TAPONIT, LLC Software As A Service Agreement
Last Updated: August 10, 2022
This Software as a Service Agreement (the “Agreement”) is a legal agreement by and between TapOnIt, LLC (“TAPONIT”), and Customer (as defined below). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING A SERVICE ORDER OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, USING (OR MAKING ANY PAYMENT FOR) ANY OF THE SERVICES, OR BY OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (1) AGREE TO THIS AGREEMENT ON BEHALF OF THE ORGANIZATION OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (“CUSTOMER”); AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE ANY SERVICES.
- Background. TapOnIt has developed certain software, a website, and a platform, which it provides as part of its Services (as defined below). Customer wishes to utilize the Services, and TapOnIt desires to make the Services available to Customer, subject to the following terms and conditions.
- Definitions. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
- “Access Protocols” means the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Customer or any Authorized Users to access the Services.
- “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by TapOnIt in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
- “Authorized User” means any individual who is an employee of Customer or such other person or entity as may be authorized by the Customer to access the Services pursuant to Customer’s rights under this Agreement.
- “Customer Content” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the use of the Software or Services.
- “CTIA Policies” means the policies and rules of the Cellular Telecommunications and Internet Association (CTIA), including the CTIA Messaging Principles & Best Practices Guidelines and the CTIA Short Code Monitoring Handbook, as those documents may be updated from time to time.
- “Documentation” means TapOnIt-provided user documentation, in all forms, relating to the Services and Software in hard copy or electronic form (e.g., user manuals and online help files).
- “Error” means a reproducible failure of the Software to substantially conform to the Documentation.
- “Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
- “Order Form” means an ordering document that is signed by both parties identifying the services to be made available by TapOnIt pursuant to this Agreement.
- “Order Term” means the term length specified in the applicable Order Form.
- “Services” means the services ordered by Customer through an Order Form.
- “Software” means TapOnIt’s hosted white-label software as a service messaging platform accessed via a portal that enables Authorized Users to use and access Services. “Software” includes all new versions updates, revisions, improvements and any associated user interfaces and related technology that TapOnIt makes available pursuant to this Agreement.
- Provision of Services.
- Service Options. There are two primary service options: a self-serve package (“Self-Serve”) and a custom-tailored package, which includes an initial set-up by TapOnIt (“Client Direct”). The current pricing plans for the Self-Serve package is available on the TapOnIt website at the time of registration. TapOnIt reserves the right to modify the fees associated with the Self-Serve and Client Direct packages at any time.
- Subject to and conditioned on Customer’s payment of Fees (as defined below) and compliance with all the terms and conditions of this Agreement, TapOnIt will provide the Services via an online user interface. On or as soon as reasonably practicable after the Effective Date TapOnIt shall provide to Customer the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Customer and its Authorized Users to access the Services in accordance with the Access Protocols.
- Setup Responsibilities. If Customer elects the Self-Serve package, Customer shall be responsible for setting up and configuring the Services, including without limitation any provisioning of access to the Services to its Authorized Users. Customer shall be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, services and Internet connectivity required by Customer or any Authorized User to access the Services from the Internet. In the event that TapOnIt assists or advises Customer with any Services setup, configuration or support, in no event shall such assistance or advice be construed as legal advice.
- Support Services. Subject to the terms and conditions of this Agreement, TapOnIt shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in the Service Level Addendum.
- Responsibility for Software and Content Hosting. TapOnIt shall, at its own expense, provide for the hosting of the Software which is accessible as part of the Services, provided that nothing herein shall be construed to require TapOnIt to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Customer or any Authorized User to provide access from the Internet to the Services.
- Intellectual Property.
- License Grant. Subject to and conditioned on Customer’s payment of Fees and compliance with all the terms and conditions of this Agreement, TapOnIt grants to Customer a non-exclusive, non-transferable license during the Order Term, solely for use by Authorized Users in accordance with the terms and conditions herein, (a) to access, use, perform, and digitally display the Software as required for use of the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer’s use of the Services. Such use is limited to Customer’s internal business use.
- The Services, Software, Documentation, and all other materials provided by TapOnIt hereunder, including but not limited to all manuals, reports, records, programs, data and other materials, and all Intellectual Property Rights in each of the foregoing, are the exclusive property of TapOnIt and its suppliers. Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Software or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Software or Documentation, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Software or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software; (e) use or copy the Software or Documentation except as expressly allowed under this subsection; or (f) disclose or transmit any data contained in the Software to any individual other than an Authorized User, except as expressly allowed herein. Notwithstanding the foregoing, decompiling the Software is permitted to the extent the laws of Customer’s jurisdiction require TapOnIt to give Customer the right to do so to obtain information necessary to render the Software interoperable with other software; provided, however, that Customer must first request such information from TapOnIt and TapOnIt may, in its discretion, either provide such information to Customer or impose reasonable conditions, including a reasonable fee, on such use of the source code for the Software to ensure that TapOnIt’s and its suppliers’ proprietary rights in the source code for the Software are protected. Customer acknowledges and agrees that the Services, Software, and Documentation will not be used, and are not licensed for use, in connection with any of Customer’s time-critical or mission-critical functions. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Services, Software, Documentation, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Software.
- The Services, Software, Documentation, and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of TapOnIt and its suppliers. All rights in and to the Services, Software and Documentation not expressly granted to Customer in this Agreement are reserved by TapOnIt and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Software, Documentation, and Services or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Software.
- Third-Party Licenses. The Software may include software or other materials that are owned by individuals other than TapOnIt (including any open-source licenses) and that are provided to Customer on terms that are in addition to those contained in this Agreement (“Third-Party Licenses”). By using the Software, Customer agrees to be bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, TapOnIt may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between TapOnIt and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by TapOnIt. Customer acknowledges that TapOnIt may compile Aggregated Statistics based on Customer Content input into the Services. Customer agrees that TapOnIt may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
- If Customer or any of its employees or contractors sends or transmits any communications or materials to TapOnIt by mail, email, telephone, or otherwise, suggesting or recommending changes to TapOnIt’s intellectual property, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), TapOnIt is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to TapOnIt on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and TapOnIt is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although TapOnIt is not required to use any Feedback.
- Fees and Expenses; Payments.
- In consideration for the access rights granted to Customer and the Services performed by TapOnIt under this Agreement, Customer will pay to TapOnIt: (i) all fees described in all Order Forms in accordance with the terms therein with respect to the Client Direct package (“Client Direct Fees”) or (ii) all fees and charges in effect at a time a fee or charge is due and payable in accordance with billing terms with respect to the Self-Serve package (“Self-Serve Fees”, and together with Client Direct Fees, the “Fees”). Except as otherwise provided in an Order Form, Client Direct Fees are billed at the end of the month due and payable within thirty (30) days of the date of the invoice. TapOnIt reserves the right at any time to change its prices and billing methods, immediately upon written notice to Customer (which can be by email), and in the case of Client Direct Customers, with at least forty-five (45) days prior notice to the end of the then-current Order Term. Any amounts not paid when due shall bear interest at the rate of one percent (1%) per month, or the maximum legal rate if less, from the due date until paid. For the Self-Serve package, you must provide TapOnIt with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account of a payment provider, as a condition to signing up for the Services. By providing TapOnIt with your credit card number or PayPal account and associated payment information, you agree that Company is authorized to immediately invoice your account for all fees and charges due and payable to TapOnIt hereunder and that no additional notice or consent is required. You agree to immediately notify TapOnIt of any change in your billing address or the credit card or PayPal account used for payment hereunder. TapOnIt will be reimbursed only for expenses that are expressly provided for in an Order Form or that have been approved in advance in writing by Customer, provided TapOnIt has furnished such documentation for authorized expenses as Customer may reasonably request. TapOnIt shall be entitled to withhold performance and discontinue service until all amounts due are paid in full, without incurring any obligation or liability to Customer by reason of such suspension.
- The fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on TapOnIt’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the delivery of the Services, or the license of the Software to Customer. Customer will make all payments of fees to TapOnIt free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to TapOnIt will be Customer’s sole responsibility, and Customer will provide TapOnIt with official receipts issued by the appropriate taxing authority, or such other evidence as the TapOnIt may reasonably request, to establish that such taxes have been paid. Customer shall indemnify and defend TapOnIt in connection with any proceedings brought by any taxing authorities in connection with this Agreement.
- Interest. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.
- Customer Content and Responsibilities.
- License; Ownership. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third-party licenses, consents and permissions needed for TapOnIt to use the Customer Content to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for TapOnIt to use the Customer Content submitted by or on behalf of Customer for the purposes set forth in this Agreement. Customer grants TapOnIt a non-exclusive, worldwide, royalty-free and fully paid license during the Order Term (a) to use the Customer Content as necessary for purposes of providing the Services and (b) to use the Customer trademarks, service marks, and logos as required to provide the Services. The Customer Content hosted by TapOnIt as part of the Services, and all worldwide Intellectual Property Rights in it, is the exclusive property of Customer. All rights in and to the Customer Content not expressly granted to TapOnIt in this Agreement are reserved by Customer.
- Authorized Users Access to Services. Customer may permit any Authorized Users to access and use the features and functions of the Services as contemplated by this Agreement. User IDs cannot be shared or used by more than one Authorized User at a time. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify TapOnIt promptly of any such unauthorized use known to Customer.
- Customer Responsibility for Data and Security. Customer and its Authorized Users shall have access to the Customer Content and shall be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other Access Protocols required in order the access the Services. Customer shall have the ability to export Customer Content out of the Services and is encouraged to make its own back-ups of the Customer Content. Customer shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content.
- Warranties and Disclaimers.
- Limited Warranty. TapOnIt represents and warrants to Customer that during the Order Term the Software will operate free from Errors. TapOnIt does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the Service Level Addendum. The remedies set forth in the Service Level Addendum are Customer’s sole remedies and TapOnIt’s sole liability under the limited warranty set forth in this Section. This warranty gives Customer specific legal rights, and Customer may also have other rights which vary from jurisdiction to jurisdiction. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7 IS MADE FOR THE BENEFIT OF CUSTOMER ONLY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE Software, Documentation, AND SERVICES ARE PROVIDED “AS IS,” AND TAPONIT MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE Software, Documentation, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY TAPONIT. TAPONIT DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE software AND SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE. NO VERBAL ADVICE OR DOCUMENTATION PROVIDED BY TAPONIT, ITS EMPLOYEES, LICENSORS, LICENSEES, AFFILIATES, OR AGENTS OR BY ANY OTHER THIRD PARTY RELATING TO COMPLIANCE WITH LAWS AND REGULATION THAT GOVERN SENDING OF MMS or SMS MESSAGES SHALL CREATE ANY WARRANTY. ANY ADVICE OR CONSULTATION PROVIDED BY TAPONIT, ITS EMPLOYEES, LICENSORS, LICENSEES, AFFILIATES, WEBSITE, OR AGENTS SHOULD NEVER BE INTERPRETED AS LEGAL ADVICE OR AUTHORITATIVE CONSULTATION, AND TAPONIT DISCLAIMS ALL LIABILITY THEREFROM. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.
- Customer Warranty. Customer represents and warrants to TapOnIt that: (1) Customer owns the Customer Content, or has the necessary licenses, rights, consents and permissions to authorize TapOnIt to use the Customer Content in accordance with this Agreement; (2) Customer Content hosted by TapOnIt as part of the Services shall not (a) infringe any copyright, trademark, or patent; (b) misappropriate any trade secret; (c) be deceptive, defamatory, obscene, pornographic or unlawful; (d) contain any viruses, worms or other malicious computer programming codes intended to damage TapOnIt’s system or data; or (e) otherwise violate the rights of a third party; (3) Customer will use the Services and Software in compliance with the Documentation; and (4) Customer will always comply with all international and domestic laws (including marketing laws), ordinances, regulations, CTIA Policies, mobile carrier policies, and statutes that are applicable to its purchase and use of the Software, Documentation or Services hereunder. TapOnIt is not obligated to back up any Customer Content; the Customer is solely responsible for creating backup copies of any Customer Content at Customer’s sole cost and expense. Customer agrees that any use of the Services contrary to or in violation of the representations and warranties of Customer in this section constitutes unauthorized and improper use of the Services.
- Limitation of Liability.
- Exclusion of Damages. TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, TAPONIT OR ITS SUPPLIERS SHALL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH TAPONIT’S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE Software, Documentation, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF TAPONIT HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.
- Amount of Damages. except with respect to breaches of confidentiality, misappropriation of the other party’s intellectual property, and indemnification obligations, THE MAXIMUM LIABILITY OF TAPONIT ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY CUSTOMER TO TAPONIT DURING THE SIX (6) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT SHALL TapOnIt’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE TAPONIT’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF TAPONIT OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.
- Basis of the Bargain. The parties agree that the limitations of liability set forth in this section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.
- Confidential Information. During the term of this Agreement, each party (the “Disclosing Party”) may provide the other party (the “Receiving Party”) with certain information regarding the Disclosing Party’s business, technology, products, or services or other confidential or proprietary information (collectively, “Confidential Information”). The Disclosing Party will mark all Confidential Information in tangible form as “confidential” or “proprietary” or with a similar legend, and identify all Confidential Information disclosed orally as confidential at the time of disclosure and provide a written summary of such Confidential Information within thirty (30) days after such oral disclosure. Regardless of whether so marked or identified, the Software, Documentation, and all enhancements and improvements thereto will be considered Confidential Information of TapOnIt.
- Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to TapOnIt). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination of this Agreement, the Receiving Party will return to the Disclosing Party or destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party shall provide to the Disclosing Party a written affidavit certifying compliance with this sentence.
- Exceptions. The confidentiality obligations set forth in this section will not apply to any information that (a) becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure; or (d) the Receiving Party can prove, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
- By Customer. Customer will indemnify and hold harmless, at its own expense, TapOnIt and its affiliates, employees, directors, and agents (collectively, “TapOnIt Parties”) from and against any and all liabilities, losses, damages costs and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising out of or relating to Customer’s breach or alleged breach of Sections 6 (Customer Content and Responsibilities) and/or 3 (Customer Warranty).
- Customer’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the TapOnIt Parties shall promptly notify the Customer in writing of any threatened or actual claim or suit; (b) Customer shall have sole control of the defense or settlement of any claim or suit; and (c) the TapOnIt Parties shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit. Customer shall not agree to settle any such claim without TapOnIt’s express prior written consent.
- Carrier Fines. Notwithstanding anything to the contrary in this Agreement, Customer agrees that if TapOnIt is fined by a carrier or regulatory body as a result of Customer’s failure to comply with applicable laws or CTIA Policies, TapOnIt may charge Customer for, and Customer will pay, the amount of such fine.
- Term And Termination.
- This Agreement will begin on the date Customer accepts it (in accordance with the preamble) and continue in full force and effect so long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement. Unless otherwise stated in the applicable Order Form, the Order Term will begin on the effective date of the Order Form and continue in full force and effect for one (1) year, unless earlier terminated in accordance with the Agreement (the “Initial Term”). Thereafter, the Order Form will automatically renew for additional terms of one (1) year unless either party gives written notice of non-renewal to the other party no less than thirty (30) days prior to the expiration of the then-current term.
- Termination for Convenience. Notwithstanding any other provision of this Agreement, Customer may at any time after the end of the Initial Term, terminate this Agreement, with or without cause by providing thirty (30) days’ written notice to TapOnIt. Upon such termination for convenience, TapOnIt will be entitled to payment for all Services provided prior to the effective date of termination.
- Termination for Breach. Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
- Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) all rights and obligations of both parties, including all licenses granted hereunder, shall immediately terminate; (b) within ten (10) days after the effective date of termination, each party shall comply with the obligations to return all Confidential Information of the other party, as set forth in the section titled Confidentiality; and (c) within ten (10) days after the effective date of termination, TapOnIt shall discontinue all use of Customer Content and destroy all copies of Customer Content in its possession. The sections and subsections titled Definitions, Limitations, Warranties and Disclaimers, Limitation of Liability, Confidentiality, Indemnification, Effect of Termination, and Miscellaneous will survive expiration or termination of this Agreement for any reason.
- Third Party Integrations; Service Providers.
- Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Iowa, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to personal jurisdiction and venue in the federal courts of the United States or the courts of the State of Iowa, in each case located in the city of Davenport and County of Scott, for any lawsuit filed there against Customer by TapOnIt arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The laws of the jurisdiction where Customer is located may be different from Iowa law.
- Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from TapOnIt, or any products utilizing such data, in violation of the United States export laws or regulations.
- Either party may reference the other party’s name and logo in lists of customers or vendors, including on each party’s respective websites. All other uses of each party’s name and any publicity shall require the prior written approval and consent of the other party.
- If any provision of this Agreement or a portion of a provision is held to be invalid, illegal, or unenforceable, the rest of this Agreement will remain enforceable.
- Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Except as provided in the sections titled Limited Warranty and Indemnification, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the Services, Software, and Documentation contain valuable trade secrets and proprietary information of TapOnIt, that any actual or threatened breach of the sections titled Intellectual Property or Confidentiality or any other breach by Customer of its obligations with respect to Intellectual Property Rights of TapOnIt will constitute immediate, irreparable harm to TapOnIt for which monetary damages would be an inadequate remedy. In such case, TapOnIt will be entitled to immediate injunctive relief without the requirement of posting bond, including an order that any Software, Documentation, or any portions thereof, that Customer attempts to import into any country or territory be seized, impounded and destroyed by customs officials. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
- Customer may not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of TapOnIt, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Customer may assign this Agreement to an affiliate or in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. This Agreement shall inure to the benefit of each party’s permitted successors and assigns.
- Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, pandemic, epidemic, quarantine, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
- Relationship of the Parties. Customer’s relationship to TapOnIt is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of TapOnIt.
- No Solicitation. During the term hereof and for one (1) year thereafter, Customer will not solicit any employee or contractor of TapOnIt to terminate such individual or entity’s relationship with TapOnIt.
- Notices. All notices required or permitted under this agreement must be delivered in writing, if to TapOnIt, by emailing firstname.lastname@example.org, and if to Customer, by emailing the Customer Point of Contact email address last made available by Customer, provided, however, that with respect to any notices relating to breaches of this agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed in the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice of such change to the other party.
- To the extent that a conflict arises between the terms and conditions of an Order Form and the terms of this Agreement, the terms and conditions of this Agreement will govern, except to the extent that the Order Form, expressly states that it supersedes specific language in the Agreement.
- Modifications of this Agreement. TapOnIt may modify this Agreement in its sole discretion, at any time. When changes are made, TapOnIt will make a new copy of the Agreement available on its website and update the Last Updated date above. TapOnIt will also email Customer at the last email address Customer provided to TapOnIt. Unless otherwise specified in TapOnIt’s notice, any changes will become effective within thirty (30) days of TapOnIt’s provision of notice of such updates. TapOnIt may require Customer to provide consent to the updated Agreement in a specified manner before further use of the TapOnIt Service is permitted.
- Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters.
Service Level Addendum
Service Level Metrics
This Service Level Addendum defines the availability, performance and exclusions associated with the Services offering.
“Available” means the Services are available and suitable for Customer’s or Customer’s clients’ use.
“Downtime” means the Services are not available for Customer or Customer’s clients’ use and which is not a result of Permitted Downtime, measured in minutes from: (i) the time when Customer reports such Downtime until (ii) the time when use has been restored.
“Permitted Downtime” means the Services are not available during a prescheduled period which has been communicated to Customer at least 48 hours in advance. Permitted Downtime shall not be more than eight (8) hours a month for upgrades and normal maintenance. If special circumstances arose, and Permitted Downtime is expected to exceed eight (8) hours in any given month, TapOnIt shall give Customer not less than seventy-two (72) hours’ notice.
“Monthly Uptime Percentage” means total number of minutes in a calendar month minus the number of minutes of Downtime in such calendar month, divided by the total number of minutes in such calendar month.
TapOnIt strives to provide our customers with the best possible service, matched with our operational excellence. TapOnIt will use commercially reasonable efforts to meet or exceed the Monthly Uptime Percentage of 99.0% each month, except in situations of the below exclusions.
Our objective is to deliver the highest level of reliability; however, there are certain instances of unavailability that we are not in direct control of and therefore we cannot include in our availability measurements. The following are examples of items that are excluded from our measurements of availability:
- Acts or omissions of Customer in breach of its obligations in the Agreement.
- Any Downtime related to connectivity issues related to Customer-managed networking devices which are connected to the Services, including but not limited to outages resulting from distributed denial of service attacks (DDOS), virus incidents, and/or hacking attempts.
- The scope of this Service Level Addendum does not include, under any circumstances, any internet performance, Customer equipment or access service not provided by TapOnIt.