Terms of Service
This Subscription Agreement (the “Agreement”) is entered into between Kegshoe Inc. (“Kegshoe”) and you (the “Client”) and is intended to set forth the terms of hosted digital menu services provided by Kegshoe to the Client.
In consideration of the mutual covenants set forth in this Agreement, the parties agree as follows:
Licence & Description of Services
1) Kegshoe shall provide services to the Client through the Sippo software application (the “Kegshoe Application”) which may be provided by the Client or by Kegshoe for the express purpose of assisting the Client in display the menu of the Client’s establishment(s) (the “Services”).
2) All data entered or provided by the Client to the Kegshoe Application, including user profile information, is referred to collectively as “Account Data”.
3) Under this Agreement, Kegshoe grants the Client the non-exclusive, non-transferable right to use the Kegshoe Application in accordance with the terms identified in this Agreement through the Client’s Users. The Client’s Users include any person accessing the Kegshoe Application through the Client’s account. The number of Users, the number of kegs tracked and other features of the Services may be limited by the level of the Services purchased (the “Service Tier”). The Client’s Service Tier is identified in the Client’s Account Data and/or in Schedule “A” to this Agreement.
4) Kegshoe reserves the right to amend, change, modify, add to, or otherwise alter the Services and the Kegshoe Application. Kegshoe reserves the right to interrupt access to the Services and the Kegshoe Application from time to time for regular maintenance, testing and upgrades. Kegshoe will endeavour to give the Client notice of such changes and scheduled interruptions.
5) The Services include server space and data transfer allowances for the purposes of receiving, storing and displaying Account Data and generating reports. Kegshoe reserves the right to limit server space and data transfer allowances.
6) Kegshoe may capture and record certain information related to the Client’s activities during the course of using the Kegshoe Application including login instances, actions taken, data displayed, user interface elements clicked on, and keg location, status and tracking data. Such information, along with Account Data, may be transferred or disclosed to third parties such as Kegshoe’s business partners, service vendors and authorized third-party agents in order to provide the Kegshoe Application and Services. Such information also may be aggregated, analyzed and used by Kegshoe to modify the Services and the Kegshoe Application and to develop additional products and services. Such information also may be disclosed, in an aggregate form only, to third parties for the same or similar purposes.
Intellectual Property
7) Kegshoe retains all intellectual property rights, including but not limited to copyright, trademark, patent and design rights, in the Services, the Kegshoe Application, and the trademark KEGSHOE. The Client acknowledges and agrees that the Kegshoe Application, the interface to it (including without limitation data entry screens and reports generated by the Kegshoe Application) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. The Client agrees not to use such intellectual property of Kegshoe except as expressly authorized by this Agreement. Except as expressly authorized by Kegshoe, the Client agrees not to modify, rent, lease, loan, sell, distribute or create derivative works or businesses based on the Kegshoe Application, in whole or in part.
8) Any suggestions or ideas provided to Kegshoe in any form or manner, including suggestions related to product or service improvements or corrections of errors, become the exclusive property of Kegshoe and may be used by Kegshoe at its sole discretion without compensation or attribution to the Client or its Users. Kegshoe is not obligated to review or implement suggestions or ideas, or to keep this information confidential.
Trials
9) Client may be granted a free thirty (30) day trial (the “Trial Period”) to use the Kegshoe Application and receive the Services in accordance with the terms in this Agreement and at the highest Service Tier level available at the start of the Trial.
10) At the end of the Trial Period, if the Client has not purchased a subscription through the payment of a monthly subscription fee in accordance with the Service Tier identified in the Client’s Account Data and/or in Schedule “A” to this Agreement, the Client’s account will be deemed Cancelled. Kegshoe will retain the Account Data for a period of 1 month after the end of the Trial Period. If a subscription is purchased prior to the end of this 1 month period, the Account Data may be restored. After this 1 month period, Kegshoe reserves the right to delete the Client’s account and any Account Data.
Client Obligations
11) The Client is responsible for any use of the Kegshoe Application and Services by its Users. The Client is responsible for ensuring that the number of persons accessing the Kegshoe Application through the Client’s account complies with the number of Users permitted under the Client’s Service Tier. The Client is responsible for preventing unauthorized access at the Client’s site to the Kegshoe Application and the Client’s Account Data. Client shall maintain the confidentiality of any password and account login identification.
12) The Client shall use the Services and the Kegshoe Application under normally expected operating conditions in the Client’s environment. The Client is responsible to ensure that bar code labels are applied to kegs in a secure manner, are inspected on a regular basis, and are replaced as required from time to time. The Client is responsible to provide and support their own computer operating environment and Internet connectivity and all related charges, including any and all equipment and internet connection charges for its Users, in accordance with the minimum requirements set out for the Client’s chosen Service Tier.
13) The Client agrees to indemnify and hold harmless Kegshoe against any liability or claim of any person that relates to the use of the Services by the Client and its Users. The Client is responsible for maintaining and completing the Client’s Account Data in a timely manner. Client acknowledges that Kegshoe has no control over the source, quality, format, nature, ownership or legality of information submitted to the Kegshoe Application by the Client and that the Client is responsible for any claims or liabilities that may arise from the Client’s actions in submitting information to the Kegshoe Application.
14) The Client will use the Services in a manner fully consistent with the applicable laws of Ontario and Canada. The Client assumes all responsibility to ensure that no viruses or other programming defects are introduced by the Client.
15) The Client will not reverse engineer, decompile or defeat license encryption mechanisms, or disassemble the Kegshoe Application and any software contained therein, any license key or any portion thereof.
16) Client assumes all responsibility to ensure that the collection, use and/or disclosure, of any personal information through the Client’s account is carried out in compliance with the Personal Information Protection and Electronic Documents Act (PIPEDA) and any other applicable laws.
Subscription Periods, Payment and Termination
17) This Agreement will become effective on the date that an account is created and shall remain in effect until the account has been cancelled or terminated.
18) By starting a monthly account, the Client authorizes Kegshoe to automatically charge the monthly subscription fee for the Client’s chosen Service Tier at the rate effective on the date of the start of the subscription to the credit card account which the Client provides until the Client cancels the subscription or until the Services are terminated according to this Agreement. Account information and credit card holder data may be transferred, processed and stored outside of Canada by third party processors which Kegshoe engages to complete subscription payments. Except for Trial Periods, payment for barcode scanning devices provided by Kegshoe to the Client will be charged to the client’s credit card account along with the first monthly payment.
19) The monthly subscription fee for the Services will be billed at the start of the subscription and each month thereafter until the Client cancels the subscription. Kegshoe automatically bills the credit card provided for an account each month on the calendar day corresponding to the start of the paid subscription (the “Renewal Date”). Kegshoe reserves the right to change the timing of billing, if, for example, the Client’s account has not successfully settled. In the event that the paid subscription began on a day not contained in a given month, Kegshoe may bill Client’s credit card on a day in the applicable month or such other day as Kegshoe deems appropriate. For example, for a subscription starting on January 31st, the next payment may be billed on February 28th.
20) Kegshoe reserves the right to revise the monthly subscription fees for the Services in any manner and at any time. Except as otherwise expressly provided for in this Agreement, any changes to the monthly and yearly subscription fees will take effect on the next Renewal Date following the sending of email notice to the Client.
21) Payments are NON-REFUNDABLE. The Client may cancel a subscription at any time, and the Client will continue to have access to the Services to the end of the monthly billing period. THERE ARE NO REFUNDS OR CREDITS FOR USE OF A PARTIAL MONTH OF SERVICES. To cancel, the Client must submit a request in writing by email to Kegshoe at least five (5) days prior to the start of the next billing period.
22) The Client is responsible for ensuring that the Client’s contact email address and credit card account information are current. If a payment is not successfully settled due to a change or expiration of the Client’s credit card, insufficient funds, a change in account information or otherwise, and the Client does not edit the account information or cancel the account, the account will be deemed Expired as described below and may become Cancelled. Kegshoe may, but is not obligated to, provide email notice of an unsuccessful payment prior to an account becoming Expired or Cancelled.
23) Subject to the terms of this Agreement, Kegshoe will retain the Client’s Account Data for the following periods:
a) Active Accounts: where an account has been created and a subscription has been purchased, Kegshoe will retain Account Data for the Client while the subscription remains paid and in good standing.
b) Expired Accounts: where an account has been created and payment has not been received within ten (10) days of the Renewal Date for the subscription, Kegshoe reserves the right not to provide access to the Account Data until payment is received in full.
c) Cancelled Accounts: where an account has Expired as described above, or has been terminated by the Client or by Kegshoe, Kegshoe will retain the Account Data for a period of 1 month after expiration or termination of the account. If a new subscription is purchased prior to the end of this 1 month period, the Account Data may be restored. After this 1 month period, Kegshoe reserves the right to delete the Client’s account and any Account Data.
24) From time to time, as disputes may arise between the Parties, the Parties expect that such disputes will be resolved through open, frank, and honest discussion by the representatives of the Parties. In the event that a dispute arises in respect of the interpretation or performance of this Agreement which cannot be resolved by mediation or mutual agreement, both parties may, at their option, agree to submit such dispute to arbitration in accordance with the Arbitration Act. S.O. 1991, CHAPTER 17.
25) Notwithstanding the above, this Agreement may be terminated by Kegshoe without cause by providing seven (7) days written notice to the Client. In the event of a breach or default by the Client of any terms or obligations under this Agreement, Kegshoe may terminate this Agreement upon giving the Client email notice of the breach or default and where the Client has not remedied the breach or default within seven (7) days after receipt of the notice. In the event of a breach or default under this Agreement, Kegshoe reserves the right to suspend the Services until such breach or default is remedied.
26) Notwithstanding the above provisions, Kegshoe reserves the right to determine whether the Client or the Client’s use of the Services violates the terms of this Agreement for any reason and to refuse the Services and/or terminate this Agreement without notice if the Client or its Users fail to comply with any term or condition of this Agreement.
27) Sections 7, 8, 29 and 30 of this Agreement will survive any cancellation or termination of this Agreement.
Warranties & Limitation of Liability
28) Kegshoe provides the Services and the Kegshoe Application on an “as is” and “as provided” basis. All warranties, including but not limited to any implied warranties of merchantability, fitness for a particular purpose or non-infringement of rights of others, are expressly excluded and denied. Specifically, there are no implied or express warranties included in this Agreement or in the provision of the Services, or any document relating to the Services, that (i) the Services or any software will meet any specific requirements; (ii) any results or outcomes from the use or employment of the Services will be reliable or accurate; (iii) the Services or any software will be provided uninterrupted, secure, free of any errors or provided on a timely basis; (iv) any errors which may occur in any software or the Services will be corrected; or (v) that expectations will be satisfied with respect to the quality of the Services, any other services, products, information or any other materials or information.
29) Although Kegshoe will ensure secure, safe, retention of Account Data to the best of its ability, Kegshoe bears no liability for Account Data submitted to, stored and accessed from the Kegshoe Application, or for lost, missing or damaged kegs or labels. Kegshoe provides no editing, controlling, monitoring or other service which might, or might be considered to, correct or otherwise alter or verify the Client’s Account Data.
30) Notwithstanding the above clause, Kegshoe reserves the right to edit the Client’s Account Data, including removing content such as, but not limited to, trademarks or logos, pornography or obscenity, either on Kegshoe’s own initiative or at the request of third parties.
31) The Client understands and agrees that Kegshoe, along with its officers, employees, directors and shareholders, shall not be liable, under any circumstances or principles of law, for any direct, indirect, consequential, incidental, special, punitive or exemplary damages, including but not limited to damages for loss of business, use, data, profit, goodwill or other intangible losses, whether or not within the knowledge or anticipation of Kegshoe, from: (i) the Client’s use of or inability to use the Services and the Kegshoe Application; (ii) any costs to acquire alternative or replacement goods or services; (iii) errors, omissions, defects, delays in operation or transmission of information or data, or any other failure of performance of the Services or Kegshoe Application; (iv) statements by or the conduct of any third party concerning the Services; (v) unauthorized access to or alteration of or transmission of data; (vi) any goods or services offered by means of the Services; or (vii) any other matter relating to the Services.
32) The Kegshoe Application is a software as a service product and as such, Kegshoe is not responsible for outages caused by network failure, internet downtime, network lag and/or network performance. The Kegshoe Application WILL CONTAIN BUGS AND MAY CAUSE DATA LOSS. KEGSHOE SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF SOFTWARE OR ANY PERFORMANCE OF THIS AGREEMENT.
General Terms
33) Neither Kegshoe nor the Client shall be liable for failure to perform any material obligation under this Agreement, to the extent the failure is due to an event beyond its reasonable control.
34) This agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein.
35) The parties hereto require and declare that the present Agreement be drafted in the English language: par les presentes, les parties ont demande que le present contract soit redige en anglais.
36) If a court finds any provision of this Agreement invalid or unenforceable, the remainder of this Agreement shall be interpreted so as best to achieve the intent of the parties.
37) The failure of Kegshoe to exercise any right provided in this Agreement shall not be a waiver of prior or subsequent rights.
38) Headings in this Agreement are for ease of reference only and shall not be taken into account in the construction or interpretation of any provision to which they refer.
39) Kegshoe may, in its sole discretion, change the terms of this Agreement from time to time as it relates to the future use of the Services and Kegshoe Application by providing a revised Agreement, or notice thereof, to the Client. Notice may include publication of the revised Agreement on the Sippo website. The Client may not change the terms of this Agreement without consent in writing from Kegshoe.
BY ACCEPTING THIS AGREEMENT, YOU WARRANT THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR BEHALF OR ON BEHALF OF THE COMPANY FOR WHICH THE ACCOUNT WAS CREATED.