BY DOWNLOADING, INSTALLING, USING, OR SUBMITTING INFORMATION TO ANY SITE, APP, OR SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. If you do not agree to this Agreement and the terms and conditions herein, do not use the Site, App, or Services and leave the Site and uninstall any Apps.
- License Grant. Subject to the terms of this Agreement, Toppers grants you a limited, non-exclusive, and nontransferable license to download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation and any terms and conditions supplied by the platform from which you downloaded the App (e.g. the Apple App Store or Google Play).
- Restrictions. By using the Services, you agree that you will not:
- (a) copy any aspect of the Services (such as any Site, App, or any code or content used therein), except as expressly permitted by this license;
- (b) modify, translate, adapt, or otherwise create derivative works or improvements of the Services;
- (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Services or any data owned by Toppers or used by Toppers in connection with the Services;
- (d) remove, delete, alter, or obscure any trademarks or any security features, rights management, copyright, trademark, patent, or other intellectual property or proprietary rights notices from the services, including any copy thereof;
- (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time; or
- (f) use the Services for any illegal or improper purpose.
- Reservation of Rights. You acknowledge and agree that the Services are provided under license, and not sold, to you. You do not acquire any ownership interest in the Services under this Agreement, or any other rights thereto other than to use the Services in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. Toppers reserves and retains its entire right, title, and interest in and to the Services, including all source code, object code, content, copyrights, trademarks, and other intellectual property rights therein or relating thereto.
- Menu Items. Certain offers or products may be available exclusively in certain geographic areas or in limited quantities. We have made every effort to depict as accurately as possible the images of our menu items. We reserve the right to discontinue or change menu items or prices at our sole discretion. We reserve the right, but are not obligated, to limit our Services or sales of products to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis.
- Refund Policy on Food. If for any reason you are unsatisfied with your order, we will replace or refund it. No annoying questions asked. Refunds are typically made in the same form as the original payment (i.e. cash, debit or credit card).
- User Content. “User Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services by users (including you).
Any User Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such User Content. You represent that all User Content submitted by or on behalf of you is accurate, complete, current, and in compliance with this Agreement and with all applicable laws, rules and regulations. As between you and us, you represent that you own (or have all rights necessary to grant us the rights below to) all User Content that you submit to the Site, the App, or otherwise to the Services, and that we will not need to obtain licenses from any third party or pay royalties to any third party in order to use such User Content. You grant us a worldwide, perpetual, irrevocable, non-exclusive, sublicensable, transferable royalty-free license and right to use, copy, transmit, distribute, publicly perform and display, edit, modify, and make derivative works from your User Content (including, without limitation, translations) for any purpose whatsoever, commercial or otherwise, without compensation to you. In addition, you waive any so-called “moral rights” or rights of privacy or publicity in your User Content. You further grant all users of the Services permission to view your User Content for their personal, non-commercial purposes. If you make suggestions to us or through the Services about improving or adding new features or products to the Services or you otherwise provide feedback, product or service reviews or testimonials, you hereby grant to us a worldwide, perpetual, irrevocable, non-exclusive, sublicensable, transferable royalty-free license and right to use, copy, modify, create derivative works based upon and otherwise exploit your suggestions, feedback, reviews and testimonials for any purpose (including for marketing), without any notice, compensation or other obligation to you. Provided further that, with respect to any User Content you create using the Services regarding menu and product concepts, ideas, or suggestions (“Conveyed Content”): (i) you hereby represent and warrant to us and our affiliates that, as of your submission, you own all right, title and interest to such Conveyed Content, and (ii) you agree to assign, and hereby assign, to us and our affiliates the ownership of all such right, title and interests in such Conveyed Content including, without limitation, all intellectual property rights therein and we and our affiliates shall have the right to obtain and hold the same in our and their own name, without obligation of any kind to you.
To the extent any User Content is accessible through the Services, you can remove your User Content other than the Conveyed Content by specifically deleting it or, in the event such User Content cannot be deleted by you, by requesting that we delete it. However, in certain instances, some of your User Content (such as posts or comments you make) may not be completely removed and copies of your User Content may continue to exist on the Services. We are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content. We will not be required to treat any User Content as confidential (unless required by law or if we have agreed to treat it as confidential in other documentation), and we will not incur any liability as a result of any similarities that may appear in our future operations.
You agree that you will not create any User Content, or use any other portion of the Services, to transmit or make available any content that: (i) violates any laws, contains any threats, is abusive, harassing, vulgar, obscene, indecent, violates any person's rights of privacy or publicity, is defamatory, libelous, hateful, contains any disparaging statements or opinions regarding racial, gender or ethnic background, sexual orientation, or is otherwise tortious or objectionable; (ii) infringes any intellectual property rights or other rights of any party, including, but not limited to any patent, trademark, trade secret, copyright or other proprietary rights; (iii) contains any private information about an identifiable person without that person's permission, or any content soliciting any personal or private information from any individual; (iv) you know or have reason to know is false, misleading, or fraudulent; (v) you do not have a right to make available under any law or under contractual or fiduciary relationships; (vi) employs any techniques to disguise the origin of the content submitted; (vii) contains any unsolicited or unauthorized advertising or promotional materials; (viii) incorporates within it any software viruses or any other malicious code; or (ix) contains links to any websites containing content violating any of the foregoing requirements, the law, or other provisions of this Agreement.
- Third Party Intellectual Property. Toppers respects the intellectual property rights of others. Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512(c)(2)), we will respond promptly to remove material that infringes another person’s copyright or other intellectual property right.
- Updates. Toppers may from time to time in its sole discretion develop and provide updates to its Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Toppers has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. If you have downloaded our App, based on your Mobile Device settings, when your Mobile Device is connected to the internet either: the App will automatically download and install all available Updates; or you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Services or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of this Agreement.
- Third-Party Materials. We may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that Toppers is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Toppers does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
- Term and Termination.
Disclaimer of Warranties. THE SERVICES ARE PROVIDED TO YOU "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, TOPPERS, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES, FRANCHISEES, AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TOPPERS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOPPERS OR ITS FRANCHISEES, AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES FOR:
- (a) The term of Agreement commences when you use any of the Services or download or install the App and will continue in effect until terminated by you or Toppers as set forth in this Section 12.
- (b) You may terminate this Agreement by deleting the App and all copies thereof from your Mobile Device.
- (c) Toppers may terminate this Agreement at any time without notice. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement or if Toppers ceases to support the App, which Toppers may do in its sole discretion.
- (d) Upon termination: all rights granted to you under this Agreement will also terminate; and you must cease all use of the Services and delete all copies of the App from your Mobile Device and account.
- (e) Termination will not limit any of Toppers’ rights or remedies at law or in equity.
- (a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.
- (b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICES.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR TOPPERS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnification. You agree to indemnify, defend, and hold harmless Toppers and its officers, directors, employees, agents, affiliates, franchisees, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Services or your breach of this Agreement, including but not limited to the content you submit or make available through the Services.
- Electronic Communication. When you use the Services or send email to Toppers, you are communicating with Toppers electronically. You consent to receive communications from Toppers, its affiliates, franchisees and partners electronically and via any email address, text message, or other similar means you provide to Toppers or through the Services for any purpose. Although Toppers may choose to communicate with you by regular mail, Toppers may also choose to communicate with you by email or by posting notices through the Services.
- Severability. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services shall be instituted exclusively in the federal courts of the United States or the courts of the State of Wisconsin in each case located in Milwaukee, Wisconsin. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.
If you have any questions for us or about this Agreement, please contact us at:
Toppers World Headquarters
333 W. Center Street
Whitewater, WI 53190
Effective Date: July 09, 2021