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What is the Bevi End User License Agreement?

Updated

Below you will find a copy of the End User License Agreement. To better understand it's use please see the End User FAQ here

 

BEVI MACHINE END USER LICENSE AGREEMENT

 

This Bevi Machine End User License Agreement (this “Agreement”) is a binding legal agreement between the person, company or organization (“You”) who is purchasing, leasing, operating or otherwise using this Bevi beverage dispensing machine (the “Bevi Machine”), and Hydration Labs, Inc. d/b/a Bevi (“Bevi”).

BY CLICKING “ACCEPT” AND/OR BY YOUR USE OF THE BEVI MACHINE OR BEVI SOFTWARE (AS DEFINED

BELOW), YOU REPRESENT AND WARRANT THAT: (1) YOU ARE DULY AUTHORIZED TO ENTER INTO THIS

AGREEMENT; AND (2) YOU HAVE READ AND UNDERSTOOD THIS AGREEMENT AND YOU AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE THE BEVI MACHINE OR BEVI SOFTWARE.

 

  1. Use of Bevi Machine and Bevi Software. The Bevi Machine has been provided for Your use by Bevi or Bevi’s authorized distributor (“Distributor”) under separate written agreement(s). Your use of the Bevi Machine and Bevi Software (as defined below) is and shall be subject to the following terms, conditions and restrictions during the term of this Agreement and thereafter:

(i) You shall not remove or deface any serial numbers, identification plates or other markings     on the Bevi Machine or any of its component parts;

(ii) You shall use the Bevi Machine only to operate the Bevi Software;

(iii) You shall not use other hardware with the Bevi Machine or Bevi Software, unless first agreed in writing by Bevi;

(iv) Without Bevi’s prior written consent, You shall not allow any person or entity other than Bevi or the Distributor of the Bevi Machine to alter or otherwise modify the Bevi Machine;

(v) You shall at all times use the Bevi Machine and Bevi Software in accordance with all relevant operating manuals provided by Bevi or the Distributor in connection with the Bevi Machine, and the written instructions of Bevi or Distributor;

(vi) You shall keep the Bevi Machine clean, in good condition and working order;

(vii) You shall comply with all applicable terms of the applicable warranty communicated to You by Bevi or theDistributor;

(viii) You shall comply with all accommodation, environmental and other facilities-related requirements relating to the Bevi Machine as may be reasonably specified by Bevi or the Distributor from time to time; and

 (ix) You shall not disable, disengage or interfere in any way with the proper appearance and function of this Agreement on any Bevi Machine.

  1. Grant of Software License; Restrictions on Use. All of the software in this Bevi Machine is owned by Bevi or its licensors (collectively, the “Bevi Software”). Subject to Your compliance with the terms and conditions of this Agreement, You are hereby granted the non-exclusive, non-transferable, non-sublicensable, limited right and license during the Term to use the Bevi Software only as an integral component of the Bevi Machine to dispense water as set forth in Bevi’s user manuals. This Agreement is a license, not a transfer of title to or a sale of, the Bevi Software or Bevi Intellectual Property (as defined below). You shall not remove any product identification, copyright notices or proprietary restrictions from the Bevi Machine or the Bevi Software. In no event shall You sell, lease, dispose of, transfer, create any encumbrance over, or otherwise deal in any manner whatsoever in Bevi Software or other Bevi Intellectual Property.
  2. Ownership and Use of Bevi Software and Intellectual Property. Nothing herein shall be construed as transferring any right, license or title to You in any Bevi Software or other Bevi Intellectual Property. For purposes of this Agreement, “Bevi  Intellectual Property” means all of Bevi’s right, title and interest throughout the world in and to any and all:

(i) United States and foreign patents and utility models and applications therefor and all reissues, divisions, reexaminations, renewals, extensions, provisionals, continuations and continuations-in-part thereof;

(ii) inventions, ideas, concepts and improvements, whether patentable or not;

(iii) trade secrets, know-how, proprietary and confidential information, and any rights in technology, invention disclosures, samples, drawings, molds, diagrams, models, charts, graphs, notes, reports, research, algorithms, formulae, processes, methods, techniques, ingredient lists, mechanical, engineering and other designs, line layouts, product volume data, contractual terms and {S2587652; 3} 2 conditions, customer and client information, personnel information, supplier lists, and product and service plans and strategies, and all documentation relating to any of the foregoing;

(iv) technical information regarding Bevi Machines, including, without limitation, the designs of circuit boards and other electronics, the configuration of pumps, valves and tubing, and the dimensions and raw materials of components;

(v) works of authorship, copyrights, copyright registrations and applications therefor, mask work rights, and all other rights corresponding thereto throughout the world; (vi) domain names, uniform resource locators, other names and locators associated with the Internet, and applications or registrations therefor; (vii) industrial designs and any registrations and applications therefore;

(viii) trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications, and all goodwill associated therewith or related thereto throughout the world; 

(ix) Bevi Software, computer software, including all source code, object code, firmware, development tools, files, records and data, software master diskettes, copies of software, master diskettes, documentation and related materials and all media on which any of the foregoing is recorded;   

(x) rights in data, databases and data collections; (xi) moral and economic rights of authors and inventors, however denominated; and (xii) similar or equivalent rights to any of the foregoing (as applicable). All Bevi Intellectual Property rights arising in relation to the Bevi Software and any related user documentation are and shall remain the sole property of Bevi and/or its licensors, as appropriate, and Bevi and its licensors reserve all rights not expressly granted in this Agreement. Bevi Intellectual

Property is protected by U.S. and international laws, including, but not limited to, copyright, trade secret, and trademark law, as well as other applicable laws and international treaty provisions. Bevi retains all ownership of all translations, modifications, adaptations, improvements and derivative works of the Bevi Intellectual Property, and You do not have any right to create any of the foregoing.

  1. Confidential Information. You acknowledge and agree that the Bevi Software, including the structure, organization, source code and object code of the Bevi Software, and the Bevi Intellectual Property are the valuable trade secret and confidential and proprietary information of Bevi and its licensors (“Confidential Information”). You shall not disclose, provide or otherwise make available to any third parties any such Confidential Information. If You breach Your obligations under this Agreement with respect to use and disclosure of Confidential Information, Bevi shall be entitled to obtain equitable and injunctive relief in addition to all other remedies that may be available to protect its interest.
  2. No Reverse Engineering. You shall not remove, edit, alter, reverse engineer, copy, paraphrase or in any other way reproduce or record in whole or in part in any medium, decompile, disassemble or create derivative works of, modify or otherwise use the Bevi Intellectual Property for any purpose, and You shall not attempt to do any of the foregoing prohibited acts. The Bevi Software may be encrypted. You shall not and shall not attempt to disable, remove or circumvent the encryption or any encryption device in any manner whatsoever. You shall not move, sell, transfer or otherwise dispose of, nor shall You allow any person or entity to move, sell, transfer or otherwise dispose of, any Bevi Intellectual Property. Unauthorized use of the Bevi Intellectual Property or failure to comply with the restrictions in this Agreement (or other breach of this Agreement) shall result in automatic termination of this Agreement. You agree that such actions shall cause immediate, irreparable harm to Bevi for which monetary damages would be an inadequate remedy, and that injunctive relief shall be an appropriate remedy for such breach.
  3. Term. This Agreement shall commence upon Your acceptance of the terms and conditions of this Agreement (whether by clicking “accept” or through your use of the Bevi Machine or Bevi Software) and shall continue unless terminated or rejected by Bevi (the “Term”). Bevi shall have the right to terminate this Agreement immediately and without notice to You in the event of Your breach of this Agreement or upon the expiration or termination of the Bevi Machine lease agreement or other agreement between You and Bevi or Bevi’s Distributor pursuant to which you obtained access to the Bevi Machine. Bevi shall also have the right to terminate this Agreement at any time for any reason upon written notice to you.
  4. Notice of Impairment. You shall notify Bevi or the Distributor, as applicable, as soon as practical if You become aware of any impairment or infringement of Bevi’s or its licensors’ intellectual property rights relating to any part of the Bevi Machine or Bevi Intellectual Property; provided however, that You shall not take any step or action against any alleged infringer unless and until requested to do so in writing by Bevi.
  5. Liability for Breach and Indemnity. You acknowledge and agree that You are responsible and solely liable for, and You agree to and shall indemnify and hold Bevi, its affiliates and their officers, directors, employees and licensors harmless from,any and all expenses, fees, fines or damages arising in connection with any claim or demand (including but not limited to reasonable legal fees) due to or arising out of or related to:

(i) Your breach of this Agreement;

(ii) Your violation of any laws, regulations or third party rights;

(iii) Your acts, omissions or willful misconduct; or (iv) any use of the Bevi Machine or the Bevi Intellectual Property except as expressly provided in this Agreement.

  1. No Warranty. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BEVI PROVIDES THE BEVI INTELLECTUAL PROPERTY “AS IS” AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY OF ANY KIND, AND BEVI HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND NON-INFRINGEMENT, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND LACK OF VIRUSES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BEVI OR ANY {S2587652; 3} 3 DISTRIBUTOR OR BEVI AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. This disclaimer of warranty and the limitation of liability set forth below are fundamental elements of the basis of this Agreement between You and Bevi. You acknowledge and agree that Bevi and its Distributors would not be able to economically or reasonably provide the Bevi Machine and Bevi Intellectual Property to You without these limitations.
  2. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BEVI BE LIABLE FOR PERSONAL INJURY OR ANY DIRECT, INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE BEVI MACHINE OR THE BEVI INTELLECTUAL PROPERTY, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF BEVI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY DAMAGES, COSTS OR EXPENSES YOU MIGHT INCUR, IN NO EVENT SHALL BEVI BE LIABLE FOR ANY DAMAGES, COSTS OR EXPENSES UNDER THIS AGREEMENT.
  3. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, exclusive of conflict of law provisions. The parties hereby agree that this Agreement shall not governed by the United Nations Convention on Contracts for the International Sale of Goods.
  4. Force Majeure. Bevi shall not be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is on account of causes beyond its control, including labor disputes, civil commotion, war, fires, floods, inclement weather, governmental regulations or controls, pandemics, casualty, government authority, strikes, or acts of God, in which event Bevi shall be excused from its obligations for the period of the delay and for a reasonable time thereafter.
  5. Entire Agreement; Conflict; Severability; Survival. This Agreement is the complete and entire statement of the agreement between You and Bevi which supersedes all proposals or prior agreements, oral or written, and all other communications between You and Bevi relating to the subject matter of this Agreement. In the event of a conflict between any provision of this Agreement and any provision of any equipment lease agreement, equipment sale agreement, distributor agreement or any other agreement between You and Bevi or Bevi’s Distributors, this Agreement shall prevail. In the event any provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of any of the remaining provisions shall not in any way be affected or impaired. The provisions of this Agreement that survive the termination or expiration of this Agreement by their nature shall survive.