Terms & Conditions
TERMS OF SERVICE AGREEMENT
IMPORTANT NOTICE TO USER: PLEASE READ THIS DOCUMENT CAREFULLY. This Terms of Service (“Agreement”) is a legal agreement between you (referred to herein as “you” or “your”) and BarHappy LLC (“BarHappy”, “we”, “our”, or “us”) for access to and use of BarHappy software, mobile applications, services and websites (referred to collectively as the “Services” and excluding any services provided to you by BarHappy under a separate written agreement).
YOU MUST ACCEPT THIS TERMS OF SERVICE AGREEMENT BEFORE ACCESSING OR OTHERWISE USING THE SERVICES. BY ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THE TERMS OF THE AGREEMENT OR IF YOU ARE YOUNGER THAN 21 YEARS OLD, DO NOT ACCESS OR USE THE SERVICES.
YOU REPRESENT THAT YOU ARE TWENTY ONE (21) YEARS OF AGE OR OLDER AND THAT YOU HAVE THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS.
The Services. BarHappy.com (the “Website”) is an online venue through which Website users (any of these, a “Visitor”) can find and learn about bars, restaurants and other nightlife destinations (“Establishments”) identified on the Website. In order to use some of the features that are offered through the Services, you must become a registered user of the Services (a “Member”) by creating an account and providing certain information about yourself. There are two types of accounts: an account for your personal, non-commercial use (a “Personal Account”) and an account to be used solely for the purpose of representing your business in connection with the Service (a “Business Account”). When you become a Member, you must designate whether your account is a Personal Account or a Business Account.
Use of Services by You.
A. You acknowledge and agree that BarHappy makes no representation or warranty regarding Content on the Services and therefore BarHappy does not guarantee, and has no responsibility to ensure, that special offers from Establishments will be honored.
B. Each Member with a Personal Account represents and warrants to us and agrees that (i) such Member is a natural person (i.e., not an entity or representative of an entity), and (ii) that such Member will use the Services solely for their own, non-commercial, personal use for their own account.
C. Each Member with a Business Account represents and warrants to us that such Member is an authorized representative of the Establishment identified with such Business Account, and that such Member has provided complete and accurate information about himself or herself and the business he or she represents.
D. The Website may contain features and functionalities that may link you or provide you with access to third party content, including websites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services not controlled by BarHappy. Your interactions with Establishments found on or through the Services, including payment and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such Establishments. You agree that BarHappy shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. We have no control over the conduct of our Members or the truth, accuracy, completeness or authenticity of the information that Members post on our Services. BarHappy shall have no responsibility or obligation in the event of a dispute between Members.
E.You acknowledge and agree that, subject to the disclaimer of warranties and limitation of liability set forth in this Agreement, your use of the Services, including, without limitation, the storage of any data, files, information and/or other materials on a server owned or under the control of BarHappy or in anyway connected to the Services, shall be at your sole risk and responsibility and BarHappy shall have no obligation to back-up such data, files, information and/or other materials. BarHappy expressly reserves the right to limit storage capacity and to remove and/or delete any data, files, and/or other information stored or used in connection with the Services that BarHappy deems, in its sole discretion, to be in violation of this Agreement and/or any local, state, or federal law or regulation.
F.You agree that any registration information or Establishment information or special offers you give to BarHappy will always be accurate, correct and up to date. See Section 12 for information regarding how BarHappy treats your personal information.
G. You shall not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
H. You shall not reproduce, duplicate, copy, sell, trade or resell the Services for any purpose.
I. You are solely responsible for (and BarHappy has no responsibility to you or to any third party for) any breach of your obligations under this Agreement and for the consequences (including any loss or damage which BarHappy may suffer) of any such breach.
K. You agree that you will not create or attempt to create multiple user accounts.
Restrictions on Use of Services. You agree that you will not:
(i) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement and/or any and all applicable local, state and federal laws and regulations and international treaties;
(ii) use the Services for the distribution, housing, processing, propagation, storage, or otherwise handling in any way abusive, defamatory, harassing, libelous, lewd, libelous, obscene, pornographic, threatening, or tortuous material, or any false or misleading material, or any other material (including links to such material) that BarHappy deems, in its sole discretion, to be objectionable whether or not such material is unlawful;
(iii) permit or otherwise enable unauthorized users to access and/or use the Services;
(iv) use the Services to export software or data in violation of applicable U.S. laws or regulations;
(v) sell, rent, lease, loan, distribute, transfer, sublicense, or otherwise permit any third party to use or have access to the Services for any purpose (except as expressly permitted by BarHappy in writing), whether by timesharing, service bureau, networking or any other means;
(vi) remove any copyright, trademark, patent or other proprietary notices from the Services or any portion thereof;
(vii) distribute, publish, exhibit, or otherwise use the Services, or any portion thereof, in any manner and for any purpose not expressly permitted under this Agreement;
(viii) frame or utilize framing techniques to enclose the Services, or any portion thereof;
(ix) exploit the Services or collect any data incorporated in the Services in any automated manner through the use of bots, metaspiders, crawlers or any other automated means;
(x) register as a user of the Services by providing false, inaccurate, or misleading information;
(xi) post hyperlinks to commercial services or websites;
(xii) impersonate any person or entity, including, but not limited to, a BarHappy employee or an authorized representative of an Establishment, or falsely state or otherwise misrepresent your affiliation with a person or entity;
(xiii) collect personal data about other users for commercial or unlawful purposes;
(xiv) post non-local or otherwise irrelevant Content, repeatedly post the same or similar Content or otherwise impose an unreasonable or disproportionately large load on our infrastructure;
(xv) attempt to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Service; or
(xvi) post, e-mail or make available Content that that constitutes or contains “affiliate marketing,” “link referral code,” “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial advertisement.
Provision of Services by BarHappy. BarHappy is constantly innovating in order to provide the best possible experience for its users. You acknowledge and agree that the form and nature of the Services which BarHappy provides may change from time to time without prior notice to you. As part of this continuing innovation, you acknowledge and agree that BarHappy may decline to provide you access to the Services or stop (permanently or temporarily) providing the Services (or any features or programs within the Services) to you or to users generally at BarHappy’s sole discretion, without liability or prior notice to you. You may stop using the Services at any time. You do not need to specifically inform BarHappy when you stop using the Services. You acknowledge and agree that if BarHappy disables access to your account, you may be prevented from accessing the Services, your account details or any files or other content which is contained in your account.
Access to Services; Reservation of Rights.
A. BarHappy hereby gives you a personal, worldwide, non-assignable and non-exclusive right to access and use the Services in the manner and for the purposes expressly permitted by the Agreement. You agree not to copy, decompile, reverse engineer, disassemble, modify, create a derivative work of, display in human readable form, attempt to discover any source code, or otherwise use any software that enables or comprises any part of the Services. You may not assign (or grant a sub-license of) your rights to use the Services, grant a security interest in or over your rights to use the Services, or otherwise transfer any part of your rights to use the Services and any such attempt shall be null and void at the time of such attempt.
B. BarHappy reserves all right, title and interest in and to the Services not expressly granted to you under this Agreement, including, without limitation, all patent rights, copyrights, trademarks, trade names, trade secrets, trade dress and other intellectual property and proprietary rights. There are no implied licenses under this Agreement.
Business Account Purchases.
A. Certain of our Services are offered for sale through the Website. Your purchase of such Services and participation in any of our programs (including without limitation our analyst program and advertising program) is subject to all applicable BarHappy policies and guidelines posted on the Website. In the event you wish to purchase any of these Services, you will be asked by BarHappy or an authorized third party on BarHappy’s behalf to supply certain information such as your full name, address and credit card and/or other billing information. You agree to provide us or such third party with accurate, complete and current information at all times, and to comply with the terms and conditions of any ancillary agreement that you may enter into which governs your purchase of Services. You shall be responsible for all charges made under your account as well as for any applicable taxes.
B. Your right to use or receive any Services that are available for purchase is conditional on our receipt of the appropriate payment for such Services in advance. If such payment cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, you agree that we reserve the right to cancel your order, withhold providing such Services, and/or suspend or terminate your account. You shall be responsible for all charges up to the amount of each order you submit to us or set in your online account on the Website, and shall pay all charges in U.S. Dollars. Unless agreed to by BarHappy in writing, you shall pay all charges in accordance with the payment terms in the applicable order or program guidelines.
C. You acknowledge and agree that your only remedy for failures, delays or interruptions with respect to Services ordered by you is limited to a partial refund for such Services, in BarHappy’s sole discretion. All Services are acquired by you “as is” and “where is”. You acknowledge and agree that BarHappy may terminate any program or Services available for purchase at any time in our sole discretion. Upon such termination, BarHappy’s only obligation to you shall be to provide you a partial refund in connection with orders placed and paid for by you that remain unfulfilled at the time such Services are terminated.
D. We attempt to be as accurate as possible in describing Services (including pricing) offered for purchase; however, we do not warrant that all such descriptions are complete, current or error-free.
E. To the fullest extent permitted by law, you waive all claims relating to charges (including without limitation any claims for charges based on suspected invalid clicks) unless such claim is made within 60 days after the charge was incurred. Charges are solely based on BarHappy’s (or our service providers’) measurements for the applicable Services, unless otherwise agreed to in writing. To the fullest extent permitted by law, refunds (if any) are at the discretion of BarHappy and only in the form of advertising credit for promoting special offers on the Website or for receipt of BarHappy analyst reports. Nothing in this Agreement may obligate BarHappy to extend credit to any party.
F. To the fullest extent permitted by law, BarHappy disclaims all guarantees regarding positioning, levels, quality, or timing of: (i) costs per click; (ii) click through rates; (iii) availability and delivery of any impressions, or Content on the Services, or any section thereof; (iv) clicks; (v) conversions or other results for any ads or special offers; (vi) the accuracy of analyst data and reports (e.g. reach, size of audience, demographics or other purported characteristics of audience); and (vii) the adjacency or placement of ads or special offers. You understand that third parties may generate impressions or clicks on your ads or special offers for prohibited or improper purposes, and you accept the risk of any such impressions and clicks.
Your Password and Account Security. You agree and understand that you are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to BarHappy for all activities that occur under your account. If you become aware of any unauthorized use of your password or of your account, you agree to notify BarHappy immediately at firstname.lastname@example.org.
Content in the Services.
A.You understand that all information (such as data files, written text, computer software, music, audio files or other sounds, photographs, videos or other images) which you may have access to as part of, or through your use of, the Services are the sole responsibility of the person from which such content originated. All such information is referred to as the “Content”.
B.You acknowledge that Content presented to you as part of the Services, including but not limited to advertisements in the Services and sponsored Content within the Services may be protected by intellectual property rights which are owned by the sponsors or advertisers who provide that Content to BarHappy (or by other persons or companies on their behalf). You may not modify, rent, lease, loan, sell, distribute or create derivative works based on this Content (either in whole or in part) unless you have been specifically told that you may do so by BarHappy or by the owners of that Content, in writing.
C.BarHappy reserves the right (but shall have no obligation) to pre-screen, review, flag, filter, modify, refuse or remove any or all Content.
D. You understand that by using the Services you may be exposed to Content that you may find offensive, indecent or objectionable and that, in this respect, you use the Services at your own risk.
E.You agree that you are solely responsible for (and that BarHappy has no responsibility to you or to any third party for) any Content that you create, transmit or display while using the Services and for the consequences of your actions (including any loss or damage which BarHappy may suffer) by doing so.
A.You acknowledge and agree that BarHappy (or BarHappy’s licensors) own all legal right, title and interest in and to the Services, including any intellectual property rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). The Services include, without limitation, all rights with respect to copyrights, patents, trademarks, service marks, moral rights, trade names, domain names, technology, mask works, know-how, design rights, trade dress, trade secrets, inventions, ideas, processes, formulas, source code and object code, data, and similar rights including the information in any application, registration, or renewal thereof that may be protected under the intellectual property laws, regulations, or rules of any country. Without limiting the foregoing, all data, graphics, icons, images, logos, text, and the compilation of all content therein, and all service marks, trademarks, trade names, and trade dress depicted on the Services are owned by BarHappy (or BarHappy’s licensors).
B.Other than the limited license set forth in Section 10, BarHappy acknowledges and agrees that it obtains no right, title or interest from you (or your licensors) under this Agreement in or to any Content that you submit, post, transmit or display on, or through, the Services, including any intellectual property rights which subsist in that Content (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless you have agreed otherwise in writing with BarHappy, you agree that you are responsible for protecting and enforcing those rights and that BarHappy has no obligation to do so on your behalf.
C.You agree that you shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services.
D. You agree that in using the Services, you will not use any trademark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
Content License from you.
A. You retain copyright and any other rights you already hold in Content which you submit, post or display on or through, the Service. By submitting, posting or displaying the Content you give BarHappy a worldwide, perpetual, irrevocable, royalty-free, and non-exclusive license to reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute and otherwise exploit any Content which you submit or post on or through the Services in any manner or media whatsoever, now known or hereafter developed.
B. In connection with Content you submit to the BarHappy Services, you affirm, represent, and/or warrant that: you own or have the necessary licenses, rights, consents, and permissions to use and authorize BarHappy to use such Content in the manner contemplated by the Services and these Terms of Service. You further agree that you will not submit material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have written permission from their rightful owner to post the material and to grant BarHappy all of the license rights granted herein.
C. You understand that BarHappy, in performing the required technical steps to provide the Services to our users, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit BarHappy to take these actions.
D. You confirm and warrant to BarHappy that you have all the rights, power and authority necessary to grant the above license.
Name: James Fisher Jr.
Address: 8 Clarke Drive, Cranbury, NJ, 08512
Telephone: 609 395 4044
We suggest that you consult your legal advisor before filing a notice with BarHappy’s copyright agent. You should note that there can be penalties for false claims under the DMCA.
Changes to Agreement. BarHappy reserves the right to change, amend and/or modify this Agreement, in whole or in part, at any time with or without notice. You hereby acknowledge and agree that such changes, amendments and/or modifications will become effective when posted on the Services or as otherwise provided by BarHappy. From time to time, BarHappy may post on the Website or otherwise notify you of additional or different rules and policies relating to the Services. These rules and policies shall thereafter be part of this Agreement. If you use the Services after the posting or other notice of changes in this Agreement or changed rules or policies, you are agreeing to follow and be bound by them for such use.
NO WARRANTIES. THE SERVICES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WE HAVE NO CONTROL OVER AND MAKE NO REPRESENTATIONS AS TO THE QUALITY OR SAFETY OF ANY ESTABLISHMENT, THE TRUTH OR ACCURACY OF CONTENT (INCLUDING SPECIAL OFFERS RELATED TO ANY ESTABLISHMENT), OR THAT A MEMBER WILL ACTUALLY HONOR ANY OFFERS TRANSMITTED THROUGH THE SERVICES. TO THE FULLEST EXTENT PERMITTED BY LAW, BARHAPPY EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, BARHAPPY DOES NOT WARRANT THE ACCURACY, RELIABILITY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY BARHAPPY IN CONNECTION WITH YOUR USE OF THE SERVICES, NOR THAT THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY DATA, FILES, AND/OR OTHER INFORMATION STORED ON A SERVER OWNED OR UNDER THE CONTROL OF BARHAPPY OR IN ANY WAY CONNECTED WITH THE SERVICES, WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, ERROR-FREE, VIRUS-FREE OR SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN DISCLAIMERS OR LIMITATIONS OF WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR REPUBLICATION OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM BARHAPPY OR THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL BARHAPPY, ITS AFFILIATES, DIRECTORS, MEMBERS, MANAGERS, OFFICERS, EMPLOYEES, AGENTS OR THIRD PARTY LICENSORS, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER, EVEN IF BARHAPPY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, NEGLIGENCE, RECKLESSNESS, PROFESSIONAL NEGLIGENCE, TORT, STRICT LIABILITY OR ANY OTHER BASIS OR LEGAL THEORY. SUCH LIMITATION OF LIABILITY SHALL APPLY WHETHER OR NOT THE DAMAGES ARISE DIRECTLY OR INDIRECTLY FROM: (i) THE USE OR MISUSE OF, OR RELIANCE UPON, THE SERVICES PROVIDED HEREUNDER; (ii) THE INABILITY TO USE THE SERVICES FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR ANY FAILURE OF PERFORMANCE NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, OR DESTRUCTION; (iii) THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICES; OR (iv) THE DELETION AND/OR CORRUPTION OF ANY DATA, INFORMATION, DOCUMENTS, FILES AND/OR ANY OTHER MATERIALS STORED ON A SERVER OWNED OR UNDER THE CONTROL OF BARHAPPY OR IN ANY WAY CONNECTED TO THE BARHAPPY SERVICES. SUCH LIMITATION ON LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
Indemnification. You agree to release, indemnify and hold harmless BarHappy, its affiliates, directors, members, officers, employees, agents and third party licensors, from and against any and all liabilities, losses, damages, claims and expenses, including attorneys’ fees, with respect to your use or misuse of, or reliance upon, the Services or your violation of this Agreement or rights of another or any Content you submit or make available through the Services. This section shall survive the termination of this Agreement.
Release. You hereby release BarHappy (and our officers, directors, members, managers, employees, agents and affiliates) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute with one or more users of the Services or any Establishment listed on the Services.
If you are a California resident, you waive California Civil Code 1542, which says:
“A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
Term and Termination. This Agreement is effective until terminated by BarHappy or you. BarHappy shall have the right to terminate this Agreement including, without limitation, your right to access and use the Services, at any time in BarHappy’s sole discretion and without advance notice to you. The licenses granted herein shall automatically terminate without advance notice if you fail to comply with any material provision of this Agreement. Upon termination of this Agreement for any reason, you shall immediately cease using the Services.
Governing Law and Venue. This Agreement shall be governed by the laws of the State of New York without giving effect to conflict or choice of law principles, and any litigation between the parties arising under this Agreement shall be conducted exclusively in state or federal courts located in the State and City of New York. The parties agree that “United Nations Convention on Contracts for the International Sale of Goods” shall not apply to this Agreement.
Severability. If any provision in this Agreement is invalid or unenforceable or contrary to applicable law, such provision shall be construed, limited, or altered, as necessary, to eliminate the invalidity or unenforceability or the conflict with applicable law, and all other provisions of this Agreement shall remain in effect.
No Assignment, Sublicense or Transfer. You may not assign, sublicense, or transfer this Agreement or any rights or obligations hereunder without prior written consent of BarHappy. Any such attempted assignment, sublicense, or transfer will be null and void and BarHappy, in its sole discretion, shall have the right to immediately terminate this Agreement.
Communications by BarHappy. You agree that BarHappy may communicate with you electronically. Such electronic communications may consist of e-mail or other notices posted on the Services. You agree that all agreements, notices, disclosures, and other communications BarHappy sends to you electronically will satisfy any requirement that such communication be in writing and, to the extent intended, such communication will be an enforceable and binding term or amendment to this Agreement.
Entire Agreement. This Agreement sets forth the entire understanding and agreement between the parties relating to its subject matter and may be amended only in a writing signed by both parties. Any waiver of or promise not to enforce any right under this Agreement shall not be enforceable unless evidenced by a writing signed by the party making said waiver or promise. ANY TERMS AND CONDITIONS OF ANY PURCHASE ORDER OR OTHER DOCUMENT SUBMITTED BY YOU IN CONNECTION WITH THE SERVICES THAT ARE IN ADDITION TO, DIFFERENT FROM, OR INCONSISTENT WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT ARE NOT BINDING ON BARHAPPY AND ARE INEFFECTIVE. NO VENDOR, DISTRIBUTOR, DEALER, RETAILER, AGENT, SALES PERSON, OR OTHER PERSON IS AUTHORIZED BY BARHAPPY TO MODIFY THIS AGREEMENT OR TO MAKE ANY WARRANTY, REPRESENTATION, OR PROMISE THAT IS DIFFERENT THAN OR IN ADDITION TO THE WARRANTIES, REPRESENTATIONS, OR PROMISES EXPRESSLY SET FORTH IN THIS AGREEMENT.