BLISNESS – TERMS OF SERVICE
Effective from: August 16, 2018
These Blisness General Terms and Conditions (“General Terms”) are expressly incorporated into and made a part of the Blisness Platform (these General Terms, collectively, the “Agreement”).
2. TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and, unless earlier terminated as provided below, shall continue for a period of one (1) year from the Effective Date (“Initial Term”) and shall automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement in the event of a material breach by the other party if the breach is not cured by the other party within two (2) days’ notice thereof by the non-breaching party. Either party may terminate this Agreement in its entirety at any time without cause by giving seven (7) days’ prior written notice of termination to the other party. Sections 1, 4.2, 4.3, 5 (for the time period specified), 6-10, and the last sentence of this Section 2 shall survive the expiration or termination of this Agreement.
Unless given written notice (by email) by BARGOPAY LLC, the following terms and conditions will apply.
2.2 ADDITIONAL TERMS AND POLICIES
We offer a diverse range of services and features within the Blisness Application, so there are additional terms and policies that may be applicable to your use of all or part of the Blisness Application (the "Additional Terms"). We (BARGOPAY LLC) will notify you ( of the Additional Terms from time to time, including as set out in this section and otherwise from time to time within the Blisness Application. These Additional Terms all form part of and are incorporated into these Terms.
The following policies are Additional Terms that you must comply with in using the Blisness Application:
Blisness Sales and Exclusivity Agreement – Which sets out the prices, exclusivities as well as additional terms.
3. Intellectual Property.
3.1 License to Marks; Restrictions.
Subject to the terms and conditions of this Agreement, each party hereby grants to the other party (and, in the case of Company, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use the such party’s respective Marks (as defined below), on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth within the Blisness application. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s marks without the prior, express, written consent of the other party (by email is sufficient). All goodwill related to the use of a party’s marks 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. All rights not granted are expressly reserved.
3.2 No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between BARGOPAY LLC prior to the commencement of any such activities.
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other party (the “Recipient”) whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient.
Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Agreement, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Agreement before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
Users of the Blismo application shall be made aware of the services Blismo offers, but competitors shall not. (Educate Users of the Blismo app on how to use the Blismo platform and introduce potential Blismo Application Users that are not aware of the platform’s existence. However, no trade secrets of the platform shall be divulged in the process of educating and/or spreading awareness.)
You agree to for Blisness use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing under this Agreement. You shall maintain the accuracy and integrity of any Personal Data provided by us and in your possession, custody or control. You agree to retain Personal Data provided to you by us solely by using the software and tools provided by us. (“Personal Data”) means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including but not limited to name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
5.1 There will be exclusivity on every discount/promotion posted onto the Blisness application. By using this platform, you will accept that you are not allowed to give a discount equal to or greater to that of Blisness thereby undercutting Blisness.
5.2 By using the Blisness platform, you hereby accept to offer the Blismo application users an exclusive discount (as explained below) based on the total amount that the Blismo users would need to pay, before taxes.
Exclusive discount provided by you to Blismo application users:
Any payments made by the Users that are above $5.00 will receive an exclusive 3% discount;
Any payments made by the Users that are above $20.00 will receive an exclusive 5% discount; And any payments made by the Users that are above $100.00 will receive an exclusive 10% discount.
6. Warranties; Disclaimer.
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, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (d) it will comply with all applicable laws and regulations in its performance of this Agreement (including without limitation all applicable data protection and privacy laws); and (e) the content, media and other materials used or provided as part of this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
7. THIS AGREEMENT AND THE LEGAL RELATIONS BETWEEN THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS OTHERWISE APPLICABLE TO SUCH DETERMINATIONS.
However, any disputes regarding any mistakes or errors made by BARGOPAY LLC will not be enforced in a court of law. Instead by accepting this Agreement and using the Blisness application, you (The business entity utilizing the Blisness application), consent to allow BARGOPAY LLC to correct any problems that may arise. BARGOPAY LLC promises to work in a timely manner to correct any mistakes or errors and promises to do so professionally and ethically.
On the other hand, if you (The business entity utilizing the Blisness application) were to breach this Agreement, you will receive a warning given by BARGOPAY LLC.
Moreover, if this agreement has been breached after the warning, a monetary penalty will be imposed in the sum of $200.00 or in the sum equaling the damages, whichever one is greater will supersede the other. If you (The business entity utilizing the Blisness application) refuses to pay for damages, a lawsuit will be filed under Maryland’s jurisdiction. Lastly, upon immediate termination, you (The business entity utilizing the Blisness application) may not use the trade secrets and contents of this Agreement to engage in direct competition with BARGOPAY LLC.
The monetary penalty may be reduced or waived once you (The business entity utilizing the Blisness application) have successfully processed over $500 through the Blismo Application or Blisness Application within that month.
The monetary penalty would be reimposed if you (The business entity utilizing the Blisness application) fails to reach the amount within that time.
8. Limits of Liability.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, (A) IN NO EVENT SHALL BARGOPAY LLC BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF RESTAURANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT SHALL NOT EXCEED $10,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
9. No Publicity.
Except as may be expressly agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
This Agreement shall be governed by and construed in accordance with the laws of the State of Maryland without regard to its conflict of laws provisions. You hereby consent to exclusive jurisdiction and venue in the state and federal courts sitting in Baltimore County, Maryland. Any and all notices permitted or required to be given hereunder shall be sent to the email email@example.com, or such other address as may be provided, and deemed duly given (a) upon actual delivery, if delivery is by hand, (b) one (1) day after being sent by overnight courier, charges prepaid, or (c) by electronic mail to the designated recipient. In addition, you agree to receive autodialed calls or SMS messages sent by or on behalf of Company. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both parties. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect. Any delay in or failure by either party in performance of this Agreement shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. This Agreement may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this agreement, upon notice to the other party, to (a) an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth with prior agreement with BARGOPAY LLC), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.