TERMS OF SERVICE
This Terms of Service (this “Terms of Service”) is a contract between you, or, if you represent an entity or other organization, that entity or organization, (in either case, “you” or “User”) and Beverage Excellence LLC D/B/A BeverageX (“us” or “we” or “BeverageX”).
BeverageX offers an online beverage inventory management and product ordering system (the “Platform“). You may access the Platform through the website located at www.beveragex.com, and through various other websites operated by BeverageX (each a “Website”).
Unless you later enter into any other agreement with BeverageX regarding the Platform, or the Content or Services, this Terms of Service is the complete and exclusive Terms of Service between you and BeverageX regarding your access to and use of the Platform, Content, and Services. This Terms of Service supersedes any prior Terms of Service or proposal, oral or written, and any other communications between you and BeverageX relating to your use of the Platform, Content, or Services, as a User of the Platform.
PLEASE CAREFULLY READ THIS TERMS OF SERVICE. BY ACCESSING OR USING THE PLATFORM, THE CONTENT OR SERVICES, OR BY CLICKING A BOX THAT STATES THAT YOU ACCEPT OR AGREE TO THIS TERMS OF SERVICE, YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS TERMS OF SERVICE. IF YOU DO NOT AGREE TO THIS TERMS OF SERVICE, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS TERMS OF SERVICE, BEVERAGEX IS NOT WILLING TO PROVIDE YOU WITH ACCESS TO OR USE OF THE PLATFORM, OR THE CONTENT OR SERVICES, AND YOU MUST NOT ACCESS OR USE THE PLATFORM, OR THE CONTENT OR SERVICES. IF YOU ACCESS OR USE THE PLATFORM, CONTENT, OR SERVICES YOU ACKNOWLEDGE THAT YOU MEET THE QUALIFICATIONS INCLUDED IN THIS TERMS OF SERVICE.
- TERM. This Terms of Service is entered into as of the earlier of the date you first access or use the Platform, or the Content or Services, and will continue until terminated as set forth herein.
- BeverageX reserves the right, in its sole discretion, to amend this Terms of Service at any time, and from time to time, by posting amended versions on the Platform. BeverageX will give notice of any change to this Terms of Service by posting those changes in this Terms of Service. Use of the Platform after the posting of an amended Terms of Service constitutes your acceptance of, and agreement to be bound by, the amendments and all changes contained therein.
- ELIGIBILITY AND NOTICE.
- Eligibility. Access and use of the Platform, Content, and Services are intended for use by Users who are at least 21 years of age and permitted to purchase alcoholic beverages. You represent and warrant that you are (a) at least 21 years of age and have not been legally prohibited from purchasing alcoholic beverages for any reasons; and (b) not a citizen or resident that is ineligible to receive items subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation.
- Notice to Users. You acknowledge and agree that (a) BeverageX does not provide Managed Inventory described in a Request and does not provide any services for delivery of beverages directly from BeverageX to consumers; (b) BeverageX does not receive Managed Inventory described in a Request and is not and will not be the recipient of any services from any User (e.g., we are not your customer); (c) BeverageX does not employ, and will not employ, any Users (e.g., we are not your employer); (d) BeverageX does not store any Managed Inventory, and is not a space allocation or warehouse leasing company; (e) BeverageX is not responsible for the payment of compensation or fees to any User; (f) BeverageX is not responsible for paying for any Managed Inventory or services provided between Users; (g) BeverageX is not responsible for any person’s classification of a User as a “producer,” “supplier,” “distributor,” or “retailer,” including but not limited to classification decisions made by a User; (h) BeverageX is not responsible for any user’s classification as “tax exempt,” including but not limited to classification decisions made by a User; (i) BeverageX does not guarantee, represent, or warrant that any information in a Profile is truthful, accurate, or complete (e.g., you are solely responsible for ensuring that your Registration Information is truthful, accurate, and complete; (j) BeverageX does not guarantee or warrant, and is not responsible for ensuring, the accuracy or quality of any Managed Inventory provided by any User; and (k) BeverageX does not guarantee or warrant, and is not responsible for ensuring, the fulfilment of any Requests, Group Buys, or Orders made by any User, or any subsequent coordination or allocation after any Group Buys or Orders are fulfilled to their initial destination.
- Responsibilities. You are solely responsible for all access to and use of your Account (whether authorized or unauthorized), including all Content and Services accessed through your Account. BeverageX may deem any actions taken through your Account to have been authorized by you. You are responsible for compliance, and the compliance any other Users of your Account, with this Terms of Service. You will ensure the security and confidentiality of each Account ID and will notify BeverageX immediately if any Account ID is lost, stolen, or otherwise compromised. You acknowledge that you are fully responsible for all costs, fees, liabilities, or damages incurred, and material transferred, stored, modified or shared through the use of each Account ID (whether lawful or unlawful). You acknowledge that any transactions completed through your Account will be deemed to have been lawfully completed by you. In no event will BeverageX be liable for the foregoing obligations or the failure by you to fulfill such obligations.
- User Content. “User Content” means any and all information, data, and other content that you or any other User submits to the Platform (e.g., content uploaded to a Request). You are solely responsible for your User Content. BeverageX is not obligated to back-up any User Content and may delete User Content at any time, for any reason or no reason, without notice.
- FEES AND PAYMENT.
- Payment. You may be offered the opportunity to subscribe to or otherwise obtain access to certain Services or Content through the Platform for a monthly or annual subscription fee (a “Subscription”). Any purchase or other transaction of a Subscription through the Platform will be subject to any terms and conditions displayed or provided through the Platform in connection with the purchase or transaction of a Subscription in addition to the terms of this Agreement and will cover the use of that Subscription for a monthly or annual subscription period as indicated. You authorize BeverageX (or a company chosen to act on behalf of BeverageX) to charge the credit card, debit card, mobile services account, or other payment method provided in connection with any purchase or other transaction made through your Account or otherwise made by you through the Platform.
- Group Buy. You may select to make an Order for Managed Inventory with one or more Users as part of a Group Buy. You are responsible for selecting, coordinating with other Users, and allocating the Managed Inventory between such other Users participating in the Group Buy. BeverageX will not be responsible for any payment disputes or disputes relating to the allocation of Managed Inventory between Users. Under no circumstance shall BeverageX be considered a purchaser of Managed Inventory or a User participating in a Group Buy.
- Method of Termination. Either you or we may terminate this Terms of Service at any time, for any reason or no reason, with or without cause, by closing your Account. To close your Account, please contact a BeverageX representative.
- Effect of Termination. Upon termination or expiration of this Terms of Service for any reason (a) all rights and licenses granted to you under this Terms of Service will terminate; (b) your right to access and use the Platform, and the Content and Services, will terminate immediately, and you will no longer have access to any of User Content stored on the Platform; and (c) all of your User Content stored on the Platform may be deleted or destroyed, and BeverageX will have no liability for any such deletion or destruction. Upon the closure of your Account, you will still be required to comply with all terms of any Related Agreements agreed to by you until such Related Agreements have been properly terminated or fulfilled in compliance with its terms.
- TECHNOLOGY. The Platform, and the databases, software, hardware, and other technology used by or on behalf of BeverageX to operate the Platform, and the structure, organization, and underlying data, information, and software code thereof (collectively, the “Technology“), constitute valuable trade secrets of BeverageX. You will not, and will not permit any third party to (1) access or attempt to access the Technology except as expressly provided in this Terms of Service; (2) use the Technology in any unlawful manner or in any other manner that could damage, disable, overburden, or impair the Technology; (3) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter the Technology; (4) harvest, collect, gather, or assemble information or data regarding other Users, including e-mail addresses, without their consent; (5) alter, modify, reproduce, create derivative works of the Technology; (6) alter, obscure, or remove any copyright, trademark, or any other notices that are provided on or in connection with the Technology; (7) distribute, sell, resell, lend, loan, lease, license, sublicense, or transfer any of your rights to access or use the Technology, or otherwise make the Technology available to any third party; (8) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology; (9) attempt to circumvent or overcome any technological protection measures intended to restrict access to any portion of the Technology; or (10) interfere with the operation or hosting of the Technology.
- OWNERSHIP. As between you and BeverageX, BeverageX retains all right, title, and interest, including, without limitation, all IPR, in and to the Technology and any additions, improvements, updates, and modifications thereto. You receive no ownership interest in or to the Technology and you are not granted any right or license to use the Technology itself, apart from your ability to access and use the Platform, and the Content and Services, under this Terms of Service. The BeverageX name, logo, and all product and service names associated with the Platform, Content, and Services are trademarks of BeverageX and its licensors and providers and you are granted no right or license to use them.
- REPRESENTATIONS AND WARRANTIES.
- Mutual. Each party hereby represents and warrants to the other party that (a) it has the legal right and authority to enter into this Terms of Service; (b) this Terms of Service forms a binding legal obligation on behalf of such party; and (c) it has the legal right and authority to perform its obligations under this Terms of Service and to grant the rights and licenses described in this Terms of Service.
- Compliance with Laws; Managed Inventory Warranty. You acknowledge that the Platform is a general purpose online platform and is not specifically designed to facilitate compliance with any specific Law. You acknowledge that you will access to and use of the Platform in compliance with all Laws applicable to you. BeverageX is not responsible for notifying you of any such Law, enabling your compliance with any such Law, or for your failure to comply. You represent and warrant to BeverageX that your User Content and your use of and access to the Platform will comply with all applicable Laws and will not cause BeverageX itself or any other User to violate any applicable Laws. BeverageX does not warrant that it will have, or that it will accurately display, any SKUs or Stock Keeping Units available through the Platform. If you offer any Managed Inventory through the Platform you represent and warrant to BeverageX and all Users of the Platform that (a) you have good transferable title to the Managed Inventory and all necessary licenses to prove the Managed Inventory for resale; (b) the Managed Inventory will be in conformity with specifications and documentation supplied by you; (c) the Managed Inventory is new and does not contain used or reconditioned materials or ingredients; (d) to your’s knowledge the User Content and Your Services or their use does not infringe any patents, copyrights, trademarks, trade secrets, or any other intellectual property rights; and (e) that there are no suits or proceedings pending or threatened which allege any infringement of such proprietary rights.
- No Warranties; Disclaimer. THE PLATFORM, THE CONTENT AND SERVICES, ARE PROVIDED “AS IS” AND “AS AVAILABLE.” BEVERAGEX, AND ITS AFFILIATES AND PROVIDERS, DO NOT WARRANT OR GUARANTEE THE ACCURACY, COMPLETENESS, OR ADEQUACY OF THE PLATFORM OR ANY CONTENT OR SERVICES AND DO NOT ENDORSE THE VIEWS OR OPINIONS THAT MAY BE EXPRESSED IN THE CONTENT OR USER CONTENT THAT MAY BE PROVIDED THROUGH THE PLATFORM. BEVERAGEX, AND ITS AFFILIATES AND PROVIDERS, EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE PLATFORM, THE CONTENT AND SERVICES, AND OTHER SUBJECT MATTER OF THIS TERMS OF SERVICE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BEVERAGEX, OR ITS AFFILIATES OR PROVIDERS, WILL INCREASE THE SCOPE OF, OR CREATE ANY NEW WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THIS TERMS OF SERVICE.
- LIMITATION ON LIABILITY. BEVERAGEX, AND ITS AFFILIATES AND PROVIDERS, WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH OR OUT OF THE USE OF THE PLATFORM, OR THE CONTENT OR SERVICES, EVEN IF BEVERAGEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR USER CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. BEVERAGEX’S TOTAL CUMULATIVE LIABILITY, AND THE TOTAL LIABILITY OF ITS AFFILIATES AND PROVIDERS, IN CONNECTION WITH THIS TERMS OF SERVICE AND ALL CONTENT AND SERVICES PROVIDED UNDER THIS TERMS OF SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED $100 OR THE SUBSCRIPTION FEES YOU PAID BEVERAGEX TO USE THE PLATFORM. YOU AGREE THAT BEVERAGEX WOULD NOT ENTER INTO THIS TERMS OF SERVICE WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, BEVERAGEX’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- INDEMNITY. You agree to indemnify, defend, and hold harmless BeverageX and its affiliates and providers, and all of their respective directors, officers, managers, partners, employees and agents, and all successors and assigns thereof (each an “Indemnified Party”), from any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and court costs) arising out of or relating to any claim, suit, proceeding, demand, or action brought by you or another User or a third party (a “Claim”) against an Indemnified Party arising out of or relating to (1) your access to or use of the Platform, or the Content or Services, by you or your agents, including any payment obligations incurred through access to or use of the Platform; (2) any Related Agreement or Order entered into by you or your agents; (3) failure to comply with this Terms of Service by you or your agents; (4) failure to comply with applicable Law by you or your agents; (5) negligence, willful misconduct, or fraud by you or your agents; (6) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by you or your agents; (7) your User Content and Your Services or any access to or use thereof; or (8) your posting of or fulfillment of any Request. BeverageX will use reasonable efforts to provide you with notice of any such Claim, and BeverageX will have the right to participate in the defense of any such Claim at its expense.
- CLAIMS OF INFRINGEMENT. BeverageX respects your copyrights and other intellectual property rights and those of other third parties. If you believe in good faith that your copyrighted work has been reproduced on the Platform without your authorization in a way that constitutes copyright infringement, you may notify our designated copyright agent by mail to:
Beverage Excellence LLC
Attn: BeverageX Copyright Agent
10 Polo Field Lane, Denver 80209
Please provide the following information to BeverageX’s Copyright Agent: (1) the identity of the infringed work, and of the allegedly infringing work; (2) your name, address, daytime phone number, and email address, if available; (3) a statement that you have a good-faith belief that the use of the copyrighted work is not authorized by the owner, his or her agent, or the law; (4) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner; and (5) your electronic or physical signature. BeverageX will take whatever action, in its sole discretion, it deems appropriate, including the removing the allegedly infringing work from the Platform.
- GOVERNING LAW. The interpretation of the rights and obligations of the parties under this Terms of Service, and any negotiations, arbitrations, or other legal proceedings hereunder, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado.
- LINKED SITES. The Platform, and the Content and Services, may contain links to third-party sites or content that are not under the control of BeverageX. If you access a third-party site or content from the Platform, then you do so at your own risk and BeverageX is not responsible for any content on any linked site.
- RELATIONSHIP WITH BEVERAGEX. In making the Platform, and the Content and Services available to you, BeverageX’s relationship to you shall be solely that of a service provider of an online platform. Nothing in this Terms of Service, or your access to or use of the Platform, or the Content or Services, shall create any other relationship between you and BeverageX.
- NOTICE. Any notices required or allowed under this Terms of Service will be provided to BeverageX by postal mail to the address for BeverageX listed on the Platform. Notices provided to BeverageX will be deemed given when actually received by BeverageX. Notice provided to you will be deemed given 24 hours after posting to the Platform or sending via e-mail.
- GENERAL PROVISIONS.
- Amendment. No amendment or modification of this Terms of Service shall be binding on BeverageX unless the amendment or modification is contained a written agreement signed by a duly authorized representative of BeverageX.
- Waiver. Any waiver or failure to enforce any provision of this Terms of Service on one occasion shall not be deemed a waiver of any other provision or of such provision on any other occasion.
- Assignability. This Terms of Service shall not be assigned by any User without the express written consent of BeverageX. BeverageX may assign this Terms of Service to any affiliate or to any successor in interest to BeverageX. This Terms of Service shall inure to the benefit of the parties and their successors and permitted assigns.
- Severability. If any provision of this Terms of Service is held to be invalid or unenforceable, the remaining provisions shall be unaffected by such determination, and the invalid or unenforceable provisions shall be deemed modified to the minimum extent to render it enforceable in a manner that gives maximum effect to the intent of the parties.
- Force Majeure. The parties to this Terms of Service shall not be responsible for the failure to perform, or any delay in performance of, any obligation under this Terms of Service due to war, natural disaster, acts of government, riots, labor disturbances, telecommunications or Internet failures, or other similar occurrences beyond the control of such party.
- Entire Agreement. This Terms of Service constitutes the entire agreement and understanding between you and BeverageX relating to the subjects addressed therein, and supersedes and replaces all prior agreements, negotiations, proposals, and discussions, whether written or oral. The section headings in this Terms of Service are included for ease of reference only and have no binding effect. Although BeverageX drafted this Terms of Service, you represent and agree that you have had ample time to consider them, and to consult with counsel regarding them, and you waive the benefit of any principle of law requiring that ambiguities in a document be construed against the party that drafted the document.
Last updated on 12/16/2019