ANY USE, INSTALLATION, DOWNLOAD, OR INTEGRATION OF THE PRODUCTS CONSTITUTES YOUR ACCEPTANCE OF THESE TERMS.
- DEFINITIONS. For purposes of these Terms, the following terms shall be defined as set forth below:
- “Account” shall mean a unique collection of data containing your account details—such as name, email, phone number, passwords, configurations, histories, and other unique data utilized by any instance of the Bark Jr Software, including, without limitation to access and use the Products.
- “API” or “APIs” mean the Application Protocol Interface(s) installed on any Bark Devices, User Device, or within any form of the Bark Jr Software, in its current or in its future form, that allows the Bark Devices, User device(s), or Company servers to communicate with, post information to, and display information from one another.
- “Authorized Dealer” means a third-party that is authorized by the Company to resell and distribute the Products on a stand-alone basis or integrated into a third-party device.
- “Bark Apps” means the application(s) that allow you to configure your Bark Devices, create user profiles, monitor network activity, interact with Bark Devices and User Devices, enable the functionality of the Bark Jr Services on a User Device without connecting to a Bark Device, and otherwise utilize the Bark Jr Services, and includes, without limitation, all future applications and future forms of the current application(s) created by the Company for any of the foregoing purposes.
- “Bark Devices” means the internet gateway product(s) sold by the Company, its affiliates or business partners on behalf of the Company, or their successors, with which the Bark Jr Software was designed to be used or which integrates the Bark Jr Software (including without limitation Company firmware), currently known as “Bark Home”, and including those products developed in the future, and products developed by third-party manufacturers that incorporate the Company’s technology and Bark Jr Software. For purposes of these Terms, “Devices” shall have the same meaning in singular as in plural.
- “Bark Jr Services” means the features and functionality provided by the Company accessible by Customers through a browser interface, via a downloadable application (including a Bark App), via a Bark Device or User Device, or through an API that provides Customers with a means of monitoring and controlling the internet activity of Managed Users and/or downloading content to Managed Users’ devices or computers.
- “Bark Jr Software” means the software through which the Bark Jr Services are delivered including, without limitation, the software installed on a Bark Device or User Device, any services or administration interface, any application, firmware, or binary code, in each case in its current or in its future form (including without limitation a Bark App), which enable Customer to interact with the API from an application dashboard, whether web-based or reduced to an application on a mobile device, or allow the Company to collect and/or analyze Customer Data, in each case in connection with Customer’s use of the Products.
- “Company” means Bark Technologies, Inc., a Delaware corporation.
- “Company Content” means the content of the Bark Jr Services, including, without limitation, designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, Usage Data (as defined below) and any other Company content.
- “Company Marks” means the trademarks, service marks, trade names, logos, and other marks associated with the Company, including, without limitation, “Bark”, “Bark Jr”, “Bark Home”, the Bark logo, and other Bark logos and product and service names.
- “Customer” means you, the individual accepting these Terms, or, if you are accepting on behalf of an entity, then the entity and any affiliates exercising rights under, and complying with all of the terms of, these Terms.
- “Customer Data” means electronic data and information submitted by or for Customer to the Bark Jr Services or collected and processed by Company for Customer as a result of Customer’s use of the Bark Jr Services, excluding Usage Data. Customer Data may include Personal Data.
- “Feedback” means feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Products provided by Customer or any Managed User.
- “Managed User” means a family member, minor dependent, or other person whose User Device(s) are monitored and/or managed through Customer’s use of the Products.
- “Personal Data” means any information that can be used to identify Customer, a Managed User or another individual and may include name, address, email address, phone number, login information (account number and password), or payment card number.
- “Products” as defined in first paragraph of these Terms.
- “Submissions” means user behavior data, which may include, but is not limited to: Customer and/or Managed User profile information; search strings and other content created and accessed using the Bark Jr Services; information about the type of device accessing the Bark Jr Services; Feedback, recommendations, feature requests, bug reports, and other communications.
- “Support Services” means services provided by Company to support Customer’s use of the Bark Jr Services, the Bark Jr Software, the Company Content, the API, the Bark Apps, and/or the Bark Devices.
- “Updates” means updates, upgrades, bug fixes, patches and other error corrections, modifications, deletions, and/or new features, functionality, tools or content.
- “Usage Data” means all information and data that the Bark Jr. Service generates in connection with Customer’s use thereof, including but not limited to, network policy, log and configuration information; threat intelligence data, URLs, metadata or net flow data; use statistics and information gathered via platform interfaces such as any Bark App, API calls and processes and Submissions.
- “User Device” means internet-enabled devices that are not provided by the Company or its affiliates or business partners, such as mobile phones, tablets, computers, routers, firewalls and other products and associated software with which the Products were designed to be used, including any such Product developed in the future.
- ACCOUNTS; USER CONDUCT; SUSPENSION.
- Account Setup. When Customer creates an Account, Customer will be asked to create a username and password, which Customer will be solely responsible for safeguarding. Customer is encouraged to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with the Account. Customer is also responsible for keeping Customer’s contact information accurate and up to date. Customer is solely responsible for any activity or actions on or through Customer’s Account, resulting from the use of Customer’s log-in credentials on the Bark Jr Services, whether or not Customer has authorized such activities or actions. Customer represents and warrants that the information Customer provided and provides to Company upon registration of the Bark Device, creation of an Account via the Bark Jr Software or Bark Apps, and at all other times will be true, accurate, current, and complete and Customer agrees to update such information as necessary to ensure that it remains complete, accurate and up-to-date. Customer agrees to notify Company immediately of any breach in secrecy of Customer’s log-in information and of any unauthorized use of Customer’s Account. If Customer has any reason to believe that Customer’s Account information has been compromised or that Customer’s Account has been accessed by a third party, Customer agrees to immediately notify Company by e-mail to email@example.com. Company cannot and will not be liable for any loss or damage arising from Customer’s failure to comply with the above requirements, and Customer will be solely responsible for the losses incurred by Company and others due to any unauthorized use of Customer’s Account.
- Eligibility to Use Bark Jr Services. The Bark Jr Services are designed to be administered by adults on behalf of a family or community. To the extent that Customer is a parent in a household having two parents, both parents must share credentials to allow both parents to act as administrators for their household. Parents and legal guardians of minor children, please be advised that we do not recommend that children under the age of 18 be given administrative access to the Bark Jr Services, with or without supervision. Child or dependent accounts (as established by administrators) are not given administrative access unless an administrator specifically grants such permissions to a specific user account. Each Customer and/or user that signs on as an administrator, represents and affirms that such Customer and/or user is the age of 18 or older, or that a person who is their parent or guardian gave them permission, in writing, that they can act as an administrator. Each Customer and/or user that has a child or ward under the age of 18 acting as an administrator, represents and affirms that such Customer or user appointed such child or ward as an administrator and agreed in writing that such child or ward could act as an administrator for such Customer or user on behalf of the family or community.
- Managed Users. Customer hereby represents that Customer has all necessary authority and/or has obtained all necessary consents from each Managed User to enable Company to access, use and disclose each Managed User’s Personal Data as necessary for Company to provide the Bark Jr Services. Company retains the right, but not the obligation, to confirm the consent of any Managed User. In the event a Managed User does not confirm his/her consent, Company may remove the Managed User from Customer’s Account.
- User Conduct Guidelines. Any time Customer accesses or uses the Products, Customer is required to comply with Company’s user conduct guidelines, as follows:
- Customer agrees that Customer will access and use the Products for Customer’s personal, family, community, or internal business use only, and not on behalf of any third party.
- Customer is not authorized to access or use the Products:
- to impersonate any person or entity, or falsify or otherwise misrepresent Customer’s identity, credentials, affiliations or intentions;
- to collect, store, or use any information from or about a Managed User without such Managed User’s authorization and consent;
- to “stalk” or harass a Managed User;
- if Customer is not able to form legally binding contracts (for example, if Customer is under 18, and does not have the consent of Customer’s parent or guardian);
- if Customer is a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
- for any other purposes that are not expressly permitted by these Terms.
- Misconduct; Investigations.
- Right to Monitor Access. You acknowledge that Company has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Bark Jr Services by any user if Company believes in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against Company, (iii) to enforce and to ensure a user’s compliance with these Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of Company, its other users or members of the public, and (vi) for the purpose of operating and improving the Bark Jr Services and Bark Devices (including for customer support purposes). Company reserves the right, but assumes no obligation, to investigate and take appropriate action in response to reports of misconduct. Regardless of its action or inaction, in no event will Company be liable for the acts or omissions of any Customer, Managed User or any third party.
- Cooperation by Customer. Customer agrees to cooperate with and assist Company or its representative in good faith in any such investigations, including by providing us with such information as Company may reasonably request.
- California Residents. If Customer is a California resident, Customer may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
- Account Suspension and Cancellation. Company may, in its discretion, without liability to Customer and without limiting Company’s other remedies, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel Customer’s Account and take technical and legal steps to prevent Customer from using the Bark Jr Services at any time if Company reasonably believes that Customer has breached these Terms. If Company has suspended Customer’s Account due to Customer’s actual or suspected breach of these Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Company’s reasonable satisfaction. If Customer’s Account is deactivated or cancelled, Company will have the right, but not the obligation, to delete Customer’s information.
- LICENSE GRANT; RESTRICTIONS.
- License Grants. Subject to the terms and conditions of these Terms, Company hereby grants to Customer a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited license only (i) to install, administer, and operate the Bark Device as part of a home network or any other compatible network over which Customer has administrative authority; (ii) to install and integrate the Bark Jr Software in conjunction with Customer’s network, User Device(s), and other devices designed to access the Bark Jr Services and/or the Account; (iii) to use the Bark Jr Software in complete, unmodified form on any such home network, computer, mobile device, User Device, Bark Device, or other device designed to interact with the Bark Jr Services; (iv) to access the Bark Jr Services and use the features and functionality provided by Company via the Bark Jr Services; and (v) to access and use the Company Content solely for the personal, non-commercial use by Customer, and Customer’s Managed Users. Any other use is expressly prohibited. Unauthorized use of the Company Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited.
- Restriction on Modification. Customer may not modify the Bark Devices, Bark Jr Software, Company Content, or the Bark Jr Services for use in any way other than as described in Section 3.1. Any such modification will void any warranties, whether express or implied, on the Bark Devices and the Bark Jr Software, and subject Customer to immediate termination of the Bark Jr Services. Further, any tampering with, destruction of, or other alteration of a Bark Device will void any warranties, express or implied, on the Bark Device. If and to the extent that the Bark Jr Software is designed to be compliant with any published communications standard (including, without limitation, Bluetooth SIG, IEEE, and ITU standards), Customer may not make any modifications to the Bark Jr Software that would cause the Bark Jr Software or the accompanying Bark Device to be incompatible with such standard.
- Restriction on Distribution. Customer shall not distribute or provide access to any of the Products, nor hold itself out as a distributor, author, or creator of any of the Products, nor lead others to believe through implicit or explicit means that it has the right to sublicense or otherwise distribute or provide access to any of the Products. Customer may not loan, lease, rent, distribute, resell, or otherwise distribute or provide access to the Products other than as provided by the terms of these Terms without the express written consent of Company.
- Ownership. Company shall retain all right, title and interest, including all intellectual property rights, in and to (i) the design and technical specifications of the Bark Devices; (ii) all current or future Company applications, including the Bark Apps; (iii) the Bark Jr Software; (iv) the Bark Jr Services; and (v) the Company Content. Furthermore, Customer acknowledges and agrees that the source code and object code of the Bark Jr Software and the format, directories, queries, algorithms, structure and organization of the Bark Jr Software are the intellectual property and proprietary and confidential information of Company and/or its collaborators, licensors and suppliers. Customer hereby acknowledges and agrees that it has no rights in or to any Product(s) apart from those granted in these Terms. Customer hereby covenants that it will not assert any claim that any Product(s) provided by Company hereunder and used or accessed by Customer from time to time, regardless of whether created by or for Company, including any derivative works thereof, infringes any intellectual property right owned or controlled by Customer. Customer acknowledges and agrees that the Bark Jr Software, API, and all Company Content and the compilation (meaning the collection, arrangement, and assembly) of all Company Content are the property of Company or its licensors and are protected under copyright, trademark, and other laws.
- No Other Rights Granted. Apart from the license rights expressly set forth in these Terms, Company does not grant and Customer does not receive any ownership right, title or interest nor any security interest or other interest in or to any intellectual property rights relating to the Bark Devices, the Bark Jr Services, Company Content, API, and/or the Bark Jr Software, nor in or to any copy of any part of the foregoing. Customer shall not have any right to grant a security interest in or to the Bark Jr Services, Company Content, API, and/or the Bark Jr Software, or to any intellectual property relating to the foregoing or to the Bark Device.
- Proprietary Notices. Customer shall not remove, efface or obscure any copyright or trademark notices from the Company Content, Bark Jr Software or the Bark Jr Services or from any copies thereof. Customer acknowledges that any symbols, trademarks, tradenames, and service marks adopted by Company to identify any Product belong to Company and that Customer shall have no rights therein.
- Third-Party Content. The Bark Jr Services may contain content from Company’s partners and licensors. Except as provided within these Terms, Customer may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, make derivative works based on, or sell any content appearing on or through the Bark Jr Services. Customer understands and agrees that Customer will not obtain, as a result of its use of the Bark Jr Services, any right, title, or interest in or to the Company Content, or any third party delivered via the Bark Jr Services or in any intellectual property rights therein (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights).
- Company Marks. Customer acknowledges and agrees that the Company Marks are trademarks of Company. Without Company’s prior written permission, and except as solely enabled by any link as provided by Company, Customer agrees not to display or use in any manner the Company Marks.
- Feedback. Customer acknowledges and agrees that all Feedback will be the sole and exclusive property of Company. Without limiting the foregoing, Customer acknowledges that Feedback may be disseminated or used by Company or its affiliates for any purpose whatsoever, including developing, improving and marketing products. Customer hereby irrevocably transfers and assigns to Company all of Customer’s rights, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waives any moral rights Customer may have in such Feedback.
- Customer Data. Company claims no ownership over Customer Data. Customer grants Company a world-wide, perpetual, irrevocable, non-exclusive, sub-licensable, royalty-free, transferable license to reproduce, distribute, publicly display, publicly perform, create derivative works of, and otherwise use, modify, and exploit Customer Data for the purposes of providing the Bark Jr Services. As between Company and Customer, Customer retains all copyright and trademark rights to any of the Customer Data an
- DATA PROTECTION AND PRIVACY.
- California Consumer Privacy Act. Except as expressly set forth in these Terms, Company shall not (a) have, derive or exercise any rights or benefits regarding Customer’s Personal Information, (b) Sell Customer’s Personal Information, or (c) collect, retain, share or use Customer’s Personal Information except as necessary for the sole purpose of performing the Bark Jr Services. Company agrees to refrain from taking any action that would cause any transfers of Customer’s Personal Information, either to Company or from Company, to qualify as a Sale of Personal Information under the California Consumer Privacy Act (“CCPA”). Company understands and agrees to comply with the restrictions set forth in this Section and the applicable requirements of the CCPA. For the purposes of this Section, Company is a Service Provider and the terms “Personal Information”, “Sell”, “Sale”, and “Service Provider” shall have the same meaning as in the CCPA.
- International Data Transfers. Company may process and store Customer Data outside of the country where it was collected. Company will only transfer Customer Data that constitutes Personal Data in accordance with applicable law.
- Communications. By using the Bark Jr Services or providing Personal Data to Company, Customer agrees that Company may communicate with Customer electronically regarding security, privacy, and administrative issues relating to Customer’s use of the Bark Jr Services, as well as for product releases, product updates, marketing events, and third-party products or services Company would like to communicate with Customer about. If Company learns of a security breach, Company may attempt to notify Customer electronically by posting a notice on the Bark Jr Services or sending an email to Customer. Customer may have a legal right to receive this notice in writing. To receive written notice of a security breach (or to withdraw Customer’s consent from receiving electronic notice), please write to Company at firstname.lastname@example.org.
- LIMITATIONS OF THE BARK JR SERVICES.
- Content Blocking Not Guaranteed. Customer acknowledges that use of the Bark Jr Services does not guarantee that content Customer deems objectionable will be 100% unavailable at all times or at any time. Customer assumes full risk and responsibility for the use of or reliance on the Bark Jr Services as regards content blocking. “False positive” content blocking may occur from time to time or at any time. Company strives to allow sufficiently granular control of content filters to allow educational or meritorious content through, if that is the intent of the user. However, there is no guarantee that some content that Customer would deem acceptable will not be blocked by the Bark Jr Services. In the event that Customer believes Company is mis-categorizing a site or service, please contact Company support at email@example.com to submit the issue for review.
- Service Limitations. There are certain circumstances that may limit the availability or effectiveness of the Bark Jr Services, including:
- Service Area – The Bark Jr Services are currently configured for use in the local jurisdiction in which Customer registered for the Bark Jr Services. For example, users that registered for the Bark Jr Services in the United States will be limited to use of the Bark Jr Services only in the United States, and users that registered for the Bark Jr Services in another country will be limited to use of the Bark Jr Services in such country.
- Service Interruptions – The Bark Jr Services can be interrupted for any reason that disrupts internet access or GPS capabilities, including in the event of: (a) electrical power outages, (b) natural disasters, (c) electronic interference, (d) an outage affecting the data transport service, (e) failure of originating or terminating access lines, (f) network congestion and/or reduced routing speed of Company’s network or another network (for example, due to spikes in call volume in the wake of local or national disasters), causing failed calls, busy signals or unexpected answering wait times (which may be longer than emergency calls placed via traditional telephone networks), (g) compatibility issues, or (h) equipment failures relating to your equipment (e.g., your mobile phone) or Company’s equipment, including, hardware or software failures or misconfiguration affecting Company, its offices, data centers, and/or any of its service providers.
- WARRANTY AND SUPPORT.
- Limited Warranty on the Bark Devices. This limited warranty covers the operation of Bark Devices in Customer’s home network. All Bark Devices carry a warranty of operability for a period of twelve (12) months from the date of purchase from an Authorized Dealer. If a Bark Device fails to power on, does not successfully initialize, or otherwise fails due to a manufacturing defect or through the normal use or wear of the Bark Device when used in accordance with Company’s applicable specifications during the warranty period, CUSTOMER’S FIRST RECOURSE FOR REFUNDS OR EXCHANGES IS TO THE RETAILER WHERE THE DEVICE WAS PURCHASED ACCORDING TO THE RETAILER’S RETURN POLICIES. If the retailer is unable to exchange or refund the purchase, Customer may send the malfunctioning device, along with a copy of the purchase receipt, a return material authorization (“RMA”) number issued in advance by our technical support agent, and, if applicable, a description of the problems encountered, to:
Bark Technologies, Inc.
Attn: Bark Device Replacements
3423 Piedmont Rd NE, Suite 400
Atlanta GA 30305
You will need to provide proof of purchase or proof of installation by an Authorized Dealer when requesting an RMA number. The RMA number must be included on the outside carton label of the returned Bark Device. Company will inspect the Bark Device and any accompanying documentation of malfunction. After such inspection, and depending upon the findings of such inspection, Company may, at its discretion: (i) return the Bark Device to the Customer with a certification that it is functional; (ii) repair any manufacturing defect or malfunction caused by the normal use or wear of the Bark Device when used in accordance with Company’s applicable specifications, and then return the Bark Device to the Customer with a certification that a repair has been made, and that the Bark Device should now function according to Company’s applicable specifications; (iii) issue a refund to Customer; (iv) send a replacement Bark Device to Customer; or (v) notify Customer that the device is not subject or entitled to the limited warranty. IF THE BARK DEVICE IS SUBJECT AND ENTITLED TO THE LIMITED WARRANTY, CUSTOMER SHALL BE ENTITLED UNDER THIS SECTION TO A REFUND OF ITS PURCHASE PRICE, REPAIR OF ITS BARK DEVICE, OR A REPLACEMENT BARK DEVICE, AT COMPANY’S ELECTION. CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS LIMITED WARRANTY DOES NOT COVER ANY WEAR OR DAMAGE RESULTING FROM THE INCORRECT USE OF A BARK DEVICE, AND PROVIDES NO OTHER REMEDIES OR IMPLIES ANY LIABILITY ON COMPANY’S PART. This limited warranty gives you specific legal rights, and you may also have other rights which vary from state to state.
- Third Party Hardware. Insofar as the Customer utilizes the Bark Jr Software installed on third-party hardware, including without limitation a User Device, any questions or concerns related to the functioning of the hardware must be handled in accordance with the third party’s expressed warranty and remediation processes. Company in no way assumes responsibility for the functionality or operability of third-party hardware.
- Disclaimer of Warranties.
THE BARK DEVICES, THE SUPPORT SERVICES, THE API, THE COMPANY CONTENT, AND THE SOFTWARE ARE ALL OFFERED “AS IS” AND “WITH ALL FAULTS.” TO THE EXTENT PERMITTED BY LAW, AND APART FROM THE LIMITED WARRANTY IN SECTION 7.1, COMPANY GRANTS AND CUSTOMER RECEIVES NO WARRANTIES OF ANY KIND, WHETHER ESTABLISHED BY STATUTE, COMMUNICATION OR CONDUCT WITH CUSTOMER, OR OTHERWISE. COMPANY DISCLAIMS ALL AND GRANTS NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT CONCERNING ANY PRODUCT(S), OR ANY UPGRADES TO OR DOCUMENTATION FOR ANY OF THE PRODUCT(S). WITHOUT LIMITATION OF THE ABOVE, COMPANY GRANTS NO WARRANTY THAT THE PRODUCTS OR SUPPORT SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING THEIR USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, THEIR CORRECTNESS, ACCURACY OR RELIABILITY. THIS SECTION SHALL SURVIVE TERMINATION OF THESE TERMS.
FURTHERMORE, COMPANY AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS MAKE NO WARRANTY THAT (I) THE PRODUCTS OR SUPPORT SERVICES WILL MEET YOUR REQUIREMENTS; (II) USE OF THE PRODUCTS WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY, SECURE, FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS OR ERROR-FREE; (III) THE QUALITY OF ANY PRODUCTS, SUPPORT SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH USE OF THE PRODUCTS WILL BE AS REPRESENTED OR MEET YOUR EXPECTATIONS; OR (IV) ANY ERRORS IN THE PRODUCTS WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR FROM USE OF THE PRODUCTS OR SUPPORT SERVICES SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY. FURTHERMORE, YOU ACKNOWLEDGE THAT COMPANY AND ITS COLLABORATORS, SUPPLIERS AND LICENSORS HAVE NO OBLIGATION TO CORRECT ANY ERRORS OR OTHERWISE.
- Customer Acknowledgements and Warranties. Customer represents and warrants to Company that:
- Customer has the power and authority to accept and agree to the Terms;
- Customer owns or controls all of the rights necessary to grant the rights and licenses granted herein, including, without limitation, all necessary authority and right to monitor and collect the Customer Data collected by or through the Bark Jr Services;
- Customer has requested and received the consent of all Managed Users, including to share their Personal Data with Company;
- To the extent Customer has installed or otherwise uses a Bark Device, Customer has informed or will inform all persons using Customer’s network that their activities will be monitored by the Bark Jr Services and any related data, including Customer Data concerning all Managed Users, may be accessed by Customer and/or the Company or the applicable Authorized Dealer;
- Customer will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Customer Data or otherwise in connection with Customer’s access to or use of the Products;
- the exercise by Company of the rights granted by Customer hereunder will not cause Company to violate any applicable laws, rules or regulations, or to infringe the rights of any third party; and
- all account information provided by Customer will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
- Modifications and Updates. Company reserves the right, in its sole discretion, to modify or discontinue offering any Product(s), in whole or in part, including any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to Customer. Company may from time to time develop and provide Updates for the Products. Updates may also modify or delete features, functionality, tools or content in their entirety. Based on Product settings, when Product(s) are connected to the internet either: (a) the Updates will automatically download and install; or (b) Customer may receive notice of or be prompted to download and install available Updates. Customer agrees to promptly download and install all required or automated Updates made available by Company from time to time, including all available patches to address security, interoperability or performance issues. If Customer does not install the latest Updates, portions of the Products may not properly operate. All Updates will be deemed part of the Products and be subject to all terms and conditions of these Terms. Customer agrees that Company has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuances or deletions.
- Supported Uses. Use of the Products is limited to the systems and applications that are supported. Customer is required to read the documentation delivered with the Products or provided online by Company to determine if its intended use is supported. The Products are not designed, intended, or certified for use in components of systems intended for the operation of weapons, weapons systems, nuclear installations, means of mass transportation, aviation, life-support computers or equipment (including resuscitation equipment and surgical implants), pollution control, hazardous substances management, or for any other dangerous application in which the failure of the Products could create a situation where personal injury or death may occur. Customer understands that use of the Products in such applications is fully at the risk of Customer.
- Permission to Access; Support. Customer understands and agrees that directly requesting Support Services through any communication channel for the setup, continued use, or technical troubleshooting of its Products or Account will also constitute express permission to allow Company or its duly authorized support representatives to access Customer’s Products, User Device or Account details remotely for the sole purposes of viewing or changing logs, configurations, software processes, or any other information stored locally on such Products, User Device or in Company servers. Company requires such access in order to troubleshoot, debug, or optimize the setup or use of Customer’s Bark Jr Services. Customer may limit the level of access Company or its duly authorized support representatives have to Customer’s Products or User Devices or Account only by explicitly stating at the moment of the support request the specific limitations they wish to impose with regard to the logs, diagnostics, configurations, software processes, or other locally-stored information. Customer agrees that nothing in these Terms shall obligate Company to provide any Support Services for the Products. Company may, but shall be under no obligation to, correct any defects in the Products and/or provide updates to the Products. Customer shall make reasonable efforts to promptly report to Company any defects it finds in the Products, as an aid to creating improved revisions of the Products. CUSTOMER UNDERSTANDS THAT THE SUPPORT SERVICES AND ALL INFORMATION, CONTENT, OR MATERIALS INCLUDED IN OR MADE AVAILABLE AS PART OF THE SUPPORT SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SUPPORT SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION, CONTENT OR MATERIALS OBTAINED OR MADE AVAILABLE TO YOU THROUGH THE SUPPORT SERVICES. YOUR USE OF THE SUPPORT SERVICES AND ALL INFORMATION, CONTENT OR MATERIALS INCLUDED IN OR MADE AVAILABLE AS PART OF THE SUPPORT SERVICES IS AT YOUR SOLE RISK. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING DISCLAIMERS AND LIMITATIONS ARE IN ADDITION TO, AND NOT IN SUBSTITUTION OF, THE DISCLAIMERS AND LIMITATIONS SET FORTH IN SECTIONS 7.2 AND 10 OF THESE TERMS.
- TERM AND TERMINATION.
- Term, Termination. These Terms shall continue in full force and effect for as long as Customer uses any Product. These Terms will automatically terminate if Customer fails to comply with any of the terms and conditions hereof, subject to a fifteen (15) day notice and cure period in the absence of willful misconduct. Customer may terminate these Terms at any time by discontinuing all use of the Products and providing Company at least thirty (30) days’ prior written notice of such termination.
- Effect of Termination. Upon any termination of these Terms, the rights and licenses granted to Customer under these Terms shall immediately terminate and all payments owed by Customer to Company through the effective date of such termination will be promptly paid to Company.
- Survival. The rights and obligations under these Terms which by their nature should survive termination, including but not limited to the Sections entitled “Ownership”, “Disclaimer of Warranties”, “Confidentiality”, “Limitation of Liability”, “Indemnity”, and “Miscellaneous” will remain in effect after expiration or termination of these Terms.
- Obligations. Customer acknowledges and agrees that any documentation relating to the Products, and any other information (if such other information is identified as confidential or should be recognized as confidential under the circumstances) provided to Customer by Company hereunder shall constitute “Confidential Information” of Company, and that Customer’s protection thereof is an essential condition to Customer’s use and possession of the Products. Customer shall: (a) retain all Confidential Information in strict confidence and not disclose it to any third party unless otherwise required to comply with law or a binding order of a court of governmental authority with the authority to require disclosure. Customer will exercise at least the same amount of diligence in preserving the secrecy of the Confidential Information as it uses in preserving the secrecy of its own confidential information, but in no event less than reasonable diligence. Information shall not be considered Confidential Information if and to the extent that it: (i) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Customer; (ii) was known to the Customer, without restriction, at the time of disclosure as proven by the files of Customer in existence at the time of disclosure; or (iii) was developed by or for Customer without use or knowledge of or access to Confidential Information or violation of these Terms or (iv) becomes known to Customer, without restriction, from a source other than Company without breach of these Terms by Customer and otherwise not in violation of Company’s rights.
- Return of Confidential Information. Notwithstanding the foregoing, all documents and other tangible objects containing or representing Confidential Information and all copies thereof which are in the possession of Customer shall be and remain the property of Company, and shall be promptly returned to Company or destroyed, and all electronic copies deleted, upon written request by Company or upon termination of these Terms.
- Injunctive Relief. In addition to any other rights and remedies available to Company hereunder or at law, Customer acknowledges and agrees that any breach of confidentiality and non-disclosure such obligations may result in irreparable and continuing damage to Company for which there will be no adequate remedy in damages, and the Company will be authorized and entitled to seek injunctive relief, without the necessity of posting a bond even if otherwise normally required, and/or a decree for specific performance, and such further relief as may be proper from a court with competent jurisdiction.
- LIMITATIONS OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY OR ANY OF COMPANY’S COLLABORATORS, SUPPLIERS OR LICENSORS NOR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AND AGENTS, BE LIABLE FOR ACCIDENTS, PROPERTY DAMAGE, PERSONAL INJURY, DEATH, OR HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF THESE TERMS OR YOUR USE OF THE PRODUCTS OR SUPPORT SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, WHETHER OR NOT THE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL COMPANY’S LIABILITY ARISING FROM YOUR USE OF THE PRODUCTS OR SUPPORT SERVICES, OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT PAID BY CUSTOMER TO COMPANY FOR THE PRODUCTS DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE COMMENCEMENT OF SUCH CLAIM. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THESE OBLIGATIONS SURVIVE TERMINATION OF THESE TERMS. IN SOME JURISDICTIONS LIMITATIONS OF LIABILITY ARE NOT LEGALLY BINDING.
Customer agrees to defend and indemnify Company and its licensors from and against any damages, costs, liabilities, settlement amounts and/or expenses (including attorneys’ fees) incurred in connection with any claim, lawsuit or action by any third party that arises or results from (i) the unauthorized use or distribution of the Products by the Customer; (ii) Customer Data; (iii) Customer’s breach of these Terms or applicable law, or (iv) Customer’s gross negligence or willful misconduct. Customer agrees that, at Company’s option, Customer will conduct the defense of any such claim or action; provided that, notwithstanding Company’s election that Customer conduct the defense, (a) Company may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (b) Customer will not enter into any settlement or other compromise without the prior written approval of Company (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
- PAYMENT; AUTHORIZED DEALERS; THIRD PARTIES.
- Purchases and Payment Terms. If Customer purchased Products directly from the Company, Customer hereby authorizes Company to charge Customer’s credit card on file in the amounts and on such payment dates as set forth in Customer’s Account. If Customer purchased Products through an Authorized Dealer, all payment-related terms (including, but not limited to, pricing, invoicing, billing, payment methods, delivery, returns, and late payment charges) will be set forth in Customer’s agreement directly with such Authorized Dealer. Company may suspend or terminate Customer’s access to the Bark Jr Services in the event of non-payment of the applicable fees to Company by Customer or the Authorized Dealer, as applicable. Notwithstanding anything to the contrary, the agreement between Customer and Authorized Dealer: (i) shall not modify any of the terms set forth herein, and (ii) is not binding on Company.
- Customer Data. If Customer purchased Products through an Authorized Dealer, Customer acknowledges and agrees that such Authorized Dealer may have access to Customer Data, including all data that may be captured or stored on a Bark Device as a result of Customer’s use of the Bark Jr Services. Customer acknowledges and agrees that Company is not liable in any way with respect to such access or use of Customer Data by an Authorized Dealer.
- Third Party Charges and Mobile Alerts. Customer is solely responsible for any fees or charges incurred to access the Products through an internet access provider or other third party, including without limitation data charges incurred if Customer is not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to Customer or deducted from Customer’s prepaid balance by Customer’s mobile provider. Customer agrees that Company is not liable in any way for any third-party charges.
- Links to Third Party Websites. The Bark Apps and the Bark Jr Services may also provide links to third-party websites, resources or services. Customer acknowledges and agrees that Company is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Company of such websites, resources or services or the content, products or services available on or through such websites, resources or services. Customer acknowledges sole responsibility for and assumes all risk arising from Customer’s use of any such websites, resources or services or the content, products or services available on or through such websites or services. Company will not be responsible or liable for any damage or harm resulting from Customer’s interactions with such websites or services, or the content, products or services available on or through such websites or services.
- Export Regulations. CUSTOMER UNDERSTANDS AND AGREES THAT THE PRODUCTS ARE SUBJECT TO UNITED STATES AND OTHER APPLICABLE EXPORT-RELATED LAWS AND REGULATIONS AND THAT CUSTOMER MAY NOT EXPORT, RE-EXPORT OR TRANSFER THE PRODUCTS EXCEPT AS PERMITTED UNDER THOSE LAWS. WITHOUT LIMITING THE FOREGOING, EXPORT, RE-EXPORT OR TRANSFER OF THE PRODUCTS TO CUBA, IRAN, NORTH KOREA, SUDAN AND SYRIA IS PROHIBITED.
- Assignment. These Terms shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, provided, however that Customer may not assign these Terms or any rights or obligation hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of Company, and any such attempted assignment shall be void. Company may assign these Terms without notice to an affiliate or a successor to all or substantially all of its business or assets to which these Terms relate.
- Governing Law; Venue. These Terms shall be governed by the laws of Georgia without regard to any conflict-of-laws rules, and the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in the county of Fulton, Georgia, and Customer hereby consents to such exclusive jurisdiction and venue.
- Severability. All terms and provisions of these Terms shall, if possible, be construed in a manner which makes them valid, but in the event any term or provision of these Terms is found by a court of competent jurisdiction to be illegal or unenforceable, the validity or enforceability of the remainder of these Terms shall not be affected if the illegal or unenforceable provision does not materially affect the intent of these Terms. If the illegal or unenforceable provision materially affects the intent of the parties to these Terms, these Terms shall become terminated.
- Equitable Relief. Customer hereby acknowledges that its breach of these Terms would cause irreparable harm and significant injury to Company that may be difficult to ascertain and that a remedy at law would be inadequate. Accordingly, Customer agrees that Company shall have the right to seek and obtain immediate injunctive relief to enforce obligations under these Terms in addition to any other rights and remedies it may have, without the obligation to post a bond even if ordinarily required.
- Waiver. The waiver of, or failure to enforce, any breach or default hereunder shall not constitute the waiver of any other or subsequent breach or default.
- Prohibition of Class and Representative Actions and Non-Individualized Relief. CUSTOMER AGREES THAT CUSTOMER MAY BRING CLAIMS AGAINST COMPANY ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVES THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH CUSTOMER AND COMPANY OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
- Updates to Terms. Company reserves the right to alter or amend these Terms at any time, in its sole discretion. Company shall provide notice of any changes thirty (30) days prior to such change, by email or mail to Customer or by posting a new version of these Terms on its website. Customer’s continued use of any Product subsequent to such revision shall be deemed acceptance of the amended terms and Customer’s sole alternative shall be to terminate these Terms and cease use of the Products.
- Notices. Any notices required or permitted by these Terms shall be made in writing and may be made (i) by email to the last provided email address for Customer, in the case of Customer, or to firstname.lastname@example.org, in the case of Company; or (ii) by certified mail or nationally-recognized overnight courier to the principal office of the parties, or to any address previously provided by a party to the other party by like notice.
- Entire Agreement. These Terms set forth the entire agreement between the parties and supersedes any and all prior proposals, agreements and representations between them, whether written or oral concerning the Products.
- THIRD PARTY SPECIFIC PROVISIONS.
- iOS Store. The following provisions apply to Products downloaded from the iOS Store:
- Acknowledgement. Customer acknowledges that these Terms are between Customer and the Company and not with Apple, Inc. or any of its affiliates (collectively, “Apple”) and that the Company, and not Apple, is solely responsible for the Products and the content thereof.
- Scope of License. The license granted to Customer hereunder for use of Products is limited to a personal, non-transferable, non-assignable, revocable and non-exclusive right to use the Products on any Apple-branded products owned or controlled by Customer for the relevant subscription period and subject to the terms and conditions set forth in these Terms, and as permitted by the usage rules set forth in the App Store Terms of Service.
- Maintenance and Support. The Company, and not Apple, is solely responsible for providing maintenance and support services with respect to the Products. Customer acknowledges and agrees that Apple has no obligation whatsoever to furnish any such maintenance and/or support services with respect to the Products.
- Warranty. The Company, and not Apple, is solely responsible for the breach of any warranties specifically set forth in these Terms. If the Products fail to conform with any such warranties, including Customer’s right to a refund, Customer may notify Apple of such non-conformity and Apple will refund the purchase price paid by Customer for the applicable Product(s) and, to the maximum extent permissible by applicable law, Apple will have no other warranty obligation whatsoever to Customer with respect to the Products, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any such warranty will be Company’s sole responsibility.
- Product Claims. Customer acknowledges that Apple is not responsible for addressing any claims Customer or any third party may have relating to the Products or Customer’s possession and/or use of that Product, including without limitation, (a) product liability claims, (b) any claim that the Products fail to conform to any applicable legal or regulatory requirement, or (c) any claims arising under consumer protection or similar legislation.
- Intellectual Property Rights. Customer acknowledges and agree that, in the event of any third party claim that the Products or Customer’s use and possession of the same, infringes a third-party’s intellectual property rights, the Company, and not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- Legal Compliance. Customer represents and warrants that (i) he/she is not located in a country that is subject to a U.S. Government embargo, or that is on Title 15, Part 740 Supplement 1 Country Group E of the U.S. Code of Federal Regulations; and (ii) he/she is not listed on any U.S. Government list of prohibited or restricted parties.
- Company Name and Address. Customer should direct any questions, complaints, or claims with respect to the Products to the Company at:
Bark Technologies, Inc.
Attn: Legal Department
3423 Piedmont Rd NE, Suite 400
Atlanta GA 30305
- Third Party Terms of Agreement. Customer must comply with applicable third party terms of agreement when using the Products.
- Third Party Beneficiary. Customer acknowledges and agrees that Apple, and Apple’s subsidiaries, are third party beneficiary of these Terms and, upon acceptance by Customer of these Terms, Apple will have the right (and is deemed to have accepted such right) to enforce these Terms against Customer as a third party beneficiary hereof.
- Google API Services. The Products’ use of information received from Google APIs will adhere to Google API Services User Data Policy, including the Limited Use requirements, located at: https://developers.google.com/terms/api-services-user-data-policy.
© Copyright 2020 by Bark Technologies, Inc. All rights reserved.