The Product is wholly owned by BARKLEYREI. The following terms of service shall apply to the Product licensed to Customer under this Agreement:
The term "Product" as used in this Agreement includes the programs, updates to the programs and copies of the programs, either in whole or in part. The Product is not sold to Customer, and Customer will acquire no ownership rights in or title to the Product. The Product is furnished by BARKLEYREI to Customer under a license, for use by Customer only in compliance with the terms of this Agreement.
1.1.1. The license is non-exclusive, which means that BARKLEYREI may grant a similar license to use the Product to other persons or companies. The license is non-transferable, which means that Customer alone may use the Product and may not allow any person or company to use the Product without the prior written consent of BARKLEYREI.
1.1.2. The Product may be used by the Customer on any PC, Mac or compatible tablet.
1.1.3. The Product may not be copied or reproduced in any way by Customer. Any copies made by Customer remain the property of BARKLEYREI. Customer may not (i) rent, lease, assign or transfer the Product, (ii) modify the Product or merge all or any part of the Product with any other software, product or service, (iii) use the Product for the benefit of more than the number of licenses granted as set forth in the Service Order of this Agreement, or (iv) translate, reverse engineer, decompile or disassemble the Product.
1.1.4. Customer will be informed in writing by email on the release date of all Product upgrades or enhancements along with installation instructions and support. BARKLEYREI is not liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of Customer's failure to maintain the Product at most recent level, even if BARKLEYREI has been advised of the possibility of such damage or potential damage.
1.2. Commencement; Term
The license will commence upon payment in full of the “License Fee” shown on the Service Order and shall continue in perpetuity subject to any (i) renewal provisions set forth on the Service Order , and (ii) termination provisions set forth in this Agreement. Upon termination, at BARKLEYREI’s request, Customer will certify in writing to BARKLEYREI that, to the best of its knowledge, the original and all copies of the Product have been either returned to BARKLEYREI or destroyed.
1.2.3. Effect of Termination. Upon the effective date of termination, all Customer payment obligations accrued hereunder through the effective date of termination will become due and payable. Customer shall not be entitled to a refund of any unused portion of the annual License Fee.
The charges for the grant of the license to use the Product are set forth on the Service Order of this Agreement.
The Product furnished by BARKLEYREI is warranted to perform those functions set forth in the demonstrations presented by BARKLEYREI to Customer, for a period of twelve (12) months from the date of delivery of the Product to Customer. Demonstrations may be presented virtually via web-based technology or during an on-site presentation. If the Product does not, in fact, perform to such specifications and BARKLEYREI is promptly notified by Customer within the twelve (12) month period, BARKLEYREI will correct the defects at its expense. Customer's only remedy in the event that the Product does not perform according to specifications shall be to require BARKLEYREI to correct the defects in a timely manner. The limited warranty in Paragraph 1.4 shall apply only if the Product has been properly used with approved Hardware and if it has not been modified or altered by persons other than BARKLEYREI. BARKLEYREI shall not be liable for any special, incidental, indirect, or consequential damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or any other pecuniary loss) arising out of Customer’s use of the Product, even if BARKLEYREI has been advised of the possibility of such damages or potential damages. BARKLEYREI’s maximum aggregate liability to Customer shall not exceed the amount paid by Customer for a one-year license for use of the Product. BARKLEYREI shall have no responsibility for claims made by third parties.
THERE ARE NO WARRANTIES MADE BY BARKLEYREI ABOUT THE PRODUCT OTHER THAN THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT.
2.1. BARKLEYREI shall provide a Customer Service Representative to answer Customer's questions during Customer’s use of the Product.
3.0 GENERAL TERMS AND CONDITIONS
The following terms and conditions shall apply to the Product licensed to Customer by BARKLEYREI under this Agreement:
3.1. Acceptance of Product
The Product will be considered accepted by Customer after BARKLEYREI has delivered the Product.
The "License Fee" shown on the Service Order of this Agreement will be paid in full by Customer prior to receipt of the Product.
The fees do not include State, Federal or Local taxes. All applicable taxes will be added to the fees and shall be payable in full by Customer prior to receipt of the Product.
3.4. Confidential Information
Customer understands and agrees that all information regarding the Product furnished by BARKLEYREI is confidential. Customer agrees not to copy or reproduce the Product or any such information concerning the Product and not to disclose such information to any other person or company, without the prior written consent of BARKLEYREI. Each party acknowledges and agrees that, in the event of any breach of this Agreement by Customer, BARKLEYREI would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled at law or in equity, BARKLEYREI may be entitled to an injunction (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of this Agreement and/or to compel specific performance of this Agreement, and that Customer will not oppose the granting of such relief. The prevailing party in any such proceeding shall be entitled to the recovery of costs and attorney fees expended.
3.5. User Generated Content
3.5.2. Client acknowledges and agrees that any and all UGC fed into the Client website is not and does not represent any opinion of BARKLEYREI, nor does BARKLEYREI make any representations, warranties, or opinions about the UGC.
3.5.3. Client acknowledges and agrees that the UGC fed into its website will comply with the applicable social media platform’s (i.e. Instagram) terms and conditions, as amended from time to time by the applicable social media platform.
3.5.4. Client acknowledges and agrees that if the applicable social media platform has any outages, down time, or other performance issues such that the feed is unable to be pulled into the Client’s website, BARKLEYREI is not liable or responsible for the outage, down time, or performance issues related to the social media platform or the affected feed.
If either party fails to perform or observe any of its obligations under this Agreement and such failure continues 30 days after receipt of written notice of the failure to perform, then that party will be considered to be in default, and in such event the non-defaulting party may (i) immediately terminate this Agreement upon written notice to the party in default, and/or (ii) pursue all legal remedies available to it.
3.7. Limitation of Remedies
If either party defaults under this Agreement or breaches any of the warranties set forth in this Agreement, the other shall only be able to obtain the specific remedies set forth in this Agreement, or available under law except as proscribed in this Agreement.
3.7.1. Under no circumstances will either party be liable for any other type of damages (which are sometimes called "special", "incidental", "indirect", or "consequential" damages) such as loss of profits, loss of Customer goodwill, or otherwise.
3.7.2. BARKLEYREI shall have no liability to Customer for any hardware, product or service provided by any person or company other than BARKLEYREI.
3.7.3. If either party desires to bring a legal action for any reason related to this Agreement or the Product, such action must be commenced within one (1) year after the party becomes aware of the problem which is the basis of the legal action or else the claim is waived.
3.7.4. If either Customer or BARKLEYREI bring a legal action against the other for any reason related to this Agreement then the prevailing party in such legal action shall be entitled to recover its attorney’s fees and costs of suit (including expert witness fees) from the non-prevailing party.
THERE ARE NO WARRANTIES MADE BY BARKLEYREI ABOUT THE PRODUCT OTHER THAN THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE MADE ABOUT THE PRODUCT.
Except as provided below, all notices which may be given under this Agreement must be in writing and may be delivered personally or mailed by first-class certified or registered mail with return receipt requested, postage prepaid. Mailed notices shall be addressed to Customer at the address shown on the Service Order of this Agreement but either party may change its address for receipt of notices by notifying the other party in writing. BARKLEYREI may give notices of changes in prices and updates to the Product by email.
3.9.1. Neither party may assign or transfer its rights under this Agreement to any other person or company without advance written consent of the other party.
3.9.2. This Agreement can be changed or modified only by a written document, referencing this document, signed by both Customer and BARKLEYREI.
3.9.3. Customer and BARKLEYREI agree that this Agreement sets forth their entire understanding and agreement regarding the Product and any prior agreements, understandings or promises are of no force and effect unless made a part of this Agreement.
3.9.4. If any court declares that a part of this Agreement is not valid or enforceable, then the invalid or unenforceable part shall be considered deleted and the rest of the Agreement shall be given full force and effect.
3.9.5. This Agreement is made in the State of Missouri and shall be enforced and construed pursuant to the laws of the State of Missouri. Customer agrees and consents to personal jurisdiction and service and venue in any federal or state court within the County of Jackson, State of Missouri having subject matter jurisdiction, for the purposes of any action, suit or proceeding arising out of or relating to this Agreement, and such venue shall be the sole and exclusive venue for any action, suit or proceeding arising out of or relating to this Agreement.