Business Terms of Service

Thoughts for Risk Awareness:

This BarHoppin SaaS Agreement (this “Agreement”), effective as of the date of first acceptance (the “Effective Date”), is entered into by and between BarHoppin LLC d/b/a BarHoppin (”BarHoppin”) and the entity accepting this Agreement (”Customer”). BarHoppin and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.”

BY ACCESSING AND/OR USING THE BARHOPPIN FOR BUSINESS SERVICES, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) THE INDIVIDUAL ACCEPTING AGREEMENT REPRESENTS THAT THEY HAVE FULL AUTHORITY TO LEGALLY BIND THE CUSTOMER TO THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO OR CANNOT COMPLY WITH THIS AGREEMENT OR IF THE INDIVIDUAL DOES NOT HAVE AUTHORITY TO BIND THE CUSTOMER, THEN CUSTOMER WILL NOT BE AUTHORIZED TO ACCESS THE BHFB SERVICES.

1. Rights and Activities. Subject to Customer’s and each of its user’s compliance with the terms and conditions of this Agreement and BarHoppin’s website terms of use and privacy policy, as the same may be modified from time to time, during the Term of this Agreement, BarHoppin hereby grants Customer and its users a limited, non-exclusive, non-transferable, non-sublicensable subscription to access the BarHoppin for Business Services ordered by Customer hereunder (the “BHFB Services”).
2. Term and Termination. The initial term of this Agreement and Customer’s right to access the BHFB Services begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s provisions, will continue in effect for a period of one (1) year (the “Initial Term”). This Agreement and Customer’s order shall automatically renew for additional successive one (1) year terms unless earlier terminated pursuant to this Agreement’s express (each a “Renewal Term”and together with the Initial Term, the “Term”). Customer may cancel its order under this Agreement at any time by providing written notice to BarHoppin at accounts@BarHoppin.co; however, Customer acknowledges and agrees that all fees and other amounts payable by Customer under this Agreement are non-refundable. In addition to any other express termination right set forth in this Agreement, BarHoppin may terminate this Agreement, effective on written notice to Customer, if Customer: fails to pay any undisputed amount when due hereunder; breaches any of Customer’s obligations under this Agreement; or Customer: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed to take charge of or sell any material portion of its property or business. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the BHFB Services. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund.
3. Fees. Prior to Customer’s first access of the BHFB Services and annually on or before the anniversary date of each Renewal Term, Customer must pay BarHoppin the non-refundable fees due for the BHFB Services ordered hereunder. Upon written request to BarHoppin at accounts@BarHoppin.co, Customer may increase its order for BHFB Services (i.e., add additional locations in the United States), provided that the fees for BHFB Services such additional locations must be paid to BarHoppin in advance. If Customer fails to make any undisputed payment when due, without limiting BarHoppin’s other rights and remedies, BarHoppin may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law, and Customer shall reimburse BarHoppin for all reasonable costs incurred by BarHoppin in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. All fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments, and Customer is responsible for all such taxes, other than any taxes imposed on BarHoppin’s income.
4. Use of the BHFB Services. Customer and its users shall only access the BHFB Services for Customer’s internal business purposes during the Term and at all times in accordance with the terms of this Agreement and all of BarHoppin’s online documentation, user guidance, training, and other materials relating to the Services (“Documentation”). Customer is responsible and liable for all access of the BHFB Services by its users. Customer shall not, directly or indirectly: (i) copy, modify, or create derivative works of the BHFB Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the BHFB Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the BHFB Services or Documentation, in whole or in part; (iv) remove any proprietary notices from the BHFB Services; (v) use the BHFB Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (vi) utilize the BHFB Services or Documentation to create, develop, enhance, or modify any competing product or service. BarHoppin may suspend and/or terminate Customer’s access to any portion or all of the BHFB Services if BarHoppin reasonably determines that (A) there is a disruption, security risk, threat or attack on any of the BHFB Services or to any other customer or vendor of BarHoppin; (B) Customer is using the BHFB Services for fraudulent or illegal activities; (C) Customer fails to make payments went due and/or has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (D) BarHoppin’s provision of the BHFB Services to Customer is prohibited by applicable law; or (E) any vendor of BarHoppin has suspended or terminated BarHoppin’s access to or use of any third-party services or products required to enable Customer to access the Services (any such suspension a “Service Suspension”). BarHoppin will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer may incur as a result of a Service Suspension.
5. IP and Data Rights. Notwithstanding anything to the contrary in this Agreement, BarHoppin may monitor Customer’s and each user’s access and use of the BHFB Services and collect and compile data and information related to Customer’s and each user’s access and use of the BHFB Services that is and can be used by BarHoppin in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the BHFB Services (“Aggregated Statistics”). As between BarHoppin and Customer and each user, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BarHoppin. Further, Customer acknowledges that BarHoppin may compile Aggregated Statistics based on Customer’s data. Customer agrees that BarHoppin may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify Customer, any user or Customer’s Confidential Information. Customer and each user hereby grant to BarHoppin a non-exclusive, royalty-free, perpetual, irrevocable, transferrable, worldwide license to access, revise, reproduce, distribute, and otherwise use and display the Customer data and perform all acts with respect to the Customer data as necessary for BarHoppin to provide the BHFB Services to Customer, and a non-exclusive, perpetual, irrevocable, transferrable, royalty-free, worldwide license to access, revise, reproduce, distribute, and use and display Customer data incorporated within the Aggregated Statistics. Customer acknowledges that, as between Customer and BarHoppin, BarHoppin owns all right, title, and interest, including all intellectual property rights, in and to the BHFB Services and Aggregated Statistics. The Parties acknowledge and agree that there shall be no development of intellectual property by either Party for the other Party under this Agreement, and that any intellectual property development activities must be the subject of a separate written agreement prior to the commencement of any such development. All uses of a Party’s intellectual property by the other Party will be in the form and format specified or approved by the owner of such intellectual property. All goodwill related to the use of a Party’s intellectual property by the other Party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither Party shall be deemed to grant the other Party any license or rights under any intellectual property or other proprietary rights.
6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party confidential information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire two (2) years from the date first disclosed to the receiving Party, except with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law).
7. Warranty and Disclaimers. Each Party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into any agreement that would prevent it from complying with this Agreement; and (d) it will comply with all applicable laws and regulations in its performance of this Agreement. THE BHFB SERVICES ARE PROVIDED “AS IS” AND BARHOPPIN HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. BARHOPPIN SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. BARHOPPIN MAKES NO OTHER WARRANTY OF ANY KIND THAT THE BHFB SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
8. Indemnification; Limitations of Liability. Customer shall indemnify, hold harmless, and, at BarHoppin’s option, defend BarHoppin from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third Party Claim”): (i) that the Customer’s data, or any use of the Customer’s data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights; or (ii) based on Customer’s or any authorized user’s (a) negligence or willful misconduct, (b) use of the BHFB Services in a manner not authorized by this Agreement, (c) use of the BHFB Services in combination with data, software, hardware, equipment or technology not provided by BarHoppin or authorized by BarHoppin in writing, or (d) modifications to the BHFB Services not made by BarHoppin; provided that Customer may not settle any Third-Party Claim unless BarHoppin consents to such settlement, and further provided that BarHoppin will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL BARHOPPIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE HUNDRED DOLLARS ($100.00).

9. Miscellaneous. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties with respect to such subject matter. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement. This Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without regards to its conflicts of laws provisions. Customer may not assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without BarHoppin’s prior written consent, and any purported assignment in violation of this Agreement is null and void. BarHoppin may modify this Agreement at any time by posting a revised version on its website, which modifications will become effective as of the date which they were first posted. If Customer objects to the updated Agreement, as its sole and exclusive remedy, Customer may choose to stop using the BHFB Services.

4854-4033-8334, v. 1