Updated 8 March 2022
Effective Date: January 1, 2017
Welcome to Tapcart! Tapcart Inc., and our affiliates and agents (collectively, “Tapcart” or “us” or “we” or “our”) provide and operate a website and mobile application, through which users may transform their Shopify or other e-commerce platform online stores into iPhone mobile applications (each, an “App”).
1. Use of the Services and Tapcart Properties.
The Tapcart Application, the Website, the Services, and the information and content available on the Website and in the Tapcart Application and the Services (as these terms are defined herein) (collectively, the “Tapcart Properties”) are protected by copyright laws throughout the world. Subject to the Terms, Tapcart grants you a limited license to reproduce portions of Tapcart Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Tapcart in a separate license, your right to use any Tapcart Properties is subject to the Terms.
1.1. Description of Services.
The Services consist of a mobile app development platform designed to allow you and/or or your business to create and develop Apps operated by Apple App Store. We provide you with tools, including designs, templates, and layouts, to create and publish your App(s) through the Apple App Store.
1.2. Tapcart Application License.
Subject to your compliance with the Terms, Tapcart grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Tapcart Application on a single mobile device or computer that you own or control and to run such copy of the Tapcart Application solely for your own personal or internal business purposes.
You understand that Tapcart Properties are evolving. As a result, Tapcart may require you to accept updates to Tapcart Properties that you have installed on your computer or mobile device.
2.1. Registering Your Account.
In order to access certain features of Tapcart Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a user who has registered an account on the Website or Tapcart Application (“Account”), or has a valid Shopify or other third-party e-commerce platform account through which you may connect to the Website or Tapcart Application (each such account, a “Third-Party Account”).
2.2. Access Through a Third-Party Account.
If you access the Tapcart Properties through a Third-Party Account, you are allowing Tapcart to access your Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account. You represent that you are entitled to grant Tapcart access to your Third-Party Account (including, but not limited to, for use for the purposes described herein) without breach by you of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating Tapcart to pay any fees or making Tapcart subject to any usage limitations imposed by such third-party service providers. By granting Tapcart access to any Third-Party Accounts, you understand that Tapcart may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials accessible through Tapcart Properties that you have provided to and stored in your Third-Party Account (“Third-Party Account Content”) so that it is available on and through Tapcart Properties via your Account. Unless otherwise specified in the Terms, all Third-Party Account Content shall be considered to be Your Content (as defined below) for all purposes of the Terms. Depending on the Third-Party Accounts you choose and subject to the privacy settings that you have set in such Third-Party Accounts, personally identifiable information that you post to your Third-Party Accounts may be available on and through your Account on Tapcart Properties. Please note that if a Third-Party Account or associated service becomes unavailable or Tapcart’s access to such Third-Party Account is terminated by the third-party service provider, then Third-Party Account Content will no longer be available on and through Tapcart Properties. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD-PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD-PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD-PARTY SERVICE PROVIDERS, AND TAPCART DISCLAIMS ANY LIABILITY FOR PERSONALLY IDENTIFIABLE INFORMATION THAT MAY BE PROVIDED TO IT BY SUCH THIRD-PARTY SERVICE PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH THIRD-PARTY ACCOUNTS. Tapcart makes no effort to review any Third-Party Account Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Tapcart is not responsible for any Third-Party Account Content.
2.3. Your Account and Developed Apps.
Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account or any App, and you further acknowledge and agree that, except with respect to Your Content, all rights in and to your Account and Apps are and shall forever be owned by and inure to the benefit of Tapcart.
2.4. Necessary Equipment and Software.
You must provide all equipment and software necessary to connect to Tapcart Properties, including but not limited to, a mobile device that is suitable to connect with and use Tapcart Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Tapcart Properties.
3. Responsibility for Content.
3.1. Types of Content.
You acknowledge that all files, materials, data, text, audio, video, images or other content, including Tapcart Properties (“Content”), are the sole responsibility of the party from whom such Content originated. This means that you, and not Tapcart, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Tapcart Properties (“Your Content”), and that you and other Users of Tapcart Properties, and not Tapcart, are similarly responsible for all Content they Make Available through Tapcart Properties (“User Content”).
3.2. No Obligation to Pre-Screen Content.
You acknowledge that Tapcart has no obligation to pre-screen Content (including, but not limited to, User Content), although Tapcart reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Terms, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Tapcart pre-screens, refuses or removes any Content, you acknowledge that Tapcart will do so for Tapcart’s benefit, not yours. Without limiting the foregoing, Tapcart shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
Unless expressly agreed to by Tapcart in writing elsewhere, Tapcart has no obligation to store any of Your Content that you Make Available on Tapcart Properties. Tapcart has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Tapcart Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Tapcart retains the right to create reasonable limits on Tapcart’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Tapcart in its sole discretion.
4.1. Tapcart Properties.
Except with respect to Your Content and User Content, you agree that Tapcart and its suppliers own all rights, title and interest in Tapcart Properties (including but not limited to, any apps on Apple App Store, computer code, themes, objects, users, usernames, stories, dialogue, concepts, artwork, animations, sounds, audiovisual effects, methods of operation, moral rights, documentation, chat transcripts, user profile information, recordings of users using a Tapcart app, and Tapcart software clients and server software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or Tapcart Properties.
The tand other related graphics, logos, service marks and trade names used on or in connection with Tapcart Properties or in connection with the Services are the trademarks of Tapcart and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in Tapcart Properties are the property of their respective owners.
4.3. Other Content.
Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in Tapcart Properties.
4.4. Your Content.
Tapcart does not claim ownership of Your Content. However, when you post or publish Your Content on or in Tapcart Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.
4.5. License to Your Content.
Subject to any applicable account settings that you select, you grant Tapcart a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing Tapcart Properties to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Tapcart Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Tapcart, are responsible for all of Your Content that you Make Available on or in Tapcart Properties.
You agree that submission of any ideas, suggestions, documents, and/or proposals to Tapcart through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Tapcart has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Tapcart a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Tapcart Properties.
5. User Conduct.
As a condition of your use of the Tapcart Properties, you agree not to use Tapcart Properties for any purpose that is prohibited by the Terms or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through Tapcart Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Tapcart’s prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Tapcart; (vi) interferes with or attempt to interfere with the proper functioning of Tapcart Properties or uses Tapcart Properties in any way not expressly permitted by the Terms; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against Tapcart Properties, including but not limited to violating or attempting to violate any security features of Tapcart Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Tapcart Properties, introducing viruses, worms, or similar harmful code into Tapcart Properties, or interfering or attempting to interfere with use of Tapcart Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Tapcart Properties.
Tapcart may, but is not obligated to, monitor or review Tapcart Properties and Content at any time. Without limiting the foregoing, Tapcart shall have the right, in its sole discretion, to (a) remove any of Your Content for any reason (or no reason), including if such Content violates the Terms or any applicable law and/or (b) suspend and/or terminate your Account or any App developed using the Services.
7. Interactions with Other Users.
7.1. User Responsibility.
You are solely responsible for your interactions with other users and any other parties with whom you interact through the Services or your Apps, including your customers; provided, however, that Tapcart reserves the right, but has no obligation, to intercede in such disputes. You agree that Tapcart will not be responsible for any liability incurred as the result of such interactions.
7.2. Content Provided by Other Users.
Tapcart Properties may contain User Content provided by other users. Tapcart is not responsible for and does not control User Content. Tapcart has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other users at your own risk.
8. Third-Party Services.
8.1. Third-Party Websites, Tapcart Applications & Ads.
Tapcart Properties may provide access to and/or contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Tapcart Applications”) and advertisements for third parties ( “Third-Party Ads”). When you click on a link to or otherwise access a Third-Party Website, Third-Party Tapcart Application or Third-Party Ad, we will not warn you that you have left Tapcart Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Tapcart Applications and Third-Party Ads are not under the control of Tapcart. Tapcart is not responsible for any Third-Party Websites, Third-Party Tapcart Applications or Third-Party Ads. Tapcart provides these Third-Party Websites, Third-Party Tapcart Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Tapcart Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Tapcart Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Tapcart Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
8.2. App Stores.
You acknowledge and agree that the availability of the Tapcart Application, the Services, and any Apps, is dependent on the third party from whom you received the Tapcart Application or App license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that the Terms are between you and Tapcart and not with the App Store. Tapcart, not the App Store, is solely responsible for Tapcart Properties, including the Tapcart Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Tapcart Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with Tapcart Properties, including the Tapcart Application or any App. You agree to comply with, and your license to use the Tapcart Application and any Apps is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using Tapcart Properties, including the Tapcart Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Terms and will have the right to enforce them.
9. Fees and Purchase Terms.
9.1. General Purpose of Terms: Sale of Service, not Software.
The purpose of the Terms is for you to secure access to the Services. All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Tapcart’s Software, and, furthermore, any use of Tapcart’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide Tapcart with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. By providing Tapcart with your credit card number or PayPal account and associated payment information, you agree that Tapcart is authorized to immediately invoice your Account for all fees and charges due and payable to Tapcart hereunder and that no additional notice or consent is required. You agree to immediately notify Tapcart of any change in your billing address or the credit card or PayPal account used for payment hereunder. Tapcart reserves the right at any time to change its prices and billing methods, either immediately upon posting on Tapcart Properties or by e-mail delivery to you.
9.3. Service Subscription Fees.
You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your subscription package (each, a “Service Commencement Date”). Except as set forth in the Terms, all fees for the Services are non-refundable. No contract will exist between you and Tapcart for the Services until Tapcart accepts your order by a confirmatory e-mail, SMS/MMS message, or other appropriate means of communication.
Tapcart’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Tapcart, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Tapcart for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that Tapcart is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
9.5. Automatic Renewal.
Your subscription will continue indefinitely until terminated in accordance with the Terms. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and continue for an additional equivalent period, at Tapcart’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription at least (a) thirty (30) days prior to the Renewal Commencement Date (or in the event that you receive a notice from Tapcart that your subscription will be automatically renewed, you will have thirty days from the date of the Tapcart notice), by logging into and going to the “Change/Cancel Membership” page of your “Account Settings” page. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Tapcart at (844) 582-7227 or log in and go to the “Account” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Tapcart to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Tapcart does not receive payment from your Payment Provider, (i) you agree to pay all amounts due on your Account upon demand, and/or (ii) you agree that Tapcart may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived. Billing disputes should be notified to the following address: email@example.com.
You agree to indemnify and hold Tapcart, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Tapcart Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, Tapcart Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations. Tapcart reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Tapcart in asserting any available defenses. This provision does not require you to indemnify any of the Tapcart Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to Tapcart Properties.
11. Disclaimer of Warranties and Conditions.
11.1. As Is.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TAPCART PROPERTIES IS AT YOUR SOLE RISK, AND TAPCART PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TAPCART PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES OR APPS.
11.1.1. TAPCART PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) TAPCART PROPERTIES OR ANY APPS WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF TAPCART PROPERTIES OR APPS WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF TAPCART PROPERTIES OR APPS WILL BE ACCURATE OR RELIABLE.
11.1.2. ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH TAPCART PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS TAPCART PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
11.1.3. THE SERVICES AND APPS MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TAPCART MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
11.1.4. From time to time, Tapcart may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Tapcart’s sole discretion. The provisions of this section apply with full force to such features or tools.
11.2. No Liability for Conduct of Third Parties.
YOU ACKNOWLEDGE AND AGREE THAT TAPCART PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TAPCART PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES ON THE SERVICES, INCLUDING ANY THIRD-PARTY ACCOUNT PROVIDER OR ANY OTHER OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
11.3. No Liability for Conduct of Other Users or Customers.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TAPCART PROPERTIES OR ANY USERS OF YOUR APPS, INCLUDING YOUR CUSTOMERS. YOU UNDERSTAND THAT TAPCART DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF TAPCART PROPERTIES.
12. Limitation of Liability.
12.1. Disclaimer of Certain Damages.
YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TAPCART PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH TAPCART PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TAPCART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS (INCLUDING THE SERVICES AND THE APPS), OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF TAPCART PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE TAPCART PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH TAPCART PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON TAPCART PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO TAPCART PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TAPCART PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TAPCART PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TAPCART PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION. [UK: TAPCART DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY TAPCART’S NEGLIGENCE; (B) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (C) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EU LAW.]
12.2. Cap on Liability.
UNDER NO CIRCUMSTANCES WILL TAPCART PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Tapcart by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TAPCART PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TAPCART PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TAPCART PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
12.3. User Content.
12.4. Basis of the Bargain.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TAPCART AND YOU.
13. Procedure for Making Claims of Copyright Infringement.
It is Tapcart’s policy to terminate membership privileges of any User who repeatedly infringes copyright upon prompt notification to Tapcart by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Tapcart Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on Tapcart Properties of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Tapcart’s Copyright Agent for notice of claims of copyright infringement is as follows: Tapcart, 1417 6th St, Floor 2, Santa Monica, CA 90401.
If Tapcart becomes aware of any possible violations by you of the Terms, Tapcart reserves the right to investigate such violations. If, as a result of the investigation, Tapcart believes that criminal activity has occurred, Tapcart reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Tapcart is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Tapcart Properties, including Your Content, in Tapcart’s possession in connection with your use of Tapcart Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Tapcart, its Users or the public, and all enforcement or other government officials, as Tapcart in its sole discretion believes to be necessary or appropriate.
In the event that Tapcart determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for Tapcart Properties, Tapcart reserves the right to:
14.2.1. Warn you via e-mail (to any e-mail address you have provided to Tapcart) that you have violated the Terms;
14.2.2. Delete any of Your Content provided by you or your agent(s) to Tapcart Properties;
14.2.3. Discontinue your registration(s) with the any of Tapcart Properties, including any Services or any Tapcart community;
14.2.4. Discontinue your subscription to any Services;
14.2.5. Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
14.2.6. Pursue any other action which Tapcart deems to be appropriate.
15. Term and Termination.
The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Tapcart Properties, unless terminated earlier in accordance with the Terms.
15.2. Prior Use.
Notwithstanding the foregoing, if you used Tapcart Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used Tapcart Properties (whichever is earlier) and will remain in full force and effect while you use Tapcart Properties, unless earlier terminated in accordance with the Terms.
15.3. Termination of Services by Tapcart.
If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Terms, or if Tapcart is required to do so by law (e.g., where the provision of the Website, the Tapcart Application, the Software or the Services is, or becomes, unlawful), Tapcart has the right to, immediately and without notice, suspend or terminate any Services provided to you, including any Apps. You agree that all terminations for cause shall be made in Tapcart’s sole discretion and that Tapcart shall not be liable to you or any third party for any termination of your Account.
15.4. Termination of Services by You.
If you want to terminate the Services provided by Tapcart, you may do so by (a) notifying Tapcart at any time and (b) closing your Account for all of the Services that you use. Your notice should be sent, in writing, to Tapcart’s address set forth below. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION AS ALLOWED FOR UNDER THESE TERMS.
15.5. Effect of Termination.
Termination of the Services includes removal of access to the Services, including any Apps developed through the Services, and barring of further use of the Service or Apps. Termination of all Services also includes deletion of your information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. Tapcart will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
15.6. No Subsequent Registration.
If your registration(s) with or ability to access Tapcart Properties, or any other Tapcart community is discontinued by Tapcart due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Tapcart Properties or any Tapcart community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Tapcart Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, Tapcart reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
16. International Users.
Tapcart Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Tapcart intends to announce such Services or Content in your country. Tapcart Properties are controlled and offered by Tapcart from its facilities in the United States of America. Tapcart makes no representations that Tapcart Properties are appropriate or available for use in other locations. Those who access or use Tapcart Properties from other countries do so at their own volition and are responsible for compliance with local law.
17. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Tapcart and limits the manner in which you can seek relief from us.
17.1. Applicability of Arbitration Agreement.
You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Tapcart, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Tapcart may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.IF YOU AGREE TO ARBITRATION WITH TAPCART, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TAPCART ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE TAPCART IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
17.2. Arbitration Rules and Forum.
The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at https://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at https://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Tapcart will pay them for you. In addition, Tapcart will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, Tapcart will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
17.3. Authority of Arbitrator.
The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Tapcart. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
17.4. Waiver of Jury Trial.
YOU AND TAPCART HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Tapcart are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 17.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
17.5. Waiver of Class or Consolidated Actions.
ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Section 18.7.
17.6. 30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Tapcart, 1417 6th St, Floor 2, Santa Monica, CA 90401, or by emailing firstname.lastname@example.org, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Tapcart username (if any), the email address you used to set up your Tapcart account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
17.8. Survival of Agreement.
This Arbitration Agreement will survive the termination of your relationship with Tapcart.
Notwithstanding any provision in this Agreement to the contrary, we agree that if Tapcart makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Tapcart.
18. General Provisions.
18.1. Electronic Communications.
The communications between you and Tapcart use electronic means, whether you visit Tapcart Properties or send Tapcart e-mails, or whether Tapcart posts notices on Tapcart Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Tapcart in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tapcart provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
You hereby release Tapcart Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of Tapcart Properties, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of Tapcart Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor. The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Tapcart Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tapcart’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
18.4. Force Majeure.
Tapcart shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
18.5. Questions, Complaints, Claims.
If you have any questions, complaints or claims with respect to Tapcart Properties, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
18.6. Exclusive Venue.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Tapcart agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in California.
18.7. Governing Law.
The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
Where Tapcart requires that you provide an e-mail address, you are responsible for providing Tapcart with your most current e-mail address. In the event that the last e-mail address you provided to Tapcart is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Tapcart’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tapcart at the following address: 1417 6th St, Floor 2, Santa Monica, CA 90401. Such notice shall be deemed given when received by Tapcart by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
18.11. Export Control.
You may not use, export, import, or transfer Tapcart Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Tapcart Properties, and any other applicable laws. In particular, but without limitation, Tapcart Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Tapcart Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Tapcart Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Tapcart are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Tapcart products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
18.12. Accessing and Download the Tapcart Application from iTunes.
The following applies to any App Store Sourced Tapcart Application accessed through or downloaded from the Apple App Store:
18.12.1. You acknowledge and agree that (i) the Terms are concluded between you and Tapcart only, and not Apple, and (ii) Tapcart, not Apple, is solely responsible for the App Store Sourced Tapcart Application and content thereof. Your use of the App Store Sourced Tapcart Application must comply with the App Store Terms of Service.
18.12.2. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Tapcart Application.
18.12.3. In the event of any failure of the App Store Sourced Tapcart Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Tapcart Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Tapcart Application. As between Tapcart and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Tapcart.
18.12.4. You and Tapcart acknowledge that, as between Tapcart and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Tapcart Application or your possession and use of the App Store Sourced Tapcart Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Tapcart Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
18.12.5. You and Tapcart acknowledge that, in the event of any third-party claim that the App Store Sourced Tapcart Application or your possession and use of that App Store Sourced Tapcart Application infringes that third party’s intellectual property rights, as between Tapcart and Apple, Tapcart, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Terms.
18.12.6. You and Tapcart acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related to your license of the App Store Sourced Tapcart Application, and that, upon your acceptance of the terms and conditions of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms as related to your license of the App Store Sourced Tapcart Application against you as a third-party beneficiary thereof.
18.12.7. Without limiting any other terms of the Terms, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Tapcart Application.
18.13. Consumer Complaints.
In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
18.14. Entire Agreement.
The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.