End User License Agreement (EULA)
Inventory Management & Digital Beer Menu Solution
Last Revised: September 2, 2021
IMPORTANT—READ CAREFULLY: BY (I) COMPLETING A PURCHASE OF THE SOLUTION (AS DEFINED BELOW) ON BARTRACK INC.’S BILLING WEBSITE, (II) CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM OR (III) BY ANY OTHER MEANS PROVIDED BY BARTRACK FOR CUSTOMER TO ACCEPT THIS AGREEMENT, YOU REPRESENT THAT YOU PURCHASED A SUBSCRIPTION FOR THE SOLUTION FROM AN APPROVED SOURCE AND YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT OR YOU DO NOT AGREE WITH ITS TERMS, DO NOT USE THE SOLUTION. RETURN IT TO BARTRACK, DISABLE OR UNINSTALL IT AND REQUEST A FULL REFUND WITHIN THIRTY (30) DAYS OF THE DATE OF YOUR INITIAL PURCHASE. YOUR RIGHT TO RETURN AND REFUND APPLIES ONLY IF YOU ARE THE ORIGINAL END USER LICENSEE OF THE SOLUTION.
This End-User License Agreement (“Agreement”) is a legal agreement hereby entered into between you, either an individual, company or other legal entity, and its affiliates (hereafter “Customer”) and BarTrack Inc., a Delaware corporation (“BarTrack”).
(a) “Documentation” means user manuals, technical manuals, and any other materials provided by BarTrack, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software or the Solution.
(b) “Derivative Works” means a revision, enhancement, modification, translation, abridgement, condensation, or expansion of the Solution, Software or Documentation or any other form in which such Solution, Software or Documentation may be recast, transferred or adapted, which, if used without BarTrack’s consent, would constitute a copyright infringement.
(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(c) “Software” means the object code, any enclosed Documents, and any upgrades or Updates therefor, that are provided by BarTrack or an approved source on BarTrack’s behalf, and either are (i) included with or embedded in the Solution, or (ii) provided as a stand-alone software product.
(d) “Solution” means the beer inventory management and digital beer menu solution and its associated Hardware (including sensors), Software and Documentation.
(e) “Updates” means all subsequent releases and version of the Software or Solution that BarTrack makes generally available to its Customers as part of the purchase support services and which are not separately priced or marketed by BarTrack.
2. Price and Payment Terms
BarTrack shall sell the right to utilize the Solution and a license for the Software contained therein to the Customer at the price agreed to in the order, which will be sent electronically to the Customer from the BarTrack web based billing system. Prices, including one-time, recurring and any annual pre-payment discounts, will be clearly documented in the electronic order/bill. Customer will enter into the agreement by paying an up-front equipment fee (per beer tap line) (“License Fee”) and then thirty days (30) after installation of the sensor equipment, the Customer will begin paying the monthly service fee (per beer tap line) (“Subscription Fee”). Prices provided on the purchase order or via electronic mail are valid for four (4) years.
3. Shipment and Activation of the Solution
(a) The requested installation and activation date (collectively, the “Activation Requirements”) are subject to acceptance by BarTrack. BarTrack will make commercially reasonable efforts to meet Customer’s Activation Requirements and scheduled delivery dates. If BarTrack is unable to meet Customer’s Activation Requirements, alternative arrangements may be mutually agreed to by the parties. In the absence of such agreement, Customer’s sole remedy is to cancel this Agreement.
(b) BarTrack (or its certified partners) will ship/deliver according to BarTrack’s standard commercial practice.
(c) Shipment will be made to the delivery location specified in the billing system, or as otherwise agreed to in writing by the parties.
(a) BarTrack grants Customer a non-exclusive license to use BarTrack’s Software contained in the Solution purchased under the attached Order (the “Software”), including any documentation files accompanying the Software (“Documentation“), in conformance with this Agreement for the duration of the Warranty Period (as defined below), and thereafter for as long as the Customer continues to pay the monthly service Subscription Fee as defined in the electronic order/bill.
(b) The Software and the Hardware is owned by BarTrack. Customer’s license confers no title or ownership and is not a sale of any rights in the Software, its Documentation, the Hardware Sensor, or the media on which they are recorded or printed. Third party suppliers may protect their rights in the Software in the event of any infringement. The parties intend and agree that to the extent the Solution includes any Software and Sensors (including, without limitation, any firmware), such Software is not being sold, but rather it is licensed to the Customer.
(c) License Restrictions: Customer will not:
(1) use the Software or Documentation beyond the scope of the License granted in this Section 4;
(2) modify, translate, adapt, or otherwise create Derivative Works, whether or not patentable, of the Software or Documentation or any part thereof;
(3) combine the Solution or Software or any part thereof with, or incorporate the Hardware Solution or Software or any part thereof in, any other third party solution without BarTrack’s explicit consent;
(4) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights notices provided on or with the Solution, Software or Documentation, including any copy thereof;
(5) use the Solution, Software or Documentation in violation of any applicable law, regulation, or rule;
(6) reverse engineer, disassemble or decompile the Software or Hardware Solution; or
(7) use the Hardware Solution, Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to BarTrack’s commercial disadvantage.
(d) This Agreement is not transferable. All license terms will be binding on involuntary transferees, notice of which is hereby given. Customer’s license will automatically terminate upon transfer of ownership, unless a previous arrangement is agreed upon and properly documented.
5. Installation, Training and Support. Remote installation support for the Solution and basic web-based training on the Solution is included in the License Fee. The Subscription Fee covers the routine Updates of the Software, access to the dashboard/reports and remote support for the Software and its use. It is understood by the Customer that on-site training may not be available in some states. There may be an installation fee or additional charge from a third-party installation/line servicing company that is not included in the subscription. Balancing of the draft system post-installation is not BarTrack’s responsibility, as it is the Customer’s installation/line servicing company’s responsibility. The addition of new lines and new fittings is also the responsibility of the Customer and/or their installation/servicing company. BarTrack will deliver a “Customer Responsibilities” document prior to installation. This document is posted to the BarTrack.beer website and clearly defines what training and support services are included initially, and additional charge that will be applied if the Customer causes delays and re-schedules these services more than two times.
6. Warranty and Limitations
(a) BarTrack warrants that the Solution (including each item of Software incorporated therein) will be materially free from defects in material and workmanship under conditions of normal use for a period of two years after delivery of the Solution (the “Warranty Period”). Should the Solution fail to be materially free from defects in materials or workmanship or fail to operate substantially in accordance with applicable functional specifications at any time during this Warranty Period, BarTrack, at its sole discretion, may repair or replace the Solution or any part thereof at no charge, provided the Customer was not responsible for the cause/s that resulted in failure or defect/s. All replaced parts will become the property of BarTrack.
(b) Exclusion of Warranty. The limited warranty in Section 6(a) above is void if the damage or malfunction to the Solution or Software results from misuse, abuse, neglect, alteration, problems with electrical power, acts of nature, unusual temperatures or humidity, improper installation, broken water pipes in the cooler/refrigeration unit or other damage determined by BarTrack to have been caused by Customer. The warranty of Section 6(a) does not include any malfunctions or failure resulting from improper servicing or modification of the Solution or any part thereof by anyone other than BarTrack or an organization/partner/re-seller certified by BarTrack. If the hardware damage is determined to be caused by the Customer, BarTrack will charge the same agreed-upon upfront equipment fee (License Fee) to replace the line(s) that require replacement for up to 36 months. After three (3) years, new terms and conditions may apply for replacement break/fix work and the equipment. Customer cannot pour drinks with an alcohol content above 15% ABV without prior notification to BarTrack.
(c) Disclaimer. The warranty and remedies set forth above are exclusive and in lieu of all others, oral or written, express or implied. BarTrack makes no warranties or representations as to performance or the Solution or as to services to Customer or to any other person, except as set forth above and in BarTrack’s limited warranty accompanying delivery of the Solution. Except as set forth above, all implied warranties, including, but not limited to, implied warranties of merchantability and fitness for a particular purposes are hereby excluded.
(d) Exceptions. Some states or jurisdictions do not allow the exclusion of express or implied warranties, so the above disclaimer may not apply to Customer. In that event, such express or implied warranties shall be limited in duration to the lesser of the Warranty Period or the minimum period required by applicable law.
7. Indemnification. BarTrack and Customer each agree to indemnify, defend and hold harmless each other and each other’s officers, directors, agents, employees, shareholders, legal representatives, successors and assigns, and each of them, from any and all claims, actions and suits asserted by any person or entity, and from and against any and all liabilities, judgments, losses, damages, costs, charges, attorney fees and other expenses of every nature and character arising out of or relating to this Agreement or the failure of BarTrack or Customer or any of its employees or agents to comply with the requirements of this Agreement.
8. Limitations of Liability
In no event shall BarTrack be liable to Customer for any incidental, consequential, indirect, special, punitive or exemplary damages (including, but not limited to, damages for loss of profits or revenues, business interruption, loss of business information, lost goodwill or other pecuniary loss) arising under or in connection with this Agreement or the Solution purchased hereunder, even if advised of the possibility of such damages, whether based upon work stoppage, impairment of other goods, breach of contract, negligence or such other actions or omissions as may be deemed or alleged to be the cause of a loss or damage to such person or entity. In any event, the total liability of BarTrack and its Affiliates and Subsidiaries shall be limited to half of the amount actually paid to BarTrack under the most recent Invoice for the Solution giving rise to the liability. Customer irrevocably waives and releases BarTrack from all obligations, liability, claims or demands in excess of the limitation provided in this Section 8. Any damage to the Customer facility caused by the installation contractor (whether hired by BarTrack or directly by the Customer) is the responsibility of the installation contractor. BarTrack will make every effort to encourage installation contractor/companies to carry adequate business insurance coverage in any agreements made with these companies. However, some Customers will select their own installation contractor/company, and therefore the responsibility to check insurance coverage is sole responsibility of the Customer.
9. Confidential Treatment of Information. All information provided by either party related to financial plans, product development, market plans, cost, pricing terms and strategy and any other confidential information, and this Agreement, shall be treated as confidential and not be divulged other than to either party’s personnel, only to the extent necessary in connection with the performance of this Agreement. Each party shall take all reasonable precautions to insure that its personnel treat such information in a confidential manner. All such information provided to the other party remains the property of the providing party. Any materials containing such information, and any copies thereof, shall be returned to the providing party upon demand and in any event upon the termination or expiration of this Agreement.
10. Acts Beyond Control. BarTrack and the Customer shall not be liable for any delay in performance or for non-performance due to the occurrence of any contingency beyond its reasonable control, including but not limited to acts of God, acts of civil or military authority, strikes, fires, floods, earthquakes, epidemics, quarantine restrictions, war, riots, civil disobedience, embargo, rebellions, delays in transportation, governmental requirements and inability to obtain necessary labour, materials, permits, transport or manufacturing facilities. In the event of any such delay, the delivery date shall be extended for a period equal to the time lost by reason of the delay. In the event of shortage of any component of the Solution as a result of such an event, the available replacing components shall be installed/updated by BarTrack in such a manner as it, in its sole discretion, determines to be equitable.
11. Waiver. The failure of either party to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provisions or of the right of such party thereafter to enforce each such provision. No waiver in any instance of any of the provisions of this Agreement shall constitute a waiver with respect to any other provisions of this Agreement.
12. Modifications of Agreement/Entire Agreement. The provisions of this License Agreement shall not be changed, modified, waived or supplemented without the written consent of both parties, given by an authorized officer. This document constitutes the entire agreement between the parties with respect to its subject matter, superseding all prior negotiations, communications, agreements, courses of dealing and the like between the parties.
13. Assignment and Binding Effect. This Agreement may not be assigned by operation of law or otherwise or by Customer without the express written consent of BarTrack. If this were to happen, the current Customer would be responsible for monthly payments until new payment information is obtained from the transferee.
14. Governing Law/Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia without regard to its choice of law rules. All disputes arising out of or in connection with the terms and conditions in this document shall be settled under the Rules of Arbitration of the International Chamber of Commerce. The place of arbitration shall be Loudon County, Virginia.
15. Notices. All notices shall be in writing, addressed to the receiving party’s address entered into the BarTrack billing system. If the Customer intends to notify BarTrack of any official notice or action, the company’s mailing address is below:
45662 Terminal Dr. Suite 120
Sterling, VA 20166
16. Authority to Contract. Each party warrants that (a) it has the power and authority to execute and deliver this Agreement and to consummate the transactions contemplated by this document and (b) neither the execution and delivery of this Agreement nor its performance will violate any contract, agreement, court order, injunction, consent decree or law to which it is subject or by which it is bound.
17. Term and Termination.
This Agreement and the licenses granted hereunder shall remain binding and in effect for 48 months. Either party may terminate this Agreement after the first 12 months, provided that (1) written notice is given to the other party and (2) Customer shall still be responsible for an additional 12 months of the Subscription Fee from the date of termination/written notice (“Early Termination Fee”). Payment of the full Early Termination Fee to BarTrack is due within 30 days of termination notice. In addition, BarTrack will be entitled to any past payment that is due to BarTrack as of the date of termination. Except as expressly provided herein, Sections 6, 7, 8, 9, 10, 20 and 23 shall survive termination.
Should the Customer be in default for any reason, such as failure to make payments, BarTrack (or its partners/affiliates) will be entitled to immediately turn off the software subscription and BarTrack (or its partners/affiliates) may re-take possession of the Hardware Sensor by giving written 14-day notice of our intent to remove the equipment from the customer location.
18. Miscellaneous. Headings contained in this Agreement are only for convenience and shall not be used in the construction hereof.
19. Export Control. BarTrack’s Software, Solution and their underlying technology and services are subject to US export control laws and regulations. You will comply with such laws and regulations governing use, export, re-export, and transfer of the Solution or Software and their underlying technology and will obtain all required US authorizations, permits or licenses, if necessary.
20. Ownership. BarTrack and its licensors retain ownership in all Intellectual Property Rights in and to the Hardware Solution and Software and all underlying technology, associated Documentation, Updates and Derivative Works related thereto. Customer authorizes BarTrack to use any feedback and ideas that Customer provides in connection with its use of the Hardware Solution or Software for any purpose.
21. Severability. If any provision of this Agreement is held invalid or unenforceable, such provision will be deemed replaced by the provision permitted by law that most closely effectuates the parties’ original intent as documented hereunder, and the remainder of this Agreement will continue in full.
22. Changes to Agreement. BarTrack reserves the right to change this Agreement from time to time in its sole discretion.
23. Data. Customer acknowledges that it is authorized to enter any data that it provides or enters into the Software or Solution. If an image, data or logo is copyrighted, Customer must not violate any of its copyright restrictions by providing it to us. BarTrack will not be responsible if Customer violates any copyrights. Customer also agrees that BarTrack, or a third party contracted by BarTrack, may collect and use technical and usage data and related information for the Software or Solution that is gathered to facilitate the provision of Updates, product support and other services (if any) to Customer. BarTrack may use this information, as long as it is in a form that does not personally identify the Customer, to improve its Hardware Solution, Software or Documentation or to provide services or technologies to the Customer.
This documentation and the information therein are the exclusive property of BarTrack, Inc.