Terms of Use
July 20, 2017
In consideration of River Oak Creative Limited Company (“we,” “us” or “our”) providing you (which term, as used herein, includes you personally and, if you are using this website on behalf of the company or organization on whose behalf we grant you access, such company and organization) access to our Internet website, http://www.barleyapp.co, (the “Site”), our mobile application (the “App”), and the information, documents, reports, data, features, functionalities and software that may be offered to you through or in connection with your use of and/or access to the Site or the App and the other materials on the Site or the App (collectively, and as such may be revised from time to time by us, the “Content”), you hereby agree to the following terms and conditions (the “Terms of Use”).
We may modify these Terms of Use from time to time upon written notice or posting to the Site or within the App. It is your responsibility to review these Terms of Use periodically. You agree that if you use the Site or the App, and/or the Content after such notice or posting of changes in the Terms of Use, you will be bound by all such changes and these Terms of Use.
The Site is owned and operated by River Oak Creative Limited Company. Our App is solely a facilitator of communications between certain non-user merchants, namely state licensed or state-operated retailers of alcohol (each a “Merchant”) and users. The goods featured on the App are offered, provided, sold and delivered by the Merchant, not us. We are in no way responsible for the quality of goods or services offered by the Merchants. All questions regarding Merchant products should be directed to the appropriate Merchant or licensing body.
The App is made available via the Apple App Store for no charge. Use of the App may require a paid subscription through the App Store. The fee for such subscription shall be determined from time to time by us and we may change the fee for the subscription at any time in our sole discretion. By purchasing a subscription, you represent that you are using the App for the purpose of ordering alcoholic beverages for resale by a business that is licensed to serve alcoholic beverages and for no other purpose. To use the App, you must input your desired order. The App then aggregates your order and transmits your order to the appropriate Merchant via facsimile or electronic mail. You hereby expressly authorize us to process and transmit such order data, including your identity, to a Merchant via insecure and/or unencrypted means.
The information contained on the App regarding prices and specifications of the products listed on the App has been provided by the applicable licensing body. We make no representation about the availability of any specific product in connection with any Merchant. We make no effort to verify the availability of any specific product from any Merchant. Prices, specifications and availability of products may differ and are subject to change at any time, without notice.
Although every effort is made to ensure accuracy in posting pricing information, discrepancies do occur. While we have undertaken to confirm the accuracy of the information contained on the App, mistakes can be made, including due both to inaccurate reporting of accurate information and accurate reporting of inaccurate information. In no event shall we be liable for damages of any kind due to inaccurate information.
By using the App to place orders for alcoholic beverages, you acknowledge and agree:
(A) that United States Federal and State laws require that purchasers of alcoholic beverages be at least twenty one (21) years of age and alcoholic beverages may not be sold, delivered or given away to persons who are, apparently or actually, under the age of twenty one (21) years or visibly intoxicated;
(B) that you are at least twenty one (21) years of age or older;
(C) to provide valid photo identification at the time of purchasing any alcoholic beverages, as required by applicable law;
(D) that sale of alcoholic beverages to you is made by the Merchant and not us;
(E) that we are a separate business and are not affiliated with any of the Merchants;
(F) that neither us nor any of our affiliates or our or their partners, officers, directors, employees, shareholders or agents (collectively “Barley Parties”) shall have any liability to you or any third party in connection with purchase, sale, delivery and/or consumption of the alcoholic beverages or any consequences thereof; and
(G) that, without limiting anything set forth in these Terms of Use and in addition thereto, you shall indemnify and hold harmless Barley Parties for, from and against any and all claims, demands, losses, costs and expenses (including the cost of any investigation and reasonable attorneys' fees), damages, obligations, deficiencies and liabilities, which arise, result from or are related to: (i) processing of order(s) for alcoholic beverage(s); (ii) purchase of the alcoholic beverage(s); (iii) consumption of alcoholic beverage(s) and/or (iv) any and all consequences of any of the foregoing.
The Site, the App, and the Content are our property and are protected by applicable copyright, patent, trademark and other intellectual property laws. Except as expressly authorized herein, you may not, directly or indirectly, reproduce, transmit, sell, display, distribute, publish, broadcast, circulate, modify, disseminate or commercially exploit, in each case, whether in whole or in part, the Site, the App, or the Content in any manner (including electronic, print or other media now known or hereafter developed) without our express written consent. Use of the Site, the App, or the Content in violation of these Terms of Use, or any applicable law, rule or regulation (whether of the United States or other countries), or any rights of any third party is prohibited. You agree not to use the Site, the App, or the Content for any unlawful purposes and to comply with any and all requests from us to protect our respective rights in the Site, the App, and the Content. You agree that you will not, directly or indirectly, access, scrape, copy or otherwise use any portion of the Site, the App, or the Content to, in each case, whether alone or with others, engage in any activity or provide any product or service that, in our good faith judgment, is competitive with our products or services. Further, you may not, and agree not to, sell, license or otherwise provide access to and/or use of any of the Site, the App, or the Content to any third party for any purpose whatsoever, including to build or offer a product or service that, in our good faith judgment, is competitive with our products or services. You may download the Content to your computer or your device and print out a hard copy for your reference and internal use and display, but you will not remove any copyright, trademark or other notices or disclaimers contained in the Content. We expressly prohibit the use of devices (including software) designed to provide repeated automated access to the Site, the App, and/or the Content. We reserve the right to take any and all measures necessary to prevent such access, including denial or termination of your access to the Site and/or the App.
By submitting any information or content to or by otherwise accessing and/or using the Site, or the App, including without limitation order information, you unconditionally grant us an unrestricted, irrevocable, non-exclusive, royalty-free, perpetual, world-wide, fully paid, transferable, assignable and sublicensable right and license to use, copy, store, reproduce, modify, adapt, publish, translate, create collective and/or derivative works from, distribute, perform and display any such information or content, in whole or in part, and to incorporate any such information or content in any works in any form, media, software or technology now known or later developed, in each case, for any purposes whatsoever, including for advertising, marketing, publicity and promotional purposes, subject only to our privacy policies. You hereby waive all moral rights in any such information or content.
Furthermore, we do not review and assume no responsibility for any products described on the Site or the App. You agree to make your own independent evaluation of the products and services described on the Site and/or the App, including their quality.
In the event you use the Site, the App, or the links included on the Site and the App to gain access to any World Wide Web site or any Internet location or a source of information, including social media websites, of any company, organization or person other than us, you acknowledge that such other sites, locations and sources are not under our control and agree that we will not be responsible for any information, content or links found at any such sites, locations or sources, for your use of such information, content or links found at any such sites, locations or sources, or for any such sites, locations or sources use of any information or content you submit, directly or indirectly (e.g., while using the Site or the App). We provide such links only as a convenience to you, and have not tested any software or verified any content found at such sites, locations or sources. You further acknowledge that we make no warranties as to the availability of or otherwise related to any such links or any such sites, locations or sources. Your access to or use of such links or any such sites, locations or sources may be subject to their respective terms of use and it is your responsibility to read and comply with those terms of use. The fact that we have provided a link to any unaffiliated site, location or source does not signify our sponsorship or endorsement of such site, location or source or any of the contents of such site, location or source. There are inherent risks in the use of any such links or any software and/or content found on the Internet, and you acknowledge that you understand these risks.
You agree to comply with any and all rules, restrictions and disclaimers that are posted on the Site, and/or the App. All materials on the Site and the App are meant to be reviewed in their entirety, including any footnotes, legal disclaimers, restrictions, disclosures and copyright or proprietary notices. Disclaimers, restrictions, disclosure or hedge clauses apply to any partial document or material in the same manner as they do to the whole, and will be deemed incorporated in the portion of any material or document that you consult or download.
In connection with your use of or access to the Site and the App, we from time to time may provide you with user names, passwords and/or other unique identifiers (“User Codes”). You are responsible for the security and confidentiality of the User Codes and agree not to disclose them to any third party, including, if you are accessing the Site or the App on behalf of any company or organization, any other employee in your company or organization. You are responsible for any and all information provided and any and all orders, acts and/or omissions that occur while User Codes and/or a mobile phone that has a phone number provided by you and recognized by our systems to be associated with the User Codes are/is being used, in each case, whether by you or a third party. We are not responsible for any breach of security caused by your failure to maintain the confidentiality and security of any of the User Codes. You agree to notify us immediately in the event of loss, theft or disclosure of any or all of the User Codes, if you believe the confidentiality or security of any or all of the User Codes has been compromised in any way or in the event of your learning about a possible or actual unauthorized access to and/or use of the Site, or the App. You are limited to one User Code. Duplicate User Codes may be revoked. We reserve the right to revoke or modify the User Codes at any time with or without prior notice.
You consent to our recording, retention and use of all content, information and data that you input or otherwise communicate during your access to and/or use of the Site, the App, or through any e-mail to or from us and any other electronic communication means and the transmittal of the same to our affiliates, subsidiaries, branches and third parties for order and other processing, database maintenance, record keeping or any other use in accordance with customary practices, policies and procedures applicable in the United States and our privacy policies. In addition, we may disclose such information to the extent that we determine in good faith to be required by any applicable laws, rules or regulations or order or in enforcement of our rights or the defense of claims. We expressly reserve the right (but have and shall have no obligation) to monitor any and all access to and/or use of the Site and the App.
You acknowledge that any electronic mail, facsimile, information, submission or instant messenger communication, whether transmitted through the Internet, the Site, or the App (collectively, “Electronic Messages”) may not be secure and communications using Electronic Messages may not be confidential.
THE APP AND THE CONTENT ARE PROVIDED TO YOU ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE BARLEY PARTIES HEREBY DISCLAIM ANY AND ALL WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS AND REPRESENTATIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY RELATED TO MERCHANTABILITY, QUALITY, ACCURACY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TIMELINESS AND ERROR-FREE UNINTERRUPTED SERVICES AS TO THE OPERATION OF THE SITE AND THE APP, AND THE BARLEY PARTIES MAKE NO WARRANTY THAT (i) THE OPERATION OF THE SITE OR THE APP WILL MEET YOUR REQUIREMENTS, (ii) ACCESS TO THE SITE OR THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR (iii) DEFECTS, IF ANY, WILL BE CORRECTABLE OR CORRECTED, OR OTHER ATTRIBUTES, WHETHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR WRITTEN, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. THE BARLEY PARTIES HAVE NO RESPONSIBILITY TO INFORM YOU OF ANY DIFFICULTIES WE OR OTHER THIRD PARTIES EXPERIENCE CONCERNING USE OF THE SITE OR THE APP OR TO TAKE ANY ACTION IN CONNECTION WITH THOSE DIFFICULTIES. YOU (AND NOT THE BARLEY PARTIES) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER, MOBILE PHONE, TABLET AND/OR OTHER EQUIPMENT AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR OTHER PROBLEMS YOU MAY HAVE AS A RESULT OF VISITING OR USING THE SITE OR THE APP. TO THE EXTENT THAT THE LAW DOES NOT PERMIT THE DISCLAIMER OF WARRANTIES, ALL CONTENT ACCESSIBLE ON THE SITE AND THE APP OR ANY OTHER SITE, LOCATION OR SOURCE TO WHICH WE LINK, AND ALL OPERATIONS ON THE SITE OR THE APP AND ARE WARRANTED ONLY TO THE MINIMUM AMOUNT LEGALLY REQUIRED.
BY USING THE SITE OR THE APP YOU SPECIFICALLY AGREE THAT YOU WILL NOT HOLD THE BARLEY PARTIES LIABLE TO YOU OR ANY PARTY FOR ANY DAMAGES OR INJURY OR LOSS, INCLUDING ANY AND ALL DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, INCLUDING THE ONES THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SITE, THE APP, OR THE CONTENT (OR ANY OTHER LINKED SITE, LOCATION OR SOURCE), WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF CONTENT AVAILABLE ON THE SITE OR THE APP (OR ANY OTHER LINKED SITE, LOCATION OR SOURCE). NONE OF THE BARLEY PARTIES WILL BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUCH DAMAGES INCLUDE DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE, COMPUTER VIRUS OR OTHER HARMFUL COMPONENT. IN NO CASE SHALL OUR LIABILITY EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES THAT YOU HAVE PAID TO US OVER THE TWELVE MONTHS IMMEDIATELY PROCEDING ANY INJURY.
You hereby represent and warrant that:
(A) (i) you are the person to whom the User Codes you used to access the Site and the App were issued by us and the information you provided to us in connection with the issuance of the User Codes, if any, was and is true, accurate, current and complete, or (ii) you are accessing the Site, or the App on behalf of the company or organization to whom the User Codes you used to access the Site or the App were issued by us;
(B) if you are accessing the Site or the App on behalf of the company or organization to whom the User Codes you used to access the Site or the App were issued by us, you are duly authorized by all necessary action and have all consents, rights and authority to execute these Terms of Use on behalf of yourself and your principals and the company or organization on whose behalf we grant you access to the Site and the App;
(C) you will not reverse engineer, de-compile or reverse compile any of our technology, including any software associated with the Site or the App;
(D) unless we expressly authorize you to do so in writing, you will not use, reproduce, duplicate, copy, sell, resell, distribute, publish or exploit for any commercial purposes any portion of the Site, the App, and/or the Content;
(E) you will access and use the Site and the App in compliance with any and all applicable law(s), rules(s) or regulation(s) (whether in the United States or other countries) and the terms and conditions of these Terms of Use;
(F) you are at least 21 years of age; and
(G) you have all consents, rights and authority to provide and submit any and all information and content provided and submitted by you or using User Codes to or otherwise using the Site and the App, and all such information and content (1) are true, accurate, current and complete and we may rely on such information and content; (2) are not libelous, defamatory, indecent, obscene, harassing, hateful or violent; (3) are not meant to harm any Barley Parties or any third party; (4) do not constitute or include viruses or other harmful codes; (5) as well as their anticipated uses, do not violate, infringe or misappropriate any copyright, patent, trademark or other proprietary rights, or right of publicity or privacy of any Barley Parties or any third party; and (6) do not violate these Terms of Use, or any applicable law, rule or regulation (whether of the United States or other countries).
You shall indemnify and hold harmless River Oak Creative Limited Company, its affiliates and its and their partners, employees and agents from and against any and all claims, actions, proceedings, obligations, penalties, losses, liabilities, damages, costs and expenses (including reasonable legal and other professional fees and costs) directly or indirectly arising out of or related to (i) your breach of any agreements, representations and warranties contained in these Terms of Use, (ii) your access to and/or use of the Site, the App, and/or the Content, and/or (iii) any and all information or content submitted by you or using User Codes to or otherwise using the Site and/or the App including for claims that any of it violates, infringes or misappropriates any proprietary rights, or right of publicity, privacy or any other right of any third party.
The Site and the App are published in the United States. You agree that any access to or use of the Site and the App will be deemed to be entirely at our facility in Asheville, North Carolina, under and subject to applicable North Carolina State and United States Federal law, rules and regulations, to the same extent as if you were to physically come to our offices in North Carolina and, without assistance or solicitation, copy material contained in our library. These Terms of Use and all the terms herein will be governed by and construed in accordance with the laws of the State of North Carolina without giving effect to principles of conflicts of law. Any such controversy will be submitted exclusively to Federal or state courts in the State of North Carolina. You consent to personal jurisdiction in any applicable court for purposes of any such litigation. Any right to trial by jury with respect to any claim or action is hereby waived by all parties to these Terms of Use.
We may at any time and for any reason with or without prior notice to you, and without liability, in each case, modify, suspend, terminate or discontinue, in whole or in part, any portion of the Site or the App (including the Content) and/or your access to or use of the Site, the App, and/or the Content. If you fail to comply with any provision of these Terms of Use, or if, in our sole discretion, we modify, suspend, terminate, or discontinue your access to or use of the Site, the App, and/or the Content, any and all rights granted to you herein will immediately automatically terminate. These Terms of Use (as may be revised from time to time as described herein) are irrevocable and, unless otherwise expressly stated in these Terms of Use, will survive the termination of your access to, and use of, the Site, the App, and/or the Content, and your relationship with us.
None of the Barley Parties are or will be liable for any losses caused directly or indirectly as a result of causes or events beyond our control, including natural disasters, acts of god, war, terrorism actions or decrees of governmental bodies, exchange or market rulings, failure of the Internet, communication lines or utility systems, equipment and systems failures, unauthorized access, and theft (each, a “Force Majeure Event”). All of the obligations of the Barley Parties with respect to the effected elements under these Terms of Use will be suspended for the duration of such Force Majeure Event.
These Terms of Use represents the complete and exclusive statement of the agreement and understanding between you and us regarding your rights to access the Site and the App and to use the Content and supersedes all agreements which you may sign with us, and all representations (whether written or oral), regarding such subject matter. Except as herein provided, no waiver, modification or amendment of any provision of these Terms of Use will be effective against us unless the same is in writing and signed by one of our executive officers. Should any term or provision of these Terms of Use be deemed or held to be invalid or unenforceable, the remaining terms and provisions will continue in full force and effect. Our failure to insist at any time upon strict compliance with any term of these Terms of Use, or any delay or failure on our part to exercise any power or right given to us in these Terms of Use, or a continued course of such conduct on our part will at no time operate as a waiver of such power or right, nor will any single or partial exercise preclude any other future exercise. All rights and remedies given to us in these Terms of Use and other terms and conditions that are subject to these Terms of Use are cumulative and not exclusive of any other rights or remedies which we otherwise have at law or equity. These Terms of Use will be binding upon you and your executors, heirs, successors and assigns. Any and all headings in the text of these Terms of Use are solely for convenience or reference and do not constitute a part of these Terms of Use, nor do they affect the meaning, construction or effect of these Terms of Use. The terms “including” and “includes” as used in these Terms of Use are intended to identify some, but not all, examples relevant to the subject matter and, therefore, should be read as “including, but not limited to” or “includes, but not limited to.” Neither you nor we may assign or delegate rights, duties or obligations under these Terms of Use without the prior written consent of the other party. We may, however, assign these Terms of Use, or any rights or obligations hereunder, to an affiliate, subsidiary or any entity owned, controlled by or under common control with us, or pursuant to a merger, consolidation, change of control or corporate reorganization. These Terms of Use are in addition to, and do not nullify, any other agreement between you and us governing the conduct of your relationship with us or any other applicable terms and conditions found on the Site and/or the App.
We may, in our sole discretion, seek your consent to the terms and conditions of these Terms of Use and certain other agreements on the Site and/or the App by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance to these Terms of Use, affirmatively “click” on boxes containing the words “I Accept,” “I Agree” or other similar phrases (collectively, “Acceptance Terms”). If you “click” on the Acceptance Terms, your “click” will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to these Terms of Use or accessing the Site, and/or the App or using any of the Content after you have had an opportunity to review these Terms of Use, you acknowledge and agree: (i) that you and, where applicable, the company or organization on whose behalf we grant you access to the Site and/or the App intend to form a legally binding contract between you and us; (ii) that you have read and agree to the terms and conditions of these Terms of Use; (iii) that you agree and intend that these Terms of Use to be the legal equivalent of signed, written contracts, and equally binding; (iv) that by electronically agreeing to these Terms of Use, you acknowledge that you have received a copy of these Terms of Use by your viewing a web page containing a hyperlink to the web page where these Terms of Use are displayed or otherwise; and (v) that if you are executing these Terms of Use on behalf of others, you hereby certify that you are an authorized representative, duly authorized, including where applicable, by all required corporate action to act on behalf of such others.