User Agreement

May 23, 2022

This User Agreement (this “User Agreement”) governs your access to and use of our proprietary Mobile App Known as Bips (“Bips”), which is made available to you (“User”, “Lender” or “Agent” depending on your activity, “you,” or “your”) by Bips.ai, Inc. aka Bips (“Bips.ai,” “we,” “our,” or “us”) via the App Stores (the “App Stores”).  User and Bips.ai are referred to herein individually as a “Party” and collectively as the “Parties.”  

If you are entering into this User Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this User Agreement, in which case the terms “you” or “your” refers to such entity.  

BY JOINING BIPS, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND AGREE TO BE LEGALLY BOUND BY THIS USER AGREEMENT AND OUR GENERAL TERMS OF USE, PRIVACY POLICY AND COOKIES POLICY FOUND ON BIPS, WHICH IS HEREBY INCORPORATED INTO AND MADE A PART OF THIS USER AGREEMENT.  IF YOU DO NOT ACCEPT THE TERMS OF THIS USER AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS USER AGREEMENT, YOU MAY NOT ACCESS OR USE BIPS.  

The Parties hereby agree as follows:

1. DEFINITIONS.  The definitions for some of the defined terms used in this User Agreement are set forth below.  The definitions for other defined terms are set forth elsewhere in this User Agreement.

1. “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity.
2. “Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, in each case, who has proper jurisdiction over such party, applicable to such Party or any of its properties, assets, or business operations.
3. “Bips” means Bips.ai’s proprietary Mobile App called Bips.  
4.  “Borrower” means the party seeking any form of loan/s or other debt financing.
5. “Borrower Data” means information about the Borrower and the requested loan submitted to Bips.
6. “Broker” means a person or entity acting on behalf of others to arrange for financing with which Broker has executed a term sheet or an agreement to act on behalf of Borrower, or Broker already underwritten the loan/s.
7. “Confidential Information” means:  (i) with respect to Bips.ai, Bips, the Website, any and all source code relating thereto and any other non-public information or non-public material regarding our legal or business affairs, financing, customers, Lenders details, Brokers details, properties, pricing, or data; (ii) with respect to User, the Data and any non-public information or non-public material regarding User’s legal or business affairs, financing, employees, customers, properties, or data; and (iii) with respect to each Party, the terms and conditions of this User Agreement.  Notwithstanding any of the foregoing, Confidential Information does not include information which:  (a) is or becomes public knowledge without any action by, or involvement of, the Party to which the Confidential Information is disclosed (the “Receiving Party”); (b) is  known to the Receiving Party prior to its disclosure by the other Party (the “Disclosing Party”); (c) is independently developed by the Receiving Party without reference or access to the Confidential Information of the Disclosing Party; or (d) is obtained by the Receiving Party without restrictions on use or disclosure from a third party.
8. “Data” means any data or other information that User submit to Bips or the Website, including, without limitation, Opportunity Data; Borrower Data; and Lender Data.
9.  “Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of Bips or the Website, or any other associated software, firmware, hardware, computer system, or network, or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause Bips or the Website to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of Bips or the Website.
10.  “Lender” means User, a bank, an institutional investor, or other qualified investors registered to use Bips looking to originate, buy, or participate in an Opportunity.
11. “Lender Data” means any data that Lender submits to Bips or Website, including, without limitation, the personal information of Lender; Know Your Client documentation and information; anti-money laundering (AML) documents; financial stability documents; and other related information.
12. “Opportunity” means a deal posted to Bips by User, to originate, sale, syndicate, or buy a loan or debt.
13. “Opportunity Data” means any data that User submit to Bips or Website about an Opportunity, including, without limitation, Borrower Data, and other relevant information about the property.
14.  “User” means a person working for himself as a broker, a lender, or a borrower, or working for a bank, a financial institution, a brokerage firm, or other lenders or borrowers, using and accessing Bips to post Opportunities (originate, sale, or syndicate loans) and connect with other Users.
15.  “Website” means any website through which we provide access to Bips.

2. Bips ACCESS.

1. Access to Bips.  During the Term (as defined below), we will provide User access to Bips, subject to the terms and conditions of this User Agreement. The access is provided exclusively to the User, and the User is not allowed to grant access through its account to others. Bips.ai has the sole discretion to deny access to a User, for any reason or no reason, temporarily or permanently, subject only to refunding the unused subscription fee for the period from the denial of access until the end of the subscription.  
2. Access Permissions. User will create general profile on Bips indicating accurately its description as either a broker, a lender, a banker, or a borrower. User represents and warrants that the User has the right and authority to act within its capacity while using Bips, as contemplated by this Agreement. User’s misrepresentation of its capacity or authority is a material breach of this agreement.
3. No Solicitation. Users on Bips expect Bips to send them only deals that matches their preferences as indicated to Bips. Users who did not contact other Users on a specific deal should not be contacted directly by a User. Any such contact with a User should be done through Bips to avoid spamming Users. As a User, you may not send unsolicited commercial email to other Users. 
4. Modifications.  We reserve the right to modify Bips and the Website from time to time by adding, deleting, or modifying features.

3. DATA.

1. Lender Preferences.  User shall set preferences with respect to the types of Opportunities in which as a Lender is interested in buying, syndicating, or originating.  These preferences allow Bips to properly filter the Opportunities that Lender gets from Bips, subject to Bips.ai’s sole discretion.  Notwithstanding any preferences input by Lender, Lender acknowledges and agrees that Opportunities are also only sent to Users according to the User who uploaded the Opportunity sole discretion (the “User Criteria”). If Lender does not meet certain User Criteria, it will not receive the applicable Opportunity. User Criteria is determined at the applicable User’s sole, reasonable discretion, in accordance with all Applicable Laws.  

2. Uploading Opportunities.  Bips allows User to send Opportunities or requests to a select Users.  Each time User send an Opportunity to Bips, User is representing and warranting to Bips.ai that User has obtained all necessary express consents from the applicable Borrower/Sponsor of the Opportunity to act on behalf of Borrower/Sponsor and disclose the Opportunity Data and the Borrower Data to third parties. Uploading an Opportunity without the appropriate authorization is a material breach of this User Agreement. Bips.ai has the sole discretion to block an opportunity from reaching its Users, for any reason or no reason, temporarily or permanently, subject only to the right of the User to immediately cancel its subscription.    

3. Data Storage.  Each time a User uploads text or a document to Bips that text and document are stored on servers controlled and provided by Bips.ai’s service provider (each, a “Data Storage”). The Data stored on the Data Storage is available to User at all times.  

4. User Data.  User acknowledges and agrees that it is solely responsible for the accuracy and completeness of all data provided or uploaded by User to Bips, and User hereby represents and warrants to Bips.ai that it has all rights required to post such data.  Subject to the terms and conditions of this User Agreement, User hereby grants us the right to pass the information through vendors providing services to us (such as AWS hosting providers), to execute, store, archive, display, and distribute the data only for the purpose of providing Bips services and related services hereunder. Upon expiration or termination of the Agreement, we may retain an archival copy of the Data kept in the normal course of business or for purposes of complying with Applicable Law; provided that the confidentiality obligations set forth in Section 4 shall remain effective for so long as such Data is retained.

5. Aggregated Data.  We monitor the performance and use of the Website and Bips by User, and we collect data in connection therewith, including, without limitation, date and time that User access Bips and the Website, the portions or pages of Bips and Website visited, the frequency and number of times such pages are accessed, and other usage data (the “Usage Data”).  Among others uses, we indicate that we use this Usage Data for our machine learning algorithm. We may also combine this Usage Data with other data (including Lender and Agent Data), and use such combined data, or a subset thereof, in an aggregate and anonymous manner (the “Aggregate Data”).  Aggregate Data does not identify User or any individual.  User hereby agrees that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data for any purpose.

4. CONFIDENTIALITY.

1.   Confidentiality.  At all times the Receiving Party will protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use the Confidential Information for any purpose except to perform its obligations and exercise its rights under this User Agreement.  The Receiving Party will not disclose, distribute, or disseminate the Confidential Information to any third party, without the prior written consent of the Disclosing Party.  If the Receiving Party is legally compelled to disclose any of the Disclosing Party’s Confidential Information, the Receiving Party will, to the extent legally permissible, provide the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section.  If such protective order or other remedy is not obtained or the Disclosing Party waives compliance with the provisions of this Section, the Receiving Party may furnish only that portion of the Confidential Information which it is advised by its counsel is legally required to be disclosed, and will use its best efforts to ensure that confidential treatment will be afforded such disclosed portion of the Confidential Information.

2. Specific Performance and Injunctive Relief.  The Receiving Party acknowledges that in the event of a breach of Section 4.1 by the Receiving Party, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach.  Therefore, in the event that the Receiving Party or its Representatives engage in, or threaten to engage in any act which violates Section 4.1, the Disclosing Party will be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of Section 4.1.  The Disclosing Party will not be required to post a bond or other security in connection with the granting of any such relief.

3. Non-Disclosure Agreements.  Without limiting the generality of anything in this Section 4, User shall be responsible to ask any other User to sign Non-Disclosure Agreement, prior to exchanging confidential data. The NDA can be uploaded to Bips to enable the parties’ mutual execution.

5. TRANSACTIONS.

1. No Circumvention.  User acknowledges and agrees that Bips does not, cannot, and will not commit User to enter into a financing arrangement.  However, Bips is designed to facilitate financing transactions. Notwithstanding anything in this User Agreement, in no event shall a User circumvent another User on a deal the latter user sent to the first User via Bips, and in no event shall a User circumvent Bips in order to transact with a non-User over a transaction introduced to the User via Bips. A breach of this Section 5.2 shall be deemed a material breach of this User Agreement by User. This Section 5.2 shall survive the expiration or termination of this User Agreement for one year.

2. Parties to the Transaction. User acknowledges and agrees that all transactions hereunder are solely by and among Users, the applicable Borrower, and the applicable Brokers and Lenders.  Bips.ai is not a party to any transaction facilitated by Bips.

6.   INTELLECTUAL PROPERTY.  As between the Parties, all right, title, and interest in and to Bips, the Website, the Aggregate Data, and the Usage Data, including all modifications, and all intellectual property rights therein, are and will remain the sole and exclusive property of Bips.ai.  

7. USE AND LIMITATIONS OF USE. User will not (and will not authorize any third party to): (i) allow anyone to access and use Bips or the Website; (ii) share with any third party his or her access credentials; ( (iii) resell, distribute, or sublicense Bips or the Website, or use either of the foregoing for the benefit of anyone other than User; (iv) knowingly use Bips or the Website in violation of any Applicable Law, or in order to build a competitive product or service, or for any purpose not specifically permitted in this User Agreement; or (v) introduce, post, or upload to Bips or the Website any Harmful Code. We have the right to monitor User’s compliance with this Section 7.  A breach of this Section 7 shall be deemed a material breach of this User Agreement by Agent.

8. REPRESENTATIONS AND WARRANTIES; OUR DISCLAIMER.

1. Mutual Representations and Warranties.  In addition to other representations and warranties expressly made in this User Agreement, each Party represents and warrants to the other Party that: (i) if User is an entity it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this User Agreement; (ii) the execution, delivery, and performance of this User Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party; (iii) it has the full power, authority, and right to perform its obligations and grant the rights it grants hereunder; and (iv) its performance under this User Agreement shall comply with all Applicable Laws.

2. Additional Representations and Warranties by User.  In addition to the foregoing, User represents and warrants that it is not bankrupt and not listed on any U.S. Government list of prohibited or restricted parties.

3. Disclaimer.  User acknowledges that although Bips and the information provided by Bips hereunder can be used as aids to user to make informed business decisions, Bips and the information provided by Bips hereunder are not meant to be substitutes for legal, business, or investment advice or User’s exercise of its own business judgment. Any such decisions or judgments are made at User’s sole discretion and election.  Bips.ai does not guarantee the accuracy, reliability or quality of any data, and User is solely responsible for exercising its own professional judgment and making independent, informed decisions related to any information about other parties that User has access to via Bips or as a result of User’s use of Bips.  Bips.ai does not act nor shall be deemed to be acting as a fiduciary in providing Bips and related services hereunder.

Bips.ai is not a financial or investment advisor, agent, lender, investor, broker dealer or financial institution of any kind and should not be relied upon for financial, legal, transaction, tax, accounting or capital structure related advice. All data, analysis and recommendations provided by Bips are to be considered opinions and not advice and should be individually verified and considered by User without any assumption of expertise on the part of Bips.ai. User is encouraged to seek necessary advice from relevant third party professionals.  

Except as expressly set forth in section 8.1, Bips, the website, their components, any documentation, and any other materials provided hereunder are provided “as is” and “as available,” and neither Bips.ai (nor our suppliers) makes any representations or warranties with respect to the same or otherwise in connection with this User Agreement, and hereby disclaims any and all express, implied, or statutory warranties, including, without limitation, any warranties of non-infringement, merchantability, fitness for a particular purpose, availability, error-free or uninterrupted operation, and any warranties arising from a course of dealing, course of performance, or usage of trade. To the extent that Bips.ai (and our suppliers) may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.

9. LIMITATION OF LIABILITY.  Except in connection with User’s failure to pay any amounts due and owing hereunder, a party’s gross negligence or willful misconduct, a party’s breach of its confidentiality obligations hereunder, or a party’s indemnification obligations hereunder: (i) in no event will either party be liable to the other party or any third party for any incidental, indirect, consequential, special, exemplary, or punitive damages of any kind (including, but not limited to, lost revenues or profits) arising from or relating to this User Agreement, regardless of whether such party was advised, had other reason to know, or in fact knew of the possibility thereof; and (ii) each party’s aggregate liability for direct damages under this User Agreement will not exceed the greater of $1,000 and the fees paid by User hereunder during the period twelve (12) months prior to the event giving rise to the claim.  No action, regardless of form, arising from or pertaining to this User Agreement may be brought by a party more than one (1) year after such action has accrued.

10. INDEMNIFICATION.

1. Indemnification.  A Party will indemnify, defend, and hold the other Party and its respective Representatives harmless from and against any and all liabilities, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) arising from (i) A Party’s material breach of this User Agreement; (ii) A Party’s gross negligence or willful misconduct.

2. Procedure. The indemnification obligations set forth in Section 10.1 are subject to the indemnified Party: (i) promptly notifying the indemnifying Party of the Claim; provided, however that a failure to notify will not relieve either Party of its obligations under this Section 10 except to the extent that failure to notify causes prejudice to the indemnifying Party, (ii) providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and (iii) providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.

11. TERM, TERMINATION AND SUSPENSION.

1.   Term.  The term of this User Agreement (the “Term”) commences on the time of joining Bips (the Effective Date) and will continue until terminated in accordance with the sections of this User Agreement.

2. Termination.  User may terminate this User Agreement and discontinue its use of Bips at any time, but there will be no refund of any remaining unused annual fee. A User may also terminate this agreement immediately in case the User was denied access to Bips or an opportunity uploaded by the User was denied access to other Users; in such a case User is entitled for a refund of the remaining unused annual fee. Bips.ai may terminate this User Agreement (i) immediately with notice to User if User breaches any provision of this User Agreement, or (ii) for any reason upon thirty (15) days’ notice to User, or (iii) immediately in case mentioned in section 2.1 (as result of permanent suspension), or (iv) immediately in case of posting of content which is considered harmful or inappropriate at the sole discretion of Bips.ai. Either Party may terminate this User Agreement immediately, if the other Party becomes the subject of a petition in Bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.  

3. Suspension for Non-Payment.  We may suspend User’s access to Bips if any subscription fee was not paid on time.

4. Survival.  The following provisions will survive termination of this User Agreement:  Section 1 (“Definitions”), Section 3.1 (“Lender Preferences”), Section 3.4 (“User Data”), Section 3.5 (“Aggregated Data”), Section 4 (“Confidentiality”), Section 5.2 (“No Circumvention”), Section 6 (“Intellectual Property”), Section 8.3 (“Disclaimer”), Section 9 (“Limitation of Liability”), Section 10 (“Indemnification”), this Section 11.4 (“Survival”), Section 12 (“Fees and Payment”) until all amounts due hereunder have been paid, and Section 13 (“General Provisions”).

12. FEES AND PAYMENT.

1. Fees and Taxes.  Bips.ai will prompt on Bips the ability to pay the annual subscription or ad hoc fees for premium services as detailed in Exhibit A. The subscription fee is payable upon sign up to Bips after the free trial period or extension thereof. Fees are in addition to and do not include any federal, provincial, or local sales, taxes (“Taxes”) now or hereafter levied, all of which will be for User’s account.  

13. GENERAL PROVISIONS.

1. Assignment.  User may not assign or otherwise transfer any of its rights or obligations under this User Agreement. Bips.ai may assign or otherwise transfer this User Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, sale of equity or substantially all assets, or otherwise), provided that the assignee agrees to be bound by the terms and conditions of this User Agreement.  

2. Waiver.  No failure or delay by either Party in exercising any right or remedy under this User Agreement will operate, or be deemed to operate, as a waiver of any such right or remedy.

3. Governing Law.  This User Agreement will be governed by and construed in accordance with the laws of the New York State, without regard for choice of law provisions thereof.  

4. Exclusive Forum.  The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of New York, Borough of Manhattan for all suits, actions, or proceedings directly or indirectly arising out of or relating to this User Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each Party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this User Agreement.

5. Waiver of Jury Trial. The parties acknowledge that the right to trial by jury is a constitutional right, but one that may be waived. Each party after consulting (or having the opportunity to consult) with legal counsel of their choice, knowingly and voluntarily, and for their mutual benefit, waives any right to trial by jury in the event of litigation regarding the performance or enforcement of, or in any way related to or arising out of this User Agreement.

6. Notices.  All notices required under this User Agreement (other than routine operational communications) must be in writing and will be delivered either personally, via Bips or another text message, or by e-mail, national overnight courier or the U.S. Postal Service.  Notices will be effective upon: (i) actual delivery to the other Party, if delivered in person, in text message, or by e-mail, or national overnight courier or (ii) five (5) business days after being mailed via the U.S. Postal Service, postage prepaid.  

7. Independent Contractors. The Parties are independent contractors.  Neither Party will be deemed to be an employee, agent, partner, joint venturer, or legal representative of the other Party for any purpose, and neither Party will have any right, power, or authority to obligate the other Party.

8. Severability.  If any provision of this User Agreement is found invalid or unenforceable by a court of competent jurisdiction, that provision will be amended to achieve as nearly as possible the same economic effect as the original provision, and the remainder of this User Agreement will remain in full force and effect.  Any provision of this User Agreement which is unenforceable in any jurisdiction, will be ineffective only as to that jurisdiction, and only to the extent of such unenforceability, without invalidating the remaining provisions hereof.

9. Force Majeure.  Except for Agent’s obligations to pay any Fees and Taxes hereunder, neither Party will be deemed to be in breach of this User Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike, epidemic or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers.

10. Third-Party Beneficiaries.  The Parties agree that there are no third-party beneficiaries under this User Agreement.

11. Export.  User will not export or re-export, either directly or indirectly, Bips or the Website, or any copies thereof in such manner as to violate applicable export laws and regulations of the United States or any other applicable jurisdiction in effect from time to time.  Without limiting the foregoing, User will not permit any third parties to access or use Bips or the Website in violation of any United States export embargo, prohibition, or restriction.

12. Complete Understanding.  This User Agreement, together with all Exhibits, constitutes the final and complete agreement between the Parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the Parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements.  To the extent of any conflict or inconsistency between this User Agreement and any term contained in the Website Agreement, the terms of this User Agreement will control.

13. Counterparts.  This User Agreement may be executed in counterparts (which may be exchanged by electronic transmission or clicking “accept” on the website), each of which will be deemed an original, but all of which together will constitute the same Agreement.

USER ACKNOWLEDGES THAT IT HAS READ THIS USER AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS by joining Bips.  

EXHIBIT A - FEES

Fees:

Users pay an annual subscription fee of $399 upon the end of the free trail.

Bips.ai may offer on Bips premium services for an additional fee, which is payable at the time using the premium services.

Fees modification:

Bips.ai is free to change its pricing. Any such change will not apply to current subscriptions, and it will only apply at the renewal of the subscription.

Discretionary free trial period:

Users can be granted a free trial. During the free trial period no Subscription fee shall be charged. Granting of free trial period is upon the sole discretion of Bips.ai and usage of Bips can be canceled any time during the free trial period.  

Upon the end of free trial period Subscription fee shall be charged to the Users.

Payment method:

All Users must fill-in payment data (card details) upon sign-up, unless a free trial period is granted.

If a free trial period is granted, users must fill-in payment data before the expiration of the trial period if they wish to continue with their subscription after the trial period.

After the free trial period (if any) the fees shall be deducted automatically from User´s account. If the payment details are not completed, the subscription will be terminated.