The following BiteBerry Terms of Service (“Terms”) govern your access to and use of the BiteBerry Product and are effective as of the date of their acceptance by the Customer. These Terms are entered into by Customer and BiteBerry s. r. o., with registered seat at Na Bráne 4, 010 01 Žilina, Slovak Republic, ID No.: 55 353 690, registered with the Commercial Register of District Court Nitra, Section: Sro, File No.: 60199/N (“BiteBerry”). By using BiteBerry Product, Customer agrees to be bound by these Terms.
Please read the Terms carefully before you start to use the BiteBerry Product. By using the BiteBerry Product, opening an Account, or by clicking to accept or agree to the Terms when this option is made available, the Customer accepts and agrees to be bound and abide by these Terms (“Effective Date”). You further confirm you have read and understood our Privacy Policy, found here. If you do not want to agree to these Terms or the Privacy Policy, you must not access or use the BiteBerry Product.
The original language of these Terms, as well as all other texts, is English. BiteBerry makes any translation available for convenience only. In case of conflicts between the original English version and any translation, the English version prevails.
1 DEFINITIONS
1.1 Account means the account created by the Customer to access BiteBerry Product.
1.2 Add-Ons mean features, modules, or functionalities developed by BiteBerry that complement any other product offered by BiteBerry and that are only available insofar.
1.3 Applicable Laws mean all applicable laws, statutes, regulations and codes from time to time in force (including without limitation all applicable Data Protection Laws, food safety and hygiene regulations, health and safety regulations, tax laws, anti-bribery, anti-money laundering, and consumer protection laws).
1.4 BiteBerry Product has the meaning ascribed to it below, i.e., any software, computer programs, products, services, tools, interfaces, portals, and related features, developed by BiteBerry.
1.5 BiteBerry Services mean professional services provided by BiteBerry to the Customer based on the offer of services on BiteBerry’s Website or elsewhere. The scope of BiteBerry Services may be covered in a separate document.
1.6 Channel Data means Personal Data that is transferred to BiteBerry by the online delivery channels that the Customer works with, for the provision of BiteBerry Product and/or some Add-Ons.
1.7 Confidential Information has the meaning ascribed to it below in Section 14 of these Terms.
1.8 Customer or you means an individual and/or a legal entity whose information was provided during the Account creation, who has a contractual relationship with BiteBerry to use the BiteBerry Product as a result of accepting these Terms.
1.9 Customer Personal Data means Personal Data that Customer transfers to BiteBerry in connection with the provision of BiteBerry Product and BiteBerry Services, and in connection with any other services, features, or products, or Add-Ons in which BiteBerry processes Personal Data under the instructions of Customer.
1.10 Data Protection Laws mean all laws and regulations applicable to the processing of Customer Personal Data under these Terms, including, as applicable, the laws and regulations of the United States of America, the European Union, the European Economic Area, and their member states, including the General Data Protection Regime (EU) 2016/679 (“GDPR”).
1.11 Discloser means the party who on its behalf or on behalf of a third party discloses Confidential Information to the Recipient.
1.12 Fees collectively mean any fees charged by BiteBerry to the Customer under these Terms.
1.13 Force Majeure Event means an event or circumstance (a) which is beyond the reasonable control of the affected party; (b) which such party could not reasonably have provided against or prevented, avoided or removed before accepting these Terms; and (c) which, having arisen, such party could not reasonably have prevented, avoided or overcome. Force Majeure Event may include, but is not limited to, the events or circumstances of the kind listed below, so long as conditions (a) to (c) above are satisfied: (i) incidents occurring in the power system, or such a state of the power system that influences, or may directly and objectively influence, the Parties’ capacity to receive and deliver the BiteBerry Product; (ii) riot, commotion, disorder, lockouts or national, regional or industry-wide strikes or industrial disputes not solely isolated to the party or its affiliates claiming the Force Majeure; (iii) ionizing radiation or contamination by radio-activity; (iv) natural catastrophes such as earthquake, hurricane, floods, epidemic, landslides, drought, unusual storms; (v) war, terrorism (or threat or terrorism), blockades, revolution, insurrection, military or usurped power, or civil war or credible threats of the same.
1.14 Frontend means the web-based or mobile app dashboard owned by BiteBerry, through which Customers access BiteBerry Product.
1.15 Integrations have the meaning ascribed to this term below in Section 4 of these Terms.
1.16 Intellectual Property means, in regards to the Customer and BiteBerry, their technology, websites, software, BiteBerry Product, products, all rights throughout the world in the nature of intellectual property rights including copyright, know-how, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing as may now exist or hereafter come into existence.
1.17 Personal Data means any information relating to an identified or identifiable natural person; an identifiable natural person can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
1.18 Products mean products sold by Customer to its clients in connection with BiteBerry Product.
1.19 Recipient means the party receiving Confidential Information from the Discloser.
1.20 Results mean any documents, data or information generated by Customer through its use of BiteBerry Product.
1.21 BiteBerry’s Website means the website www.biteberry.com.
1.22 Subscription Period means the term of the subscription(s) offered by BiteBerry as further explained in Section 8 of these Terms.
1.23 Terms has the meaning set forth above.
1.24 Territory means the geographic location where the Customer decides to use BiteBerry Product.
1.25 Trademarks mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of Customer or BiteBerry.
2 BITEBERRY PRODUCT
2.1 BiteBerry Product is licensed to you by BiteBerry. Use of the BiteBerry Product is subject to these Terms and the specific terms of the respective product. You will not, and will not allow third parties to use BiteBerry Product and/or the Results in any way that is contrary to BiteBerry’s interests stemming from its investments into the BiteBerry Product.
2.2 BiteBerry will do its best efforts to make BiteBerry Product available in accordance with BiteBerry’s current service-level standards, which may be shared (upon request) or accessed online if that option is made available by BiteBerry. You acknowledge that BiteBerry reserves the right to modify the scope of its service-level standards at any time and for any reason.
2.3 BiteBerry Product is a set of products that, among other things, is a centralized restaurant management platform, which enables or will enable you to (i) access a collection of Integrations, including but not limited to online ordering systems, aggregators, point of sales systems and delivery management systems; (ii) set up your own ordering and menu workflows through these integrations; (iii) place orders via an artificial intelligence generated system using voice or chat; (iv) manage and access orders via reporting tool; (v) sell and marketing Products directly to your clients; (vi) provide support to your clients in regards to their pickup and delivery orders; (vii) access to other functionalities, including but not limited to menu and stock management, delivery management, or (viii) use other service.
3 CUSTOMER RESPONSIBILITY
3.1 You may create certain promotions and discounts for your clients through BiteBerry Product. You represent and warrant that such promotions and discounts shall comply with all Applicable Laws and regulations, including consumer protection laws and competition laws. You will be responsible for creating terms and conditions that apply to your promotions and discounts, and shall make such terms and conditions available to your clients. You acknowledge and agree that BiteBerry bears no responsibility or liability whatsoever for the discounts and promotions you offer to your clients.
3.2 You agree and acknowledge that you (not BiteBerry) shall be responsible for providing support to your clients for any issues that may arise and/or are related to the Products or the delivery of the same.
3.3 You are responsible for all costs related to reimbursement to your clients in the event any such client(s) request a refund for defective products or otherwise unsatisfactory Products (including, without limitation, any costs associated with retrieving any such defective products or otherwise unsatisfactory Products, if applicable).
3.4 If, via BiteBerry Product, you offer and/or sell any Product that requires special license and/or permits, you represent and warrant that you have and will maintain all required licenses and/or permits to sell and, if applicable, deliver such Products, and will comply with all Applicable Laws in respect thereof, including, without limitation, time restrictions and legal age. You shall provide copies of these licenses to BiteBerry upon request.
3.5 You are the “retailer” or “seller” of all Products (including delivery services related to such Products). You are responsible for determining and setting the Retail Price for each Product to be made available for sale via BiteBerry Product. You are solely responsible for the correct application and remittance of all applicable VAT, and any applicable taxes, levies, and customs in connection with the sale of Products.
4 INTEGRATIONS
4.1 There may be integrations enabled between your platform and the selected providers (“Integration Providers”) that are integrated with BiteBerry.
4.2 In addition to Integration Providers, BiteBerry may work with other third parties with whom Customers will not have a direct relationship, and BiteBerry may forward Channel Data to these third parties for purposes related to the proper functioning of the BiteBerry product.
4.3 While using the Integration, you will have a direct billing relationship with the Integration Provider that is integrated with your platform. To use the Integration, you must have a contractual relationship with the Integration Provider. If you do not have such a contractual relationship, you may be prompted to the Integration Provider’s onboarding flow. BiteBerry is under no obligation to enable an Integration if you fail to enter into a contract with the respective Integration Provider.
4.4 You hereby acknowledge and agree that BiteBerry shall not be responsible or liable for the acts or omissions of the Integration Provider that is integrated with your platform.
4.5 BiteBerry does not endorse any third-party websites, delivery channels, services or products even if they are linked or can be accessed through the BiteBerry Product. BiteBerry shall not be liable for any content, products, services or other materials that are made available to you by these third parties. While using the BiteBerry Product, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third parties, such as advertisers or sponsors, showcasing their goods or services through the BiteBerry Product. Any such services and/or products and their terms, conditions, warranties or representations, are solely between you and said third party. BiteBerry shall have no liability, obligation or responsibility for such third-party services or products, and will not be a part of the contractual relationship between you and such third parties.
4.6 You hereby acknowledge and agree that BiteBerry shall not be responsible or liable if orders cannot be processed in connection with the BiteBerry Product as a result of an issue, outage, problem, bug, or defect caused directly or indirectly by any third-party Integration used by you.
4.7 BiteBerry has no control over the quality, truth, accuracy, safety, morality or legality of any aspect of the services made available through any of the Integrations. BiteBerry does not pre-screen Integration Provider services and BiteBerry cannot ensure that either Integration Provider or you will actually complete a transaction. You agree that BiteBerry is not responsible or liable for any services or any other content posted by the Integration Provider or any other users of the Integration. As such, any use of the Integration is at your own risk.
4.8 Customer Personal Data will be processed by BiteBerry to power the Integrations. The terms under which Customer Personal Data is processed are governed by the Privacy Policy as applicable. You acknowledge that BiteBerry will share Customer Personal Data with the Integration Providers.
4.9 You recognize that BiteBerry has the right to utilize aggregated and anonymized data concerning your use of the BiteBerry Product for various objectives, such as analytics, enhancing the product, and identifying market trends, among others. BiteBerry may also distribute this aggregated data to third parties and utilize it for various commercial purposes.
5 ACCOUNT
5.1 When creating an Account, you have to choose a username and password, which cannot be shared with third parties, unless set forth otherwise in these Terms, and shall always remain confidential. You will immediately notify BiteBerry if you suspect that the confidentiality has been compromised.
5.2 You represent and warrant that you will provide accurate, complete, and up-to-date information for the creation of the Account and are fully liable for any activity occurring under your Account.
5.3 BiteBerry reserves the right to put any Account on hold or permanently disable Accounts due to breach of these Terms or due to any illegal or inappropriate use of the BiteBerry Product or the BiteBerry Services. Violation of these Terms may get your Account disabled permanently.
5.4 The onboarding process may be done by the Customer themselves, i.e., via self-onboarding, or BiteBerry. If the onboarding process is done by the Customer, you are responsible and liable for completing the onboarding process. If the onboarding process is done by BiteBerry, you may be asked to pay a set-up fee stated on BiteBerry’s Website or agreed in a written form via e. g., e-mail provided by you during registration and creating Account.
5.5 Upon execution of the Terms, and once your onboarding process has been completed, you will be able to use the BiteBerry Product. You can access the BiteBerry Product through Frontend. Use of Frontend is subject to the terms and restrictions that apply to BiteBerry’s Intellectual Property and License as set forth in these Terms.
5.6 You must have a credit and/or debit card on file with sufficient funds to be able to access the BiteBerry Product. Lack of funds on the credit card will result in a suspension of your access to the BiteBerry Product.
6 UPDATES AND SUSPENSION
6.1 BiteBerry has the authority to make changes to the BiteBerry Product, which may include updates, removals, restrictions, enhancements, deprecations, or modifications to any of the functionalities that you can access in connection with the BiteBerry Product. These changes, referred to as “Updates” can be made by BiteBerry at any time and for any reason. If an Update is not considered significant (as defined by BiteBerry), it will be implemented without prior notice. However, if BiteBerry determines that an Update is of substantial importance for the respective Customer, they will provide you with a notice period of 30 days before implementing such an Update.
6.2 BiteBerry retains the authority to temporarily suspend your access to the BiteBerry Product under the following circumstances:
(a) if your Account has unpaid overdue Fees;
(b) if you neglect to update the invoicing information;
(c) in cases of internet infrastructure failure beyond BiteBerry’s reasonable control;
(d) when maintenance is required for the infrastructure of the BiteBerry Product;
(e) if BiteBerry suspects and/or confirms that the utilization of the BiteBerry Product violates these Terms or BiteBerry’s provided instructions;
(f) if BiteBerry suspects and/or confirms that the BiteBerry Product is being used in an unlawful, fraudulent manner, or in a manner detrimental to BiteBerry’s reputation or business interests;
(g) in the event of an outage or service downtime by any of the suppliers supporting the provision of the BiteBerry Product due to maintenance or other reasons;
(h) if you become subject to sanctions imposed by the government of the United States of America, the European Union, any member state of the European Union or the United Nations, or any government authority in your country of operation;
(i) if you create an Account in the name of a third party;
(j) if any of the representations and warranties given by you in Section 15 is not true or accurate.
6.3 If BiteBerry temporarily suspends your access to the BiteBerry Product: (a) you will not have access to the data, information, and content associated with such subscription, for period of suspension, and; (b) your access to the BiteBerry Product will be suspended.
7 LICENSE
7.1 BiteBerry grants you a limited, non-exclusive, and non-transferable license for the personal use of the BiteBerry Product within the specified Territory during the Subscription Period. These Terms only provide you with the rights explicitly mentioned herein. Any rights not explicitly granted are retained by BiteBerry and you cannot assume them.
7.2 You consent and acknowledge that you shall refrain from, and shall not permit third parties to:
(a) copy, transfer, adapt, modify, distribute, transmit, display, create derivative works, publish or reproduce it, in any manner,
(b) reverse assemble, decompile, reverse engineer or otherwise attempt to derive its source code, underlying ideas, algorithms, structure or organization,
(c) remove any copyright notice, identification or any other proprietary notices,
(d) use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the BiteBerry Product,
(e) attempt to gain unauthorized access to, interfere with, damage or disrupt the Site or the computer systems or networks connected to the BiteBerry Product,
(f) circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the BiteBerry Product,
(g) use any robot, spider, crawlers or other automatic device, process, software or queries that intercept, “mines,” scrapes or otherwise accesses the BiteBerry Product to monitor, extract, copy or collect information or data from or through the BiteBerry Product, or engage in any manual process to do the same,
(h) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems,
(i) use the BiteBerry Product in any manner that could damage, disable, overburden or impair the BiteBerry Product, or interfere with any other users’ enjoyment of the BiteBerry Product,
(j) access or use the BiteBerry Product in any way not expressly permitted by these Terms,
(k) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or make any part of the BiteBerry Product available to third parties, or access (allow access to) the BiteBerry Product or any part thereof for competitive purposes,
(l) utilize the BiteBerry Product or any part thereof to offer services to third parties, construct a competing product or service, or a product or service that employs similar ideas, features, functionalities, functions, or graphics as the BiteBerry Product or any part thereof,
(m) undertake any action with the intent to cause malfunctions, crashes, tampering, or any impairment to the BiteBerry Product or any part thereof,
(n) take any action that would result in the disclosure of information related to the BiteBerry Product to the public domain.
7.3 BiteBerry provides you with a non-exclusive, limited, personal, non-transferable, revocable, and non-assignable license to utilize the Results during the Subscription Period, solely in connection with the restaurant business operations. You consent and acknowledge that you shall refrain from, and shall not permit third parties to:
(a) copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, translate, adapt, alter, or distribute the Results in any form or medium, except as necessary for standard operational activities related to restaurant order processing, menu management, and inventory accounting;
(b) sell, resell, rent, lease, distribute, display, disclose, or otherwise commercially exploit, or make the Results available to any third party;
(c) use the Results or any part thereof to provide services to third parties, construct a competing product or service, or a product or service that incorporates similar ideas, features, functions, or graphics as the BiteBerry Product or any part thereof, or to replicate any ideas, features, functions, or graphics of the Results or any part thereof;
provided that such action is performed with the aim to gain competitive advantage against the BiteBerry Product.
8 SUBSCRIPTION AND TRANSACTIONAL MODELS
8.1 BiteBerry Product is offered under a subscription model or transactional model, as these are stated on the BiteBerry’s Website.
8.2 BiteBerry offers Subscription Periods of 1 month or 12 months. The Subscription Period begins on the date the subscription is created by BiteBerry.
8.3 The Subscription Period shall automatically renew:
(a) in case of a 1-month Subscription Period, for an additional Subscription Period of the same length, unless you cancel the subscription of the BiteBerry Product via the option available in the BiteBerry Product, at least on the last day of the respective Subscription Period;
(b) in case of a 12-month Subscription Period, for an additional Subscription Period of the same length, unless you cancel the subscription of the BiteBerry Product via the option available in the BiteBerry Product, at least 1 month before the end of the respective Subscription Period.
8.4 The transactional fee can be fixed or variable depending on the selected BiteBerry Product. This fee is applicable to the BiteBerry Product that is offered under a transactional model on BiteBerry’s Website.
9 PAYMENT TERMS
9.1 The amount of the Fees and their currencies are stated on the BiteBerry’s Website and you choose them based on the offer of Subscription Periods and other relevant factors.
9.2 From time to time, BiteBerry may send a specialized quote to Customer via the communication channels included in the BiteBerry Product, or via e-mail provided by you during registration and creating Account. In such case, the Fees provided in this quote prevail over the Fees stated on BiteBerry’s Website.
9.3 Fees are non-refundable (including when delays in the onboarding process are caused by Customer) and may be charged by BiteBerry.
9.4 The Fees will be paid to BiteBerry via Stripe Connect on a monthly basis based on the day you choose to start your Subscription Period on BiteBerry’s Website and based on an invoice issued to you by BiteBerry. For avoidance of any doubt, the Subscription Period commences on the 1st day of respective calendar month and terminates on the last day of the respective calendar month. If you start your Subscription Period during the course of a calendar month, your first month of the Subscription Period and your first Fee will be calculated based on the number of days remaining in the first month of your Subscription Period and you will pay the aliquot part of the Fees.
9.5 You are required to have an automatic payment method on file associated with the Account. You authorize BiteBerry (or any third-party appointed by BiteBerry for such purpose) to charge Fees on your automatic payment method. You will engage with third parties appointed by BiteBerry to facilitate the Fee’s collection process from your automatic payment method.
9.6 BiteBerry reserves the right to increase the Fees and/or change the way in which they are calculated (which may have an impact on the BiteBerry Product). Changes to the Fees will be notified to you with 30 days’ notice and you have the right to cancel your subscription within these 30 days irrespective of the cancelation period defined in Section 8 above. Continued use of the BiteBerry Product by Customer after expiration of the notice period will be interpreted and construed as Customer’s express acceptance of the updated Fees.
9.7 During your Account creation, you shall provide BiteBerry with complete, correct and accurate invoicing and contact information, including legal name, address, e-mail address, name and telephone number of the authorized billing administrator, valid VAT/ Tax ID number, and shall update this information at the latest within thirty (30) days counted as of the moment the information changes, failing which BiteBerry reserves the right to cease, suspend or interrupt access to BiteBerry Product, without prejudice to its right to compensation for losses, damages and costs. Failure to update invoicing and contact information does not exclude your obligation to pay invoices.
9.8 The applicable payment terms of the Fees are set forth in the Terms, BiteBerry’s Website or in the quotes issued by BiteBerry (as the case may be). Invoices will be issued on a monthly basis. You have ten (10) calendar days to dispute any invoice issued by BiteBerry by contacting BiteBerry support. Invoices that are not disputed within this term, are deemed to be accepted by Customer.
9.9 If payment of an invoice is not made on time, you will be liable for payment, without prior notice being required, from the maturity date of the invoice until payment in full of the invoice, to payment of default interest at a rate of 8% per annum (or the maximum permitted by the Applicable Laws, whichever is higher), without detriment to BiteBerry’s right to compensation for losses, damages and costs effectively suffered as a result of the late payment. BiteBerry reserves the right to engage a debt collector if needed.
9.10 Taxes. Fees are exclusive of any and all direct and indirect taxes or any charges whatever nature required by any applicable law or imposed by any public authorities (”Tax”). If a Tax deduction is required by law to be made by the Customer, the amount of the payment due from that Customer shall be increased to an amount which (after making any such deduction) leaves an amount equal to the payment which would have been due if no such deduction had been required. Tax deduction (e.g. withholding taxes), including the formalities thereto, are the responsibility of the Customer and are to be paid separately to the relevant public authority. Furthermore, you are responsible for ensuring the accuracy and timely filing of its own tax returns. You are also responsible for determining, applying, managing, and displaying the applicable and accurate taxes for its products and/or services.
10 TECHNICAL SUPPORT
10.1 BiteBerry offers technical support, which can be accessed through various channels detailed on BiteBerry’s Website. Support availability may differ depending on your region; for further details, please visit the aforementioned website. BiteBerry retains the discretion to temporarily halt or modify the provision of technical and operational support services. BiteBerry may also introduce various support tiers with potential additional terms and fees for accessing technical and operational support.
11 COOPERATION
11.1 You agree to give BiteBerry all needed collaboration and access to information necessary for BiteBerry to fulfill these Terms and provide the BiteBerry Product. You ensure that the information given for the execution of these Terms and for providing the BiteBerry Product, including Customer Personal Data, is accurate, comprehensive, and current. You will ensure you have the requisite permissions and approvals for BiteBerry to carry out its duties as per these Terms, including handling the Customer Personal Data, and will fulfill your commitments promptly and effectively.
12 CHANNEL DATA
12.1 Where Channel Data is required for the provision of some Integrations of the BiteBerry Product, such data shall be transferred to BiteBerry by the online delivery channel(s) that Customer works with, and will be processed by BiteBerry pursuant to the instructions of the online delivery channel(s) under the terms of the agreement executed with those online delivery channel(s). BiteBerry is the processor of Channel Data on behalf of the online delivery channel(s), and the online delivery channel(s) is the controller. Customer represents and warrants that it will only receive, use and disclose Channel Data pursuant to the terms of the contract executed between Customer and the online delivery channel(s). The categories of Channel Data for Order Processing and some of the Add-Ons may vary depending on the online delivery channel(s) that transfers Channel Data to BiteBerry.
13 TRADEMARKS AND INTELLECTUAL PROPERTY
13.1 Both Customer and BiteBerry mutually agree to grant each other a limited, non-exclusive, and non-transferable license throughout the duration of these Terms. This license allows both parties to use the respective trademarks of each party without the need for royalty payments. It permits the reproduction and representation of each other’s Trademarks worldwide through any means or media, with no restrictions on methods, print quantities, dissemination, or usage. However, the usage must conform to the specific format and style approved by the owning or licensing party of the Trademark.
13.2 Outside of what is explicitly outlined in these Terms, neither party may use the other party’s Trademarks without prior written consent. Any positive reputation or goodwill resulting from the use of these Trademarks by one party benefits the owning or licensing party. It’s essential to note that these Terms do not grant either party any additional rights or licenses concerning Intellectual Property or other proprietary rights. All rights not explicitly granted are preserved.
13.3 Both Customer and BiteBerry are prohibited from attempting to register, utilize, or claim ownership of the other party’s Trademarks, whether individually or in conjunction with other letters, punctuation, words, symbols, designs, or any similar mark, name, or title for any goods and services.
13.4 These Terms do not aim to, and will not, alter the ownership of any Intellectual Property belonging to the Customer or BiteBerry. Both the Customer and BiteBerry agree that these Terms will not grant them any rights to claim Intellectual Property that they were not entitled to before agreeing to these Terms. BiteBerry maintains its exclusive ownership of all its Intellectual Property related to its products and services. This includes, but is not limited to, the Intellectual Property used in BiteBerry technology, the BiteBerry Product, websites, or software.
14 CONFIDENTIALITY
14.1 Confidential Information shall mean any data, reports and other information of a confidential nature submitted or received in any form, which is information:
(a) relating to Discloser and/or its business;
(b) commercial, technical, industrial, project, production, distribution, investment, financial, accounting, tax, legal, contractual, administrative, marketing, labor-legal, personnel, managerial or strategic nature related to the BiteBerry Product;
(c) which shall be marked as confidential or sensitive by Discloser, or by another label of similar meaning;
(d) the nature of which implies that the Discloser has an interest in its protection; and
(e) information on the existence of the above information.
14.2 In relation to Confidential Information, the Receiver undertakes:
(a) to use Confidential Information only for the purpose of using the BiteBerry Product, including providing the Confidential Information to a public authority to the extent necessary to obtain a decision, permit, consent or other act necessary for the use of the BiteBerry Product;
(b) to keep Confidential Information strictly confidential and maintain confidentiality in relation to Confidential Information;
(c) to keep confidential the fact that Confidential Information has been made available, as well as the scope, nature or status of any discussions or negotiations that take place or have taken place in connection with the BiteBerry Product;
(d) not to provide or disclose any Confidential Information without Discloser’s prior consent to anyone other than those representatives who reasonably need to know the Confidential Information, only to the extent that is necessary for the performance of the obligations or exercise of the Recipient’s rights related to the BiteBerry Product;
(e) to take the necessary care to prevent the unauthorized use, disclosure, publication, duplication or other dissemination of Confidential Information;
(f) not to use the Confidential Information for other than the purpose defined in point (a) hereof, in particular not to use Confidential Information for its own business, investment or other activities not related to that purpose, or for such activities of third parties;
(g) to promptly inform Discloser should it be established that an unauthorized use of Confidential Information has occurred and/or may have occurred of this fact and, at the same time, to take all necessary measures to prevent the unauthorized use of Confidential Information.
14.3 Before providing Confidential Information to its representatives, the Recipient undertakes to ensure that such representatives are notified of the obligation of confidentiality under these Terms and comply with the obligation of confidentiality as if they were a party to these Terms.
14.4 Each of the parties undertakes to confirm disclosure and/or receipt of Confidential Information from another party by signing a proof or receipt, should the other party so request. The obligation under the preceding sentence is fulfilled even if the proof is signed and sent electronically. Failure to draw up a separate proof shall not affect the obligation of the parties to maintain confidentiality hereunder.
14.5 The obligation in Section 14.2 shall not apply to the Confidential Information:
(a) if the information has entered public domain or become available without Recipient and/or any of its representatives breaching any of its duties or obligations; or
(b) if Recipient demonstrates that this Confidential Information had been available to it prior to disclosure by the Discloser and that it did not acquire it in violation of the law; or
(c) if the Discloser has given its prior consent to its use, communication or disclosure in addition to Section 14.1; or
(d) if a party has an obligation under generally binding legal regulations to provide or is requested by any public authority to provide any Confidential Information and such disclosure cannot be prevented (e.g., by trade secret institutes), then to the extent that such action is in accordance with generally binding legal regulations, it shall inform the party concerned prior to providing the Confidential Information. A party may provide to a competent authority only that part of the Confidential Information, which may be required to be provided under generally binding legislation.
14.6 In the cases referred to in Section 14.5 (d), the parties agree that the party is entitled to provide the competent public authority with Confidential Information only to the extent necessary, never making available more than is requested by the public authority. If a party has been ordered to make a statement or disclose Confidential Information, the party concerned is obliged to cooperate with the other party regarding the timing and content of such communication or disclosure.
15 REPRESENTATIONS AND WARRANTIES
15.1 Customer and BiteBerry hereby represent and warrant that:
(a) they have full power and authority to enter into these Terms and perform their obligations hereunder;
(b) they are duly organized, validly existing and in good standing under the laws of the jurisdiction of their origin;
(c) they will comply with all Applicable Laws and regulations in their performance of these Terms;
(d) the content, media and other materials used or provided by such each party as part of these Terms or required for the provision of BiteBerry Product shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party; and
(e) no consent, authorization or approval from any governmental authority or any other entity is necessary in connection with the execution, delivery and performance by either party of these Terms or any of the obligations hereunder.
16 LIMITATION OF LIABILITY
16.1 Except for damages arising from either party’s willful misconduct, to the maximum extent permitted by law, in no event will BiteBerry, its affiliates or their licensors, service providers, employees, agents, officers or directors be liable for damages of any kind, under any legal theory, arising out of or in connection with your use, or inability to use the BiteBerry Product, any websites linked to it, any content on the BiteBerry’s Website or such other websites or any services obtained through the BiteBerry Product or BiteBerry’s Website or such other websites, including any direct, indirect, special, incidental, consequential or punitive damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable.
16.2 BiteBerry does not make any representations and explicitly disclaims all warranties, whether express or implied, statutory or otherwise, to the fullest extent allowed by Applicable Laws, concerning the BiteBerry Product, BiteBerry Services, their products, or any part thereof. This includes any implied warranties of merchantability or fitness for a specific purpose, as well as warranties arising from the course of dealing or performance, performance, reliability, availability, accuracy, or completeness. Customers should acknowledge and agree that the BiteBerry Product and BiteBerry Services are provided “as is”.
16.3 BiteBerry cannot guarantee that the BiteBerry Product will operate continuously without interruption, be entirely free from errors, or meet the specific requirements of the Customer. Additionally, BiteBerry does not ensure that the BiteBerry Product, or any information provided by BiteBerry under these Terms, will be devoid of viruses, harmful components, errors, or defects, nor does it guarantee the correction of such issues. Furthermore, there is no assurance that the BiteBerry Product will function seamlessly in conjunction with other services, hardware, software, systems, or data.
16.4 BiteBerry will not be held liable for the accuracy or inaccuracy of any data provided to it under these Terms, nor for any malfunctions or issues with the BiteBerry Product.
16.5 Either party’s combined total cumulative liability of each and every kind under these Terms shall not exceed EUR 500 (five hundred euros) or any equivalent thereof in local currency. BiteBerry’s total cumulative liability for indemnification obligations set forth in these Terms shall not exceed EUR 1,000 (one thousand euros) or any equivalent thereof in local currency.
17 GOVERNING LAW AND DISPUTE RESOLUTION
17.1 These Terms are governed by and construed in accordance with the laws of Slovak Republic.
17.2 Any disputes arising out of or relating these Terms will be decided by the courts of Slovak Republic.
18 FINAL PROVISIONS
18.1 Upon termination of the Subscription Period, BiteBerry shall terminate Customer’s access to the Account, and the data residing therein, and Customer will lose access to all of the data, information, and content related to Customer’s use of the BiteBerry Product (including the Results).
18.2 BiteBerry may make changes to its Terms from time to time. When these changes are made, BiteBerry will share a new copy of the Terms with you via BiteBerry Product. You understand and agree that if you use the BiteBerry Product after the date on which the Terms have changed, BiteBerry will treat your use as acceptance of the updated Terms.
18.3 All payment, confidentiality, indemnity, and limitations of liability obligations shall survive the expiration or termination of these Terms.
18.4 Customer’s use of BiteBerry Product is subject to all applicable local, state, national and international laws and regulations, including but not limited to all legal obligations incumbent on the Customer to mark beverages as alcoholic and label food ingredients as containing allergens. You are obliged to comply with all the legal obligations, irrespective of whether the BiteBerry Product has suggested to mark any of your Products, or not. You acknowledge that BiteBerry is not liable for these suggestions made by the BiteBerry Product. Customer will not use the BiteBerry Product or any content for any purpose or in any manner that is unlawful (including, without limitation, in any manner which violates the export or trade controls of the EU or any other country) or prohibited by these Terms, or which infringes the rights of BiteBerry or third parties. For avoidance of doubt, BiteBerry is not responsible for any breach of Applicable Laws and regulations that Customer’s use of BiteBerry Product is a subject to.
18.5 Any notice to BiteBerry should be provided at info@biteberry.com. Notices to Customer will be sent to the email address associated with the Account or via the BiteBerry Product. Notice terms shall be calculated using calendar days.
18.6 Failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provision or exercise such options.
18.7 Each and every provision of these Terms is construed in such manner so that it may be valid, effective, binding, and enforceable in accordance with laws of the Slovak Republic in the widest extent possible. If any provision of these Terms is or becomes null and void, invalid, ineffective, or unenforceable, this will not have any effect on the validity, effectiveness, and enforceability of other provisions of these Terms, unless the very nature of such a provision precludes it under laws of the Slovak Republic.
18.8 If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the remainder of these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the content and purposes of these Terms.
18.9 Any delay in or failure by either party in the performance of these Terms shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any negative effects resulting in or interference with the performance of its obligations under these Terms.
18.10 Customer may not assign or transfer these Terms or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of BiteBerry. Customer may not set off any of its receivables, in whole or in part, without the prior written consent of BiteBerry. BiteBerry reserves the right to assign these Terms or any of its rights and obligations hereunder, in whole or in part, without written notice to Customer, to any third party.
18.11 The parties expressly agree that these Terms do not create a joint venture, partnership, or agency relationship between BiteBerry and Customer. Neither party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with these Terms.
