TERMS OF SERVICE
These Terms of Service constitute an agreement (this “Agreement”) by and between TapClassifieds Auto, Inc., a Delaware Corporation (“TC”) and the entity executing this Agreement (“Customer”). Customer’s use of and TC’s provision of TC’s Platform (as defined below in Section 1.7) are governed by this Agreement.
1. DEFINITIONS. The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1. “AUP” means TC’s acceptable use policy currently posted at www.tapclassifieds.com/acceptable-use-policy/
1.2. “Customer Data” means data in electronic form input or collected through the Platform by or from Customer, including without limitation by Customer’s Users.
1.3. “Documentation” means the TC documentation (as may be updated from time to time) in the form made generally available by TC to its customers for use with the Platform at www.tapclassifeds.com
1.4. “Order” means an order for access to the Platform, executed as follows: through execution of an Order Form or completing an online order click through agreement on TC’s website.
1.5. “Order Form” means an ordering document provided by TC to Customer for the provision of services for the Platform.
1.7. “Platform” means TC’s web-based online posting service
1.8. “Term” is defined in Section 11.1 below.
1.9. “User” means any individual who uses the Platform on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
2. THE PLATFORM.
2.1. Use of the Platform. During the Term, Customer may access and use the Platform pursuant to: (a) the terms of any outstanding Order, including such features and functions as the Order requires; and (b) TC’s policies posted on its Website at www.tapclassifieds.com, as such policies may be updated from time to time.
.2. Documentation: Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the Platform.
2.3. Platform Revisions. TC may revise Platform features and functions at any time, including without limitation by removing such features and functions or reducing service levels. If any such revision to the Platform materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding. If any such revision to the SLA materially reduces service levels provided pursuant to an outstanding Order, the revisions shall not go into effect with respect to such Order until the start of the Term beginning 45 or more days after TC posts the revision and so informs Customer.
3. FEES & REFUND POLICY.
3.1. Customer shall prepay TC the fees set forth in each Order (the “Budget””) for each Term. TC will not be required to refund the fees under any circumstances. All Fees are exclusive of taxes. Customer agrees to pay any taxes applicable to your use of the Platform and additional services provided by TC. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
3.2. All Transactions are non-refundable, unassignable, non-transferrable.
4. CUSTOMER DATA & PRIVACY.
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, TC: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Platform; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation TC’s other customers, except subcontractors that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, TC may disclose Customer Data as required by applicable law or by proper legal or governmental authority. TC shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
4.3. Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Platform, Customer assumes such risks. TC offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
4.4. Data Accuracy. TC shall have no responsibility or liability for the accuracy of data uploaded to the Platform by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.5. Data Deletion. TC may permanently erase Customer Data if Customer’s account is delinquent, suspended, or terminated for 30 days or more.
4.6. Excluded Data. Customer represents and warrants that Customer Data does not and will not include, and Customer has not and shall not upload or transmit to TC's computers or other media, any data (“Excluded Data”) regulated pursuant to the Health Insurance Portability Act “HIPAA” (the "Excluded Data Laws"). CUSTOMER RECOGNIZES AND AGREES THAT: (a) TC HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE EXCLUDED DATA LAWS OR OTHERWISE TO PROTECT EXCLUDED DATA; AND (b) TC’S PLATFORMS ARE NOT INTENDED FOR MANAGEMENT OR PROTECTION OF EXCLUDED DATA AND MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR EXCLUDED DATA.
4.7. Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 4, TC may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. (“Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer.)
5. CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS.
5.1. Acceptable Use. Customer shall comply with the AUP. Customer shall not: (a) use the Platform for service bureau or time-sharing purposes or in any other way allow third parties to exploit the Platform; (b) provide Platform passwords or other log-in information to any third party; (c) share non-public Platform features or content with any third party; or (d) access the Platform in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Platform, or to copy any ideas, features, functions or graphics of the Platform. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, TC may suspend Customer’s access to the Platform without advanced notice, in addition to such other remedies as TC may have. Neither this Agreement nor the AUP requires that TC take any action against Customer or any User or other third party for violating the AUP, this Section 5.1, or this Agreement, but TC is free to take any such action it sees fit.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the Platform, including without limitation by protecting its passwords and other log-in information. Customer shall notify TC immediately of any known or suspected unauthorized use of the Platform or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the Platform, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Users & Platform Access. Customer is responsible and liable for: (a) Users’ use of the Platform, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the Platform through Customer’s account, whether authorized or unauthorized.
6. IP & FEEDBACK.
6.1. IP Rights to the Platform. This is a subscription agreement for use of TC's Platform and not an agreement for sale. TC retains all right, title, and interest in and to the Platform, including without limitation all software used to provide the Platform and all graphics, user interfaces, logos, and trademarks reproduced through the Platform. This Agreement does not grant Customer any intellectual property license or rights in or to the Platform or any of its components. Customer recognizes that the Platform and its components are protected by copyright and other laws.
6.2. Feedback. TC has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to TC, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict TC’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of TC’s products or services.)
7. CONFIDENTIAL INFORMATION. Each party (as “Receiving Party”) agrees that all code, inventions, know-how, business, technical and financial information it obtains from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any TC technology, performance information relating to the Platform, and the terms and conditions of this Agreement shall be deemed Confidential Information of TC without any marking or further designation. Customer Data shall be deemed Customer’s Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order, but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party. The Receiving Party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone would not be a sufficient remedy, and therefore upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. REPRESENTATIONS & WARRANTIES.
8.1. From TC. TC represents and warrants that it is the owner of the Platform and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. TC’s representations and warranties in the preceding sentence do not apply to use of the Platform in combination with hardware or software not provided by TC. In the event of a breach of the warranty in this Section 8.1, TC, at its own expense, will promptly take the following actions: (a) secure for Customer the right to continue using the Platform; (b) replace or modify the Platform to make it non-infringing; or (c) terminate the infringing features of the Platform and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states TC’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 8.1 and for potential or actual intellectual property infringement by the Platform.
8.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the Platform; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
8.3. Warranty Disclaimers. Except to the extent set forth in the SLA and in Section 8.1 above, CUSTOMER ACCEPTS THE PLATFORM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) TC HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) TC DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) TC DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
9. INDEMNIFICATION. Customer shall defend, indemnify, and hold harmless TC and the TC Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer's alleged or actual use of, misuse of, or failure to use the Platform, including without limitation: (a) claims by Users or by Customer's employees, as well as by Customer’s own customers; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the Platform through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the Platform through Customer’s account harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to TC’s negligence. Customer’s obligations set forth in this Article 9 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. TC will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “TC Associates” are TC’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
10. LIMITATION OF LIABILITY.
10.1. Dollar Cap. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TC’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT BE MORE THAN THE AMOUNT PAID BY CUSTOMER TO TC UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
10.2. Exclusion of Consequential Damages. IN NO EVENT WILL TC BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
10.3. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 10 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF TC IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 10, TC’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, TC’s liability limits and other rights set forth in this Article 10 apply likewise to TC’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
11. Term & Termination.
11.1. Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue for the period set forth in the Order or, if none, for 30 days. Thereafter, the Term will automatically renew for successive 30 day periods until termination, as set forth herein.
11.2. Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach.
11.3. Termination for Convenience. Either party may terminate this Agreement for any or no reason upon written notice (email acceptable) to the other party effective in 30 days.
11.4. Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the Platform and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3 (Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
12.1. Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no TC employee or contractor will be an employee of Customer.
12.2. Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth on the Order or at such other address as may be given in writing by either party to the other in accordance with this paragraph and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. TC may give electronic notices by general notice via the Platform and may give electronic notices specific to Customer by email to Customer email address(es) on record in our account information for Customer or through the notifications center of the Platform.
12.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
12.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without TC’s express written consent. Except to the extent forbidden in this Section 12.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
12.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
12.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
12.7. Choice of Law & Jurisdiction: This Agreement will be governed solely by the internal laws of the State of California, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Santa Clara County, California. This Section 12.7 governs all claims arising out of or related to this Agreement, including without limitation tort claims.
12.9. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
12.10. Counterparts. This Agreement may be executed in multiple counterparts, including facsimile, PDF, or other electronic copies, each of which shall constitute an original and all of which taken together shall constitute one and the same Agreement. PDF or facsimile signatures shall be deemed to be of the same force and effect as original signatures and legally binding and admissible in any court or tribunal of competent jurisdiction.
12.11. Government Rights. The Platform and related services and Documentation are “Commercial Items” as that term is defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. The rights to the Platform, related services and Documentation are granted to U.S. Government end users (a) only as Commercial Items and (b) only with those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
12.12. Technology Export. Customer shall not: (a) permit any third party to access or use the Platform in violation of any U.S. law or regulation; or (b) export any software provided by TC or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Platform in, or export such software to, a country subject to a United States embargo.
12.13. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications. In the event of any inconsistency or conflict between customer Order Form, on the one hand, and the Terms of Service on the other hand, the Order Form will take precedence and prevail.