Terms of Service
Last updated October 2023
These Terms of Service form part of a contract between Eighty-Six Inc., a Delaware corporation (the “Company”) and the Customer (a “Customer”) who registers to purchase products through the Company’s website (the “Company Site”) or who purchases any products or services offered by the Company (the “Products”) by completing and signing a written service Agreement (as applicable, an “Order”). An Order may be amended in writing, including by email requesting new products, services, or locations. The applicable specifications and components of any Product are as described on the Company Site or in the applicable Order (as applicable, the “Service Description”).
Every Customer who submits an Order or who clicks on the “submit” button to signify Agreement with these Terms of Service is a Customer for purposes of this Agreement. These Terms of Service are subject to change at the Company’s discretion, the Company may modify this Agreement at any time by posting a revised version on the Company Site. These Terms of Service together with any Order, and any amendments thereto, will constitute a contract that is binding on the Customer and the Company (the “Agreement”).
1 Provisions Applicable to All Orders.
1.1 Orders. Each Order submitted by a Customer creates a contract binding on the Customer and Company, consisting of the Order, the specifications applicable to the Products being purchased and these Terms of Service.
1.2 Fees. Company will provide, and the Customer will purchase and pay for, the Products specified in the Order for the Fees specified therein (the “Fees”). For the avoidance of doubt, the Fees include all service costs specified in this Agreement for the duration of the term specified in the initial Order (the “Subscription Term”).
1.2.1 Annual Uplift. Commencing on the first day of the next calendar quarter after the one-year anniversary of the effective date of this Agreement, and annually on each anniversary thereafter, the Fees shall be increased as indicated below (the “Annual Uplift”). Any subsequent Order by the Customer shall be deemed to have the same anniversary date as the initial Agreement for purposes of the Annual Uplift. The parties agree to the standard increase of five percent (5%) unless otherwise specified in the Order Form.
1.2.2 Such increases occur no more frequently than once per contract year of the Term
1.3 Fees, Taxes and Payment. Customer will pay to Company any “up front” or “setup” Fees on or before the Go-Live Date, as specified on the Order. Beginning on the Go-Live Date, Company shall begin billing Customer, and shall invoice Customer monthly or otherwise in the manner set forth in the Order Form. Fees are exclusive of all applicable sales, use and other taxes, and Customer will be responsible for payment of all such taxes in addition to the rates listed in the order form. Any additional services or locations requested following the initial Agreement shall be billed in the manner set forth on the Order. Unless otherwise provided in the Order, payments to Company may be made by ACH debit from a bank account, or other forms of electronic payment deemed acceptable to the Company. All Fees are fully-earned when due and non-refundable when paid. Any amounts payable to Company not paid when due will, at the discretion of the Company, bear interest at the rate of one and one half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less. If Company collects any payment due at law or through an attorney at law or under advice therefrom or through a collection agency, or if Company prevails in any action to which the Customer and Company are parties, Customer will pay all costs of collection, arbitration and litigation, including, without limitation, all court costs and Company’s reasonable attorneys’ fees. If any check is returned for insufficient funds Company may impose a processing charge of $25. If Customer provides Company with a form of payment to keep on file for billing purposes, Customer hereby authorizes Company to bill all amounts due hereunder to such form of payment.
1.4 Additional Fees: The Company has the right to take the following actions, without any prejudice to any of its rights in the event:
1.4.1 Customer fails to provide sufficient information within the first sixty (60) days of signing to proceed with this Agreement, the Company may impose a lack of engagement fee equal to three (3) months of service and terminate the Agreement.
1.4.2 Customer is scheduled to have inventory conducted at a location but fails to notify the Company five (5) business days before the scheduled inventory appointment that the appointment cannot be completed due to the Customer’s actions, the Company will impose a $250 per location fee for each appointment that cannot be completed.
1.5 Order Term. The term (“Term”) of this Agreement shall begin on the Subscription Actual Go-Live date as denoted in the Customer Profile, and will last until it is terminated by one of the Parties in accordance with Section 1.5.1 (Term End) below or otherwise as provided in the attached Order.
1.5.1 Term End. Unless otherwise specified in the Order, Customer may notify Company of their wish to cancel services by giving written notice thirty (30) days prior to the last day of the Subscription Term. If Customer does not provide notification of cancellation, the Services will automatically be extended for the duration of the Subscription Term noted in the initial Order. Annually, and as long as the Subscription Term is active, Price per Month per Location for both the repairs service and maintenance service will increase by the Annual Uplift.
18.104.22.168 In the event that Customer notifies Company of their wish to cancel services, Customer may not request additional services (including submitting repair requests) under this Agreement in the final fourteen (14) calendar days of the Subscription Term.
1.6 Order Termination. Upon any termination or expiration of this Agreement, Customer shall pay all unpaid and outstanding Fees through the effective date of the termination or expiration. No early termination of this Agreement is permitted by the Customer until the full term has passed or the Agreement has been paid in full.
1.6.1 Company may terminate an Order:
22.214.171.124 At any time with reasonable notice;
126.96.36.199 If Company’s available supplies and capacity for the Products is insufficient to satisfy the Order, Company will notify the Customer and will promptly refund any Fees prepaid applicable to that portion of the Order; or
1.6.2 If Customer closes or otherwise ceases to operate any Location subject to this Agreement, Company shall waive the remainder of any Fees associated with that particular Location beginning on the first day of the billing cycle after Customer notifies Company that the Location has ceased to operate. In the event that the billing cycle is other than monthly, the invoices shall be prorated to account for each full month following Customers notification to the Company. In any case, Customer shall remain liable for any costs Company incurs on Customer’s behalf prior to any termination, such as vendor invoices or other items already ordered on Customer’s behalf. In the event that Customer has multiple Orders, each Order shall stand on its own and the termination of any one Order shall in no way affect any other Order Customer may have with Company.
1.7 Limited Warranty.
1.7.1 Company represents and warrants that the Products will conform to the descriptions therefore provided in the Service Description.
1.7.2 Disputes with 3rd Party vendors. Company will take reasonable steps to ensure that vendors are reputable and qualified to provide the service Customer needs. Company does not provide any guarantees, warranties, nor insurance coverage for the work of the vendors it dispatches, nor for the recommendations Company’s team may make when troubleshooting a repair or maintenance issue. Company will attempt to help resolve any disputes with vendors about the service Customer receives, but Customer will ultimately be responsible to resolve any disputes (including any legal action) with vendors.
1.7.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, AND COMPANY HEREBY EXPRESSLY DISCLAIMS THE SAME. THE COMPANY’S LIMITED WARRANTY IS APPLICABLE TO THE CUSTOMER’S PURCHASE AND DOES NOT EXTEND TO ANY RESELLER OR SECONDARY PURCHASE OR PRODUCTS FROM SOURCES OTHER THAN THE COMPANY.
2 Acceptable Use Policy.
2.1 Acceptable Use Policy. Customer may utilize the Products only in compliance with applicable laws and local zoning and permitting requirements. Customer is solely responsible for ensuring that its operations satisfy applicable legal requirements.
2.2 Company Intellectual Property.
2.2.1 This Agreement does not transfer any of the Company’s proprietary information, including, without limitation, patents, Company services, software tools, hardware designs, algorithms, software (in source code and object code forms), know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by Company or licensed to Company from a third party), and also including any derivatives, improvements, enhancements, updates, modifications or extensions of Company Technology conceived, reduced to practice or developed at any time (as applicable, the “Company Technology”). For the avoidance of doubt, the Company Site is included in the definition of “Company Technology.”
2.2.2 Company Technology, and all rights, titles and interests in and to the Company Technology shall remain solely with Company. Customer shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from any of the Company Technology.
2.2.3 Company’s trademarks, tradenames, service marks, logos, other names and marks, and related product and service names, design marks and slogans are the sole and exclusive property of Company. Customer may not use any of the foregoing in any advertising, publicity or in any other commercial manner without the prior written consent of Company. Unless otherwise specified in the Order Form, Customer agrees to allow Company to use Customer’s identity, including Company names, service marks, and logos in marketing materials, including on Company website, other written communication, and when talking with other Customers and prospects about Company services. Following execution of this Agreement, if Customer prefers that Company not to mention them, Customer must provide Company with written notice.
2.2.4 Any feedback, data, answers, questions, comments, suggestions, ideas or the like that Customer sends to Company relating to the Products or the Company Site will be treated as being non-confidential and non-proprietary. Company may use, disclose or publish any ideas, concepts, know-how or techniques contained in such information for any purpose whatsoever. Company further reserves the right to collect, store, own, use and commercialize in any manner whatsoever any data or information created by or relating to the use of the Services or the operation of the Company Technology, including transaction data, trends and other data that do not identify Customer or individual users.
2.3.1 Company will keep confidential Customer’s and Customer representative or employee names, addresses, telephone numbers, email addresses, credit card information, passwords and other non-public information provided by Customer to Company for the purpose of obtaining or maintaining the Customer’s account or paying amounts owed to Company (collectively, the “Customer Confidential Information”) except that Company will not be obligated to keep confidential any Customer Content that Customer posts on the Company Site or that Customer authorizes to be published.
2.3.2 Company may use the Customer Confidential Information to administer the Customer’s account, collect Fees owed by Customer and as reasonably necessary or convenient to facilitate its Product sales to Customer. Company will use and disclose Customer Confidential Information only for the purposes for which Customer provides the Customer Confidential Information, or access to it, pursuant to the terms and conditions of this Agreement, and not use or otherwise disclose or make available Customer Confidential Information for Company’s own purposes without Customer's prior written consent. Company may not provide the Customer Confidential Information to any third party, except for attorneys, accountants, employees and agents working on behalf of Company pursuant to this Agreement.
2.3.3 Company may collect information regarding the Customer from sources other than the Customer Confidential Information (including data concerning Customer’s usage of the Services and the Company Site) (“Customer Non-Confidential Information”). Company may use the Customer Non-Confidential Information for any purpose and may share Customer Non-Confidential Information with any party so long as the Customer Non-Confidential Information cannot be correlated with, or linked to, Customer Confidential Information. The Company Site may use software cookies or web beacons to track Customer usage of the Company Site. Information collected by Company through such means is Customer Non-Confidential Information.
2.3.4 Notwithstanding Section 2.3.1, the following shall not be considered Customer Confidential Information: (i) any information that Company can demonstrate by written documentation was within its legitimate possession prior to the time of disclosure by Customer; (ii) any information that was in the public domain prior to disclosure by Customer to Company as evidenced by documents that were published prior to such disclosure; (iii) any information that, after disclosure by the Customer to Company, comes into the public domain through no fault of Company, or (iv) any information that is disclosed to Company without restriction by a third party who has legitimate possession thereof and the legal right to make such disclosure.
2.3.5 Additionally, Company owns all data stored to provide the Services (“86 Data”), including but not limited to all photos, equipment information, service histories, vendor documentation, communication records (including text messages and emails), and all other such information Company may obtain. Company hereby reserves the right to use 86 Data in any legal way, and will only share or publish the 86 Data related to Customer’s account (“Customer’s 86 Data”) with third parties (1) as required to provide the Services or perform other obligations under this Agreement (such as with third-party vendors); (2) as required by law; (3) when it has been reasonably anonymized and/or aggregated with other data; or (4) with Customer’s written approval.
2.4 Limitation of Liability.
2.4.1 IN NO EVENT WILL COMPANY’S LIABILITY IN CONNECTION WITH THE PRODUCTS OR ANY ORDER, WHETHER CAUSED BY FAILURE TO DELIVER, NON-PERFORMANCE, DEFECTS, BREACH OF WARRANTY OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID TO COMPANY BY CUSTOMER FOR SUCH PRODUCTS.
3 EXCEPT LIABILITY FOR INDEMNIFICATION IN NO EVENT SHALL COMPANY OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED
4.1 Updates to Terms. Company reserves the right to change these terms of this Agreement from time to time. Such changes will become effective when Company posts the revised terms as part of the Terms of Service or on any related Company website. In the event that Company makes material changes to this Agreement, Company may make commercially reasonable efforts to notify Customer that this Agreement has changed by posting a prominent notice on the Terms of Services, by sending Customer an email, or other similar methods of contact, but such notice is for Customers convenience only and shall not be required for the effectiveness of the changes.
4.2 Independent Contractor. Company will utilize vendors for the provision of services under this Agreement. Customer acknowledges and agrees that the provisions of this Agreement inure to the benefit of and are applicable to any vendors engaged by Company to perform or provide any service set forth herein to Customer, and bind Customer to said vendors with the same force and effect as they bind Customer to Company. Any vendor and Company are each not partners or joint ventures.
4.3 Governing Law; Jurisdiction. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement or the breach of this Agreement, including any claim based upon arising from an alleged tort, shall be governed by the substantive laws of the State of Delaware, except that all arbitration and related proceedings conducted pursuant to Section 4.4 below, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. ANY SUIT, ACTION OR PROCEEDING CONCERNING THIS AGREEMENT THAT IS NOT SUBJECT TO MANDATORY ARBITRATION PURSUANT TO SECTION 4.4 BELOW MUST BE BROUGHT IN A DELAWARE STATE OR FEDERAL COURT AND EACH OF THE PARTIES HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS (AND OF THE APPROPRIATE APPELLATE COURTS THEREFROM) IN ANY SUCH SUIT, ACTION OR PROCEEDING AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT ANY SUCH SUIT, ACTION OR PROCEEDING WHICH IS BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
4.4 Mandatory Arbitration. Notwithstanding Section 4.3 above, each party agrees that any dispute between the parties arising out of this Agreement or in any manner relating to the Services must be submitted by the parties to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the “AAA”), as administered by the AAA in Grand Rapids, Michigan (or such other recognized provider of arbitration services agreed upon by both parties) before a single arbitrator, appointed in accordance with such rules. Any such dispute shall address only the claims brought by the applicable party and no party may represent a class of similarly situated persons. Any such arbitrator must render a reasoned opinion in writing only where the amount in dispute exceeds $100,000. Judgment upon the award may be entered in any court having jurisdiction thereof. Any such arbitration will be held in Grand Rapids, Michigan, but may include virtual participation under the rules of the arbitration service. Any action filed by either party in any court in violation of this Section should be dismissed pursuant to this Section.
4.5 Headings. The headings herein are for convenience only and are not part of this Agreement.
4.6 Entire Agreement; Amendments. This Agreement, including documents incorporated herein by reference, supersedes all prior discussions, negotiations and Agreements between the parties with respect to the subject matter hereof, and this Agreement constitutes the sole and entire Agreement between the parties with respect to the matters covered hereby. In case of a conflict between this Agreement and any Order, confirmation, correspondence or other communication of Customer or Company, the terms and conditions of this Agreement shall control, with the exception of Annual Uplift (1.2.1), Fees , Taxes, and Payment (1.3), Term End( 1.5.1), and Company Use of Customer Identity (2.2.3) which shall be controlled by the terms of the Order. This Agreement may not be modified or amended except by another Agreement in writing executed by the parties hereto; provided, however, that these Terms of Service may be modified from time to time by Company in its sole discretion, which modifications will be effective upon posting to Company Site.
4.7 Severability. All rights and restrictions contained in this Agreement may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary so that they will not render this Agreement illegal, invalid or unenforceable. If any provision or portion of any provision of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining provisions or portions thereof shall constitute their Agreement with respect to the subject matter hereof, and all such remaining provisions or portions thereof shall remain in full force and effect.
4.8 Notices. All notices and demands required or contemplated hereunder by one party to the other shall be in writing and shall be deemed to have been duly made and given upon date of delivery if delivered in person or by an overnight delivery or postal service, upon receipt if delivered by facsimile the receipt of which is confirmed by the recipient, or upon the expiration of five days after the date of posting if mailed by certified mail, postage prepaid, to the addresses or facsimile numbers set forth below the parties’ signatures. Either party may change its address or facsimile number for purposes of this Agreement by notice in writing to the other party as provided herein. Company may give written notice to Customer via e-mail to the Customer’s e-mail address(es) as maintained in Company’s records.
4.9 Waiver. No failure or delay by any party hereto to exercise any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or remedy by any party preclude any other or further exercise thereof or the exercise of any other right or remedy. No express waiver or assent by any party hereto to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition hereof.
4.10 Assignment; Successors. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. Any attempted assignment in violation of the foregoing provision shall be null and void and of no force or effect whatsoever. Company may assign its rights and obligations under this Agreement, and may engage subcontractors or agents in performing its duties and exercising its rights hereunder, without the consent of Customer. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4.11 Limitation of Actions. No action, regardless of form, arising by reason of or in connection with this Agreement may be brought by either party more than one year after the cause of action has arisen.
4.12 Force Majeure. Neither party is liable for any default or delay in the performance of any of its obligations under this Agreement (other than failure to make payments when due) if such default or delay is caused, directly or indirectly, by forces beyond such party’s reasonable control, including, without limitation, fire, flood, acts of God, labor disputes, accidents, acts of war or terrorism, interruptions of transportation or communications, supply shortages, or the failure of any third party to perform any commitment relative to the production or delivery of any equipment or material required for such party to perform its obligations hereunder.
4.13 No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, nothing in this Agreement is intended, nor shall anything herein be construed to confer any rights, legal or equitable, in any Person other than the parties hereto and their respective successors and permitted assigns.
4.14 Government Regulations. Customer may not export, re-export, transfer or make available, whether directly or indirectly, any regulated item or information to anyone outside the United States in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the United States government and any country or organization of nations within whose jurisdiction Customer operates or does business.