Terms of Use

 

As used herein, “User” means the Person identified by the Company Name in the account information for the registration for the user account submitted in connection with these Terms of Use and, after such user account is registered, “User” means the Person identified by the Company Name in the account information for the user account being used each time such account is used.  If a Person is submitting a registration or using a user account for which it is not the User (an “Authorized Representative”), then, by registering or using such account, such Authorized Representative (a) represents that it has the legal authority to act on behalf of the User, including, without limitation, the authority to bind the User to the terms and conditions in these Terms of Use, and that its access to and use of the Platform is solely for and on behalf of the User, and (b) agrees to be bound by the terms and conditions in these Terms of Use to the extent applicable to the Authorized Representative.  

 

User and each Authorized Representative acknowledges that Barrel Hub shall retain the right to accept or reject registrations for user accounts and may terminate any user account for which it has accepted a registration, for any lawful reason.  Without limiting the foregoing, Barrel Hub may reject registrations for user accounts if the User does not meet Barrel Hub’s credit requirements or if User does not provide all information required by Barrel Hub to substantiate that User is permitted under all Applicable Laws to provide and receive Samples, and to purchase and sell Barrels, in the quantities and under the terms and conditions contemplated by these Terms of Use and by Barrel Hub’s other terms and conditions applicable to transactions undertaken by use of the Platform.  

 

1.                   Certain Definitions

 

1.1.              “Barrels” means wooden barrels of Whiskey.

 

1.2.              “Barrel Fill Date” means, with respect to any Barrel, the date on which the Whiskey in such Barrel was initially filled in a wooden barrel of the type and size included in the Specifications for such Barrel. 

 

1.3.              “Barrel Information” means all information submitted by a User on the Platform with respect to a Barrel, including, without limitation, the lot identification number, the Warehouse, and the Specifications. 

 

1.4.              “Available Barrels” means all Barrels identified as “Available Barrels” on the Platform.

 

1.5.              “Person” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated organization, governmental entity or other legally recognized entity.

 

1.6.              “Purchaser” means, with respect to a Reservation Request, Sample Request, and Purchase Request, and all transactions resulting from such Reservation Request, Sample Request, and Purchase Request, the user of the Platform that submits such Reservation Request, Sample Request, and Purchase Request. 

 

1.7.              “Purchased Barrels” means Accepted Barrels that are the subject of a Purchase Agreement.

 

1.8.              “Reserved Barrels” means Available Barrels that have become “Reserved Barrels” pursuant to Section 4.2; provided, however, Available Barrels will be Reserved Barrels only during the Reservation Period for the applicable Reserved Barrels.  

 

1.9.              “Samples” means samples of Whiskey from a Barrel.

 

1.10.           “Seller” means, with respect to each Barrel, the user of the Platform that submits Barrel Information to the Platform for such Barrel.

 

1.11.           “Seller Barrels” means, with respect to each user of the Platform, all Barrels for which such user submits Barrel Information to the Platform.

 

1.12.           “Specifications” means, with respect to each Barrel, the size of the barrel (measured in volume), the type of wood of which the barrel is constructed, the specific mash bill for the Whiskey in the barrel, and the Barrel Fill Date for the barrel.  

 

1.13.           “Unavailable Barrels” means all Barrels identified as “Unavailable Barrels” on the Platform.

 

1.14.           “Warehouse” means, with respect to each Barrel, the facility at which such Barrel is stored from time-to-time, but only while such Barrel is stored at such facility. The Warehouse may be referred to on the Platform as "Warehouser".

 

1.15.           “Whiskey” means potable alcoholic distillate obtained from a mash of cereal grain or cereal grain products saccharified by the diastase of malt or other natural enzyme and fermented by the action of yeast. 

 

2.                   User’s Activities and Obligations

 

2.1.              Authority. User represents that it is now, and each time it accesses the Platform will be, permitted under all Applicable Laws to use the Platform and to initiate and perform all transactions undertaken by the User in connection with the Platform, including, without limitation, the offer of Available Barrels for sale and the purchase and sale of Available Barrels, on the terms and conditions in these Terms of Use. Each User and each Authorized Representative represents now, and each time it accesses the Platform, that it is not located outside of the United States, and that it understands and agrees that it is prohibited from using or accessing the Platform at any time it is located outside of the United States.   

 

2.2.              Application to Seller and Purchaser.  User acknowledges and agrees that (1) User is the Seller with respect to all Seller Barrels for which User submits Barrel Information (including, without limitation, with respect to all Samples from such Seller Barrels), and with respect to all Reservation Requests, Sample Requests, and Purchase Requests related to such Seller Barrels and all transactions resulting from such Reservation Requests, Sample Requests, and Purchase Requests, and (2) User is the Purchaser with respect to all Reservation Requests, Sample Requests, and Purchase Requests submitted by User, and with respect to all transactions resulting from such Reservation Requests, Sample Requests, and Purchase Requests.  For clarity, when User is acting in its capacity as a Seller or Purchaser, User will have all of the obligations of Seller or Purchaser, respectively, under these Terms of Use.  

 

2.3.              User Conduct. 

 

2.3.1.         User shall comply with, and shall ensure that the information and content transmitted by User or through User’s user account (“Content”) complies with, all applicable laws, including, without limitation, all applicable laws related to the purchase, sale, marketing, transfer, use or ownership of Available Barrels and Samples, all export and privacy laws, all applicable anti-corruption laws, the Telephone Consumer Protection Act and all applicable regulations of the Federal Communications Commissions (individually and collectively, “Applicable Laws”), and all of Barrel Hub’s and all Third-Party Providers’ regulations, guidelines and rules that have been made available to User.  User represents that all Content provided by or on behalf of User will be true, complete, accurate, and not misleading in all respects, and that User will update all Content immediately upon the occurrence of any event or circumstances if necessary for all Content to remain true, complete, accurate, and not misleading after the occurrence of such event or circumstances.  Barrel Hub and Third-Party Providers may modify or replace their regulations, guidelines and rules any time and from time to time.  “Third-Party Providers” are third parties engaged by Barrel Hub to provide data center, hosting, infrastructure or other services, equipment, or software in connection with the Platform or the use of the Platform.

 

2.3.2.         User shall not use the Platform to, and shall ensure that it’s user account is not used, to: (1) obtain or attempt to obtain unauthorized access to all or any part of the Platform or to Barrel Hub’s servers, systems, network, or data; (2) make available any information or content that is harmful to children, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (3) violate any Applicable Laws; (4) provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organization designated by the United States government as a foreign terrorist organization; (5) impersonate any Person, or forge or manipulate headers or identifiers to disguise the origin of any information or content transmitted through the Platform; (6) make available any Content that User does not have the right to make available or that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any Person; (7) for any commercial purpose (other than undertaking and completing transactions with Barrel Hub), including, without limitation, to send content containing advertisements or other commercial solicitations; (8) to act as a service bureau or to process or report any third-party information or to engage in any high-volume activity; (9) make available viruses, worms, trojan horses, or any other computer code, files, programs or content designed to interrupt, destroy or limit the functionality of the Platform or affect other users; or (10) interfere with or disrupt the Platform or servers, systems or networks connected to the Platform in any way. 

 

2.3.3.         As between User, each Authorized Representative, and Barrel Hub, all information and data obtained by User or any Authorized Representative from Barrel Hub or from the Platform, including, without limitation, the identity of, and all other information relating to, Barrel Hub’s suppliers, customers, and other contracting parties, is Barrel Hub’s confidential information; provided, however, that Barrel Hub’s confidential information does not include any information or data provided by User or that is or that becomes part of the public domain without the fault or breach of any confidentiality obligation by User or any Authorized Representative.  User and each Authorized Representative agrees that it will not disclose to any third party or use any of Barrel Hub’s confidential information without the prior written consent of Barrel Hub.

 

2.3.4.         User shall not, and shall ensure that none of its affiliates (including, without limitation, any Authorized Representative), directly or indirectly, on behalf of itself or any other Person, purchase, sell, or otherwise transfer, or attempt to purchase, sale, or otherwise transfer any Barrels to or from any Person that, at any time, is a user of the Platform or that owns any Unavailable Barrels or any Available Barrels (other than Barrel Hub and its affiliates), if  User (or any of its affiliates) obtains information about such Persons or such Unavailable Barrels or Available Barrels in connection with the use of the Platform.  This obligation does not restrict any transactions that are consummated through the Platform or that are otherwise approved in writing by Barrel Hub.  The obligations in this Section apply from the time User creates a user account until one year after such user account is cancelled in accordance with these Terms of Use.  Each User acknowledges and agrees that the foregoing obligations are necessary and appropriate in order to protect Barrel Hub’s goodwill and confidential information.  

 

2.3.5.         User hereby grants to Barrel Hub the right to use, distribute, reformat, recompile and display any and all Content in connection with the Platform, in connection with Barrel Hub’s compilation of data, information and Content for benchmarking, monitoring and research purposes, and for any other business purpose.  Barrel Hub may remove and refuse to display Content that violates these Terms of Use or for any other reason, but that does not mean that Barrel Hub is obligated to monitor the Platform or review any information or content. By using or accessing the Platform, User (and each individual accessing the Platform using User’s user account) understands and agrees that it may be exposed to offensive, indecent, or objectionable information and content.

 

2.4.              Software License; Ownership.  Barrel Hub grants User a personal, non-transferable, non-assignable, revocable, and non-exclusive license to use the Platform for the limited purpose, and pursuant to the terms and conditions, set forth herein. User has the right to use the Platform solely for the purpose of undertaking and completing commercial transactions as set forth in Section 4.  Using the Platform does not give User or any other Person (other than Barrel Hub) ownership of any intellectual or other property rights or interests in or relating to the Platform or the information or content accessed by use of the Platform. Without limiting the foregoing: (i) User shall not use any branding or logos used on or in connection with the Platform; (ii) User shall not remove, obscure, or alter any legal notices displayed on or along with the Platform; and (iii) User shall not directly or indirectly reproduce, modify, translate, decompile, create or attempt to create, by reverse engineering or otherwise, the object or source code of any software provided in connection with the Platform, use or adapt any information or content provided by Barrel Hub, or use the Platform or any information or content provided by Barrel Hub for any commercial purpose (other than undertaking and completing transactions as set forth in Section 4) or to create derivative works.  Software used in connection with the Platform may automatically download and install security or other updates without prior notification to you.

 

2.5.              Support; Third-Party Providers; Changes to the Platform.  Barrel Hub does not promise to provide User with any support for the Platform. If Barrel Hub provides User with support, it is at Barrel Hub’s sole discretion and does not mean that Barrel Hub will continue to provide User with support in the future.  Barrel Hub utilizes Third-Party Providers in connection with the Platform. User and each Authorized Representative consents to any and all uses of Third-Party Providers, including, without limitation, use of Third-Party Providers to host and store all personal data provided by or on behalf of User or any Authorized Representative and all Content.  Barrel Hub reserves the right, in its sole discretion, and from time to time, to change the Platform, to change the format or content of the Platform, and to update, modify or enhance the Platform, whether or not such changes, updates, modifications or enhancements would require changes to User’s systems or would otherwise negatively affect User.  

 

3.                   Barrel Information

3.1.              Barrel Information.  Seller shall provide all Barrel Information required or requested by Barrel Hub with respect to all Seller Barrels.  Seller represents, warrants, and covenants that (1) all Barrel Information about all Seller Barrels is and will be true, complete, accurate, and not misleading from the time such Barrel Information is submitted on the Platform until the later of removal of the Seller Barrels from the Platform or transfer of title to the applicable Seller Barrels pursuant to a Purchase Agreement, (2) that Seller shall transfer good and indefeasible title to all Purchased Barrels, free of any liens or other encumbrances of any kind, to the applicable purchaser on the date required pursuant to the applicable Purchase Agreement, (3) Seller has the authority to provide all Barrel Information provided through its user account on the Platform and to undertake and complete the transactions contemplated by this Agreement, and (4) Seller shall not mark any Available Barrel as an “Unavailable Barrel” after acceptance of a Reservation Request or Purchase Request with respect to such Available Barrel and will not mark any Reserved Barrel or Accepted Barrel as an Unavailable Barrel.  Seller shall update Barrel Information from time-to-time to ensure that the representations and warranties in this Agreement are true, complete, accurate, and not misleading at all times.  

  

3.2.              Cooperation.  Seller hereby grants Barrel Hub and Barrel Hub’s representatives and customers (to the extent authorized by Barrel Hub) the right to access Seller Barrels at the Warehouse and to obtain information from the Warehouse with respect to such Seller Barrels, and Seller shall cooperate with Barrel Hub with respect to any due diligence or verification activities undertaken by or with the authorization of Barrel Hub.  Notwithstanding the foregoing, neither Barrel Hub (nor any of its representatives or customers) is required to access any Seller Barrels, obtain any information, or otherwise perform any due diligence or verification activities with respect to any Seller Barrels, and any exercise of (or failure to exercise) Barrel Hub’s rights by Barrel Hub or any of its representatives or customers shall not relieve Seller of its obligations under this Agreement.

 

4.                   User Transactions

 

4.1.              Unavailable Barrels.  User may submit Barrel Information for Barrels to the Platform from time-to-time.  Seller may mark Seller Barrels as “Available Barrels” or “Unavailable Barrels” in its user account from time-to-time, to the extent not inconsistent with User’s obligations in these Terms of Use.  Seller may remove all Barrel Information for any Seller Barrels from the Platform at any time that such Seller Barrels are Unavailable Barrels (as permitted by this Agreement).  Barrel Hub or one or more users of the Platform may express interest in reserving or purchasing Unavailable Barrels by submitting an inquiry with respect to such Unavailable Barrels to Barrel Hub through the Platform.  User understands that none of Seller, Barrel Hub, nor any other Person has any obligations with respect to any such inquiries, and Unavailable Barrels are not available for reservation or purchase.  

 

4.2.              Reservations.

 

4.2.1.         Purchaser may request that Barrel Hub facilitate Purchaser’s reservation of one or more Available Barrels (each, a “Reservation Request”) using the reservation request process on the Platform.  Barrel Hub will coordinate with Seller with respect to the Reservation Request.  If Seller intends to reject the Reservation Request, Seller shall notify Barrel Hub, within two business days of Seller’s receipt of the Reservation Request, that it will reject the Reservation Request.  Seller shall provide such notice through a notification process provided by Barrel Hub or by electronic mail to an email address provided by Barrel Hub for the purpose of receiving such notifications.  Failure to provide such notice within the time allowed will constitute acceptance of the Reservation Request and authorization for Barrel Hub to mark the Available Barrels in the applicable Reservation Request as “Reserved Barrels” in Seller’s user account.  The Available Barrels in the applicable accepted Reservation Request will become “Reserved Barrels” upon the later of (a) Barrel Hub (or Seller) identifying such Available Barrels as Reserved Barrels of Purchaser in the user account for Purchaser and Seller, and (b) Barrel Hub receiving payment for the Reservation Price, plus the Reservation Fees, for the entire Reservation Period for such Available Barrels upon submittal of the applicable Reservation Request.  It is understood that Available Barrels will not become Reserved Barrels unless the conditions in the immediately preceding conditions are satisfied.   Seller shall not sell or otherwise transfer a Reserved Barrel during the Reservation Period for such Reserved Barrel to any third party without the prior consent of Barrel Hub.   The “Reservation Price” is the reservation price (which is a price per Available Barrel per day) for the applicable Available Barrels, as shown on the Platform at the time the Reservation Request is submitted, the “Reservation Period” means, with respect to each Reserved Barrel, the “Reservation Period” stated in the accepted Reservation Request for the applicable Reserved Barrel, which period will be a number of days commencing on the date the such Reserved Barrel is marked as a Reserved Barrel in Purchaser’s user account, and the “Reservation Fee” is Barrel Hub’s standard fee for facilitating reservation requests as shown on the Platform at the time the applicable Reservation Request is submitted. 

 

4.2.2.         Barrel Hub shall pay Seller the Reservation Price within 30 days following the end of the month in which Barrel Hub receives the Reservation Price from Purchaser.  Reserved Barrels will be marked as “reserved” on the Platform, and Barrel Hub will not sell, and will not facilitate a sale of, a Reserved Barrel during the Reservation Period for such Reserved Barrel to any third party without the prior consent of Purchaser.  Barrel Hub’s obligations in this Section 4.2.2 are all of Barrel Hub’s obligations with respect to Reserved Barrels, and neither Purchaser nor Seller shall have any rights of with respect to any acts or omissions of Barrel Hub with respect to Reserved Barrels or any Reservation Request except for claims for breach of this Section 4.2.2.  

 

4.3.              Samples.  Purchaser may submit a request that Barrel Hub facilitate Purchaser’s acquisition of a Sample (each, a “Sample Request”) using the sample request process on the Platform.  Seller shall not reject a Sample Request unless Seller notifies Barrel Hub within one business day after submittal by Barrel Hub of the applicable Sample Request that the Sample is not available for delivery as requested. Seller authorizes Barrel Hub to coordinate directly with the applicable Warehouse to obtain and deliver such Sample to Purchaser; Seller, Purchaser, and the Warehouse shall cooperate with Barrel Hub as requested by Barrel Hub to obtain and deliver such Sample to Purchaser. Purchaser shall pay Barrel Hub the Sample Price, plus the Sample Fee, for the Samples in a Sample Request upon submittal of the applicable Sample Request.  Seller acknowledges and agrees that Barrel Hub shall retain the entire Sample Price and the Sample Fee as compensation for facilitating the Sample Request, and that Barrel Hub shall have no obligation to pay Seller any portion of the Sample Price or the Sample Fee.  Barrel Hub’s obligations under this Section 4.3 are all of Barrel Hub’s obligations with respect to Samples, and neither Purchaser nor Seller shall have any rights with respect to any acts or omissions of Barrel Hub with respect to Samples or any Sample Request except as provided in this Section 4.3.  “Sample Price” is the price for services to provide the Sample, which sample price is shown on the Platform for the applicable Available Barrels, and the “Sample Fee” is Barrel Hub’s standard fee for facilitating sample requests as shown on the Platform at the time the applicable Sample Request is submitted.  

 

4.4.              Barrel Purchases.  Purchaser may submit a request for Barrel Hub to facilitate Purchaser’s purchase of one or more Available Barrels (each, a “Purchase Request”) using the purchase process on the Platform.  Barrel Hub will coordinate with Seller with respect to the Purchase Request.  Purchaser shall not have the right to withdraw a Purchase Request for 10 days following submittal of such Purchase Request to Barrel Hub unless otherwise approved by Barrel Hub.  If Seller intends to accept the Purchase Request, with respect to the Available Barrels included in the Purchase Request, Seller shall notify Barrel Hub, within two business days of Seller’s receipt of the Purchase Request, that it will accept the Purchase Request and such notification shall identify the Available Barrels with respect to which the Seller will accept the Purchase Request (and such Available Barrels will be “Accepted Barrels”).  If Seller does not accept a Purchase Request submitted for Available Barrels, Seller shall mark each such Available Barrel as an “Unavailable Barrel” upon such rejection, and in any event, prior to acceptance of such Purchase Request with respect to any other Available Barrels included on such Purchase Request.  Seller shall not have the right to mark any Accepted Barrel as an “Unavailable Barrel” after accepting a Purchase Request with respect to such Accepted Barrel.  Seller shall provide all notices provided under this Section 4.4 through a notification process provided by Barrel Hub or by electronic mail to an email address provided by Barrel Hub for the purpose of receiving such notifications. Seller shall not have the right to withdraw any acceptance of a Purchase Request for 10 days following the date of such Seller’s notice for such Purchase Request.  Barrel Hub may inquire with the Warehouse regarding the Accepted Barrels, including, without limitation, with respect to the existence of such Accepted Barrels and any liens or other amounts that might be owed with respect to such Accepted Barrels.  Purchaser and Seller shall enter into an agreement for the purchase of the Accepted Barrels by Purchaser from Seller for the Purchase Price, on a form provided by Barrel Hub (such agreement, the “Purchase Agreement”).  The Purchase Agreement shall provide, among other things, that amounts owed by the Purchaser to Seller will be paid to Barrel Hub, that the Purchase Agreement cannot be modified without the written consent of Barrel Hub, and that Barrel Hub is a third-party beneficiary to the Purchase Agreement.  The “Purchase Price” is the purchase price shown on the Platform for the applicable Accepted Barrels at the time the Purchase Request is submitted, plus the Service Fee. Seller shall be responsible for, and shall timely pay, all fees charged by the Warehouse with respect to the Accepted Barrels, including, without limitation, storage fees and fees for processing an ownership transfer or a transfer in bond (collectively, the “Warehouse Fees”), for so long as the Accepted Barrels remain credited to or held in Seller’s account at the Warehouse, including any period after title to the Purchased Barrels transfers to Purchaser and until the ownership transfer or transfer in bond of the Accepted Barrels out of Seller’s account at the Warehouse is completed. Seller acknowledges that the Warehouse may charge a full billing period (for example, a calendar month) of storage fees to the account holding the Accepted Barrels as of the Warehouse’s billing date, and that Seller shall remain responsible for such Warehouse Fees notwithstanding that title may have transferred to Purchaser during that period.  Except as set forth above with respect to Warehouse Fees, it is understood and agreed that neither Seller nor Barrel Hub will be responsible for storage or shipping of the Purchased Barrels from and after title to such Purchased Barrels transfers to Purchaser, and all storage and shipping of the Purchased Barrels after title to such Purchased Barrels is transferred to Purchaser must be agreed with the applicable Warehouse.    “Service Fee” is an amount equal to the number of Barrels sold pursuant to each Purchase Agreement multiplied by the service fee shown on the Purchase Agreement (as prepared by Barrel Hub).  All Service Fees are due and payable upon execution of the applicable Purchase Agreement.      

 

4.5.              Payment; Taxes; Transportation.  Purchaser authorizes Barrel Hub to charge any credit card provided to Barrel Hub in connection with a Reservation Request or a Sample Request for all payments to be made with respect to such Reservation Request or Sample Request, as applicable, provided that (a) with respect to a Reservation Request, Barrel Hub may charge such payments from and after submission of the applicable Reservation Request, and (b) with respect to a Sample Request, Barrel Hub may charge such payments only from and after the Seller’s acceptance of the applicable Sample Request (including by failing to timely reject such Sample Request as provided in Section 4.3). All prices payable with respect to a Reservation Request or Sample Request are exclusive of all sales, use, excise and similar taxes, and all transportation costs, and Purchaser shall be responsible for all such amounts.  Purchaser will pay all such amounts to Barrel Hub or directly to the parties to whom such amounts are owed or as otherwise requested by Barrel Hub.  Responsibility for taxes, transportation costs, and other amounts associated with Accepted Barrels shall be allocated in the applicable Purchase Agreement; provided, however, Barrel Hub shall not be responsible for any such amounts.  Barrel Hub may, but shall not be obligated to, agree with Purchaser to arrange transportation of Accepted Barrels using a third-party logistics provider (the “3PL”), in which case Purchaser shall pay Barrel Hub for such transportation at the rate set forth in Barrel Hub’s invoice for same.  Purchaser understands that such rate may not be the actual amount paid by Barrel Hub to the applicable 3PL.  For clarity, Purchaser acknowledges and agrees that Barrel Hub shall not be responsible for providing insurance with respect to such transportation or for any damage to or loss of the Accepted Barrels occurring in connection with such transportation, but Barrel Hub shall use commercially reasonable efforts to assist Purchaser with respect to claims, if any, against the applicable 3PL or carrier (or claims, if any, that are covered by insurance maintained by the applicable 3PL or carrier).

 

5.                   User Account; Notices

 

5.1.              Account Information. User will need a user account to use the Platform. User shall ensure that its account information (that is, the information provided by User or an Authorized Representative when creating a user account) remains current, complete, accurate and truthful.  All user accounts are non-transferable.

 

5.2.              Access to a User Account. User is responsible for all activity that happens on or through its user account. User shall keep its password confidential and shall not share it with any Person that is not an Authorized Representative. User should not use its user account password with other services. Without prejudice to User’s statutory rights, if User does not have its password and otherwise cannot validate its account to Barrel Hub’s satisfaction, User acknowledges and agrees that its account may be inaccessible to User and that all data and Content associated with the account may not be retrievable.

 

5.3.              Notices. Barrel Hub may provide User and Authorized Representatives with notices, including, without limitation, service announcements and notices regarding modifications or changes to these Terms of Use or to the Barrel Hub Privacy Policy, by email, regular mail, postings on the Platform, and other reasonable means now known or hereafter developed. User and each Authorized Representative consents to receive these notices by any and all of the foregoing means. Persons may not receive notices if they violate these Terms of Use by accessing the Platform in an unauthorized manner, and each Person will be deemed to have received any and all notices that would have been delivered had such Person accessed the Platform in an authorized manner.

 

5.4.              Termination and Suspension.  

 

5.4.1.         If Barrel Hub is informed by government authorities or other parties of inappropriate or illegal use of the Platform or other networks accessed through the Platform, or Barrel Hub otherwise learns of such use or has reason to believe such use may be occurring, then User shall cooperate in any resulting investigation by Barrel Hub or government authorities.  If User fails to cooperate with any such investigation, or fails to immediately rectify any illegal use, Barrel Hub may immediately suspend access to the Platform.  Further, Barrel Hub may suspend User’s access to the Platform or, at Barrel Hub’s option, terminate these Terms of Use and any or all other agreements to which Barrel Hub is a party, (a) as necessary or desirable to comply with any law, as determined by Barrel Hub in its sole discretion, (b) if any amounts owed by User to Barrel Hub or any of its affiliates are not paid when due; (c) if User violates these Terms of Use or any other agreements to which Barrel Hub is a party in any way, (d) as necessary or desirable to prevent any harm to Barrel Hub, third parties, or its business, as determined by Barrel Hub in its sole discretion, or (e) for any other reason or for no reason at all.

 

5.4.2.         User can stop using the Platform at any time. User may cancel its user account by deleting the user account using the “Delete Account” process found in the settings in such user account. Following cancellation of User’s user account, Barrel Hub may, but is not obligated to, retain copies of, and to continue using in accordance with the terms of these Terms of Use and the Barrel Hub Privacy Policy, all Content and all other information and data related to User or its user account that Barrel Hub obtained from the time the user account is created until the time that the user account is cancelled in accordance with this provision.  The foregoing rights to stop using the Platform and to cancel a user account do not terminate or cancel any rights or obligations existing with respect to any Purchase Agreement, and notwithstanding anything to the contrary, unless otherwise agreed in writing by Barrel Hub with respect to a specific Purchase Agreement, User may not cancel its user account, and it must be used, if necessary, to comply with User’s obligations under all Purchase Agreements entered into by such User.   

 

6.                   Privacy Policy.  The Barrel Hub Privacy Policy may be found on the Platform and explains how Barrel Hub treats personal data it obtains.  Barrel Hub may change the Barrel Hub Privacy Policy from time-to-time.   User and each Authorized Representative hereby agrees to the Barrel Hub Privacy Policy and that Barrel Hub can use all Content and all data and information Barrel Hub obtains from or about the User and each Authorized Representative in accordance with the Barrel Hub Privacy Policy. 

 

7.                   Disclaimer of Warranties.  Purchaser understands that Barrel Information for Unavailable Barrels, Available Barrels, and Reserved Barrels may be updated from time-to-time, including, without limitation, during the Reservation Period applicable to Reserved Barrels.  Purchaser shall not be entitled to any refund of any amounts paid with respect to Reserved Barrels, Samples, or Purchased Barrels as a result of any change to or non-compliance with any Barrel Information.  Barrel Hub does not and will not warrant the quality of, or volume in, any Sample, Accepted Barrel, or Purchased Barrels. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES OF SELLER IN THESE TERMS OF USE AND THE APPLICABLE PURCHASE AGREEMENT (IF ANY), THE PLATFORM (INCLUDING, WITHOUT LIMITATION, ALL CONTENT) AND ALL SAMPLES AND PURCHASED BARRELS ARE PROVIDED “AS IS”.  NONE OF BARREL HUB, NOR ITS AFFILIATES OR THIRD-PARTY PROVIDERS, NOR ANY OF ITS OR THEIR OFFICERS, EMPLOYEES, DIRECTORS, MANAGERS, OR OWNERS, MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PLATFORM, ANY CONTENT, ANY SAMPLES, ANY PURCHASE AGREEMENT, ANY BARRELS, OR ANY TRANSACTIONS ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR USE OF THE PLATFORM.  WITHOUT LIMITING THE FOREGOING, BARREL HUB EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PUPROPOSE, SECURITY, ACCURACY, AVAILABILITY, NON-INFRINGEMENT, AND ALL WARRANTIES AND REPRESENTATIONS THAT THE PLATFORM (OR ACCESS TO THE PLATFORM) WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. 

 

8.                   Limitation of Liability; Indemnification     

 

8.1.              User shall indemnify, defend, and hold harmless Barrel Hub, its affiliates, and Third-Party Providers, and all of its or their officers, employees, directors, managers, and owners from and against all claims, liabilities, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees) arising out of or related to User’s and each Authorized Representative’s use of the Platform or breach of these Terms of Use or any Purchase Agreement, or User’s use or disclosure of information that User agreed with a third-party to not disclose, or which User is otherwise restricted from using or disclosing under any contract or operation of any law.

 

8.2.              BARREL HUB SHALL NOT BE LIABLE FOR ANY FAILURE OR BREACH OF ANY AGREEMENT, OR FOR ANY DAMAGES ARISING OUT OF OR RELATED TO ANY FAILURE OR BREACH OF ANY AGREEMENT, BY USER, ANY OTHER USER OF THE PLATFORM OR ANY THIRD PARTY, INCLUDING, WITHOUT LIMITATION, THE FAILURE OF ANY PERSON TO EXECUTE OR PERFORM ANY OBLIGATIONS UNDER ANY PURCHASE AGREEMENT.

8.3.              TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NONE OF BARREL HUB, NOR ITS AFFILIATES OR THIRD-PARTY PROVIDERS, NOR ANY OF ITS OR THEIR OFFICERS, EMPLOYEES, DIRECTORS, MANAGERS, OR OWNERS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, TREBLE OR OTHER MULTIPLES OF DAMAGES, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES, OR DIMINUTION IN VALUE, INCLUDING, WITHOUT LIMITATION, FOR ANY ALLEGED DISCLOSURE OR LOSS OR DIMINUTION IN VALUE OF PERSONAL INFORMATION, ARISING FROM OR IN CONNECTION WITH THESE TERMS OF USE, ANY PURCHASE AGREEMENT, OR USER’S OR ANY AUTHORIZED REPRESENTATIVE’S USE OF OR ACCESS TO THE PLATFORM.  THE LIMITATIONS AND EXCLUSIONS IN THESE TERMS OF USE WILL APPLY WHETHER OR NOT ANY PERSON HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY LOSSES ARISING.          
 
 

8.4.              TO THE FULLEST EXTENT PERMITTED BY LAW, THE LIABILITY OF BARREL HUB, AND ITS AFFILIATES AND THIRD-PARTY PROVIDERS, AND ITS AND THEIR OFFICERS, EMPLOYEES, DIRECTORS, MANAGERS, AND OWNERS FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OF USE, ALL PURCHASE AGREEMENTS WITH USER, AND THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, CLAIMS ARISING OUT OF OR RELATING TO THE UNAUTHORIZED DISCLOSURE OF OR ACCESS TO PERSON INFORMATION, SHALL NOT EXCEED, IN THE AGGREGATE, $10,000, UNLESS (1) SUCH CLAIM IS FOR NON-PAYMENT BY BARREL HUB TO SELLER OF THE RESERVATION PRICE, IN WHICH CASE BARREL HUB’S LIABILITY WILL BE LIMITED TO THE AMOUNT OWED BY BARREL HUB TO SELLER WITH RESPECT TO SUCH RESERVATION PRICE, OR (2) A DIFFERENT AMOUNT IS EXPRESSLY AGREED BY BARREL HUB WITH RESPECT TO A PARTICULAR TRANSACTION IN THE PURCHASE AGREEMENT APPLICABLE TO SUCH TRANSACTION.

 

8.5.              TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR CLAIMS SOLELY CAUSED BY BARREL HUB’S FRAUD OR OTHER INTENTIONAL MISCONDUCT, THE LIMITATIONS AND EXCLUISIONS SET FORTH HEREIN SHALL APPLY TO ALL CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OF USE, ALL PURCHASE AGREEMENTS, AND THE PLATFORM, WHETHER SUCH CLAIMS ARE CAUSED BY THE NEGLIGENCE, BREACH OF CONTRACT, OR OTHER FAULT OF BARREL HUB OR ANY OTHER PERSON.

 

8.6.              AS LONG AS BARREL HUB HAS COMPLIED WITH THE PRIVACY POLICY WITH RESPECT TO PERSONAL INFORMATION, UNDER NO CIRCUMSTANCES WILL BARREL HUB BE LIABLE TO USER OR ANY AUTHORIZED REPRESENTATIVE FOR ANY DAMAGES ARISING FROM OR IN CONNECTION WITH THE UNAUTHORIZED DISCLOSURE OF OR ACCESS TO PERSONAL INFORMATION.

 

8.7.              Barrel Hub may set off any and all amounts owed by Barrel Hub or any of its affiliates to User or any of its affiliates, whether pursuant to these Terms of Use, a Purchase Agreement, or otherwise, from and against amounts owed by User or any of its affiliates to Barrel Hub or any of its affiliates, whether pursuant to these Terms of Use, a Purchase Agreement, or otherwise. 

 

9.                   Feedback.  User and each Authorized Representative agrees that any recommendation, idea, proposal, suggestion, feedback or other input (“Feedback”) submitted by it to Barrel Hub may be used by Barrel Hub without any notice, obligation, restriction, reimbursement or compensation to User or any Authorized Representative for (and User and each Authorized Representative agrees not to enforce) any and all rights that may now or in future exist (including, without limitation, moral and equivalent rights) in any Feedback.

 

10.                Miscellaneous

 

10.1.           Application to Third Parties. These Terms of Use, together with each Purchase Agreement to which Barrel Hub and User are parties, control the relationship between User and Barrel Hub. These Terms of Use do not create any third-party beneficiary rights. User acknowledges and agrees that the only parties to these Terms of Use are User and Barrel Hub, and User does not have the right to enforce any of the terms and conditions herein against any other Person unless, and then only to the extent, Barrel Hub assigns any such right to User in a written agreement, executed by Barrel Hub’s President, that is explicitly for the purpose of making such assignment.  Barrel Hub has the right, but not the obligation, to assign, in whole or in part, any benefits or rights with respect to any representations, warranties, covenants, or other obligations of User, whether in its capacity as a Seller, Purchaser, or otherwise, to any other Person, including, without limitation, to the Purchaser in a transaction where User is the Seller and to the Seller in a transaction where User is the Purchaser.  The identity of all users of the Platform is Barrel Hub’s confidential information, and User authorizes Barrel Hub to disclose User’s identity for any business purpose.  Barrel Hub shall not be obligated to disclose the identity of any users of the Platform to User, or the identity of any Seller or Purchaser (even if User is a counterparty in transactions with any such Seller or Purchaser) unless otherwise provided in the applicable Purchase Agreement or necessary for User or any other Person to comply with applicable law.

 

10.2.           Conflicts. The Parties intend that there are no conflicts or inconsistencies between these Terms of Use and any other document.  If there are any potential conflicts or inconsistencies between these Terms of Use and any other document, the conflicts and inconsistencies shall be resolved as followed (a) first, the potentially conflicting or inconsistent provisions shall be interpreted as additional requirements, obligations, or supplements to the full extent possible, (b) second, the more stringent requirements or obligations imposed on User shall control to the full extent possible, and (c) third, if the conflicting or inconsistent provision does not impose requirements or obligations on User, then the terms and conditions in these Terms of Use shall control.  

 

10.3.           Modification of the Terms of Use. Barrel Hub may modify the terms and conditions in these Terms of Use from time to time. Unless Barrel Hub indicates otherwise, modifications will be effective as of the date they are posted on its website. User and each Authorized Representative should look at the terms and conditions on the website regularly. Barrel Hub will provide notice (in accordance with these Terms of Use) of material modifications.

 

10.4.           Continued Use of the Platform. User may stop using the Platform as described in these Terms of Use, but the continued use of the Platform after the effective date of any modifications to these Terms of Use means that the User (and each Authorized Representative, as applicable) agrees to these Terms of Use as modified.  

 

10.5.           Waiver; Severability; Survival. Barrel Hub’s failure to exercise or enforce any right or provision of these Terms of Use or any Purchase Agreement will not constitute a waiver of such right or provision. If any provision (or part of a provision) of these Terms of Use or any Purchase Agreement is found to be invalid, the invalid provision will be substituted with a valid provision that most closely approximates the intent and economic effect of the invalid provision, and the other provisions of these Terms of Use and each Purchase Agreement will remain in full force and effect.  All provisions relating to confidential information, intellectual property, user conduct, privacy policies, Third Party Providers, representations and warranties of Seller or User, disclaimers of warranties, limitations of liability, or indemnification obligations, or providing rights or obligations that, by their nature, should survive termination of the Terms of Use or cancellation of User’s user account, will survive termination of these Terms of Use, consummation of any transactions contemplated herein, and cancellation of User’s user account.

 

10.6.           Assignment by Barrel Hub. Barrel Hub may freely assign these Terms of Use, each Purchase Agreement, and all of the policies and other documents incorporated or referenced in any of them (including, without limitation, all rights, licenses, and obligations under it or them), in whole or in part and without notice, for any reason.

 

10.7.           Government Rights. The Platform is “commercial computer software” and “commercial items” as these terms are used in the Federal Acquisition Regulation system, and the rights of the United States are only those rights as are granted to all other Users pursuant to the terms and conditions herein and will not exceed the minimum rights set forth in FAR 52.227-19.

 

11.                Choice of Law and Dispute Resolution.  Except for actions by Barrel Hub seeking injunctive relief, all disputes, demands, claims and causes of action whether in contract, tort or by statute arising out of, relating to or connected with these Terms of Use or any Purchase Agreement (“Dispute”) shall be finally resolved by binding arbitration in accordance with the International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitration by a single arbitrator. These Terms of Use, each Purchase Agreement, and any and all Disputes shall in all respects be governed by, interpreted and determined in accordance with the laws of the State of Texas, without regard to conflict of law principles that would require the application of the law of any other jurisdiction. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The place of the arbitration shall be Houston, Texas. Any Party who fails or refuses to submit to binding arbitration following a demand by the opposing Party shall bear all costs and expenses incurred by the opposing Party in compelling arbitration. The prevailing Party in any legal proceeding (including, without limitation, arbitration) will be entitled to recover its reasonable and necessary attorney fees and costs.