Terms & Conditions
The following terms and conditions (these “Terms & Conditions”) apply to your use of the Service (as defined below) provided by Bark A.I. Ltd. (“Bark A.I.”, “us”, “we” or “our”) to you (“Customer” or “you”). Each of the Customer and Bark A.I. a “Party“, and collectively, the “Parties“.
BY CLICKING THE “ACCEPT” BOX OR BUTTON, EXECUTING AN ORDER FORM FOR SERVICES (“ORDER FORM”) OR USING FREE SERVICES, CUSTOMER INDICATES ITS ACCEPTANCE OF THESE TERMS & CONDITIONS. BY ACCEPTING THESE TERMS & CONDITIONS, CUSTOMER AGREES TO ITS TERMS. CUSTOMER REPRESENTS AND WARRANTS TO BARK A.I. THAT IT IS AT LEAST 18 YEARS OF AGE. IF CUSTOMER IS ENTERING INTO THESE TERMS & CONDITIONS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS FULL LEGAL AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY OR IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, CUSTOMER MUST NOT ACCEPT THESE TERMS & CONDITIONS AND MAY NOT USE THE SERVICE.
IF YOU ARE REGISTERING FOR A FREE TRIAL, THE APPLICABLE PROVISIONS OF THESE TERMS & CONDITIONS GOVERN THE FREE TRIAL OR FREE SERVICES.
1. Use of the Service
1.1. Description of the Service. The Bark A.I. service (the “Service“) offers customer analytics and e-commerce shop reporting solution assisting merchants understand and predict their customer behavior and store profitability and related services on e-commerce marketplaces, webstores and platforms, such as but not limited to the “Shopify webstore” (each, an “e-commerce channel“). The Service is limited to the e-commerce channels listed on our website at https://bark-ai.com (together with its sub-domains, the “Website“).
1.2. Software-As-A-Service. The Service is made available to you on a software-as-a-service (SaaS) basis through a web portal on our Website and includes: (i) the software that you access via the Website; (ii) the features and functionality made available or provided to you by Bark A.I. in connection with the Service; and (iii) the content, text, documents, graphics, photos, sounds, videos, interactive features, trademarks, service marks and logos, contained in or made available through the Service. The Service may be modified by us in our sole discretion, with or without notice, at any time. If we have modified the Service in a manner that materially reduces the value you obtain from the Service (e.g., by removing specific functionality without replacing it with substantially similar or improved functionality) then you may terminate these Terms & Conditions in accordance with Section 7.3(ii) below. Your continued receipt and use of the Service following the modification to the Service shall conclusively demonstrate your acceptance of such modification. You are responsible for acquiring and maintain the equipment, connections and software needed for the use of the Service.
1.3. Subscription to the Service. Subject to your compliance with these Terms & Conditions and the Order Form (if applicable), and payment of all applicable Fees (as defined below) (if applicable), Bark A.I. hereby grants you, and you hereby accept, solely during the Term, a limited, non-exclusive, non-transferable, non-sublicensable, and fully revocable right and license to access and use the Service including without limitation any results and/or recommendation provided to you in connection therewith for your internal business purposes only.
1.4. Restrictions on Use. All rights not expressly granted to you are reserved by Bark A.I. and its licensors. You must not, and shall not allow any End User (as defined below) or third party to: (i) circumvent, disable or otherwise interfere with security-related features of the Service or features that prevent or restrict use or copying of any content or that enforce limitations on use of the Service; (ii) allow any third party to use the Service; (iii) give, sell, rent, lease or timeshare the Service or use it in any service bureau arrangement; (iv) reverse engineer, decompile or disassemble the Service or any components thereof; (v) use the Service to develop a competing service or product; (vi) use any robot, spider, scraper, or other automated means to access the Service; (vii) take any action that imposes or may impose an unreasonable or disproportionately large load on the Service or the Bark A.I. infrastructure (as determined by Bark A.I. in its sole discretion); (viii) interfere or attempt to interfere with the integrity or proper working of the Service, or any related activities; (ix) make copies of the Service, or copy any ideas, features, functions or graphics of the Service; (x) modify or create a derivative work of the Service, or any part thereof; (xi) reproduce, remove, deface, obscure, or alter Bark A.I.’s or any third party’s copyright notices, patents, trademarks, or other proprietary rights affixed to or provided as part of the Service, or use or display logos of the Service differing from those of Bark A.I.; and/or (xii) use the Service in any unlawful manner or in breach of these Terms & Conditions. Without limiting the foregoing, you may not use the Service to: (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates third party privacy rights; (c) send or store material containing viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (d) interfere with or disrupt the integrity or performance of the Service; or (e) attempt to gain unauthorized access to the Service.
1.5. Account. In order to use the Service, you have to create an account (“Account“). You must not allow anyone other than yourself or an authorized employee or agent acting on your behalf (each, an “End User“) to access and use your Account. You acknowledge and agree: (i) to provide accurate and complete Account and login information; (ii) to keep, and ensure that End Users keep all Account login details and passwords secure at all times; (iii) you remain solely responsible and liable for the activity that occurs in connection with your Account, (iv) that the Account login details may only be used by End Users; and (v) to promptly notify Bark A.I. in writing if you become aware of any unauthorized access or use of your Account or the Service. You may use the Service tools to disable and enable certain Service features or activities at any time.
2. Terms applicable to Free Trials and Free Services.
2.1. Free Trials. If You have registered for a free trial, Bark A.I. will make the applicable Service(s) available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered, or (b) the start date of any non-free Service subscriptions ordered by you for such Service(s), or (c) termination by Bark A.I. in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page and are incorporated herein by reference.
UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR APPLICABLE UPGRADED SERVICES, ANY DATA ENTERED INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU EXPORT SUCH DATA. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL. IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND INDEMNIFICATION OBLIGATIONS, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND BARK A.I. SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD. WITHOUT LIMITING THE FOREGOING, BARK A.I. AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET YOUR REQUIREMENTS AND/OR REACH CERTAIN RESULTS, (B) YOUR USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BARK A.I. AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOU USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY YOU OF THESE TERMS & CONDITIONS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
2.2. Free Services. Bark A.I. may from time to time make certain Services available to you for free (“Free Services”). Your use of Free Services is subject to these Terms & Conditions and this section, which will control in the event of a conflict. Free Services may be subject to certain limits as described in the Free Services registration web page which shall be incorporated herein by reference. Usage over these limits requires your purchase of additional services. Bark A.I., in its sole discretion and for any or no reason, may terminate your access to the Free Services in whole or in part. Bark A.I. may terminate your access to the Free Services without prior notice, and Bark A.I. will not be liable to you or any third party for such termination. You are solely responsible for exporting Data from the Free Services prior to termination of your access to the Free Services for any reason.
NOTWITHSTANDING THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN AND INDEMNIFICATION OBLIGATIONS, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND BARK A.I. SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES. WITHOUT LIMITING THE FOREGOING, BARK A.I. AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE FREE SERVICES WILL MEET YOUR REQUIREMENTS AND/OR REACH CERTAIN RESULTS, (B) YOUR USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY. IN THE “LIMITATION OF LIABILITY” SECTION BELOW, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BARK A.I. AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE FREE SERVICES, ANY BREACH BY YOU OF THESE TERMS & CONDITIONS AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
3. Data. You may upload, transmit, import, post or process data, including without limitation e-commerce channel’s shop data (“Data“) in the Service. You acknowledge and agree that Data may contain personally identifying information or personal data, as defined by the applicable laws which govern the use of data relating to identified or identifiable nature persons residing in the EU and/or the state of California in the United states, including the laws of the European Union (“EU“) Data Protection Act 1998, the EU General Data Protection Regulation (“GDPR“), and the California Consumer Protection Act effective as of January 1, 2020, as each of these laws are amended or replaced from time to time, and any other foreign or domestic laws to the extent that they are applicable to the personally identifiable or personal data you upload, transmit, post or process while using the Service (“Data Protection Laws and Regulations“). The use, storage and process of the Data shall be in accordance with Bark .A.I. Privacy Policy.
4. Interaction with E-Commerce Channels
4.1. Interaction with e-commerce channels. The Service enables you to link to and interact with e-commerce channels, and to access, use, and transmit content and Data to and from e-commerce channels (“e-commerce channels Materials“). In order to: (i) interact with an e-commerce channel, you may need to have, and actually be signed-in to, an active e-commerce channel account; (ii) fully utilize the Service you may need to obtain a specific e-commerce channel user status or account-type (“Status”). You must grant us authorization to access your e-commerce channel account in accordance with the terms and conditions prescribed by the applicable e-commerce channel and you will need to provide the e-commerce channel with our development account identifier and any other information requested by the e-commerce channel to enable us to access your account. You are solely responsible for registering your e-commerce channel account and obtaining any Status you need to fully utilize the Service, as well as the payment of any e-commerce channel fees in connection with the foregoing. You acknowledge and agree to review and be bound by the terms of use and privacy policy of any e-commerce channel, and agree to hold us harmless, and expressly release us, from any and all liability arising from your linking to and interaction with an e-commerce channel. You must provide all equipment and licenses necessary to access and use the Internet, and pay all fees associated with such access and use. You acknowledge that failure to comply any of the foregoing requirements may restrict us from accessing your e-commerce channel account and may prevent you from being able to link your e-commerce channel account to the Service.
4.2. Data. The Service may also enable you to upload, export or transmit your Data to e-commerce channels. We do not own or control the e-commerce channels and we do not have any control over, and assume no responsibility for, the content, privacy policies or practices of any e-commerce channel. Accordingly, to the extent the Service and/or any part thereof is dependent on the corresponding availability of any e-commerce channel, Bark A.I. shall not be liable in the event (i) you are not compliant with the terms and conditions related to your use of the e-commerce channel; and (ii) changes in and/or by the e-commerce channels cause the unavailability of the Service and/or any part thereof.
4.3. No Representations or Warranties. We do not make any representation or warranty regarding the number of goods or services (“Products“) that you will sell, or any outcomes you may achieve, by using the Service. You remain solely responsible and liable for your Products, Product warranties, and providing any Product maintenance and support to your customers.
5. Title. Bark A.I. (or its licensors) retains title to the Service, and all modifications, alterations, derivative works, and enhancements thereto, and all copies thereof and Proprietary Rights therein. Except as specified herein, you do not acquire any rights, express or implied, in the Service, and you have no right to commercialize or transfer the Service, in whole or in part. No license, right or Proprietary Right in any Bark A.I. trademark, trade name or service mark is granted pursuant to the Order Form or these Terms & Conditions. You agree that any suggestions, enhancement requests, recommendations or other feedback provided by you or the End Users relating to the operation of the Service (collectively, the “Feedback“) shall be the sole property of Bark A.I. and Bark A.I. shall be free to use any Feedback you provide for any purpose. For purposes of these Terms & Conditions “Proprietary Rights” means all patents, trademarks, service marks, copyright and related rights, registered designs, utility models, software, know-how, trade secrets, inventions (whether patentable or not), improvements, publicity rights, rights of privacy, and all other intellectual property rights and proprietary rights, including goodwill therein, whether registered or not, arising under the laws of any country or jurisdiction, including all rights or causes of action for infringement or misappropriation of any of the foregoing.
6. Financial Terms
6.1. Fees. In consideration for the Service, you will be required to pay Bark A.I. various fees as set forth in the Order Form (“Fees”). You will pay all Fees specified in the Order Form. Unless expressly set forth otherwise herein or in the Order Form, the Fees are charged based on Services purchased and not on actual usage.
6.2. Package Plans. At its discretion, Bark A.I. may offer different Service subscription plans to choose from (each a “Plan“). The details of all available Plans are set forth in the Order Form or on the Website or under a separate service agreement to be entered by you and Bark A.I.. The Plans may be amended from time to time. Your access to and use of the Service under any Plan is subject to your payment in full of the relevant fee applicable to the Plan you choose, as set forth in the Order Form.
6.3. Invoicing and Payment Terms. Invoicing and payment terms are set forth in the Order Form. All Fees shall be paid in US Dollars; and are non-refundable and all payment obligations are non-cancellable and non-contingent. You may not set-off any amounts owing to you against any payments owing to Bark A.I. hereunder. Bark A.I. reserves the right to change the Fee at any time upon thirty (30) days prior written notice to you. If we have changed the Fee then you may terminate these Terms & Conditions in accordance with Section 7.3(ii) below. Your continued receipt and use of the Service following the change in the Fee shall conclusively demonstrate your acceptance of such change. In the event you fail to timely pay any Fees or charges when due, Bark A.I. may, in its discretion, suspend or terminate the Service and/or any part or portion thereof in accordance with Section 7.3 below.
6.4. Taxes and Duties. Except for taxes based on Bark A.I.’s net income, you are liable and responsible for paying all sales, foreign withholding, value added, use, property, excise, service and other taxes, and all duties and customs fees relating to your receipt or use of the Service or sale of your products, whether or not Bark A.I. invoices you for such taxes, duties or customs fees.
7. Term and Termination.
7.1. Term. These Terms & Conditions commences on the date you first accept it and continues until all subscriptions hereunder have expired or have been terminated.
7.2. Subscription Term. The term of each subscription shall be as specified in the applicable Order Form (the “Initial Subscription Term”). Unless otherwise expressly provided under an Order Form, each subscription (other than for Free Trial and/or for Free Services) shall automatically renew for additional period(s) of equivalent duration (each a “Renewal Term”) unless either party provides the other party with written notice at least thirty (30) days prior to the expiration of the then-current term stating that it does not wish for the applicable subscription to be renewed (the Initial Subscription Term and all Renewal Terms collectively, the “Term“). Upon termination or expiration of these Terms & Conditions or the Order Form, you will lose all access to the Service, to your Account(s), and to any Data that we may be storing on your behalf. It is your responsibility to download your Data prior to canceling an Account or any termination or expiration of these Terms & Conditions. We do not accept any liability resulting from the suspension, termination or expiration of these Terms & Conditions, the Service, an Account, or to Data that is deleted or lost in connection thereto. Any terms of these Terms & Conditions that would, by their nature, survive the termination or expiration of this Agreement shall so survive including, without limitation, Sections 1.4, 3, 5 through 19 (inclusive).
If, and to the extent relevant, your account with an e-commerce channel is suspended or you experience a loss of Status for more than seven (7) days, then upon receipt of a written notice from you confirming the suspension, your Account shall be automatically suspended and only restored upon the reactivation of your e-commerce channel’s account. In such event, the Term shall be automatically extended by the period during which your Account was suspended.
7.3. Termination. Notwithstanding the provisions under Sections 7.1 and 7.2 above:
(i) Each party shall have the right to terminate these Terms and Conditions or an Order Form, at any time prior to the cessation of the Term, by written notice to the other party, if the other party (a) commits a material breach of these Terms and Conditions or the Order Form and fails to cure such breach within thirty (30) days after receipt of a notice requiring it to do so, or (b) becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its businesses or assets, becomes subject to any proceedings under any bankruptcy or insolvency laws, or has wound up or liquidated, voluntarily or otherwise.
(ii) Without derogating from your obligation to pay any Fees and other amounts obligated under these Terms or Order Form, whether then outstanding or committed for the remainder of the Term, and subject to Section 7.4 below, you may send Bark A.I. an email request to support@bark-ai.com at any time prior to the expiration of the Term to terminate these Terms and Conditions, your Order Form or cancel your Account(s). Bark A.I. will use commercially reasonable efforts to respond as soon as possible.
(iii) Bark A.I., at its sole option and discretion, may terminate these Terms and Conditions, any Order Form or any portion of any Order Form, at any time prior to the cessation of the Term, for any reason or for no reason, with or without providing you with notice. Bark A.I. may also stop providing the Service, and/or any service, feature, functionality or portion thereof, at any time, for any reason or for no reason, with or without providing you with notice.
7.4. Effect of Termination. Upon expiration or termination of these Terms & Conditions or an Order Form all outstanding Fees and other amounts obligated under these Terms & Conditions or an Order Form, shall become immediately due and owing and you shall immediately cease using the Service. In the event these Terms & Conditions or an Order Form are terminated before completion of the applicable Term, for any reason other than due to (i) Bark A.I.’s breach, or (ii) Bark A.I.’s modification to the Service or Fee as specified in Sections 1.1, 1.2 or 6.3 above: (a) you shall pay to Bark A.I. (or if already paid by you, Bark A.I shall retain) any outstanding Fees up and until the effective date of termination, and (b) Bark A.I. shall refund you any Fees that would have been charged for the then remaining Term of these Terms & Conditions or an Order Form, as applicable; provided however, that Bark A.I may deduct from any such refund the difference (if any) between the Fees committed by you for the then remaining Term and the fees that would have been charged by Bark A.I. pursuant to its then-current Service price-list had you selected a monthly subscription Plan.
8. Confidentiality.
8.1. Each party agrees to hold the other’s Confidential Information in strict confidence and protect it from unauthorized dissemination and use with the same degree of care that each uses to protect its own like information, but not less than a reasonable degree of care. Each party shall limit the use and access to the others’ Confidential Information to those of its employees and contractors whose use or access is necessary to effect the purpose of the Order Form or these Terms and Conditions and who are under written contractual non-disclosure and non-use obligations that are no less restrictive or protective than the terms of this Section 8. Neither party will use the others’ Confidential Information for purposes other than those necessary or appropriate to exercise rights or fulfill obligations under the Order Form or these Terms & Conditions. Each party shall be liable for any unauthorized disclosure or use by its employees and contractors of the others’ Confidential Information.
8.2. “Confidential Information” means all information and data furnished by a party to the other or to which a party has been exposed in performance of the Order Form or these Terms & Conditions, which information and data have been marked or otherwise specifically identified as confidential or proprietary, or can by their nature reasonably be presumed to be confidential or proprietary including but not limited to personal information that is protected by law, in any form, including but not limited to inventions, discoveries, ideas, processes, products, designs, technology, specifications, software, equipment, trade secrets, pricing information, customer and supplier information, third party confidential information and all other information related to a party’s business. Confidential Information shall not include information which is: (i) publicly known and/or made generally available in the public domain, either prior to or after the time of disclosure by the disclosing party, through no wrongful act of the receiving party, (ii) already known by the receiving party at the time of disclosure through no wrongful act of the receiving party, (iii) rightfully obtained by the receiving party from a third party free of any obligation to such third party to keep it confidential, or (iv) independently developed by the receiving party without use of or reference to the disclosing party’s disclosure. For clarification, the features and functionality of the Service, the Proprietary Rights, Data Aggregations, Feedback, applicable Fees, and the terms of the Order Form and these Terms & Conditions shall be considered as Bark A.I.’s Confidential Information.
8.3. In the event that a party shall be required by legal or regulatory process to disclose Confidential Information of the other, it shall promptly (if legally permitted to do so) notify the disclosing party, reasonably cooperate therewith in seeking to quash such request or obtain an appropriate protective order, and only disclose such disclosing party’s Confidential Information to the extent required.
8.4. Each party shall advise the other promptly in the event it learns or has reason to believe that any person who has had access to the other’s Confidential Information has violated or intends to violate the terms hereof and reasonably cooperate with the other in seeking injunctive or other equitable relief. The obligations of confidentiality and non-use herein shall survive for the Term and for a period of five (5) years thereafter; provided, however, that with respect to Confidential Information that constitutes a trade secret, the obligations of confidentiality and non-use herein shall survive for so long as such Confidential Information constitutes a trade secret under applicable law, but in no event less than the Term and for a period of five (5) years thereafter; and similarly for Confidential Information including personal information that is protected by law, the obligations of confidentiality and non-use herein shall survive for so long as the information remains protected by law, but in no event less than the Term and for a period of five (5) years thereafter.
9. Advertising and Publicity. Bark A.I. shall be entitled to refer to you as a customer of Bark A.I. and as a user of the Service, directly or indirectly, in any advertisement, news release, or publication, subject to obtaining your prior approval which shall not be unreasonably delayed or withheld. Bark A.I. may use your trade names and trademarks in connection with such usage.
10. Warranty Disclaimer. Bark A.I. shall not be held responsible or liable for any actions taken by you, either wholly or in part, based on the Data or information provided to Bark A.I. by you or any third party, or for any loss, damage, expense or injury resulting from any transactions conducted by you with any third party as a result, by way of or through the use of the Service. THE SERVICE, INCLUDING WITHOUT LIMITATION, ALL SOFTWARE, CONTENT, REPORTS AND INFORMATION PROVIDED AS PART OF THE SERVICE, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. You assume all responsibility for the selection of the Service to achieve your intended results. In addition, since Bark A.I. cannot verify all Data or information provided by you or other third parties, and errors in gathering or reporting such Data or information may occur, Bark A.I. does not represent or warrant that the Service is always accurate, complete or current and shall not be liable for or responsible for decisions taken by you as a result thereof BARK A.I. HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BARK A.I. DOES NOT WARRANT THAT THE SERVICE WILL BE COMPLETE, ACCURATE, SECURE, UNINTERRUPTED, ERROR FREE, FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT DEFECTS WILL BE CORRECTED. BARK A.I. DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY SOFTWARE, CONTENT, REPORTS, INFORMATION, OR RESULTS THAT YOU OBTAIN THROUGH THE SERVICE. YOUR USE OF AND RELIANCE UPON THE SERVICE AND YOUR DATA AND ANY E-COMMERCE CHANNEL MATERIALS IS ENTIRELY AT YOUR SOLE DISCRETION AND RISK, AND BARK A.I. SHALL HAVE NO RESPONSIBILITY OR LIABILITY WHATSOEVER TO YOU IN CONNECTION WITH ANY OF THE FOREGOING. YOU AGREE THAT WE WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES THAT MAY RESULT FROM THIRD PARTY’S HARDWARE, SOFTWARE, COMMUNICATIONS SERVICES OR MATERIALS, OR FROM TECHNICAL PROBLEMS, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH, THE INTERNET (SUCH AS SLOW CONNECTIONS, TRAFFIC CONGESTION, DELAYS OR INTERRUPTIONS OR OVERLOAD OF OUR OR OTHER SERVERS) ANY TELECOMMUNICATIONS, INTERNET PROVIDERS OR OTHER THIRD-PARTY SERVICE PROVIDERS. Applicable law may not allow the exclusion of certain warranties, so to that extent the above exclusions may not apply.
11. Limitation of Liability. BARK A.I. SHALL NOT BE LIABLE FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS OR REVENUE, LOSS OF GOODWILL, DATA LOSS, WORK STOPPAGE, OR COMPUTER FAILURE, DELAY OR MALFUNCTION) ARISING OUT OF THE ORDER FORM AND/OR THESE TERMS & CONDITIONS OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICE, EVEN IF BARK A.I. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF BARK A.I. TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY CLAIMS AND DAMAGES ARISING FROM OR OUT OF THE ORDER FORM AND/OR THESE TERMS & CONDITIONS IN CONNECTION WITH THE USE OF OR THE INABILITY TO USE THE SERVICE (WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU TO US FOR THE SERVICE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR FIRST CLAIM. Applicable law may not allow the exclusion or limitation of liability, so to that extent the above limitations or exclusions may not apply.
12. Indemnification. You agree to defend, indemnify and hold harmless Bark A.I. and our affiliates and our respective officers, directors, agents, consultants and employees (each an “Indemnified Party”) from any claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Claims”) by you and /or any third party arising from: (i) your or your End Users’ use of the Service; (ii) your breach of the Order Form or these Terms & Condition; (iii) your sale and distribution of the Products; or (iv) your failure to pay any taxes, duties or assessments due hereunder. An Indemnified Party need not seek recovery from a third party or otherwise mitigate its losses in order to make a claim under this Section 12. We have the right to participate in the defense of a Claim and in selecting counsel therefore. You shall not, without first obtaining our prior written consent, settle any Claim in any manner that (a) restricts or limits our ability to deliver the Service; or (b) involves a remedy relating to admission of liability by, injunctive relief against, or other affirmative obligations by an Indemnified Party without the Indemnified Party’s consent.
13. Additional Services; Third Party Providers. From time to time we may offer you additional or ancillary features or services (“Additional Services”) that may be subject to additional or different terms of service and/or may be rendered by third party service providers (“Third Party Providers”). Any Additional Services will form part of the Service. Your use of such Additional Services shall be deemed your consent to such additional terms of service, including without limitation the Third-Party Providers’ terms of service. We and/or the Third-Party Providers may need you to provide Data to enable us and/or the Third-Party Providers to provide you with the Additional Services.
14. Privacy Policy and Website Terms of Use. You acknowledge and agree that your: (i) use of the Service, including, without limitation, Data and other information transmitted to or stored by Bark A.I., is governed by the Bark A.I. Privacy Policy (“Privacy Policy“); and (ii) use of the Website is subject to the Bark A.I. Website terms of use (“Website Terms of Use“). To the extent of any inconsistency or conflict between the Order Form, these Terms & Conditions and the Website Terms of Use, the Order Form shall prevail.
15. Compliance with Laws. Each party shall comply with all applicable laws relating in any way to its performance of its obligations under the Order Form and these Terms & Conditions. You agree to comply fully with all applicable export laws and regulations as well as any data privacy laws in any jurisdiction to ensure that neither the Service nor any technical data related thereto are shared, exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
16. Assignment. These Terms and Conditions shall be binding upon and inure to the benefit of the parties and their successors and permitted assigns. You may not assign your rights or obligations under these Terms & Conditions or the Order Form without our prior written consent. Any purported assignment in violation of this Section 16 shall be null and void. Our rights and obligations under these Terms & Condition and the Order Form are freely assignable.
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18. Injunctive Relief. You understand and agree that in the event of a breach or threatened breach of any of the covenants or promises contained in the Order Form or these Terms & Conditions, Bark A.I. will suffer irreparable injury for which there is no adequate remedy at law and Bark A.I. may seek injunctive relief enjoining said breach or threatened breach. You further acknowledge, however, that Bark A.I. shall have the right to seek a remedy at law as well as or in lieu of equitable relief in the event of any such breach.
19. General. The Order Form, these Terms & Conditions, the Website Terms of Use and the Privacy Policy represent the complete agreement concerning the Service between you and Bark A.I. and supersede all prior agreements and representations related to the subject matter hereof. Any amendments must be in writing and executed by the parties. Section headings are provided for convenience only and have no substantive effect on construction. Bark A.I. will not be liable for any loss, damage or delay resulting from any event beyond Bark A.I.’s reasonable control. Nothing in the Order Form or these Terms & Conditions shall be construed to create any employment relationship, partnership, joint venture or agency relationship or other form of business association or to authorize any party to make any representation on behalf of the other party enter into any commitment or agreement binding on the other party. In the event that any provision of the Order Form or these Terms & Conditions, is held invalid or unenforceable in any circumstances by a court of competent jurisdiction, the remainder of the Order Form and these Terms & Conditions, and the application of such provision in any other circumstances, will not be affected thereby. The failure by a party to exercise any right hereunder or under the Order Form or these Terms & Conditions shall not operate as a waiver of such party’s right to exercise such right or any other right in the future. The Order Form and these Terms & Conditions shall be governed by the laws of the State of Israel, without reference to its conflict of laws rules. The exclusive jurisdiction and venue for all disputes under the Order Form and these Terms & Conditions shall be the competent courts located in Tel-Aviv, Israel, and each party hereby irrevocably consents to the jurisdiction of such courts. All definitions not otherwise defined in these Terms & Conditions shall have the meaning ascribed to them in the Order Form. This Agreement may be executed in duplicate and either copy or both copies are considered originals.
Last updated July 2022
