THESE TERMS CREATE A BINDING LEGAL CONTRACT BETWEEN YOU AND SARBARI, INC. (“Sarbari”). BY USING THE SERVICE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THESE TERMS, YOU MUST NOT USE – AND ARE NOT AUTHORIZED TO USE – ALL OR ANY PORTION OF THE SERVICE.
Sarbari offers two sign-up options. These terms and conditions will apply regardless of the option selected.
Option 1 (No commitment): Client Understand that by selecting this option they will be required to pay a setup fee as stated in the MyOrderPlacer Rate Sheet, and setup fee is due and payable as of the date of this agreement. Client will also be required to pay a monthly subscription for the service beginning on the date that Sarbari issues their logon credentials to the software (the “Go-Live” date). Client authorize Sarbari to use payment method on file for set-up fee, any reimbursable expenses and the monthly subscription fees. Client understand that they can terminate this agreement with 30 days’ written notice. Client also understand that they will be liable for the full setup fee and any such fees along with all other monies which may be owed at the time of termination will become due and payable immediately and Client authorize Sarbari to charge payment method on file accordingly.
Option 2 (12-Month Commitment): Client Understand that by selecting this option they are committing to a twelve-month subscription term (minimum commitment period). By doing so Client will NOT be required to pay an upfront setup fee, as stated in the MyOrderPlacer Rate Sheet. Client will only be required to pay a monthly subscription fee (as stated in the MyOrderPlacer Rate Sheet) and understands the first payment will start as of the date of this agreement and continue until the service is cancelled. Client authorize Sarbari to use payment method on file for set-up fee (if applicable), any reimbursable expenses and the monthly subscription fees. Client understand that they can terminate this agreement with 30 days’ written notice. Client also understand that if they choose to terminate this agreement prior to the end of the minimum commitment period, Client will be liable for the full setup fee and any such fees along with all other monies which may be owed at the time of termination become due and payable immediately and Client authorize Sarbari to charge payment method on file accordingly.
Sarbari offers the Service on a subscription-only basis to buyers of perishable foods, such as restaurants and grocery stores (“Buyers”) to enable online food order comparison pricing and purchasing. The Service Permits Buyers to obtain pricing quotes from the suppliers and sellers of food (“Suppliers”), and, where an agreement is reached on pricing, for a Buyer to initiate a purchase of food or merchandise from a Supplier. All transactions between Buyers and Suppliers take place directly between a Buyer and a Supplier pursuant to a purchase order (each a “Purchase Order”) entered into between the Buyer and a Supplier. Sarbari is not a party to a Purchase Order and simply provides the Service as a tool through which Buyers and Suppliers may connect with one another.
If you are using or opening an account on the Service on behalf of a company, entity or organization (each a “Subscribing Entity”), then you represent and warrant that you: (i) are an authorized representative of that Subscribing Entity with the authority to bind such entity to these Terms and (ii) agree to be bound by these Terms on behalf of such Subscribing Entity. Buyers and Suppliers may be Subscribing Entities. A Subscribing Entity may have multiple account users, for example, a Buyer Chain Supervisor, a Buyer Supervisor, Buyer Order Placer, and a Supplier Representative.
Changes to these Terms. The Website and portions of the Service are owned and operated by Sarbari. Sarbari reserves the right to revise these Terms in its sole discretion at any time and without prior notice to you other than by posting the revised Terms on the Website. However, in the event Sarbari elects to provide you with notice of any changes to these Terms, you hereby authorize Sarbari to provide you with such notice by e-mail. Any revisions to the Terms are effective upon posting. The Terms will be identified as of the most recent date of revision. It is incumbent upon you to visit this page periodically to ensure your continued acceptance of these Terms. Your continued use of the Service after a revised version of these Terms has been posted by Sarbari to the Website constitutes your binding acceptance of such revision and the revised Terms. Notwithstanding the preceding sentences of this Section 1.1, no revisions to these Terms will apply to any dispute between you and Sarbari that arose prior to the date of such revision.
1.2 Evolving Nature of Service. The Service may be modified, changed and/or improved at any time. If you disagree with the Terms or are in any way dissatisfied with the Service, we hope you will let us know by sending an e-mail to email@example.com, but your sole remedy is to discontinue your use of the Service.
1.3 Consideration. You understand and agree that these Terms are entered into in consideration of your use of the Service, as either a Buyer or Supplier, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged.
USE OF THE SERVICE
2.2 Purchase Orders. Each Buyer and Seller that enters into an agreement facilitated through the Service agrees to be subject to any Purchase Order entered into between such Buyer and Seller. Every Buyer and Seller acknowledges and agrees that Sarbari has no liability for any provision set forth in a Purchase Order or for any claims arising out of a Purchase Order, including a claim of non-performance or breach by one party to a Purchase Order.
The Service is not intended for persons under the age of 18. IF YOU ARE UNDER 18 YEARS OF AGE, YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. By using the Service, you affirm that you are at least 18 years of age. Sarbari does not seek through the Service to gather personal information from or about children under the age of 13.
You are prohibited from violating, or attempting to violate, the security of the Service. Any such violations may result in criminal and/or civil penalties against you, as well as the termination of your privilege to use the Service, at Sarbari’s sole discretion. Sarbari reserves the right to investigate any alleged or suspected violations and, if a criminal violation is suspected, refer such suspected violation to the appropriate law enforcement agencies and cooperate fully with such investigations, including, but not limited to, the disclosure of any or all of your activities on or related to the Service.
5.1 Log In Credentials. In order to use the Service you will have to register and log in using a user name and password. The Service permits multiple users to have access to the same account profile on the Service. You are responsible for maintaining the confidentiality of your credentials in order to use the Service, and are fully responsible for all activities that occur through the use of your credentials. You agree to notify Sarbari immediately of any unauthorized use of your credentials or any other breach of security with respect to your account. Sarbari will not be liable for any loss or damage arising from unauthorized use of your credentials prior to you notifying Sarbari of such unauthorized use or loss of your credentials. In the event of the termination of any employee or agent of a Subscribing Entity that has credentials to access the Service, the Subscribing Entity is solely responsible for either notifying Sarbari to terminate the user credentials for such employee or agent or terminating such user’s credentials through the Subscribing Entity’s Your Account page on the Service.
5.2 Accuracy of Information. You agree to provide true, accurate, current, and complete information about yourself (or the Subscribing Entity on whose behalf you are acting) and all employees or agents of a Subscribing Entity, if any, in any registration forms required by Sarbari. You also agree to update the information about yourself (or the Subscribing Entity on whose behalf you are acting) and all other authorized users promptly, and as necessary, to keep it true, accurate, current, and complete. If messages sent to an email address provided by you are returned as undeliverable, Sarbari reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party.
SUBSCRIPTIONS AND BILLING
6.1 Fees. No fees are charged to Suppliers by Sarbari. To access and use the Service as a Buyer, you must pay a subscription fee as set forth in the Fee Schedule [attached]. If you are a Buyer, then you agree to pay all fees and charges associated with your subscription to the Service. You agree to make payments in accordance with these Terms and the Fee Schedule. All fees are exclusive of applicable taxes (e.g., sales, use or value-added tax), unless otherwise stated, and you are solely responsible for the payment of any such taxes that may be imposed on your use of the Service. Sarbari reserves the right to change fees at any time and from time to time, but no increase in fees shall be applicable until the first renewal of your subscription following the date of any increase in fees. We will provide you with e-mail notification for any changes in our fees.
6.2 Payment Options. Sarbari offers the Service as a one-year subscription (the “Subscription Period”), which automatically renews for additional one-year periods upon expiration. Buyers will have following payment options: monthly or annual:
(a) Monthly Payments. The first monthly payment shall be due on the date of subscription (the “Subscription Date”) and each subsequent payment shall be due on the same day (depending on the date of the month that the subscription started) of subsequent months, unless terminated pursuant to the provisions of these Terms. Only credit card or ACH payment methods accepted for this option.
(b) Annual Payments (5% discount off subscription). The first annual payment shall be due on the Subscription Date and each subsequent payment shall be due on the one-year anniversary on the 1st day of the Subscription month.
6.3 Payment Method. In order to subscribe to the Service, you will need to provide a credit or debit card or arrange for a recurring Automated Clearing House (“ACH”) payment to Sarbari (your “Payment Method”). If you provide a credit or debit card as your Payment Method, you hereby authorize Sarbari to retain your Payment Method indefinitely and charge your Payment Method on a recurring basis in accordance with the then-applicable rates for the Subscription Period you elect. You are responsible for providing Sarbari with a current and valid payment method for the duration of your subscription. If your Payment Method expires or is rejected by the issuer of the Payment Method for any reason, then you will remain responsible for all charges related to your subscription, including any automatic renewal, and you agree to pay Sarbari all charges incurred by you but not collected through your Payment Method. Notwithstanding the preceding sentence, Sarbari reserves the right to terminate your subscription as of the end of the then-current Subscription Period or any date thereafter if your Payment Method for a renewal period is denied or rejected by your Payment Method provider. Access to the Service will be denied upon the termination of your subscription.
6.5 Termination of Subscriptions. All subscriptions are automatically renewed pursuant to the provisions of Section 6.4. Written notice is required 30 days prior to the next billing cycle if you wish to terminate your account. You will need to notify us in writing using one of the following methods either via U.S. Mail, overnight delivery, or via electronic mail. E-mail notification should be sent to firstname.lastname@example.org. The address for physical delivery is set forth in Section 15.4. If timing of the notice falls in the middle of a billing cycle date on which such automatic renewal is charged, you will be charged the applicable fee for such automatic renewal and the cancellation will take effect at the end of that period, subject to the refund provisions set forth in the Section 20.1. Similarly, if you elect to terminate your subscription prior to the end of any minimum commitment period, you will be liable for the setup fee (as stated on the Sarbari Rate Sheet) and such fees along with any and all other monies which maybe owed at the time of termination become due and payable immediately and you authorize Sarbari to charge your payment method on file accordingly. You may receive a partial refund depending on the payment method selected in accordance with the refund provisions set forth in Section 20.1.
7.1 In using the Service, you agree not to:
(a) Create a false identify or impersonate another person or entity in any way;
(b) Upload or otherwise transmit to or through the Service any information or content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
(c) Upload or otherwise transmit to or through the Service any unlawful, harmful, harassing, defamatory, threatening, vulgar, sexually explicit, hateful or otherwise objectionable material of any kind, or any material that can cause harm or delay to the Service or computers of any kind;
(d) Upload, post or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes or any other form of solicitation (commercial or otherwise);
(e) Restrict, discourage or inhibit any person from using the Service, disclose confidential or proprietary information about any Buyer or Seller using the Service or obtained from the Service without the consent of such person or entity or collect information about users of the Service;
(f) Undertake, cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling or hacking of any aspect of the Service or any part thereof, or attempt to do any of the foregoing, except and solely to the extent permitted by these Terms, the authorized features of the Service, or by law, or otherwise attempt to use or access any portion of the Service other than as intended by Sarbari;
(g) Gain unauthorized access to the Service, to other users’ accounts, names or personally identifiable information, or to other computers or websites connected or linked to the Service;
(h) Change or delete any information provided by any user of the Service unless you have the express permission of such user;
(i) Reproduce, distribute, publicly display, publicly perform, sell, trade, resell or exploit any portion of the Service, use of the Service, access to the Service or content obtained through the Service, for any purpose other than expressly permitted by these Terms, including, by way of example and not limitation, by doing or engaging in any of the following without Sarbari’s express written consent:
(i) copying, caching, recording, compiling, or reformatting any information obtained from the Service for commercial purposes in any fashion whatsoever, including, by way of example and not limitation, the pricing information of Suppliers or the transaction prices agreed to between Buyers and Suppliers;
(ii) framing, embedding and/or passing off information obtained from the Service in such a manner as to present the information as originating from a source other than the Service;
(iii) altering, defacing, mutilating or otherwise bypassing any approved software through which the Service is made available; and
(iv) using any trademarks, service marks, design marks, logos, photographs or other content belonging to Sarbari or any Buyers or Suppliers obtained from the Service;
(j) Post, transmit or otherwise make available any virus, worm, spyware or any other computer code, file or program that may or is intended to damage or hijack the operation of any hardware, software or telecommunications equipment, or any other aspect of the Service or communications equipment and computers connected to the Service;
(k) Remove, disable, damage, circumvent or otherwise interfere with any security-related features of the Service, features that prevent or restrict the use or copying of any part of the Service or any content on the Service, or features that enforce limitations on the use of the Service or any content on the Service;
(l) Use any scraper, spider, robot or other automated means of any kind to access the Service, except and solely to the extent permitted by these Terms and the features of the Service, deep-link to any feature or content on the Service, bypass any robot exclusion headers or other measures Sarbari may use to prevent or restrict access to the Service;
(m) Interfere with or disrupt the Service, networks or servers connected to the Service or violate the regulations, policies or procedures of such networks or servers;
(n) Violate any applicable federal, state or local laws or regulations or these Terms; or
(o) Assist or permit any persons in engaging in any of the activities described above.
8.1 SARBARI DOES NOT ENDORSE, SUPPORT, REPRESENT OR GUARANTEE THE ACCURACY, FRESHNESS, INTEGRITY, LEGALITY, QUALITY, RELIABILITY, SAFETY OR TRUTHFULNESS OF INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICES UNDERTAKEN, SUPPLIED OR DELIVERED ON OR THROUGH THE SERVICE. ALL INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICES PROVIDED BY A BUYER OR SUPPLIER BY OR THROUGH THE SERVICE ARE TO BE ATTRIBUTED SOLELY TO THE BUYER OR SUPPLIER PROVIDING SUCH INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICE. ANY RELIANCE YOU PLACE ON INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICES OBTAINED ON OR THROUGH THE SERVICE IS AT YOUR OWN RISK.
8.2 YOU FURTHER AGREE TO WAIVE, AND HEREBY DO WAIVE, ANY LEGAL OR EQUITABLE RIGHTS OR REMEDIES YOU HAVE OR MAY HAVE AGAINST SARBARI WITH RESPECT TO ANY INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICE OBTAINED ON OR THROUGH THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE FAILURE OF A SUPPLIER TO DELIVER FOOD PRODUCT OR OTHER MERCHANDISE OF THE QUALITY, QUANTITY OR DESCRIPTION SET FORTH IN A PURCHASE ORDER OR OTHER AGREEMENT, WHETHER ORAL OR WRITTEN, ENTERED INTO BETWEEN A BUYER OR SUPPLIER, AS THE CASE MAY BE. UNDER NO CIRCUMSTANCES WILL SARBARI BE LIABLE IN ANY WAY FOR OR IN CONNECTION WITH ANY INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICE, INCLUDING, BUT NOT LIMITED TO, FOR ANY INACCURACIES, ERRORS OR OMISSIONS, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE SELECTION, PURCHASE, ACQUISITION OR RECEIPT OF ANY INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICE PROVIDED ON OR THROUGH THE SERVICE.
8.3 THE SERVICE, AND ANY THIRD-PARTY CONTENT, SOFTWARE, SERVICES OR APPLICATIONS MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SERVICE, EXCLUDING ONLY INFORMATION, FOOD PRODUCT, MERCHANDISE AND ACTIVITIES PROVIDED BY A SUPPLIER, WHICH SHALL BE GOVERNED BY THE SEPARATE WARRANTIES PROVIDED BY THE SUPPLIER, IF ANY, ARE ON AN “AS IS,” “AS AVAILABLE,” “WITH ALL FAULTS” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE.
8.4 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SARBARI AND ITS AFFILIATES, PARTNERS, SERVICE PROVIDERS, AND LICENSORS HEREBY DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM SARBARI, AN EMPLOYEE OR REPRESENTATIVE OF SARBARI OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. SARBARI AND ITS AFFILIATES, PARTNERS, SERVICE PROVIDERS, AND LICENSORS DO NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN INFORMATION, MATERIAL, OR DATA THROUGH THE SERVICE OR ANY THIRD PARTY SITES OR APPLICATIONS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH INFORMATION, MATERIAL OR DATA.
INTELLECTUAL PROPERTY RIGHTS
9.1 Generally. All content made available on or through the Service, may be protected by copyright, patent or other intellectual property rights and owned by Sarbari or third party licensors of Sarbari. No content provided on or through the Service may be reproduced, distributed, publicly performed, publicly displayed, communicated to the public, or used for the creation of a derivative work without the written permission of the copyright owner thereof. Modification or use of materials obtained on or through the Service without authorization may be a violation of the copyrights and other proprietary rights of Sarbari or its licensors, and may subject you to liability for copyright infringement. All design rights, databases and compilation and other intellectual property rights, in each case whether registered or unregistered, and related goodwill, are proprietary to Sarbari.
9.2 Trademarks. All trademarks, service marks, logos and trade names on the Service, whether registered or unregistered, are proprietary to Sarbari or to other companies where so indicated, such as the marks of Suppliers. You may not reproduce, download or otherwise use any such trademarks, service marks, logos or trade names without the prior written consent of the appropriate owner thereof.
9.3 No Implied Rights. There are no implied licenses granted in these Terms.
LINKS TO THIRD PARTY SITES
10.1 The Service may provide links to Third-Party Sites. These links are for convenience only. If you use these links, you will leave the Service. Certain of these Third-Party Sites may make use of Sarbari proprietary intellectual property rights (such as copyrights, trademarks, service marks, logos and trade names) under license from Sarbari. Sarbari is not responsible for the availability or content of these Third-Party Sites or for any viruses or other damaging elements encountered in linking to a Third-Party Site, whether or not Sarbari is affiliated with the owners of such Third-Party Sites. In addition, the provisioning of these links to Third-Party Sites is not an endorsement or approval by Sarbari of the organizations sponsoring or operating such Third-Party Sites or their products or services. These Terms do not apply to Third-Party Sites, and you should review carefully applicable terms and policies, including any relevant privacy policies, associated with any Third-Party Sites, applications, software or services.
10.2 YOU AGREE THAT SARBARI WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY SUCH DEALINGS YOU MAY HAVE ON OR THROUGH A THIRD-PARTY SITE OR AS THE RESULT OF THE PRESENCE OF ANY THIRD-PARTY ADVERTISING ON THE SERVICE.
You agree to indemnify, defend, and hold harmless Sarbari and its parent, subsidiaries, affiliates, investors, sub licensees or any related companies, and licensors, and their respective directors, officers, employees, agents, representatives, contractors, and assigns, from all damages, injuries, liabilities, costs, fees and expenses (including, but not limited to, attorneys’ fees and court costs) arising from or in any way related to: (1) your use or misuse of the Service; (2) your purchase or receipt of any information, food product, merchandise or services on or through the Service; (3) your breach or other violation of these Terms, including any representations, warranties and covenants herein; and (4) your violation of the rights of any other person or entity. Notwithstanding the foregoing, Sarbari reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to defend Sarbari if Sarbari, in its reasonable discretion, concludes that you are not adequately protecting Sarbari’s interests or are incapable of protecting Sarbari’s interests, and you agree to cooperate with Sarbari’s defense of these claims. You agree not to settle any matter for which you are obligated to indemnify Sarbari or that requires an admission by or judgment against Sarbari without the prior written consent of Sarbari. Sarbari will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
LIMITATION OF LIABILITY
IN NO EVENT WILL SARBARI OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, OR LICENSORS BE LIABLE TO ANY PARTY FOR ANY DIRECT, INDIRECT, SPECIAL OR OTHER CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR ACCESS OF OR INABILITY TO USE OR ACCESS THE SERVICE, ANY INFORMATION, FOOD PRODUCT, MERCHANDISE OR SERVICE MADE AVAILABLE ON OR THROUGH THE SERVICE OR SOUGHT TO BE PURCHASED OR SOLD PURSUANT TO A PURCHASE ORDER ENTERED INTO WITH A BUYER OR SELLER ON THE SERVICE, OR ANY FOOD PRODUCT, MERCHANDISE OR SERVICE PURCHASED THROUGH THE SERVICE PURSUANT TO A PURCHASE ORDER ENTERED INTO WITH A BUYER OR SELLER ON THE SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, BUSINESS INTERRUPTION, OR OTHERWISE, WHETHER BASED IN TORT, CONTRACT OR OTHER LEGAL THEORY, EVEN IF SARBARI OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS OR LICENSORS ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, SARBARI SHALL HAVE NO LIABILITY UNDER A PURCHASE ORDER ENTERED INTO BETWEEN A BUYER AND A SUPPLIER FOR THE FAILURE OF PERFORMANCE BY EITHER OR BOTH THE BUYER OR SUPPLIER. IN NO EVENT SHALL SARBARI OR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SERVICE PROVIDERS BE LIABLE IN THE AGGREGATE FOR ANY DAMAGES INCURRED BY YOU THAT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS OR (B) THE AMOUNT OF FEES YOU HAVE PAID SARBARI IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
LIMITATIONS; BASIS OF THE BARGAIN
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, YOU AGREE THAT BECAUSE SUCH WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND SARBARI, AND ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND SARBARI, SARBARI’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU UNDERSTAND AND AGREE THAT SARBARI WOULD NOT BE ABLE TO OFFER THE SERVICE TO YOU ON AN ECONOMICALLY FEASIBLE BASIS WITHOUT THESE LIMITATIONS.
TERM AND TERMINATION
14.1 Term. These Terms, as amended, will be effective commencing with your first use or registration of the Service and will remain in full force and effect throughout your use of the Service, including the entirety of a Subscription Period.
14.2 Termination by Sarbari. Sarbari may terminate your use of the Service or any of our features or services at any time and for any reason, with or without notice, for conduct violating these Terms or upon Sarbari’s sole determination. You hereby agree to Sarbari’s broad right of termination. If Sarbari should terminate this Agreement before the expiration of any Subscription Period for which you have paid applicable fees for a reason other than your breach of these Terms, then Sarbari shall refund to you a prorated portion of such subscription fee pursuant to the formula set forth in Section 20.1.
14.3 Termination by You. You are free to terminate your use of the Service at any time. If you are a subscriber to the Service, your termination rights are set forth in Section 6.5.
NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENTS
15.1 Sarbari respects the intellectual property of others and takes the protection of copyrights and all other intellectual property very seriously, and we ask our users to do the same. Infringing activity will not be tolerated on or through the Service.
15.2 Sarbari’s intellectual property policy is to (1) remove material that Sarbari believes in good faith, upon notice from an intellectual property owner or their agent, is infringing the intellectual property of a third party by being made available through the Service, and (2) remove any content posted to the Service by “repeat infringers.” Sarbari considers a “repeat infringer” to be any user that has uploaded content to the Service and for whom Sarbari has received more than two takedown notices compliant with the provisions of 17 U.S.C. § 512(c) with respect to such content. Sarbari has discretion, however, to terminate the account of any user after receipt of a single notification of claimed infringement or upon Sarbari’s own determination.
15.3 Procedure for Reporting Claimed Infringement.
(a) 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 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 Sarbari to locate the material;
(iv) Information reasonably sufficient to permit Sarbari 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.
15.4 Designated Agent Contact Information. Sarbari’s Designated Agent for notices of claimed infringement can be contacted at:
Via E-mail: email@example.com
Via U.S. Mail:
PO Box 202
STOCKTON, NJ 08559
15.5 Counter Notification.
(a) If you receive a notification from Sarbari 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 Sarbari with what is called a “Counter Notification.” To be effective, a Counter Notification must be in writing, provided to Sarbari’s Designated Agent through one of the methods identified in Section 15.4, 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; and
(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 Sarbari may be found, and that the subscriber will accept service of process from the person who provided notification under Section 15.3 above or an agent of such person.
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.
15.6 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, shall 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 [Sarbari] 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.
Sarbari reserves the right to seek damages from any party that submits a notification of claimed infringement or counter notification in violation of the law.
15.7 For the avoidance of doubt, only notices submitted under the Digital Millennium Copyright Act and the procedures set forth in this Section 17 should be sent to the Designated Agent at firstname.lastname@example.org or to the postal address identified above. Any other comments, compliments, complaints or suggestions about Sarbari, the operation of the Service or any other matter should be sent to email@example.com.
The Site and the Service are controlled and operated by Sarbari from its offices within the State of Massachusetts. Sarbari makes no representation that materials on the Site or through the Service are appropriate or available for use in other locations. Those who choose to access or use the Service from other locations, including from outside the United States of America, do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable. Access to the Service from jurisdictions where the contents or practices of the Service are illegal, unauthorized or penalized is strictly prohibited.
18.1 Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND SARBARI AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
(a) Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to Sarbari, to you via any other method available to Sarbari, including via e-mail. The Notice to Sarbari should be addressed to: Sarbari, Inc., PO Box 202, Stockton, NJ 08559, Attn: President (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and Sarbari do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Sarbari may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against Sarbari, then Sarbari will promptly reimburse you for your confirmed payment of the filing fee upon Sarbari’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
(b) Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and Sarbari agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
(c) No Class Actions. YOU AND SARBARI AGREE THAT YOU AND SARBARI MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
(d) Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of Delaware in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms.
18.2 These Terms and your use of the Service shall be governed by the substantive laws of the State of Delaware without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and Sarbari under these Terms shall be subject to the exclusive jurisdiction of the commonwealth and federal courts located in Lehigh County, Pennsylvania, and you and Sarbari hereby submit to the personal jurisdiction and venue of these courts.
18.3 Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which Sarbari seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms by Sarbari or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against Sarbari, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms.
18.4 Claims. You and Sarbari agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms or the Service, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
18.5 Improperly Filed Claims. All claims you bring against Sarbari must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, Sarbari may recover attorneys’ fees and costs up to $5,000, provided that Sarbari has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
18.6 Disputes Between Buyers and Sellers. Any disputes arising between a Buyer and a Seller following the parties’ use of the Service, such as for breach of a Purchase Order, shall be resolved pursuant to the provisions of any Purchase Order entered into between the Buyer and Seller, if any, or as otherwise permitted by applicable law. To the maximum extent permissible under law, you hereby agree not to join Sarbari to any litigation between you and any other party to a Purchase Order or to seek discovery or other participation from Sarbari related to such litigation. If you join or involve Sarbari in any litigation between you and such other party to a Purchase Order (e.g., through discovery), then you hereby agree to reimburse Sarbari for all costs incurred by Sarbari in participating in or responding to such litigation, including outside attorneys’ fees.
19.1 Waiver. A provision of these Terms may be waived only by a written instrument executed by the party entitled to the benefit of such provision. The failure of Sarbari to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision.
19.2 Severability. In the event that any provision of these Terms is held by a court of competent jurisdiction to be void, voidable, unlawful or for any reason unenforceable, in whole or in part, such provision will be deemed and construed to extend only to the maximum permitted by law so as to effectuate the intent of the parties, and the remainder of this Agreement will continue in full force and effect and be enforceable according to its terms.
19.3 Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Sarbari without restriction. Any assignment attempted to be made by you in violation of these Terms shall be void. These Terms will be binding upon and inure to the benefit of the parties hereto, and their permitted successors and assigns.
19.4 Force Majeure. Sarbari will not be in default or otherwise liable for any delay in or failure of its performance under these Terms if such delay or failure arises by any reason beyond its reasonable control, including, but not limited to, any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, or any act or failure to act by Sarbari, its employees, agents, or contractors.
19.5 No Agency. You agree that no joint venture, partnership, employment, or agency relationship exists between you and Sarbari as a result of these Terms or use of the Service.
19.6 Survival. The provisions of these Terms that are intended to survive the termination of these Terms by their nature will survive the termination of these Terms, including, but not limited to, Sections 4 (Service Security), 7 (Prohibited Activities), 8 (Disclaimers), 9 (Intellectual Property Rights), 10 (Links to Third Party Sites), 11 (Indemnity), 12 (Limitation of Liability), 13 (Limitations; Basis of the Bargain), 16 (Privacy), 18 (Dispute Resolution), and 19 (Miscellaneous).
19.7 Headings. The heading references herein are for convenience purposes only, do not constitute a part of these Terms, and shall not be deemed to limit or affect any of the provisions hereof.
19.8 Entire Agreement. This is the entire agreement between you and Sarbari relating to the subject matter herein and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. These Terms shall not be modified except in a writing, signed by both parties, or by a change to these Terms made by Sarbari as authorized in these Terms.
19.9 Disclosures. The services hereunder are offered by Sarbari, Inc. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for this information. If you have any further questions, concerns or compliments about the Service, please e-mail us at support@Sarbari.com.
Sarbari offers a monthly on-line payment method. Sarbari offers invoicing for yearly payments only.
The availability of a refund depends on the frequency of your payments.
Monthly Payments. There are no refunds for monthly payments. Once your Payment Method has been charged for a particular month, the fee is non-refundable even if you terminate your account and/or use of the Service prior to the end of that month.
Annual Payments. If you elect to pay for your subscription annually, you may terminate your subscription early and receive a partial refund for the unused portion of your subscription subject to the payment of any applicable early cancellation fees. There are no refunds for partial months. Your partial refund will be calculated as follows:
Refund amount = [Your annual subscription fee] x [(the number of complete calendar months of unused Service that you have paid for) / (12 (annual subscriptions))]
For example, if you pay for your annual subscription on January 1 and elect to cancel on May 18, your refund will be 7/12 of annual fee (subject to applicable early cancellation fees).
If the Service becomes unavailable for an extended duration due to a failure within our control, we may elect to provide you with a credit for subscription fees paid by (a) extending the duration of a Subscription Period or (b) providing a monetary credit. The amount and form of such credits, and the decision to provide them, are at Sarbari’s sole and absolute discretion, and the provision of any credit in one instance does not entitle anyone to credits in the future.