For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
- “Affiliate” of a party means any corporation or other entity that such party directly or indirectly controls, is controlled by, or is under common control with. In this context, a party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for (i) the board of directors, or (ii) other mechanism of control for such corporation or other entity.
- “Customer(s)” means individuals or entities to which TRP has re-sold Services.
- “Customer Data” means all electronic data or information submitted by Customers to the Services.
- “Deliverable” means any software, equipment consultations, documentation and/or other materials prepared by TapClicks for TRP as described in an SOW.
- “Fees” means the fees (as specified in each Order Form) payable by TRP to TapClicks for the re-sale of the Services to Customers.
- “Initial Term” has the meaning ascribed to that term in Section 11.1.
- “Instance” means Platform access for one Customer.
- Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
- “Non-TapClicks Applications” means online applications and offline software products provided by entities or individuals other than TapClicks and are clearly identified as such, and that interoperate with the Services.
- “Order Form" means the documents for placing orders pursuant to this Agreement that are entered into between TapClicks and TRP (or Affiliates of TapClicks and TRP), including addenda and supplements thereto. By entering into an Order Form pursuant to this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement. Order Forms shall be deemed incorporated into this Agreement by reference.
- “Platform” means a licensed Software-As-A-Service (SAAS) AdTech and MarTech platform, that imports, exports or otherwise uses third-party Cross-Channel marketing and sales data, to enable agencies and direct advertiser marketing teams to create, manage, aggregate, transform, or otherwise analyze marketing data to assist in capturing orders, managing workflows, gaining business intelligence and reporting on campaign performance
- “Professional Services” means the services to be provided by TapClicks to TRP as described in an SOW, which may include, without limitation, engineering, maintenance, installation, design consulting, business planning, network planning and analysis.
- “Referrals” TRP may choose to Refer a Customer to TapClicks for a referral fee as described in Section 7 below.
- “Renewal Term” has the meaning ascribed to that term in Section 11.1.
- “TRP Agent” means a person or entity that TRP appoints to market, promote or re-sell Services on behalf of TRP.
- “TRP Data” means all electronic data or information submitted by TRP to the Services.
- “Services” means the products and services that are ordered by TRP pursuant to an Order Form made available by TapClicks online or otherwise.
- “Statement of Work” or “SOW” means a statement of work for Professional Services and/or Deliverables that is executed by the parties.
- “Term” has the meaning ascribed to that term in Section 11.1.
- “Terms and Conditions” means the terms and use of TapClicks platform. TapClicks Terms and Conditions are found at: https://rebrand.ly/Tap-PrtnrTC.
- “Territory” means the geographic area.
- “User Guide” means the online knowledge base for the Services, as updated from time to time by TapClicks.
- “Users” means individuals who are authorized by Customers to use the Services, for whom subscriptions to the Services have been ordered, and who have been supplied user identifications and passwords by TRP (or by TapClicks at TRP’s request). Users may include but are not limited to Customer’s employees, consultants, contractors and agents, and third parties with which Customers transact business.
- “TapClicks Revenue Partner” (TRP) means a Partner that purchases Platform Instances from TapClicks and resells to the End User, subject to terms and conditions provided in this Agreement. This Instance shall be onboarded and managed by the Partner.
2. Appointment & Scope
- Appointment: As on and with effect from the Effective Date, TapClicks hereby appoints the TRP as TapClicks Revenue Partner and permits the TRP to integrate or include TapClicks’s products into the TRP’s solutions or offerings and make the same available to its customers (“Customers”). This will entitle the Customers to access TapClicks’s Platform, (“Software”) and avail of services therefrom by way of ‘software as a service’ (“SaaS”). TRP hereby accepts, for the Term (unless terminated as provided in this Agreement), a non-exclusive, non-transferable, appointment as a TapClicks approved reseller of the Services.
- Ownership and Proprietary Rights. TapClicks and its suppliers and/or licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and other intellectual property rights), in and to the Services and the User Guide. TRP agrees that only TapClicks shall have the right to maintain, enhance or otherwise modify the Services. If TRP provides TapClicks with reports of defects in the Services or proposes or suggests any changes or modifications (collectively “Feedback”), TapClicks shall have the right to use and exploit such Feedback including, without limitation, the incorporation of such Feedback into TapClicks’s software products and/or services, including, without limitation, the Services, without any obligation to TRP. Except as expressly set forth in this section, TapClicks reserves all rights and grants TRP no licenses of any kind, whether by implication, estoppel, or otherwise.
- Professional Services. Upon execution of an SOW by the parties and subject to the terms and conditions, TRP may retain TapClicks to provide Professional Services (including the development of Deliverables) for TRP, all as described in such SOW. All Professional Services will be provided at TapClicks published Professional Services rates, found at: https://rebrand.ly/TapAnalytics-Services or successor url. If TRP submits a purchase order for Professional Services, such order shall not be binding upon TapClicks until accepted by TapClicks. TapClicks shall respond to each such order submitted by TRP within five (5) business days following receipt thereof. Once an order has been accepted, it shall be subject to the terms and conditions of this Agreement and the SOW.
- Restrictions. TRP shall not (and shall not authorize any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Services except to the extent that enforcement of the foregoing restriction is prohibited by applicable law; (b) circumvent any user limits or other timing, use or functionality restrictions built into the Services; (c) remove any proprietary notices, labels, or marks from the Services (except to the extent TRP is so permitted to for the purposes of re-branding the Services); (d) frame or mirror any content forming part of the Services; or (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Services.
- No Conflict. TRP must not resell TapClicks products or services to any of TRP’s actual or potential customers whom TapClicks has an existing business relationship within connection with TapClicks Service, or who are in any contractual relations or ongoing negotiations with TapClicks in connection with TapClicks Service. TRP Should get pre-clearance from TapClicks, that there is No Conflict, by submitting to TapClicks a list of TRP’s clients and prospects that TRP intends to resell TapClicks products and Services. If TRP fails to obtain pre-clearance of No Conflict from TapClicks, then TapClicks, at its sole discretion, may require TRP to assign the contract it has with the conflicting customer to TapClicks and forfeit any compensation that TRP received from the relationship.
- Customer and TRP Data. TapClicks shall have the right to use the Customer Data and TRP Data to provide the Services in accordance with this Agreement and TRP shall obtain such rights from its Customers for TapClicks. Subject to the limited rights granted to TapClicks pursuant to this Agreement, TapClicks acquires no right, title or interest from TRP or any Customers under this Agreement in or to Customer Data and TRP Data, including any intellectual property rights therein.
- Mutual Obligations. Neither party shall by way of statement, act or omission, discredit or reflect adversely upon the reputation of or the quality of the other party or the products or services provided by the other party.
3. TapClicks Responsibilities
- General Responsibilities for the Services. TapClicks shall provide TRP with the Services within the Territory for the purpose of the resale to Customers. The Services shall be made available by TapClicks subject to any unavailability caused by circumstances beyond TapClicks reasonable control, including any force majeure events, and any computer, communications, Internet service or hosting facility failures or delays involving hardware, software, power or other systems not within TapClicks possession or reasonable control, and denial of service attacks. The Services may be temporarily limited, interrupted or curtailed due to maintenance, repair, modifications, upgrades or relocation. TapClicks shall attempt to notify TRP of scheduled and unscheduled network outages that are expected to last more than four (4) hours and that may affect the Services. TapClicks shall be entitled to change the Services during the Term provided that TapClicks will not materially reduce the capabilities provided by the Services.
- Trainings: Provide the TRP’s designated personnel with sales training information on the Products, Software, SaaS and the marketing collateral thereto.
- TRP Rights on TapClicks’ Platform: Provide the TRP with the requisite administrator rights to enable the TRP to control the Customer accounts;
- Marketing & Promotion: At TapClicks sole discretion, assist the TRP in joint marketing and promotion efforts; and
- Latest features/improvements to TapClicks’ Products: Provide the Customers access to the latest features of the SaaS, whether pre-release or otherwise.
- White Labeling. The Services may be white labeled. The Services shall in all cases retain any relevant patent, copyright and/or other intellectual property notices as may be determined to be appropriate by TapClicks.
4. TRP’s Responsibilities
- Onboarding and Setup. Except for referrals made by TRP to TapClicks, TRP shall provide the Initial onboarding and setup management of the TapClicks’ instances to the TRP’s Customers in accordance with TapClicks Standard on-boarding requirements as determined by TapClicks from time to time. TRP shall exercise reasonable care in providing the initial onboarding and setup to TRP customers, as it would with its own Products and Services.
- Marketing Responsibilities. TRP shall market, promote and re-sell the Services to Customers and potential Customers at its own expense and using its own efforts with its own sales force (including TRP Agents). TRP shall maintain marketing and customer service standards that are appropriate in order to maintain high-quality Services and to reflect favorably on TRP’s and TapClicks reputation.
- Responsibilities to Customers. TRP shall provide Customers with prompt, courteous, and efficient service, shall take every reasonable precaution not to disclose any Customer information, other than as permitted by any applicable privacy or personal health information legislation, and shall deal with Customers honestly and fairly. TRP shall be responsible for all activities of its Customers and TRP shall (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and shall notify TapClicks promptly of any such unauthorized access or use; and (ii) comply with all applicable local, state, provincial, federal and foreign laws in respect to the promotion and re-sale of the Services.
- Customer Support. TRP shall be responsible for providing Support to Customers and Users of the Services. For the purposes of this Agreement, Support means (i) fielding each initial call on a Services problem or other inquiry from a Customer or User; (ii) to the extent reasonably possible, identifying the problem or performance deficiency in the Services; (iii) by referencing TapClicks support material found at: support.tapclicks.com, assist the customer and resolve the issue; (iv) if after using best efforts, making reference to all support documentation, TRP is unable to resolve the Customer’s problem, then TRP will contact it’s TapClicks Partner Manager in order to submit a trouble ticket to TapClicks support team; (v) where such problem has not been resolved, preparation of an error notification in relation to the problem or performance deficiency; (vi) managing communications and expectations with the Customer and/or User until the problem is referred to TapClicks; and (vii) escalating the error notification to TapClicks. Under no circumstances will TapClicks be obliged to deal directly with a Customer or User. TRP shall provide all Support, at its own expenses and costs, to TRP’s End Users/Customers.
- TRP Payments. TRP shall pay TapClicks the Fees set forth in each Order Form which Order Forms will reflect the TRP discount. TapClicks shall make the Services available to TRP for resale to Customers pursuant to this Agreement and in accordance with the number of User licenses and for the subscription terms specified in the Order Forms entered into by TapClicks and TRP.
- Customer Contracts. The Services shall be provided to Customers on terms and conditions that are determined by TRP. At minimum, TRP’s Customer Terms & Conditions shall include all of TapClicks Partner Terms & Conditions found at https://rebrand.ly/Tap-PrtnrTC and all of TapClick’s End User Terms and Conditions, found at https://rebrand.ly/Tap-CstmrTC. TapClicks shall have no obligation to determine such terms and conditions and TapClicks shall have no obligation to deal directly with Customers or for any customer service activities for or in respect of Customers. TRP shall not make any representations or warranties on behalf of TapClicks or in any way bind or attempt to bind TapClicks contractually or otherwise with any Customer(s).
- TRP Customer Responsibilities. TRP shall (i) be responsible for Customers’ and Users’ compliance with TapClicks Terms and Conditions applicable to the Services; (ii) be responsible for the accuracy, quality and legality of the Customer Data and of the means by which it was acquired. TRP shall not: (a) make the Services available to anyone other than Customer and Users; (b) sell, resell, rent or lease the Services outside the Territory; (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (d) use the Services to store or transmit Malicious Code; (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (f) attempt to gain unauthorized access to the Services or their related systems or networks. TRP shall, solely at its own cost, employ at least one (1) experienced sales person who is knowledgeable concerning the functions and advantages of the Services and at least one (1) experienced technical person who is knowledgeable concerning the functions, specifications and advantages of the Services.
- Non-TapClicks Applications and Customer and TRP Data. If TRP or any of its Customers installs or enables Non-TapClicks Applications for use with the Services, TRP acknowledges that TapClicks may allow providers of those Non-TapClicks Applications to access Customer Data and TRP Data as required for the interoperation of such Non-TapClicks Applications with the Services. TapClicks shall not be responsible for any disclosure, modification or deletion of any Customer Data and TRP Data resulting from any such access by Non-TapClicks Application providers. The Services shall allow Customers to restrict such access by restricting Customer users from installing or enabling such Non-TapClicks Applications for use with the Services.
- Integration with Non-TapClicks Services. The Services may contain features designed to interoperate with Non-TapClicks Applications. To use such features, TRP and Customers may be required to obtain access to such Non-TapClicks Applications from their providers. If the provider of any such Non-TapClicks Application ceases to make the Non-TapClicks Application available for interoperation with the corresponding Service features on reasonable terms, TapClicks may cease providing such Service features without entitling TRP or any Customers to any refund, credit, or other compensation.
- Usage Limitations. If TapClicks opts to impose Services limitations on all customers, such as but not limited to disk storage space, application programming interface calls, TapClicks will use commercially reasonable efforts to provide at least three (3) months written notice of such limitations to TRP.
6. Payment Terms and Taxes
- Customer Pricing and Responsibility. Subject to any minimum or maximum pricing requirements, as may be established by TapClicks from time to time, all fees, rates or charges charged by TRP to Customers for the Services shall be determined solely by TRP. TapClicks shall have no authority or responsibility to determine such fees or other amounts, and TapClicks shall have no responsibility for billing or collecting such fees or any other amounts from Customers. TRP is solely responsible for payment to TapClicks for all Fees for the Services re-sold to Customers. In connection with such activities, TRP will act in all respects for its own account and will be responsible for such matters as credit verification, deposits, billing, collection, bad debts and any unauthorized use of the Services by or on behalf of Customers. TapClicks is obligated only to TRP, with which it is in privity of contract, and not to Customers, with whom TapClicks is not in privity of contract. Customers are not to be deemed third-party beneficiaries of this Agreement.
- Fees. TRP shall pay all Fees specified in all Order Forms pursuant to this Agreement. Except as otherwise specified in this Agreement or in an Order Form, (i) Fees are based on User licenses purchased for the Services and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) the number of User subscriptions purchased cannot be decreased during the relevant subscription term stated on the applicable Order Form. User subscription Fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof; therefore, Fees for User subscriptions are not prorated to the last day of the month.
- TRP Payment Terms. All payments under this Agreement shall be made within thirty (30) days after the receipt of the applicable invoice. All amounts are payable in United States dollars unless specified otherwise on the Order Form or SOW. Any amounts not paid when due shall accrue interest at the maximum rate allowed by law. If TRP has been delinquent in its payments, TapClicks may condition future subscription renewals and Order Forms on prepayment or payment terms shorter than those specified in this Section.
- Suspension of Services and Acceleration. If any amount owing by TRP under this or any other agreement for the Services is thirty (30) or more days overdue, TapClicks may, without limiting TapClicks other rights and remedies, accelerate TRP’s unpaid Fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend provision of the Services to TRP and the Customers until such amounts are paid in full. TapClicks will give TRP at least seven (7) days prior notice that its account is overdue, before suspending the Services.
- Taxes. Unless otherwise stated, the Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, goods and services, harmonized, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). TRP is responsible for paying all Taxes associated with its purchases pursuant to this Agreement. If TapClicks has the legal obligation to pay or collect Taxes for which TRP is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by TRP, unless TRP provides TapClicks with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, TapClicks is solely responsible for taxes assessable against TapClicks based on its income, property and employees.
7. Referrals & Commissions
- Qualified Referrals. Mean Referrals (i) referred by TRP to TapClicks and who complete the sign-up procedure in accordance with the procedure described below; (ii) of whom TapClicks has no existing business relationship in connection with TapClicks Service, or who are not, at the time referred to TapClicks by TRP, in any contractual relations or ongoing negotiations with TapClicks in connection with TapClicks Service; (iii) who accept a service agreement with TapClicks within ninety (90) days of being referred to TapClicks by TRP, at a Referral’s own discretion and without receiving any monetary or other incentive from TRP, at least monthly subscriptions of any of the products making up the TapClicks Service; and (iv) who are not rejected by TapClicks, and make at least one payment to receive TapClicks Service. All Referrals will be deemed rejected by TapClicks if they do not become a Qualified Referral within ninety (90) days of first being submitted to TapClicks by TRP. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the ninety (90) daytime limit for a particular Referral.
- Referral Procedure. Each Referral shall be referred to TapClicks by TRP through a designated form provided by TapClicks to TRP, which TRP shall fully complete and submit to TapClicks, or via direct contact with TapClicks communicated by email, phone or otherwise and duly received and acknowledged by TapClicks (“Referral Submission”). Upon receiving each Referral Submission, TapClicks will contact the Referral and detail the steps to be taken towards registration to receive the Service and becoming a Qualified Referral. TapClicks shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral.
3.1 Subscription Fees; Responsibilities. TapClicks shall collect all fees from Referrals directly from Referrals (“Subscription Fees”). For the purposes of this Agreement, as between Partner and TapClicks, Subscription Fees shall not include any professional service fees or additional fees related to the Service charged by TapClicks to a Qualified Referral.
3.2 Referral Fees. TapClicks shall pay TRP referral fees in arrears on a quarterly basis in the amount of the applicable percentages, as agreed upon from time to time between the parties, (“Referral Fee Percentages”) of gross revenue recognized from Subscription Fees for the previous calendar quarter (“Referral Fees”) for a twelve (12) month period (or, if a client constituting a Qualified Referral is a client of TapClicks for a shorter time period, then such shorter period with respect to such client) from the Service start date for each Qualified Referral. For initial orders that have subscription terms in excess of twelve (12) months, Referral Fees payable with respect to the first year shall be determined proportionately to the total Subscription Fees payable pursuant to the initial order. For clarity, TRP shall only receive Referral Fees on Qualified Referral’s initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Qualified Referral. Such Referral Fees shall become payable and be paid to TRP within thirty (30) days after the end of the calendar quarter in which Subscription Fees attributed to such Qualified Referrals are paid to TapClicks. If a Qualified Referral terminates the Agreement prior to one year after becoming a Qualified Referral, TRP will only receive a pro-rata portion of the Referral Fees for the one year in proportion to the Subscription Fees paid by Qualified Referral to TapClicks. TapClicks may withhold payment of any Referral Fees pending any dispute or questioning by a Qualified Referral of any amounts payable or paid by Qualified Referral for the applicable service. TRP must provide TapClicks with valid documentation of U.S. tax status (i.e. IRS form W-9) as a condition for any payment to be made hereunder. Notwithstanding the foregoing in this Section, if the Referral Form indicates a period of time for payment of Referral Fees to the applicable Party longer than twelve (12) months, such period of time shall control as to the applicable Party.
3.3 Calculations. All calculations and/or metrics relating to any Referral, including without limitation, any tracking calculations, Referral Fees paid to TRP, or refunds made to Qualified Referrals shall be determined exclusively by TapClicks log files, tracking codes, and accounting information, as applicable, and shall be determined in good faith by TapClicks in accordance with the terms of this Agreement. TapClicks will promptly provide such calculations to TRP upon request, and any such other information or materials as may be reasonably requested by TRP to confirm the calculations and metrics referenced in the foregoing sentence.
3.4 Associated Charges. TRP shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees that are related to TRP’s income, and TRP shall indemnify, defend and hold TapClicks harmless from and against any claims arising out or relating to all charges emanating from TRP’s non-payment of any such taxes, duties, governmental charges or other like charges related to TRP’s income.
8. Intellectual Property
- Intellectual Property Ownership. The Product, Software, SDK and its respective structure, organization and source code constitute valuable trade secrets of TapClicks and/or its licensors. All worldwide intellectual property rights in the Products, Software and the SDK are the exclusive property of TapClicks and/or its licensors and the same shall not in any way be construed as being transferred to the TRP. Except as otherwise expressly provided in this Agreement, the TRP will not and will not permit others to: (i) use, copy, adapt, modify or create derivative works of the Product and/or Software; (ii) reverse-engineer, disassemble, or decompile the Product and/or Software or otherwise attempt to determine the Software’s underlying source code; (iii) attempt to access or use the Software other than by way of and in terms of the SaaS; and/or (iv) use the output generated from the SaaS for any purpose other than for the Customer’s own use.
- Definition of Confidential Information. “Confidential Information” means any and all information disclosed by either party to the other which is marked “confidential” or “proprietary”, or which the recipient knows or has reason to know is regarded by the disclosing party as such, including oral information. “Confidential Information” does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; (d) is independently developed by the receiving party; (e) has been approved for release with the disclosing party’s prior written authorization; or (f) has been disclosed by court order or as otherwise required by law, provided that the party required to disclose the information provides prompt advance notice to enable the other party to seek a protective order or otherwise prevent such disclosure.
- Obligation. Neither party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations pursuant to this Agreement or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party’s Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those in this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party’s option, all of the disclosing party’s Confidential Information.
- Injunctive Relief. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party may not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
- Other Exemptions. Notwithstanding the foregoing provisions in this Section, the parties may disclose this Agreement: (i) as otherwise required by law or the rules of any stock exchange or over-the-counter trading system provided that reasonable measures are used to preserve the confidentiality of the Agreement, (ii) in confidence to legal counsel, (iii) in connection with the requirements of a public offering or securities filing provided reasonable measures are used to obtain confidential treatment for the proposed disclosure, to the extent such treatment is available, (iv) in connection with the enforcement of this Agreement or any rights under this Agreement, provided that reasonable measures are used to preserve the confidentiality of this Agreement, (v) in confidence, to auditors, accountants, legal counsel and their advisors, (vi) in confidence, in connection with a change of control or potential change of control of a party or an Affiliate of a party, provided that reasonable measures are used to preserve the confidentiality of the Agreement. For any legally compelled disclosure or disclosure pursuant to a court, regulatory, or securities filing, the parties shall reasonably cooperate to limit disclosure.
- Compelled Disclosure. If a receiving party is compelled by law to disclose Confidential Information of a disclosing party, it shall provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party's cost, if the disclosing party wishes to contest the disclosure.
- TapClicks Customers. During the term of this Agreement, and for a period of two (2) years immediately following the termination of this Agreement, TRP agrees not to contact any Customer of TapClicks for the purpose of causing, inviting or soliciting such Customer or Customers to purchase products and/or services of any other company or business which are the same as or similar to the Products and/or services that TRP is selling or has sold for TapClicks pursuant to this Agreement.
- TapClicks Employees. During the term of this Agreement and for a period of two (2) years immediately following the termination of this Agreement, TapClicks and TRP mutually agree not to solicit or induce any employee or independent contractor of TapClicks or TRP to terminate or breach an employment, contractual or other relationship with TapClicks or the TRP or their respective Affiliates.
Non-Competition. TRP agrees that during the term of TRP's employment and for a period of two years thereafter the TRP will not engage in, consult with, participate in, hold a position as shareholder, director, officer, consultant, employee, partner or investor, or otherwise assist any business entity (i) in any State of the United States of America or (ii) in any other country in which the TapClicks has business activities, in either case, that is engaged in any activities which are competitive with the business and Platform and all business activities reasonably related thereto in which the TapClicks or any of its divisions, affiliates or subsidiaries are then engaged.
9. Warranties and Disclaimers
- Warranties. Each party warrants to the other party that: (i) such party is a business duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such party; (iv) as of the Effective Date, there is no outstanding litigation, arbitrated matter or other dispute to which such party is a party, which, if decided unfavorably to it, would reasonably be expected to have a potential or actual material adverse effect on such party’s ability to fulfill its obligations under this Agreement; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such party’s entering into this Agreement. TapClicks warrants that (i) the Services shall perform materially in accordance with the User Guide, (ii) subject to Section 3.4 and 3.6, the functionality of the Services will not be materially decreased during a subscription term, and (iii) TapClicks will not transmit Malicious Code to TRP or any Customers provided that if TRP, a Customer or a User uploads a file containing Malicious Code into the Services and later downloads that file, this warranty shall not apply to such file. For any breach of a warranty above, TRP’s exclusive remedy shall be as provided herein.
- Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, THE SERVICES AND THE MATERIAL ARE PROVIDED “AS IS” AND WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND. EACH PARTY AND ITS LICENSORS AND/OR SUPPLIERS MAKE NO OTHER REPRESENTATIONS AND GIVE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE REGARDING THE SERVICES AND/OR THE USER GUIDE PROVIDED UNDER THIS AGREEMENT AND EACH PARTY SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT, DURABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, RESELLER ACKNOWLEDGES THAT TapClicks DOES NOT REPRESENT OR WARRANT OR PROVIDE ANY CONDITIONS THAT THE SERVICES AND/OR THE USER GUIDE WILL BE ERROR-FREE OR WORK WITHOUT INTERRUPTIONS.
- TapClicks IP Indemnity. TapClicks shall defend and/or settle at its expense, any claims, actions or proceedings against TRP to the extent arising out of or relating to any misappropriation or infringement by the Services or the User Guide of any third party’s proprietary or intellectual property right (“TRP Claims”), and TapClicks shall pay all damages finally awarded by a court of competent jurisdiction to such third party against TRP, or any settlement amounts agreed by TapClicks in writing; subject to the conditions that, TRP shall notify TapClicks promptly of any TRP Claims, permit TapClicks to control the defense and settlement of such TRP Claims (provided that TRP may participate with counsel of its own choosing, at its own expense), and assist TapClicks, at TapClicks expense, in defending or settling such TRP Claims. TapClicks shall not be liable for any settlement amounts entered into by TRP without TapClicks prior written approval. If TapClicks has reason to believe that it would be subject to an injunction or continuing damages based on the Services, then TapClicks shall be entitled to either modify the Services to make it non-infringing and/or remove the misappropriated material, replace the Services or portion thereof with a service or materials that provide substantially the same functionality or information, or, if neither of the foregoing is commercially practicable, require TRP and the Customers to cease reselling, receiving and/or using the Services, as the case may be, and refund to TRP (a) a pro-rata portion of any one (1) time Fees (based on a three (3) year, straight-line depreciation schedule from the date of payment), and (b) any Fees that have been pre-paid by TRP but are unused. The foregoing notwithstanding, TapClicks shall have no liability for a claim of infringement or misappropriation to the extent caused by (i) the combination of Services with any other service, software, data or products not provided by TapClicks, which claim would have been avoided if the Services had not been so combined; or (ii) the use of any material provided by TRP or any Customers; (iii) any use or re-sale of the Services outside the Territory; or (iv) any breach by TRP of this Agreement or by any Customers of any Services policies and/or procedures. THE FOREGOING IS TapClicks SOLE AND EXCLUSIVE LIABILITY, AND RESELLER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
- TRP Indemnity. TRP shall defend and/or settle at its expense, any claims, actions or proceedings against TapClicks and its Affiliates and its and their officers, directors, employees and contractors (the “TapClicks Indemnified Parties”) to the extent arising out of or relating to (a) bodily injury or damage to tangible or real property, including death, caused by or arising out of any negligent act or omission of TRP or those for whom TRP is responsible for at law; (b) the provision, use or failure of any product or service provided by TRP; (c) any representations or warranties made by TRP in respect to the Services or any portions thereof beyond those authorized in this Agreement; (d) any infringement or misappropriation of any intellectual property or other rights by any Customer Data; (e) any violation of any law or regulation by TRP or any of its Affiliates or any of its or their officers, directors, employees, contractors or agents; or (f) real or tangible property damage or bodily injury or death caused by the negligent or wilful acts or omissions of the TRP or any of its Affiliates or any of its or their officers, directors, employees, contractors or agents in connection with this Agreement (“TapClicks Claims”), and TRP shall pay all damages finally awarded by a court of competent jurisdiction to such third party against any of the TapClicks Indemnified Parties, or any settlement amounts agreed by TRP in writing; subject to the conditions that, TapClicks shall notify TRP promptly of any TapClicks Claims, permit TRP to control the defense and settlement of such TapClicks Claims (provided that TapClicks may participate with counsel of its own choosing, at its own expense), and assist TRP, at TRP’s expense, in defending or settling such TapClicks Claims. TRP shall not be liable for any settlement amounts entered into by TapClicks without TRP’s prior written approval.
11. Term and Termination
- Term. This Agreement shall commence as of the Effective Date and shall continue in effect for an initial term of one (1) years (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed annually on the anniversary of the Effective Date for additional one (1) year renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least sixty (60) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”.
- Termination. This Agreement may be terminated as follows: (a) if TRP fails to make any payment due hereunder within thirty (30) days after receiving written notice from TapClicks that such payment is delinquent, TapClicks may terminate this Agreement on written notice to TRP at any time following the end of such period; (b) if either party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate this Agreement on written notice at any time following the end of such thirty (30) day period; (c) if either party becomes insolvent (i.e., becomes unable to pay its debts in the ordinary course of business as they come due) or makes an assignment for the benefit of creditors, then the other party may terminate this Agreement immediately upon notice; or (d) without cause, with a ninety (90) day written notice. If TRP terminates this Agreement, such termination shall not affect TRP’s right to provide Customers with TRP’s own products and services that do not use or depend on the Services or any Deliverables.
- Term of Purchased User Subscriptions. User subscriptions purchased by TRP commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-user pricing during any such renewal term shall be the same as that during the prior term unless TapClicks has given TRP written notice of a pricing increase at least sixty (60) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed seven percent (7%) of the pricing for the Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.
- Termination between TRP and TRP’s Customer. In the event that TRP’s Customer terminates its relationship with TRP but still wishes to use TapClick’s Platform, then TapClicks, at its option, has the right to enter into a contract directly with TRP’s Customer or TRP will assign its contract with its Customer to TapClicks. TRP will receive no further compensation relating to the Customer account. Customer will retain all of its data and any rights TRP had in the data will transfer to TapClicks.
- Rights upon Termination. Termination is not an exclusive remedy and is in addition to other rights or remedies that may be available. If this Agreement is terminated by TapClicks for TRP’s breach or terminated by TRP for convenience, then for any Customers to whom TRP has sold subscriptions for the Services, then at TapClick’s sole discretion, TRP will assign its contract with it’s Customers to TapClicks and forfeit its right to any future benefit from the contract.
- Return of Customer and TRP Data. Upon request by TRP made within thirty (30) days after the effective date of termination or expiration of a Services subscription, TapClicks will make available to TRP for download a file of such Customer Customer Data or TRP Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, TapClicks shall have no obligation to maintain or provide any of such Customer Customer Data or TRP Data and shall thereafter, unless legally prohibited, may delete all of such Customer’s Customer Data or TRP’s Data in TapClicks systems or otherwise in TapClicks possession or under TapClicks control.
12. Limitation of Liability
- WITH THE EXCEPTION OF A PARTY’S OBLIGATION TO PROVIDE INDEMNIFICATION UNDER THIS AGREEMENT AND EACH PARTY’S CONFIDENTIALITY OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY, OR ITS LICENSORS OR SUPPLIERS BY VIRTUE OF THIS AGREEMENT, HAVE ANY LIABILITY TO ANY OTHER PARTY FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INCIDENTAL, PUNITIVE, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIMITATIONS SET FORTH IN THIS SECTION DO NOT APPLY TO ANY INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OR ITS CONTRACTORS OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. IN NO EVENT SHALL TAPCLICKS, ITS AFFILIATES OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS BE LIABLE TO RESELLER FOR MORE THAN THE AMOUNT OF ANY ACTUAL DIRECT DAMAGES UP TO THE GREATER OF U.S. $100,000.00 (OR EQUIVALENT IN LOCAL CURRENCY) OR THE CHARGES FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM, WHICHEVER IS LESSER, REGARDLESS OF THE CAUSE AND WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE. THE FOREGOING LIMITATION ON DIRECT DAMAGES SHALL NOT APPLY TO ANY BREACH BY TAPCLICKS OF ITS CONFIDENTIALITY OBLIGATIONS OR TAPCLICKS INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATIONS. THE PARTIES AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK.
- Invoices. The terms, provisions or conditions of any purchase order or other business form or written authorization used by either party will have no effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of the receiving party to object to those terms, provisions or conditions.
- Marketing Activities. Following the execution of this Agreement, the parties may issue a joint press release highlighting the relationship contemplated by this Agreement. Notwithstanding the foregoing, neither party will publish a press announcement related to this Agreement without prior written consent of the other party.
- Assignment. Neither party may assign any of its rights or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, with the prior express written consent of the other party, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, TapClicks may assign this Agreement (including all Order Forms) with notice to TRP in connection with any merger or acquisition or sale of all or substantially all of TapClicks or any of its Affiliate’s assets or stock (such notice to be delivered within thirty (30) days of such assignment). Such assignment will not in any event relieve the assignor of any obligations that accrue under this Agreement prior to any such assignment. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. Any attempted assignment in violation of this Section shall be null and void.
- Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
- Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the State of California, to its conflict of law principles. The parties irrevocably attorn to the exclusive jurisdiction of the courts of the County of Santa Clara, California.
- Compliance with Laws. Each party shall comply with all applicable laws and regulations regarding the general conduct of business including without limitation all relevant anti-corruption and anti-bribery laws, including the United States Foreign Corrupt Practices Act. TRP agrees to fully comply with all export, re-export and import restrictions and regulations of all agencies and/or authorities of any applicable countries.
- Notices. All notices, demands or consents required or permitted under this Agreement shall be in writing and delivered to the addresses set forth in in this Agreement. Notice shall be considered delivered and effective on the earlier of actual receipt or when (a) personally delivered; (b) the day following transmission if sent by telex, telegram or facsimile when followed by written confirmation by registered overnight carrier or certified mail; or (c) one (1) day after posting when sent by registered private overnight carrier (e.g., DHL, Federal Express, etc.); or (d) five (5) days after posting when sent by certified mail. Notice shall be sent to the parties at the addresses set forth in this Agreement or at such other address as shall be specified by either party to the other.
- Independent Contractors. The parties are independent contractors. This Agreement does not create a legal partnership (notwithstanding any use of the term “partner” by the parties, which if used is meant only to convey a spirit of cooperation between the parties), joint venture, agency, employee/employer, relationship, or franchisee/franchisor relationship between the parties. Neither party shall have any right, power or authority to create any obligation or responsibility on behalf of the other.
- Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
- Force Majeure. Except for each party’s obligations to pay money, neither party shall be deemed to be in breach of this Agreement for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, earthquakes, wars, terrorism, communication failures, strikes or shortages of materials.
- Headings and References. The headings and captions used in this Agreement are for convenience only and are not to be considered in construing or interpreting this Agreement.
- Counterparts. This Agreement may be executed in counterparts, both of which, when taken together, shall constitute a signed agreement binding upon the parties.
- Third-Party Beneficiaries. TRP hereby acknowledges that there may be third-party beneficiaries to this Agreement.
- TapClicks Affiliates. TapClicks may use one or more Affiliates to perform its obligations under this Agreement, provided that such use will not affect TapClicks obligations hereunder.
- Complete Understanding. This Agreement, including all Order Forms, Statements of Work and Schedules, constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.