1. General Terms
When you use our Services, you are entering into a legal agreement, and you agree to all of these terms.
1.1 Agreement. This Agreement is a binding legal agreement between you and TapGoods LLC, a Delaware corporation (“TapGoods”, “we”, “us” or “our”). If you enter into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the legal authority to bind that entity and its Affiliates to this Agreement, and all references to “you” and “your” in this Agreement are referring to that entity. You and TapGoods are also sometimes referred to in this Agreement individually as a “Party” and collectively as the “Parties”.
This Agreement, which incorporates any applicable Order Form, applies to any use of the Services, whether in connection with a paid subscription or a free trial. In addition, if you (or any third party on your behalf) uses our APIs, you will be subject to the applicable API terms set forth on the Website and any other terms designated by TapGoods.
We continuously strive to improve our products and services, and as our business evolves, this agreement may change. This section describes how we can change the agreement.
1.2 Changes to the Agreement. We may, in our sole discretion, make changes to this Agreement from time to time. Any changes we make will become effective when we post a modified version of the Agreement to the Website, and we agree the changes will not be retroactive. If we make any material changes to the Agreement, we’ll also notify you within the Software Service or by sending you an email. If you continue using the Services after any changes, it means you have accepted them. If you do not agree to any changes, you must stop using the Services, and you can terminate your account by emailing firstname.lastname@example.org. It is your obligation to ensure that you read, understand and agree to the latest version of the Agreement that’s posted on the Website. The legend at the top of the Agreement indicates when it was last changed.
Additional terms apply to certain products that we provide.
1.3 Supplemental Terms. Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If this Agreement is inconsistent with the Supplemental Terms, the Supplemental Terms will control with respect to the service with which it applies.
We will make software available to you.
2.1 Access and Service Levels. TapGoods will make the Services to which you have subscribed available to you, subject to the terms and conditions of this Agreement. During the Subscription Term, the Software Services will meet the service levels specified in the Service Level Agreement (“SLA”).
We may temporarily suspend your access for things like scheduled maintenance or if a natural disaster occurs. We may also change or discontinue particular features or functions of our Services at any time.
2.2 Changes to Services. Notwithstanding Section 1, in addition to our rights set forth in Section 8.4, we reserve the right to suspend any Services (a) during planned downtime with reasonable notice provided to you, (b) in connection with a Force Majeure event (as described in Section 14.10), or (c) if we believe any malicious software is being used in connection with your account. In addition, we reserve the right to change, suspend or discontinue any features, components or functions of the Services at any time. If we make any material changes to the Software Service, we’ll notify you within the Software Service or by sending you an email. Notwithstanding the above, we have no obligation to update or enhance any Services or to produce or release new versions of any Services.
We aren’t responsible for any third party products that are integrated with or used in connection with the Services.
2.3 Third Party Offerings. Although the Services may allow you to access or use Third Party Offerings, they are not “Services” under this Agreement and are not subject to any of the warranties, service commitments or other obligations with respect to Services hereunder. The availability of any Third Party Offerings through the Services does not imply TapGoods’ endorsement of or affiliation with the provider. TapGoods does not control Third Party Offerings and will have no liability to you or Affiliates in connection with any Third Party Offerings. TapGoods has no obligation to monitor or maintain Third Party Offerings, and may disable or restrict access to any Third Party Offerings at any time. By using or enabling any Third Party Offering, you are expressly permitting TapGoods to disclose Your Data or other information to the extent necessary to utilize the Third Party Offering. YOUR USE OF THIRD PARTY OFFERINGS IS AT YOUR OWN RISK AND IS SUBJECT TO ANY ADDITIONAL TERMS, CONDITIONS AND POLICIES APPLICABLE TO SUCH THIRD PARTY OFFERINGS (SUCH AS TERMS OF SERVICE OR PRIVACY POLICIES OF THE PROVIDERS OF SUCH THIRD PARTY OFFERINGS).
Your base subscription fees include our standard support services. You may also purchase additional services.
2.4 Support Services. As part of the Services you will have access to TapGoods’ standard support services, which may be described on the Website and/or on an Order Form and which may be updated by TapGoods from time to time. For an additional fee, you may purchase additional support services.
We may offer additional Marketing Services. Participation in those services is voluntary. If you choose to participate, you agree to pay any related fees.
2.5 Marketing Services. TapGoods may offer you the opportunity to participate in marketing services programs, including marketing via TapGoods Marketplace (“Marketing Services”). TapGoods charges fees for Marketing Services in accordance with the terms applicable to such Marketing Services (the “Marketing Services Terms”) provided to you at the time of your election to participate in such services. In the event of any conflict between this Agreement and the Marketing Services Terms, the Marketing Services Terms will apply.
We are not responsible for any damages resulting from your use of any trial or beta services.
2.6 Trial and Beta Services. TapGoods may in its sole discretion offer trial services or beta services from time to time at no charge. Any trial or beta services are provided “AS IS” with no warranties of any kind. TapGoods may discontinue any trial or beta services at any time, with or without notice and without any further obligations to you. TapGoods will have no liability for any harm or damages suffered by you or any third party in connection with any trial or beta services.
Payment processing service is a Third Party Offering with its own Terms & Conditions.
2.7 Payment Processing Services. Payment processing services powered by the third party, ProPay, Inc. (“ProPay”) are offered by TapGoods, as a Partner Provider, in conjunction with the TapGoods Services subject to the ProPay ProFac Sub-Merchant Terms and Conditions provided to you at https://www.propay.com/en-US/Legal/ProFac-Sub-merchant-Terms-and-Conditions, incorporated herein by this reference and which govern your relationship with ProPay and are in addition to this Agreement. Furthermore, if you began working with TapGoods prior to April 1, 2019, the Services providing access to payment processing services are a Third Party Offering provided by Stripe, Inc. (“Stripe”), governed by the Stripe Services Agreement provided to you at https://stripe.com/us/ssa, incorporated herein by this reference and which govern your relationship with Stripe and are in addition to this Agreement. As applicable, you represent that you have read, accept, and agree to the ProPay ProFac Sub-Merchant Terms and Conditions or Stripe Services Agreement.
3. Your Responsibilities
You are responsible for making sure that your Affiliates and End Users comply with the terms of this agreement and applicable laws.
3.1 Liability for Affiliates and End Users. You are responsible for all activity occurring under your account. You will ensure that your Affiliates and End Users comply with all of the provisions of this Agreement and any applicable local, state, national and foreign laws, including those related to data privacy and transmission of personal data, at all times while using the Services. Any reference in this Agreement to your “access” or “use” of Services (or similar phrase) is deemed to include access or use by Affiliates and End Users, and any act or omission of an Affiliate or End User that does not comply with this Agreement will be deemed a breach of this Agreement by you.
These are things you promise to do in connection with using the Services.
3.2 Data; Unauthorized Access; Maintaining Networks. You will: (a) have sole responsibility for the accuracy and quality of Your Data and for ensuring that your collection and use of Your Data (including any End User Data which may be contained therein) complies with applicable laws, including those related to data privacy and transmission of personal data; (b) prevent unauthorized access to, or use of, the Services, and notify TapGoods promptly of any unauthorized access or use; and (c) have sole responsibility for obtaining, maintaining and paying for any hardware, telecommunications, Internet and other services needed to use the Services.
These are things you promise not to do in connection with using the Services.
3.3 Restrictions on Use. You and your Affiliates will not: (i) submit any infringing, obscene, defamatory, threatening, or otherwise unlawful or tortious material to the Services, including material that violates privacy rights; (ii) interfere with or disrupt the integrity or performance of the Services or the data contained therein, including but not limited to any alteration or deletion of any End User Data without the prior consent of TapGoods; (iii) attempt to gain access to the Services or related systems or networks in a manner not permitted by this Agreement; (iv) post, transmit or otherwise make available through or in connection with the Services any virus, worm, Trojan horse, Easter egg, time bomb, spyware or other harmful computer code, files, scripts agents or programs; (v) restrict or inhibit any other person or entity from using the Services; (vi) remove any copyright, trademark or other proprietary rights notice from the Services; (vii) frame or mirror any portion of the Services, or otherwise incorporate any portion of the Services into any product or service; (viii) systematically download and store Services content; or (ix) use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, “scrape,” “data mine” or otherwise gather Services content, or reproduce or circumvent the navigational structure or presentation of the Services. Notwithstanding subsection (ix) above, and subject to compliance with any instructions posted in the robots.txt file located in the root directory of any Website, TapGoods grants to the operators of public search engines permission to use spiders to copy materials from the Website for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. TapGoods reserves the right to revoke these permissions at any time and without notice.
You are liable if any Cardholder Data is mishandled under your account.
3.4 Cardholder Data. You are solely responsible for any liability resulting from your or any Affiliate’s handling of Cardholder Data. You agree that you and Affiliates will comply with PCI DSS anytime the Services are used to process credit cards.
You will ensure all user names and passwords are kept confidential.
3.5 User Names and Passwords. TapGoods may reject or require that you change any user name or password under your account. User names and passwords are for internal business use only and may not be shared with any third party, including any competitor of TapGoods. You, and not TapGoods, are responsible for any use or misuse of user names or passwords associated with your account.
You agree to process all payments on the platform.
3.6 Non-circumvention. You agree that during the Subscription Term, you will accept or otherwise process via the Software Service all payments made to you with respect to all items which are available for rent via the Services.
4. Fees and Payment
This describes our fees and your payment obligations. Fees are all non-refundable and are typically automatically collected.
4.1 Software Services Fees. Fees for the subscribed Software Services (“Subscription Fees”) are set forth on the Website, as may be updated by TapGoods from time to time, or as otherwise stated on an Order Form. The Subscription Fee remains the same for each monthly or annual term without regard to your actual use of the Software Services during the term. EVEN IF YOU DO NOT USE THE SERVICES, YOU WILL BE RESPONSIBLE FOR ANY SUBSCRIPTION FEES UNTIL THE SUBSCRIPTION IS CANCELLED IN ACCORDANCE WITH THIS AGREEMENT.
4.2 Free Trial. TapGoods may, at its sole discretion, at the beginning of or during a Subscription Term, offer Subscription Services for free during a stated promotional period (“Free Trial Period”). You may cancel at any time during the Free Trial Period and pay no Subscription Fees. We collect payment information up-front to reduce fraud and prevent service interruption. Unless you cancel prior to the end of the Free Trial Period, you will be billed at the end of the Free Trial Period for the plan you selected.
4.3 Payment Terms. You agree to pay TapGoods the Subscription Fees and any other applicable fees stated on an Order Form or otherwise specified in this Agreement. All payment obligations under this Agreement are non-cancelable and all fees paid are non-refundable. Unless otherwise stated on an Order Form, fees are paid: (i) via credit card or ACH, at the discretion of TapGoods; and (ii) at the time each transaction is processed. Any Subscription Fees not collected on a per-transaction basis or via automatic payment as set forth on an Order Form will be invoiced in arrears, with automatic payment collection. You will provide TapGoods with valid and updated credit card or bank account information, as the case may be. If you provide credit card information, you represent that you are authorized to use the card and you authorize TapGoods to charge the card for all payments hereunder. By submitting payment information, you authorize TapGoods to provide that information to third parties for purposes of facilitating payment. You agree to verify any information requested by TapGoods for purposes of acknowledging or completing any payment. TapGoods may choose to invoice rather than conduct automatic payment collection for some fees; in that case, you agree to pay within net fifteen (15) days from invoice date.
4.4 Overdue Charges. Any amounts not received by the applicable due date may accrue late interest at 1.5% of the outstanding balance per month, or the maximum interest permitted by applicable law, whichever is less, plus costs of collection. Any amount not received by TapGoods within thirty (30) days after the applicable due date will be deemed a material default under this Agreement, and TapGoods will be entitled to either suspend the Services or terminate the Agreement in accordance with Section 2.
4.5 Changes in Fees. Upon notice to you, TapGoods may increase any Subscription Fees, provided the increase will not become effective until the expiration of the then current Subscription Term. TapGoods may increase any fees that are not specified in an Order Form at any time, with or without notice to you.
4.6 Changes During the Subscription Period. Should you make an upgrade to the Software Services during a billing period, the additional Software Services will become available immediately and will be billed on a pro-rated basis. You agree to pay the previous fee up through the date of the upgrade and the upgrade fee thereafter. This upgrade policy applies whether you’ve chosen a monthly or annual subscription plan.
If you choose to downgrade your subscription, the downgrade will be effective at the beginning of the next billing cycle. You can downgrade your plan at any time during the Free Trial Period.
You can also elect to change your billing frequency for your plan(s) at any time. If you move from a monthly billing frequency to an annual billing frequency, you will be credited for the unused portion of your then-current invoice and will be charged the annual fee on your next invoice.
Unless you are in an active Free Trial Period, if you move from an annual subscription to a monthly subscription, your new billing frequency will not begin until the end of the then current annual subscription. If you are in a Free Trial Period and wish to change from an annual subscription to a monthly subscription, you can do so without penalty.
4.7 Cancellations. If you cancel your Subscription Services, your cancellation shall be effective at the end of the then current billing cycle. Subscription Fees will not be prorated down during a Subscription Term. This cancellation policy applies whether you’ve chosen a monthly or annual subscription plan.
4.8 Non-Subscription Services. TapGoods offers services apart from Subscription Services, including Support Services, Marketing Services, and Payment Processing Services. Non-Subscription Services are not subject to a Free Trial Period.
4.9 Payment Errors. If you believe that a payment has been processed in error or that you have been billing incorrectly, you must provide written notice to TapGoods within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by TapGoods within such thirty (30) day period, the payment will be deemed final. Your failure to cancel a subscription before the expiration of a Free Trial Period or the start of a new billing period is not a payment error.
4.10 Taxes. Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). We currently collect and remit sales taxes on your behalf in the State of Texas only. You are responsible for paying all other Taxes associated with purchases and transactions under this Agreement. If TapGoods is legally required to pay or collect any Taxes on your behalf, TapGoods will invoice you and you will pay the invoiced amount. For clarity, TapGoods will be solely responsible for taxes assessed on TapGoods based on its income.
5. Intellectual Property Rights
This describes our intellectual property rights in the Services.
5.1 TapGoods Intellectual Property. TapGoods owns all right, title and interest in and to the Services, the TapGoods Data and Aggregated Data, including, without limitation, all intellectual property rights therein. Subject to the limited rights expressly granted to you under this Agreement, TapGoods reserves all rights, title and interest in and to the Services, the TapGoods Data and Aggregated Data, including, without limitation, all related intellectual property rights. TapGoods’ service marks, logos and product and service names, including, without limitation, TapGoods and the infinity mark (the “TapGoods Marks”), are owned by TapGoods. You agree not to display or use any TapGoods Marks in any manner without TapGoods’ express prior written permission. Any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
You are only allowed to use the Services in accordance with this agreement and for internal business purposes.
5.2 License Grant to You. Subject to the terms and conditions of this Agreement, TapGoods hereby grants to you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license and right to use the Services set forth in an Order Form, during the Subscription Term and solely for your internal business purposes. You will not: (a) modify, copy or create any derivative works based on the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Services available to any third party, other than to Affiliates and End Users as permitted herein; (c) reverse engineer or decompile any portion of the Services, including but not limited to, any software utilized by TapGoods in the provision of the Services; (d) access or use (or allow a third party to access or use) the Services for competitive analysis or to build any competing products or services; (e) copy any features, functions, integrations, interfaces or graphics of the Services; or (f) otherwise use or exploit the Services in any manner not expressly permitted by this Agreement.
You grant us a license to use your feedback, trademarks and logos in connection with providing the Services and for general marketing purposes.
5.3 License Grant to TapGoods. You hereby grant to TapGoods and its Affiliates a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license (a) to modify, copy, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by you, Affiliates or End Users relating to the Services or TapGoods’ business; and (b) to use your business name(s), trademarks, service marks or logos (collectively, “Your Marks”) in connection with providing the Services and for marketing and promotional purposes in connection with TapGoods’ business. TapGoods agrees that any use by TapGoods of any of Your Marks will inure solely to the benefit and goodwill of your business. Other than those rights specifically granted to TapGoods herein, all right, title and interest in and to Your Marks are expressly reserved by you.
6. Data Ownership and Use
You own your data you provide to us, but you also grant us a license to use it for certain purposes, for example, to improve our products or to provide you with complementary products of our partners.
6.1 Your Data. As between you and TapGoods, you own all right, title and interest in Your Data. You hereby grant to TapGoods a nonexclusive, worldwide, assignable, sublicensable, fully paid-up and royalty-free license and right to copy, distribute, display and perform, publish, prepare derivative works of and otherwise use Your Data (including any End User Data which may be contained therein) for the purposes of providing, improving and developing TapGoods’ products and services and/or complementary products and services of our partners. You represent and warrant to TapGoods that you have all rights necessary to grant the licenses in this Section 1, and that your provision of Your Data through and in connection with the Services does not violate any applicable laws or rights of any third party.
This describes our rights in the data.
6.2 TapGoods Data. Notwithstanding Section 1, all right, title and interest in any data or information collected by TapGoods independently, including, without limitation, any data or information TapGoods obtains about End Users through the Services (whether the same as Your Data or otherwise), as between you and TapGoods, will be solely owned by TapGoods (collectively, “TapGoods Data”).
We will own all Aggregated Data.
6.3 Aggregated Data. TapGoods will own all Aggregated Data. You agree that nothing in this Agreement will prohibit TapGoods from utilizing Aggregated Data for any purpose, provided such Aggregated Data does not reveal any personally identifying information about you or any End Users.
We have controls in place to prevent outside parties from stealing or accessing Your Data.
6.5 Protection and Security. During the Subscription Term, TapGoods will maintain administrative, physical and technical safeguards designed for the protection and integrity of Your Data. TapGoods will maintain PCI DSS compliance for the portions of the Services that store and process Cardholder Data.
We will notify one another if either of us becomes aware that Your Data has been compromised.
6.6 Unauthorized Disclosure. If either Party believes that there has been a disclosure of Your Data in a manner not authorized under this Agreement, such Party will promptly notify the other Party. Additionally, each Party will reasonably assist the other Party in remediating or mitigating any potential damage, including any notification which should be sent to individuals impacted or potentially impacted by such unauthorized disclosure.
We are not responsible for resolving or intervening in any dispute over Your Data.
6.7 Data-Related Disputes. You are solely responsible for resolving disputes regarding ownership or access to Your Data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that TapGoods has no obligation whatsoever to resolve or intervene in such disputes.
7. Confidential Information
This describes the confidentiality obligations we have to one another under the agreement.
7.1 A Party will not disclose or use any Confidential Information of the other Party except: (a) as reasonably necessary to perform its obligations or exercise any rights granted pursuant to this Agreement; (b) with the other Party’s prior written permission; or (c) to the extent required by law or order of a court or other governmental authority or regulation. Each Party agrees to protect the other Party’s Confidential Information in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a commercially reasonable standard of care. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing Party; (b) was known to a Party prior to its disclosure by the other Party without breach of any obligation owed to the other Party; (c) was independently developed by a Party without breach of any obligation owed to the other Party; or (d) was or is received from a third party without breach of any obligation owed to the other Party. For clarity, nothing in this Section 7 will restrict TapGoods with respect to TapGoods Data or Aggregated Data.
8. Term, Termination and Suspension
We can each end this Agreement anytime by providing 30 days’ advance notice, unless an Order Form specifies otherwise.
8.1 Term. Unless otherwise specified in an Order Form, the term of this Agreement will be month to month (“Subscription Term”). The Subscription Term commences on the date you accept this Agreement by clicking an “I Agree” button or otherwise indicate that you accept this Agreement (including through an Order Form), or the date you first access or use the Services, including the start of any Free Trial Period, and will automatically renew until either Party terminates in accordance with this Agreement. Either Party may terminate the Agreement at any time, for any reason or no reason, by providing notice to the other Party at least thirty (30) days before the end of the relevant Subscription Term, or as otherwise provided in connection with Free Trial Periods. Unless otherwise specified in an Order Form, Subscription Fees during any automatic renewal term will revert to the current pricing in effect at the time such renewal term commences.
We have the right to end the Agreement immediately if you breach it.
8.2 Termination for Cause. TapGoods may terminate this Agreement, effective immediately upon notice to you, if you or an Affiliate is in material breach of this Agreement. In the event of a termination pursuant to this Section 8.2, in addition to other amounts you may owe TapGoods, you must immediately pay any unpaid Subscription Fees associated with the remainder of the Subscription Term. In no event will any termination relieve you of your obligation to pay any fees payable to TapGoods for the period prior to the effective date of termination.
This describes what will occur and the rights that apply when the Agreement is terminated.
8.3 Rights on Termination or Expiration. Upon termination or expiration of this Agreement (a) all Order Forms will automatically terminate and be of no force or effect; (b) you will have no rights to continue use of the Services and will cease accessing and/or using the Services; and (c) except as specified in the following paragraph, TapGoods will have no obligation to maintain your Services account or to retain or forward any data to you or any third party, except as required by applicable law.
Upon request by you within thirty (30) days following termination of this Agreement, and provided that you have paid TapGoods all amounts owed under this Agreement, TapGoods will make data that is solely Your Data available to you through TapGoods’ standard web services for a period of up to thirty (30) days after receipt of such notice. After such thirty (30) day period, TapGoods will have no obligation to retain or provide Your Data, except as required by applicable law. If at any time during the Subscription Term you require TapGoods’ assistance in retrieving Your Data, additional fees may apply.
We have the right to suspend or terminate the Services at any time if we detect harmful or illegal activity under your account.
8.4 Right to Terminate or Suspend Services. We may suspend or terminate the Services (or any portion thereof) at any time without notice if we believe (a) that any activity or use of Services in connection with your account violates this Agreement, the intellectual property rights of a third party or applicable laws, or is otherwise disruptive or harmful to TapGoods or any third party, or (b) that we are required to do so by law.
9. Warranties & Disclaimer
You are responsible for keeping your account contacts and other account information up to date, and you must notify us if anything changes.
9.1 Accuracy of Your Account Information. You agree to provide TapGoods with complete and accurate account information, including your legal name or company name, street address, email address, and such other contact information as may be requested by TapGoods. You are responsible for keeping your account information up to date, and you agree to promptly notify TapGoods in writing if any information changes.
We promise that the software will perform functions as generally described on the Website.
9.2 Warranty of Functionality. TapGoods warrants to you that during a Subscription Term: (a) the subscribed Software Service will perform materially in accordance with the functionality described in the Documentation applicable to such Software Service; and (b) such functionality will not be materially decreased. Your sole and exclusive remedy for a breach of this warranty will be that TapGoods will use commercially reasonable efforts to modify the applicable Services to achieve the functionality described above. If TapGoods is unable to restore such functionality, you may terminate the Agreement by providing written notice to TapGoods, and you will be entitled to receive a pro-rata refund of any pre-paid fees. TapGoods will have no obligation with respect to a warranty claim under this Section 9.2 unless notified by you in writing no later than thirty (30) days after the first instance of any material functionality problem. This warranty will only apply if the applicable subscribed Services have been utilized in accordance with this Agreement and applicable laws. For clarity, this warranty will not apply to any trial or beta services.
This is our disclaimer of legal liability for the quality, safety, or reliability of our Services.
9.3 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 9.2 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TAPGOODS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR RELATED DOCUMENTATION. TAPGOODS DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN SECTION 9.2, THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT. ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH TAPGOODS AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “TAPGOODS PARTIES”).
If we are sued by another party as a result of something you’ve done, you’ll cover the costs.
10.1 You agree to indemnify, defend, and hold harmless the TapGoods Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys’ fees and costs) arising from or relating to: (a) any actual or alleged breach by you, an Affiliate or End User of any provisions of this Agreement; (b) any access to or use of the Services by you, an Affiliate or End User; (c) any actual or alleged violation by you, an Affiliate or End User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party regarding ownership of or access to Your Data.
11. Limitations and Exclusions of Liability
These are the limits of legal liability we may have to you.
11.1 TAPGOODS EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY TAPGOODS. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE TAPGOODS PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE SUBSCRIPTION FEES ACTUALLY PAID BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH TAPGOODS AND THE TAPGOODS PARTIES.
IN NO EVENT WILL ANY TAPGOODS PARTIES HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF TAPGOODS, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
12. Export Controls
Any information and data submitted to the Services must not violate the intellectual property rights of third parties.
12.1 You will comply with all applicable export laws and restrictions and regulations of the US Department of Commerce, the US Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you will not use the Services to export, or allow any export or re-export in violation of any such restrictions, laws or regulations. You represent and warrant to TapGoods that you are not a prohibited party or located in, under the control of, or a national or resident of any restricted country, and that you will otherwise comply with all applicable export control laws. If you reside outside the United States, then in addition to complying with the foregoing, you will comply with any relevant export control laws in your local jurisdiction.
13. Intellectual Property Policy
Any information and data submitted to the Services must not violate the intellectual property rights of third parties.
13.1 TapGoods respects the intellectual property rights of others and will investigate and respond to notices of alleged infringement that are submitted to TapGoods in accordance with Section 7. Any data or information submitted to the Services is subject to Section 6 and, if such data or information is Confidential Information, Section 7 of this Agreement.
Texas law applies to this Agreement.
14.1 Governing Law; Submission to Jurisdiction. This Agreement will be governed by and interpreted in accordance with the internal laws of the State of Texas without regard to conflicts of laws principles. The Parties hereby irrevocably submit to the exclusive jurisdiction of the federal and state courts sitting in Dallas County, State of Texas, for all legal proceedings arising out of or relating to this Agreement.
In the unlikely event we end up in a legal dispute, you agree we will first attempt to resolve it through this informal process.
14.2 Mandatory Informal Dispute Resolution. If you have any dispute with TapGoods arising out of or relating to this Agreement, you agree to notify TapGoods in writing with a brief, written description of the dispute and your contact information, and TapGoods will have thirty (30) days from the date of receipt within which to attempt to resolve the dispute to your reasonable satisfaction. If the Parties are unable to resolve the dispute through good faith negotiations over such thirty (30) day period under this informal process, either Party may pursue resolution of the dispute in accordance with the arbitration agreement below.
If we can’t resolve a dispute after following the process above, then we must resolve through arbitration and not in court.
14.3 Arbitration Agreement. ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND TAPGOODS, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, THAT ARE NOT RESOLVED PURSUANT TO SECTION 14.2 ABOVE WILL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY, AND TAPGOODS AND YOU EACH HEREBY WAIVE THE RIGHT TO TRIAL BY A JURY. YOU AGREE THAT ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration will be administered by the American Arbitration Association under its Commercial Arbitration Rules and Mediation Procedures (currently accessible at www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130) as amended by this Agreement. Any arbitration hearing will be held in Dallas County, Texas. The applicable governing law will be as set forth in Section 14.1 (provided that with respect to arbitrability issues, federal arbitration law will govern). The arbitrator’s decision will follow the terms of this Agreement and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of this Agreement, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof.
14.4 Limitation of Time to Bring Claims. No action arising out of or in connection with this Agreement or the transactions contemplated by the Agreement may be brought by either party against the other more than one (1) year after knowledge of the action accrues.
14.5 Attorney’s Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover reasonable costs and attorneys’ fees.
14.6 Entire Agreement. This Agreement, together with any Order Forms and any terms and policies that are incorporated into this Agreement by reference (including by reference to a URL), constitute the entire agreement and supersede any prior agreements between you and TapGoods with respect to the subject matter hereof. In the event of a conflict between an Order Form and this Agreement, the Order Form will control. This Agreement supersedes and replaces all prior and contemporaneous agreements, proposals or representations, written or oral, between TapGoods, on the one hand, and you or any Affiliate, on the other hand.
14.7 Waiver and Severability. No waiver of any provision of this Agreement by TapGoods will be effective unless in writing and signed by TapGoods. No waiver by either Party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
14.8 Assignment. You may not assign, delegate or transfer this Agreement in whole or in part, without TapGoods’ prior written consent. TapGoods may assign, transfer or sublicense any or all of TapGoods’ rights or obligations under this Agreement without restriction.
This explains how we can send each other notices in connection with this Agreement.
14.9 Notices. Any notices provided by TapGoods under this Agreement may be delivered to you within the Services or to the email address(es) we have on file for your account. You hereby consent to receive notice from TapGoods through the foregoing means, and such notices will be deemed effective when sent if on a business day, and if not sent on a business day then on the next business day. Except as otherwise specified in the Agreement, any notices to TapGoods under this Agreement must be delivered via first class registered U.S. mail, overnight courier, to TapGoods LLC, Attn: Legal Department, 12404 Park Central Dr., Suite 450, Dallas, TX 75251.
We are not liable for things that are out of our control like natural disasters.
14.10 Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving TapGoods’ or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
14.11 Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.
14.12 Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and TapGoods.
14.13 Survival. The following will survive any expiration or termination of this Agreement: the Introduction and Sections 1, 2.3, 2.6, 2.7, 3, 4, 5, 6, 7, 8.2, 8.3, 9.1, 9.3, 10, 11, 12, 13, 14 and 15.