TERMS AND CONDITIONS
Last updated: February 1, 2023
Access and Use License and Restrictions
1.1. Services “Services” means the specific and latest version of TapText’s services ordered by Client through, and as more fully described in, one or more Order Forms (defined below) to which Client is being granted access under this Agreement, including without limitation, TapText Technology (defined below) and TapText Content (defined below). Services does not include Professional Services. “Order Form” means any order form incorporated and executed by Client and TapText that describes Professional Services to be rendered by TapText to Client. “TapText Technology” means all of TapText’s proprietary technology including, but not limited to, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to Client by TapText in providing the Services. “TapText Content” means the audio and visual information, documents, software, products, and services contained or made available to Client in the course of using the Services and shall exclude all data and information that is added through Client’s use of the Services.
1.2. Access and Use License Subject to the terms and conditions of this Agreement, TapText hereby grants Client a nonexclusive, nontransferable, worldwide license to access and use the Services, solely for the marketing and/or promotion of Client’s own products and services including Client’s provision of access to the Services to Users (defined below) (the “License”).
1.3. Limitations Except as otherwise specifically agreed in writing between Client and TapText, Client may use the Services only for Client’s internal business purposes and shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or allow access or use by any third party so that it may commercially exploit the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any Services on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy ideas, features, functions or graphics of the Services; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Services or its related systems or networks.
1.4. Restrictions on Transmittal of Materials Client shall not use the Services, whether accomplished through electronic mail, Usenet postings or otherwise, to: (i) send Spam (defined below) or otherwise duplicative or unsolicited messages or posts in violation of applicable laws, including but not limited to sending messages to purchased or rented lists or other recipients who have not specifically opted in to receive such messages; (ii) send or store infringing, obscene, threatening, libelous, harassing or otherwise unlawful or tortious material, including material harmful to children or which violates a third party’s privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. In addition to any other remedies TapText has hereunder, if in TapText’s good faith judgment it believes Client has engaged or is engaging in any of such prohibited activities, (A) TapText may suspend Client’s access to the Services until the matter is resolved to the reasonable satisfaction of TapText; and (B) if Client has knowingly engaged in any of such prohibited activities, TapText may immediately terminate this Agreement without notice to Client and without refund. “Spam” means: (1) an electronic message as to which: (a) the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; and (b) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; or (2) any message the sending of which would violate U.S. or non-U.S. laws or regulations governing sending of emails to multiple recipients, including but not limited to the U.S. CAN-SPAM Act, the Canadian Anti-SPAM Legislation know as Telecom Regulatory Policy CRTC 2012-183, Council Directive 2002/58/EC, of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications) (as amended by Council Directive 2009/136/EC), and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)(“GDPR”).
Client Responsibilities
2.1. Security Client is responsible for all activity occurring under Client’s User accounts, including but not limited to user identification and passwords, and shall abide by all applicable local, state, federal, and foreign statutes, treaties and regulations in connection with Client’s use of the Services, including those related to data privacy, cross-border data transfers, international communications, and the transmission of technical or personal data. Client shall implement generally accepted industry standards for securing its applications, infrastructure and Client Content (defined below).
2.2. Current Client Information Client shall provide Tap Text with Client’s legal name, address and phone number and shall notify TapText of any changes in this information so that at all times TapText’s records regarding Client are current.
Client Content; Security
3.1. Client Content TapText does not own any Client Content. Client, not TapText, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use all Client Content, and TapText shall not be responsible or liable to monitor, correct, delete or restore any Client Content that has been created, damaged, destroyed or lost by Client, or that Client has failed to properly save or store, in its use of the Services. “Client Content” means any data, information, or material provided or submitted by or on behalf of Client, or by Users in the course of using the Service.
3.2. Security TapText shall comply with all applicable statutes, regulations, ordinances and official governmental directives for protecting the privacy of personally identifiable information (“PII”) in Client Content. In the case of any legal or regulatory obligation of TapText to disclose Client Content, TapText shall (i) promptly notify and cooperate with Client; (ii) limit any disclosure to the minimum required by law; and (iii) to the extent possible, request that such information be kept confidential.
Intellectual Property Ownership
4.1. Ownership by Client; Acknowledgments by TapText Client (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights (defined below), in and to Client Content. TapText acknowledges it will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of Client’s (and, where applicable, its licensors’) right, title and interest in connection with Client’s Intellectual Property Rights in Client Content. TapText shall not represent that it has any ownership in Client’s Intellectual Property Rights in Client Content. TapText agrees that it shall not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of Client’s ownership of Intellectual Property Rights in Client Content. “Intellectual Property Rights” means any rights to unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature.
4.2. Ownership by TapText; Acknowledgments by Client With the exception of Client Content, TapText (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Services and any suggestions, enhancement requests, feedback, recommendations, or other information provided by Client relating to the Services. Client acknowledges it will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of TapText’s (and, where applicable, its licensors’) right, title and interest in connection with TapText’s Intellectual Property Rights in the Services. Client shall not represent that it has any ownership in TapText’s Intellectual Property Rights in the Services. Client agrees that it shall not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of (i) TapText’s ownership of Intellectual Property Rights in the Services or (ii) the License granted herein.
4.3. Trademarks Each Party acknowledges that the other Party is the sole owner of its respective trade names, service marks, slogans, logos and other trademarks (the “Marks”), and nothing herein is intended to imply or grant a license or other rights to the counter Party with respect to such Marks, except as specifically agreed to herein or in writing by the owning Party. Client hereby agrees that TapText may display Client’s Marks on TapText’s website and marketing materials.
Third-Parties
5.1. Third-Party Interactions During use of the Services, Client or Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors who advertise or sell their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Client or User and the applicable third party. TapText and its licensors shall have no liability, obligation, or responsibility for any such correspondence, exchange of data, purchase, or promotion between any Client or User and any such third party. TapText does not endorse any third-party content accessible through the Services. TapText may provide Client or Users access to third-party content only as a matter of convenience, and in no event shall TapText or its licensors be responsible for any content, products, or other materials on or available from such third parties. TapText provides the Services to Client pursuant to the terms and conditions of this Agreement; however, Client acknowledges that certain third-party providers of ancillary software, hardware, content, goods or services may require Client or a User to agree to additional or different licenses or other terms prior to Client’s or User’s use of, purchase of, or access to such software, hardware, content, goods or services.
5.2. Third-Party Service Integration Certain features of the Services may permit Client to interact with services available to Client through third parties, including but not limited to, social media platforms (such third-party services referred to herein as “Third-Party Services” and the functionality that is part of the Services and that causes the Services to interact with Third-Party Services is referred to herein as “Third-Party Service Integration”). If Third-Party Service Integration is made available to Client, Client acknowledges and agrees that (i) it may only integrate TapText’s Services with Third-Party Services that Client has a right to access; (ii) TapText has no control over the Third-Party Service and makes no representation or warranty that the Third-Party Service Integration will function without interruption, will perform with any degree of reliability or will always be available; (iii) TapText makes no representation or warranty that Client will realize any results from utilizing Third-Party Service Integration; (iv) it shall identify, agree to and comply with any and all terms and conditions of use imposed by a Third-Party Services; and (v) TapText may suspend or terminate Client’s ability to utilize Third-Party Service Integration if, at TapText’s sole discretion, TapText determines that providing Third-Party Service Integration or Client’s use of the Third-Party Service Integration may cause TapText to violate any agreement with any third party including any license or terms of use that pertain to a Third-Party Service, and that such suspension or termination shall not be deemed a breach of the terms of this Agreement.
Services; Professional Services
6.1. Master Agreement Order Form. This Agreement is a master agreement that anticipates the issuance of one or more Order Forms and sets forth the terms and conditions pursuant to which TapText will provide Client with the Services and, if applicable, professional services as described in an Order Form (“Professional Services”). Once signed by Client and TapText, any Order Form shall be binding upon the Parties. Each fully signed Order Form is hereby incorporated herein and made part of this Agreement by reference, and each Order Form shall be subject to all terms and conditions of this Agreement. In the event a term set forth in an Order Form is inconsistent or conflicts with a term of this Agreement, with respect to only that Order Form, the conflicting term as set forth in the Order Form will control; however, in all other regards the terms of this Agreement will control to the fullest extent.
6.2. Manner of Performance Unless otherwise provided in an applicable Order Form, TapText will retain sole and exclusive right to control or direct the manner or means by which the Professional Services and Services are performed and may subcontract or assign any or all its obligations and rights under this Agreement. Any such subcontract or assignment is subject to Client’s consent, which consent shall not be unreasonably withheld or delayed.
6.3. Professional Services During the term of this Agreement, TapText, in its sole discretion, may provide Professional Services to Client pursuant to and in accordance with one or more separate written Order Form. Each Order Form shall reference this Agreement and specify the details of the particular Professional Services to be performed under such Order Form and the compensation to be paid for such Professional Services. All Professional Services provided under this Agreement shall be performed in a professional and competent manner, in compliance with applicable laws, regulations and specifications, and in conformity with applicable industry and professional standards.
(a) Compensation The rate and schedule for payments of compensation for Professional Services shall be set forth in each Order Form. Unless otherwise provided in the applicable Order Form, Professional Services will be provided on a time and materials basis, plus expenses as set forth in paragraph (b) immediately below, and will be invoiced monthly. Client shall make payments within thirty (30) days after TapText sends Client an invoice or otherwise requests payment in accordance with the schedule set forth in the applicable Order Form.
(b) Expenses Unless otherwise provided in an applicable Order Form, Client shall reimburse TapText for (i) all written pre-approved reasonable out of pocket expenses (such as transportation, meals and lodging) incurred relating to travel to and from the project site or any other location requested by Client and (ii) any pre-approved expenses and disbursements incurred by TapText in the performance of the Professional Services.
(c) Client Data and Information Client shall make available in a timely manner, all data, files, documentation, or other information and resources reasonably required by TapText for the performance of the Professional Services. Client will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Client
Billing and Payment of Fees
7.1. Fees In consideration for the Services and Professional Services provided herein and other obligations of TapText expressed in this Agreement, Client shall pay TapText the fees stated in an applicable Order Form plus any expenses set forth hereunder (the “Fees”). All Fees or other terms related to Fees are Confidential Information (as hereinafter defined), and Client agrees not to disclose them to any third party, except its attorneys and/or accountants, as warranted.
7.2. Payment Terms All Fees shall be due and payable as set forth in the applicable Order Form. Except in the event of a good faith dispute over Fees, which is evidenced in writing by notice from Client to TapText within 30 days of TapText’s invoice therefor (a “Good Faith Claim”), any Fees received by TapText after the due date shall be subject to a late fee equal to two percent (2%) per month, or, if less, the maximum amount allowed by applicable law. Client shall also be responsible for any and all collections fees, including reasonable attorney’s fees, costs of suit, expert fees, deposition fees and court costs, incurred by TapText to collect any sums due hereunder. In the event of a Good Faith Claim, Client shall promptly make payment on all Fees under the applicable invoice not subject to the Good Faith Claim, and proceed diligently to resolve the dispute with TapText, including elevation of the issue to executive-level authorized representatives of Client. Unless otherwise agreed in writing, TapText’s acceptance of partial payments shall not waive any of TapText’s rights to full payment or other remedies.
7.3. Taxes All Fees are payable in United States dollars and are exclusive of any and all applicable taxes and duties including without limitation, excise taxes, sales and use taxes and gross tax receipts (each, a “Tax” and collectively, “Taxes”) assessed to Client, and Client is responsible for payment of such Taxes. TapText may charge, and Client shall pay, applicable Taxes that TapText is legally obligated or allowed to collect from Client. TapText will not collect, and Client will not pay, any Taxes for which Client furnishes TapText a properly completed exemption certificate or a direct payment permit certificate for which TapText may claim an available exemption from such Tax.
Nonpayment and Suspension
In addition to any other rights granted to TapText herein, TapText reserves the right to suspend Client’s License to access and use the Services if Client’s account not subject to a Good Faith Claim becomes delinquent for more than sixty (60) days. During any period of suspension due to delinquent Fees, Client will continue to be charged for the Services. TapText reserves the right to impose a reconnection fee in the event the Services and Client’s License are suspended and thereafter Client requests access to the Services.
Term and Termination
9.1. Term The term of this Agreement shall commence on the Effective Date and expire at the end of the term set forth in the Order Form entered into contemporaneously with this Agreement (the “Initial Term”). On expiration of each Term, this Agreement shall automatically renew for additional period(s) for the same duration as the Initial Term (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless (a) earlier terminated as set forth hereunder, or (b) either Party gives the other Party written notice of its intent not to renew any such Service at least ten (10) days prior to the expiration of the current Term. Unless otherwise agreed between TapText and Client in writing, the term for any Services stated in any Order Form shall coincide with the expiration of the current Term.
9.2. Early Termination Client shall have a one-time right to terminate this Agreement on the 90th day anniversary of the Effective Date (the ‘Early Termination Date”) by providing TapText written notice at least 15 days prior to the Early Termination Date. Either Party may terminate this Agreement, any Order Form hereunder by giving to the other Party written notice of such termination upon (i) the other Party’s (a) material breach of any material term (subject to the other Party’s right to cure within fifteen (15) days after receipt of such notice) of this Agreement, any Order Form; or (b) insolvency, or the institution of any bankruptcy or similar proceedings by or against the other Party. Any breach of Client’s payment obligations or unauthorized use of the Services will be deemed a material breach of this Agreement.
9.3. Effect of Termination Upon any termination of this Agreement the following shall apply:
(a) All licenses granted herein and all access to the Services shall terminate, and TapText shall terminate all user identifications and passwords;
(b) Client Content will be available to Client, upon request, for a period of thirty (30) days after the effective date of termination. Client agrees and acknowledges that TapText has no obligation to retain Client Content, and may delete such Client Content, at any time after thirty (30) days after termination;
(c) In the event any Order Form is still in effect as of the date of termination, the terms of this Agreement shall continue to apply to all such Order Form until completed or terminated;
(d) Except where this Agreement is terminated by Client due to TapText’s breach pursuant, Client agrees that Client’s obligations to pay amounts incurred prior to the effective date of termination (including all monthly payments for the subscription period stated in the Order Form) shall continue in full force and effect and must be paid in accordance with this Agreement notwithstanding the expiration or termination of this Agreement or any Order Form. Without limiting the generality of the foregoing, if TapText terminates this Agreement due to Client’s breach or if Client terminates this Agreement in a manner inconsistent with this Section, all fees set forth in the Order Form will be immediately due and payable. Failure to pay or delay in paying such fees will be subject to all applicable late payment charges, collection costs and other rights of TapText set forth in this Agreement.
(e) Client acknowledges that (A) TapText incurs substantial front end costs with implementing Client’s use of the Services, (B) any implementation fees indicated on an Order Form may only represent a portion of such front end costs, with the remainder figured into the monthly fees charged throughout the Initial Term, and (C) in the event of termination prior to the end of the Initial Term, TapText will not have recouped its full costs of implementation. As such, Client agrees that, in the event of termination prior to the end of the Initial Term, TapText shall have the right to charge Client, and Client will pay, any implementation costs of TapText not recouped by TapText prior to the effective date of termination; and
(f) Any termination is without prejudice to any other remedies provided for in this Agreement or otherwise available to the Parties at law or in equity.
Confidentiality
10.1. Confidential Information Each Party (the “Receiving Party”) agrees to keep in confidence all information it receives from the other Party (the “Disclosing Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information of the Disclosing Party may be disclosed by the Receiving Party in confidence to its employees on a need-to-know basis only and on the condition that it is not to be copied or used for any other purposes than the purpose for which it is provided in connection with this Agreement. Neither Party will disclose the other Party's information to third parties (other than its equity holders, directors, managers, officers, employees, attorneys, accountants, and advisors who have a need to know (collectively, “Representatives”) without the prior written consent of the Disclosing Party specifically identifying the information that may be disclosed, the parties to whom it may be disclosed and the permitted purposes for which it may be disclosed. Confidential Information does not include information that (a) is already in the public domain or becomes generally available to the public other than as a result of disclosure by the Receiving Party or its Representatives in breach of this Agreement, (b) was independently developed by the Receiving Party or its Representatives without use or reference to the Confidential Information, (c) is communicated to the Receiving Party or its Representatives on a non-confidential basis by a third party other than the disclosing party or its Representatives without such communication being in violation of any legal, regulatory, or contractual obligation, (d) was already known by the Receiving Party or its Representatives prior to receipt and without a confidentiality obligation; or (e) is required to be disclosed by law, subpoena or other process, provided the Receiving Party notifies the Disclosing Party in advance if legally permitted to do so and reasonably cooperates in any effort to obtain confidential treatment, at no expense to the Receiving Party. The Receiving Party shall immediately notify the Disclosing Party upon discovery of any potential unauthorized disclosure of the Disclosing Party’s Confidential Information. Upon the disclosing Party’s written request, the receiving Party shall return or destroy all copies of the disclosing Party’s Confidential Information and certify promptly in writing that it has done so.
10.2. ECPA Notice TapText reserves the right to monitor communications transmitted through and using the Services in order to assure system integrity, efficiency, and effectiveness. In the event that TapText receives a facially legitimate, written request for access to information of Client (confidential or otherwise) from a federal or state government entity with responsibility for law enforcement, homeland security or national defense, TapText will comply with the request to the extent that appears reasonable to TapText, provided that TapText complies with the notice requirements hereunder. Client understands these are TapText’s practices and consents to them. Except as expressly set forth in this paragraph, nothing herein shall be interpreted to alter the obligations of confidentiality set forth hereunder.
Support; Limited Warranties; Disclaimers
11.1. Support TapText will automatically provide updates to the latest version of the Services, at which point it will no longer provide support for any earlier version of the Services. Client support related to the Services shall be available by contacting jcurl@taptext.com 678-488-7236.
11.2. Limited Warranties
(a) Services The ongoing hosting, maintenance, support and other services that may be provided by TapText pursuant to the terms of this Agreement shall be performed in a professional and workmanlike manner in accordance with recognized industry standards. IN THE EVENT THAT SERVICES PROVIDED HEREUNDER FAIL TO CONFORM TO THE FOREGOING WARRANTY, COMPANY’S SOLE OBLIGATION, AND CLIENT’S SOLE REMEDY, SHALL BE FOR COMPANY TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT SUCH NONCONFORMITY. NOTWITHSTANDING ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES GRANTED UNDER ANY OF THE TERMS OF THIS AGREEMENT, COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY OR FUNCTIONALITY OF THE THIRD-PARTY SERVICE INTEGRATION FEATURE OF THE SERVICES, WHICH FEATURE IS MADE AVAILABLE TO CLIENT AS-IS.
(b) Professional Services The Professional Services provided under this Agreement and any Order Form will be performed in a professional and workman-like manner conforming to generally accepted industry standards and practices.
(c) Warranty Disclaimer EXCEPT FOR THE FOREGOING, COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY SERVICES FURNISHED OR PROVIDED TO CLIENT OR ANY USER UNDER THIS AGREEMENT OR THE RESULTS THEREOF. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
(d) No employee, agent, representative, or affiliate of TapText has authority to bind TapText to any oral representations or warranty concerning the Services. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
11.3. Additional Disclaimers TapText exercises no control whatsoever over Client Content or any other information passed through the Services by Client, over providers of Third-Party Services or over Users who access the Services with or without Client’s authorization. COMPANY DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT OR USERS IN USING THE SERVICES, OR THAT THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA OTHER THAN AS IDENTIFIED IN THIS AGREEMENT, OR THAT THE SERVICES WILL MEET CLIENT’S OR ANY USER’S REQUIREMENTS. TapText may provide informational materials and/or samples of language that Client may use with certain Services (the “Materials”). Such Materials are provided to Client for informational purposes only and do not constitute legal advice by TapText. Client acknowledges that the Materials do not constitute legal advice and that Client will consult its own counsel to obtain legal advice related to any Materials.
Indemnification
12.1. Indemnification by Client Client shall indemnify and hold TapText, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (each, a “Claim”) arising out of or in connection with: (i) a claim alleging that Client Content infringes the Intellectual Property Rights of, or has caused harm to, a third party; (ii) the breach of this Agreement by Client or a User; (iii) Client’s or a User’s misuse of the Services; and (iv) Client’s use of the Services in violation of any law, regulation or government order including, but not limited to, those that relate to email or text message solicitations and advertising, data privacy, or cross-border data transfers.
12.2. Indemnification by TapText TapText shall indemnify and hold Client, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all Claims arising out of or in connection with (i) a claim alleging that the Services delivered by TapText in accordance with the terms of this Agreement infringe the Intellectual Property Rights of any third party; (ii) the breach of this Agreement by TapText; and (iii) Client’s use of the Services in a manner that does not violate the terms of this Agreement.
12.3. Conditions to Indemnification The indemnity obligations of each Party set forth hereunder are contingent upon (i) the indemnitee giving prompt written notice to the indemnitor of any such Claim(s); (ii) the indemnitee giving the indemnitor sole control of the defense of any such Claim; (iii) the indemnitee not entering into any settlement or compromise of any such Claim without the indemnitor’s written approval; and (iv) at the indemnitor’s request and expense, the indemnitee cooperating in the investigation and defense of such Claim(s).
12.4. Exclusions Relating to Infringement Indemnification; TapText’s Options TapText will have no obligation to indemnify Client to the extent any such Claim is based on (a) the use of the Services in a manner other than as specified in this Agreement or in TapText published documentation; (b) any use by Client in combination with other products, equipment, software or systems not supplied by TapText to the extent such Claim is directed against such combination. Should TapText’s software or any part of the Services provided by TapText hereunder become, or in TapText’s opinion is likely to become, the subject of any such Claim, TapText may at its option: (i) procure for Client the right to continue to use the affected Services as contemplated hereunder; (ii) replace or modify the affected Services to make its use non-infringing; or (iii) should such options not be available at reasonable expense, terminate this Agreement with respect to the affected Services and refund to Client the prorated amount of any fees prepaid by Client that were to apply to the remainder of the unexpired term.
Limitations of Liability
13.1. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS OR SUBCONTRACTORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING COST OF COVER, BUSINESS INTERRUPTION, LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THE PROFESSIONAL SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, THE PARTIES SPECIFICALLY AGREE THAT, EXCEPT WITH RESPECT TO EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14 ABOVE, IN NO EVENT SHALL COMPANY’S AND ITS SUBCONTRACTORS’ AGGREGATE LIABILITY (A) WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (B) WITH RESPECT TO THE PROFESSIONAL SERVICES PROVIDED HEREUNDER, EXCEED THE FEES ACTUALLY PAID BY CLIENT WITH RESPECT TO THE APPLICABLE ORDER FORM.
13.3. The provisions of this Section allocate risks under this Agreement between Client and TapText. TapText’s pricing reflects this allocation of risk and limitation of liabilities.
13.4. No action arising out of any breach or claimed breach of this Agreement or the transactions contemplated by this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
Internet Delays
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Additional Rights
15.1. Certain states and/or jurisdictions do not allow the exclusion of implied warranties o limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply.
General Terms
16.1. Notice All notices and demands of any kind which either Party may be required to serve upon the other Party under the terms of this Agreement shall be in writing and shall be served upon such other Party by nationally recognized overnight courier providing a receipt for delivery, by certified or registered mail, postage prepaid, with return receipt requested, or by personal delivery at the applicable address set forth below or to such other address as that Party may designate in writing. Notices will be deemed effective upon the date of receipt (or refusal of delivery).
16.2. Independent Contractor It is understood and agreed that the Parties will act solely as independent contractors. Nothing in this Agreement will be construed to create an employment relationship, a partnership or a joint venture between Client and TapText. Client and TapText are not agents of each other, and have no authority to bind, represent, or speak for each other or their respective divisions, subsidiaries, or affiliates.
16.3. Assignment; Change in Control Neither Party shall have the right to assign its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party; provided that TapText shall be permitted to assign this Agreement to any entity that controls, is controlled by, or is under common control with TapText or in connection with a merger, acquisition, reorganization, or similar corporate transaction upon written notice to Client.
16.4. Force Majeure If either Party’s failure to comply with any obligation under this Agreement is caused in whole or in part by one or more Force Majeure Events, such failure shall not constitute a breach of this Agreement, and such failure shall be excused for as long as such failure is caused in whole or in part by such Force Majeure Events. The Party claiming that a Force Majeure Event caused such failure must notify the other Party in writing promptly after such Party becomes aware of the Force Majeure Event. If any Force Majeure Event causes the suspension of a material obligation of either Party to the Agreement for more than 30 days, the other Party shall have the right to terminate this Agreement with immediate effect by delivery of written notice thereof. “Force Majeure Event” means labor disputes; riots or other civil disturbances; wars, coups, or invasions; governmental regulations; fires, floods, and other casualties; pandemics; acts of God, and other similar circumstances beyond the reasonable control of such Party.
16.5. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its choice of law provisions. The Parties irrevocably submit to the exclusive jurisdiction of the federal or state courts located in Broward County, Florida in connection with any disputes arising under this Agreement and waive any defense based on lack of jurisdiction, improper venue, or forum non convenience.
16.6. No Waiver No waiver by either Party of a breach of any provision of this Agreement shall be effective unless made in writing by the waiving party and no such waiver shall be construed as a waiver of any subsequent or different breach. No forbearance by a Party to seek a remedy for noncompliance or breach by the other Party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach.
16.7. Severability The illegality, invalidity, or unenforceability of any provision of this Agreement (as determined by a court of competent jurisdiction) shall not affect the legality, validity, or unenforceability of the remaining provisions, and this Agreement shall be construed in all respects as if any illegal, invalid, or unenforceable provision were omitted.
16.8. Counterparts This Agreement may be executed by facsimile, PDF, or electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16.9. Headings The paragraph headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.
16.10. Survival The provisions of this Agreement that by their nature continue and survive shall survive any expiration or termination of this Agreement.
16.11. Entire Agreement This Agreement, together with any applicable Order Form, constitute the entire understanding of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter. This Agreement may only be amended or modified in writing signed by authorized representatives of each Party. Unless otherwise agreed by both parties in writing, the terms of this Agreement shall apply to all Services provided to Client, irrespective of expiration or termination of the Term.
THESE TERMS OF SERVICE ARE EFFECTIVE FOR ALL ORDERS ENTERED Custom JS/HTML INTO ON OR AFTER AUGUST 30, 2020.
Access and Use License and Restrictions
1.1. Services “Services” means the specific and latest version of TapText’s services ordered by Client through, and as more fully described in, one or more Order Forms (defined below) to which Client is being granted access under this Agreement, including without limitation, TapText Technology (defined below) and TapText Content (defined below). Services does not include Professional Services. “Order Form” means any order form incorporated and executed by Client and TapText that describes Professional Services to be rendered by TapText to Client. “TapText Technology” means all of TapText’s proprietary technology including, but not limited to, software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information made available to Client by TapText in providing the Services. “TapText Content” means the audio and visual information, documents, software, products, and services contained or made available to Client in the course of using the Services and shall exclude all data and information that is added through Client’s use of the Services.
1.2. Access and Use License Subject to the terms and conditions of this Agreement, TapText hereby grants Client a nonexclusive, nontransferable, worldwide license to access and use the Services, solely for the marketing and/or promotion of Client’s own products and services including Client’s provision of access to the Services to Users (defined below) (the “License”).
1.3. Limitations Except as otherwise specifically agreed in writing between Client and TapText, Client may use the Services only for Client’s internal business purposes and shall not (i) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or allow access or use by any third party so that it may commercially exploit the Services in any way; (ii) modify or make derivative works based upon the Services; (iii) create Internet “links” to the Services or “frame” or “mirror” any Services on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy ideas, features, functions or graphics of the Services; (v) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (vi) attempt to gain unauthorized access to the Services or its related systems or networks.
1.4. Restrictions on Transmittal of Materials Client shall not use the Services, whether accomplished through electronic mail, Usenet postings or otherwise, to: (i) send Spam (defined below) or otherwise duplicative or unsolicited messages or posts in violation of applicable laws, including but not limited to sending messages to purchased or rented lists or other recipients who have not specifically opted in to receive such messages; (ii) send or store infringing, obscene, threatening, libelous, harassing or otherwise unlawful or tortious material, including material harmful to children or which violates a third party’s privacy rights; or (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs. In addition to any other remedies TapText has hereunder, if in TapText’s good faith judgment it believes Client has engaged or is engaging in any of such prohibited activities, (A) TapText may suspend Client’s access to the Services until the matter is resolved to the reasonable satisfaction of TapText; and (B) if Client has knowingly engaged in any of such prohibited activities, TapText may immediately terminate this Agreement without notice to Client and without refund. “Spam” means: (1) an electronic message as to which: (a) the recipient’s personal identity and context are irrelevant because the message is equally applicable to many other potential recipients; and (b) the recipient has not verifiably granted deliberate, explicit, and still-revocable permission for it to be sent; or (2) any message the sending of which would violate U.S. or non-U.S. laws or regulations governing sending of emails to multiple recipients, including but not limited to the U.S. CAN-SPAM Act, the Canadian Anti-SPAM Legislation know as Telecom Regulatory Policy CRTC 2012-183, Council Directive 2002/58/EC, of the European Parliament and of the Council of 12 July 2002 Concerning the Processing of Personal Data and the Protection of Privacy in the Electronic Communications Sector (Directive on Privacy and Electronic Communications) (as amended by Council Directive 2009/136/EC), and Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation)(“GDPR”).
Client Responsibilities
2.1. Security Client is responsible for all activity occurring under Client’s User accounts, including but not limited to user identification and passwords, and shall abide by all applicable local, state, federal, and foreign statutes, treaties and regulations in connection with Client’s use of the Services, including those related to data privacy, cross-border data transfers, international communications, and the transmission of technical or personal data. Client shall implement generally accepted industry standards for securing its applications, infrastructure and Client Content (defined below).
2.2. Current Client Information Client shall provide Tap Text with Client’s legal name, address and phone number and shall notify TapText of any changes in this information so that at all times TapText’s records regarding Client are current.
Client Content; Security
3.1. Client Content TapText does not own any Client Content. Client, not TapText, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use all Client Content, and TapText shall not be responsible or liable to monitor, correct, delete or restore any Client Content that has been created, damaged, destroyed or lost by Client, or that Client has failed to properly save or store, in its use of the Services. “Client Content” means any data, information, or material provided or submitted by or on behalf of Client, or by Users in the course of using the Service.
3.2. Security TapText shall comply with all applicable statutes, regulations, ordinances and official governmental directives for protecting the privacy of personally identifiable information (“PII”) in Client Content. In the case of any legal or regulatory obligation of TapText to disclose Client Content, TapText shall (i) promptly notify and cooperate with Client; (ii) limit any disclosure to the minimum required by law; and (iii) to the extent possible, request that such information be kept confidential.
Intellectual Property Ownership
4.1. Ownership by Client; Acknowledgments by TapText Client (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights (defined below), in and to Client Content. TapText acknowledges it will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of Client’s (and, where applicable, its licensors’) right, title and interest in connection with Client’s Intellectual Property Rights in Client Content. TapText shall not represent that it has any ownership in Client’s Intellectual Property Rights in Client Content. TapText agrees that it shall not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of Client’s ownership of Intellectual Property Rights in Client Content. “Intellectual Property Rights” means any rights to unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature.
4.2. Ownership by TapText; Acknowledgments by Client With the exception of Client Content, TapText (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related Intellectual Property Rights, in and to the Services and any suggestions, enhancement requests, feedback, recommendations, or other information provided by Client relating to the Services. Client acknowledges it will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of TapText’s (and, where applicable, its licensors’) right, title and interest in connection with TapText’s Intellectual Property Rights in the Services. Client shall not represent that it has any ownership in TapText’s Intellectual Property Rights in the Services. Client agrees that it shall not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of (i) TapText’s ownership of Intellectual Property Rights in the Services or (ii) the License granted herein.
4.3. Trademarks Each Party acknowledges that the other Party is the sole owner of its respective trade names, service marks, slogans, logos and other trademarks (the “Marks”), and nothing herein is intended to imply or grant a license or other rights to the counter Party with respect to such Marks, except as specifically agreed to herein or in writing by the owning Party. Client hereby agrees that TapText may display Client’s Marks on TapText’s website and marketing materials.
Third-Parties
5.1. Third-Party Interactions During use of the Services, Client or Users may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors who advertise or sell their goods and/or services through the Services. Any such activity, and any terms, conditions, warranties, or representations associated with such activity, is solely between Client or User and the applicable third party. TapText and its licensors shall have no liability, obligation, or responsibility for any such correspondence, exchange of data, purchase, or promotion between any Client or User and any such third party. TapText does not endorse any third-party content accessible through the Services. TapText may provide Client or Users access to third-party content only as a matter of convenience, and in no event shall TapText or its licensors be responsible for any content, products, or other materials on or available from such third parties. TapText provides the Services to Client pursuant to the terms and conditions of this Agreement; however, Client acknowledges that certain third-party providers of ancillary software, hardware, content, goods or services may require Client or a User to agree to additional or different licenses or other terms prior to Client’s or User’s use of, purchase of, or access to such software, hardware, content, goods or services.
5.2. Third-Party Service Integration Certain features of the Services may permit Client to interact with services available to Client through third parties, including but not limited to, social media platforms (such third-party services referred to herein as “Third-Party Services” and the functionality that is part of the Services and that causes the Services to interact with Third-Party Services is referred to herein as “Third-Party Service Integration”). If Third-Party Service Integration is made available to Client, Client acknowledges and agrees that (i) it may only integrate TapText’s Services with Third-Party Services that Client has a right to access; (ii) TapText has no control over the Third-Party Service and makes no representation or warranty that the Third-Party Service Integration will function without interruption, will perform with any degree of reliability or will always be available; (iii) TapText makes no representation or warranty that Client will realize any results from utilizing Third-Party Service Integration; (iv) it shall identify, agree to and comply with any and all terms and conditions of use imposed by a Third-Party Services; and (v) TapText may suspend or terminate Client’s ability to utilize Third-Party Service Integration if, at TapText’s sole discretion, TapText determines that providing Third-Party Service Integration or Client’s use of the Third-Party Service Integration may cause TapText to violate any agreement with any third party including any license or terms of use that pertain to a Third-Party Service, and that such suspension or termination shall not be deemed a breach of the terms of this Agreement.
Services; Professional Services
6.1. Master Agreement Order Form. This Agreement is a master agreement that anticipates the issuance of one or more Order Forms and sets forth the terms and conditions pursuant to which TapText will provide Client with the Services and, if applicable, professional services as described in an Order Form (“Professional Services”). Once signed by Client and TapText, any Order Form shall be binding upon the Parties. Each fully signed Order Form is hereby incorporated herein and made part of this Agreement by reference, and each Order Form shall be subject to all terms and conditions of this Agreement. In the event a term set forth in an Order Form is inconsistent or conflicts with a term of this Agreement, with respect to only that Order Form, the conflicting term as set forth in the Order Form will control; however, in all other regards the terms of this Agreement will control to the fullest extent.
6.2. Manner of Performance Unless otherwise provided in an applicable Order Form, TapText will retain sole and exclusive right to control or direct the manner or means by which the Professional Services and Services are performed and may subcontract or assign any or all its obligations and rights under this Agreement. Any such subcontract or assignment is subject to Client’s consent, which consent shall not be unreasonably withheld or delayed.
6.3. Professional Services During the term of this Agreement, TapText, in its sole discretion, may provide Professional Services to Client pursuant to and in accordance with one or more separate written Order Form. Each Order Form shall reference this Agreement and specify the details of the particular Professional Services to be performed under such Order Form and the compensation to be paid for such Professional Services. All Professional Services provided under this Agreement shall be performed in a professional and competent manner, in compliance with applicable laws, regulations and specifications, and in conformity with applicable industry and professional standards.
(a) Compensation The rate and schedule for payments of compensation for Professional Services shall be set forth in each Order Form. Unless otherwise provided in the applicable Order Form, Professional Services will be provided on a time and materials basis, plus expenses as set forth in paragraph (b) immediately below, and will be invoiced monthly. Client shall make payments within thirty (30) days after TapText sends Client an invoice or otherwise requests payment in accordance with the schedule set forth in the applicable Order Form.
(b) Expenses Unless otherwise provided in an applicable Order Form, Client shall reimburse TapText for (i) all written pre-approved reasonable out of pocket expenses (such as transportation, meals and lodging) incurred relating to travel to and from the project site or any other location requested by Client and (ii) any pre-approved expenses and disbursements incurred by TapText in the performance of the Professional Services.
(c) Client Data and Information Client shall make available in a timely manner, all data, files, documentation, or other information and resources reasonably required by TapText for the performance of the Professional Services. Client will be responsible for, and assumes the risk of any problems resulting from, the content, accuracy, completeness and consistency of all such data, materials and information supplied by Client
Billing and Payment of Fees
7.1. Fees In consideration for the Services and Professional Services provided herein and other obligations of TapText expressed in this Agreement, Client shall pay TapText the fees stated in an applicable Order Form plus any expenses set forth hereunder (the “Fees”). All Fees or other terms related to Fees are Confidential Information (as hereinafter defined), and Client agrees not to disclose them to any third party, except its attorneys and/or accountants, as warranted.
7.2. Payment Terms All Fees shall be due and payable as set forth in the applicable Order Form. Except in the event of a good faith dispute over Fees, which is evidenced in writing by notice from Client to TapText within 30 days of TapText’s invoice therefor (a “Good Faith Claim”), any Fees received by TapText after the due date shall be subject to a late fee equal to two percent (2%) per month, or, if less, the maximum amount allowed by applicable law. Client shall also be responsible for any and all collections fees, including reasonable attorney’s fees, costs of suit, expert fees, deposition fees and court costs, incurred by TapText to collect any sums due hereunder. In the event of a Good Faith Claim, Client shall promptly make payment on all Fees under the applicable invoice not subject to the Good Faith Claim, and proceed diligently to resolve the dispute with TapText, including elevation of the issue to executive-level authorized representatives of Client. Unless otherwise agreed in writing, TapText’s acceptance of partial payments shall not waive any of TapText’s rights to full payment or other remedies.
7.3. Taxes All Fees are payable in United States dollars and are exclusive of any and all applicable taxes and duties including without limitation, excise taxes, sales and use taxes and gross tax receipts (each, a “Tax” and collectively, “Taxes”) assessed to Client, and Client is responsible for payment of such Taxes. TapText may charge, and Client shall pay, applicable Taxes that TapText is legally obligated or allowed to collect from Client. TapText will not collect, and Client will not pay, any Taxes for which Client furnishes TapText a properly completed exemption certificate or a direct payment permit certificate for which TapText may claim an available exemption from such Tax.
Nonpayment and Suspension
In addition to any other rights granted to TapText herein, TapText reserves the right to suspend Client’s License to access and use the Services if Client’s account not subject to a Good Faith Claim becomes delinquent for more than sixty (60) days. During any period of suspension due to delinquent Fees, Client will continue to be charged for the Services. TapText reserves the right to impose a reconnection fee in the event the Services and Client’s License are suspended and thereafter Client requests access to the Services.
Term and Termination
9.1. Term The term of this Agreement shall commence on the Effective Date and expire at the end of the term set forth in the Order Form entered into contemporaneously with this Agreement (the “Initial Term”). On expiration of each Term, this Agreement shall automatically renew for additional period(s) for the same duration as the Initial Term (each a “Renewal Term,” and together with the Initial Term, the “Term”), unless (a) earlier terminated as set forth hereunder, or (b) either Party gives the other Party written notice of its intent not to renew any such Service at least ten (10) days prior to the expiration of the current Term. Unless otherwise agreed between TapText and Client in writing, the term for any Services stated in any Order Form shall coincide with the expiration of the current Term.
9.2. Early Termination Client shall have a one-time right to terminate this Agreement on the 90th day anniversary of the Effective Date (the ‘Early Termination Date”) by providing TapText written notice at least 15 days prior to the Early Termination Date. Either Party may terminate this Agreement, any Order Form hereunder by giving to the other Party written notice of such termination upon (i) the other Party’s (a) material breach of any material term (subject to the other Party’s right to cure within fifteen (15) days after receipt of such notice) of this Agreement, any Order Form; or (b) insolvency, or the institution of any bankruptcy or similar proceedings by or against the other Party. Any breach of Client’s payment obligations or unauthorized use of the Services will be deemed a material breach of this Agreement.
9.3. Effect of Termination Upon any termination of this Agreement the following shall apply:
(a) All licenses granted herein and all access to the Services shall terminate, and TapText shall terminate all user identifications and passwords;
(b) Client Content will be available to Client, upon request, for a period of thirty (30) days after the effective date of termination. Client agrees and acknowledges that TapText has no obligation to retain Client Content, and may delete such Client Content, at any time after thirty (30) days after termination;
(c) In the event any Order Form is still in effect as of the date of termination, the terms of this Agreement shall continue to apply to all such Order Form until completed or terminated;
(d) Except where this Agreement is terminated by Client due to TapText’s breach pursuant, Client agrees that Client’s obligations to pay amounts incurred prior to the effective date of termination (including all monthly payments for the subscription period stated in the Order Form) shall continue in full force and effect and must be paid in accordance with this Agreement notwithstanding the expiration or termination of this Agreement or any Order Form. Without limiting the generality of the foregoing, if TapText terminates this Agreement due to Client’s breach or if Client terminates this Agreement in a manner inconsistent with this Section, all fees set forth in the Order Form will be immediately due and payable. Failure to pay or delay in paying such fees will be subject to all applicable late payment charges, collection costs and other rights of TapText set forth in this Agreement.
(e) Client acknowledges that (A) TapText incurs substantial front end costs with implementing Client’s use of the Services, (B) any implementation fees indicated on an Order Form may only represent a portion of such front end costs, with the remainder figured into the monthly fees charged throughout the Initial Term, and (C) in the event of termination prior to the end of the Initial Term, TapText will not have recouped its full costs of implementation. As such, Client agrees that, in the event of termination prior to the end of the Initial Term, TapText shall have the right to charge Client, and Client will pay, any implementation costs of TapText not recouped by TapText prior to the effective date of termination; and
(f) Any termination is without prejudice to any other remedies provided for in this Agreement or otherwise available to the Parties at law or in equity.
Confidentiality
10.1. Confidential Information Each Party (the “Receiving Party”) agrees to keep in confidence all information it receives from the other Party (the “Disclosing Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (“Confidential Information”). Confidential Information of the Disclosing Party may be disclosed by the Receiving Party in confidence to its employees on a need-to-know basis only and on the condition that it is not to be copied or used for any other purposes than the purpose for which it is provided in connection with this Agreement. Neither Party will disclose the other Party's information to third parties (other than its equity holders, directors, managers, officers, employees, attorneys, accountants, and advisors who have a need to know (collectively, “Representatives”) without the prior written consent of the Disclosing Party specifically identifying the information that may be disclosed, the parties to whom it may be disclosed and the permitted purposes for which it may be disclosed. Confidential Information does not include information that (a) is already in the public domain or becomes generally available to the public other than as a result of disclosure by the Receiving Party or its Representatives in breach of this Agreement, (b) was independently developed by the Receiving Party or its Representatives without use or reference to the Confidential Information, (c) is communicated to the Receiving Party or its Representatives on a non-confidential basis by a third party other than the disclosing party or its Representatives without such communication being in violation of any legal, regulatory, or contractual obligation, (d) was already known by the Receiving Party or its Representatives prior to receipt and without a confidentiality obligation; or (e) is required to be disclosed by law, subpoena or other process, provided the Receiving Party notifies the Disclosing Party in advance if legally permitted to do so and reasonably cooperates in any effort to obtain confidential treatment, at no expense to the Receiving Party. The Receiving Party shall immediately notify the Disclosing Party upon discovery of any potential unauthorized disclosure of the Disclosing Party’s Confidential Information. Upon the disclosing Party’s written request, the receiving Party shall return or destroy all copies of the disclosing Party’s Confidential Information and certify promptly in writing that it has done so.
10.2. ECPA Notice TapText reserves the right to monitor communications transmitted through and using the Services in order to assure system integrity, efficiency, and effectiveness. In the event that TapText receives a facially legitimate, written request for access to information of Client (confidential or otherwise) from a federal or state government entity with responsibility for law enforcement, homeland security or national defense, TapText will comply with the request to the extent that appears reasonable to TapText, provided that TapText complies with the notice requirements hereunder. Client understands these are TapText’s practices and consents to them. Except as expressly set forth in this paragraph, nothing herein shall be interpreted to alter the obligations of confidentiality set forth hereunder.
Support; Limited Warranties; Disclaimers
11.1. Support TapText will automatically provide updates to the latest version of the Services, at which point it will no longer provide support for any earlier version of the Services. Client support related to the Services shall be available by contacting jcurl@taptext.com 678-488-7236.
11.2. Limited Warranties
(a) Services The ongoing hosting, maintenance, support and other services that may be provided by TapText pursuant to the terms of this Agreement shall be performed in a professional and workmanlike manner in accordance with recognized industry standards. IN THE EVENT THAT SERVICES PROVIDED HEREUNDER FAIL TO CONFORM TO THE FOREGOING WARRANTY, COMPANY’S SOLE OBLIGATION, AND CLIENT’S SOLE REMEDY, SHALL BE FOR COMPANY TO USE COMMERCIALLY REASONABLE EFFORTS TO CORRECT SUCH NONCONFORMITY. NOTWITHSTANDING ANY REPRESENTATION OR WARRANTY REGARDING THE SERVICES GRANTED UNDER ANY OF THE TERMS OF THIS AGREEMENT, COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE AVAILABILITY OR FUNCTIONALITY OF THE THIRD-PARTY SERVICE INTEGRATION FEATURE OF THE SERVICES, WHICH FEATURE IS MADE AVAILABLE TO CLIENT AS-IS.
(b) Professional Services The Professional Services provided under this Agreement and any Order Form will be performed in a professional and workman-like manner conforming to generally accepted industry standards and practices.
(c) Warranty Disclaimer EXCEPT FOR THE FOREGOING, COMPANY MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING OR RELATING TO ANY SERVICES FURNISHED OR PROVIDED TO CLIENT OR ANY USER UNDER THIS AGREEMENT OR THE RESULTS THEREOF. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO SAID SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING.
(d) No employee, agent, representative, or affiliate of TapText has authority to bind TapText to any oral representations or warranty concerning the Services. Any written representation or warranty not expressly contained in this Agreement will not be enforceable.
11.3. Additional Disclaimers TapText exercises no control whatsoever over Client Content or any other information passed through the Services by Client, over providers of Third-Party Services or over Users who access the Services with or without Client’s authorization. COMPANY DOES NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS OBTAINED BY CLIENT OR USERS IN USING THE SERVICES, OR THAT THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, OR THAT THE SERVICES WILL OPERATE IN COMBINATION WITH HARDWARE, SOFTWARE, SYSTEMS, OR DATA OTHER THAN AS IDENTIFIED IN THIS AGREEMENT, OR THAT THE SERVICES WILL MEET CLIENT’S OR ANY USER’S REQUIREMENTS. TapText may provide informational materials and/or samples of language that Client may use with certain Services (the “Materials”). Such Materials are provided to Client for informational purposes only and do not constitute legal advice by TapText. Client acknowledges that the Materials do not constitute legal advice and that Client will consult its own counsel to obtain legal advice related to any Materials.
Indemnification
12.1. Indemnification by Client Client shall indemnify and hold TapText, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and court costs) (each, a “Claim”) arising out of or in connection with: (i) a claim alleging that Client Content infringes the Intellectual Property Rights of, or has caused harm to, a third party; (ii) the breach of this Agreement by Client or a User; (iii) Client’s or a User’s misuse of the Services; and (iv) Client’s use of the Services in violation of any law, regulation or government order including, but not limited to, those that relate to email or text message solicitations and advertising, data privacy, or cross-border data transfers.
12.2. Indemnification by TapText TapText shall indemnify and hold Client, its affiliates and each of their respective officers, directors, employees, attorneys, and agents harmless from and against any and all Claims arising out of or in connection with (i) a claim alleging that the Services delivered by TapText in accordance with the terms of this Agreement infringe the Intellectual Property Rights of any third party; (ii) the breach of this Agreement by TapText; and (iii) Client’s use of the Services in a manner that does not violate the terms of this Agreement.
12.3. Conditions to Indemnification The indemnity obligations of each Party set forth hereunder are contingent upon (i) the indemnitee giving prompt written notice to the indemnitor of any such Claim(s); (ii) the indemnitee giving the indemnitor sole control of the defense of any such Claim; (iii) the indemnitee not entering into any settlement or compromise of any such Claim without the indemnitor’s written approval; and (iv) at the indemnitor’s request and expense, the indemnitee cooperating in the investigation and defense of such Claim(s).
12.4. Exclusions Relating to Infringement Indemnification; TapText’s Options TapText will have no obligation to indemnify Client to the extent any such Claim is based on (a) the use of the Services in a manner other than as specified in this Agreement or in TapText published documentation; (b) any use by Client in combination with other products, equipment, software or systems not supplied by TapText to the extent such Claim is directed against such combination. Should TapText’s software or any part of the Services provided by TapText hereunder become, or in TapText’s opinion is likely to become, the subject of any such Claim, TapText may at its option: (i) procure for Client the right to continue to use the affected Services as contemplated hereunder; (ii) replace or modify the affected Services to make its use non-infringing; or (iii) should such options not be available at reasonable expense, terminate this Agreement with respect to the affected Services and refund to Client the prorated amount of any fees prepaid by Client that were to apply to the remainder of the unexpired term.
Limitations of Liability
13.1. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS OR SUBCONTRACTORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING COST OF COVER, BUSINESS INTERRUPTION, LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THE PROFESSIONAL SERVICES PROVIDED HEREUNDER, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF SERVICES, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13.2. IN ADDITION, AND WITHOUT LIMITING THE FOREGOING, THE PARTIES SPECIFICALLY AGREE THAT, EXCEPT WITH RESPECT TO EACH PARTY’S RESPECTIVE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 14 ABOVE, IN NO EVENT SHALL COMPANY’S AND ITS SUBCONTRACTORS’ AGGREGATE LIABILITY (A) WITH RESPECT TO THE SERVICES PROVIDED HEREUNDER, EXCEED THE AMOUNTS ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM, AND (B) WITH RESPECT TO THE PROFESSIONAL SERVICES PROVIDED HEREUNDER, EXCEED THE FEES ACTUALLY PAID BY CLIENT WITH RESPECT TO THE APPLICABLE ORDER FORM.
13.3. The provisions of this Section allocate risks under this Agreement between Client and TapText. TapText’s pricing reflects this allocation of risk and limitation of liabilities.
13.4. No action arising out of any breach or claimed breach of this Agreement or the transactions contemplated by this Agreement may be brought by either Party more than one (1) year after the cause of action has accrued. For purposes of this Agreement, a cause of action will be deemed to have accrued when a Party knew or reasonably should have known of the breach or claimed breach.
Internet Delays
THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Additional Rights
15.1. Certain states and/or jurisdictions do not allow the exclusion of implied warranties o limitation of liability for incidental, consequential, or certain other types of damages, so the exclusions set forth above may not apply.
General Terms
16.1. Notice All notices and demands of any kind which either Party may be required to serve upon the other Party under the terms of this Agreement shall be in writing and shall be served upon such other Party by nationally recognized overnight courier providing a receipt for delivery, by certified or registered mail, postage prepaid, with return receipt requested, or by personal delivery at the applicable address set forth below or to such other address as that Party may designate in writing. Notices will be deemed effective upon the date of receipt (or refusal of delivery).
16.2. Independent Contractor It is understood and agreed that the Parties will act solely as independent contractors. Nothing in this Agreement will be construed to create an employment relationship, a partnership or a joint venture between Client and TapText. Client and TapText are not agents of each other, and have no authority to bind, represent, or speak for each other or their respective divisions, subsidiaries, or affiliates.
16.3. Assignment; Change in Control Neither Party shall have the right to assign its rights or obligations under this Agreement, in whole or in part, without the prior written consent of the other Party; provided that TapText shall be permitted to assign this Agreement to any entity that controls, is controlled by, or is under common control with TapText or in connection with a merger, acquisition, reorganization, or similar corporate transaction upon written notice to Client.
16.4. Force Majeure If either Party’s failure to comply with any obligation under this Agreement is caused in whole or in part by one or more Force Majeure Events, such failure shall not constitute a breach of this Agreement, and such failure shall be excused for as long as such failure is caused in whole or in part by such Force Majeure Events. The Party claiming that a Force Majeure Event caused such failure must notify the other Party in writing promptly after such Party becomes aware of the Force Majeure Event. If any Force Majeure Event causes the suspension of a material obligation of either Party to the Agreement for more than 30 days, the other Party shall have the right to terminate this Agreement with immediate effect by delivery of written notice thereof. “Force Majeure Event” means labor disputes; riots or other civil disturbances; wars, coups, or invasions; governmental regulations; fires, floods, and other casualties; pandemics; acts of God, and other similar circumstances beyond the reasonable control of such Party.
16.5. Governing Law and Venue This Agreement shall be governed by and construed in accordance with the laws of the State of Florida without regard to its choice of law provisions. The Parties irrevocably submit to the exclusive jurisdiction of the federal or state courts located in Broward County, Florida in connection with any disputes arising under this Agreement and waive any defense based on lack of jurisdiction, improper venue, or forum non convenience.
16.6. No Waiver No waiver by either Party of a breach of any provision of this Agreement shall be effective unless made in writing by the waiving party and no such waiver shall be construed as a waiver of any subsequent or different breach. No forbearance by a Party to seek a remedy for noncompliance or breach by the other Party shall be construed as a waiver of any right or remedy with respect to such noncompliance or breach.
16.7. Severability The illegality, invalidity, or unenforceability of any provision of this Agreement (as determined by a court of competent jurisdiction) shall not affect the legality, validity, or unenforceability of the remaining provisions, and this Agreement shall be construed in all respects as if any illegal, invalid, or unenforceable provision were omitted.
16.8. Counterparts This Agreement may be executed by facsimile, PDF, or electronic signature and in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
16.9. Headings The paragraph headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions.
16.10. Survival The provisions of this Agreement that by their nature continue and survive shall survive any expiration or termination of this Agreement.
16.11. Entire Agreement This Agreement, together with any applicable Order Form, constitute the entire understanding of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter. This Agreement may only be amended or modified in writing signed by authorized representatives of each Party. Unless otherwise agreed by both parties in writing, the terms of this Agreement shall apply to all Services provided to Client, irrespective of expiration or termination of the Term.
THESE TERMS OF SERVICE ARE EFFECTIVE FOR ALL ORDERS ENTERED Custom JS/HTML INTO ON OR AFTER AUGUST 30, 2020.
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