Last Updated September 4, 2020
THESE TERMS OF PURCHASE AND SERVICE (“AGREEMENT”) WILL GOVERN YOUR ANNUAL SUBSCRIPTION PURCHASE OF PRVENT AND IS ENTERED INTO BETWEEN BAR CODE GRAPHICS, INC. (“BCG”) AND THE BUSINESS YOU REPRESENT (“CUSTOMER”). THIS AGREEMENT TAKES EFFECT WHEN YOU AGREE TO THE TERMS OF THIS AGREEMENT. YOU MAY SHOW YOUR AGREEMENT TO AND ACCEPTANCE OF THESE TERMS BY EITHER EXECUTING AN ORDER FORM OR STATEMENT OF WORK REFERENCING THIS AGREEMENT, CLICKING THE CHECK BOX LINKING TO THIS AGREEMENT, OR OTHERWISE ACCESSING OR USING THE SERVICES. BCG’S ACCEPTANCE OF ANY CUSTOMER ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN ANY CUSTOMER ORDER FORM, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND BCG WILL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER BCG’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY WILL BE DEEMED OR CONSTRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS.1. DEFINITIONS
1.1 “Prvent Subscriptions” means those annual subscriptions to Prvent services ordered by Customer from BCG hereunder.2. PRVENT SUBSCRIPTIONS
2.1 Subscriptions. Prvent Subscriptions are sold on an annual period (a “Subscription Term”). The initial Subscription Term starts when Customer purchases the Prvent Subscription. If Customer and BCG have signed an order for Prvent Subscriptions, the Subscription Term will renew according to the terms of such order. If Customer has purchased the Prvent Subscriptions through a different method, the Subscription Term will automatically renew for successive periods of the same length as the initial Subscription Term. Subject to the terms and conditions of this Agreement, solely during the Subscription Term, BCG grants to Customer a limited, non-exclusive, non-transferable right during the Subscription Term to access and use the BCG dashboard solely in connection with Customer’s internal business operations.
2.2 Service Level Agreement. BCG will use commercially reasonable efforts to provide Customer with the services during the Subscription Term and in accordance with the service levels operating at 99.9% uptime.3. SUPPORT
3.1 Support Policy. BCG will use commercially reasonable efforts to provide Customer with the services during the Subscription Term.4. PAYMENTS
4.1 Prices and Fees. The price of the Prvent Subscriptions are set forth on the order confirmation page prior to finalizing the purchase. Customer agrees to pay BCG the amounts indicated for Prvent Subscriptions Customer selects. The fees for the BCG Subscriptions will be charged to the Payment Method upon checkout and will cover fees for the initial Subscription Term. If the Subscription Term renews, the fees for any renewal Subscription Terms will be the then-current fee applicable to the BCG Subscriptions and will be charged to the payment method upon renewal, unless otherwise agreed in writing between Customer and BCG. Customer authorizes BCG to charge the Payment Method for the prices and fees described above. Customer may cancel the selected BCG Subscription plan at any time. If cancellation is done within 14 days of original order, a 100% refund will be provided. Cancellations made after 14-days will run for remainder of Term but will not autorenew. Stated fees do not include any related taxes, duties and similar charges (including without limitation sales and use taxes, duties or other governmental taxes or fees), all of which are Customer’s responsibility and will be charged to Customer’s Payment Method in addition to the fees.
4.2 Payment Method. BCG may, from time to time, offer various payment methods, including without limitation payment by credit card, by debit card, by certain mobile payment providers or by using PayPal. Customer authorizes BCG to charge Customer for BCG Products through the payment method selected by Customer when purchasing the BCG Products (the “Payment Method”) and Customer agrees to make payment using such Payment Method(s). BCG may, from time to time, receive and use updated payment method information provided by Customer or that financial institutions or payment processors may provide to BCG to update information related to the Payment Method(s), such as updated expiration dates or account numbers. Certain Payment Methods, such as credit cards and debit cards, may involve agreements between Customer and the financial institution, credit card issuer or other provider of the chosen Payment Methods (the “Payment Method Provider”). If BCG does not receive payment from the Payment Method Provider, Customer agrees to directly pay all amounts due upon demand from BCG. Customer’s non-termination or continued use of the BCG Subscriptions reaffirms that BCG is authorized to charge the Payment Method for each renewal Subscription Term.
4.3 Current Information Required. Customer agrees to provide current, complete and accurate billing information and agrees to promptly update all such information (such as changes in billing address, credit card number or credit card expiration date) as necessary for the processing of all payments that are due to BCG. Customer agrees to promptly notify BCG if the selected Payment Method is canceled (for example, due to loss or theft) or if Customer becomes aware of a potential breach of security related to any Payment Method. If Customer fails to provide any of the foregoing information, Customer acknowledges that its current Payment Method may continue to be charged for BCG Products and it remains responsible for all such charges.
4.4 Payment Matters. If the Payment Method fails or Customer’s account is past due, BCG reserves the right to suspend or terminate Customer’s use of the Prvent Subscriptions. Customer agrees to submit any disputes regarding any charge to its account in writing to BCG within 60 days of such charge, otherwise such dispute will be waived and such charge will be final and not subject to challenge. Customer agrees to reimburse BCG for all collection costs. BCG reserves the right to charge Customer interest at a rate of 1.5% per month on any overdue amounts, or the maximum rate permitted by applicable law, whichever is lower.5. TERM AND TERMINATION
5.1 Termination by Customer. Customer may cancel the Prvent Subscriptions within 14 days of the order date and receive a full refund of the price paid. Customer must contact BCG and receive cancellation and return shipping information for cancellation to be effective.
5.2 Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 30 days prior written notice if the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 30-day period.
5.3 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other because of such termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments in connection with the business or goodwill of BCG or Customer. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.
5.4 Effects of Termination. The termination or expiration of this Agreement will not relieve Customer of the obligation to pay any amounts that are due to BCG under this Agreement.6. PROPRIETARY RIGHTS AND NOTICES
6.1 Proprietary Rights. BCG and its licensors own all right, title, and interest, including all intellectual property rights, in and to the BCG Products. Customer will not act to jeopardize, limit, or interfere in any manner with BCG’s ownership of and rights with respect to the BCG Products. Customer will have only those rights in or to the BCG Products and documentation granted to it pursuant to this Agreement.
6.2 General Restrictions. Except as otherwise explicitly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize third parties to: (a) reproduce, modify, translate, enhance, create derivative works of, decompile, disassemble, reverse engineer, or otherwise attempt to discover the source code or underlying ideas or algorithms of any portion of any BCG Products; (b) remove software from equipment on which it is preloaded; (c) modify or attempt to service or repair the BCG Hardware; nor (d) circumvent or disable any technological features or measures in the BCG Products, including security features. Customer shall take reasonable measures to prevent the BCG Products from being stolen or accessed without authorization and to prevent third parties from carrying out the restricted activities set forth in this Section 6.2.
6.3 Customer Data. Customer will own all right, title, and interest in and to any data collected by Prvent Subscription used by Customer, including any such data processed in connection with BCG Subscriptions (“Customer Data”). Customer hereby grants to BCG a nonexclusive, worldwide, perpetual, royalty-free, fully paid right and license to the Customer Data (i) for BCG’s internal use only for research and development purposes and to improve BCG’s products and services, and (ii) in aggregate, anonymized format, so long as BCG does not disclose Customer as the source of the data.
6.4 Proprietary Rights Notices. Customer and its employees and agents will not remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the BCG Products or related documentation delivered by BCG.7. WARRANTY DISCLAIMER
7.1 Warranty Disclaimer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, BCG MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. BCG EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. BCG DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE BCG SERVICES OR AGAINST INFRINGEMENT. BCG DOES NOT WARRANT THAT THE BCG PRODUCTS ARE ERROR-FREE OR THAT OPERATION OF THE BCG PRODUCTS WILL BE SECURE OR UNINTERRUPTED. BCG EXERCISES NO CONTROL OVER AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING OUT OF OR BASED ON A CUSTOMER’S USE OF THE BCG PRODUCTS. BCG SERVICES ARE NOT DESIGNED, OR INTENDED FOR USE IN ANY MEDICAL, LIFE SAVING OR LIFE SUSTAINING SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL APPLICATION IN WHICH THE FAILURE OF THE BCG SERVICES COULD CREATE A SITUATION WHERE SUBSTANTIAL PROPERTY DAMAGE OR PERSONAL INJURY OR DEATH MAY OCCUR. BCG RECOMMENDS AGAINST, AND DISCLAIMS ANY LIABILITY FOR, USE OF THE BCG SERVICES IN ANY SUCH MANNER.8. CUSTOMER INDEMNIFICATION
8.1 Defense of Claims. Customer will defend BCG and its affiliates and their employees, directors, agents, and representatives (“BCG Indemnified Parties”) from any actual or threatened third party claim arising out of or based upon Customer’s performance or failure to perform under this Agreement, its negligence or willful misconduct, or its breach of this Agreement.
8.2 Indemnification. Customer will indemnify each of the BCG Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 9.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such claim); and, (c) if any proceeding arising under Section 9.1 is settled, Customer will pay any amounts to any third party agreed to by Customer in settlement of any such claims.9. CONFIDENTIAL INFORMATION
9.1 “Confidential Information” means any trade secrets or other information of a party, whether of a technical, business, or other nature (including information relating to a party’s technology, software, products, services, designs, methodologies, business plans, finances, marketing plans, distributors, prospects, or other affairs), that is disclosed to a party during the term of this Agreement. The BCG Services and related information will be the Confidential Information of BCG. Confidential Information does not include any information that: (a) was known to the receiving party prior to receiving the same from the disclosing party in connection with this Agreement; (b) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party; (c) is acquired by the receiving party from another source without restriction as to use or disclosure; or (d) is or becomes part of the public domain through no fault or action of the receiving party.
9.2 Nondisclosure. During and after the term of this Agreement, each party will: (a) not disclose the other party’s Confidential Information to a third party unless the third party must access the Confidential Information to perform in accordance with this Agreement and the third party has executed a written agreement that contains terms that are substantially similar to the terms contained in this Section 10; and (b) protect the other party’s Confidential Information from unauthorized disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature.
9.3 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing; (b) in confidence, to accountants, banks, and financing sources and their advisors; (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
9.4 Return of Materials. Upon the termination or expiration of this Agreement, or upon earlier request, each party will deliver to the other all Confidential Information that it may have in its possession or control. Notwithstanding the foregoing, neither party will be required to return materials that it must retain in order to receive the benefits of this Agreement or properly perform in accordance with this Agreement.
9.5 Existing Obligations. The obligations in this Section 10 are in addition to, and supplement, each party’s obligations of confidentiality under any nondisclosure or other agreement between the parties.10. LIMITATION OF LIABILITY
10.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, BCG WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF BCG IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
10.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL BCG’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER (OR PAID BY THE APPLICABLE CHANNEL PARTNER FOR CUSTOMER’S PURCHASES) TO BCG UNDER THIS AGREEMENT.
10.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BCG TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.11. GENERAL
11.1 Marketing. Customer agrees BCG may publicly use Customer’s logo and name to identify Customer as a customer of BCG.
11.2 Assignability. Customer may not assign its right, duties, or obligations under this Agreement without BCG’s prior written consent. As used in this Section 13.4, “assign” includes undergoing any direct or indirect change in control, whether via a merger, acquisition, or sale of all or substantially all assets of Customer. If consent is given, this Agreement will bind Customer’s successors and assigns. Any attempt by Customer to transfer its rights, duties, or obligations under this Agreement except as expressly provided in this Agreement is void.
11.3 Nonsolicitation. During the term of this Agreement and for a period of one year thereafter, Customer will not, directly or indirectly, employ or solicit the employment or services of a BCG employee or independent contractor without the prior written consent of BCG.
11.4 Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth in the Order Form and with the appropriate postage affixed. BCG may also be contacted at the email address listed in the Order Form. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
11.5 Force Majeure. BCG will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond BCG’s reasonable control, so long as BCG uses commercially reasonable efforts to avoid or remove such causes of non-performance.
11.6 Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act and with BCG’s corporate policies regarding foreign business practices, Customer and its employees and agents shall not directly or indirectly make and offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government, including the United States Government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist BCG in obtaining, retaining, or directing any such business.
11.7 Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Illinois, U.S.A without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
11.8 Arbitration. The parties agree to resolve all disputes arising under or in connection with this Agreement through binding arbitration. The arbitration will be held in Chicago, IL, USA. If Customer is an entity incorporated or formed under the state or federal laws of the United States of America, the arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). If Customer is an entity incorporated or formed under the laws of a foreign jurisdiction, the arbitration will be conducted in accordance with the International Chamber of Commerce (“ICC”) Rules of Arbitration. If there is a dispute between the parties under this Agreement, the parties will use good faith efforts to agree upon and appoint one arbitrator no later than 20 days after the notice of arbitration is received from the other party. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA or ICC (as applicable) for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA or ICC will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator will conduct the arbitration in accordance with the applicable rules of the AAA or ICC (as applicable). The arbitrator will limit discovery as reasonably practicable to complete the arbitration as soon as practicable. The arbitrator’s decision will be final and binding on both parties. The costs and expenses of the arbitration will be shared equally by both parties. This Section 11.8 will not prohibit either party from seeking injunctive relief in a court of competent jurisdiction.
11.9 Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
11.10 Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the grant of any rights to Customer under this Agreement is found to be illegal, unenforceable, or invalid, the right granted will immediately terminate.
11.11 Interpretation. The headings appearing at the beginning of several sections contained in this Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret this Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders. Whenever the words “include”, “includes” or “including” are used in this Agreement, they will be deemed to be followed by the words “without limitation.” The word “or” is used in the inclusive sense of “and/or.” The terms “or,” “any” and “either” are not exclusive.
11.12 Entire Agreement. This Agreement is the final and complete expression of the agreement between these parties regarding the BCG Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. No employee, agent, or other representative of BCG has any authority to bind BCG with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of this Agreement.
11.13 Updates to this Agreement. From time to time, BCG may change, modify, add, or remove portions of this Agreement (each an “Update”), and reserves the right to do so in its sole discretion. Customer is encouraged to review this Agreement periodically for changes. In the event that Updates to this Agreement materially alter Customer’s rights or obligations hereunder, BCG will make reasonable efforts to notify Customer of the Updates. For example, BCG may send a message to Customer’s email address that is currently associated with its BCG account or generate a pop-up or similar notification when Customer accesses its BCG account for the first time after such material changes are made. All Updated Agreements automatically take effect 30 days after they are posted, except that (i) disputes between Customer and BCG will be governed by the version of this Agreement that was in effect on the date the dispute arose and (ii) unless specifically agreed otherwise, if Customer does not agree with any changes to this Agreement, Customer may terminate this Agreement as set forth above. Customer’s continued access to or use of the Services after an Updated Agreement has become effective indicates that Customer has read, understood and agreed to the current version of this Agreement.
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