Last Updated: April 2023
These Terms of Service (“Terms”) apply to your access to and use of (i) the website located at https://www.bevsuite.com and all associated subdomains, web pages, websites, and social media pages (the “Site”) provided by BevSuite Inc. and its subsidiaries and affiliates (“BevSuite”, “we”,“our”or “us”),(ii) our Software (as defined below) that may be used or accessed online or via a third-party platform, and (iii) online services (including the Site and the Software, collectively the “Services”).
BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 18, (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 18, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND BEVSUITE WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Services.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
The term “Software” as used herein means any software provided by BevSuite under these Terms, including, but not limited to our web-based applications and any related content, data, including, associated media, printed or electronic documentation, functionality, services, data that we or our authorized providers make available to you, and any updates and replacements of the foregoing.
You may provide certain information to BevSuite in connection with your access or use of our Services, or we may otherwise collect certain information about you when you access or use our Services. You agree to receive emails and other types of communication from BevSuite via the Services using the email address or other contact information you provide in connection with the Services. You represent and warrant that any information that you provide to BevSuite in connection with the Services is accurate.
Jurisdiction. You may only use our Services in jurisdictions authorized by BevSuite. Our Services and content may not be available in all territories and jurisdictions, and we may restrict or prohibit use of all or a portion of our Services in content in certain jurisdictions and territories.
“Business User” means BevSuite authorized you in writing to use our Services on behalf of another person or entity for commercial or internal business use.
FOR BUSINESS USERS
(a) Authorization. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms (other than in this Section 3(a)) will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us.
(b) Use and Sharing. Our Services are provided to you only for your internal business use and not for the benefit or use of any third party (“Permitted Business Use”).BevSuite may enable you to designate authorized individuals (“Authorized Users”) to use our Services, and only Authorized Users may use our Services. You will be solely responsible for your Authorized Users and their activity in connection with the and Services.
Authorized Users must create accounts in order to use some or all of our Services. You will ensure that your Authorized Users (a) do not share their account credentials, (b) provide accurate account information and promptly update this information if it changes, and (c) use a strong password for their account that is unique to our Services and not used by that Account User in any other website or online service. You will maintain the security of any accounts created of your Authorized Users. If you discover or suspect that someone has accessed the account of one of your Authorized Users without permission, you will promptly notify BevSuite. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
(a) Our Services may allow you and other users to create, post, store, share and interact with content, including, but not limited to, email campaigns, messages, text, images, photos, and other information and materials (collectively, “User Content”). When you send email or otherwise share User Content on or through our Services, you understand that your User Content and any associated information may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
(b) Except for the license you grant below, as between you and BevSuite, you retain all rights in and to your User Content, excluding any portion of the Services included in your User Content. You grant BevSuite and its subsidiaries and affiliates a perpetual, irrevocable, nonexclusive, transferable, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, store, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username or likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
▪ Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
▪ Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
▪ May infringe any patent, trademark, tradesecret, copyright, or other intellectual or proprietary right of any party;
▪ Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
▪ Impersonates, or misrepresents your affiliation with, any person or entity;
▪ Contains any private or personal information of a third party without such third party’s consent;
▪ Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
▪ In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose BevSuite or others to any harm or liability of any type.
(d) Enforcement of this Section 5 is solely at BevSuite’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 5 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(e) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
▪ delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
▪ terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
▪ take any action with respect to your User Content that is necessary or appropriate, in BevSuite’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect BevSuites’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
▪ As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.
(a) You will not use our Services if you are not eligible to use our Services in accordance with Section 3 and will not use our Services other than for their intended purpose. Further, you will not, in connection with our Services:
▪ Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
▪ Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
▪ Use or attempt to use another user’s information without authorization from that user and BevSuite;
▪ Impersonate or post on behalf of any personor entity or otherwise misrepresent your affiliation with a person or entity;
▪ Sell or resell our Services;
▪ Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
▪ Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services;
▪ Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
▪ Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
▪ Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robots.txt file and only to compile for search results, provided that BevSuite grants to the operators of public search engines permission to use spiders to copy materials from the Site for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. BevSuite reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
▪ Develop or use any applications that interact with our Services without our prior written consent;
▪ Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
▪ Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by the BevSuite; or
▪ Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section 6 is solely at BevSuite’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
By making a purchase through our Services, you agree to the terms set forth in this Section 7 (the “Terms of Sale”).
(a) Eligibility. To complete your purchase, you must have a valid billing address within a country that can be selected as part of the checkout process on the Site (the “Territory”). We make no promise that Services available on the Site are appropriate or available for use in locations outside the Territory.
(b) Restrictions. You may only purchase Services for use by either on behalf of another person or entity for commercial or internal business use of the Service. The Services are not authorized for resale. We reserve the right, without prior notice, to refuse service to any customer or reject any order at any time and refund any money you have paid for such order.
(c) Price. Prices shown on the Site exclude all taxes. Taxes will be added to the amount of your purchase and itemized on the checkout page. You will have an opportunity to review taxes and delivery costs before you confirm your purchase. All prices on the Site are subject to change at any time without notice. We do not collect taxes on services in a jurisdiction in which we do not have substantial nexus, in which case you will be liable to the appropriate taxing authority for any sales taxes relating to your purchase from the Site.
(d) Payment. If you wish to make a transaction,you may be asked to supply certain relevant information, such as your payment card number and its expiration date and your billing address to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a transaction. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any transaction.You will pay all charges incurred by you or on your behalf through the Services, at the prices in effect when such charges are incurred, including all taxes \ charges applicable to your transactions. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys’ fees and other legal expenses.
(e) Subscriptions. Your purchase of certain Services may require enrollment in a payment plan involving automatic renewal (a “Recurring Subscription”). If you purchase such a Service, you authorize BevSuite to maintain your account information and charge that account automatically upon the renewal with no further action required by you. The length of your Recurring Subscription will be provided when you make your purchase. Your Recurring Subscription will automatically renew unless you cancel it. In the event that BevSuite is unable to charge your account as authorized by you when you enrolled in a Recurring Subscription, BevSuite may in its sole discretion (i) bill you for your Products or Services and suspend your access to the Products or Services until payment is received or (ii) seek to update your account information through third-party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you. You may cancel your subscription [through your account/by emailing us at firstname.lastname@example.org].You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, we will not refund any subscription fees already paid to us. Following any cancellation, however, you will continue to have access to the applicable Products through the end of your current subscription period. BevSuite may change the prices charged for Recurring Subscriptions at any time by posting updated pricing through the Services; provided, however, that the prices foryour Recurring Subscription will remain in force for the duration of the subscription period for which you have paid. After that period ends, your useof the applicable Products or Services will be charged at the then-current subscription price. If you do not agree to these price changes, you must cancel your Recurring Subscription at least ten (10) days before the changes take effect. If you do not cancel, your Recurring Subscription will automatically renew at the then-current price at the time of renewal and for the same duration as the initial subscription term, and BevSuite will charge your on-file payment card or method on the first day of the renewal of the subscription term.
(f) Order Confirmation; Acceptance. You will have the opportunity to review and confirm your order, including payment method and other details of your order. Although we may confirm orders by email, the receipt of an e-mail order confirmation does not constitute our acceptance of an order or our confirmation of an offer to sell a Service. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.
(g) Refunds and Exchanges. We do not currently provide for exchanges or refunds.
(h) Reservation of Rights. BevSuite reserves the right, including without prior notice, to limit the available quantity of or discontinue making available any Service; to impose conditions on the honoring of any coupon, discount, or similar promotion; to bar any user from making any transaction; to alter the payment option for Services; and to refuse to provide any user with any Services.
The Services, including the text, graphics, images, photographs, videos, audio, user interface, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by BevSuite or our licensors and are protected under both United States and foreign laws. Except as explicitly stated in these Terms, all rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms (including Sections 5 and 6), you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your Permitted Use. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Except as expressly provided in these Terms, you are prohibited from copying, reproducing, modifying, distributing, displaying, performing or transmitting any of the contents of the Services for any purposes, and nothing otherwise stated or implied in the Services confers on you any license or right to do so.
The BevSuite name and key trademarks and our company name, trade name, product packaging and designs, logos, Software or service names, slogans, and the look and feel of the Services are (collectively “Trademarks”) of BevSuite and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, software names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by tradename, Trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us. Unauthorized use of theBevSuite Trademarks or any other such trademarks, including reproduction, imitation, dilution or confusing or misleading uses, is prohibited under the trademark laws of the United States and other countries. You are expressly prohibited from using or misusing any Trademarks, except as expressly provided in these Terms, and nothing otherwise stated or implied in the Services confers on you any license or right to do so.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about BevSuite or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback, or Services, or to improve or develop new Software, products, services, or the Services in BevSuite’s sole discretion. BevSuite will exclusively own all improvements to BevSuite services based on any Feedback. You understand that BevSuite may treat Feedback as nonconfidential.
(a) OurPolicy. In accordance with the Digital Millennium Copyright Act(“DMCA”) and other applicable law, we have adopted a policy of terminating, inappropriate circumstances, the Services of users who repeatedly infringe the intellectual property rights of others (our "DMCA Policy").
(b) Reporting Claims of Copyright Infringement. Ifyou believe that any content on our Services infringe any copyright that you own or control, you may notify BevSuite’s designated agent (your notification, a “DMCA Notice”) as follows:
Designated Agent: BevSuite Inc.
1043 Garland Avenue
Unit C #984
San Jose, CA 95126
Email Address: email@example.com
Please see Section 512(c)(3) ofthe DMCA for the requirements of a proper notification. If you fail to complywith all of the requirements of Section 512(c)(3) ofthe DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to BevSuite for certain costs and damages.
(a) Our Services rely on or interoperate with third-party products, software, hardware, technology, data, platforms, and services, including, without limitation, data storage services, communications technologies, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (a) the use and availabilityof the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
(b) Specifically, certain items of independent, third-party code may be utilized in connection with the Services that may be subject to open-source licenses (“Open-Source Software”). The Open-Source Software is licensed to us under the terms of the license that accompanies such Open-Source Software and may be licensed to you under the terms of the same license or through other terms. Nothing in the Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open-Source Software.
(c) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
(d) We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers ofsuch Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
(e) We may provide Third-Party Content related to alcohol beverages, including, but not limited to, critic scores and review notes. By agreeing to these Terms you assert that you are authorized to use this content for commercial purposes.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless BevSuite and our subsidiaries and affiliates, and each of our respective officers, directors, agents, partners, and employees (individually and collectively, the “BevSuite Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Losses”) arising out of or related to (a) your access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights);or (e) your conduct in connection with the Services. You will promptly notify BevSuite Parties of any third-party Losses, cooperate with BevSuite Parties in defending such Losses, and pay all fees, costs, and expenses associated with defending such Losses (including reasonable attorneys' fees). The BevSuite Parties will have control of the defense or settlement, at BevSuite's sole option, of any third-party Losses. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and BevSuite or the other BevSuite Parties.
Your use of our Services and any content or materials provided therein or therewith(including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. BevSuite disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, BevSuite does not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While BevSuite attempts to make your use of our Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of BevSuite, BevSuite Parties, and BevSuite’s respective shareholders, affiliates, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
(a) To the fullest extent permitted by applicable law, BevSuite and the other BevSuite Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, strict liability, warranty, or otherwise—for any indirect, consequential, exemplary, incidental, punitive, or special damages or lost profits, even if BevSuite or the other BevSuite Parties have been advised of the possibility of such damages.
(b) The total liability of BevSuite and the other BevSuite Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the amount paid by you to use our Services giving rise to the claim.
(c) The limitations set forth in this Section 16 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of BevSuite or the other BevSuite Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release BevSuite and the other BevSuite Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of orrelated to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND BEVSUITE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND BEVSUITE FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND BEVSUITE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. BEVSUITE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATIONON ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against BevSuite, that BevSuite has against you or that you have, or BevSuite has, arising from or relating to these Terms, our Services, or any aspect of the relationship between you and BevSuite as relates to these Terms, our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and BevSuite agree to attempt to first resolve the Claim informally via the following process;
· Ifyou assert a Claim against BevSuite, you will first contact BevSuite by sending a written notice of your Claim (“Claimant Notice”) to BevSuite by certified mail addressed to BevSuite Inc. 1043 Garland Avenue Unit C #984 San Jose, CA 95126 or by email to firstname.lastname@example.org. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
· If BevSuite asserts a Claim against you, BevSuite will first contact you by sending a written notice of BevSuite’s Claim (“BevSuite Notice”), and each of a Claimant Notice and BevSuite Notice, a (“Notice”) to you via email to the primary email address associated with your account. The BevSuite Notice must(i) include the name of a BevSuite contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii)set forth the specific relief sought.
· If you and BevSuite cannot reach an agreement to resolve the Claim within thirty(30) days after you or BevSuite receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or BevSuite first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
(b) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or BevSuite Including any disputes in which you or BevSuite seek injunctive or other equitable relief for the alleged unlawful use of your or BevSuite’s intellectual property or other infringement of your or BevSuite’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 18(a)will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(c) Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section 18 will be substantively and procedurally governed by the Federal Arbitration Act (the “FAA”), 9U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
(d) Arbitration Procedure (Businesses). All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator.
(e) If you are NOT a “Consumer” (as defined above), you are a “Business” and the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and BevSuite:
· YOU AND BEVSUITE AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND BEVSUITE ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against c or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
· Any in-person appearances will be held in County of San Francisco, California.
· You and BevSuite agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and BevSuite agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
· The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
(f) One Year to Assert Claims. To the extent permitted by law, any Claim by you or BevSuite relating in any way to these Terms, our Services, or any aspect of the relationship between you and BevSuite as relates to these Terms or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and BevSuite will not have the right to assert the Claim.
(g) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at email@example.com or by certified mail addressed to BevSuite Inc. 1043 Garland Avenue Unit C #984 San Jose, CA 95126. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 19.
(h) Rejection of Future Arbitration Clauses. You may reject any change we make to Section 18(except address changes) by personally signing and sending us notice within 30 days of the change via email at firstname.lastname@example.org or by certified mail addressed to BevSuite Inc. 1043 Garland Avenue Unit C #984 San Jose, CA 95126. If you do, the most recent version of Section 18 before the change you rejected will apply.
(i) Severability. If any portion of this Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 18 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 18; and(iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 18 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 18 will be enforceable.
(j) Notwithstanding anything to the contrary inthe Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 18 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
Any Claims will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 18, then the state and federal courts located in the County of San Francisco, California, will have exclusive jurisdiction. You and BevSuite waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify,or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by BevSuite in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services.
If any portion of these Terms other than Section 18 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or aresident or a national of, any country subject to a U.S. government embargo orother restriction, or that has been designated by the U.S. government as a“terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
(a) BevSuite’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
(b) If you have a question or complaint regarding the Services, please send an emailto email@example.com. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1(800) 952-5210.