CUSTOMER TERMS & CONDITIONS
Updated December 18, 2014
This Agreement covers the purchase and use of the Services and Products provided by the Company. By accepting this Agreement via the Online Order Form or via an Order Form that references this Agreement, the Customer agrees to the terms and conditions of this Agreement.
If you register for a free trial for our services, this agreement will also govern that free trial.
If Customer is entering into this agreement on behalf of a company or other legal entity, Customer represents that Customer has the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "Customer" shall refer to such entity and its affiliates. If the Customer does not have such authority, or if Customer does not agree with these terms and conditions, the Customer must not accept this agreement and may not use the Services.
Customer may not access the Services if Customer is the Company’s direct competitor, except with Company’s prior written consent. In addition, Customer may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
These Customer Terms & Conditions, together with any Order Form (“Order Form”) and related Additional Terms, constitute the entire agreement between the parties (the “Agreement”).
- Definitions. Capitalized terms in the Agreement if not otherwise defined shall have the meaning set forth below:
- “Deliverables” shall mean materials, tools, website access and other resources necessary for an End User to use, access and receive the Product(s).
- “Company” or “TapClicks” shall mean TapClicks, Inc., a Delaware corporation, with its principal place of business at 3031 Tisch Way, Suite No. 1002, San Jose, CA 95128.
- "Customer" shall mean any person or organization with whom the Company enters into an Agreement subject to these terms and conditions.
- “End User” means an individual or entity to which the Product(s) and Services are made available for ordinary business.
- “Error” means a problem with the Product(s) to the extent that it fails to comply with the applicable documentation in all material respects.
- “Intellectual Property” shall mean any and all intellectual property rights worldwide arising under statutory law, common law or by contract and whether or not perfected, including all: (i) trade dress, trademark, and service mark rights and the goodwill and applications associated therewith; (ii) patents, patent applications and patent rights; (iii) rights associated with works or authorship including copyrights, copyright applications, copyright registrations, mask works rights, mask works applications, mask works registrations; (iv) rights relating to trade secrets and confidential information; (v) any rights analogous to those set forth in this section and any other proprietary rights relating to intellectual property; (vi) divisional, continuations, renewals, reissues and extension of the foregoing (as and to the extent applicable) now existing, hereafter filed, used or acquired, and whether registered or unregistered; (vii) domain names; and (viii) rights relating to derivative works.
- “Product(s)” shall mean the Company products, software or services listed on the Order Form, as they may be changed from time to time upon mutual agreement of the parties.
- “Services” shall mean the services provided by Company or other providers to the Customer or End User.
- “Company Tools” shall mean Company’s pre-existing Intellectual Property Rights including its know-how, design tools, methodologies, research, processes, commercially available “shrinkwrap” Product(s) or fonts, or other means that may be used to conceive, design, assemble, manage or deliver the Deliverables, and improvements or modifications to such Company Tools.
- “Upgrade” means any and all major and minor releases or other modifications to the service, including but not limited to maintenance fixes, modifications, new modules, enhancements and/or other additional features.
- “US” shall mean the United States of America.
- Grant of License. Subject to the terms and conditions of the Agreement, Company hereby grants to the Customer a non-exclusive, non-transferrable license, during the term of the Agreement, to use the Product(s) for Customer’s own business purposes.
- Access. During the term of the Agreement, provided that Customer has paid all fees due and owing and is in compliance with the terms of the Agreement, Customer will be able to access the Product(s). As necessary, the Product(s) may prompt Customer for its login and password information and, if correct, will provide Customer access to the Product(s).
- Unauthorized Duplication or Use. Customer shall use reasonable efforts to prevent its employees or other third parties from making authorized copies of any content on the Product(s) or improperly using the Product(s) in violation of the Agreement or any federal, state, or local law or regulation. If the Customer discovers any such problems, it will promptly notify Company and take reasonable actions to resolve the problem as soon as possible.
- Restrictions. The customer is not permitted to sublicense its rights or to allow any of its customers or other third parties to use or access the Product(s) in a “service bureau” or similar mode. The customer agrees not to reverse engineer, disassemble, decompile or otherwise attempt to derive source code, trade secrets, programming methods or Confidential Information (as defined herein) from the Product(s). Customers may not use the Intellectual Property of Company without prior written approval.
- Support and Enhancements.
- Technical Support. Customers will be entitled access to customer support personnel by email or online support platform from 9:00 AM – 5:00 PM PST, Monday through Friday, for reporting issues of all types associated with the Product(s).
- Modifications and Enhancements. Company shall utilize commercially reasonable steps to furnish Upgrades for the Product(s) if, as and when publicly released by Company during the term of the Agreement.
- Intellectual Property; Ownership. Subject to the licenses and rights granted herein, the Parties acknowledge that the Company owns all Intellectual Property, Product(s) and technology, and all content provided by Company. Company reserves all rights not expressly granted to Customer in the Agreement.
- Termination by Customer. Customers may stop using the Products and Services at any time. Termination of Customer account does not relieve Customer of any obligation to pay any outstanding fees.
- Termination by Company. If Company terminates these terms for reasons other than for cause, then Company will make reasonable effort to notify Customer at least 30 days prior to termination.
- Upon termination of the Agreement for any reason, Company shall discontinue access, license and use of the Product(s), Contractor will terminate Services, and Customer shall cease using the Product(s). Each Party shall promptly return Confidential Information to the Delivering Party or destroy such. The customer shall pay all outstanding amounts and fees incurred prior to termination or amounts otherwise owing. Sections (and all included sub-sections) 4, 5, 7, 8, 9, 10.4, and 10.6 shall survive termination of the Agreement.
- Representations and Warranties. The Parties each represent and warrant that:
- It has the power and authority to enter into the Agreement and perform its obligations hereunder, and such performance will not breach any separate agreement by which it is bound;
- It will comply with the laws, rules, and regulations, as applicable, in connection with the conduct of its business, the use, license, and delivery of the Product(s); and
- Customer separately and additionally represents and warrants that it will not use the Product(s) in any manner prohibited by the Agreement, other third-party agreements, or in any way violate or tamper with the security of the Product(s).
- Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR TO ANY OTHER MATERIALS, GOODS OR SERVICES FURNISHED HEREUNDER, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES, BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH REGARD TO THE USE OR PERFORMANCE OF THE SERVICE. The company makes no warranty that the Product(s) shall operate uninterrupted or be error-free.
- Confidentiality; Security.
- Confidential Information. The parties understand and agree that in the performance of the Agreement each party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans, technical information, client information, which is designated as confidential by the disclosing party in writing or which the receiving party knew or should have known was confidential, including all data and information obtained by Company that is related to, or provided by, Customer (collectively, "Confidential Information").
- Exceptions. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it (i) is or becomes a part of the public domain through no act or omission on the part of the receiving party, (ii) is disclosed to a third person by the disclosing party without restriction on such third person, (iii) is in the receiving party’s possession, without actual or constructive knowledge of an obligation of confidentiality with respect thereto, at or prior to the time of disclosure under or in connection with the Agreement, whether received prior to or after the date of the Agreement, (iv) is disclosed to the receiving party by a third person having no obligation of confidentiality with respect thereto, (v) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, (vi) is released from confidential treatment by written consent of the disclosing party, or (vii) is required to be disclosed by law, provided that, to the extent practicable under the circumstances, the receiving party gives sufficient notice to the disclosing party in advance of such disclosure to enable the disclosing party to seek legal recourse to prevent such disclosure.
- Obligations of Confidentiality. As between the parties, all Confidential Information shall remain the exclusive property of the disclosing or owning party, as applicable and each party shall use prudent methods to protect the Confidential Information of the other party, including ensuring that its employees and agents do not, copy, publish, disclose to others or use (other than pursuant to the terms hereof) the Confidential Information.
- Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS OR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OR IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT SERVE TO LIMIT, IN ANY WAY, (I) EITHER PARTY’S CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT, AND (II) EITHER PARTY’S RIGHTS TO STATUTORY DAMAGES BASED ON INFRINGEMENT BY THE OTHER PARTY OF THE TRADEMARK OR COPYRIGHT RIGHTS OF THE AGGRIEVED PARTY. COMPANY’S AGGREGATE LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM.
- Notices. All notices, consents, approvals, requests, claims, demands and other communications hereunder (collectively, “Notices”) shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by telecopy, by national overnight courier service (such as, Federal Express, DHL, Airborne, UPS), or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the addresses on the signature page of the Agreement (or at such other address for a party as shall be specified in a notice given in accordance with this Section).
- Severability. The Agreement shall be enforced to the fullest extent permitted by applicable law. If any provision of the Agreement is held to be invalid, illegal or incapable of being enforced to any extent, then such provision shall be interpreted, construed and reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision, and while all other terms and provisions of the Agreement shall nevertheless remain in full force and effect.
- Assignment. No Party shall assign or transfer the Agreement by operation of law or otherwise without the prior written consent of the other Party, except in connection with a change of control in which case such assignment shall not be required unless the change of control involves a direct competitor of the non-assigning Party. The Agreement shall be binding upon and inure to the benefit of the successors and the permitted assigns of the respective Parties hereto.
- Governing Law. All disputes under the Agreement shall be governed by the law of the State of California, without reference to its conflicts of law provisions, and shall be resolved exclusively in the state or federal courts in the State of California. Each Party agrees to accept services of process by mail, consent to the jurisdiction of such courts, and hereby waive any jurisdictional or venue defenses otherwise available to it. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
- Waiver. Failure or delay by any party to enforce compliance with any term or condition of the Agreement shall not constitute a waiver of such term or condition. All waivers hereunder shall be in writing and executed by an authorized representative on behalf of the party against whom such waiver is asserted. A waiver of a breach or a term under the Agreement shall not be deemed a waiver of any other or subsequent breach or a waiver of any other term.
- Headings. Section headings are for the convenience of the parties and shall not affect the meaning, construction or interpretation of the text of the Agreement.
- No Agency. Nothing in the Agreement shall be construed to constitute or appoint either party as the agent or representative of the other party for any purpose whatsoever, or to grant to either party any right or authority to assume or create any obligation or responsibility, express or implied, for or on behalf of or in the name of the other, or to bind the other in any way or manner whatsoever.
- Controlling Language. The Agreement is in English only, which language shall be controlling in all respects. All documents exchanged under the Agreement shall be in English.
- Authority. The person signing the Agreement on behalf of each Party below acknowledges that he or she is binding the entire company or entity and has the authority to do so.