Updated January 1, 2018
BY USING THE SERVICES (AS DEFINED BELOW) YOU AGREE TO THESE TERMS OF SERVICE. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE AS AN INDIVIDUAL, THE TERM "CUSTOMER" REFERS TO YOU. IF YOU ARE ENTERING INTO THESE TERMS OF SERVICE 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 OF SERVICE, IN WHICH CASE THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS OF SERVICE, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. Customer and BevSpot, Inc. ("BevSpot") hereby agree as follows:
These Terms of Service shall apply to Customer's use of BevSpot's SaaS-based subscription services and related content and software (collectively, "Services"). These Terms of Service and all ordering documents (including any online form) to which you may agree related to the Services (“Order”, and together with these Terms of Service, collectively, this "Agreement") represent the parties' entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-BevSpot ordering document, and no terms included in any such purchase order or other non-BevSpot ordering document shall apply to the Services. In the event of a conflict between these Terms of Service and an Order, the terms of the Order shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order.
If Customer registers for a free period, BevSpot will make one or more Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free period period for which you registered to use the applicable Services, or (b) the start date of any purchased subscriptions ordered for such Services. Additional trial Terms of Service may appear on the trial registration web page. Any such additional Terms of Service are incorporated into this Agreement by reference and are legally binding.
Right to Use the Services
Subject to this Agreement, BevSpot grants to Customer a nontransferable, nonexclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, agents or contractors ("Users"), to access and use the Services. An Order may define specific usage rights, including the number of Users permitted to use the Services ("Usage Rights"), and Customer shall at all times ensure that its use does not exceed its Usage Rights, if applicable.
As between BevSpot and Customer, Customer will be solely responsible for the Customer Apps, and all related content created or used in connection with the Services.
Usage Restrictions and Representations
Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software (including Redistributables), documentation or data related to or provided with the Services ("Software"); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to BevSpot; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service.
Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with BevSpot's provision of the Services. Customer shall be responsible for maintaining the security of its equipment and account access passwords. Customer represents and warrants that Customer will use the Services only in compliance applicable laws and regulations. Customer shall be liable for all acts and omissions of its Users.
BevSpot may immediately suspend Customer's password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after BevSpot has provided Customer with notice of such failure; or (ii) Customer violates these Terms of Service. Any suspension by BevSpot of the Services under the preceding sentence shall not relieve Customer of its payment obligations under this Agreement.
BevSpot owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by BevSpot, and Customer hereby makes all assignments necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by BevSpot.
Customer owns any data, content, or material originated by Customer that Customer submits or provides in the course of using the Services ("Customer Data"). Customer Data does not include data which has been anonymized and/or aggregated and stored on a statistical basis or statistical data derived, in combination with other data within the Services, from Customer Data, which BevSpot may use without restriction. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the BevSpot Services. Customer represents and warrants that it has all rights necessary to upload the Customer Data to the Services and to otherwise have such Customer Data used by BevSpot as part of the Services.
Billing and Payment
Customer shall pay all fees set forth in an Order. All fees are non-cancelable and nonrefundable, except as expressly specified herein. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on BevSpot's income), even if such amounts are not listed on an Order. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
All amounts invoiced hereunder are due and payable as specified in the Order. Unpaid invoices 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 law, whichever is lower, plus all reasonable expenses of collection.
If at any time BevSpot determines that Customer is exceeding the Usage Rights, BevSpot shall notify Customer and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 30 days of receipt of BevSpot's notice, BevSpot reserves the right to charge and Customer agrees to pay BevSpot's then-current usage fees for such overage.
I hereby authorize BevSpot to initiate recurring ACH debit entries from my checking or savings account account specified at the depository financial institution named below and to debit the same to such account. I acknowledge that the origination of ACH transactions to my checking or savings account must comply with the provisions of the U.S. Law. I agree not to dispute this recurring billing with my bank so long as the transactions correspond to the terms indicated in this authorization form.
BevSpot may discontinue processing of recurring charges if BevSpot is unable to secure funds from my bank account for the payments I have authorized due to, but not limited to, insufficient or uncollected funds in the account or insufficient or inaccurate information I provided or refusal to pay. BevSpot may, if applicable, undertake collection action, including application of returned check fees to the extent permitted by law. In the case of an ACH transaction being rejected for Non-sufficient funds (NSF), I understand that BevSpot may (i) debit the account owned in whole or part by your to pay disbursements, fees or charges, or other amounts due, (ii) at its discretion attempt to process the charge again within 30 days, and/or (iii) assess an additional charge or late fee for each attempt returned NSF which will be initiated as a separate transaction from the authorized recurring payment. All such fees may be collected electronically.
I understand that this authorization will remain in effect until I cancel it in writing, and I agree to notify BevSpot in writing of any changes in my account information or termination of this authorization at least 15 days prior to the next billing date. BevSpot will not initiate further transfers or charges after I have cancelled and BevSpot has had a reasonable period of time to process my request. If the above noted periodic payment dates fall on a weekend or holiday, I understand that the payment may be executed on the next business day. I understand that because this is an electronic transaction, these funds may be withdrawn from my account as soon as the above noted periodic transaction dates.
I also understand that this authorization to pay BevSpot identified above by recurring charges or debits is entirely optional and is not required to obtain or maintain my account with BevSpot.
I am responsible for providing BevSpot with accurate payment account information if such information changes in the future. I also understand that I am not waiving my rights under the Electronic Funds Transfer Act to stop payments by directly contacting the financial institution where I have the checking or savings account I specified above, and that my exercise of such rights does not constitute a breach of this authorization.
Term and Termination
The Agreement shall commence as of the date set forth in the first Order or the beginning of a free period, if earlier, and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in any current Order (or the end of the free period if no purchased subscription is ordered). All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. If BevSpot terminates an Order for Customer's material breach, all fees set forth on such Order are immediately due and payable.
Upon any termination or expiration of an Order, Customer's right to access and use the Services covered by that Order shall terminate.
Disclaimer of Warranties
Customer acknowledges that the Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by BevSpot or by third-party providers, or because of other causes beyond our reasonable control. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND BevSpot EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT BevSpot DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.
Limitation of Liability
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL BevSpot BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY CUSTOMER IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS OF SERVICE. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, BevSpot'S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Customer will defend, indemnify, and hold harmless BevSpot from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of these Terms of Service, your Customer Data or your use or misuse of the Services. BevSpot shall provide notice to you of any such claim, suit or demand. BevSpot reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, Customer agrees to cooperate with any reasonable requests assisting BevSpot's defense of such matter.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Further, BevSpot acknowledges that, subject to the immediately preceding sentence, the Customer Data is the Confidential Information of Customer, and BevSpot will not access the Customer Data other than to provide the Services to Customer and support Customer's use of the Services.
Notwithstanding anything else in the Agreement or otherwise, BevSpot may monitor Customer's use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. BevSpot retains all intellectual property rights in such information.
BevSpot may give notice applicable to BevSpot's general Services customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer's e-mail address on record in BevSpot's account information or by written communication sent by first class mail or pre-paid post to Customer's address on record in BevSpot's account information. If Customer has a dispute with BevSpot, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to BevSpot at BevSpot, Inc., Attn: Legal, 330 Washington St., Boston, MA 02108.
Any action, Claim, or dispute related to the Agreement will be governed by Massachusetts law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys' fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing.
This Agreement and all Order(s), represent the parties' entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. Customer acknowledges that this Agreement is a contract between Customer and BevSpot, even though it may be electronic and not physically signed by Customer and BevSpot, and it governs Customer's use of the Service and takes the place of any prior agreements between Customer and BevSpot. The Agreement may be amended only by written agreement signed by the parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between BevSpot and Customer as a result of the Agreement or use of the Services. Neither party may assign the Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Section shall be void.
BevSpot reserves the right to use Customer's company name as a reference for marketing or promotional purposes on BevSpot's website and in other communication with existing or potential BevSpot customers. Customer may send an email to feedback@BevSpot.com stating that it does not wish to be used as a reference, and BevSpot will promptly discontinue such use, provided that BevSpot may continue to confidentially disclose that Customer is a customer to BevSpot's actual or potential financing sources or acquirers.