Effective: October 15, 2019
Depending how you work with BarVision or use our Products or Services, certain sections or all sections of these Terms of Service will apply to you.
YOU ALSO AGREE TO ANY ADDITIONAL TERMS SPECIFIC TO SERVICES YOU USE, WHICH ARE INCORPORATED INTO THESE TOS BY REFERENCE.
FROM TIME TO TIME WE MAY UPDATE OR MODIFY THESE TERMS OF SERVICE AT OUR DISCRETION. ANY UPDATED TERMS WILL BE POSTED HERE AND OR SENT DIRECTLY TO YOU. THE UPDATED TERMS OF SERVICE WILL BE EFFECTIVE AS OF THE EFFECTIVE DATE INDICATED IN THE TERMS OF SERVICE (“EFFECTIVE DATE”). ANY USE OF THE SERVICES AFTER THE EFFECTIVE DATE MEANS THAT YOU HAVE ACCEPTED THE UPDATED TERMS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT YOU DO NOT ACCEPT THE UPDATED TERMS OF SERVICE IS TO CEASE ACCESS TO AND USE OF OUR SERVICES.
“Account” means a BarVision Customer account. An Account may have multiple Locations.
“App” means BarVision’s online and offline software, either installed on a Customer computer or other device, or made available for online download to Customers, that enables Customers and their Employees to interface with and access the Services.
“Applicable Law and Rules” means all federal, state, local and foreign laws, rules, regulations and regulatory guidance, and industry best practice, applicable to you, your employees and/or your business, including without limitation, any applicable tax laws and regulations, all confidentiality and security requirements of the USA Patriot Act (or similar law, rule or regulation), the then-current version of the Payment Card Industry Data Security Standards as made available at https://www.pcisecuritystandards.org (“PCI-DSS”) and the by-laws, operating regulations and/or all other rules, policies and procedures of VISA, MasterCard, Discover and/or other payment card networks as in effect from time to time.
“BarVision Limited Warranty” means the limited warranty for Hardware and Software extended to Customer by BarVision, and available at _______________.
“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the disclosing party to the receiving party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to recipient that contain, or are based on, in whole or in part, any of the information described in this definition.
“Customer” means the contracting entity listed on the applicable Order.
“Customer Bank Account” means the bank account designated by Customer on the Order for the facilitation of transactions and payment of Fees hereunder.
“Customer Data” means data collected by BarVision through Customer use of Services such as information about liquor, wine or beer pours and point-of-sale transactions. It also includes any files, graphics, images, text, emails, data or other information submitted by Customer in the course of using the Hardware, Software and Services and/or collected by BarVision, including without limitation Customer’s name, address, contact information, Employee information, products, loyalty programs, logos, promotional information, advertisements, transaction details and other information or material submitted by Customer to BarVision through the Services.
“Customer Marks” means Customer’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to BarVision for use with the Services.
“Data Breach” means an intrusion into a computer system where unauthorized disclosure, theft, modification, or destruction of Customer Data occurs and/or is suspected.
“Effective Date” means the date the BarVision Order is executed by Customer and BarVision.
“Employees” means Customer’s employees, agents and contractors who use the Services.
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.
“Fees” means any fees set forth in an Order, including without limitation, fees for Services, Software, Hardware and Professional Services.
“Force Majeure Event” has the meaning ascribed to it in Section 16.
“Go-Live Date” and “Install Date” mean the actual date upon which the Services are activated and available for Customer use.
“Hardware” means any physical hardware, as made available by BarVision, and provided under an Order such as Smart Spouts.
“Initial Term” means the initial monthly subscription period set forth in the Quote.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property and proprietary rights that are in existence now and in the future.
“Locations” means the actual number and geographic locations for which Customer is agreeing to purchase and/or license, as applicable, the Hardware, Services and/or Professional Services, as reflected in an Order.
“Order” means any BarVision ordering document (including any online order) specifying the Services, Hardware and Professional Services purchased and/or licensed hereunder, as mutually agreed to and accepted by BarVision.
“Patrons” means Customer’s patrons and customers.
“Personal Information” means an individual’s first and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; provided, however, that “Personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.
“Professional Services” means any implementation services and/or training provided by BarVision to Customer pursuant to an Order.
“Renewal Term” – The monthly subscription renewal period that is defined in the Order. In the event that the Renewal Term is not explicitly defined in the Order, then the Renewal Term shall be the same period of time as the Initial Term.
“Representatives” means a party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), and contractors.
“Services” means BarVision’s website, Software, App, Smart Spouts or other Hardware, customer support, and any other current or future services offered by BarVision.
“Smart Spouts” means BarVision Liquor Bottle Spouts, Beer Tap Sensors and other devices used to collect pour data.
“Software” means BarVision’s electronic system made available to Customer via websites, the App, including both online and offline components, products, services, features, content, and updates related thereto.
“Specifications” means the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by BarVision to Customer.
“Taxes” means taxes, levies, or duties imposed by taxing authorities.
“Term” – means the Initial Term and all Renewal Terms, as set forth in the BarVision Order.
You and BarVision hereby agree as follows:
The Agreement applies to and governs your access to and use of the Services ordered by you under an Order. The Services include, but are not be limited to (a) Smart Spouts and other on-Location Hardware; (b) Professional Services and BarVision consulting, including installation and repair services; (c) BarVision reports, data and dashboards; (d) BarVision Customer website; (e) the App; and (f) BarVision customer support.
2. Use of Services
2.1 Subject to your compliance with the terms and conditions of this Agreement, BarVision grants to you a limited, non-transferable (except in accordance with Section 17.4 below), non-sub-licensable, nonexclusive, non-transferable, revocable license during the Term to permit Employees to access and use the Services, solely and exclusively for your internal business purposes. You and your Employees may only access and use the Services if you are an authorized owner or Employee of a Customer that paid for Services pursuant to an Order entered into between BarVision and Customer . BarVision grants you a limited, revocable, non-exclusive, non-transferable (except in accordance with Section 17.4 below) license to access and use the applicable Services during the course of your employment with the Customer, solely and exclusively for the Customer’s internal business purposes. The Services are licensed, not sold. By agreeing to these terms, you acknowledge that you are not acquiring any BarVision Intellectual Property or source code. This Agreement provides you a license to use the Services specified in this Agreement. This license does not grant to you or any other party any right to copy, modify, enhance, or transfer the Services or otherwise disclose any Confidential Information disclosed by BarVision to you or any third party, including without limitation any Intellectual Property (as more fully described in Section 5 below).
2.2. By using the Services, you represent and warrant that you meet all the requirements listed below, and that you will not use the Services in a way that violates any Applicable Laws and Rules. Note that by representing and warranting, you are making a legally enforceable promise. In order to use the Services, you must:
Be at least eighteen (18) years old and able to enter into contracts;
Agree to this Agreement;
Provide true, complete, and up-to-date contact and billing information;
Not be based in Cuba, Iran, North Korea, Syria, or any other country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist-supporting” country; and
Not be listed on any U.S. government list of prohibited or restricted persons.
2.3. You are (a) solely responsible for maintaining the security and control of your Locations, equipment (including Hardware and associated firmware), and username(s) and access passwords to your Account(s); and (b) fully liable for all of your activity and that of your Patrons that occur under your Account, whether authorized by you or not. You agree to immediately notify BarVision if you become aware of any unauthorized activity under your Account and will cooperate with BarVision to prevent any further unauthorized activity.
2.4. From time to time, BarVision may provide you with Beta Services. You may accept or decline any such trial at your discretion. “Beta Services” means, and will be clearly designated as, beta, pilot, limited-release, developer preview, non-production, or evaluation services or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered “Services” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of BarVision written notification to you, one year from the trial start date or the date that a version of the Beta Services becomes generally available. BarVision may discontinue Beta Services at any time at BarVision’s sole discretion and may never make them generally available. Regardless of any other warranties, BarVision hereby disclaims and will have no liability for any harm or damage arising out of or in connection with a Beta Service.
2.6. You agree that your purchases are not contingent on the delivery of any future
functionality or features, nor dependent on any oral or written statements made by BarVision or BarVision’s representatives regarding future functionality or features and not contained in this Agreement.
3. Implementation and Professional Services
3.1. If you order any Professional Services under an Order, then, upon request from BarVision, you will promptly provide BarVision with any information, resources and assistance required by BarVision to enable the implementation of the Services or ongoing provision of the Services as described on the Order and, if applicable, to provide training to you. Any dates specified in an Order are only estimates and are contingent upon your timely compliance with your obligations relative to such implementation and any dependencies on your performance. If, and to the extent of, any default or breach on the part of BarVision under this Agreement that is caused in whole or in part as a result of your failure to timely perform its obligations under this Agreement and/or any Order, then BarVision shall not have any liability with respect to such failure or delay, and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ prior written notice to you, or pursue any other available remedies.
4. Usage Restrictions
4.1. You will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with BarVision’s provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding your use of the Services that are posted on or through the App or otherwise provided or made available to you; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface, including without limitation, the structure, sequence or organization of the user interface; or (j) give, publish, sell or otherwise offer to any third parties data, reports, consulting work products or analysis derived from the Services.
4.2. You will use the Services only for the management and operation of your own business at the Locations, and not for any business, services or offerings of third-parties.
4.3. BarVision will maintain reasonable commercial administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your data entered in your use of the Services (“Data”). Those safeguards will include, but will not be limited to, measures intended to prevent unauthorized access to or disclosure of your Data.
4.4. BarVision may perform maintenance on the Services from time to time, which may result in service interruptions, delays, or errors. BarVision will not be liable for any such interruptions, delays, errors or bugs. BarVision may contact you in order to assist BarVision with the Services and obtain information needed to identify and fix any errors.
4.5 Use of the Services may provide insights and data about Patrons and Employees, their habits and actions. However, you should not depend solely upon the Services to make hiring, firing or disciplinary decisions.
5. Ownership: Customer Data & Trademarks
5.1. As between the parties, BarVision or its licensors own or have license to all rights, title, interest, copyright and other worldwide Intellectual Property in and to the Hardware, Services (including all derivatives, updates, modifications, upgrades, enhancements, extensions, or improvements thereof, as well as any new features, functionality, applications, or services, whether developed by or on behalf of BarVision), and Professional Services provided under the Agreement, all of which shall and is expressly intended to remain vested solely in BarVision. You may voluntarily submit Feedback at any time. You hereby irrevocably assign all right, title, interest and other worldwide Intellectual Property in and to the Feedback to BarVision, and acknowledges that BarVision is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by you relating to the Services in BarVision’s sole discretion, entirely without obligation to you or restriction of any kind. Any rights not expressly granted to you herein are reserved by BarVision.
5.4. Notwithstanding anything to the contrary in the Agreement, BarVision may capture data related to you and your Patrons’ use of the Services, including, but not limited to information directly collected from Smart Spouts and other onsite Hardware and other data sources, such as point-of-sale transaction logs, and may aggregate, use, disclose, compile, distribute, offer for sale and publish statistical or analytical data regarding your use of the Services and may aggregate, use, disclose, compile, distribute, and publish statistical or analytical data regarding the performance, provision, and operation of the Services, on an anonymized, aggregated basis, and may sell or otherwise make such information available to third parties and/or publicly available, provided that such information does not directly identify your Confidential Information or Employee or Patron Personal Information. BarVision retains all Intellectual Property in such data and any derivative analysis thereof.
5.5. You hereby grant BarVision a nonexclusive, royalty free right and license to use and display your Customer Marks on Barvision’s website and marketing collateral identifying you as a Customer of BarVision. BarVision obtains no rights in the use of your Customer Marks except for the limited right described in this sub-section 5.5., and you retain all right, title and interest in and to your Customer Marks. All use of your Customer Marks by BarVision will inure to you.
6. Billing and Payment
6.1. You will pay all Fees set forth in each Order. All Fees are non-cancelable and non-refundable, except as otherwise expressly provided herein. You will pay all Fees in U.S. Dollars or in such other currency as agreed to in writing by the parties in the Order.
6.2. Your Fees charged to access and use the Services will remain consistent with the pricing schedule set forth in the Order during the Initial Term and any subsequent Renewal Terms of this Agreement. It is common and expected for Fees to vary month-to-month as Customers increase or decrease their usage of Services. Nothwithstanding the foregoing, BarVision reserves the right to: (i) charge, on a pass-through basis, any third-party fees at any point during the Term; and (ii) change any Fees upon thirty (30) days’ prior written notice. Your continued use of the Services subsequent to any change in Fees will be deemed acceptance of such changes unless you close your Account prior to the effective date of such change and cease all access to and use of the Services. If you do not accept such Fee change under sub-section 6.2(ii), then you may terminate this Agreement by providing BarVision written notice prior to the effective date of such Fee change, and in such event no early termination or similar additional Fees shall apply, and you shall only be liable to BarVision for the payment of Fees for Services provided through the effective date of termination.
6.3. All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by Applicable Law and Rules, whichever is lower, plus all reasonable expenses of collection, including reasonable attorneys’ fees and costs.
6.4. All Fees are exclusive of Taxes (and specifically excluding Taxes payable by BarVision based on BarVision’s income). BarVision is not obligated to, nor will BarVision determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. You are solely responsible for payment of, and you agree to pay, all applicable Taxes regardless of whether such Tax amounts are listed on an Order.
8. Term and Termination; Suspension; Survival
8.1. The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of the Agreement. The initial term of an Order will commence upon the latter of: (i) the Order Effective Date or (ii) the Go-Live Date and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for remainder of the Initial Term. Thereafter, the term of this Agreement with respect to such applicable Order(s) will automatically renew for another Renewal Terms as defined in the Order; provided, however, that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least fifteen (15) days’ written notice of its intent not to renew prior to the end of the then-current Term.
8.2. BarVision may suspend your username and password, Account and access to the Services, and/or may terminate the Order and Agreement upon written notice to you in the event any of the following occur: (a) You fail to make any payment due within ten (10) days after BarVision has provided you with notice of such failure; (b) You provide any inaccurate, untrue or incomplete information or fail to comply with the Account registration requirements; (d) You stop responding to communications from BarVision for a period of thirty (30) days after initial attempt; or (e) for any reason upon thirty (30) days’ prior written notice to you.
8.3. In the event of a material breach by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/or this Agreement for cause if such breach has not been cured within thirty (30) days (ten (10) days for a payment default) of receipt of written notice from the non-breaching party specifying the breach in reasonable detail and the remedy being sought. In the event you terminate this Agreement due to BarVision’s uncured breach, you shall be entitled to a refund of any Fees paid for Services not delivered as of the effective date of termination, to the extent such Fees have been paid in advance.
8.4. By executing an Order, you agree to pay BarVision all Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Locations indicated therein, and for the entire duration of the then-current Term. You acknowledge and agree that you may terminate this Agreement and any applicable Order(s) at any time during the Term, subject to payment to BarVision in an amount equal to all Fees that would have otherwise been due for the remainder of the then-current Term, plus any additional Fees provided through the date of termination (e.g., Fees for Professional Services).
8.5. Upon any termination or expiration of an Order or this Agreement, your right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all sections of this Agreement which by their nature should survive termination or expiration will survive, including without limitation, the following sections: Definitions, Section 4 (Usage Restrictions), Section 5 (Ownership; Customer Data & Trademarks), Section 6 (Billing and Payments), Section 8 (Term and Termination; Suspension; Survival), Section 9 (Disclaimer of Warranties), Section 10 (Limitation of Liability), Section 11 (Indemnification), Section 12 (Confidential Information), Section 14 (Arbitration), Section 15 (Notices) and Section 17 (General Provisions). Notwithstanding the foregoing, at your request if received within thirty (30) days of termination of the Order or Agreement for any reason other than termination by BarVision for your uncured material breach, BarVision will permit you to access the Services solely and exclusively to the extent necessary for you to retrieve a copy of your Data then in BarVision’s possession. Subject to Section 7.6, you acknowledge and agree that BarVision has no obligation to retain your Data and that BarVision will have the right to irretrievably delete and destroy you Data after thirty (30) days following the termination of this Agreement.
8.6 Upon any termination or expiration of an Order or this Agreement, You acknowledge and agree to return all BarVision Hardware related to Your Order to BarVision, at the address listed on The Order, within thirty (30) days. In the event that You do not return the Hardware or obtain a waiver, in writing, BarVision will bill You $10 per spout and $500 per NUC/Antannae bundle for all Hardware not returned.
9. Representations; Disclaimer of Warranties
9.1. Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
9.2. Limited Warranty. BarVision represents, warrants and covenants to you that, during the Term, the Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by BarVision to you, as the same may be updated by BarVision from time to time in the ordinary course of business (together the “Specifications”). Your sole and exclusive remedy for BarVision’s breach of this limited warranty is limited to BarVision correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in accordance with Section 8.3 above.
9.3. You further represent, warrant and covenant to BarVision that (a) you are a legal resident of, or a business entity authorized to conduct business in, any jurisdiction in which it operates; and (b) the name identified by you when you registered your name or business name under which you sell goods and/or services is correct and complete, and (c) any changes to (a) or (b) will be communicated to BarVision with fourteen (14) days of changes taking effect.
9.4. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, BARVISION AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPIED WARRANTIES WITH REGARD TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. BARVISION AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BARVISION AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE SERVICES WILL MEET YOUR REQUIREMENTS. YOU ACKNOWLEDGE THAT NEITHER BARVISION NOR ITS THIRD-PARTY PROVIDERS CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. BARVISION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. WITHOUT LIMITING THE FOREGOING, BARVISION DOES NOT WARRANT OR GUARANTEE THAT ANY OR ALL SECURITY ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY BARVISION, THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” BASIS.
10. Limitation of Liability
10.1. IN NO EVENT WILL BARVISION BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, PRODUCT OR STRICT LIABILITY OR OTHER THEORY: (A) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (B) FOR LOSS OF USE, INACCURACY, COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, LOSS OF PROFITS, DATA OR BUSINESS INTERRUPTION; OR (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT FORESEEABLE, EVEN IF BARVISION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE.
10.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND RULES, BARVISION’S AGGREGATE LIABILITY FOR ALL CLAIMS UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES ACTUALLY PAID BY YOU TO BARVISION IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE APPLICABLE CLAIM.
11.1. BarVision Indemnification. BarVision will indemnify, defend and hold harmless you and your directors, officers, employees, affiliates and agents from and against any and all third party claims brought against you by a third party to the extent resulting from or arising out of any allegation that the use of the Services as contemplated hereunder infringes or misappropriates the United States patent, copyright or trade secret rights of such third party, and BarVision will pay all costs (including reasonable attorneys’ fees) and damages finally awarded against you by a court of competent jurisdiction as a result of any such claim or payable by you pursuant to a settlement agreement to which BarVision agrees in writing to settlement of such claim; provided, that you (a) promptly give written notice of the claim to BarVision; (b) give BarVision sole control of the defense and settlement of the claim; and (c) provide to BarVision all reasonable assistance. If the Services become, or in BarVision’s opinion are likely to become, the subject of an infringement or misappropriation claim, BarVision may, at its option and expense, either (i) procure your right to continue exercising the rights made available hereunder; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to you the portion of Fees paid in advance by you for any unused portion of the then-current term of the Services, if any, whereupon BarVision may terminate this Agreement upon written notice to you. Notwithstanding the foregoing, this Section 11.1 shall not apply to any infringement or misappropriation claims arising from (i) designs, specifications, or modifications originated or requested by you, (ii) the combination of the Hardware, Software, and/or Services with other equipment, software or products not supplied by BarVision if such infringement or misappropriation would not have occurred but for such combination, (iii) your failure to install an update provided by BarVision at no additional charge, where such update would have avoided or mitigated such claim, (iv) allegations of infringement made by a non-practicing entity, or (v) your failure to follow any instructions given by BarVision to you in relation to such claim, suit, action, or proceeding brought against you, where the instruction would have avoided or mitigated the same. This Section 11.1 represents your sole and exclusive remedy and the entire liability and obligation of BarVision with respect to infringement and misappropriation.
11.2. Customer Indemnification. You will indemnify, defend and hold harmless BarVision and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by BarVision, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of (a) your use of the Services, other than those attributable to BarVision’s gross negligence or willful misconduct, or for which BarVision is responsible as set forth in Section 11.1 above; (b) BarVision’s processing activities on your behalf; (c) your business and Locations, (d) any sales transaction conducted by BarVision on your behalf, (e) your noncompliance with any Applicable Law and Rules; (f) any infiltration, hack, breach or violation of the processing system by you or any other third-party processor or system attributable to your acts and/or failure to act, including without limitation any compromise of access credentials; (g) your breach or nonperformance of any provision of this Agreement; (h) your reliance on any report or other information generated through the Services; or (i) any Tax assessment.
12. Confidential Information
13. Security; Data Incidents
Each party will use commercially reasonable measures, as are consistent with Applicable Law and Rules and industry data security practices applicable to your Data and your Patron’s Data, to prevent a Data Breach. Each party (the “Data Breach Party”) will notify the other party as soon as reasonably practicable under the circumstances (unless Applicable Law and Rules would require notification more promptly) after becoming aware of any facts or circumstances indicating that a Data Breach has or may have occurred and will provide the other party a detailed description of the Data Breach, the Data and/or Patron’s Data accessed (if any), the identity of affected third-parties, if any, and such other information as the other party may reasonably request concerning the Data Breach. The Data Breach Party will (a) mitigate the effects of the breach, (b) commence a forensics investigation of the breach and provide the results thereof to the other party when available, and (c) employ commercially reasonable efforts to correct any identified deficiencies. Unless prohibited by Applicable Law and Rules, the Data Breach Party will also notify the other party of any third-party legal process relating to any Data Breach of which it becomes aware including, but not limited to, any legal process initiated by any government entity (foreign or domestic) and provide the results of any forensic investigation conducted by or on behalf of the Data Breach Party within five (5) days of completion of the investigation.
14.1. Agreement to Arbitrate. This Section is referred to as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and BarVision, whether arising out of or relating to this Agreement or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to this Agreement, you and BarVision are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate; provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
14.2. Prohibition of Class and Representative Actions and Non-Individualized Relief. You and BarVision agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and BarVision agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
14.3. Pre-Arbitration Dispute Resolution. BarVision is always interested in resolving disputes amicably and efficiently, and most concerns can be resolved quickly by emailing BarVision’s support team at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice to BarVision should be sent to BarVision at 500 N. Walnut Road, Kennett. Square, PA 19348 Attn: General Counsel. (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If BarVision and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or BarVision may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by BarVision or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or BarVision is entitled.
14.4. Arbitration Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can take action regarding, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless BarVision and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, BarVision agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
14.5. Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
14.6. Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
14.7. Severability. If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause 14.2 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of clause 14.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
Except as provided in the Arbitration Agreement, BarVision may give notice applicable to BarVision’s general customer base by means of a general notice on the Services portal, BarVision Website or notices specific to Customers by e-mail to Customers’ addresses on record in Customers’ Accounts. Notices to BarVision must be sent via registered mail, postage prepaid, return receipt requested, to BarVision, LLC, 500 N. Walnut Road, Kennett Square, PA 19348 Attn: General Counsel.
16. Force Majeure
Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire or any other event beyond such party’s control, and (b) could not have been prevented by the non-performing party’s reasonable precautions or commercially accepted processes, or could not reasonably be circumvented by the non-performing party through the use of substitute services, alternate sources, work-around plans or other means. Events meeting both of the criteria set forth in the foregoing clauses (a) and (b) are referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to use commercially reasonable efforts to recommence performance or observance.
17. General Provisions
17.1. Governing Law and Jurisdiction. Any action, claim, or dispute related to this Agreement will be governed by the laws of the State of Pennsylvania, and any litigation conducted with respect to this Agreement shall be conducted within such jurisdiction, excluding its conflicts or choice of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act, and the United Nations Convention on the International Sale of Goods, shall not apply to this Agreement.
17.2. No Waiver. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing; and any waiver with respect to a specific circumstance will not constitute a waiver of the same provision or any other provision of this Agreement for any subsequent circumstance unless expressly provided by such written agreement. The section headings are provided merely for convenience and will not be given any legal import in the interpretation or enforcement of this Agreement. No joint venture, partnership, employment, or agency relationship exists between BarVision and you as a result of this Agreement or use of the Services.
17.3. Entire Agreement. This Agreement and all Order(s), together with all exhibits, attachments, and addenda incorporated by reference herein and therein, represent the parties’ entire understanding relating to the Services and the subject matter hereof and thereof, and supersede any prior or contemporaneous, conflicting, or additional communications, whether written or verbal, and will control over any different or additional terms of any non-BarVision ordering document, and no terms included in any such purchase order or other non-BarVision ordering document will apply to the Services or Hardware unless expressly agreed in a writing signed by both parties. The exchange of a fully-executed Order by fax, email or electronic signature will be sufficient to bind the parties to the Agreement and such Order. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable, then such provision(s) will be deemed to be restated and construed to reflect the original intentions of the parties in accordance with Applicable Law and Rules with respect to the invalid or unenforceable provision(s), and with all other provisions of this Agreement remaining in full force and effect.
17.4. Assignment. Except as noted below, neither party may assign this Agreement without the prior written approval of the other. Such approval shall not to be unreasonably withheld or delayed. In the case of a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement, the affected party shall promptly notify the other party in writing and this Agreement will be automatically and immediately assigned to the aquiring entity and all other sections of this Agreement shall remain in force with that entity. Any purported assignment in violation of this Section 17.4 will be null and void and without force or effect.
17.5. Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (via secure email or a service such as DocuSign) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
17.6. Representatives. Each party shall be responsible for each of its respective Representatives’ compliance with this Agreement.
18. Additional Terms. Your use of the Services is subject to any and all additional terms (including promotion terms), policies, or guidelines applicable to the Services that we may post or link to on the Website as well as any rules or terms applicable to particular features or promotions (collectively, “Additional Terms”). All Additional Terms are hereby incorporated into these Terms of Service by reference.