By downloading, browsing, accessing or using this Sample Store mobile application (“Barback App”), you agree to be bound by these Terms and Conditions of Use. We reserve the right to amend these terms and conditions at any time. If you disagree with any of these Terms and Conditions of Use, you must immediately discontinue your access to the Mobile Application and your use of the services offered on the Mobile Application. Continued use of the Mobile Application will constitute acceptance of these Terms and Conditions of Use, as may be amended from time to time.
In these Terms and Conditions of Use, the following capitalized terms shall have the following meanings, except where the context otherwise requires:
“Account” means an account created by a User on the Mobile Application as part of Registration
“Register” means to create an Account on the Mobile Application and “Registration” means the act of creating such an Account.
“Samples” means samples of Merchant’s products and/or Merchant’s services, including without limitation, any vouchers for the redemption of such services, and “Sample” means any one of them.
“Services” means all the services provided by Barback App via the Mobile Application to Users, and “Service” means any one of them,
“Users” means users of the Mobile Application, including you and “User” means any one of them.
Applicability of terms and conditions: The use of any Services and/or the Mobile Application and the making of any Redemptions are subject to these Terms and Conditions of Use.
Location: If you access the Mobile Application, use the Services or make any Redemptions, you do so on your own initiative and are responsible for the consequences and for compliance with all applicable laws.
Scope: The Mobile Application, the Services and any Redemptions are for your non-commercial, personal use only and must not be used for business purposes.
Prevention on use: We reserve the right to prevent you using the Mobile Application and the Service (or any part of them) and to prevent you from making any Redemptions.
Equipment and Networks: The provision of the Services and the Mobile Application does not include the provision of a mobile telephone or handheld device or other necessary equipment to access the Mobile Application or the Services or make any Redemptions. To use the Mobile Application or Services or to make Redemptions, you will require Internet connectivity and appropriate telecommunication links. You acknowledge that the terms of agreement with your respective mobile network provider (“Mobile Provider”) will continue to apply when using the Mobile Application. As a result, you may be charged by the Mobile Provider for access to network connection services for the duration of the connection while accessing the Mobile Application or any such third party charges as may arise. You accept responsibility for any such charges that arise.
Permission to use Mobile Application: If you are not the bill payer for the mobile telephone or handheld device being used to access the Mobile Application, you will be assumed to have received permission from the bill payer for using the Mobile Application.
License to Use Material: By submitting any text or images (including photographs) (“Material”) via the Application, you represent that you are the owner of the Material, or have proper authorization from the owner of the Material to use, reproduce and distribute it. You hereby grant us a worldwide, royalty-free, non-exclusive license to use the Material to promote any products or services.
You agree to receive pre-programmed notifications (“Location Alerts”) on the Mobile Application from Merchants if you have turned on locational services on your mobile telephone or other handheld devices (as the case may be).
Accurate information: You warrant that all information provided on Registration and contained as part of your Account is true, complete and accurate and that you will promptly inform us of any changes to such information by updating the information in your Account.
Content on the Mobile Application and Service: It is your responsibility to ensure that any products, Samples or information available through the Mobile Application or the Services meet your specific requirements before making any Redemption.
Prohibitions in relation to usage of Services or Mobile Application: Without limitation, you undertake not to use or permit anyone else to use the Services or Mobile Application:-
To send or receive any material which is not civil or tasteful
To send or receive any material which is threatening, grossly offensive, of an indecent, obscene or menacing character, blasphemous or defamatory of any person, in contempt of court or in breach of confidence, copyright, rights of personality, publicity or privacy or any other third party rights;
To send or receive any material for which you have not obtained all necessary licenses and/or approvals (from us or third parties); or which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in any country in the world;
To send or receive any material which is technically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data);
To cause annoyance, inconvenience or needless anxiety;
To intercept or attempt to intercept any communications transmitted by way of a telecommunications system;
For a purpose other than which we have designed them or intended them to be used;
For any fraudulent purpose;
Other than in conformance with accepted Internet practices and practices of any connected networks;
In any way which is calculated to incite hatred against any ethnic, religious or any other minority or is otherwise calculated to adversely affect any individual, group or entity; or
In such a way as to, or commit any act that would or does, impose an unreasonable or disproportionately large load on our infrastructure.
Prohibitions in relation to usage of Services, Mobile Application: Without limitation, you further undertake not to or permit anyone else to:-
Furnish false data including false names, addresses and contact details and fraudulently use credit/debit card numbers;
Attempt to circumvent our security or network including to access data not intended for you, log into a server or account you are not expressly authorized to access, or probe the security of other networks (such as running a port scan);
Execute any form of network monitoring which will intercept data not intended for you;
Enter into fraudulent interactions or transactions with us or a Merchant (including interacting or transacting purportedly on behalf of a third party where you have no authority to bind that third party or you are pretending to be a third party);
Extract data from or hack into the Mobile Application;
Use the Services or Mobile Application in breach of these Terms and Conditions of Use;
Engage in any unlawful activity in connection with the use of the Mobile Application or the Services; or
Engage in any conduct which, in our exclusive reasonable opinion, restricts or inhibits any other customer from properly using or enjoying the Mobile Application or Services.
If you use (or anyone other than you, with your permission uses) the Mobile Application, any Services in contravention of these Terms and Conditions of Use, we may suspend your use of the Services and/or Mobile Application.
If we suspend the Services or Mobile Application, we may refuse to restore the Services or Mobile Application for your use until we receive an assurance from you, in a form we deem acceptable, that there will be no further breach of the provisions of these Terms and Conditions of Use.
Without limitation to anything else in this Clause 8, we shall be entitled immediately or at any time (in whole or in part) to:
(a) suspend the Services and/or Mobile Application;
(b) suspend your use of the Services and/or Mobile Application; and/or
(c) suspend the use of the Services and/or Mobile
Application for persons we believe to be connected (in whatever manner) to you, if:
We suspect, on reasonable grounds, that you have, might or will commit a breach of these Terms and Conditions of Use; or
We suspect, on reasonable grounds, that you may have committed or be committing any fraud against us or any person.
Our rights under this Clause 8 shall not prejudice any other right or remedy we may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.
Our rights under this Clause 8 shall not prejudice any other right or remedy we may have in respect of any breach or any rights, obligations or liabilities accrued prior to termination.
The Mobile Application, the Services, the information on the Mobile Application and use of all related facilities are provided on an “as is, as available” basis without any warranties whether express or implied.
To the fullest extent permitted by applicable law, we disclaim all representations and warranties relating to the Mobile Application and its contents, including in relation to any inaccuracies or omissions in the Mobile Application, warranties of merchantability, quality, fitness for a particular purpose, accuracy, availability, non-infringement or implied warranties from course of dealing or usage of trade.
We do not warrant that the Mobile Application will always be accessible, uninterrupted, timely, secure, error free or free from computer virus or other invasive or damaging code or that the Mobile Application will not be affected by any acts of God or other force majeure events, including inability to obtain or shortage of necessary materials, equipment facilities, power or telecommunications, lack of telecommunications equipment or facilities and failure of information technology or telecommunications equipment or facilities.
While we may use reasonable efforts to include accurate and up-to-date information on the Mobile Application, we make no warranties or representations as to its accuracy, timeliness or completeness.
We shall not be liable for any acts or omissions of any third parties howsoever caused, and for any direct, indirect, incidental, special, consequential or punitive damages, howsoever caused, resulting from or in connection with the mobile application and the services offered in the mobile application, your access to, use of or inability to use the mobile application or the services offered in the mobile application, reliance on or downloading from the mobile application and/or services, or any delays, inaccuracies in the information or in its transmission including but not limited to damages for loss of business or profits, use, data or other intangible, even if we have been advised of the possibility of such damages.
We shall not be liable in contract, tort (including negligence or breach of statutory duty) or otherwise howsoever and whatever the cause thereof, for any indirect, consequential, collateral, special or incidental loss or damage suffered or incurred by you in connection with the Mobile Application and these Terms and Conditions of Use. For the purposes of these Terms and Conditions of Use, indirect or consequential loss or damage includes, without limitation, loss of revenue, profits, anticipated savings or business, loss of data or goodwill, loss of use or value of any equipment including software, claims of third parties, and all associated and incidental costs and expenses.
The above exclusions and limitations apply only to the extent permitted by law. None of your statutory rights as a consumer that cannot be excluded or limited are affected.
Notwithstanding our efforts to ensure that our system is secure, you acknowledge that all electronic data transfers are potentially susceptible to interception by others. We cannot, and do not, warrant that data transfers pursuant to the Mobile Application, or electronic mail transmitted to and from us, will not be monitored or read by others.
1. By You. You will defend, indemnify and hold harmless Barback App and its affiliates, and their respective directors, officers, agents, licensors, and other partners and employees from and against any third-party claim arising from or in any way related to your Website, your use of the Services, or your breach of any obligation herein, including any liability or expense arising from all claims, losses, damages (actual and consequential), suits, judgments, litigation costs and attorneys’ fees, of every kind and nature.
2. By Barback App. In the event any infringement claim, action or allegation is brought or threatened against Barback App, we may, at our sole option and expense: (i) procure for you the right to continue use of the Services or infringing part thereof; (ii) modify or amend the Services or infringing part thereof, or replace the Services or infringing part thereof with similar functionality; or (iii) if neither of the preceding is commercially practicable terminate the Agreement and the licenses granted herein.
3. Exclusions. This indemnification obligation will not apply if the infringement arises as a result of (i) any use of the Services in a manner other than as specified in this Agreement, (ii) any use of the Services in combination with other products, equipment, devices, systems, or data not supplied by us to the extent such claim is directed against such combination, or (iii) any alteration, modification, or customization of the Services made by any party other than Barback App or our authorized representative if such infringement would not have occurred without such alteration, modification or customization
All editorial content, information, photographs, illustrations, artwork and other graphic materials, and names, logos and trade marks on the Mobile Application are protected by copyright laws and/or other laws and/or international treaties, and belong to us and/or our suppliers, as the case may be. These works, logos, graphics, sounds or images may not be copied, reproduced, retransmitted, distributed, disseminated, sold, published, broadcasted or circulated whether in whole or in part, unless expressly permitted by us and/or our suppliers, as the case may be.
Nothing contained on the Mobile Application should be construed as granting by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Mobile Application without our written permission. Misuse of any trademarks or any other content displayed on the Mobile Application is prohibited.
We will not hesitate to take legal action against any unauthorized usage of our trademarks, name or symbols to preserve and protect its rights in the matter. All rights not expressly granted herein are reserved. Other product and company names mentioned herein may also be the trademarks of their respective owners.
We may periodically make changes to the contents of the Mobile Application, including to the descriptions and prices of goods and services advertised, at any time and without notice. We assume no liability or responsibility for any errors or omissions in the content of the Mobile Application.
We reserve the right to amend these Terms and Conditions of Use from time to time without notice. The revised Terms and Conditions of Use will be posted on the Mobile Application and shall take effect from the date of such posting. You are advised to review these terms and conditions periodically as they are binding upon you.
GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY WAIVER
1. Governing Law. You agree that:
(i) the Services shall be deemed solely based in Florida; and
(ii) the Services shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Florida. This Agreement shall be governed by the internal substantive laws of the State of Florida, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Florid for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Florida is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
2. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM Barback App. For any dispute with Barback App, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that Barback App has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration. The arbitration will be conducted in state of Florida, unless you and Barback App agree otherwise. Each party will be responsible for paying any arbitration filing, administrative and arbitrator fees in accordance with arbitration rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Barback App from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
3. Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICES FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND Barback App ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND.
1. Entire Agreement; Amendment. This Agreement, including all documents referenced herein, constitutes the entire agreement between you and Barback App and governs your use of the Service. If, through accessing or using the Service, you utilize or obtain any product or service from a third party, you may additionally be subject to such third party’s terms and conditions applicable thereto, and this Agreement will not affect your legal relationship with such third party.
2. Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
3. Assignment. Neither party may assign this Agreement or any of its rights or obligations hereunder, to a third party without the other party’s written consent, except that a party may assign this Agreement without such consent as a consequence of a merger, consolidation, reorganization, or sale of substantially all of its assets or of the business to which this Agreement pertains. Any assignment in violation of the foregoing is null and void. This Agreement inures to the benefit of and is binding upon the parties hereto and their successors and assigns.
4. Waiver. Failure to enforce or a waiver by either party of one default or breach of the other party will not be considered to be a waiver of any subsequent default or breach.
5. Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the parties’ respective addresses, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices to Company shall be sent to firstname.lastname@example.org or to such other address as Barback App designates in writing. Notices to you will be sent to the most recently listed in association with your account on the Services or to such other address as Customer designates in writing. You agree that Barback App may send any privacy or other notices, disclosures, reports, documents, communications and other records regarding the Services (collectively, “Notices”) in electronic form to: (1) the email address that you provided during registration, or (2) by posting the Notice on the Services. The delivery of any Notice is effective when posted to the Services or sent by Barback App (whichever first occurs), regardless of whether you read the Notice when you receive it or whether you actually receive the delivery. You can withdraw your consent to receive Notices electronically by cancelling your account. You must give notice to us in writing via email to email@example.com or another address otherwise expressly provided.
6. Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
7. No Agency. Neither party has the ability to bind the other party to any agreements or other obligations and will not attempt to do so. Barback App and you are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.
8. Remedies. All rights and remedies of the parties, under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies. A party’s breach or threatened breach of any of its covenants or agreements in this Agreement may cause irreparable injury that is inadequately compensable in monetary damages.