Last Modified: May 2, 2020
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY
This is a contract between you (the Customer) and us (Backbar). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese”, but we have tried to make it as readable as possible. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or any other Backbar service, you are agreeing to these terms. We periodically update these terms. If you have an active Backbar subscription, we will let you know when we do via an email or in-app notification.
A. DEFINITIONS
"Agreement" means these Customer Terms of Service and all materials referred or linked to in here.
“Paid Users” means those types of Users (defined below) for which we charge you fees.
"Billing Period" means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
"Communication Services" means third-party forums, online communities, blogs, web pages, calendars, and/or other social media communication facilities linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us ("Discloser") to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
"Consulting Services" means the professional services provided to you by us, which may include training services, installation, integration or other consulting services.
“Crowdsourced Data” means the information you submit to us to add or update the data in certain properties in our beverage database. Crowdsourced Data will not be considered Customer Data or Confidential Information for purposes of this Agreement.
"Customer Data" means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.
"Customer Materials" means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“Enrichment Data” means the data we make available to you as part of the Subscription Service and Crowdsourced Data. Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third party sources and our internal data processes provided from Customer Data.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
"Backbar Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
"Order" or "Order Form" means the Backbar-approved form or online subscription process by which you agree to subscribe to the Subscription Service and purchase Consulting Services. Most Orders are completed through our online payment process or via in-app purchase.
"Sensitive Information" means (a) credit or debit card numbers; personal financial account information; Social Security numbers or local equivalents; passport numbers; driver’s license numbers or similar identifiers; passwords; racial or ethnic origin; or other employment or financial information, including any information subject to the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
"Subscription Fee" means the amount you pay for the Subscription Service.
"Subscription Service" means all of our web-based applications, mobile applications, tools and platforms that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://backbar.app or another designated URL, through mobile app stores, and any ancillary products and services that we provide to you.
"Subscription Term" means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
"Third-Party Products" means non-embedded products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service. These products and services include non-Backbar apps, integrations, links made available through the Subscription Service and non-Backbar services.
"Third-Party Sites" means third-party websites linked to from within the Subscription Service, including Communications Services.
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“Venue Locations” means the physical locations that belong to your company or organization that use the Subscription Service. Any location with a unique postal address represents an individual Venue Location. Users may choose to have two Venue Locations even if they are located at the same physical address, but shall not use one Venue Location within Backbar for two or more physical locations.
"Backbar", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your Backbar account. We might provide some or all elements of the Subscription Service through third party service providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your Backbar account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your Backbar account.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
4. Consulting Services. You may purchase Consulting Services by placing an Order with us. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription. All Consulting Services are performed remotely, unless you and we otherwise agree. We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) increase the number of your Venue Locations, (ii) upgrade products or base packages, (iii) subscribe to additional features or products, or (iv) unless otherwise agreed to in the Order.
b. Fee Adjustments During a Billing Period. The Subscription Fee will increase during the course of a Billing Period if you increase the number of Venue Locations or upgrade to a higher tier plan.
c. No Fee Adjustments for Reducing Services or Plan Tier. When completing an Order you agree to pre-pay upfront for the billing period based on the number of Venue Locations and plan tier specified on the Order. If you decrease the number of Venue Locations or downgrade to a lower tier plan, your Subscription Fee will not be adjusted until the renewal billing period takes effect. Unless otherwise agreed to in writing, under no circumstances will Backbar provide a refund or credit for Subscription Services paid.
d. Fee Adjustments at Renewal. Upon renewal, your subscription will be adjusted to match the number of Venue Locations actually assigned and the plan tier you are subscribed to at the end of your then-current Subscription Term.
e. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
f. Payment against invoice. If you are paying by invoice, we will invoice you no more than forty-five (45) days before the beginning of the Subscription Term and each subsequent Billing Period, and other times during the Subscription Term when fees are payable. All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
g. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Organization Management page within your Backbar account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
h. Sales Tax. All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service and performance of Consulting Services. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you are subject to GST, all fees are exclusive of GST. If you are required to deduct or withhold any tax, you must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
6. Use and Limitations of Use
a. Acceptable Use. You will comply with our Acceptable Use Policy ("AUP") which can be found at https://www.getbackbar.com/legal/acceptable-use-policy.
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party's use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; (v) misrepresent yourself or your company affiliation, including, but not limited to, your name, address, phone number or other information; (vi) knowingly create an account with false information, such as creating a fake business, address, user or other information you know to be false; or (vii) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
c. You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by contacting Backbar support, information for which is available at https://www.getbackbar.com/support.
d. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
e. Use of Communication Services. You agree to use Communication Services only in compliance with any terms of use specified by each Communication Service. We do not control the content, messages or information found in the Communication Services. We will not have any liability with regards to the Communication Services and any actions resulting from your use of the Communication Services.
f. Third-Party Sites and Products. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we endorse, support or warrant the Third-Party Site or Product.
7. Subscription Term, Termination, Suspension
a. Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one month. To prevent renewal of the subscription, the required notice must be provided within the timeframe as specified in the ‘Subscription Types’ section below.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available on our website on the date of renewal will apply. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the Backbar subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to prescreen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services seven (7) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
g. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You may request the deletion of your Backbar account after expiration or termination of your subscription by sending an email to our support or submitting a support request through our support ticket system. You will continue to be subject to this Agreement for as long as you have access to a Backbar account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Backbar Content, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data. We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer two main types of subscriptions: (1) Full-Service Subscriptions and (2) Free Subscriptions. There are different terms that apply depending on the subscription you purchase, and we cover those differences in this section. Unless otherwise agreed to in an Order, the following subscription types apply to the products specified:
(1) Full-Service Subscriptions: Backbar products for which you pay us a Subscription Fee. This includes different plan tiers of subscriptions which may provide different functionality, products, or user access, and any paid add-ons as provided on an Order.
(2) Free Subscriptions: Backbar products for which you do not pay us a Subscription Fee and that we do not otherwise name in this ‘Subscription Types’ section.
2. Limits. The limits that apply to you will be specified in your Order Form, this Agreement or on our website, and for our Free Subscriptions, these limits may also be designated only from within the product itself. As this product is related to alcoholic beverages, you must be at least the minimum age allowed for handling and serving of alcohol in your local jurisdiction, however at a minimum you must be at least 18 years of age.
For our Full-Service Subscriptions, if we make modifications to the limits set forth on our website that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits will apply to your subscription, unless you and we otherwise agree.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
3. Downgrades. For our Full-Service Subscriptions, any downgrade you request of your subscription will begin at your next renewal Subscription Term, as specified in the ‘Fee Adjustments at Renewal’ section above.
4. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience. For our Full-Service Subscriptions, we will not make changes to the Subscription Service that materially reduce the functionality provided to you during the Subscription Term.
5. Customer Support. If you pay us a Subscription Fee for our products, email and in-app support is included at no additional cost. Unless otherwise specified in your Order or on our Services and Pricing page, phone support is not included. Phone support when applicable is available from 9am to 5pm on weekdays (Central Standard Time), with reduced hours during holidays in the US. For eligible Customers who call outside of these hours or on weekends, we will make reasonable attempts to call you back in a timely fashion if you leave a message on our support phone line. We accept email and in-app support questions 24 Hours per Day x 7 Days per Week. Email and in-app questions can be submitted at https://www.getbackbar.com/support. We attempt to respond to email and in-app support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of Backbar representatives. We reserve the right to prioritize support responses based on plan tiers and with Full-Service Subscriptions getting priority over Free Subscriptions. From time to time we may test or offer additional support options. However, we only guarantee the support options as specified in this Agreement or otherwise listed in your Order.
If you do not pay a Subscription Fee, support is available to you through the Backbar Support website and knowledge base at https://www.getbackbar.com/support
6. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
Unless otherwise specified in your Order, to prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received before the next renewal period begins. If you decide not to renew, you may send this non-renewal notice to us by indicating that you do not want to renew by cancelling your subscription plan in your Backbar account on the Organization Management page. To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
7. Retrieval of Customer Data. For our Full-Service Subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the account, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
For Free Subscriptions, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
D. GENERAL LEGAL TERMS
1. Customer Data
a. Limits on Backbar. We will use Customer Data only in order to provide the Subscription Service and Consulting Services to you and only as permitted by applicable law, this Agreement, and our Privacy Policy.
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the information gathered, and any Customer Data, in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not identify you. We may use Customer Data as part of internal data processes to develop and improve Enrichment Data. For clarity, any data provided to other Subscription Service customers or any data made publicly available will only be in an aggregated and anonymous format.
c. Data Partners. Backbar may partner with third parties, sell to third parties or utilize third party software to process, use, supplement, package or sell Customer Data, Aggregate Data and Enrichment Data. Backbar may share with these partners raw data that identifies Venue Locations. However, any third party that is in possession of Aggregate Data must also follow the Aggregate Data terms specified above. Specifically, any Data Partner or other third party that publishes or discloses any Backbar data publicly must do so in an aggregated and anonymous format.
d. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the United States.
2. Backbar’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Backbar Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data and will be used as described in the 'Aggregate Data' section above. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own all of your Customer Materials and Customer Data. This includes any data you upload or submit to Backbar, except that data which is covered by Crowdsourced Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant Backbar, our licensors and partners a fully paid-up, perpetual, worldwide, non-exclusive, non-transferable license to use the Customer Materials and Customer Data to provide the Subscription Service and Consulting Services to you, to generate Aggregate Data and Enrichment Data, to work with and provide services to our Data Partners and as permitted by this Agreement.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your name and company logo to our customer list and website. We may also use any non-Sensitive Information you communicate to us about the Backbar service for promotional purposes, however we will remove any such promotional text upon written request.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, BACKBAR CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, BACKBAR CONTENT AND CONSULTING SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF FIVE THOUSAND U.S. DOLLARS OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED U.S. DOLLARS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
8. Miscellaneous
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://www.getbackbarcom/legal/terms-of-service and we will let you know via email or in-app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the "Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review these Customer Terms of Service periodically.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
e. Compliance with Laws. We will comply with all U.S. state and federal laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws.
f. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
g. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
To Vermont Information Processing, Inc, 402 Water Tower Circle, Colchester, VT 05446 U.S.A., Attention: General Counsel.
To you: your address as provided in our Backbar Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
h. Entire Agreement. This Agreement (including each Order), along with our Privacy Policy and AUP, is the entire agreement between us for the Subscription Service and Consulting Services and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
i. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, without our prior written consent, which will not be unreasonably withheld. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
j. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
k. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If you are located outside of the territory of the United States, the parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
l. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
m. Survival. The following sections shall survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees and Payments’, 'Prohibited and Unauthorized Use', ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, ‘Backbar’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
n. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and an Order, the terms of the Order shall control, but only as to that Order.
9. Applicable Law. This Agreement is governed by the laws of the state of Illinois, U.S.A. without reference to conflicts of law principles. Both parties consent to the exclusive jurisdiction and venue of the courts in Cook County, Illinois, U.S.A. for all disputes arising out of or relating to the use of the Subscription Service or the Consulting Services.
10. EU Data Processing. To the extent that Backbar processes any Personal Data as part of Customer Data that is subject to the General Data Protection Regulation (the “GDPR”), on Customer’s behalf, in the provision of the services hereunder, the terms the Standard Contractual Clauses adopted by the European Commission shall apply, which provide adequate safeguards with respect to the personal data processed by us under this Agreement. You acknowledge in all cases that Backbar acts as the data processor of Customer Data and you are the data controller of Customer Data under applicable data protection regulations in the European Union and European Economic Area.
Backbar Terms of Service and Legal Policies
Terms of Service: https://www.getbackbar.com/legal/terms-of-service
Acceptable Use Policy: https://www.getbackbar.com/legal/acceptable-use-policy
Privacy Policy: https://www.getbackbar.com/legal/privacy-policy
