Last Modified: February 14, 2020
Welcome! Thanks for visiting our Advertising Terms, and we can't wait to enhance your nightlife experience, but before you use our Platform, please read this Advertising Terms carefully.
MASTER ADVERTISING TERMS
By agreeing to these Master Advertising Terms (“Advertising Terms”), you (on behalf of the business you represent and yourself), represent and warrant that you have full legal power and authority to enter into these Advertising Terms, perform the obligations hereunder, and authorize and pay the fee payments set forth in the Purchase Order, as defined below. Any capitalized Advertising Terms used but not defined in these Advertising Terms shall have the respective meanings ascribed to them in the Purchase Order.
I. Advertising Program
These Advertising Terms apply to the advertising programs and services (“Advertising Programs”) that you purchase from hopps Inc. (“hopps”) from time to time in connection with hopps’ website, applications, and various related service (the “Platform”) pursuant to these Advertising Terms.
Running advertisements with hopps allows venues to showcase their establishment on the patron application. This is accomplished by increasing the visibility of a venue when patrons search on the map or view search results. Venues running ads appear as larger, red circles on the map and appear higher in the search results. Each Advertising Program purchase will be set forth in a purchase order or an online self-serve order form that will include identification of the date the Advertising Program starts (“Start Date”), the duration of the advertising commitment, if any (“Commitment Period”), and any renewal Advertising Terms, among other information (collectively the “Purchase Order”). Each agreed upon Purchase Order is governed by and incorporated into these Advertising Terms (and collectively form the “Advertising Agreement”), and your initial Purchase Order is hereby incorporated by references to these Advertising Terms. hopps may at any time replace features associated with any Advertising Program with features of substantially similar value.
An “Ad Impression” occurs when (i) hopps displays a specific reference to your business or a method of contacting or interacting with your business via the Platform or (ii) a user takes an action that delivers a lead to your business.
A “Click” is a single instance for which hopps records that a user acted on or in connection with an Ad Impression, such as by clicking or tapping on it or placing an order.
II. Fees and Payment
You will pay hopps the fees specified in each Purchase Order for the duration set forth in the Purchase Order, and if not so specified, then, for the duration hopps is providing the Advertising Programs to your business. The fees are fixed for the duration of any Commitment Period specified in each Purchase Order, if applicable. If you are not under a Commitment Period and have the ability to terminate the Purchase Order at any time as set forth in Section V below, hopps may modify the fees upon ten (10) days’ prior notice via the email address provided by you to hopps. All fees are net of any excise, sales, use, value added or other taxes, assessments, tariffs, fines, penalties or duties that you may be required to pay by any federal, state, local, provincial or foreign jurisdictions (collectively, “Taxes”). The amount hopps charges you may be subject to Taxes and you are responsible for bearing and remitting any Taxes that apply to your transactions. In jurisdictions where hopps has the legal obligation to collect such Taxes, the amount of such Taxes will be invoiced to you, and you will pay such amount unless you provide hopps with a valid tax exemption certificate authorized by the appropriate taxing authority. You will indemnify and hold hopps harmless from and against any claim arising out of you or your business’s failure to pay such Taxes. Payments are due in advance of the period for which they apply, or as otherwise set forth in the applicable Purchase Order. Unpaid amounts or errors may be billed in subsequent invoices. If your payment method fails or your account is past due, hopps may collect past due amounts using other collection mechanisms, and you agree to pay all expenses associated with such collection, including reasonable attorneys’ fees. Undisputed past due amounts will accrue interest at 1% per month or the lawful maximum, whichever is less.
IF YOU PROVIDE HOPPS WITH CREDIT CARD, DEBIT CARD, OR BANK ACCOUNT INFORMATION (“PAYMENT METHOD”), YOU AUTHORIZE HOPPS TO USE SUCH PAYMENT INFORMATION TO AUTOMATICALLY CHARGE YOU ON A RECURRING BASIS TO COLLECT ALL FEES DUE HEREUNDER. YOU REPRESENT THAT YOU ARE AUTHORIZED TO INCUR CHARGES AGAINST THE PAYMENT METHOD USED TO PURCHASE AD PROGRAMS.
HOPPS WILL UPDATE YOUR PAYMENT METHOD INFORMATION AND USE THAT NEW PAYMENT METHOD TO RECEIVE PAYMENT OF FEES DUE IF HOPPS IS NOTIFIED BY YOUR BANK OR PAYMENT METHOD PROVIDER THAT THE PAYMENT METHOD INFORMATION HAS CHANGED OR HAS BEEN UPDATED.
III. Representations and Warranties
Each party represents and warrants to the other that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it was organized; all contact and entity information is complete, correct and current, and the execution and delivery of the Advertising Terms, and the performance of the transactions contemplated hereby, are within its corporate powers, and have been duly authorized by all necessary corporate action.
You represent and warrant to hopps that, if applicable, any information or materials that you provides in connection with Advertising Programs (“Advertising Materials”) will (a) be true and complete, (b) not contain any material that violates hopps’s content guidelines or that is otherwise unlawful, defamatory or obscene, or that infringes or violates any third‐party rights (including any intellectual property rights or privacy or publicity rights) or that may encourage a criminal offense or otherwise give rise to civil liability and (c) comply with all applicable laws and regulations in its performance of the Advertising Agreement (including all applicable privacy / data protection laws and regulations and laws related to Promotions). “Promotions” are any contest, sweepstakes, coupon or other promotion appearing on or promoted through the Platform by you. hopps reserves the right to reject or remove any Advertising Materials at its sole discretion, and to alter any Advertising Materials to conform to technical specifications of the Platform. You further represent and warrant to hopps that you will not, and will not authorize or induce any other party, to: (x) generate automated, fraudulent or otherwise invalid ad impressions, inquiries, conversions, ad clicks or other actions.
IV. Information About and Use of hopps
hopps allows consumers to post ratings and reviews about businesses. Purchasing Advertising Programs does not impact ratings or reviews. hopps employs automated software in an effort to showcase the most reliable and useful reviews while displaying other reviews less prominently. You understand that while hopps uses such automated software to identify potentially less helpful reviews, the software may sometimes suppress legitimate reviews or fail to detect illegitimate reviews. You understand that your purchase of Advertising Programs will not influence the automated software or otherwise allow or enable you, directly or indirectly, to alter reviews or impact whether, where, or how reviews appear on hopps.
From time to time, hopps needs to test improvements to its audiences and delivery systems, which could impact your advertising. You authorize hopps to periodically conduct limited tests that may affect your purchasing advertising, including ad formatting, ranking, performance, pricing, and auction adjustments. hopps will determine the size, placement, and positioning of your ads. The scheduling of advertising delivery is subject to availability and may not be continuous.
V. Term and Termination
These Advertising Terms become effective between the parties as of the date you execute the Purchase Order by signature (written or digital) or by clicking on an Order Form purchase button (or other expression of agreement as provided by hopps, such as checking a box) (the “Effective Date”). Each Purchase Order will be deemed effective as of the Effective Date and will remain in effect until it expires as set forth in the applicable Purchase Order or is terminated as provided below.
Automatic Renewal of Term: If a Purchase Order specifies that it will automatically renew after a Commitment Period, the Advertising Agreement will renew on a month-to-month basis after the end of the Commitment Period until notice of termination is provided by you or hopps in accordance with the below subsections.
If you have purchased Advertising Programs with no Commitment Period, you may terminate the Advertising Programs any time by notifying hopps via the Platform. Such Advertising Program termination is effective immediately (if provided in accordance with the notice instructions below). hopps will bill you for fees incurred during the time period between your last billing cycle through the effective date of termination. For example, if you terminate such Purchase Order on May 15th, the applicable Advertising Program will end on May 15th. For Advertising Programs not purchased through the business owner account which do not have a Commitment Period, you may terminate such Advertising Programs as set forth in the applicable Purchase Order.
If you have purchased Advertising Programs with a Commitment Period, you may terminate the Advertising Programs any time by notifying hopps via the Platform, however you may be subject to an early termination fee as listed in the Purchase Order.
Additionally, hopps may terminate any Purchase Order or the Advertising Agreement (which also terminates any and all underlying Purchase Orders) at any time for any or no reason without liability, effective immediately, by providing written notice to you, including via the email address provided by you to hopps. In the event of such termination, you will pay all unpaid fees incurred through the date of termination within thirty (30) days of receipt of such notice of termination, and hopps will reimburse any fees that were prepaid for Advertising Programs to be rendered after the date of such termination. If your Purchase Order specifies that it does not automatically renew after the Commitment Period, the Purchase Order will automatically terminate at the end of the Commitment Period. Otherwise, the Purchase Order will renew on a month-to-month basis after the end of the Commitment Period.
VI. HOPPS’S DISCLAIMER OF WARRANTIES
YOU ACKNOWLEDGE AND AGREE THAT ADVERTISING PROGRAMS ARE PROVIDED TO YOU AND/OR YOUR BUSINESS ON AN “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS. HOPPS MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE ADVERTISING PROGRAMS AND EXPRESSLY DISCLAIMS THE WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. FURTHERMORE, TO THE FULLEST EXTENT PERMITTED BY LAW, HOPPS SPECIFICALLY DISCLAIMS ALL WARRANTIES AND GUARANTEES REGARDING (I) THE PERFORMANCE, QUALITY AND RESULTS OF THE AD PROGRAMS, INCLUDING AD CLICK RATES, CONVERSIONS, AND ANY USER-GENERATED CONTENT THAT APPEARS IN YOUR ADVERTISING PROGRAMS, (II) THE ACCURACY OF THE NON-PAYMENT-RELATED INFORMATION AND METRICS THAT HOPPS PROVIDES IN CONNECTION WITH THE SITE OR AD PROGRAMS (E.G., TRAFFIC, VIEWS, VISITORS, USERS, DEMOGRAPHICS, AND BEHAVIORAL INFORMATION ABOUT USERS), AND (III) THE PLACEMENT, CONTENT, PROMOTIONAL VALUE, QUALITY, TIMING, OR NUMBER OF AD IMPRESSIONS. HOPPS SHALL NOT BE LIABLE FOR NON-PERFORMANCE DUE TO CAUSES BEYOND ITS REASONABLE CONTROL. WHILE HOPPS MAY TRY TO TARGET AD IMPRESSIONS TO PARTICULAR USERS, TYPES OF USERS, USER LOCATIONS, USER QUERIES, OR OTHER USER BEHAVIORS, HOPPS MAY NOT BE ABLE TO ACHIEVE YOUR SPECIFIC EXPECTATION OF ACCURATE AD TARGETING.
VII. LIMITATIONS OF LIABILITY
(a) THIRD PARTY ACTIVITY. HOPPS HAS SYSTEMS THAT ATTEMPT TO DETECT AND FILTER CERTAIN CLICK ACTIVITY. NONETHELESS, THIRD PARTIES MAY INADVERTENTLY OR FOR FRAUDULENT OR IMPROPER PURPOSES GENERATE AD IMPRESSIONS, CALLS OR CLICKS (“THIRD-PARTY ACTIVITY”), WHICH MAY IMPACT THE FEES YOU PAY HOPPS AND THE PERCEIVED EFFECTIVENESS OF AD PROGRAMS. YOU ACCEPT THE RISK OF THIRD-PARTY ACTIVITY WITHOUT LIABILITY TO HOPPS. AS SUCH, THE PARTIES AGREE THAT HOPPS HAS NO LIABILITY FOR CLAIMS ARISING FROM OR IN CONNECTION WITH THIRD-PARTY ACTIVITY EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW, IN WHICH CASE HOPPS’S MAXIMUM LIABILITY AND YOUR EXCLUSIVE REMEDY IS A REFUND IN THE FORM OF REPLACEMENT ADVERTISING SERVICES ON THE SITE EQUAL TO THE NUMBER OF THIRD-PARTY ACTIVITY.
(b) HOPPS ACTIVITY. TO THE EXTENT THAT HOPPS ITSELF INADVERTENTLY GENERATES AD IMPRESSIONS OR CLICKS, HOPPS’S MAXIMUM LIABILITY AND YOUR EXCLUSIVE REMEDY IS A REFUND IN THE FORM OF REPLACEMENT ADVERTISING SERVICES EQUAL TO THE NUMBER OF SUCH INVALID AD IMPRESSIONS OR CLICKS, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW. HOPPS’S MAXIMUM LIABILITY AND YOUR EXCLUSIVE REMEDY IN THE EVENT OF ANY UNDER-DELIVERY OF AD IMPRESSIONS IN ANY GIVEN MONTH IS, AT HOPPS’S SOLE DISCRETION, FOR HOPPS TO EITHER (I) DELIVER THE SHORTFALL OF AD IMPRESSIONS IN SUBSEQUENT MONTHS OR (II) PROVIDE A REFUND OF THE OVERCHARGED AMOUNT, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY LAW.
(c) OTHER CLAIMS. FOR ALL OTHER CLAIMS OR DAMAGES ARISING FROM, RELATED TO, OR IN CONNECTION WITH A PURCHASE ORDER, AD PROGRAMS, OR THE ADVERTISING TERMS THAT ARE NOT EXPRESSLY ADDRESSED IN SECTION VII (A) or (B) ABOVE, HOPPS’S (INCLUDING ITS AFFILIATES, DIRECTORS, OFFICERS, AND EMPLOYEES) MAXIMUM AGGREGATE LIABILITY AND YOUR EXCLUSIVE AGGREGATE REMEDY IS THE GREATER OF THE TOTAL FEES PAYABLE TO HOPPS HEREUNDER DURING THE SPECIFIED COMMITMENT PERIOD (IF APPLICABLE) OR THE AMOUNTS PAID TO HOPPS UNDER THIS ADVERTISING AGREEMENT IN THE PRIOR TWELVE (12) MONTH PERIOD FROM THE DATE THAT THE LIABILITY FIRST AROSE, EXCEPT WHERE AND TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
(d) NO INDIRECT DAMAGES. OTHER THAN AS MAY BE CONTAINED IN AN EARLY TERMINATION FEE INDICATED IN A PURCHASE ORDER, NEITHER PARTY NOR ITS AFFILIATES, DIRECTORS, OFFICERS, AND EMPLOYEES WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF PROFITS OR REVENUE, OR INTERRUPTION OF BUSINESS) ARISING FROM, RELATED TO, OR IN CONNECTION WITH A PURCHASE ORDER, THE AD PROGRAMS, THE SITE, OR THESE ADVERTISING TERMS, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION VII SHALL APPLY REGARDLESS OF WHETHER THE LIABILITY ARISES OUT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY.
You will indemnify, defend, and hold hopps and its officers, directors, agents, affiliates, and employees harmless from and against any and all third-party claims, actions, losses, damages, liabilities, costs, and expenses (including but not limited to attorneys’ fees and court costs) (collectively a “Third Party Claim”) arising out of or in connection with (i) the Advertising Materials and/or any instructions or directions provided by you to hopps in connection with the Advertising Programs and (ii) your material breach of this Advertising Agreement. hopps will notify you promptly of any Third Party Claim for which it seeks indemnification and will permit you to control the defense of such Third Party Claim with counsel chosen by you; provided, that you will not enter into any settlement that contains any admission of or stipulation to any guilt, fault, liability or wrongdoing on the part of hopps without hopps’ prior written consent.
IX. Choice of Law and Arbitration
(a) Any controversy or claim arising out of or relating to this Advertising Agreement, or the breach thereof (“Claim”), shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator will issue a ruling in writing, and will detail all findings of fact and law upon which the ruling was made. The arbitrator will not have the power to commit errors of law or legal reasoning, and the ruling may be vacated or corrected through judicial review by a court of competent jurisdiction under the California Arbitration Act.
(b) Claims shall be heard by a single arbitrator. Arbitrations will be held in San Francisco, California, but the parties may choose for themselves whether to appear in person, by phone, or through the submission of documents. The arbitration shall be governed by the laws of the State of California. The award of the arbitrators shall be accompanied by a reasoned opinion. The prevailing party shall be entitled to an award of reasonable attorney fees for any action under these Advertising Terms.
(c) NOTWITHSTANDING THE FOREGOING, FOR ANY CLAIM THAT IS NOT SUBJECT TO ARBITRATION, YOU AGREE TO SUBMIT AND CONSENT TO THE PERSONAL AND EXCLUSIVE JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE STATE AND FEDERAL COURTS LOCATED WITHIN SAN FRANCISCO COUNTY, CALIFORNIA, WHICH IS THE PLACE OF PERFORMANCE OF THIS ADVERTISING AGREEMENT.
(d) YOU AND HOPPS AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN THEIR RESPECTIVE INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND HOPPS AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. IF A CLAIM IMPLICATES THIS SUBSECTION (d), AND THIS SUBSECTION (d) IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL BY A COURT, SUCH CLAIM MUST BE ADJUDICATED BY A COURT AND NOT BY AN ARBITRATOR.
(a) Any of your Advertising Terms or conditions that are in addition to or different from those contained in or added by way of interlineation to the Advertising Agreement, including any Purchase Order, as originally provided to you by hopps that are not separately expressly agreed to in writing by both parties are deemed material and are hereby objected to and rejected by hopps. No conditions, printed or otherwise, appearing on other contracts, orders or copy instructions that conflict with, vary, or add to this Advertising Agreement will be binding on hopps, and any conflicting or additional Advertising Terms contained in any other documents or oral discussions are void. The Advertising Agreement embodies the entire and exclusive agreement between the parties respecting the subject matter herein, and supersedes any and all prior related oral, emailed or written representations and agreements between the parties. No statements or promises by either party have been relied upon in entering into the Advertising Agreement, except as expressly set forth herein. Each party shall not disclose the Advertising Terms or conditions of the Advertising Agreement to any third-party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with a government law, rule or regulation.
(b) Anyone agreeing to the Advertising Agreement on behalf of you or your business represents and warrants that it has full legal power, permission and authority to enter into the Advertising Agreement, perform its obligations hereunder, and authorize the fee payments set forth in the Purchase Order(s).
(c) Unless otherwise stated in this Advertising Agreement, notices under the Advertising Agreement must be in writing and sent via the following methods. hopps may provide effective notice to you by facsimile, registered or certified mail, commercial courier or by sending an email to the email address specified in the your information section of the Purchase Order, and the notice will be deemed received upon receipt by you, but in any event no later than two (2) days after dispatch by hopps. Any notices sent by you to hopps must be sent via registered or certified mail, or commercial courier to hopps at 2755 SAN BRUNO AVE #347370 SAN FRANCISCO, CA 94134 though notices of termination for convenience may also be sent via email as specified herein, and will be deemed received when such notice is received by hopps.
(d) You will not issue any press release or make public statements about its relationship with hopps or its affiliates without hopps’s prior written permission.
(e) Any conflict among the Advertising Terms and Purchase Orders will be resolved in favor of the Purchase Orders (most recent first, if applicable), then the Advertising Terms. These Advertising Terms may be amended or modified by hopps (“Modifications”) and, with the exception of minor changes to the Advertising Terms which take effect immediately upon posting by hopps, such Modifications will go into effect the sooner of (1) the fifteenth (15th) day after hopps sends notice of such Modifications to the email address associated with your account or (2) as determined by hopps in its sole discretion, unless you object to the Modifications in a reasonable time period (but no later than fifteen (15) days after receiving notice), in which case such changes will not go into effect on such date, and hopps will have the option of terminating the Purchase Order and/or Advertising Agreement pursuant to the termination section above. A Purchase Order may only be amended or modified as agreed upon in writing by the parties. No provision in the Advertising Agreement may be waived, except pursuant to a writing executed by the party against whom the waiver is sought to be enforced. You may not assign any rights or obligations under the Advertising Agreement without hopps’ prior consent, and any purported assignment by you shall be void. If any provision of the Advertising Agreement is held to be invalid or unenforceable, the parties will either substitute for the affected provision a valid or enforceable provision that approximates the intent and economic effect of the affected provision or strike such provision without further prejudice to the Advertising Agreement such that all remaining provisions of the Advertising Agreement shall remain in full force and effect. Sections VI, VII, VIII, IX, and X of the Advertising Terms will survive any termination of the Advertising Agreement.