Welcome and thank you for visiting www.10thwhiskey.com (the “Site”). These Terms and Conditions constitute a legally binding agreement and governs your access to and use of the Site and other retailer websites, social media pages, accounts, and mobile applications owned by or licensed to us (collectively, the “Sites”), any order you place through the Sites and, as applicable, your use of the Products you purchase.
By using the Sites, including, without limitation, by participating in theServices (as defined in Section 2), you hereby agree to these Terms and Conditions, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. These Terms and Conditions apply to all users of the site, including without limitation, customers.
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SITES, YOU SHALL NOT PLACE AN ORDER, AND YOU SHALL NOT USE ANY PRODUCTS SOLD VIA THE SITES.
We reserve the right to update, change or replace any part of these Terms and Conditions. Your continued use of or access to the website following the posting of any changes constitutes acceptance of those changes.
PLEASE MAKE SURE YOU HAVE CAREFULLY READ AND UNDERSTAND THE “ARBITRATION AND WAIVER OF CLASS ACTIONS” PROVISION SET FORTH IN SECTION 21 OF THESE TERMS OF SERVICE, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ACCESSING OR USING OUR WEBSITE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THE ARBITRATION AND WAIVER OF CLASS ACTIONS PROVISION SET FORTH BELOW.
SECTION 1. MINIMUM AGE REQUIREMENT
The Sites are intended for use by adults aged 21 or older and if you use the Sites, you represent and warrant that you are at least twenty-one (21) years of age and that the recipient of any alcoholic beverage purchase you may make is at least 21 years of age. In no event shall you use the Sites nor the Services, nor make a purchase or purchase a gift for someone else if you are under the age of 21, nor may you do any of the foregoing activities for the benefit, or on behalf, of any person under the age of 21. We may refuse to register any person, or service any order at any time, in our sole discretion.
In accordance with these minimum age requirements, you hereby represent that you are legally entitled to take possession of the alcoholic beverages in the quantities ordered, and you are of legal purchase age under applicable laws.See Section 4 regarding age verification requirements at the time of delivery.
SECTION 2. SALE OF ALCOHOLIC BEVERAGES
Our role in the transactions contemplated by these Terms and Conditions is that of a marketing and service provider that enables you, the Customer, to purchase alcohol and related products from Licensed Retailers via the Sites (“Services), and to participate in the Services and/or any other product offers offered on the Sites. The sale and delivery of orders are executed and fulfilled by licensed third-party retailers that hold valid licenses issued by state alcohol beverage agencies allowing for the legal sale of alcohol ("Licensed Retailers”). You acknowledge that you are purchasing alcoholic beverages from a Retailer licensed in the state in which it is licensed, and not from 10thwhiskey.com. Thus, all orders of alcohol and related products you place through the use of the Sites are processed and fulfilled by such Licensed Retailers, as the actual sellers of the Products. Any purchase you make through the use of the Sites from the Licensed Retailers must be for personal consumption only and not for resale. In the unlikely event that a particular product is unavailable at time of shipping, the Licensed Retailer may substitute a product of similar style and of equal or greater value in your shipment.
SECTION 3. ACCOUNT REGISTRATION
SECTION 4. ORDERS, SHIPPING, AND DELIVERY
If you are an adult over the age of 21, you may make an offer to purchase alcoholic beverages or associated non-alcoholic merchandise (the “Products”) using the Sites from the Licensed Retailers. Prices displayed on the Sites are not controlled by 10th Mountain Whiskey & Spirit Co., and are subject to change without notice at any time. Licensed Retailers may choose to accept or reject any offer to purchase the Products due to lack of availability, inability to verify your age, or any other reason. If your offer to purchase the Products is declined in full or in part for any reason, you will receive a refund for any portions of your order that are declined by the Licensed Retailer.
Unless otherwise indicated at the time of your purchase, shipping and handling fees are NOT included with your order and such fees will be added on to the price of your purchased products. Shipping dates and/or arrival times given are only estimates. Refunds are at the sole discretion of 10th Mountain Whiskey & Spirit Co.
All deliveries must be signed for by an individual who is capable of proving that he or she is 21 years of age or older by providing a valid form of identification at the time of delivery. If there is no individual 21 years of age or older to accept the delivery, the delivery will not be able to be completed at that time. After three failed delivery attempts, the package will be returned to us and your credit card will be charged an additional shipping fee in order to receive the package.
We reserve the right to refuse delivery for any reason, including without limitation, the failure to verify age at the time of delivery. Packages cannot and will not be left unattended for any reason.
SECTION 5. TITLE AND OWNERSHIP
Title to, and ownership of, all alcohol passes from a Licensed Retailer to you in the state where the Retailer is licensed, and you are assuming all responsibility for the shipping of the product to your home state. You are directing 10th Mountain Whiskey & Spirit Co. to act as your agent to arrange for your purchase of the alcohol on-site at the retailer’s premises or facilities as though you were making an in-person purchase for personal consumption and/or use at that time. You are also directing 10th Mountain Whiskey & Spirit Co. to arrange for the transportation of the alcoholic beverage via a common carrier, and we are acting as an agent on your behalf to have the product delivered to your address. By utilizing this service from 10th Mountain Whiskey & Spirit Co., you are fully responsible for ensuring that the purchase, transportation, and delivery to your designated address complies with all local and state laws. Further, you are responsible for obtaining any required permits, authorizations, or approvals to purchase and accept delivery of the products and for paying any required fees. As a result, title and risk of loss or damage for such products will pass to you upon our delivery to the carrier. Further, you acknowledge and agree that your purchase of alcohol (including, Products) through the Site is for personal consumption and not for resale.
SECTION 6. PAYMENT
Your credit or debit card will be charged immediately upon checkout. We will not process orders that attempt to use an incorrect, expired, or over-the-limit credit card. However, in the event such an order is processed, we reserve the right to collect funds for any uncollected transactions owed to us. If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, we may charge such amount directly to the credit card identified in your Account and may suspend or terminate your access to the Services, including your subscription. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that we may incur in our efforts to collect any unpaid balances from you. Your right to use the Services is subject to limits established by us and/or by your credit card issuer.
We use a third party payment service in lieu of directly processing your credit card information. By submitting your credit card information, you grant 10th Mountain Whiskey & Spirit Co. the right to store and process your information with the third party payment service, which may change from time to time; you agree that 10th Mountain Whiskey & Spirit Co. will not be responsible for any failures of the third party payment service to adequately protect such information. All financial matters regarding your information are subject to the conditions of the third party payment service provider's terms of service. You acknowledge that we may change the third party payment service and move your information to other service providers that encrypt your information using secure socket layer technology (SSL) or other comparable security technology.
SECTION 7. SUBSCRIPTION PROGRAM
If you are a member of a periodic subscription, each period, among other things and depending on the specifics of the then-current subscription offering, a Licensed Retailer may ship you a package with the then-current subscription items (e.g., samples of Products, other samples, merchandise, recipes, instructions, and/or other ingredients) (a "Subscription Program"). Each period of your subscription, the selection of Products may change. Accordingly,All-Bottles_whiteBG.ai cannot guarantee that a selection of any such products available in a particular timeframe will be available in any subsequent timeframe.
The periodic subscription terms incorporate the terms of the particular periodic subscription package, as described in the subscription and checkout pages of the Sites. See the subscription page for a description of the current subscriptions and prices on the Sites. Note that any payment terms presented to you in the process of using or signing up for a paid subscription are deemed part of this Agreement.
SECTION 9. PROMOTIONAL EMAILS
SECTION 11. NOTICE
SECTION 12. MODIFICATION
We may modify these Terms and Conditions at any time, at our sole discretion, without specific notice to you provided, however, that (a) any amendment or modification to the provisions applicable to dispute resolution shall not apply to any disputes incurred prior to the applicable amendment or modification; and (b) any amendment or modification to pricing and/or billing provisions shall not apply to any charges incurred prior to the applicable amendment or modification (as the Terms and Conditions in effect at the time of the subject dispute or incurred changes shall govern, as applicable). The latest version of these Terms and Conditions will be posted to the Site, and you should review these Terms and Conditions prior to using the Sites. Any such changes to these Terms and Conditions will become effective immediately and your continued use of the Sites and your Account following such notification will be deemed confirmation of your acceptance of such changes. You will not be eligible for any compensation because you cannot use any part of the Sites or because of a failure, suspension or withdrawal of all or part of the Sites.
SECTION 13. ACCEPTABLE USE POLICY; PROHIBITED USES
You hereby agree that you are solely responsible for your conduct in connection with your use of the Sites and for any and all acts and omissions that occur under your Account or password. In connection with your use of the Sites, you further agree not to engage in any of the following prohibited activities: (a) create an Account or make any purchase if you are under twenty-one (21) years of age; (b) interfere with or inhibit the use of the Sites by other users; (c) use the Sites for commercial purposes for yourself and/or third parties (for example, by selling, or attempting to sell, your purchases to others, etc.); (d) create an Account using a false identity, alter-ego, by impersonating a third party, or creating any other false account; (e) interfere with, disruptor attempt to gain unauthorized access to other Accounts on the Sites or any other computer network; (f) copy, reverse engineer, or attempt to derive the source code of any part of the Sites; (g) post any comment or product review on the Sites or Social Media Pages that is private, libelous, harassing, abusive, obscene, vulgar, sexually explicit, or inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic, or is unrelated to our products or services or is clearly false or misleading; (h) disseminate or transmit files, graphics, software or other material that actually or potentially infringes the copyright, trademark, patent, trade secret or other intellectual property of any person; (i) disseminate or transmit viruses, Trojan Horses, or any other malicious code or program; or (j) use the Sites in a manner or engage in any other activity that would violate any of the terms and conditions contained in these Terms and Conditions or any applicable laws.
Violation of the foregoing restrictions will result in immediate termination of your Account, and may potentially subject you to further liability. We may investigate any reported violation of these Terms and Conditions and take any action that we deem appropriate. Such action may include, but is not limited to, issuing warnings, closing your Account, suspending future shipments under your Membership or Gift purchase, unilaterally removing posted content and/or reporting any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other third parties.
SECTION 14. LIMITED LICENSE
We grant you the limited right to access and make use of the Sites as a user. The Sites, including, without limitation, all text, graphics, images, logos, software, trademarks, service marks and trade names incorporated in the Sites (the "Content") are owned by or licensed to us. Unless authorized in writing and in advance by us 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 and Conditions shall be construed to convey any property right in or license to the Content unless expressly provided to the contrary.
SECTION 15. THIRD-PARTY SERVICERS
You may have contact or other interaction with third parties by clicking third-party links on our Sites and being directed to third-party websites (the "Third-Party Servicers"). You acknowledge and agree that you are proceeding at your own risk and any such Third-Party Servicers are not under our control. We shall be in no way responsible or liable for any acts, omissions, breaches, representations or warranties made by any such Third-Party Servicers, or for any losses, injuries, or other damages you incur in connection with your contact or other interaction with them, including the content on, or the privacy practices of, such Third-Party Servicers. If you visit the website of, or submit information to, any Third-Party Servicer, your visit and the information you submit are governed by the privacy statement of that Third-Party Servicer. We encourage you to carefully read the privacy statements of any website you visit.
SECTION 16. DISCLAIMERAND LIMITS ON LIABILITY
THE SITES AND THE CONTENT ARE PROVIDED "AS IS," "AS AVAILABLE," AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BYANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED TO THE EXTENT PERMITTED BY LAW. YOUR USE OF THE SITES IS SOLELY ATYOUR OWN RISK. IN NO EVENT SHALL 10th MOUNTAIN WHISKEY & SPIRIT CO. OR ITS OFFICERS, DIRECTORS,MANAGERS, EMPLOYEES, OR AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS RELATING TO THE PURCHASE, SALE, DELIVERY AND/OR CONSUMPTION OF THE ALCOHOLIC BEVERAGE OR ANY CONSEQUENCES WHICH MAY RESULT THEREOF.
THE PRODUCTS AND SERVICES OFFERED THROUGH THE SITES ARE PROVIDED "AS IS," "AS AVAILABLE," AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES THAT MAY BE IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESS DISCLAIMED TO THE EXTENT PERMITTED BY LAW PROVIDED, HOWEVER, THAT THIS DISCLAIMER OF WARRANTIES IN THIS SECTION IS NOT APPLICABLE TO RESIDENTS OF THE STATE OF NEW JERSEY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND EXCEPT WITH RESPECT TO RESIDENTS OF THE STATE OF NEW JERSEY, THE COMPANY SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST DATA, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OFOR INABILITY TO USE THE SITES, YOUR PLACEMENT OR DELIVERY OF ORDERS OF ALCOHOL, MEMBERSHIPS OR GIFTS, OR YOUR USE OF THE PRODUCTS OR SERVICES OFFERED THROUGH THE SITES EVEN IF THE COMPANY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES.
SECTION 17. ERRORS AND INACCURACIES
We strive to provide complete, accurate, up-to-date information on our Sites.Unfortunately, despite those efforts, human or technological errors may occur. For example, our Sites may contain typographical errors, inaccuracies, or omissions, some of which may relate to pricing and availability, and some information may not be complete or current. We reserve the right to correct any errors, inaccuracies or omissions, including after an order has been submitted, and to change or update information at any time without prior notice. However, we undertake no affirmative obligation to update, amend or clarify information in the Service or on any related website, except as may be required by law. In addition, you acknowledge that the particular technical specifications and settings of your computer and its display could affect the accuracy of its display of the colors and look of products offered on the Sites.
SECTION 18. UNLAWFUL ACTIVITY
SECTION 19. INDEMNIFICATION
You agree to indemnify, defend and hold the Company and its employees, officers, members, directors, agents, representatives, affiliates, service partners, Licensed Retailers, licensors, successors and assigns harmless from and against any losses, costs, liabilities, settlements, fines, payments or damages (including reasonable attorneys' fees and costs) resulting from any claim, suit or proceeding, threatened or otherwise, at law or in equity made or brought against us, and caused by, arising out of, resulting from, or in any way attributable to: (i) your use of the Sites; (ii) anything you post to the Sites; (iii) your violation of these Terms and Conditions; (iv) your violation of the rights of any third parties; and/or (v) use of the Sites or your Account by any other person accessing the Sites using your computer or Internet access account.
SECTION 20. GOVERNING LAW
SECTION 21. ARBITRATION AND WAIVER OF CLASS ACTIONS
You and 10th Mountain Whiskey & Spirit Co. agree that in the event of any dispute between us, each party will, in the first instance, notify the other party of the intent to initiate a formal proceeding in writing (the “Notice”). The parties shall attempt to resolve any controversy or claim arising out of, or relating to, any provision of the agreement or the breach thereof by good faith negotiations between the parties, and shall not initiate a formal proceeding for at least thirty (30) days from the date of the other party’s receipt of the Notice.
ARBITRATION SHALL BE CONDUCTED BEFORE ONE ARBITRATOR IN THE COUNTY OF VAIL, CO. THE ARBITRATION SHALL BE ADMINISTERED BY JAMS PURSUANT TO ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES AND IN ACCORDANCE WITH THE EXPEDITED PROCEDURES IN THOSE RULES.
In any arbitration arising out of or related to this agreement, there shall be no interrogatories or requests to admit. The arbitrator will conduct hearings, if any, by teleconference or videoconference, rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate. Any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, such determination should be made by JAMS or by the arbitrator.
The arbitrator’s decision will follow the terms of these Terms and Conditions. The arbitrator's decision shall be final and binding and may be enforced by any state or federal court that has jurisdiction; provided, however, that the arbitrator shall not have authority to make errors of law and any arbitration award may be challenged if the arbitrator does so. The arbitrator shall give a written statement of the disposition of each claim and the award, including any award of costs, expenses or interest, shall provide a concise written statement of the essential findings and conclusions upon which it is based.
The prevailing party, as determined by the arbitrator, shall be entitled to collect its reasonable costs, expenses, and interest (including reasonable attorneys' fees, arbitration fees, and other such costs). Judgment on the Award may be entered in any court having jurisdiction. This clause shall not prevent parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
IN ANY ARBITRATION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE ARBITRATOR(S) ARE NOT EMPOWERED TO AWARD PUNITIVE OR EXEMPLARY DAMAGES, EXCEPT WHERE PERMITTED BY STATUTE, AND THE PARTIES WAIVE ANY RIGHT TO RECOVER ANY SUCH DAMAGES. THE ARBITRATOR(S) MAY NOT AWARD ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS.
The parties shall maintain the confidential nature of the arbitration proceeding and any award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as maybe necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
YOU AND 10th MOUNTAIN WHISKEY & SPIRIT CO. AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUROR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND 10th MOUNTAIN WHISKEY & SPIRIT CO. AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS WITH YOUR CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
If a court refuses to enforce the waiver of class-wide arbitration, this entire arbitration provision shall be unenforceable and any claims brought on behalf of a putative class will proceed in court.
IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Notwithstanding any of the foregoing, if we are suffering irreparable harm arising out of or related to your use of the Sites, we are not precluded from bringing an action or claim with respect thereto before the appropriate federal or state court located in the county of EAGLE, CO, and you consent to personal and subject matter jurisdiction of such court related to any such action or claim.
SECTION 22. NOTICE TO CALIFORNIA USERS
Residents of California who use the Sites are entitled to know there are no charges to the consumer for use of our Sites, other than the cost of any products or services purchased therein and any applicable taxes, shipping fees, and other charges associated with such purchases. Unless otherwise stated, these charges appear for each purchase on the order confirmation pages relating to each purchase and e-mailed to the consumer after purchase. We reserve the right to change our pricing. You may contact us to resolve a complaint regarding any aspect of our service by emailing us at [email protected].
SECTION 23. ASSIGNMENT
SECTION 24. FORCE MAJEURE
Neither the Company nor any service provider, including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates, shall be liable for performance of its obligations under these Terms andConditions if it is prevented or delayed from performing such obligations as a result of (i) any provision of any present or future law or regulation of any state or of the United States, (ii) any act of God, war, civil unrest, or emergency condition, (iii) the unavailability, failure or interruption of theInternet; (iv) pandemic (including COVID-19); or (v) any other circumstances beyond the reasonable control of the Company or its service providers including but not limited to Licensed Retailers, service partners, local fulfillment retailers, licensors, licensees, officers, directors, members, agents, employees, representatives or affiliates.
SECTION 25. WAIVER
Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
SECTION 26. SEVERABILITY
In the event that any provision of these Terms and Conditions is declared void or unenforceable, such provision shall be deemed severed from these Terms and Conditions, and these Terms and Conditions shall otherwise remain in full force and effect unless its purpose cannot be effected absent the severed provision.
SECTION 27. ENTIRE AGREEMENT