END USER LICENSE AND TERMS OF SERVICE
Last Updated Date: August 19, 2016
- Acceptance of the Terms and Conditions.
AS FURTHER DESCRIBED BELOW, THIS EULA REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
b. Changes to this EULA. You understand and agree that Barfrog may change this EULA at any time without prior notice; provided that Barfrog will endeavor to provide you with prior notice of any material changes. You may read a current, effective copy of this EULA at any time by selecting the appropriate link on the Service. The revised EULA will become effective at the time of posting. Any use of the Service after such date will constitute your acceptance of such revised EULA. If any change to this EULA is not acceptable to you, then your sole remedy is to stop accessing and otherwise using the Service. The terms of this EULA will govern any updates Barfrog provides to you that replace and/or supplement any portion of the Service, unless the upgrade is accompanied by a separate license or revised EULA, in which case the terms of that license or revised EULA will govern. Notwithstanding the preceding sentences of this Section 1.b, no revisions to this EULA will apply to any dispute between you and Barfrog that arose prior to the effective date of such revision.
c. Consideration. You understand and agree that this EULA is entered into in consideration of your use of the Service and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
d. Eligibility. THE SERVICE IS NOT FOR PERSONS UNDER THE AGE OF 21 OR OTHERWISE UNDER LEGAL DRINKING AGE IN THE APPLICABLE JURISDICTION OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY BARFROG. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By accessing or using the Service, you affirm that you are at least 21 years of age (or otherwise of legal drinking age in the applicable jurisdiction, but in no event under the age of 18) and have not been previously suspended or removed from the Service by Barfrog. You may use the Service only if you can form a binding contract with Barfrog and are not a person barred from receiving the Service or similar services under the laws of the United States or other applicable jurisdictions. If you are accepting these Terms and using the Service on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so. You may use the Service only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations.
2. Description of Service.
BarFrog is a mobile application that saves you time when it comes to your night out. Our secure payment platform allows a User to pay their bar tab by simply walking out of the bar or restaurant that accepts payment processing through Barfrog. The bars and restaurants that accept payments through Barfrog under license are not affiliated with Barfrog and are independent third party providers of their respective goods and services (“Third Party Providers”). A “User” agrees to abide by these Terms, has registered an account as described below, and is an individual or entity that has downloaded the Barfrog mobile application to a mobile device, laptop computer, desktop computer or tablet computer (each a “user device”).
3. User Account.
a. Registration. To access and/or use the Service, you must download the App and register an account with us (an “Account”). As an end User, you must be at least 21 years of age. Accounts registered by “bots” or other automated methods are not permitted.
b. Account Information. When creating an Account, you will provide true, accurate, current, and complete information as Barfrog requests, including certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid payment method (“Registration Data”). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or Barfrog’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by Barfrog in writing, you may only possess one Account.
d. Account Security. You are responsible for maintaining the security of your account and password, and are fully responsible for all activities that occur through the use of your credentials. Barfrog cannot be liable for any loss or damage from your failure to comply with this security obligation.
4. User Provided Content.
a. User Content. Barfrog may, in Barfrog’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to Barfrog through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content“). Any User Content provided by you remains your property. However, by providing User Content to Barfrog, you grant Barfrog a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Barfrog’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
b.User Representations. You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant Barfrog the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor Barfrog’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
c. Limitations. You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by Barfrog in its sole discretion, whether or not such material may be protected by law. Barfrog may, but shall not be obligated to, review, monitor, or remove User Content, at Barfrog’s sole discretion and at any time and for any reason, without notice to you
5. Intellectual Property.
a. Limited License. Subject to the terms and restrictions contained in this EULA and applicable law, Barfrog grants you a limited personal, universe-wide, non-exclusive, non-assignable and non-transferable license to use and display on your user device the Service solely for the purposes expressly identified in these Terms and on the Barfrog website. You must retain intact all copyright, trademark, proprietary and other notices in these permitted activities. You acknowledge that you may not sublicense, transfer, sell, rent or assign this license. Any attempt to sublicense, transfer, sell, rent or assign this license is null and void. You agree that unless explicitly stated otherwise, any new products, software, data feeds, services, features, enhancements or additions or deletions to the Service are subject to these Terms.
b. Barfrog Content. The Barfrog Content on or displayed via the Service, including but not limited to text, graphics, photos, software, letters and service marks, the Barfrog logo and trade name, other Barfrog logos and titles, and registered and unregistered trademarks (“trademark” as used herein includes service marks), is protected under United States copyright, trademark and/or other intellectual property laws. Unauthorized use of the Barfrog Content may violate applicable copyright, trademark, intellectual property, and other laws (some of which provide criminal remedies). You may not sell or modify the Barfrog Content or the Service or reproduce, display, distribute, or otherwise use the Barfrog Content in any way for any unlawful purpose, and are prohibited from adapting the HTML code that Barfrog creates to generate pages in connection with the Barfrog website or User interfaces in connection with the App. You shall not display, disparage, dilute, or taint our trademarks or use any confusingly similar marks or names, or use our marks in such a way that would misrepresent or cause confusion as to who the proper owner of such mark is.
c. Restrictions. You may not sell, transfer, assign, license, sublicense, or modify the Barfrog Content or Service, and you may not reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Barfrog Content in any way for any public or commercial purpose. The use or posting of any of the Barfrog Content on any other website or in a networked computer environment for any purpose is expressly prohibited. In addition, you also may not attempt to derive the source code of, modify, or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law). If you violate any part of this EULA, then your right to access and/or use the Barfrog Content and Service will automatically terminate and you must immediately destroy any copies you have made of the Barfrog Content.
a. Charges. You understand that use of the Services may result in charges to you for the services or goods you receive from a Third Party Provider, and any transaction fees charged to you by Barfrog (“Charges“). After you have received services or goods obtained through your use of the Service, Barfrog will facilitate your payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Provider’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Provider. Charges will be inclusive of applicable taxes where required by law. Charges may also include gratuity charges as set by the Third Party Provider or Barfrog. Charges paid by you are final and non-refundable, unless otherwise determined by Barfrog. You retain the right to request lower Charges from a Third Party Provider for services or goods received by you from such Third Party Provider at the time you receive such services or goods. Barfrog will respond accordingly to any request from a Third Party Provider to modify the Charges for a particular service or good.
b. Payment. All Charges are due immediately and payment will be facilitated by Barfrog using the preferred payment method designated in your Account, after which Barfrog will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that Barfrog may, as the Third Party Provider’s limited payment collection agent, use a secondary payment method in your Account, if available. As between you and Barfrog, Barfrog reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in Barfrog’s sole discretion. Barfrog will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. Barfrog uses location based services to enable automated processing of payments on your account. You hereby consent to Barfrog’s automated processing to facilitate payments for all Charges incurred on your Account. Barfrog may from time to time provide certain users with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
c. Compensation of Third Party Providers. The Barfrog payment structure is intended to fully compensate the Third Party Provider for the services or goods provided as well as any applicable gratuity for such goods or services. After you have received services or goods obtained through the Service, you will have the opportunity to rate your experience and leave additional feedback about the Third Party Provider.
a. No Illegal Use. You may not use the Service to transmit, distribute, store or destroy any Content (a) in violation of any applicable law or regulation, or contributes to the violation of any applicable law or regulation, (b) in a manner that will infringe the copyright, trademark, trade secret or other intellectual property rights of others or violate the privacy, publicity or other personal rights of others, or (c) that is defamatory, obscene, sexually explicit, pornographic, threatening, abusive or hateful.
b. Information Security. You are prohibited from violating or attempting to violate the security of any part of the Service, including, without limitation, (a) gaining attempting to gain access to any account, data, Service, or information for which such Users are not authorized, (b) attempting to penetrate a system, network, or application by probing, “phishing,” scanning or testing the vulnerability of the system or network or to breach security or authentication measures without proper authorization, (c) engaging or attempting to engage in a denial of service attack on any part of the Service for the purposes of causing any part of the Service to become impaired or inoperable, or interfering with the availability of the Service to any User through techniques including without limitation, uploading malicious software (e.g., a virus, worm, Trojan horse, “logic bomb,” etc.), “packet flooding”, “spoofing,” “spamming”, “mailbombing” or “crashing”, (d) sending unsolicited e-mail, including promotions and/or advertising of products or Service, or (e) forging any packet content or any part of any e-mail or posting. Violations of system or network security may result in civil or criminal liability. Any occurrences that may involve such violations are subject to investigation by Barfrog and law enforcement authorities in prosecuting any User involved in such violations.
c. Specific Restrictions. In using the Service, you agree not to:
- Take any action that imposes an unreasonable or disproportionately large load on the Service or equipment on which the Service are hosted;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software comprising or in any way making up a part of the Service;
- Frame or link to the Service or any Content or information relating thereto without prior express written permission from Barfrog;
- Collect information about other Users for the purpose of sending, or to facilitate or encourage the sending of, unsolicited bulk or other communications, or for any other purpose not explicitly authorized by Barfrog;
- Falsify, conceal, or modify information identifying yourself or another User, including Internet Protocol header information;
- Stalk, threaten, harass or exploit any User or other person, whether in a cyber environment or in the real world;
- Use the Service to solicit or advertise any products or Service without the express prior written consent of Barfrog;
- Disrupt or conceal any Barfrog or third party advertisements;
- Create a false identity or impersonate another person or entity in any way;
- Create a new account with Barfrog, without Barfrog’s express written consent, if Barfrog has previously disabled an account of yours;
- Solicit, or attempt to solicit, personal information from other users of the Service;
- Restrict, discourage, or inhibit any person from using the Service, disclose personal information about a third person on the Service or obtained from the Service without the consent of that person, or collect information about users of the Service; or
8. Reservation of Rights.
Barfrog reserves the right, in its sole discretion, to restrict, suspend, or terminate this EULA and your access to all or any part of the Service at any time and for any reason without prior notice or liability. Barfrog reserves the right to change, suspend, or discontinue all or any part of the Service at any time without prior notice or liability
9. Advertisement and Promotions.
Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Barfrog may place such advertising and promotions on the Service or on, about, or in conjunction with the Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
10. WARRANTY DISCLAIMER.
YOU AGREE THAT YOUR ACCESS TO AND USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK. THE SERVICE AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY LAW, BARFROG EXPRESSLY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, REPRESENTATIVES, EMPLOYEES AND AGENTS DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF, INCLUDING BUT NOT LIMITED TO, (1) ANY WARRANTIES OF TITLE INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND (2) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY AND COMPLETENESS OF THE CONTENT OR THE SERVICE.
BARFROG MAKE NO WARRANTIES OR REPRESENTATIONS AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES OR INNACURACIES OF CONTENT, (2) PERSONAL INJURY OR PROPERTY DAMAGE OF ANY NATURE WHATSOEVER RESULTING FROM YOUR ACCESS TO OR USE OF THE SERVICE, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE AND/OR ANY AND ALL PERSONAL AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSSATION OF TRANSMISSION TO OR FROM THE SERVICE, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (6) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT SUBMITTED, POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. BARFROG DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE. YOU SPECIFICALLY ACKNOWLEDGE THAT BARFROG IS IN NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL BARFROG, ITS OFFICERS, DIRECTORS, MANAGERS, MEMBERS, SHAREHOLDERS, EMPLOYEES, AGENTS AFFILIATES, CO-BRANDERS, OR PARTNERS BE LIABLE FOR ANY DIRECT (IN EXCESS OF THE LIMITATION OF LIABILITY HEREINAFTER PROVIDED), INDIRECT OR INCIDENTAL DAMAGES, LOST PROFITS OR DATA, OR SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR THE CONTENT, OR INABILITY TO GAIN ACCESS TO OR USE OF SERVICE OR THE CONTENT, WHETHER BASED ON BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BARFROG IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT SHALL BARFROG’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED THREE HUNDRED DOLLARS.
You agree, to the fullest extent permitted by applicable law, to forever hold harmless, defend and indemnify Barfrog, its members, managers, directors, officers, shareholders, other affiliated persons or entities, employees, contractors, co-branders, partners, and agents (“Indemnified Parties”) from and against any and all loss, cost, claims, liabilities, damages, disputes, and expenses, including court costs and attorneys’ fees, related to (i) your violation of these Terms or any information, software, files, messages or other Content submitted to or made available on the Service, (ii) your use of and/or access to the Service, (iii) your violation of any third party right, including without limitation any copyright, property or privacy right, or (iv) any claim that your User Content caused damage to or infringes the intellectual property or privacy or other rights of a third party. The Indemnified Parties reserve the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you. In that event, you shall have no further obligation to provide defense to the Indemnified Parties in that matter, but shall remain responsible to reimburse Barfrog and each Indemnified Party for its defense expenses. This section shall survive the termination or cancellation of this Agreement or any termination or suspension of your use of or access to all or any aspect of the Service.
13. Notice and Procedure for Making Claims of Copyright or Other Intellectual Property Infringements.
a. Repeat Infringer Policy. Barfrog’s intellectual property policy is to (a) remove or disable access to material that Barfrog believes in good faith, upon notice from an intellectual property owner or his or her agent, is infringing the intellectual property of a third party by being made available through the Service, and (b) remove any User Content uploaded to the Service by “repeat infringers.” Barfrog considers a “repeat infringer” to be any user that has uploaded User Content or Feedback to or through the Service and for whom Barfrog has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512 with respect to such User Content or Feedback. Barfrog has discretion, however, to terminate the Account of any user after receipt of a single notification of claimed infringement or upon Barfrog’s own determination.
b. Procedure for Reporting Claimed Infringement. If you believe that any content made available on or through the Service has been used or exploited in a manner that infringes an intellectual property right you own or control, then please promptly send a “Notification of Claimed Infringement” containing the following information to the Designated Agent identified below. Your Notification of Claimed Infringement may be shared by Barfrog with the user alleged to have infringed a right you own or control, and you hereby consent to Barfrog making such disclosure. Your communication must include substantially the following:
i. A physical or electronic signature of a person authorized to act on behalf of the owner of the work(s) that has/have been allegedly infringed;
ii. Identification of works or materials being infringed, or, if multiple works are covered by a single notification, a representative list of such works;
iii. Identification of the specific material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Barfrog to locate the material;
iv. Information reasonably sufficient to permit Barfrog to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted;
v. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
vi. 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 of an exclusive right that is allegedly infringed.
You should consult with your own lawyer and/or see 17 U.S.C. § 512 to confirm your obligations to provide a valid notice of claimed infringement.
c. Designated Agent Contact Information. Barfrog’s designated agent for receipt of Notifications of Claimed Infringement (the “Designated Agent”) can be contacted at:
Via E-mail: DOUG@BARFROG.COM
Via U.S. Mail: Att. Legal; 3422 Attley Street, Mount Pleasant, SC 29466
d. Counter Notification. If you receive a notification from Barfrog that material made available by you on or through the Service has been the subject of a Notification of Claimed Infringement, then you will have the right to provide Barfrog with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Barfrog’s Designated Agent through one of the methods identified in Section 16.c and include substantially the following information:
i. A physical or electronic signature of the subscriber;
ii. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
iii. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
iv. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which Barfrog may be found, and that the subscriber will accept service of process from the person who provided notification under Section 15.b above or an agent of such person; and
v. A party submitting a Counter Notification should consult a lawyer or see 17 U.S.C. § 512 to confirm the party’s obligations to provide a valid counter notification under the Copyright Act.
e. Reposting of Content Subject to a Counter Notification. If you submit a Counter Notification to Barfrog in response to a Notification of Claimed Infringement, then Barfrog will promptly provide the person who provided the Notification of Claimed Infringement with a copy of your Counter Notification and inform that person that Barfrog will replace the removed User Content or Feedback or cease disabling access to it in 10 business days, and Barfrog will replace the removed User Content or Feedback and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the Counter Notification, unless Barfrog’s Designated Agent receives notice from the party that submitted the Notification of Claimed Infringement that such person has filed an action seeking a court order to restrain the user from engaging in infringing activity relating to the material on Barfrog’s system or network.
f. False Notifications of Claimed Infringement or Counter Notifications. The Copyright Act provides that:
[a]ny person who knowingly materially misrepresents under [Section 512 of the Copyright Act (17 U.S.C. § 512)] (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, will be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of [Barfrog] relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. 17 U.S.C. § 512(f).
Barfrog reserves the right to seek damages from any party that submits a Notification of Claimed Infringement or Counter Notification in violation of the law.
14. General Provisions.
This Agreement is governed by the laws of South Carolina and the parties irrevocably and unconditionally submit to the non-exclusive jurisdiction of the courts of South Carolina. This Agreement with Barfrog in connection herewith, constitutes the entire agreement between you and Barfrog with regard to its subject matter, supersedes all prior or contemporaneous agreements, commitments, representations, writings, and discussions between you and Barfrog, whether oral or written, and there are no other agreements, representations, warranties, or commitments which may be relied upon by either party. No waiver will be effective against Barfrog unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Neither you nor Barfrog shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or similar force majeure events. If a court of competent jurisdiction finds any provision hereof invalid or unenforceable, that provision will either be amended to achieve as nearly as possible the intent of the parties, or if amendment is not possible the offending provision shall be deemed struck, and the remainder of this Agreement will remain in full force and effect. The captions and headings in this Agreement are for convenience only and shall not affect the construction and interpretation of any provision of this Agreement.
The parties agree that any claim, dispute, or controversy arising out of or relating to the terms and conditions of this Agreement, that cannot otherwise be resolved in good-faith negotiations, shall be resolved in accordance with South Carolina’s Uniform Arbitration Act. The parties shall mutually agree on the selection of one arbitrator who is unrelated to either party. All arbitration proceedings shall take place in the Charleston, South Carolina area. The arbitrator’s costs shall be borne equally by both parties, and each party will be responsible for its own costs associated with preparation, discovery, and additional expenses to prosecute or defend an arbitration claim. The prevailing party in the arbitration proceeding will be entitled to recover its reasonable costs and attorney’s fees, in addition to any other relief granted as determined by the arbitrator. The arbitrator shall be bound by the express sections of this Agreement in deciding any arbitration claim. The arbitrator’s decision shall be final.
NOTICE REGARDING APPLE AND GOOGLE. You acknowledge that this EULA is between you and Barfrog only, not with Apple nor Google, and neither Apple nor Google is not responsible for the Service or the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, then you may notify Apple and Apple will refund the purchase price for the relevant Service to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including, but not limited to: (a) product liability claims; (b) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service or your possession and use of the Service infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms, when using the Service. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon your acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against you as a third party beneficiary of this EULA. You hereby represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. If Barfrog provides a translation of the English language version of this EULA, then the translation is provided solely for convenience, and the English version will prevail.