.O. Box 1091, Grover Beach, CA 93433, or by email to: Hello@Tastry.com.