Terms of Service
Terms of Service
PLEASE READ THE FOLLOWING END USER LICENSE AGREEMENT AND TERMS OF SERVICE ("LICENSE”) CAREFULLY BEFORE USING OUR WEB SITE, IPHONE, OR ANDROID APPLICATIONS.
TopShelf and you, the end-user of the App and the Services, acknowledge that this License is entered into by and between TopShelf and you and not with Apple, Inc. Notwithstanding the foregoing, you acknowledge that Apple, Inc. and its subsidiaries are third-party beneficiaries of this License and that Apple, Inc. has the right (and is deemed to have accepted the right) to enforce this License. TopShelf is solely responsible for the App and any content contained therein. You acknowledge that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support services with respect to the App. You acknowledge that you have reviewed the App Store Terms and Conditions (located online at http://www.apple.com/legal/itunes/us/terms.html#APPS). Capitalized terms not defined herein shall have the meanings set forth in the App Store Terms and Conditions.
2. License Grant
TopShelf hereby grants to you, subject to the terms and conditions of this License, a personal, nonexclusive, nontransferable, limited license (without the right to sublicense) to access and use the Services and the App (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license, and any documentation) for your personal use on a mobile device that you own or control, subject to the limitations set forth below. This License does not permit you to install or use the App on a mobile device that you do not own or control and you may not distribute or make the App 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 TopShelf.
3. Use of the TopShelf App/Service.
(a) 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 or the Services. WE DO NOT GUARANTEE THAT THE APP OR THE SERVICES CAN BE ACCESSED AND USED AND/OR THAT THE APP WILL BE PARTIALLY OR FULLY FUNCTIONAL ON ANY PARTICULAR DEVICE OR WITH ANY PARTICULAR SERVICE PLAN. WE DO NOT GUARANTEE THAT THE APP OR THE 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 notification, local client notifications, text messages, picture messages, alerts, emails, or other types of messages directly sent to you outside or inside the App (Push Messages). You acknowledge that, when you use the App or the Services, your wireless service provider may charge you fees for data, text messaging and/or other wireless 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 the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). Please check with your wireless service provider to determine what fees apply to your access to and use of the App or the Services, including your receipt of Push Messages from TopShelf. YOU ARE SOLELY RESPONSIBLE FOR ANY FEE, COST OR EXPENSE THAT YOU INCUR TO DOWNLOAD, INSTALL AND/OR USE THE APP OR THE SERVICES ON YOUR MOBILE DEVICE, INCLUDING FOR YOUR RECEIPT OF PUSH MESSAGES FROM TOPSHELF.
(b) The App provides an electronic platform for the purpose of connecting consumers to chosen licensed retailer(s) to engage in the sale, service, delivery and/or transportation of alcoholic beverages, and to the alcohol transportation and delivery service provider(s) of such licensed retailer(s). All orders placed through the App or the Services are accepted, reviewed, and ultimately fulfilled by the chosen licensed retailer(s). All alcoholic beverage sales and/or alcohol transportation and delivery services through the App or the Services are solely transacted between you and the chosen licensed retailer(s) and/or the alcohol transportation and delivery service provider(s). TopShelf itself does not provide or sell alcoholic beverages or alcohol transportation services and is not a licensed alcohol transportation carrier or licensed retailer.
(c) No joint venture, partnership, employment, or agency relationship exists between TopShelf and any business or third party as a result of this License or use of the App or the Services. Any and all users of the App or the Services are independent contractors of TopShelf. TopShelf shall not be liable for any sale, service, transportation, delivery, or alcohol purchasing services provided by third parties. TopShelf is not a vendor or co-vendor of any goods and/or services. If you reside in a jurisdiction which restricts the use of the App or the Services because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the App or the Services if you do not meet or exceed such limits. Without limiting the foregoing, the App or the Services are not available to persons under the age of 21. By using the App or the Services, you represent and warrant that you are at least 21 years old. By using the App or the Services, you expressly represent and warrant that you are at least 21 years of age and legally entitled to enter into this License.
4. Terms of Service
(a) You agree that: (i) you will not use the App or the Services if you are not fully able and legally competent to agree to the terms of this License; (ii) you will only use the App or the Services for lawful purposes; you will not use the App or the Services for sending or storing any unlawful material or for fraudulent purposes or to engage in any illegal, offensive, indecent or objectionable conduct, (iii) you will not use the App or the Services to advertise, solicit or transmit commercial advertisements, including “spam” (iv) you will not use the App or the Services to cause nuisance, annoyance or inconvenience; (v) you will not impair the proper operation of the network, (vi) you will not try to harm the App or the Services in any way whatsoever; (vii) you will not copy, or distribute the App or the Services or other content without written permission from the TopShelf,; (viii) you will only use the App or the Services for your own use and will not resell it to a third party; (ix) you will keep secure and confidential your account password or any identification we provide you which allows access to the App or the Services; (x) you will only use an access point or 3G or better data account (AP) which you are authorized to use; (xi) you will provide us with whatever proof of identity we may request; (xii) you will provide the chosen licensed retailer(s) with your valid state issued ID that proves that you are over 21 years of age when the delivery arrives; (xiii) you are aware that any licensed retailer may decline your delivery request for any reason; and (xiv) you are aware that a non-refundable $20 restocking fee (“Restocking Fee”) will be automatically charged to you if your delivery has been declined for any reason.
(b) You understand that by using the App or 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. Nevertheless, you agree to use the App and the Services at your sole risk and that TopShelf shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
(c) TopShelf makes no representation as to any laws, rules or regulations of the State of Texas or any other jurisdiction regarding the sale, service, transportation or delivery of alcoholic beverages to a customer/consumer, including you. TopShelf shall not be liable for any loss or damage arising from your failure to comply with the terms set forth in this License or to comply with applicable laws. TopShelf explicitly reserves the right to refuse access to the App or the Services at any time without notice for your failure to abide by the terms as set forth in this License or to comply with applicable laws.
Any fees which TopShelf may charge you for the App or the Services are due immediately. When you initiate a transaction via the App or the Services, TopShelf’s third party payment processor will authorize your credit or debit card for the amount of the Restocking Fee. The Restocking fee will be $20. The remaining balance will be processed after the licensed retailer verifies your ID and that the name on your ID matches the name on your account and the name on your credit or debit card. A licensed retailer may decline an order for any reason. If your order is declined, you will receive a full refund less the Restocking Fee. A full refund may be issued by TopShelf or the licensed retailer for any reason. TopShelf and the licensed retailers reserve the right to determine final prevailing pricing. The pricing information published on the website may not reflect the prevailing pricing. TopShelf, at its sole discretion, may make promotional offers with different features and different rates to any customer. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. TopShelf may change the fees for the App or the Services in our sole discretion at any time. We encourage you to check our website periodically if you are interested about how we charge for the App or the Services. It is solely the responsibility of each licensed retailer and its employees to verify your credit or debit card and ID. The credit or debit card you use via TopShelf MUST be presented to the delivery driver at the door, and the name on such credit or debit card MUST match the name of the government issued valid ID presented to the driver at the door AND the name of your account with TopShelf. If at the time of delivery, your ID is not valid, or the delivery cannot be fulfilled by the user, the $20 Restocking fee will be enforced and the Alcohol will we returned to the store.
By entering into this License and using the App or the Services, you agree that you shall defend, indemnify and hold TopShelf, 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 this License or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your use or misuse of the App or the Services; or (v) your negligence or willful misconduct. TopShelf is not responsible for the sale, service, transportation or delivery of alcoholic beverages and is not liable for damages resulting from the use of the App or the Services.
7. License Limitations
You agree to protect the App, 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 App, the Services or such proprietary content, information or other materials except as expressly permitted herein or expressly authorized in writing by TopShelf. Except as specifically permitted herein or expressly authorized in writing by TopShelf, you agree that you will not directly or indirectly: (a) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense, modify, time-share or otherwise exploit the App or the Services in any unauthorized manner, including but not limited to by trespass or burdening network capacity; (b) use the App or the Services in any service bureau arrangement; (c) copy, reproduce, adapt, create derivative works of, translate, localize, port or otherwise modify the App or the Services, any updates, or any part thereof in any form or manner or by any means; or (d) permit anything third party to engage in any of the acts described in clauses (a) through (c). 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 App or the Services; (x) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the App, any updates, or any part thereof (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); (y) use any means to discover the source code of the App or to discover the trade secrets in the App or the Services; or (z) otherwise circumvent any functionality that controls access to or otherwise protects the App or the Services. Any attempt to do any of the foregoing is a violation of the rights of TopShelf and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
8. Your Data
9. Third Party Services and Materials
(a) Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the App or the Services, you acknowledge and agree that TopShelf is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. TopShelf does not warrant or endorse and does not assume and will not have any liability or responsibility to you or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to you. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither TopShelf, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of stock information or location data displayed by any Services.
(b) In addition, third party services and Third Party Materials that may be accessed from, displayed on or linked to from a mobile device are not available in all languages or in all countries. TopShelf makes no representation that such services and Third Party Materials are appropriate or available for use in any particular location. To the extent you choose to access such services or Third Party Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. TopShelf and its licensors reserve the right to change, suspend, remove, or disable access to the App or the Services at any time without notice. In no event will TopShelf be liable for the removal of or disabling of access to any such App or Services. TopShelf may also impose limits on the use of or access to the App or to certain Services, in any case and without notice or liability.
10. Disclaimer of Warranties & Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE APP OR THE SERVICES ARE AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APP AND THE SERVICES (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY MATERIALS, THIRD PARTY SOFTWARE OR SERVICES) IS PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND TOPSHELF HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP (INCLUDING THE USE, PERFORMANCE AND SUPPORT THEREOF) AND THE SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TOPSHELF DOES NOT WARRANT THAT (A) THE APP OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE APP OR THE SERVICES WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, (C) THAT THE APP OR THE SERVICES WILL OPERATE OR BE COMPATIBLE WITH ANY OTHER APPLICATION OR ANY PARTICULAR SYSTEM OR DEVICE, (D) DEFECTS IN THE APP OR THE SERVICES WILL BE CORRECTED OR (E) THAT THE APP WILL BE AVAILABLE FOR REINSTALLS ON THE SAME OR MULTIPLE DEVICES. ANY ORAL OR WRITTEN ADVICE PROVIDED BY TOP SHELF OR ITS AUTHORIZED AGENTS WILL NOT BE DEEMED TO CREATE ANY WARRANTY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TOPSHELF OR ITS AUTHORIZED REPRESENTATIVE SHALL 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.
TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL TOPSHELF BE LIABLE FOR DAMAGES
OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE,
DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO
YOUR USE OR INABILITY TO USE THE APP OR THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF
LIABILITY, WHETHER UNDER THIS LICENSE OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE APP, THE
SERVICES OR THIS LICENSE AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR
OTHERWISE) EVEN IF TOPSHELF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR FOR ANY OTHER CLAIM,
DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS LICENSE OR THE
DELIVERY, USE OR PERFORMANCE OF THE APP OR 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. In no event shall TopShelf’s total liability to you for all damages exceed the amount of fifty
dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its
You agree that the above limitations of liability together with the other provisions in this License that limit liability are essential terms of this License and that TopShelf would not be willing to grant you the rights set forth in this License but for your agreement to the above limitations of liability; you are agreeing to these limitations of liability to induce TopShelf to grant you the rights set forth in this License.
(a) The App, the Services and their content, including their “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 TopShelf and/or its licensors own all right, title and interest in and to the App and the Services (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. You do not acquire any rights or licenses under any of TopShelf’s (or its licensors’) patents, patent applications, copyrights, trade secrets, trademarks or other intellectual property rights on account of this License.
(b) Any and all (i) suggestions for correction, change and modification to the App, the Services and other feedback (including but not limited to quotations of written or oral feedback), information and reports provided to TopShelf by you (collectively “Feedback”), and all (ii) improvements, updates, modifications or enhancements, whether made, created or developed by TopShelf or otherwise relating to the App or the Services (collectively, “Revisions”), are and will remain the property of TopShelf. 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 App, the Services or in any such Feedback or Revisions. All Feedback and Revisions become the sole and exclusive property of TopShelf and TopShelf 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 TopShelf any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback and Revisions. At TopShelf’s request, you will execute any document, registration or filing required to give effect to the foregoing assignment.
We may modify this License at any time. Modifications become effective immediately upon your first access to or use of the App or the Services after the “Last Revised” date at the end of this License. Your continued access or use of the App or the Services after the modifications have become effective will be deemed your conclusive acceptance of the modified License. If you do not agree with the modifications, then please uninstall and do not access or use the App or the Services.
This License is effective until the earlier of the date that you uninstall the App, you fail to comply with any term of this License or TopShelf terminates this License. Upon termination, you will cease all use of the App and the Services and will destroy all copies (full or partial) of the App in your possession or control. Termination will not limit any of TopShelf’s other rights or remedies at law or in equity.
You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with this License by any authority.
15. Injunctive Relief
You agree that a breach of this License will cause irreparable injury to TopShelf for which monetary damages would not be an adequate remedy and TopShelf shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
16. Dispute Resolution
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS LICENSE OR THE SERVICES WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT. The Federal Arbitration Act (“FAA”) and federal arbitration law apply to this License. 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 THE TERMS OF THIS LICENSE AS A COURT WOULD. If you intend to seek arbitration you must first send written notice to TopShelf’s Customer Service Center of your intent to arbitrate (“Notice”). The Notice to TopShelf should be sent by the following means: (i) electronic mail to: Support@TopShelfApp.com. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If we do not reach an agreement to resolve the claim within 30 days after the notice is received, you or TopShelf may commence an arbitration proceeding. TopShelf will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claim is brought in bad faith and/or the relief sought is improper or not warranted. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. 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. We also both agree that you or we may bring suit in court for injunctive relief, including enjoining infringement or other misuse of intellectual property rights.
This License may not be modified except by a writing executed by the duly-authorized representatives of TopShelf. No other act, document, usage or custom will be deemed to modify or amend this License. This License and the licenses granted hereunder may be assigned by TopShelf but may not be assigned by you without the prior express written consent of TopShelf. If any provision hereof is or becomes, at any time or for any reason, unenforceable or invalid, no other provision hereof will be affected thereby and the remaining provisions will continue with the same effect as if such unenforceable or invalid provisions will not have been inserted herein; provided that the ability of either party to obtain substantially the bargained-for performance of the other will not have thereby been impaired. It is expressly understood that in the event either party on any occasion fails to perform any term hereof and the other party does not enforce that term, the failure to enforce on any occasion will not constitute a waiver of any term and will not prevent enforcement on any other occasion. Nothing contained in this License 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. In the event that either party is prevented from performing, or is unable to perform, any of its obligations under this License 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. The laws of the Commonwealth of Massachusetts, excluding its conflicts of law rules, govern this License and your use of the App and the Services. Your use of the App or the Services may also be subject to other local, state, national, or international laws. Any litigation by one party against the other arising under this License or concerning any rights under this License will be commenced and maintained in any state or federal court located in Texas and both parties hereby submit to the jurisdiction and venue of any such court. This License sets forth the entire understanding of the parties with respect to the matters contained herein and there are no promises, covenants or undertakings other than those expressly set forth herein.