Terms & Conditions
1. Permitted Uses
The Site provides an interactive online service operated by barkback, consisting primarily of loyalty, fears, feedback, rating, and marketing services on behalf of certain merchants ("Merchants"). As a condition of your use of this Site, you agree that:
- Your use of this Site will at all times comply with the terms of this Agreement;
- If you elect to create an account:
- You may create only one account for your personal use;
- You must safeguard your password and supervise the use of your account, and understand and agree that you are responsible for your own use and the use of your account by anyone you allow to access it.
- You have the right to provide any and all information you submit to the Site, the information is only about yourself, and all such information is accurate, true, current and complete.
2. Availability of the Site
You acknowledge that there may be interruptions in service or events that are beyond our control. While we use reasonable efforts to keep the Site accessible, the Site may be unavailable from time to time for any reason including, without limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside of our control Site access may be interrupted, suspended or terminated. barkback retains the right at our sole discretion to deny service, or access to the Site to anyone or an account, at any time and for any reason.
3. Ownership of the Site
The content and information on this Site as well as the infrastructure used to provide both, is proprietary to us or our Merchants and other partners. You agree not to modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell or re-sell any information, software, products or services obtained from or through the Site without prior written permission.
4. Transmission of Information
Because we do not control the security of the Internet or other networks you use to access the Site or communicate with us, we can't be, and are not responsible for, the security of information that you choose to communicate with barkback and the Site while it is being transmitted. In addition, barkback is not responsible for any data lost during transmission.
5. Your Conduct on our Site
- Submitting any purposely inaccurate information, committing fraud or falsifying information in connection with your barkback account or in order to create multiple Barkback accounts;
- Attempting to, or actually accessing data not intended for you, such as logging into a server or an account which you are not authorized to access;
- Attempting to scan, or test the security or configuration of the Site or to breach security or authentication measures without proper authorization;
- Tampering or interfering with the proper functioning of any part, page or area of the Site and any and all functions and services provided by barkback;
- Attempting to interfere with service to any user in any manner, including, without limitation, by means of submitting a virus to our Site, or attempts at overloading, "flooding", "spamming", "mail bombing" or "crashing" the Site;
- Using the Site or any of its contents to advertise or solicit, for any other commercial, political or religious purpose, or to compete, directly or indirectly with barkback;
- Reselling or repurposing your access to the Site or any purchases made through the Site;
- Using the Site or any of its resources to solicit Site End Users, Merchants or other business partners of barkback to become users or partners of other online or offline services directly or indirectly competitive or potentially competitive with barkback, including without limitation, aggregating current or previously offered deals;
- Using any End User or Merchant information from the Site for any commercial purpose, including, but not limited to, marketing;
- Accessing, monitoring or copying any content or information from this Site using any robot, spider, scraper or other automated means or any manual process for any purpose without our express written permission;
- Violating the restrictions in any robot exclusion headers on this Site or bypassing or circumventing other measures employed to prevent or limit access to this Site;
- Taking any action that places excessive demand on our services, or imposes, or may impose an unreasonable or disproportionately large load on our servers or other portion of our infrastructure (as determined in our sole discretion);
- Aggregating any live or post-feature content or other information from the Site (whether using links or other technical means or physical records associated with purchases made through this Site) with material from other sites or on a secondary site without our express written permission;
- Deep-linking to any portion of this Site (including, without limitation, the purchase path for any voucher/coupon) without our express written permission;
- Acting illegally or maliciously against the business interests or reputation of barkback, our Merchants or our services; or
- Hyperlinking to the Site from any other website without our initial and ongoing consent.
6. Creating an Account on our Site
If you create an account on our Site, you may only create and hold one account that you are solely responsible for managing. Your account is non-transferrable and may not be sold, combined or otherwise shared with any other person. If you violate any of these limitations we may terminate your account and, without limitation, you may forfeit any pending, current or future promotional account credits and any unredeemed vouchers/coupons in your account. If we terminate your account, you may not re-enroll or join under a new account unless we formally invite you. If you commit fraud or falsify information in connection with your use of the Site or in connection with your barkback account, your account will be terminated immediately and we reserve the right to hold you liable for any and all damages that we suffer, to pursue legal action through relevant local and national law enforcement authorities and to notify your Internet Service Provider of any fraudulent activity we associate with you or your use of the Site.
7. Modification of this Agreement
We also reserve the right to change or discontinue any aspect or feature of our services or the Site including, but not limited to, requirements for access or use.
8. Copyright and Trademarks.
Everything located on or in this Site is the exclusive property of barkback or is being used with permission. ANY COPYING, DISTRIBUTING, TRANSMITTING, POSTING, LINKING, DEEP LINKING, OR OTHERWISE MODIFYING OF THIS SITE OR ANY OF THE MICROSITES WITHOUT THE EXPRESS WRITTEN PERMISSION OF BARKBACK IS PROHIBITED. Any violation of this requirement may result in a copyright, trademark or other intellectual property right infringement that may subject you to civil and/or criminal penalties.
This Site and any Microsite contains copyrighted material, trademarks and other proprietary information, including, but not limited to, text, software, photos, video, graphics, music and sound, and the entire contents of the Site are protected by copyright as a collective work under the United States copyright laws. barkback owns a copyright in the selection, coordination, arrangement and enhancement of such content, as well as in the content original to it. You may not modify, publish, transmit, participate in the transfer or sale, create derivative works, or in any way exploit any of the content, in whole or in part. You may download, print, and/or save copyrighted material for your personal use only. Except as otherwise expressly stated under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material without the express permission of barkback or the copyright owner is permitted. If copying, redistribution or publication of copyrighted material is permitted, you will make independent attribution and/or agree to make no changes in or deletion of any author attribution, trademark legend or copyright notice. You acknowledge that you do not acquire any ownership rights by downloading copyrighted material.
Barkback is a trademark of BarBback, LLC. It, together with other trademarks that are located within or on the Site otherwise owned or operated in conjunction with barkback shall not be deemed to be in the public domain but rather the exclusive property of barkback, unless such mark or site is under license from the trademark owner thereof, in which case such license is for the exclusive benefit and use of barkback unless otherwise stated.
You will not upload, post or otherwise make available on this Site any material protected by copyright, trademark or other proprietary right without the express permission of the owner of the copyright, trademark or other proprietary right. barkback does not have any express burden or responsibility to provide you with indications, markings or anything else that may aid you in determining whether the material in question is copyrighted or trademarked. You will be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights or any other harm resulting from such a submission. By submitting material to any public area of this Site, you warrant that the owner of such material has expressly granted barkback the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, publish, translate and distribute such material (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or hereafter developed for the full term of any copyright that may exist in such material. You also permit any other end user to access, view, store or reproduce the material for that End User's personal use. You also grant barkback the right to edit, copy, publish and distribute any material that you make available on this Site.
9. Copyright Policy and Digital Millennium Copyright Act (DMCA) Procedures.
Barkback reserves the right to terminate its agreement with you or any other End User who infringes third-party copyrights.
If you believe that any material has been posted via the Site by an End User in a way that constitutes copyright infringement, you shall provide barkback with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work; (b) an identification of the copyrighted work and the location on the Site of the allegedly infringing work; (c) a written statement that you have a good faith belief that the disputed use is not authorized by the owner, its agent, or the law; (d) your name and contact information, including telephone number and e-mail address; and (e) a statement by you that the above information in your notice is accurate and, under penalty of perjury, that you are the copyright owner or authorized to act on the copyright owner's behalf. Send this information to: firstname.lastname@example.org.
10. Unsolicited Ideas.
We do not accept or consider, directly or through any barkback employee or agent, unsolicited ideas of any kind, including without limitation, ideas or suggestions relating to new or improved products, enhancements, names or technologies, advertising and marketing campaigns, plans or other promotions. Do not send us (or any of our employees) any unsolicited ideas, suggestions, material, images or other work in any form ("unsolicited materials"). If you send us unsolicited materials, you understand and agree that the following terms will apply, notwithstanding any cover letter or other terms that accompany them:
- Barkback has no obligation to review any unsolicited materials, nor to keep any unsolicited materials confidential; and
- Barkback will own, and may use and redistribute unsolicited materials for any purpose, without restriction and free of any obligation to acknowledge or compensate you.
11. Disclaimer of Warranty.
YOU EXPRESSLY AGREE THAT USE OF THIS SITE IS AT YOUR SOLE RISK. NEITHER BARKBACK, ITS SUBSIDIARIES AFFILIATES NOR ANY OF THEIR RESPECTIVE EMPLOYEES, AGENTS, MERCHANTS, THIRD-PARTY CONTENT PROVIDERS OR LICENSORS, OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS, WARRANT THAT USE OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DO THEY MAKE ANY WARRANTY AS TO (I) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THIS SITE, OR (II) THE ACCURACY, COMPLETENESS, RELIABILITY OR CONTENT OF ANY INFORMATION (INCLUDING, BUT NOT LIMITED TO, PRODUCT DESCRIPTIONS), SERVICE, PRODUCTS OR COUPONS PROVIDED THROUGH THIS SITE. THE SITE AND ALL CONTENT, STATEMENTS (AS DEFINED BELOW) AND OTHER INFORMATION CONTAINED ON THE SITE, AND PRODUCTS AND SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SITE ARE MADE ACCESSIBLE OR AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS. BARKBACK HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE CONTENT, STATEMENTS OR OTHER INFORMATION CONTAINED ON THE SITE, OR THE PRODUCTS OR SERVICES ACCESSIBLE OR AVAILABLE THROUGH THE SITE, INCLUDING, BUT NOT LIMITED TO, THOSE OF TITLE NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Liability.
We will make every reasonable effort to resolve any disagreements that you have with barkback. If those efforts fail, by using this Site you agree that any claim, dispute, or controversy you may have against barkback arising out of, relating to, or connected in any way with this Agreement this Site or the purchase or sale of any voucher(s), shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") and conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by AAA ("Rules and Procedures"). You agree further that: (a) the arbitration shall be held at a location determined by AAA pursuant to the Rules and Procedures (provided that such location is reasonably convenient for you), or at such other location as may be mutually agreed upon by you and barkback; (b) the arbitrator shall apply Delaware law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law; (c) there shall be no authority for any claims to be arbitrated on a class or representative basis; arbitration can decide only your and/or barkback's individual claims; and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (d) with the exception of subpart (c) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures established by AAA, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (c) is found to be invalid, unenforceable or illegal, then the entirety of this Arbitration Provision shall be null and void, and neither you nor barkback shall be entitled to arbitrate their dispute.
14. End User Communications
Barkback in some instances allows you and other End Users to use the Site to express opinions and communicate through forums, bulletin boards, discussion groups, chat rooms or other communication facilities that may be offered on or through the Site from time to time (collectively "Communities"). Barkback shall have the right, but not the obligation, to monitor the content within the Communities at any time, for any reason, including to determine compliance with this Agreement and any operating rules established by barkback, as well as to satisfy any applicable law, regulation or authorized government request. Without limiting the foregoing, barkback shall have the right, but not the obligation, to remove any material from the Communities that barkback, in its sole discretion, finds to be in violation of this Agreement or otherwise objectionable. Any opinions, advice, ratings, discussions, comments, and/or other messages or postings of any kind made by you or any other End User to the Communities (collectively, "Statements"), are those of the respective author(s) or distributor(s) and not of barkback.
15. Websites of Others
The Site contains links to websites maintained by other parties. These links are provided solely as a convenience to you and not because we endorse or have an opinion about the contents on such websites. We expressly disclaim any representations regarding the content or accuracy of materials on such websites or the privacy practices of those websites. If you decide to access websites maintained by other parties, you do so at your own risk.
16. License Grant.
By posting statements, ratings, or other information you grant barkback a royalty-free, perpetual, irrevocable, non-exclusive license to use, reproduce, modify, publish, edit, translate, distribute, perform, and display the statements alone or as part of other works in any form, media, or technology whether now known or hereafter developed without territorial or time limitations, and to sublicense such rights through multiple tiers of sublicensees. Your license of any statements or information submitted above extends to use for promotions, advertising, market research or any other lawful purpose, without limitation. As a user of the Site, you are granted a non-exclusive, non-transferable, revocable and limited license to access and use the Site and associated content, features, tools and applications in accordance with this Agreement.
You agree to defend, indemnify and hold harmless barkback, its subsidiaries, affiliates and their respective directors, officers, employees and agents from and against all claims and expenses, including attorneys' fees, arising out of or related to any products or services purchased by you in connection with the Site or any use of the Site in violation of these Terms.
You are solely responsible for your interactions with Merchants, Partners and other users of the Site. To the extent permitted under applicable laws, you hereby release barkback from any and all claims or liability related to any product or service of a Merchant or Partner, any action or inaction by Merchant or Partner, including Merchant/Partner's failure to comply with applicable law and/or failure to abide by the terms of a barkback, and any conduct or speech, whether online or offline, of any other user.
19. Choice of Law.
19. Choice of Law.
20. Additional Disclosures.
No waiver by either you or barkback of any breach or default or failure to exercise any right allowed under this Agreement is a waiver of any preceding or subsequent breach or default or a waiver or forfeiture of any similar or future rights under our Agreement. The section headings used herein are for convenience only and shall be of no legal force or effect. If a court of competent jurisdiction or arbitrator holds any provision of our Agreement invalid, such invalidity shall not affect the enforceability of any other provisions contained in this Agreement, and the remaining portions of our Agreement shall continue in full force and effect. You are contracting with barkback, Inc. Correspondence should be directed to: email@example.com.
barkback Business Service Free Edition AgreementTHIS BARKBACK BUSINESS SERVICE (“BUSINESS SERVICE”) FREE EDITION AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF OUR BUSINESS SERVICE FREE EDITION.
IF YOU PURCHASE SERVICES FROM US, YOUR PURCHASE AND ONGOING USE OF THOSE PURCHASED SERVICES WILL BE GOVERNED BY OUR MASTER SUBSCRIPTION AGREEMENT AT https://www.barkback.com/terms-and-conditions?section=business-paid, WHICH YOU HEREBY ACCEPT, UNLESS A SUPERSEDING MASTER SUBSCRIPTION AGREEMENT IS IN EFFECT BETWEEN YOU AND US AT THE TIME OF THE PURCHASE, IN WHICH CASE THAT MASTER SUBSCRIPTION AGREEMENT WILL GOVERN SUCH PURCHASE AND USE.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BUSINESS SERVICE FREE EDITION.
You may not access the Business Service Free Edition if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Business Service Free Edition for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Business Service Free Edition" means the online, Web-based Business Service Free Edition service provided by Us as described in this Agreement, that You order through http://www.barkback.com or under an Order Form.
"Order Form" means any ordering documents for Your subscriptions to the Business Service Free Edition, including addenda thereto, that are entered into between You and Us. Order Forms include any pages on http://www.barkback.com through which You registered for the Business Service Free Edition. Order Forms shall be deemed incorporated herein by reference.
"Third-Party Application" means a web application that is provided by a third party and interoperates with the Business Service Free Edition, including but not limited to those listed on the barkback website.
"User Guide" means any help content for the Business Service Free Edition, accessible via http://www.barkback.com, as updated from time to time.
"Users" means individuals who are authorized by You to use the Business Service Free Edition, for whom subscriptions to the Business Service Free Edition have been acquired pursuant to this Agreement, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We," " Us" or " Our" means barkback, LLC., a Delaware LLC with a principal place of business at 27 W. Anapamu St, Ste 139, Santa Barbara, CA 93101, United States of America.
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Application” means a web application or web properties that You (or a third party acting on Your behalf) create and that interoperates with the Business Service Free Edition.
"Your Data" means all electronic data or information submitted by You or your customers to the Business Service Free Edition.
2. PROVISION AND USE OF BUSINESS SERVICE FREE EDITION
2.1 Provision of Business Service Free Edition.We shall make a User subscription of the Business Service Free Edition available to You pursuant to this Agreement and relevant Order Forms. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Business Service Free Edition.
2.2 Other Usage Limitations.The Business Service Free Edition may be subject to other limitations, such as, for example, limits on disk storage space, number of customer interactions you can have, the number of calls You are permitted to make against Our application programming interface. Any such limitations are specified in the User Guide and/or help webpages. The Business Service Free Edition dashboard provides real-time information to enable You to monitor Your compliance with these limitations.
2.3 Your Responsibilities.You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of, and for the means by which You acquired, Your Data and Your Applications, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Business Service Free Edition, and notify Us promptly of any such unauthorized access or use, and (iv) use the Business Service Free Edition only in accordance with the User Guide and/or help webpages and applicable laws and government regulations. You shall not (a) make the Business Service Free Edition available to anyone other than Users, (b) sell, resell, rent or lease the Business Service Free Edition, (c) use the Business Service Free Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Business Service Free Edition to store or transmit malicious code or malware, or to engage in phishing or other fraudulent activity, (e) interfere with or disrupt the integrity or performance of the Business Service Free Edition or third-party data contained therein, or (f) attempt to gain unauthorized access to the Business Service Free Edition or Our systems or networks.
3. THIRD-PARTY PROVIDERS
3.1 Acquisition of Third-Party Products and Services.We may offer Third-Party Applications for sale under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified” or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Business Service Free Edition.
3.2 Third-Party Applications and Your Data.If You install or enable a Third-Party Application for use with the Business Service Free Edition, You acknowledge that We may allow the provider of that Third-Party Application to access Your Data as required for the interoperation of such Third-Party Application with the Business Service Free Edition. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by a Third-Party Application provider. The Business Service Free Edition shall allow You to restrict such access by restricting Users from installing or enabling Third-Party Applications for use with the Business Service Free Edition.
4. NO FEESThe Business Service Free Edition is currently provided at no charge. We reserve the right to change our pricing policies for the Business Service Free Edition at any time on 90 days’ notice given in accordance with Section 11.1 (Notices).
5.1 Our License to You.
a. We grant you a worldwide license during the term of this Agreement to use the Business Service Free Edition to (i) create Your company profile, survey, and promotions, and (ii) operate Your Applications and Third-Party Applications, and (iii) access all information related to your profile, survey and promotions.
b. You shall not (i) permit any third party to access the Business Service Free Edition except as permitted herein or in an Order Form, (ii) create derivate works based on the Business Service Free Edition, (iii) copy, frame or mirror any part or content of the Business Service Free Edition, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Business Service Free Edition, or (v) access the Business Service Free Edition in order to build a competitive product or service or to copy any features, functions or graphics of the Business Service Free Edition.
5.2 Your License to Us.
a. You grant us a worldwide license to use, reproduce, transmit, display and adapt Your content and/or any content created by your customers within the Business Service Free Edition tools and services. This license continues indefinitely after termination of this agreement.
b. You grant us a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of our services.
6. OUR PROPRIETARY RIGHTS
Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Business Service Free Edition, including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
7. EXCLUSION OF WARRANTIES
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF THE Business Service FREE EDITION WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE Business Service FREE EDITION WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
You shall defend Us against any claim, demand, suit, or proceeding ("Claim") made or brought against Us by a third party alleging that Your Data, Your Applications or other materials developed by You (or by a third party on Your behalf) using the Business Service Free Edition infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from the Business Service Free Edition), and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 Term.This Agreement commences on the date You accept it and continues until terminated in accordance with Section 10.2 (Termination).
10.2 Termination.You may terminate Your Business Service Free Edition service without cause at any time upon written notice to Us. We may terminate Your Business Service Free Edition service (a) at any time without cause upon 60 days’ written notice to You, or (b) upon 7 days’ written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Upon any termination of Your Business Service Free Edition service, this Agreement shall also terminate, subject to Section 10.5 (Surviving Provisions).
10.3 Return of Your Data.Upon request by You made within 10 days after the effective date of termination of Your Business Service Free Edition service, We will make available to You for download a file of Your Data in comma separated value (.csv) format. After such 10-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
10.4 LOSS OF APPLICATIONS AND MATERIALS.UPON ANY TERMINATION OF YOUR Business Service Free Edition SERVICE, YOUR APPLICATIONS, AND OTHER MATERIALS DEVELOPED BY YOU USING THE Business Service Free Edition WILL BE PERMANENTLY LOST.
10.5 Surviving Provisions.Sections 6 (Proprietary Rights), 7 (Exclusion of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Return of Your Data), 11 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11. NOTICES, GOVERNING LAW, VENUE, AND WAIVER OF JURY TRIAL
11.1 Notices.Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of barkback, LLC, 27 W. Anapamu St, Ste. 139, Santa Barbara, CA 9310, U.S.A., Attention: Customer Service. Notices to You shall be addressed to the business owner or manager designated by You for Your relevant Business Service Free Edition account, and in the case of billing-related notices, to the relevant billing contact designated by You.
11.2 Governing Law.This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of Deleware and controlling United States federal law, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.3 Venue; Waiver of Jury Trial.The state and federal courts located in Deleware shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. CHANGES TO TERMS
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the Terms available on this web page. You understand and agree that if you use the Business Service Free Edition after the date on which this Agreement has changed, We will treat Your use as acceptance of the updated Terms.
13. GENERAL PROVISIONS
13.1 Export Compliance.Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Business Service Free Edition. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use the Business Service Free Edition in violation of any U.S. export embargo, prohibition or restriction.
13.2 Relationship of the Parties.The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.3 No Third-Party Beneficiaries.There are no third-party beneficiaries to this Agreement.
13.4 Waiver and Cumulative Remedies.No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.5 Severability.If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.6 Assignment.Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in their entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.7 Entire Agreement.This Agreement, including all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Master Subscription Agreement
THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
Table of Contents
- Free Trial
- Our Responsibilities
- Use of the Services and Content
- Non-barkback Providers
- Fees and Payment for Purchased Services
- Proprietary Rights and Licenses
- Representations, Warranties, Exclusive Remedies and Disclaimers
- Mutual Indemnification
- Limitation of Liability
- Term and Termination
- Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- General Provisions
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means this Master Subscription Agreement.
“Beta Services” means Our services that are not generally available to customers.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form, as more fully described in the Documentation.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via www.barkback.com or login to the applicable Service.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services.
"Non-barkback Applications" means a Web-based or offline software application that is provided by You or a third party and interoperates with a Service, including, for example, an application that is developed by or for You, is listed on a Marketplace, consumes data from barkback.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
"Purchased Services" means Services that You or Your Affiliate purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
“Services” means the products and services that are ordered by You under a free trial or an Order Form and made available online by Us, including associated offline components, as described in the Documentation. “Services” exclude Content and Non-barkback Applications.
“User” means an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password. Users may include, for example, Your employees, consultants, contractors and agents, and third parties with which You transact business.
"We," "Us" or "Our" means the barkback, LLC (barkback) company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected and processed by or for You using the Purchased Services, excluding Content and Non-barkback Applications.
2. FREE TRIAL
If You register on our website for a free trial, We will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM FULL SERVICE EDITION TO GROWTH EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 9 (REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
Please review online help information at www.barkback.com during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
If You are located in the United States, then during any free trial period We may disclose anonymous data about Your use of the Services (“Usage Statistics”) to our service providers for the purpose of helping us improve the Services. Any such disclosures of Usage Statistics to our service providers will not include Your identity.