Terms of Sale

By placing an order or making a purchase of equipment ("Equipment") from Somabar, Inc. (“Somabar” or “Provider”), you (“Customer”) agree to these terms of sale ("Terms") set out below, along with Somabar’s Privacy Policy at https://www.somabar.com/privacy-policy and other agreements referenced in these Terms.  This is a legal agreement between you (either in your individual capacity if acting on your own behalf, or the company that you represent if you are acting on behalf of such company) and Somabar. 

 

  1. DELIVERY.  Provider shall attempt in good faith to effect delivery approximately in accordance with the instructions set forth in Customer’s order, but Provider shall not be responsible or liable for any delays or failure in such delivery. Provider expressly reserves the right to effect delivery of Equipment ordered in any number of separate shipments. Subject to Customer’s instructions as to carrier, delivery shall be effected using such modes of transport and such carriers as Provider deems appropriate. During any period of shortage of any product, Provider shall have the right to allocate its supply of such product among its customers, including Customer, pursuant to their respective orders and contracts in any manner Provider deems appropriate.  Provider shall in no event be responsible or liable for any delay or failure to effect delivery due to any cause which is unavoidable or beyond Provider’s reasonable control and which prevents, impairs or adversely affects in any way Provider’s performance under any order, including but not limited to war, fire, flood, natural disaster, pandemic, strike, labor dispute, act of God, governmental action, civil disturbance, accident, or inability to obtain or use materials, labor, equipment, facilities or transportation; in such cases, Provider shall have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time.

  2. TITLE AND RISK OF LOSS.  Title to all Equipment supplied hereunder shall pass to Customer when delivered to the carrier and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to any Equipment ordered hereunder shall be borne by Customer.

  3. INSPECTION; CLAIMS FOR DAMAGE IN TRANSIT.  Customer shall carefully examine all deliveries of Equipment made hereunder and within five (5) calendar days of receipt notify Provider of any alleged error, shortage, defect or non-conformity of any such Equipment. Any failure by Customer to examine and report shall constitute a waiver of any claim or right of Customer against Provider arising hereunder or under any other agreement with Provider, or by law with respect to any such error, shortage, defect or non-conformity reasonably discoverable by such examination. Any and all claims by Customer for damage or loss in transit shall be made by Customer against the carrier.

  4. ALL SALES ARE FINAL; WARRANTY RETURNS ONLY. All sales are final and returns will only be accepted in accordance with the terms and conditions set forth in the Equipment limited warranty. See Section 10. 

  5. UNLIMITED FREE CUSTOMER SUPPORT.  Somabar will provide unlimited free phone and/or online customer support for a period of ninety (90) days as set forth in the Equipment limited warranty. See Section 10. 

  6. SUPPORT.  If a problem with Equipment purchased from Somabar requires Provider to ship a replacement part or replace Equipment (“Replacement”), Customer shall pay for the cost of the Replacement and associated shipping unless the problem is a valid limited warranty claim, as determined by Somabar in its discretion (in which case the limited warranty would govern). See Section 10.

  7. SOFTWARE AND APP.  The software embedded in the Equipment (and any updates thereto) (“Software”) is licensed and governed solely by the End User License Agreement at the following link: https://www.somabar.com/eula.  Customer’s use of any Somabar mobile application (“App”) is governed by the terms of service located at https://www.somabar.com/terms-of-service.

  8. RESTRICTIONS ON USE.  Customer agrees that it shall not directly or indirectly: (i) modify or reverse engineer the Equipment or any part thereof; (ii) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in the Equipment (or in any copies of Software or the App); (iii) operate or make use of the Equipment in any way violative of applicable laws and regulations; and/or (iv) take or permit any other action which could impair Provider’s rights, or damage the image or reputation of quality inherent in the Equipment, Provider’s business, reputation, intellectual property or other valuable assets or rights. In the event Customer rents, leases, sells or otherwise transfers the Equipment to a third party, Customer agrees that it will require such third party to be bound by Sections 7 (Software), 8 (Restrictions on Use), and 9 (Intellectual Property and Ownership) hereof as a condition of such rental, lease, sale or other transfer.

  9. INTELLECTUAL PROPERTY USE AND OWNERSHIP.  Provider and its licensors and affiliates are and will remain the sole and exclusive owners of all intellectual property rights in and to the Equipment made available for sale pursuant to these Terms and any related specifications, instructions, documentation or other materials, including, but not limited to, all related copyrights, patents, and registered and unregistered trademarks, trade names service marks, and logos and other intellectual property rights. You are not granted by implication, estoppel, or otherwise, any license or right to use any of these intellectual property rights, nor will you have or acquire any ownership of these intellectual property rights in or to the Equipment, nor of any intellectual property rights relating to the Equipment.

  10. LIMITED WARRANTY AND DISCLAIMERS. Specifically excluding any external Equipment control device (such as an iPad) and other included products not made by Provider, the Equipment includes a limited warranty, and this limited warranty is only available to Customer for a certain period of time. For specific and detailed information regarding this limited warranty, Customer shall access the following link: https://www.somabar.com/warranty and/or contact Provider.

  11. PAYMENT TERMS. Equipment must be paid in full, including shipping, prior to delivery by Provider to the carrier, in US Dollars. Customer shall not set off against or deduct from any amounts due to Provider any amounts owed by Provider to Customer or any damages or losses which Customer may have sustained or allege to have sustained as a result of any breach or alleged breach by Provider or any obligation to Customer (whether or not arising hereunder or in connection herewith). 

  12. SUSPENSION. In addition to any of its other rights or remedies in these Terms, Provider reserves the right to remotely suspend use of the Equipment (a) if Customer is fifteen calendar (15) days or more overdue on a payment or immediately upon failure of clearance of check, authorized auto-debit or charge, (b) if Provider deems such suspension necessary as a result of Customer’s breach of these Terms, (c) if Provider reasonably determines suspension is necessary to avoid material harm to Provider or its other customers, or (d) as required by law or at the request of governmental entities.

  13. TAXES.  Prices do not include any tax or other government charge or assessment upon the sale, shipment, production or use of Equipment ordered or sold hereunder. Customer shall be solely responsible for, and shall pay to Provider upon demand by Provider, any such tax, charge or assessment (except any taxes based on Provider’s net income).

  14. INDEMNIFICATION. 
    14.1 By Provider. Subject to the restrictions identified below, Provider shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that unaltered Equipment or any part thereof, furnished pursuant to these Terms infringes upon the third party’s registered copyright, trademark or patent; provided, however, that Provider shall: (i) be given immediate notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding; (ii) have sole authority to investigate, defend and/or settle the claim, suit or proceeding; and (iii) be given any such assistance as required for the investigation, preparation, defense and settlement of the claim, suit or proceeding. This Section states Customer’s entire remedy, and Provider’s’ entire liability subject to the limitations on liability set out in Section 15 (Limitations of Liability), for any such infringement or claim thereof, and shall control over any other conflicting or inconsistent provision in these Terms. Without the prior written consent of Provider, Customer shall not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith. Provider shall have no liability or obligation under this Section 14 for any infringement or claim thereof to the extent it is based upon: (a) production, sale or use of prototypes, outputs, or other results of the Products; (b) any method of using the Equipment other than methods inherent in, and necessary for, the operation of, the Equipment as supplied; (c) the use of the Equipment with any consumables, supplies, equipment, device or software not manufactured or supplied and certified by Provider; (d) the use of any Equipment which has been modified by Customer or any third party without obtaining Provider’s prior written authorization; and/or (e) Customer’s continued use of any Equipment after receipt of notice of infringement (collectively, “Exclusions”).
    14.2 By Customer. Customer shall indemnify, hold harmless and defend Provider, its officers, directors, agents and representatives from any and all liability, claims, demands, losses, damages, injuries, actions costs and expenses, including reasonable attorney fees, arising from or related to (i) any Exclusions or (ii) the use, operation or control of the Equipment by Customer, its employees, agents, representatives and clients, unless resulting from the gross negligence or willful act of Provider and its employees; provided that Customer shall not settle any claim or enter into any agreement that affects Provider’s rights or interests without Provider’s prior written consent, and that if Customer does not diligently defend against such claim, suit or proceeding, Provider shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer’s sole cost and expense.   

  15. LIMITATION OF LIABILITY.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION PROVIDER’S INDEMNIFICATION LIABILITY UNDER SECTION 14 (INDEMNIFICATION), PROVIDER, ITS AFFILIATES, MANUFACTURERS, SUPPLIERS AND LICENSORS (AS THIRD PARTY BENEFICIARIES) (THE “PROVIDER PARTIES”) SHALL NOT HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS  FOR ANY LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THE PROVIDER PARTIES’ ENTIRE LIABILITY TO CUSTOMER ARISING OUT OF OR RELATED TO THESE TERMS SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO PROVIDER DURING THE PRIOR TWELVE (12) MONTHS UNDER THESE TERMS.   

  16. EXPORT COMPLIANCE. Customer agrees to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. Customer represents and warrants that it is buying Equipment for its own use only, and not for resale or export to any country that violates any applicable export controls administered by the United States of America.  Equipment may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations“).

  17. LIMITATION RE. LIQUID PRESERVATION, PERISHABLE INGREDIENTS & UTILIZATION.  Customer acknowledges that all liquid and ingredient preservation will be impacted by how the liquid and ingredients are stored and handled both prior to and during their use with the Equipment and Equipment components. Customer acknowledges that the Equipment does not refrigerate liquids or ingredients, and any perishable liquids and ingredients used with the Equipment must be monitored and discarded in accordance with best food safety practices and all applicable health and safety considerations and guidelines. Provider does not guarantee or promise any specific length of liquid/ingredient preservation, safety or monetary benefit from the use of the Equipment or any feature of them. Actual preservation, safe usage and monetary benefits vary with factors beyond Provider’s knowledge or control. Customer also acknowledges that the Equipment utilizes a tube system connecting the ingredient canisters [i.e., SomaPods®] to the mixing and dispensing chambers that may prevent full utilization of any liquids/ingredients used with the Equipment. Provider does not guarantee or promise any specific percentage utilization of any liquids or ingredients used with the Equipment. Customer agrees that the Equipment is never to be used with liquids or ingredients containing pulp or any other solid, semi-solid or highly viscous ingredients. Customer acknowledges that Somabar is a commercial appliance and requires cleaning after each day of use. 

  18. MISCELLANEOUS.  Provider does not make, and expressly disclaims, any legal advice relating to the lawful service of alcoholic beverages in Customer’s establishment and under Customer’s liquor license, if any. Customer shall contact its own legal counsel with regard to any liquor or alcohol service related matters. Customer may not assign or dispose of any rights or obligations under these Terms without Provider's prior written consent.  Both parties agree that these Terms together with all internally referenced agreements constituted the complete and exclusive statement of the mutual understanding of the parties regarding its subject matter and supersedes and cancels all previous written and oral agreements and communications regarding such subject matter. These Terms will be governed by the laws of the State of California without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to the subject matter hereof will be the state and United States federal courts located in Los Angeles, California and both parties hereby submit to the personal jurisdiction of such courts. Headings are for convenience only, and “including” and similar terms are to be construed without limitation. No supplement, modification, or amendment of these Terms will be binding, unless executed in writing by a duly authorized representative of each party to these Terms. If any provision of these Terms is held to be invalid, illegal, void or unenforceable, that provision will be severed from the remainder of these Terms and that determination shall not affect any other provision of these Terms so long as these Terms remains capable of performance. These Terms may be updated by Somabar from time to time, and it is your responsibility to review these Terms each time you make a purchase from Somabar.
     

Date of Last Revision: 4/14/2020 

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