These General Terms and Conditions (“General Terms”) are between and BevNET.com, Inc. (“BevNET”, “we” “our” or “us”) and the person or entity agreeing to these General Terms in the manner specified below (“you”) (each a “Party” and together the “Parties”).
BY SIGNING AN ORDER, USING ONE OF OUR PRODUCTS, OR USING ONE OR MORE OF OUR WEBSITES, YOU ACCEPT AND AGREE TO BE BOUND AND ABIDE BY THESE GENERAL TERMS, THE ORDER, AND/OR PRODUCT TERMS (AS APPLICABLE).
IF YOU DO NOT WANT TO AGREE TO THESE GENERAL TERMS, THE ORDER, THE PRODUCT TERMS, OR THE PRIVACY POLICY, YOU SHOULD NOT USE OUR PRODUCTS.
1. Defined Terms. Defined terms are set out in Section 15 (Definitions).
2. BevNET Products. Our products consist of the Publications and Services set out below (collectively, our “Products”).
2.1. Publications. We publish a range of content via print, digital, and social media, including (i) the BevNET Magazine; (ii) Digital website content including written, audio and video content; (iii) Digital newsletters; (iv) other content specified in Product Terms; and (v) other publications and content we may choose to provide via our Websites or other means (“Publications”). Our Publications include articles, opinion pieces, editorials, press releases, and other physical and digital content created by us, our advertisers, subscribers, event sponsors, freelancers, and others.
2.2. Services. We provide a range of services along with our Publications, and these services include (i) offering various digital and physical advertising services via our Publications (“Advertising”), (ii) hosting podcasts, including our Taste Radio Podcast, Brewbound Podcast, CPG Week Podcast, and Community Call Podcast (“Podcasts”); (iii) organizing and hosting live, virtual, pre-recorded, and other events (“Events”); (iv) managing competitions, and awards (“Awards”); (v) making marketplace listings and job posting boards available to users of our Products (“Listings”); (vi) providing access to our Publications via subscription services (“Subscriptions”); (vii) providing additional services described in applicable Product Terms; and (viii) offering other services that we may choose to provide under these General Terms (collectively, “Services”). We may choose to provide you with generalized advice on product marketing for discussion purposes. We do not offer consulting services, except as provided in Section 2.3 (Additional Services).
2.3. Additional Services. On mutual agreement, we may offer additional services under a specific, signed statement of work (each an “SOW”). Upon execution of an SOW, the work set out in such SOW will be included in the term “Services” for all purposes under this Agreement.
2.4. Orders; Accessing Our Products. To order Fee-Based Products, you must either (i) complete an order via our Website or (ii) complete and sign an Order Form provided by us, each of which may contain its own Order Terms (each an “Order”). You may access our Complimentary Products by following the directions on our Website.
2.5. Ownership of Products. All information, software, artwork, text, video, audio, pictures, logos, and other content included in our Products, together with all associated intellectual property rights, are the property of BevNET and its licensors, and are protected by copyright and other intellectual property laws, or are included based on principles of “fair use.” We retain all rights with respect to our Products except those expressly granted to you Section 4.1 (Grant of Rights).
2.6. Reporting. For Services related to Advertising, and using our standard forms and reports, we will provide you with information concerning page views and our other standard metrics (as specified in Product Terms, where applicable). Requests for customized reporting will be addressed via Section 2.3 (Additional Services).
3. Your Submissions.
3.1. Ad Content. If you are advertising via our Advertising Products, we will accept and review the content, recordings, visuals, and other materials you submit for your advertisements (collectively, “Ad Content”). We reserve the right (i) to edit, re-record, or otherwise modify your Ad Content as needed to conform to our standards; and (ii) to remove your Ad Content for any reason, including if it does not comply with our Acceptable Use Policy.
3.2. Product and Services Submissions. Independent of Ad Content, when you participate in certain of our Products our Services, you may provide us with a range of information and content, including (i) contributions to our Publications; (ii) interviews and other performances in connection with our Podcasts and Events; (iii) evaluations of products and services; (iv) submissions to and participation in Awards; (v) your reactions to Ad Content; (vi) information you list on our Listings; and (vii) suggestions, ideas, feature requests, and recommendations you may choose to make relating to our Products or other elements of our business (each a “Product Submission” and, collectively with Ad Content, “Submissions”).
3.3. Product Sample Submissions. If you submit product samples to BevNET in connection with any of our Products, Services or Events, they will not be returned to you except upon mutual agreement.
3.4. Postings and Links to Third-Party Products and Services. The Listings may provide resumes and other information provided by users (“Posts”), and the Products may include links to third-party websites and services that let you leave the Website and/or Product (“Links”). We do not control Posts or products or services accessible via Links; we do not endorse such Posts, products, or services, by implication or otherwise; and we provide Posts and Links only as a convenience.
3.5. Responsibility for Submissions. You are solely responsible for your Submissions, and this includes the responsibility to accurately upload and otherwise provide such Submissions. You should retain a copy of your Submissions; we are not obligated to backup or retain copies ourselves.
3.6. Use of Submissions; Trademarks. You grant us a non-revocable, royalty-free, worldwide, non-exclusive, transferable, and sublicensable right, during and after the Term, to copy, modify, distribute, display, stream, and otherwise use your Submissions, and to display the Marks associated with such Submissions, in each case for the purposes contemplated in this Agreement, including for (i) marketing, advertising, and promoting the products and services referenced in your Submission and in accordance with the applicable Order; (ii) marketing, advertising, and promoting Products related to such Submissions; (iii) displaying Marks in our Publications and through applicable Services; and (iv) using your name and likeness in connection with Podcasts and Events, including describing, performing, displaying, and promoting such Podcasts and Events. All Submissions will be considered non-confidential; provided, however, that we will not use personal information except as permitted in our Privacy Policy.
3.7. Ownership of Submissions. As between the Parties, you are the sole owner of your Submissions (including associated intellectual property rights), subject only to the permissions and license granted in Section 3.6 (Use of Submissions; Trademarks).
4. Rights in Products and Services.
4.1. Grant of Rights. We hereby grant to you, under our Intellectual Property Rights and during the Term, a non-exclusive, non-sublicensable, non-transferable license (i) to access and use our Fee-Based Products upon payment of applicable Fees under with Section 8 (Fees), and (ii) to access and use our Complimentary Products. You are entitled to access and use our Products in the manner described on our Website or applicable Product Terms. The license we grant to you is personal you, and you may not share our Products with others unless expressly permitted under the applicable Product Terms or Order.
4.2. Customer Account; Access for Authorized Users. Unless otherwise agreed in writing, this Agreement permits a single user to access and use the Products or attend an associated event (the “Authorized User”). You are responsible for managing access to and use of your account and will be liable for any misuse of your account. You will notify us immediately if you learn or suspect that your account has been accessed without proper authority or by a person other than an Authorized User.
4.3. Compliance with Agreement; Monitoring Use. We retain the right and discretion to monitor any activity, Submissions, or other content associated with the Products. We may investigate any reported violation of this Agreement or complaints relating to the Products or your Submissions and may take any action that we believe is appropriate including, but not limited to, removing Products and/or terminating or suspending your access to the Products.
4.4. No Implied Rights. No rights shall be implied under this Agreement, based on any course of conduct, or on any construction or interpretation thereof. All rights and licenses not expressly granted are reserved.
5. Support.
5.1. Help Desk. During Business Hours, we provide reasonable help desk support to users of our Fee-Based Products, and will respond to requests for such support within a reasonable period of time; we will provide help desk support to users of Complimentary Products in our sole discretion (collectively, “Helpdesk Support”). You are responsible for obtaining the computer systems, software, telecommunications hardware, and other resources needed to access and use our Products.
5.2. Availability. We will not be liable if for any reason Helpdesk Support, a Product, or a Product component, is unavailable at any time or for any period. From time to time, we may restrict access to Helpdesk Support or to the Products (or components of the Products) for maintenance, updating, and other purposes. We will use reasonable efforts to notify you, via our Website, in advance of expected unavailability as to Products, but are not responsible for notification delays or failures to notify.
6. Acceptable Use Policy. You shall not: (i) use the Products for purposes that are unlawful, offensive, infringing the privacy of others, or otherwise prohibited by this Agreement; (ii) seek to obtain access to any portion of the Products or related materials, accounts, or information through hacking, data harvesting, data mining, data scraping, or through any other means we have not intentionally made available to you through the Products; (iii) use the Products for the development of any software program, model, algorithm, or generative AI tool, including, but not limited to, training or using the Products in connection with the development or operation of a machine learning or artificial intelligence (AI) system (iv) infringe our or any third-party’s intellectual property rights, or other proprietary rights or rights of publicity or privacy; or (v) use the Products (a) in a manner designed to disable, overburden, or impair our infrastructure, Publications, or Services, (b) in a manner that interferes with another person’s use and enjoyment of the Products (or their components), or (c) for the purpose of building a competitive product or service or copying a Product’s features or user interface (collectively, our “Acceptable Use Policy”).
7. Data Protection & Privacy. All personal information we collect via our Products Services or via other means, is subject to our Privacy Policy, and we will use your personal information solely in accordance with such Privacy Policy.
8. Fees.
8.1. Fee-Based and Complimentary Products. We charge Fees for certain of our Products (“Fee-Based Products”) and provide other Products at no charge (“Complimentary Products”). Our Product Terms and our pricing lists identify our Fee-Based Products; our other Products are Complimentary Products. These General Terms apply to both Fee-Based Products and Complimentary Products.
8.2. Automatic Renewal. If you have chosen a Product on an automatic renewal basis, per the Product Terms of that Product, your subscription to the Product will automatically renew at the end of each specified period duration, at the then-current price for the renewal term, until you choose to cancel. You must cancel the subscription to the Product before the renewal date to avoid being billed for the renewal. You may cancel your subscription by following the directions on our Website.
8.3. Payment; Past Due Amounts. You hereby agree to pay us fees for the Products specified on your Order (or listed on the Website or an applicable pricing list) (the “Fees”). We will bill you, as applicable, in advance, at the time of your purchase (or shortly after),or on a recurring basis for subscriptions. Payment is due per the terms listed on your Order or invoice. We may charge interest on past due amounts at the lesser of (i) 1.0% per month, or (ii) the greatest amount allowed by Law in the applicable jurisdiction. Unless otherwise set out in an Order, invoicing and payment processes shall take place via our Website.
8.4. Taxes. All payments required by this Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, value added taxes, sales taxes, use taxes, and withholding taxes) (collectively, “Taxes”) and any delivery costs, and you agree to bear and be responsible for the payment of all such Taxes and charges, excluding taxes imposed on or measured by our net income.
9. Confidentiality. Confidential Information under this Agreement shall consist of all non-public information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether oral or in writing (including electronic transmission): (i) that is designated as “Confidential” or “Proprietary” by the Disclosing Party at the time of disclosure or within a reasonable period thereafter, or that by the nature of the circumstances surrounding disclosure, or the information itself, should in good faith be treated as confidential; and (ii) that concerns the technology, systems, customers, finances, methods, research, processes, or procedures of the Disclosing Party (collectively, “Confidential Information”).
9.1. Non-Disclosure; Standard. The Receiving Party shall retain the Disclosing Party’s Confidential Information in confidence and shall not use such Confidential Information except for purposes permitted under this Agreement. The Receiving Party shall be entitled to disclose Confidential Information on a need-to-know basis to its employees, agents, professional advisors, investors and potential investors, and contractors, provided that the same are bound by non-disclosure and confidentiality obligations no less protective than those set out in this Agreement (and the Receiving Party shall be liable for any non-compliance by such recipients). The Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own confidential information, but shall not use less than reasonable care and diligence.
9.2. Exceptions. The Receiving Party’s obligations with respect to the Disclosing Party’s Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; or (iii) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
9.3. Compelled Disclosure. Nothing herein shall prevent a Receiving Party from disclosing Confidential Information as necessary pursuant to a court order or other lawful requirement of a governmental agency, or when disclosure is required by operation of Law (including disclosures pursuant to applicable securities Laws and regulations); provided, however, that prior to any such disclosure, the Receiving Party shall use reasonable efforts to (i) notify the Disclosing Party in writing of such requirement to disclose and (ii) reasonably cooperate with the Disclosing Party, at the Disclosing Party’s expense, in protecting against or minimizing such disclosure, or in obtaining a protective order.
10. Representations and Warranties.
10.1. Your Representations and Warranties. You represent and warrant to us: (i) that you have secured rights in your Submissions necessary to permit our access, use, display, modification, and processing of such Submissions as contemplated in this Agreement; (ii) that you will not upload or release viruses or malicious code to the Products; (iii) that the payment information you provide is true and accurate and that you will promptly update your account and contact information (including credit card numbers and expiration dates); (iv) that you will comply with Section 6 (Acceptable Use Policy) and (v) that you will comply with applicable law.
10.2. BevNET Representations and Warranties. We represent and warrant to you (i) that the Services will be performed in accordance with accepted industry practice; and (ii) that we will comply with applicable law.
10.3. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET OUT IN SECTION 10.2 (BevNET Representations and Warranties), THE PRODUCTS AND ALL BEVNET PERFORMANCE OBLIGATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND BEVNET HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WE EXPRESSLY DO NOT WARRANT THAT YOUR ACCESS TO OUR PRODUCTS WILL BE UNINTERRUPTED, SECURE, OR FREE FROM ERRORS, AND EXPRESSLY DO NOT WARRANT THAT YOUR SUBMISSIONS WILL BE PRESERVED FROM LOSS OR DAMAGE.
11. Indemnification. You shall defend, indemnify, and hold BevNET and its affiliates and their respective officers, directors, employees, and agents harmless from and against any third party claim, action, suit, or proceeding (including any associated damages, costs, or expenses (including attorney’s and experts’ fees)) resulting from (i) your use of the Products in a manner not authorized by this Agreement, and (ii) your breach of Section 10.1 (Your Representations and Warranties). We will grant you control of the defense and settlement of such claims; provided, however, that you will not settle or otherwise discharge a claim without our prior written consent if such settlement or discharge would detrimentally impact us. We shall have the right to employ separate counsel at our expense in connection with any claim.
12. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS; LOSS OF DATA; OR LOSS OR INTERRUPTION OF USE; EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR: (i) YOUR INDEMNIFICATION OBLIGATIONS, BREACH OF SECTION 6 (Acceptable Use Policy), WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, NEITHER YOUR LIABILITY NOR OUR LIABILITY FOR DAMAGES WILL EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO OF THE FEES YOU HAVE PAID OR OWE TO YOU DURING THE 12 MONTH PERIOD PRECEDING THE APPLICABLE CLAIM.
13. Term. The Agreement shall commence as of the Effective Date and, unless earlier terminated in accordance with Section 14 (Termination): (i) for Fee-Based Products, this Agreement shall continue for the period of time specified in the Order, and (ii) for Complimentary Products this Agreement shall be terminable by us (with no further obligations owed to you) on ten (10) days’ notice via the Website (or other means we reasonably select).
14. Termination.
14.1. Termination for Cause; Cure. Either Party may terminate this Agreement upon written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of written notice of such material breach. Termination pursuant to this Section 14.1 (Termination for Cause; Cure) shall be effective upon delivery of written notice after expiration of the applicable cure period.
14.2. Suspension or Termination due to Breach of Acceptable Use Policy. We are entitled to suspend or terminate your account immediately and without notice if we determine, in our sole judgment, that you are in breach of Section 6 (Acceptable Use Policy).
14.3. Effect of Termination or Expiration. Immediately upon termination or expiration of this Agreement: (i) we shall cease providing the Products; and (ii) all of your licenses under this Agreement shall end.
14.4. No Effect on Previous Obligations. The expiration or termination of this Agreement shall not affect any obligation that accrued prior to such expiration or termination. Unless otherwise mutually agreed, a Party’s termination of an Order will constitute a termination of the entire Agreement.
14.5. Survival. In addition to any provisions intended by their nature to survive, the following Sections shall survive termination or expiration of this Agreement: (i) Section 2.5(Ownership of Products); (ii) Section 3.6 (Use of Submissions; Trademarks); Section 3.7 (Ownership of Submissions); (iii) Section 6 (Acceptable Use Policy); (iv) Section 9 (Confidentiality); (v) (vi) Section 11 (Indemnification) (vii) Section 12 (Limitation of Liability); Section 14.5 (Survival); and (viii) Sections 15 (Definitions) and 15 (General).
15. Definitions. Capitalized terms have the definitions set out below.
15.1. “Acceptable Use Policy” is defined in Section 6 (Acceptable Use Policy).
15.2. “Ad Content” is defined in Section 3.1 (Ad Content).
15.3. ”Agreement” means these General Terms, applicable Product Terms, and Orders (for Fee-Based Products). For work encompassed under Section 2.3 (Additional Services), the term “Agreement” includes any statements of work or similar mutually agreed and signed documents.
15.4. “Business Hours” means the hours between 09:00 and 17:00 eastern time during each weekday other than bank holidays, public holidays, and other holidays that we observe.
15.5. “Complimentary Product” is defined in Section 8.1 (Fee-Based and Complimentary Products).
15.6. “Confidential Information” is defined in Section 9 (Confidentiality).
15.7. ”Awards” is defined in Section 2.2 (Services).
15.8. “Effective Date” means the earlier of (i) the date you agree to an Order, or (ii) the date you begin using or receiving a Product.
15.9. ”Event” is defined in Section 2.2 (Services).
15.10. “Fees” is defined in Section 8.1 (Payment; Past Due Amounts).
15.11. “Fee-Based Product” is defined in Section 8.1 (Fee-Based and Complimentary Products).
15.12. ”Marks” means trademarks, business names, logos, and similar identifiers.
15.13. “Order” is defined in Section 2.4 (Orders; Accessing Our Products).
15.14. “Podcast” is defined in Section 2.2 (Services).
15.15. “Listings” is defined in Section 2.2 (Services).
15.16. “Product Terms” means business and legal terms that apply to a specific Product.
15.17. “Privacy Policy” means our Privacy Policy located at https://www.bevnet.com/privacy-policy/.
15.18. “Submission” is defined in Section 3.2 (Product Submissions).
15.19. “Term” is defined in Section 13 (Term).
15.20. “Website” means collectively and as applicable (i) BevNET.com; (ii) Nosh.com; (iii) Brewbound.com; (iv) Tasteradio.com; and (v) any other BevNET website that links to these General Terms.
16. General.
16.1. Freedom of Action. Nothing in this Agreement will prohibit or restrict a Party (the “Acting Party”) from developing, using, or marketing products or services similar to or competitive with those of the other Party; provided the Acting Party complies with its obligations under Section 9 (Confidentiality).
16.2. Statistical Data. We may collect, analyze, and otherwise use, without compensation to you, (i) statistical data related to the use of our Products, attendance at our events, and other relevant metrics. In our use of such information, we will comply fully with our Privacy Policy.
16.3. Notices. All notices under this Agreement shall be in writing, in English and delivered to the Parties at their respective addresses set out on the Order. Notices will be deemed to have been duly given (i) when received, if personally delivered; (ii) when receipt is electronically confirmed, if transmitted by facsimile or electronic mail; (iii) the day after being sent, if sent for next day delivery by recognized overnight delivery service; or (iv) upon receipt, if sent by certified or registered mail, return receipt requested.
BevNET.com, Inc.
65 Chapel Street
Newton, MA 02458
By email: SUPPORT@BEVNET.COM
16.4. Assignment. No assignment of this Agreement will be effective unless consented to in writing by both Parties; provided, however, that we shall be entitled to assign this Agreement or otherwise transfer our rights in connection with a sale of all or substantially all of its business or in connection with a change of control.
16.5. Modifications to Products and Terms. We reserve the right to periodically update, improve or discontinue features of the Products, Product Descriptions, Product Terms or these General Terms at any time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Products (i) after the changes have been posted for Complimentary Products and (ii) upon the next billing cycle for Fee-Based Products. Your continued use of a Product following changes to the content or the posting of revised General Terms means that you have accepted and agreed to the changes. We will notify you of material changes to the General Terms or Product Terms before they take effect. You should check this page from time to time, so you are aware of any changes, as they are binding on you.
16.6. No Waiver. No failure or delay in exercising any right under this Agreement will operate as a waiver of such right, or preclude any further exercise.
16.7. Governing Law; Jurisdiction. This Agreement, and all claims, disputes, or controversies arising out of this Agreement, shall be governed in all respects by the laws of the Commonwealth of Massachusetts, USA, without giving effect to its conflicts of law provisions. The exclusive venue and jurisdiction for any action or proceeding arising out of this Agreement shall be the state and federal courts located in Boston, Massachusetts. The Parties accept the personal jurisdiction of such courts and the laying of venue in such judicial district.
16.8. Order of Precedence. If there is a conflict between these General Terms, the Order, or any Product Terms, the following order of precedence shall apply: the Order shall govern the Product Terms and these General Terms, and the Product Terms shall govern these General Terms; provided, however, that the Order and Product Terms will not modify a legal provision in these Terms and Conditions unless the Order or Product Terms identifies the legal provision that is to be modified, by its section number and heading.