Updated April 3, 2020
THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) GOVERN YOUR USE OF THE APPLICATION SERVICES (AS DEFINED BELOW) OF DRANK, LLC. (“DRANK”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE DRANK’S APPLICATION SERVICES. BY ACCEPTING THESE TERMS BELOW OR BY USING DRANK’S APPLICATION SERVICES IN ANY MANNER, YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE APPLICATION SERVICES (“EFFECTIVE DATE”).
1. USE OF THE APPLICATION SERVICES
1.1 Use of Application Services. Subject to the terms of this Agreement, Drank grants to Customer a limited, non-exclusive, non-transferable right to access and use the Application Services solely for Customer’s internal business purposes and not for resale or further distribution. Customer’s right to access and use the Application Services shall be limited to the Subscription Plan for the Application Services purchased by Customer and all terms and conditions herein. Except for the rights expressly granted to Customer in this Agreement, Drank and its licensors retain all right, title and interest in and to the Application Services, including all related rights protected by applicable intellectual property laws, including U.S. copyright law, trade secret, and international treaties.
1.2 Authorized Users. Subject to the limits of the Subscription Plan, Customer may allow its Authorized Users to access and use the Application Services; provided Customer shall be responsible for its Authorized Users in compliance with Customer’s obligations under the terms of the Agreement.
“Application Services” shall mean the online, web-based, and mobile-based applications provided by Drank through a Drank Site, ordered by Customer’s selection and acceptance of a Subscription Plan by means of (i) the online purchasing process on a website operated by Drank or its Affiliates or (ii) an executed Order Form. “Authorized User” means any individual provided with access to the Application Services by Customer. A “Subscription Plan” shall mean a specified pricing plan and term length with associated features, functionality and volume tiers for the Application Services purchased by Customer. An “Order Form” shall mean an ordering document for the Application Services, including without limitation statements of work, signed by both parties and incorporating the terms of this Agreement by reference. An “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of fifty percent (50%) or more of the voting equity securities or other equivalent voting interests of the entity. “Drank Site” shall mean https://dranktab.com or other designated websites or IP addresses for mobile applications communicated to Customer by Drank.
1.3 Subscription Plans.
1.3.1 The Application Services are provided through existing and legacy Subscription Plans. For all Subscription Plans: a “Mobile Order” shall mean an online transaction for a physical drink, food, or other product that is stored and sold by the Application Services; a “User Profile” shall mean a consumer of Drank App, who can purchase physical goods on Drank’s digital platform, that is stored by the Application Services; and a “Partner” shall mean a bar, brewery, pub, or applicable business that is authorized by Drank to sell product via the Application Services.
A. Mobile Order Service. Drank’s real time mobile order service assists Customer in employing a digital transaction with respect to internet commerce transactions (“Transaction”) from Customer’s consumers (“Users”) who are utilizing any of ACH, credit, charge and debit cards (“Cards”), together with Stripe, Apple Pay, Google Checkout and other commercially available offerings, as methods of payment (collectively, “Payment Methods”) by tracking all transaction information on our platform via our ledger. The Mobile Order Service shall include the following features:
Real time mobile orders on Android & iOS devices. Drank will leverage its mobile wallet and potential third parties (eg: Stripe) to enable users to load money onto the platform, and distribute funds to Customer. Drank will take a 2.9% commission fee plus thirty (30) cents on the total amount of each user’s daily tab per Partner location. Drank will then do a revenue share with Customer every night, with Drank’s extensive secure database containing Transaction Data (as hereinafter defined) and the provision by Drank to Customer of an electronic report relating to the itemized list of all transactions.
Real-time, online menus for e-commerce.
Artificial Intelligence (A.I.) recommendations based on the User’s taste palette. Users can rate beers from 1-5 stars after purchase, and this rating combined with beer descriptions will power the algorithm.
Partner application (“Drank for Business”) to edit profile and beer lists. Financial data, including payment history, and certain administrative features, will be available on the Application Service.
Drank reserves the right to make changes to the all Application Services from time to time.
B. Table Order Service. This real time table service allows mobile orders for table orders, including, table number, itemized list of all table orders, and administrative features on the “Drank for Business” application service. The Table Order Service is available for an additional cost from the base platform, and will provide the same features as the Mobile Order Service and share the same commission fee on all transactions, without requiring the User to walk up to the bar.
1.3.2 Free Services. Drank offers free Subscription Plans for no fees, but which have limited features, functionality, and volume tiers for the Application Services. Drank may modify the free Subscription Plans at any time in its sole discretion or even discontinue them entirely without prior notice to Customer.
1.3.3 Legacy Services. From time to time Drank will cease to offer certain Subscription Plans. Drank shall use commercially reasonable efforts to support such legacy Subscription Plans until the end of the term during which the Subscription Plan is deprecated or as otherwise terminated. Notwithstanding the foregoing, Drank reserves the right to discontinue supporting legacy Subscription Plans at any time without prior notice.
1.4 Add-On Fees. In the event Customer’s use of the Application Services includes additional services like Table Orders, Drank will immediately charge additional fees (“Add-On Fees”) at the unit price applicable to Customer’s selected Add-On feature. Drank reserves the right to change pricing of all services and features.
1.5 Modifications. Subject to pricing terms agreed in an Order Form, Drank may modify the pricing of its services at any time and add new services or pricing plans for additional fees and charges, or amend fees and charges for existing services, at any time and in its sole discretion without prior notice to Customer. Upon written notice, Drank may increase the fees of the services in a forthcoming term of the Subscription Plan by up to five percent for like services.
2. ACCESS TO THE APPLICATION SERVICES
2.1 Restrictions. Customer shall use the Application Services only in compliance with all applicable laws, including any applicable data protection and privacy laws, and the terms of this Agreement. Customer shall not and shall not permit or authorize any third party to: (i) copy, rent, sell, lease, sublicense, distribute, assign, or otherwise transfer or encumber rights to the Application Services, or use the Application Services for the benefit of any third party, or make the Application Services available to anyone other than its Authorized Users; (ii) use the Application Services to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws, or to process, send or store Prohibited Information, infringing or unlawful material, viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (iii) circumvent or disable any digital rights management, usage rules, or other security features of the Application Services, or otherwise attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Application Services or the data contained therein; (iv) modify, copy, translate, enhance, decompile, disassemble, reverse engineer or create derivative works based on the Application Services, or any portion thereof; (v) access or use the Application Services for the purpose of building a competitive product or service or copying its features or user interface; (vi) remove, alter, or obscure any copyright, trademark or other proprietary notices appearing in or on the Application Services; or (vi) use the Application Services in a manner that overburdens, or that threatens the integrity, performance, or availability of, the Application Services.
“Prohibited Information” shall mean (a) information under regulatory or contractual handling requirements (e.g., Payment Card Industry Data Security Standards), including, but without limitation, financial account numbers, debit or credit card information, magnetic stripe data, or card verification values; (b) government issued personal identifiers, including, but without limitation, driver’s license numbers, passport numbers, or other state issued identification numbers; (c) bio-metric identifiers, including without limitation, genetic data, iris scans, thumb or finger prints, cardiac rhythm identifiers, facial modeling data, or health data; (d) personally identifiable information collected from children under the age of 13 or from online services directed toward children; (e) real time geo-location data which can track or identify an individual’s precise movements; (f) passwords, authentication/authorization credentials, business secrets deemed highly confidential (e.g., highly-confidential business strategies and communications, sensitive attorney-client privileged and confidential communications); export-controlled information for which Customer has not obtained all required export licenses or government approvals; or (h) other information the unauthorized disclosure of which could cause material, severe, or catastrophic harm or impact to any data subjects or third parties.
2.2 Maintenance. Drank does not guarantee the maintenance or continued function of, and Drank reserves the right to change, discontinue, delete or deprecate, at any time and at Drank’s sole discretion, any product feature, support service and any custom report template that may be made available to or accessible by Customer, including through the Application Services. Custom reports could include, but are not limited to, order history, unidentifiable user information, or other reports customized for Customer’s use.
2.3 Excess Burden. Drank reserves the right to restrict, suspend, or terminate access to the Application Services at any time, if in Drank’s sole determination, Customer is using the Application Services in a manner that violates applicable laws or the terms of this Agreement, fails to make payment to Drank, or creates an Excess Burden on Drank’s systems. “Excess Burden” means the Application Services are being used to engage in denial of service attacks, spamming, or any illegal activity, or use of Application Services is causing immediate, material and ongoing harm to Drank or Drank’s other customers.
2.4 Beta Services. From time to time, Drank may make Beta Services available to Customer at no charge. Customer may choose to utilize such Beta Services in Customer’s sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms and fees that may be presented to Customer. Beta Services are provided on an “as-is” and “as available” basis without any warranty, support, maintenance, storage, service-level agreement or indemnity obligation of any kind and so, are not considered “Application Services” hereunder, even if displayed in the user interface; however, all restrictions herein, Drank’s reservation of rights and Customer’s obligations concerning the Application Services shall apply equally to Customer’s use of Beta Services. Drank may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Drank will have no liability for any harm or damage arising out of or in connection with a Beta Service. “Beta Services” means a product, service or functionality provided by Drank that may be made available to Customer to try at Customer’s option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Beta Services may be considered Confidential Information of Drank, if so denoted or communicated by Drank to Customer. Customer will not disclose (including, but not limited to, in a press release or public statement) any information about, involving or regarding Beta Services (including the existence of), except as agreed by Drank in writing.
3. PAYMENT TERMS
3.1 Billing Terms. Subscription Plans are billed in advance of their respective terms and automatically renew at the end of their respective terms for an equivalent term, or as otherwise stated in the Order Form, unless Customer chooses not to renew such plan by writing to Drank at firstname.lastname@example.org or Drank terminates the Agreement. Fees paid hereunder, including A La Carte Fees, are non-refundable and shall be billed in U.S. Dollars. Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer’s credit card or bank account and Customer authorizes the card issuer or bank to pay all such amounts and authorizes Drank (or its billing agent) to charge the credit card or bank account until the Application Services are terminated as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay.
3.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on Drank’s net income or property), and any related penalties and interest. Customer will make all required payments to Drank free and clear of, and without reduction for, any withholding taxes. Customer will, upon Drank’s request, provide Drank with official receipts issued by appropriate taxing authorities, or such other evidence as Drank may reasonably request, to establish that such Taxes have been paid.
3.3 Credits. Drank may, at its sole discretion, choose to offer credits for the Application Services, including discount codes or promotional campaigns. Credits are non-transferable and do not have any monetary or cash value. Any credits can only be used to offset fees per the terms and conditions expressly identified by Drank and, unless otherwise stated by Drank, shall no longer be redeemable ninety (90) days from the date of issuance.
3.4 Failure of Payment. If Customer fails to pay fees within five business days of notice of delinquent payments, in addition to other available remedies, Drank reserves the right to suspend or terminate access to the Application Services and delete the Customer Content (as defined below).
4.PRIVACY AND INFORMATION SECURITY
4.1 Data Privacy Addenda. To the extent Customer Content that includes Personal Information is sent by Customer through the Application Services and Customer’s use of the Application Services involves transferring Personal Information outside the European Economic Area or Switzerland to any country not deemed by the European Commission as providing an adequate level of protection for personal data, the terms of the Data Processing Addendum found at https://dranktab.com/dpa/ shall apply to such Personal Information and be incorporated into the Agreement. To the extent Customer Content includes Personal Information derived from California residents or consumers, the terms of Drank’s California Data Privacy Addendum found at https://dranktab.com/legal/cdpa/ shall apply to such Personal Information and be incorporated into the Agreement. Under no circumstances will Drank be deemed a “data controller” or a “business” with respect to Customer Content under the Regulation EU 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation”), the California Consumer Privacy Act of 2018, or any relevant or replacement law or regulation. “Personal Information” means any Customer Content processed by Drank pursuant to the Agreement, relating to an identified or identifiable natural person or household; where an “identifiable natural person” means an individual who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to the individual’s physical, physiological, mental, economic, cultural or social identity.
4.2 Hosting and Processing. Customer Content is hosted and stored by Drank or its service providers in the United States or elsewhere as otherwise agreed to by Customer. In providing the Application Services, Drank or its service providers may process Customer Content, including, without limitation, any associated Personal Information, within the European Economic Area, the United States and in other countries and territories.
4.3 Compliance with Laws. Customer agrees to comply with all applicable privacy, data protection, and consumer protection laws and regulations in connection with Customer’s use of the Application Services, including without limitation requirements of proper notice and consent to send Personal Information to the Application Services and compliance with the General Data Protection Regulation.
4.4 Customer Content Rights. Drank does not sell, lease, rent or otherwise share for consideration Customer Content. Drank will share Customer Content only under the following circumstances:
(i) With select service providers who perform work on Drank’s behalf to provide the Application Services;
(ii) To the extent needed to comply with laws or to respond to lawful requests and legal processes (provided that Drank will endeavor to notify Customer if Drank has received a lawful request for Customer Content);
(iii) To protect the rights and property of Drank, its agents, other Drank customers, and others, including, but not limited to, enforcing Drank’s agreements, policies, and this Agreement;
(iv) In an emergency, including to protect Drank’s information security or the personal safety of any person;
(v) In connection with a sale or transfer of all or a part of Drank’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or
(vi) As directed by Customer, including through its use of the Application Services.
Drank stores, uses and accesses Customer Content for the limited purposes of: (a) performing Drank’s obligations under this Agreement and any applicable Order Form; (b) responding to service issues and requests for support; (c) complying with Customer’s instructions; and (d) maintaining and improving the Application Services. Drank may also use Customer Content in a de-identified and aggregated form (“Aggregated Data”) for Drank’s own business purposes, including use, duplication, modification, and creation of derivative works regarding usage and performance of Aggregated Data. Aggregated Data does not directly or indirectly identify Customer, End Users, or individual data subjects. Drank shall own all right, title and interest to the Aggregated Data and any derivative works thereof.
4.5 Customer Content Deletion. Drank provides Customer with access to Customer Content and the ability to delete Customer Content upon request. Upon cessation or termination of Drank’s relationship with Customer, Drank has no obligation to maintain or provide any Customer Content and will promptly delete or destroy Customer Content no longer in active use unless prohibited by law.
4.6 Security. Drank will maintain appropriate physical, technical and organizational controls designed to safeguard Customer Content within its cloud storage from unauthorized access, use or disclosure. These will include measures designed to store Customer Content on servers located in a physically secured location; and the use of firewalls, access controls and similar security technologies designed to protect Customer Content from unauthorized disclosure. Drank takes no responsibility and assumes no liability for any Customer Content other than its express security obligations in this section.
4.7 Password Security. Certain parts of the Application Services, including account management features, may be password-restricted to registered users or other authorized persons (“Password-Protected Areas”). If Customer is authorized to gain access to any Password-Protected Areas, Customer agrees that Customer is entirely responsible for maintaining the confidentiality of Customer’s password, and agrees to notify Drank if the password is lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Customer agrees that Customer is entirely responsible for any and all activities that occur under Customer’s account, whether or not Customer undertakes such activities. Customer agrees to immediately notify Drank of any unauthorized use of Customer’s account or any other breach of security in relation to Customer’s password or the Application Services that is known to Customer.
4.8 Privacy Statement. Drank’s tracking and use of information collected about Customer on Drank Sites are governed by the Drank Privacy Statement, available at https://dranktab.com/privacy-policy/. The Drank Privacy Statement does not cover information Drank processes on Customer’s behalf in the performance of the Application Services and it shall be Customer’s obligation to provide Customer’s own privacy statement or notice to its End Users. In addition, Drank may collect registration and other information about Customer as Drank’s customer through Drank Sites.
5. THIRD-PARTY SERVICES
The Application Services or Documentation may display, contain links to, or connect with third-party products, services, and websites (collectively, “Third-Party Services”). Any statements, services, offers, or other information that constitutes part of the Third-Party Services made available by other users or other third parties on the Application Services or Drank Sites, or which are accessible through or may be located using the Application Services are those of the respective authors or producers and not of Drank or its stockholders, directors, officers, employees, agents, or representatives. Drank does not control Third-Party Services and does not guarantee the accuracy, integrity or quality of such Third-Party Services. Third-Party Services are governed solely by the terms and conditions of those Third-Party Services and Drank is not responsible for the performance of and does not endorse any Third-Party Services or any information or materials advertised in any Third-Party Services. Drank is not responsible or liable, directly or indirectly, for any damage or loss caused to Customer by Customer’s use of or reliance on any Third-Party Services. It is Customer’s responsibility to evaluate the information, opinion, advice, or other services available on and through the Application Services.
Drank does not provide the equipment required to access the Application Services. Customer is responsible for all fees charged by third parties related to Customer’s access and use of the Application Services (e.g., charges by Internet service providers).
6. PROFESSIONAL SERVICES
6.1 Scope. If, and only if, Customer purchases professional services through an Order Form (“Professional Services”), then the terms and conditions of this Section shall additionally apply. The Professional Services primarily involve supporting the implementation of Drank’s partner application (“Drank for Business”) into Customer’s bar or physical premises and integration of Customer Content with and into the Application Services.
6.2 Assistance. Drank and Customer agree to cooperate in good faith to achieve satisfactory completion of the Professional Services in a professional manner. Customer agrees to provide, at no cost to Drank, timely and adequate assistance and other resources reasonably requested by Drank to enable the performance of the Professional Services (collectively, “Assistance”). Neither Drank nor its subcontractors will be liable for any deficiency in performance of Professional Services to the extent resulting from any acts or omissions of Customer, including, but not limited to, Customer’s failure to provide Assistance as required hereunder.
6.3 Professional Services Personnel. In performing the Professional Services, Drank will provide such resources, and utilize employees, service providers or subcontractors (“Professional Services Personnel”) as it deems necessary to perform the Professional Services or any portion thereof. Drank may replace Professional Services Personnel in its normal course of business or subcontract the Professional Services, provided that Drank shall remain responsible for the performance of Professional Services.
6.4 Change Order. The Professional Services may only be changed through a change order mutually executed by the parties (“Change Order”), which may entitle Drank to an adjustment in fees pursuant to the changes reflected in the Change Order. Drank shall not be obligated to perform any differing or additional Professional Services unless the parties have executed a Change Order.
6.5 Expenses. At Drank’s request, Customer shall reimburse Drank for any reasonable expenses for travel, lodging, communications, shipping charges and out-of-pocket expenses, including change fees to travel and accommodations resulting from Drank providing the Professional Services (“Expenses”). Drank will provide reasonable documentation for all Expenses as requested by Customer. Customer shall reimburse Drank for Expenses in the month after they are incurred in accordance with the payment terms in the Order Form.
6.6 Warranties. Drank hereby represents and warrants that the Professional Services shall be performed in a timely and professional manner by Drank and its Professional Services Personnel, consistent with generally-accepted industry standards; provided that Customer’s sole and exclusive remedy for any breach of this warranty will be, at Drank’s option, reperformance of the Professional Services.
6.7 Work Product. Excluding Customer Confidential Information and Customer Content, Drank shall own all rights, title and interest in any reports, presentations and other materials or results generated as a result of the Professional Services (“Work Product”), including all intellectual property rights therein. In the event that any Work Product is held to be owned by the Customer, Customer hereby assigns to Drank all right, title and interest therein or, to the extent such assignment is not permitted or effective, hereby grants to Drank a perpetual, irrevocable, exclusive, worldwide, fully-paid, sub-licensable (through multiple layers), assignable license to any such Work Product. Subject to this Agreement, Drank shall grant to Customer a non-exclusive, non-transferable, non-sub-licensable license to use the Work Product solely for Customer’s internal business purposes in connection with Customer’s authorized use of the Application Services.
7. TRADEMARKS AND PUBLICITY
7.1 Drank Trademark. “Drank,” the Drank logo, and any other product or service name or slogan displayed on the Application Services are trademarks of Drank, LLC. or its Affiliates, and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Drank or the applicable trademark holder. Customer shall not use any metatags or any other “hidden text” utilizing “Drank” or any other name, trademark or product or service name of Drank without prior written permission. In addition, the look and feel of the Application Services, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of Drank and may not be copied, imitated or used, in whole or in part, without prior written permission. All other trademarks, registered trademarks, product names and company names or logos that appear in the Application Services are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by Drank.
7.2 Publicity. Customer agrees to allow Drank, and hereby does provide Drank with the necessary rights and licenses, to use Customer’s name and logo on the Drank Sites, blog and/or in marketing materials, including case studies and as press references, to identify Customer as a customer of Drank. Customer agrees to act as a customer reference for the Application Services and Customer agrees to respond reasonably to all such reference contacts.
8. CONFIDENTIAL INFORMATION; FEEDBACK
8.1 Confidential Information. “Confidential Information” shall mean all written or oral information, disclosed by either party to the other, related to the operations of either party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and will remain the sole property of the disclosing party or such third party. Notwithstanding the foregoing, the provisions of Sections 8.1 and 8.2 will not apply to information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure by the disclosing party; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (a) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that, to the extent permitted by law, the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (b) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.
8.2 Use of Confidential Information. Each party agrees as follows: (i) to use Confidential Information disclosed by the other party only for the purposes described herein; (ii) that such party will not reproduce Confidential Information disclosed by the other party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party, other than to perform its obligations under this Agreement; (iii) to restrict access to the Confidential Information disclosed by the other party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (iv) to the extent practicable, return or destroy all Confidential Information disclosed by the other party that is in its possession upon termination or expiration of this Agreement, upon request of the other party.
8.3 Feedback. If Customer or its Authorized Users provide Drank any suggestions, recommendations, or other feedback relating to Drank’s current or future products or services, including Beta Services (“Feedback”),
Drank shall have the right to use the Feedback in any manner, including, but not limited to future enhancements and modifications to the Application Services. Customer hereby grants to Drank and its assigns a perpetual, worldwide, fully transferable, sublicensable, fully paid-up, irrevocable, royalty free license to use, reproduce, modify, create derivative works from, distribute, and display the Feedback in any manner and for any purpose, in any media, software, or technology of any kind now existing or developed in the future, without any obligation to provide attribution or compensation to Customer or any third party. In addition, Drank shall be free to reuse all general knowledge, experience, know-how, works and technologies (including ideas, concepts, processes and techniques) related to or acquired during provision of the Application Services and Professional Services.
9. WARRANTIES; DISCLAIMER OF WARRANTIES
9.1 Application Services. Drank warrants to Customer that the Application Services will perform materially in accordance with the Documentation. Drank’s sole liability and Customer’s exclusive right and remedy for a breach of the foregoing warranty is for Drank to correct or re-perform the nonconforming Application Services.
9.2 Customer Content. Customer warrants that it owns or has obtained all necessary rights, title and interest, provided all appropriate notices and obtained all necessary consents, to use the Application Services to sell to End Users and transfer the Customer Content to Drank and its third-party subcontractors for the purpose of processing such Customer Content in accordance with this Agreement.
9.3 Export Compliance. Customer warrants it shall comply with all U.S. export control and economic sanctions laws and regulations as they relate to access to and use of the Application Services. Customer shall not access or use the Application Services if Customer is located in any jurisdiction in which the provision of the Application Services is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Customer shall not provide access to the Application Services to any government, entity or individual located in any Prohibited Jurisdiction. Customer represents, warrants and covenants that (i) Customer is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (ii) Customer is not a national of, or a company registered in, any Prohibited Jurisdiction; (iii) Customer shall not permit its Authorized Users or any agents to access or use the Application Services in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (iv) Customer shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer, its Authorized Users and its agents are located.
9.4 Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, USE OF SERVICES PROVIDED BY DRANK, INCLUDING, BUT NOT LIMITED TO, THE APPLICATION SERVICES, ANY PROFESSIONAL SERVICES AND CUSTOMER SUPPORT SERVICES IS AT CUSTOMER’S SOLE RISK. SUCH SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. DRANK AND ITS SUPPLIERS AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED INDEMNITIES AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. DRANK DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ITS SERVICES, AND CUSTOMER RELIES ON SUCH SERVICES AT CUSTOMER’S OWN RISK. DRANK DOES NOT GUARANTEE THE ACCURACY, USABILITY, COMPLETENESS, OR USEFULNESS OF ANY CUSTOM REPORT, AND CUSTOMER USES CUSTOM REPORTING FEATURES AT CUSTOMER’S OWN RISK. ANY MATERIAL THAT CUSTOMER ACCESSES OR OBTAINS THROUGH DRANK’S SERVICES, INCLUDING CUSTOMER CONTENT, IS DONE AT CUSTOMER’S OWN DISCRETION AND RISK AND CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S COMPUTER OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY MATERIAL THROUGH DRANK’S SERVICES. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM DRANK OR THROUGH OR FROM THE APPLICATION SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY
DRANK AND ITS SUPPLIERS AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF DRANK HAS BEEN ADVISED OF THE POSSIBILITY OF THESE DAMAGES), RESULTING FROM CUSTOMER’S USE OF THE APPLICATION SERVICES OR DRANK’S PROVISION OF ANY OTHER SERVICES. UNDER NO CIRCUMSTANCES WILL THE TOTAL LIABILITY OF DRANK AND ITS SUPPLIERS AND LICENSORS OF ALL KINDS ARISING OUT OF OR RELATED TO CUSTOMER’S USE OF THE APPLICATION SERVICES (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS) OR DRANK’S PROVISION OF ANY OTHER SERVICES, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EXCEED THE AMOUNTS, IF ANY, THAT CUSTOMER HAS PAID TO DRANK FOR CUSTOMER’S USE OF THE APPLICATION SERVICES FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE CLAIM.
Customer will defend, indemnify and hold harmless Drank, its suppliers and licensors, and its respective subsidiaries, affiliates, officers, agents, employees, representatives, and assigns, from any costs, damages, expenses, and liability caused by Customer’s use of the Application Services, Customer’s violation of this Agreement, Customer Content, or Customer’s violation of any rights of a third party through use of the Application Services.
12.1 Governing Law; Venue. Enforcement of any dispute relating to this Agreement will be governed by the laws of the State of California, excluding its conflict and choice of law principles and the United Nations Convention on the International Sale of Goods. The exclusive jurisdiction and venue for any claims arising out of or related to this Agreement or Customer’s use of the Application Services is in the state and federal courts located in City and County of San Francisco, California, and Customer irrevocably agrees to submit to the jurisdiction of such courts.
12.2 Assignment. Customer may not assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Drank (not to be unreasonably withheld or delayed). Notwithstanding any provision in this Agreement, either party may assign this Agreement in its entirety, without the consent of the other party, to its successor in connection with a merger or acquisition (including by operation of law), corporate reorganization, or sale of all or substantially all of its assets. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.3 Entire Agreement. Subject to an Order Form, this Agreement sets forth the entire agreement and understanding between the parties with respect to its subject matter and supersedes and merges all prior and contemporaneous oral and written agreements, discussions and understandings between the parties with respect to its subject matter. In the event the parties have previously entered into a separate non-disclosure or confidentiality agreement, such agreement is terminated as of the Effective Date of this Agreement. In the event the parties enter into a separate non-disclosure or confidentiality agreement subsequent to the Effective Date, such separate agreement shall not modify, supplement or supersede the terms of this Agreement unless expressly set forth in such subsequent agreement. No terms or conditions set forth on any purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.
12.4 Effect of Termination. The terms and conditions which by their nature are intended to survive termination of this Agreement shall survive, including Restrictions, Disclaimer, Feedback, Indemnity, and Limitation of Liability. This Agreement contains the entire understanding of the parties on the subject matter hereof.
12.5 Government Contractors. If Customer is a U.S. federal government department or agency or contracting on behalf of such department or agency, the Application Services are a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202–1 through 227.7202–4, as applicable, the Application Services are licensed to Customer with only those rights as provided under the terms and conditions of this Agreement.
12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
12.7 Headings. In this Agreement headings are inserted for convenience only and shall not affect the meaning of the text and references to the singular include the plural and vice versa.
12.8 Independent Contractors. In making and performing this Agreement, Customer and Drank act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, joint venture, partnership or employer and employee relationship between them. Except as expressly set forth herein, at no time will either party make commitments or incur any charges or expenses for, or in the name of the other party. Any fees, expenses or other amounts paid by Customer to Drank hereunder shall not be considered salary for pension or wage tax purposes and neither Drank nor its personnel will be entitled to any fringe benefits, including sick or vacation pay, or other supplemental benefits of Customer, unless otherwise required by law.
13. CONTACTING US
All notices to be provided by Drank to Customer under this Agreement may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Customer on any Order Form or (ii) by electronic mail to the electronic mail address provided for Customer’s account owner. If Customer needs to give notice to Drank, Customer must do so in writing by Courier or U.S. mail to 58 West Portal Ave., PMB 710, San Francisco, CA 94127, Attn: Legal Department. All notices shall be deemed to have been given immediately upon delivery if by electronic mail, or, if otherwise delivered, then upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above. If Customer has any questions or concerns about the Application Services or this Agreement, Customer may contact us by email at email@example.com.