Sensor-Enabled Inventory Management System

End User License Agreement (EULA)

Inventory Management & Digital Beer Menu Solution

Last Revised: July 22, 2022

This BarTrack Sensor Solution End User Subscription Agreement, together with any Order Pages (as defined below) (collectively, this “Agreement”) is a legal agreement between you, either an individual, company or other legal entity (“Customer”) and BarTrack Inc., a Delaware corporation (“BarTrack”).

BY CLICKING THE “ACCEPT” BUTTON, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND AGREED TO BE LEGALLY BOUND BY THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SENSOR SOLUTION (AS DEFINED BELOW).

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.

1. Definitions.

  • (a) “BarTrack Dashboard” means the online beverage monitoring inventory management dashboard that BarTrack makes available to Sensor Solution subscribers, as updated by BarTrack from time to time.
  • (b) “Committed Subscription Term” means the period of time (as set forth on the Order Page) for which Customer commits to pay BarTrack for a subscription for the Sensor Solution. The Committed Subscription Term begins on the date of BarTrack’s first invoice for the recurring monthly Solution Fees (which invoice will be issued within 2 weeks after the Sensor Solution is installed at the Customer locations) and remains in effect for the applicable period of time set forth on the Order Page.
  • (c) “Documentation” means user manuals, technical manuals, and any other materials provided by BarTrack to Customer, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Sensor Solution.
  • (d) “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.
  • (e) “Order Page” means the online ordering page that is made available by BarTrack and completed and submitted by or on behalf of Customer to BarTrack and subsequently accepted by BarTrack in its sole discretion (the “Initial Order”), together with any change orders that are agreed upon by the Parties from time to time (to, for example, add or delete lines or make other changes to the Initial Order) (“Change Orders”). The Initial Order contains Customer contact and billing information, as well as Customer’s selection (from among the options provided by BarTrack) of: (i) any optional features to be included in Customer’s Sensor Solution subscription, (ii) the length of the Committed Subscription Term, (iii) the fees to be paid by Customer to BarTrack for the Committed Subscription Term, (iv) number of lines covered by the Customer’s subscription and (v) the Customer locations at which the Sensor Solution will be installed. Change Orders will set forth the changes to be made to the Initial Order, but will not affect the Committed Subscription Term (unless otherwise expressly stated in the Change Order).
  • (f) “Sensor Solution” means the BarTrack beverage monitoring and inventory management product offering which consists of leased hardware (including, but not limited to, beverage line sensors) (the “Hardware”), BarTrack Portal access and Documentation. To the extent the Order Page indicates that any features of BarTrack’s beverage monitoring and inventory management product offering are optional, the Sensor Solution only includes the optional features that are selected by Customer on the Order Page
  • (g) “ Solution Fees” means the prices to be paid by Customer to BarTrack for the subscription to the Sensor Solution for the Committed Subscription Term, as set forth on the Order Page. The Solution Fees may include, but are not limited to, up-front per beverage line and hardware lease fees, recurring monthly/service charges and other fees and charges.

2. Purchase Commitments.

  • (a) Committed Subscription Term. Customer agrees to pay BarTrack all Solution Fees for the full Committed Subscription Term.
  • (b) Non-Cancellable Nature of Commitments. Customer acknowledges and agrees that the purchase commitment described in Section 2(a) above is not cancellable by Customer, unless this Agreement is terminated by Customer pursuant to Section 11(b) due to BarTrack’s material, uncured breach. If Customer fails to pay the Solution Fees for any reason during the Committed Subscription Term (other than due to termination of this Agreement by Customer pursuant to Section 11(b) due to BarTrack’s material, uncured breach), and Customer does not cure such failure within thirty (30) days of receiving written notice of such failure from BarTrack, then the balance of all Solution Fees for the remainder of the Committed Subscription Term (the “Committed Charges”) will immediately become due and payable to BarTrack, in addition to the Termination Charges (as defined below).

3. Fees

  • (a) Solution Fees. Customer will pay the upfront and recurring Solution Fees described on the applicable Order Page for the Committed Subscription Term.
  • (b) Continued Use Fees. If Customer wishes to continue using the Sensor Solution after the Committed Subscription Term, such continued usage will be subject to Customer’s payment of BarTrack’s then-current standard Solution Fees for the applicable Sensor Solution (i.e., without any discounts that apply in the case of a subscription term commitment) (the “Continued Use Fees”) and for the equivalent Committed Subscription Term, unless Customer submits within 30 days of the end of active Committed Subscription Term and BarTrack accepts a new Order Page providing for a new Committed Subscription Term (in which case the Solution Fees set forth on such new Order Page will apply for such new Committed Subscription Term). For clarity, BarTrack may change the Continued Use Fees at any time upon written notice to Customer.
  • (c) Termination Charges. In the event of any termination or expiration of this Agreement, Customer will pay BarTrack (in addition to the Committed Charges as described in Section 2(b) termination charges equal to all costs incurred by BarTrack for the removal and replacement of the Hardware from Customer’s locations (collectively, the “Termination Charges”).
  • (d) Payment Methods. To purchase a subscription to the Sensor Solution, Customer must have a card or other payment method on file with BarTrack. By submitting an Order Page, Customer authorizes BarTrack, through its third-party payment processor (the “Payment Processor”), to charge Customer’s account for the applicable Solution Fees, Continued Use Fees, Termination Charges, shipping charges, Taxes (as defined below) and any other amounts payable by Customer to BarTrack (collectively, “Charges”). Customer agrees to be bound by the Payment Processor’s terms and conditions and privacy policy. CUSTOMER MUST PROVIDE CURRENT, COMPLETE, AND ACCURATE INFORMATION FOR ITS ACCOUNT, AND PROMPTLY UPDATE ALL INFORMATION TO KEEP SUCH ACCOUNT INFORMATION CURRENT, COMPLETE, AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE). FURTHER, CUSTOMER MUST PROMPTLY NOTIFY BARTRACK IF A PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT).
  • (e) Timing of Payments. Unless otherwise specified by BarTrack, all recurring and non-recurring Charges are due and payable in advance of the period or event to which such Charge applies.
  • (f) Late Payments. If any Charge is not timely paid by Customer (whether due to Customer’s failure to maintain a valid card or other payment method on file with BarTrack or otherwise), Customer will pay BarTrack a finance charge of 1% per month on the unpaid amount, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
  • (g) Taxes. Customer will be solely responsible to pay any and all taxes, duties, and assessments (except BarTrack’s income taxes) now or hereafter claimed or imposed by any governmental authority (collectively, the “Taxes”) associated with Customer’s purchase of subscriptions to the Sensor Solution or any other Charges.

4. Shipment, Installation and Training.

  • (a) Shipment. BarTrack (or its certified partners) will ship/deliver the Hardware components of the Sensor Solution according to BarTrack’s standard commercial practices. Shipment of the Hardware components of the Sensor Solution will be made to the Customer location(s) specified on the Order Page, or as otherwise agreed to in writing by the parties. Customer will be responsible for all shipping charges, unless waived by BarTrack.
  • (b) Installation. BarTrack or its authorized third party installation provider will conduct the initial installation of the Hardware components of the Sensor Solution at the Customer location(s) specified on the Order Page. Any Charges to be paid by Customer for such installation will be set forth on the Order Page. The dates requested by Customer for such installation of the Hardware components of the Sensor Solution and activation of the Sensor Solution are subject to acceptance by BarTrack. BarTrack will attempt in good faith to meet Customer’s requested installation dates. If BarTrack is unable to meet Customer’s Requested Activation Date, alternative arrangements will be mutually agreed to by the parties. Neither BarTrack nor its authorized third party installation provider will be responsible for (i) any pre-existing issues with Customer’s draft system or other equipment or facilities, (ii) any failure of the BarTrackSolution that is due to such pre-existing issues or (iii) providing any post-installation services related to the Hardware, including post-installation balancing of the Hardware or the addition of Hardware for new lines or new fittings. Customer will sign BarTrack’s system acceptance form upon completion of the installation.

5. Subscription to the Sensor Solution.

  • (a) During the period for which Customer continues to pay the applicable Solution Fees or Continued Use Fees to BarTrack (the “Subscription Term”), BarTrack grants Customer the right to use the Sensor Solution solely in connection with Customer’s beverage lines for which Customer has paid the applicable Solution Fees or Continued Use Fees (as applicable), subject to the terms and conditions of this Agreement. The Sensor Solution and all of its components are owned by BarTrack. Customer’s right to use the Sensor Solution confers no title or ownership to Customer, and is not a sale of any rights in the Sensor Solution or any of its components. Customer at all times shall, subject to BarTrack’s rights hereunder, keep the Sensor Solution and its components free from any and all liens, claims and encumbrances and shall not lease, sublease, transfer, sell, or assign the Sensor Solution or any of its components.
  • (b) The BarTrack Dashboard and any online Documentation included in the Sensor Solution is hosted by or on behalf of BarTrack and will be made available to Customer on a software-as-a-subscription basis during the Subscription Term.
  • (c) Any Hardware included in the Sensor Solution is leased to Customer and not sold. Risk of loss for any Hardware will pass to Customer upon delivery.

6. Restrictions on Use. Customer will not (and will not permit any third party to):

  • (a) use the Sensor Solution or any of its components beyond the scope of the rights granted in Section 5;
  • (b) modify, translate, adapt, or otherwise create derivative works, whether or not patentable, of the Sensor Solution or any of its components;
  • (c) combine or incorporate the Sensor Solution or any of its components with or in in, any other third party solution, without BarTrack’s explicit consent;
  • (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other Intellectual Property Rights notices provided on or with the Sensor Solution or any of its components;
  • (e) use the Sensor Solution or any of its components in violation of any applicable law, regulation, or rule;
  • (f) reverse engineer, disassemble or decompile the Sensor Solution or any of its components;
  • (g) use the Sensor Solution or any of its components for purposes of competitive analysis, the development of a competing product or service, or any other purpose that is to BarTrack’s commercial disadvantage; or
  • (h) use the Sensor Solution for beverages with an alcohol content above 15% ABV, without BarTrack’s prior, written consent (Customer acknowledges that any such use will void the warranty provided by BarTrack under Section 7(a)).

7. Limited Warranty.

  • (a) Limited Warranty. Except as provided in Section 7(b), BarTrack warrants that the Sensor Solution will be materially free from defects in material and workmanship under conditions of normal use for a period of one (1) year after delivery of the Sensor Solution (the “Warranty Period”). Should the Sensor Solution fail to conform to the foregoing warranty at any time during this Warranty Period, BarTrack, at its sole discretion, will repair or replace the Sensor Solution or any part thereof at no charge. All replaced parts will remain the property of BarTrack. Customer acknowledges that the Hardware in some cases may have been refurbished by BarTrack.
  • (b) Warranty Limitations. The limited warranty in Section 7(a) above is void if the damage or malfunction to the Sensor Solution 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 or other causes not due to a material defect in material or workmanship of the Sensor Solution. The warranty set forth in Section 7(a) does not include any malfunctions or failure resulting from improper servicing or modification of the Sensor Solution or any part thereof by anyone other than BarTrack or an organization/partner/re-seller certified by BarTrack. If damage to a Hardware component of the Sensor Solution is determined by BarTrack to not be covered by the warranty in Section 7(a) above, then if requested by Customer, BarTrack will ship a replacement to such Hardware component to Customer, subject to Customer’s payment of BarTrack’s then-current price for such Hardware component.
  • (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 Sensor 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 Sensor 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 to the maximum extent permitted under applicable law.

8. Indemnification. Customer will indemnify, defend and hold harmless BarTrack and its affiliates and each of their respective officers, directors, agents and, 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 Customer’s use of the Sensor Solution, except to the extent arising from BarTrack’s breach of this Agreement, negligence or willful misconduct.

9. Liability. In no event shall BarTrack or any of its affiliates 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 Sensor Solution, 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 maximum, cumulative liability of BarTrack and its affiliates arising under or in connection with this Agreement or the Sensor Solution shall in no event exceed the Charges actually paid by Customer to BarTrack during the three (3) months prior to the date on which the first claim arose. Customer irrevocably waives and releases BarTrack from all obligations, liability, claims or demands in excess of the limitation provided in this Section 9.

10. Confidential Treatment of Information. Customer shall treat all non-public technical and other information provided by BarTrack related to the Sensor Solution as confidential and shall not disclose such information to anyone other than Customer’s personnel, only to the extent necessary in connection with the performance of this Agreement. Customer shall take all reasonable precautions to insure that its personnel treat such information in a confidential manner.

11. Term and Termination; Survival.

  • (a) The term of this Agreement begins on the date of the first Order Page is submitted by Customer and accepted by BarTrack and, unless terminated earlier in accordance with Section 11(b), remains in effect until the later of (i) the end of the Committed Subscription Term and (ii) the date on which Customer stops paying the applicable Continued Usage Fees to BarTrack. If no Committed Subscription Term is in effect, either Party may terminate this Agreement for convenience upon thirty (90) days prior, written notice to the other Party.
  • (b) Either Party may terminate this Agreement upon thirty (30) days’ prior, written notice to the other Party if the other Party commits a material breach of the Agreement and such breach is not cured within such thirty (30) day period. Customer’s failure to pay BarTrack any Charges when due will constitute a material breach of this Agreement by Customer.
  • (c) Upon any expiration or termination of this Agreement: (i) BarTrack may immediately deactivate access to the BarTrack Portal and (ii) BarTrack may (either itself or through a third party designee) remove all Hardware from Customer’s locations. BarTrack will coordinate with Customer to schedule a date for the removal of the Hardware that is mutually convenient to the parties (but in no event will BarTrack be required to delay such removal more than 30 days after the effective date of expiration or termination of this Agreement). Customer will provide BarTrack or its designee with reasonable access to Customer’s locations to facilitate such removal of the Hardware.
  • (d) Section 2(b) (“Non-Cancellable Nature of Commitments”), Section 3 (“Fees”), Section 6 (“Restrictions on Use”) and Sections 8 through 25 shall survive any expiration or termination of this Agreement.

12. Ownership; Feedback; Data.

  • (a) BarTrack and its licensors retain ownership in all Intellectual Property Rights in and to the Sensor Solution and all of its components, including all underlying technology.
  • (b) Customer hereby grants BarTrack and its successors and assigns a perpetual, irrevocable, royalty-free, transferable, sub-licensable license to use any feedback and ideas that Customer provides in connection with its use of the Sensor Solution for any purpose.
  • (c) Customer shall ensure that it is authorized to enter any data that it provides or enters into the BarTrack Portal. Customer acknowledges and agrees that BarTrack may collect and retain data via the Sensor Solution, including, but not limited to, data tracking pour volumes by beverage brand, temperature conditions, sales data and other data (collectively, “Sensor Solution Data”). BarTrack and its successors and assigns at all times shall be free to use and disclose any Sensor Solution Data for any and all business purposes.

13. Force Majeure. Neither BarTrack nor Customer shall 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, pandemics, epidemics, quarantine restrictions, war, riots, civil disobedience, embargo, rebellions, delays in transportation, governmental requirements and inability to obtain necessary labor, 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 Sensor 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.

14. 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.

15. Entire Agreement. This Agreement (including any Order Pages) 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.

16. 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. Any attempted assignment by Customer without such consent will be null and void. BarTrack may freely assign this Agreement, including, but not limited to, in connection with any sale of BarTrack or its business.

17. Governing Law. This Agreement, and any disputes directly or indirectly arising from or related to 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.

18. Disputes. All disputes arising out of or in connection with this Agreement shall be settled by binding arbitration commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person (in which case, the place of arbitration shall be Loudon County, Virginia), through the submission of documents, by phone, or online. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the dispute immediately after commencement of the arbitration.

19. Notices. All notices to Customer shall be deemed to be received if mailed to Customer’s address entered into the BarTrack billing system. If the Customer intends to notify BarTrack of any official notice or action, BarTrack’s mailing address is below.

BarTrack Inc. 45662 Terminal Dr. Suite 120 Sterling, VA 20166

20. 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.

21. Export Control. The Sensor Solution and its underlying technology and services are subject to US export control laws and regulations. Customer will comply with such laws and regulations governing use, export, re-export, and transfer of the Sensor Solution and its underlying technology and will obtain all required US authorizations, permits or licenses, if necessary.

22. 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.

23. Changes to Agreement. BarTrack reserves the right to change this Agreement from time to time (excluding the Solution Fees for a Committed Subscription Term that are set forth in an Order Page submitted to and accepted by BarTrack) in its sole discretion by providing such updated terms to Customer by email or other means. By continuing to access or use the Sensor Solution after revisions become effective, Customer agrees to be bound by such revised terms of this Agreement.

24. Miscellaneous. Headings contained in this Agreement are only for convenience and shall not be used in the construction hereof.

25. Publicity Rights. Customer agrees the BarTrack may identify Customer as a user of BarTrack’s technology in its business deals; press releases; marketing materials; electronic, printed, and broadcast advertising; newsletters; mailings; tradeshows; other promotional materials; on BarTrack’s website; or any other third-party website where BarTrack or its designated agents may promote the BarTrack technology. Customer hereby grants BarTrack and its agents an irrevocable, perpetual, worldwide, non-exclusive, fully paid-up, royalty- free license (with right to sub-license) to use, reproduce, publish, and display your name, trademarks, service marks, designs, logos, and symbols in connection with such purpose.

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