TERMS OF SERVICE
These terms of service ("Terms") constitute a legal agreement between you and Upper Glass LLC. ("Upper Glass", "we" or "us"). Please read these Terms carefully. If you do not agree to these Terms, please do not join our Wine Club or access or use our Website or Services (each as deﬁned in the next paragraph).
By accessing or using our website (www.theUpperGlass.com) and any subdomains of our website ("Website"), or by registering for a wine club marketed by Upper Glass (each, a “Wine Club”) and or using any services supplied to you by Upper Glass (collectively, with the Wine Club(s), the "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 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. Through the use of the Website, Upper Glass markets wines and related products directly to consumers and offers consumers the opportunity to register for one or more Wine Clubs that Upper Glass services. Upper Glass’s role in the transactions contemplated by these Terms is that of a service provider that enables you, the consumer, to purchase wine and related products from an independent, licensed alcohol beverage retailer (each, a "Licensed Retailer") for the purchase and sale of such wines and products, among other things. All orders placed through the Website are accepted, reviewed, and ultimately fulﬁlled by a Licensed Retailer. All sales are solely transacted between you and the Licensed Retailer. Each Wine Club offering marketed by Upper Glass is not an oﬀer to purchase such product but an invitation for you to make an oﬀer by placing an order. You acknowledge and agree that Upper Glass 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 the Licensed Retailer who receives all orders and oﬀers. In all instances, any solicitation, invitation, oﬀer, advertisement or communication is void where prohibited by law. Upper Glass does not sell 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.
- Fees. Upper Glass does not currently charge consumers a fee to join the Wine Clubs or otherwise use its Services. As a member of a Wine Club, you are entitled to have delivered to you the selected Wine Club offering for each month that your Wine Club membership is active. You will be responsible for paying to the Licensed Retailer the applicable monthly Wine Club charge specified on the Website (“Wine Club Fee”) for each delivery of wine to you. The Wine Club Fee includes the cost of delivery; however, the Licensed Retailer may charge you a Restocking Fee in connection with your transaction, as described in the next paragraph. Any such fees are due immediately. In the future, Upper Glass may, in its sole discretion, begin charging fees for our Services or increase the applicable Wine Club Fee. We will notify you before any Services you are then using begin carrying a fee or any increase in the monthly Wine Club Fee for any Wine Club you have registered, and if you wish to continue using such Services and/or being a member of the Wine Club at that time, you will be required to pay all applicable fees for such Services and/or Wine Club. 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.
- Wine Club Membership; Order Process. As described above, as part of the Services available to you, you will have the opportunity to register for various Wine Clubs that Upper Glass markets and services by following the instructions on the Website. As a member of a Wine Club, you are generally entitled to receive one delivery of wine (four (4) bottles) every calendar month while your Wine Club membership is active. All offers made pursuant to these Terms are subject to availability. In the unlikely event that a particular wine selection is currently unavailable a substitute of similar style and of equal or greater value will be supplied in your delivery from the Licensed Retailer. You will be notified by email communication in advance of each monthly Wine Club delivery and if you make no changes to your Wine Club membership prior to the date specified in the email communication, you will be deemed to have agreed to accept delivery of that month’s Wine Club delivery and the applicable Wine Club Fee will be charged to the debit card or credit card supplied by you in the registration process. You may manage your Wine Club membership(s) on the Website, where you will have the option to skip delivery of that month’s Wine Club Delivery or to cancel your membership in the Wine Club.
Once the charge to your debit card or credit card is authorized, the Licensed Retailer and/or Upper Glass will package and deliver your monthly Wine Club delivery. The individual accepting the 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 delivery. It is solely the responsibility of the delivery company used by the Licensed Retailer and that delivery company’s employees and agents, to verify such proof of identiﬁcation. Your delivery may be declined for any reason by the Licensed Retailer, or its employee or agent, or the delivery company used by the Licensed Retailer or that delivery company’s employee or agent. If delivery is declined by the Licensed Retailer because one or more of the wines specified as being included in the monthly Wine Club delivery or acceptable substitutions are not in stock, the Licensed Retailer may oﬀer you a full refund. If your order delivery is declined or cannot be completed for any other reason, you may be charged by the Licensed Retailer 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 DELIVERY COMPANY USED BY THE LICENSED RETAILER OR THAT 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 UPPER GLASS 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 the Licensed Retailer 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 delivery of your order. By arranging for transportation of your order on your behalf, the Licensed Retailer is providing a service to you. By accepting delivery of a Wine Club delivery, 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.
- Recurring Payments. You acknowledge and agree that your Wine Club membership entails use of a recurring payment system solely in which the method of payment linked to your account will be automatically charged in the amount of the applicable Wine Club Fee on a monthly basis. There is, however, no ongoing commitment to remain a member of a Wine Club and to receive these deliveries of wine. You may cancel your Wine Club membership as specified above and we will promptly stop processing the recurring payments.
- Promotional Oﬀers; Credits. Upper Glass, 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 Upper Glass and not the Licensed Retailer, 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.
- License Grant. Upper Glass 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) through the Website solely for your personal use. All rights not expressly granted herein are reserved by Upper Glass.
- 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 Upper Glass. 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 Upper Glass; (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 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 Website, any updates to or portion of the 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 Website); (y) use any means to discover the source code of the 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 Upper Glass and its licensors. If you breach these restrictions, you may be subject to prosecution and damages.
- Objectionable Material. You understand that by using any of the Services or the Website, 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.
- Applicable Laws. The laws of the Commonwealth of Massachusetts, 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. Upper Glass 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. Upper Glass 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. Upper Glass 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.
- Indemniﬁcation. By entering into these Terms and using any portion of the Services, you agree that you shall defend, indemnify and hold Upper Glass, 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.
- 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 Upper Glass 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. Upper Glass 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.
- 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 UPPER GLASS 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. UPPER GLASS MAKES NO REPRESENTATION OR WARRANTY AS TO YOUR LEGAL RIGHT TO HAVE ALCOHOL BEVERAGES TRANSPORTED TO YOU OR YOUR INTENDED RECIPIENT.
- Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL UPPER GLASS 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, 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 THE LICENSED RETAILER, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF UPPER GLASS 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 Upper Glass liable for damages notwithstanding the foregoing, in no event shall Upper Glass’s total liability for all damages exceed the amount paid by you to Upper Glass 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 UPPER GLASS NOR THE LICENSED RETAILER NOR THE 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 UPPER GLASS, THE LICENSED RETAILER OR THE 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 Upper Glass 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 Upper Glass to grant you the rights set forth in these Terms.
- Intellectual Property.
(a) Ownership. Upper Glass grants you the limited right to access and make use of the Website as a user. The Website, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Website (the "Content") are owned by or licensed to Upper Glass. Unless authorized in writing and in advance by Upper Glass or the applicable rights holder, you may not sell, reproduce, copy, distribute, modify, display, publicly perform or otherwise exploit the Content for any public or commercial purpose. No provisions of these Terms shall be construed to convey any property right or license to the Content unless expressly provided to the contrary.
(b) DMCA. We respect the intellectual property rights of others and require that our users do the same. If you believe your work has been copied in a manner that constitutes copyright infringement, or you believe your rights are otherwise infringed or violated by anything on the Website, you must notify us and give us an opportunity to correct the problem before taking any other action by sending an email to the following address: email@example.com. In order for us to more effectively assist you, the notification must include all of the following: (i) a physical or electronic signature of the owner of the right claimed to be infringed or the person authorized to act on the owner's behalf; (ii) a description of the copyrighted work or other right you claim has been infringed or violated; (iii) information reasonably sufficient to locate the material in question on the Website; (iv) your name, address, telephone number, e-mail address and all other information reasonably sufficient to permit us to contact you; (v) a statement by you that you have a good faith belief that the disputed use is not authorized by the rightful owner, its agent or the law; and (vi) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the owner of the right claimed to be infringed or violated or are authorized to act on behalf of the owner.
- 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 do not access or use the Services.
- Termination. These Terms are eﬀective until you or Upper Glass terminates these Terms. Upper Glass 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. Termination will not limit any of Upper Glass's other rights or remedies at law or in equity. Sections 5, 7, and 9‐20 shall survive termination or expiration of these Terms for any reason, provided however, that the license granted in Section 5 shall cease immediately upon termination or expiration.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to Upper Glass for which monetary damages would not be an adequate remedy and Upper Glass 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.
- 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 Upper Glass and you are an individual, you may opt out of this arbitration agreement by sending an email to info@Upper Glass.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 Upper Glass of your intent to arbitrate ("Notice"). The Notice to Upper Glass should be sent by any of the following means: (i) electronic mail to info@theUpperGlass.com or (ii) U.S. Postal Service certiﬁed mail to Upper Glass LLC, PO BOX 290291, Charlestown, MA 02129. 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 Upper Glass 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 Upper Glass for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Upper Glass 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 Commonwealth of Massachusetts 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 Commonwealth of Massachusetts for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. We also both agree that Upper Glass may bring suit in court for injunctive relief to enjoin infringement or other misuse of intellectual property rights.
- Miscellaneous. These Terms may not be modiﬁed by you except by a writing executed by the duly‐authorized representatives of Upper Glass. 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 Upper Glass but may not be assigned by you without the prior express written consent of Upper Glass. 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 Upper Glass 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 Upper Glass 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.
- 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 your Wine Club membership, the Services or these Terms at: Upper Glass, LLC, PO BOX 290291, Charlestown, MA 02129, or by email to: help@theUpperGlass.com.
Last Revised: May 1, 2017