This Terms of Use (“Agreement”) describes the terms and conditions governing your use of the Top Shelf Product (defined below). By purchasing the Top Shelf Product from Top Shelf Models, LLC (“Top Shelf”), you acknowledge and represent that you have read, understand, and agree the terms and conditions as set forth in the Agreement.
ARTICLE 1 DEFINITIONS
1.1 Microsoft Excel® means the spreadsheet software owned and licensed by Microsoft Corporation that is used to access the Top Shelf Product. This Agreement does not provide or otherwise include a Microsoft Excel license.
1.2 Top Shelf Product means the Top Shelf spreadsheet and database workbook that is accessible using Microsoft Excel, that comprises a tailored financial modeling tool, and that is comprised of content protected by intellectual property laws, including but not limited to the embedded Top Shelf Product manual.
1.3 User means an authorized user of the Top Shelf Product.
ARTICLE 2 LICENSE GRANT AND RESTRICTIONS
2.1 License Grant. The Top Shelf Product is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to use the Top Shelf Product and Top Shelf reserves all other rights in the Top Shelf Product not granted to you in this Agreement. As long as you comply with the terms and conditions of this Agreement and meet any applicable payment obligations, Top Shelf grants you a personal, limited, non-exclusive, nontransferable, revocable license to use the Top Shelf Product, including to access or print reports derived from the authorized use of the Top Shelf Product; provided, however that you shall not delete any proprietary notices embedded or incorporated into the Top Shelf Product. The license also includes the right to modify the Top Shelf Product in order to meet the specifications of your particular project. The license is limited to one individual User. If additional licenses are needed so that other members of an organization are able to access or use the Top Shelf Product, contact Top Shelf for an enterprise-wide license. The User must have a license to Microsoft Excel to access the Top Shelf Product. No license to Microsoft Excel is included in or otherwise authorized or granted by this Agreement. Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication, or use, other than the use of the Top Shelf Product as permitted by this Agreement, is permitted by you without the express prior written permission of Top Shelf, which permission may be withheld in Top Shelf’s sole discretion. This license is perpetual for as long as you abide by the terms and conditions of this Agreement. Any violation or breach of this Agreement will result in the immediate termination and revocation of the license granted herein.
2.2 Restrictions. By virtue of the license grant above and the agreed to terms and conditions set forth in this Agreement, you agree not to use the Top Shelf Product in a manner that violates any applicable law, regulation, or this Agreement. You shall not copy, distribute, publicly display, sell, trade, transfer, lease, rent, or resell the Top Shelf Product, or make the Top Shelf Product available on the internet or any file-sharing or application hosting service.
ARTICLE 3 ANALYST SUPPORT
3.1 One Hour of Complimentary Analyst Support. User is entitled to one hour of consulting time provided by a Top Shelf analyst at no additional charge beyond the price of the Top Shelf Product. Please email Top Shelf Support at eric@tsmfinancialmodels.com to schedule your complimentary consulting teleconference.
3.2 Additional Support. Additional analyst support beyond the one-hour complimentary consulting time is available for $250.00 per hour. Please email Top Shelf Support at eric@tsmfinancialmodels.com to schedule the appropriate consulting teleconference and arrange for payment of services.
ARTICLE 4 DISCLAIMERS, WARRANTIES, AND LIABILITY LIMITATIONS
4.1 No Advice. Nothing in the Top Shelf Product constitutes investment, financial, legal, tax, or other advice, and the Top Shelf Product should not be relied upon in making (or refraining from making) any decision. You are responsible for your financial decisions. Nothing in the Top Shelf Product should be construed as a solicitation or offer from us – or recommendation from us – to acquire or dispose of any real estate property or to engage in any other transaction. Top Shelf shall not be liable for any losses, costs, damages, or claims in connection with, arising from, or related to your use of the Top Shelf Product. Top Shelf urges you to obtain the advice of financial advisors, insurance agents, brokers, attorneys, accountants, and/or other qualified professionals who are fully aware of your individual circumstances before you make any decisions. You acknowledge and agree that you rely on your own judgment and that of such advisors. Top Shelf is not a financial institution, insurance provider, mortgage broker, attorney, accountant, or any other professional service provider.
4.2 No Warranties. THE TOP SHELF PRODUCT IS PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOP SHELF AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, NON-INTERFERENCE, SYSTEM INTEGRATION, AND ACCURACY OF DATA. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. TOP SHELF AND ITS AFFILIATES DO NOT WARRANT THAT YOUR USE OF THE TOP SHELF PRODUCT WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE. TOP SHELF IS NOT THE PROVIDER OF, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD-PARTY OFFERINGS. NO REPRESENTATION OR WARRANTY IS MADE THAT THE TOP SHELF PRODUCT PROVIDES COMPREHENSIVE OR ACCURATE INFORMATION. TOP SHELF DOES NOT MAKE ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES REGARDING YOUR USE OF THE TOP SHELF PRODUCT. THE TOP SHELF PRODUCT IS PROVIDED ONLY AS A GENERAL SELF-HELP TOOL, AND YOUR USE OF SUCH TOOL IS DONE AT YOUR OWN DISCRETION AND RISK. RESULTS DEPEND ON MANY FACTORS, INCLUDING THE ASSUMPTIONS AND DATA THAT YOU PROVIDE. WE DO NOT GUARANTEE THEIR ACCURACY OR APPLICABILITY TO YOUR CIRCUMSTANCES. ANY CALCULATIONS ARE INTENDED TO PROVIDE ILLUSTRATIVE EXAMPLES BASED ON YOUR ASSUMPTIONS AND YOUR DATA INPUTS.
4.3 Limitation Of Liability. USE OF THE TOP SHELF PRODUCT IS AT YOUR OWN RISK. IN NO EVENT WILL TOP SHELF OR ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES IN CONNECTION WITH THIS AGREEMENT, WHETHER OR NOT SUCH DAMAGES WERE FORESEEABLE, AND EVEN IF TOP SHELF WAS ADVISED THAT SUCH DAMAGES WERE LIKELY OR POSSIBLE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TOP SHELF TO YOU FOR ANY AND ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE PRICE PAID FOR THE TOP SHELF PRODUCT DURING THE TWELVE MONTHS PRIOR TO SUCH CLAIM. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS AN ESSENTIAL TERM BETWEEN YOU AND TOP SHELF, THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF TOP SHELF AND THE EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF THE TOP SHELF PRODUCT.
4.4 Indemnification. To the extent permitted by applicable law, you agree to defend, indemnify, and hold harmless Top Shelf, its affiliates, officers, directors, employees, and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorneys’ fees) arising from, in connection with, or related to: (1) your use of the Top Shelf Product, (2) your violation of any term of this Agreement, and (3) your violation of any third-party right, including without limitation any copyright, property, or privacy right. These indemnification obligations will survive the termination of this Agreement and the license granted herein.
ARTICLE 5 MISCELLANEOUS
5.1 Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be transferred and/or assigned by Top Shelf without restriction.
5.2 Choice of Law and Forum. This Agreement is subject to and will be construed in accordance with the laws of the State of Texas excluding its rules regarding conflicts of law. You agree that any claim or dispute relating to this Agreement must be resolved exclusively by a state or federal court located in Dallas County, Texas. You agree to submit and consent to the personal jurisdiction of the courts located in Dallas County, Texas for the purpose of litigating any claims relating to this Agreement.
5.3 Irreparable Harm. You acknowledge that irreparable harm would result from any breach of this Agreement, that monetary damages alone would not provide adequate relief for any such breach, and that Top Shelf will be entitled to an equitable remedy, including but not limited to injunctive relief, in addition to monetary damages and any other relief to which it is entitled.
5.4 No Third-Party Beneficiaries. Nothing herein, express or implied, shall give or be construed to give to any person, other than the User, any legal or equitable rights hereunder.
5.5 Entire Agreement. You acknowledge and agree that this Agreement constitutes the full, complete, and entire agreement and that there are no other representations, covenants, warranties, or agreements that are not expressly set forth herein.
5.6 Severability. In the event that any term of this Agreement is held to be invalid or unenforceable, such term or terms shall be null and void and shall be severed from this Agreement. All remaining terms of this Agreement shall remain in full force.
