Last Updated: March 28, 2023
These terms of service ("Terms") constitute a legal agreement between you and The Bottlefly, 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.
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.
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 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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 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.
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.
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 Californiaor 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.
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.
The Bottlefly, Inc., which may include many different brands, will be the data controller for your information. The list of relevant Brands includes:
The Bottlefly, Inc., and
We collect two basic types of information – personal information (as defined in this policy) and anonymous information (as defined in this policy) – and we may use personal and anonymous information to create a third type of information, aggregate information (also defined in this policy). For example, we collect:
Registration information you provide when you create an account, enter a promotion, make a request, or link your profile on a third-party site or platform with your registration account, such as your first name and surname, country of residence, gender, date of birth, email address, username, cell phone number and password; Transaction information you provide when you request information, contact guest services, or purchase a product or service from us, such as your postal address, telephone number, and payment information;
Information you provide in public forums on our sites and applications, such as your public posts;
Information sent either one-to-one or within a limited group using our message, chat, post, or similar functionality, where we are permitted by applicable law to collect this information;
Information we obtain from a third party, such as a site or platform provider, about use of our applications on third-party platforms or devices;
Location information, including location information provided by a mobile or other device interacting with one of our sites or applications (including through beacon technologies), or associated with your ip address, where we are permitted by law to process this information;
Activity information about your use, and the use by any person(s) you authorize through your account, of our sites and applications, such as the content you view or post, how often you use our services, and your preferences; and
Usage, viewing, technical, and device data when you visit our sites, use our applications on third-party sites or platforms, or open emails we send, including your browser or device type, unique device identifier, and ip address.
We collect information you provide to us when you request or purchase products, services, or information from us, register with us (including when you link your profile on a third-party site or platform with your registration account), participate in public forums or other activities on our sites and applications, respond to guest surveys, or otherwise interact with us using one or more devices. You may provide information in a variety of ways, including by typing or using voice commands.
We collect information through a variety of technologies, such as cookies, flash cookies, pixels, tags, software development kits, application program interfaces, and web beacons, including when you visit our sites and applications or use our applications on third-party sites or platforms using one or more devices, whether or not you are logged in or registered. Please visit Online Tracking Technologies and Advertising for further information, including do not track and how to disable cookies and otherwise make choices with respect to such data collection.
We collect information using analytics tools, including when you visit our sites and applications or use our applications on third-party sites or platforms.
We acquire information from other trusted sources to update or supplement the information you provided or we collected automatically, such as when we validate your phone number, email address, or postal address using third party services.
Applicable law may require that you authorize the third party to share your information with us before we can acquire it.
The Bottlefly, Inc., as the data controller for your information, is responsible for and may use your information for the purposes described in this policy. Consistent with applicable law and choices and controls that may be available to you, we may use information collected from you, or from devices associated with you, to:
Provide you with the experiences, products, and services you request, view, engage with, or purchase;
Communicate with you about your account or transactions with us and send you information or request feedback about features on our sites and applications or changes to our policies;
Send you offers and promotions for our products and services or third-party products and services, including via email and if you have opted-in, via text;
Personalize content and experiences;
Provide you with targeted advertising based on your activity on our sites and applications and on third-party sites and applications;
To learn more about how we use your information for personalization and tracking, please visit Online Tracking Technologies and Advertising.
Operate, understand, optimize, develop, or improve our sites, applications, products, services and operations, including by using guest survey research and analytics tools; and
Detect, investigate and prevent activities that may violate our policies or be illegal.
We will not share your personal information with a third party outside The Bottlefly, Inc. except in limited circumstances, including:
When you allow us to share your personal information with another company, such as:
Opting in and electing to share your personal information with carefully selected companies so that they can send you offers and promotions about their products and services; and
Directing us to share your personal information with third-party sites or platforms, such as social networking sites.
Please note that once we share your personal information with another company, the information received by the other company is controlled by that company and becomes subject to the other company’s privacy practices.
When companies perform services on our behalf, like package delivery, marketing and advertising, and customer service; however, these companies are prohibited from using your personal information for purposes other than those requested by us or required by law; and
We provide you the ability to exercise certain controls and choices regarding our collection, use and sharing of your information. In accordance with applicable law, your controls and choices may include:
Correcting, updating, and deleting Your Registration Account (Logout);
Choosing or changing your choices for subscriptions, newsletters, and alerts;
Choosing whether to receive from us offers and promotions for our products and services, or products and services that we think may be of interest to you;
Choosing whether we share your personal information with other companies so they can send you offers and promotions about their products and services;
Controlling targeted advertising from many ad networks and partners; data exchanges; and marketing analytics and digital advertising and marketing service providers (by visiting the Digital Advertising Alliance);
Choosing to control targeted advertising you receive within applications by using the settings and choices made available to you through your device(s), for example, by re-setting your device’s advertising identifier and/or opting out of interest-based ads;
Requesting removal of your personal information from a public forum on one of our sites or applications; and
Requesting access to the personal information we hold about you and that we amend or delete it.
You may exercise these controls and choices in various ways, including by visiting Communication Choices (under the Privacy tab), contacting Privacy@Tastry.com, following instructions provided in communications sent to you, or by using your device or other available settings (for example, by re-setting your device’s advertising identifier and/or opting out of interest-based ads). You can opt out of interest-based ads by visiting the Digital Advertising Alliance or European Interactive Digital Advertising Alliance or using the opt-out mechanism in the “Interest Based Ads” link in the footer of the site you are visiting.
Please be aware that if you do not allow us to collect personal information from you, we may not be able to deliver certain experiences, products, and services to you, and some of our services may not be able to take account of your interests and preferences. If collection of personal information is mandatory, we will make that clear at the point of collection so that you can make an informed decision whether to participate. If you have questions about the specific personal information about you that we process or retain, and your rights regarding that personal information, please contact guest services.
The Bottlefly, Inc. d/b/a “Tastry” does not target children or knowingly collect personal information from children. In consideration of that possibility, some of the features on our sites and applications may be age-gated so that they are not available for use by children. If you have questions or concerns about our privacy practices, please contact us at Privacy@Tastry.com.
Additionally, when using or disclosing personal information transferred from the European Union, we use standard contractual clauses approved by the European Commission, adopt other means under European Union Law for ensuring adequate safeguards, or obtain your consent. We also apply the substantive requirements of standard contractual clauses when transferring personal information from Australia.
Some web browsers offer a "Do Not Track" ("DNT") signal. A DNT signal is a HTTP header field indicating your preference for tracking your activities on the site or through cross-site user tracking. This site does not respond to DNT signals. For more information on DNT settings generally, please visit https://allaboutdnt.com.
If you are a California resident, you may have certain additional rights. California Civil Code Section 1798.83 permits you to request information regarding the disclosure of your personal information by The Bottlefly, Inc. to third parties for the third parties’ direct marketing purposes. California Business and Professions Code Section 22581 permits registered users who are minors to request and obtain deletion of certain posted content. Visit our Your California Privacy Rights page for more information.
Aggregate information means information about groups or categories of guests, which does not identify and cannot reasonably be used to identify an individual guest.
Anonymous information means information that does not directly or indirectly identify, and cannot reasonably be used to identify, an individual guest.
Application means a program or service operated by us (or on our behalf) that may be displayed on various online, mobile, or other platforms and environments, including those operated by third parties, which permits us to interact directly with our guests.
Children means individuals who we have identified are not of legal age to consent to the collection and processing of their personal information. In the United States and Latin America, the term “children” refers to individuals under 13 years of age.
The data controller is the company that is responsible for the personal information collected and used within the scope of this Policy from our sites and applications, as follows:
The Bottlefly, Inc. d/b/a “Tastry”
P.O. Box 1091
Grover Beach, CA 93433
A data processor is a person or entity that processes personal information on behalf of a data controller (or data controllers) and is permitted to perform data processing only as directed by the data controller(s).
An IP address is associated with the access point through which you enter the internet, and is typically controlled by your internet service provider (ISP), your company, or your university. We may use IP addresses to collect information regarding the frequency with which our guests visit various parts of our sites and applications, and we may combine IP addresses with personal information.
Parents means a parent or legal guardian.
Personal information means information that identifies (whether directly or indirectly) a particular individual, such as the individual’s name, postal address, email address, and telephone number. When anonymous information is directly or indirectly associated with personal information, the resulting information also is treated as personal information.
Our sites and applications may offer message boards, conversation pages, blogs, chat rooms, social community environments, profile pages, and other forums that do not have a restricted audience. If you provide personal information when you use any of these features, that personal information may be publicly posted and otherwise disclosed without limitation as to its use by us or by a third party.
If you are a California resident, California Civil Code Section 1798.83 permits you to request information regarding the disclosure of your personal information by The Bottlefly, Inc. d/b/a "Tastry" to third parties for the third parties' direct marketing purposes. To make such a request, please send an email to Privacy@Tastry.com or write us:
CA Privacy Rights
The Bottlefly, Inc. d/b/a "Tastry"
P.O. Box 1091
Grover Beach, CA 93433
If you are a California resident under the age of 18, and a registered user of any site where this policy is posted, California Business and Professions Code Section 22581 permits you to request and obtain removal of content or information you have publicly posted. To make such a request, please send an email with a detailed description of the specific content or information to Privacy@Tastry.com. Please be aware that such a request does not ensure complete or comprehensive removal of the content or information you have posted and that there may be circumstances in which the law does not require or allow removal even if requested.
Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act ("DMCA"), The Bottlefly, Inc. ("Tastry") has adopted and implemented this copyright dispute policy ("Copyright Dispute Policy") that provides for the termination in appropriate circumstances of users of Tastry's website (www.Tastry.com) and any subdomains of the website (the "Website"), or the "Tastry" mobile application (the "App"), who are repeat infringers. Tastry may terminate access for users who are found repeatedly to provide or post protected third party content without necessary rights and permissions, including content on our social media properties. To learn more about the DMCA, click here: DMCA . copy
If you are a copyright owner or an agent thereof and believe, in good faith, that any materials on the Website or App infringe upon your copyrights, you may submit a notification pursuant to the DMCA by sending the following information in writing to Tastry's designated copyright agent at The Bottlefly, Inc., Attn:Copyright, P.O. Box 1091, Grover Beach, CA 93433, or Hello@Tastry.com:
The date of your notification;
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
A description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that site;
A description of the material that is claimed to be infringing or to be the subject of infringing activity and information sufficient to enable us to locate such work;
Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and/or email address;
A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you believe that your content that has been removed from the Website or App is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the content on the Website or App, you may send a counter-notice containing the following information to our copyright agent using the contact information set forth above:
Your physical or electronic signature;
A description of the content that has been removed and the location at which the content appeared before it was removed;
A statement that you have a good faith belief that the content was removed as a result of mistake or a misidentification of the content; and
Your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court for the judicial district in which your permanent address is, or, if your permanent address is outside the United States, for any judicial district in which Tastry is located and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Tastry copyright agent, Tastry may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may (in Tastry's discretion) be reinstated on the Website and App in 10 to 14 business days or more after receipt of the counter-notice.
We and certain service providers operating on our behalf collect information about your activity, or activity on devices associated with you, on our sites and applications using tracking technologies such as cookies, Flash cookies, pixels, tags, software development kits, application program interfaces, and Web beacons. Definitions for some of the tracking technologies listed, as well as information about your choices with respect to them, are available below. This tracking data may be used for many purposes including, for example, to:
Provide useful features to simplify your experience when you return to our sites and applications (for example, remembering your shipping information for future purchases);
Deliver relevant content and advertising based on your preferences, usage patterns and location;
Monitor, evaluate, and optimize the use and operation of our sites and applications; and
Analyze traffic on our sites and on the sites of third parties.
We may collect information whether or not you are logged in or registered, and may associate this tracking data with your registration account (if you have one), in which case we will treat it as personal information. Service providers that collect tracking data on our behalf may provide an opportunity for you to choose not to be tracked online.
Advertisers and third parties also may collect information about your activity on our sites and applications, on devices associated with you, and on third-party sites and applications using tracking technologies. Tracking data collected by these advertisers and third parties is used to decide which ads you see both on our sites and applications and on third-party sites and applications.
You may choose NOT TO RECEIVE TARGETED ADVERTISING FROM MANY AD NETWORKS AND PARTNERS, data exchanges, and marketing analytics and other digital advertising and marketing service providers. You may also be able to choose to control targeted advertising on other websites and platforms that you visit. In addition, you may also choose to control targeted advertising you receive within applications by using the settings and controls on your devices (for example, by re-setting your mobile device's advertising identifier and/or opting out of interest-based ads). We adhere to the Digital Advertising Alliance's Self-Regulatory Principles for Online Behavioral Advertising.
Examples of online tracking technologies include:
Flash cookies. We may use local shared objects, sometimes known as Flash cookies, to store your preferences or display content based upon what you view on our site to personalize your visit. Our advertisers and third-party service providers also may use Flash cookies to collect and store information. Flash cookies are different from browser cookies because of the amount of, type of, and manner in which data is stored. Cookie management tools provided by your browser will not remove Flash cookies. LEARN HOW TO MANAGE PRIVACY AND STORAGE SETTINGS FOR FLASH COOKIES. If you disable Flash cookies, you won't have access to many features that make your guest experience more efficient, and some of our services will not function properly.