TapFire Terms of Service
These TapFire Terms of Service (this “Agreement”) is between TapInfluence, Inc., a Delaware corporation (“TapInfluence”), and You, or, if you represent an entity or other organization, that entity or organization (in either case “You” or “User”) and provides the terms and conditions under which You may use the TapFire Service (the “Services”). The effective date of this agreement shall be the date that You click thru acceptance of the terms of this Agreement.
All Services will be provided subject to the terms of this Agreement, and if You wish to use the Services You may do so only in compliance with the terms of this Agreement.
Without limiting the foregoing, You must be over the age of 18 and meet any of the other qualifications included in this Agreement. If You are 13 or older and younger than 18, then You may access and use the Services only if You have your parents’ or guardians’ prior permission. By accessing the Services, You represent that You are at least 18 or that You are at least 13 and have your parents’ prior permission to do so. If You are a parent or guardian providing permission for a child age 13 or older to access the Services, then You agree to accept full responsibility for that child’s use of the Services under this Agreement. You may access the Services solely for lawful purposes and only in accordance with the terms of this Agreement. TapInfluence reserves the right at any time and in its sole discretion to modify, suspend, or discontinue the Services, with or without notice.
PLEASE CAREFULLY READ THIS AGREEMENT. BY CLICKING ON THE “ACCEPT” BUTTON BELOW OR BY OTHERWISE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING THE SERVICES, YOU ACKNOWLEDGE HAVING READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT AS OF THE DATE ON WHICH YOU FIRST CLICK THE “ACCEPT” BUTTON, OTHERWISE ACCEPT THIS AGREEMENT, OR ACCESS OR USE THE SERVICES (THE “EFFECTIVE DATE”).
IF YOU DO NOT AGREE TO THIS AGREEMENT, OR DO NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, TAPINFLUENCE IS UNWILLING TO ALLOW YOU TO ACCESS OR USE THE SERVICES.
- The term of this Agreement will begin on the Effective Date and will continue unless terminated in accordance with this Agreement.
2.1 Access and Use. The Services include hosted software, provided as a “service” delivered through TapInfluence’s web-based distribution platform, also known as TapFire (the “Platform”). The Platform enables engagement with online influencers (“Influencers”) for the distribution of content (“Posts”) through social media and other online channels.
2.2 Account. Your access to the Platform will be provided through a user account (an “Account”). You may be authorized (“User”) to access the Platform through your Account. You will be required to establish your own user identification and password (“User ID”) through which You may access the Platform. Each User ID is personal in nature and may be used only by that User. You are responsible for all access to and use of the Platform and for compliance with the terms of this Agreement. You will not allow any access to or use of the Platform by anyone other than yourself. You commit that all use of the Platform will be consistent with the terms, conditions and restrictions set forth in this Agreement. You will notify TapInfluence immediately of any unauthorized access to or use of the Platform or if your User ID is lost, stolen, or otherwise compromised. You will remain fully responsible for all access to or use of the Platform or any Services through Your Account.
3.1 General. You acknowledge that the Platform and all software, hardware, databases, and other technology used by or on behalf of TapInfluence to provide the Platform and Services (collectively, the “Technology”) and their structure and organization constitute valuable trade secrets of TapInfluence and its providers. You will not: (a) access or use the Technology except as expressly provided in this Agreement; (b) use the Technology in a manner that violates any applicable law or regulation or causes TapInfluence to violate any applicable law or regulation; (c) damage, disable, overburden, or impair the Technology; (d) use automated scripts to collect information from or interact with the Technology; (e) alter, modify, reproduce, create derivative works of the Technology; (f) provide any third party access to the Technology (including by distributing, selling, loaning, leasing, licensing, or transferring rights); (g) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or method of operation of the Technology; (h) attempt to circumvent or overcome any protection measures intended to restrict or prevent unauthorized access to the Technology; (i) monitor availability, performance or functionality of the Technology or perform any benchmarking, business intelligence, data mining, or competitive analysis of the Technology; or (j) interfere with the operation or hosting of the Technology.
3.2 Third Party Functionality. Platform may contain or include functionality and software provided or licensed by third-parties (“Third-Party Functionality”). For any Third-Party Functionality clearly indicated to be subject to the terms of a separate agreement (a “Third-Party Agreement”), the terms of the applicable Third-Party Agreement will apply to the Third-Party Functionality independent of the terms of this Agreement. All other Third-Party Functionality provided to You through the Platform may be used only under the terms of this Agreement. Nothing in this Agreement limits Your rights under the terms of any such applicable Third-Party Agreement.
4.1 Customer Data. You retain all rights, including all IPR (as defined below), in and to all data, information, and other content, including any text, files, images, graphics, illustrations, information, data, audio, video, photographs, completed program performance and analytics (“Data”) provided by You (“Customer Data”).
4.2 Influencer Data. Service Provider agrees to assign to Subscriber all rights, including all IPR, obtained or held by Service Provider in or to all Data provided or authored by any Influencer on behalf of Subscriber through the Services (“Influencer Data”). As a condition to such assignment, Subscriber agrees to provide each applicable Influencer with attribution as the author of such Influencer Data whenever such influencer Data is Used by Subscriber, whether through the Platform or otherwise.
4.4 Submissions.TapInfluence has no responsibility or liability for any submission, response, comment, or other feedback provided or obtained from any third party in response to any Post (“Submissions”) or any Use of any Submissions.
4.5 Platform Data. Except for any Customer Data, Influencer Data, and Submissions, all other Data made available or provided through the Platform (“Platform Data”) is owned by TapInfluence and its providers. Except as expressly set forth in this Agreement, You are not granted any licenses or other rights in or to any Platform Data or any Use thereof.
5. Branding. You will identify and approve of all trademarks, service marks, trade names and other identifiers (“Your Marks“) to be used by TapInfluence and applicable Influencers in connection with providing the Services. You grant TapInfluence a license, with a limited right of sublicense to Influencers generating and distributing Posts, to use Your Marks in connection with providing the Services under this Agreement. You agree that You have obtained all rights in and to all marks necessary to permit TapInfluence and each applicable Influencer to provide the Services and perform the other obligations under this Agreement. TapInfluence agrees that Your Marks are and will remain your sole property and that all use of any of Your Marks and all goodwill developed therein will inure solely to your benefit. All use of Your Marks by TapInfluence will comply with the terms of this Agreement and any reasonable trademark usage requirements provided by You to TapInfluence in connection with this Agreement, provided that those limitations do not restrict TapInfluence from performing the Services or its other obligations under this Agreement.
6. Payment. User will provide the budget to be used by TapInfluence for each request of Services by inputting such budget into the Platform (“Fees”). Fees are based on our estimate of the cost to deliver a desired level of engagement (defined as an action taken by a viewer on the Posts, e.g. a ‘like’, ‘retweet,’ ‘re-pin’ etc.). We estimate that for every $100 spent on the Services, your Posts will receive between 74 and 122 unique engagements, although the number of engagements is not guaranteed and the actual number of engagements may be higher or lower. Upon acceptance of said budget for Services, TapInfluence will notify User via email of acceptance and the processing of Fees. You agree to provide TapInfluence with valid and updated credit card information, or other alternative payment method as may be acceptable to TapInfluence in its sole discretion (“Preferred Payment Method”). By using the Platform, You hereby authorize TapInfluence to submit payment to your Preferred Payment Method for all Services approved by TapInfluence. With limited exceptions described below, once Services have been approved, and payment has been processed, all Fees are non-refundable and not subject to set-off, unless legally required. Payments made by You for which Services are not performed (for example, if we are unable to obtain enough participating Influencers to deliver the Services) are eligible to be refunded or applied as payment for future Services. You are responsible for providing and maintaining complete and accurate billing and contact information to TapInfluence for continued access to the Services. Any Fees past due will bear an additional charge of the lesser of 1½% per month or the maximum amount permitted under applicable law.
7. Termination or Suspension. This Agreement may be terminated by either party upon thirty (30) days following notice. In addition, TapInfluence may also temporarily suspend access to and use of the Platform and Services upon notice to You following any actual or suspected breach of this Agreement or applicable law or to prevent any other conduct deemed by TapInfluence to be harmful, inappropriate, or detrimental to the Platform or to TapInfluence. TapInfluence will reinstate access to the Platform or Services, as applicable, following resolution of any such conduct. Upon any termination or expiration of this Agreement: (1) all rights and license granted to You under this Agreement will terminate; (2) You will immediately cease all use of and access to the Platform and Services; (3) all Fees then owed by You will become immediately due and payable; (4) You will immediately either return to TapInfluence or, at TapInfluence’s discretion, destroy all TapInfluence Confidential Information (as defined below) in your possession or control. The following Sections will survive termination or expiration of this Agreement for any reason: 7 (Payment) 8 (Termination), 9 (Ownership), 11 (Indemnification), 12 (Limitation of Liability), 13 (Data Privacy), 14 (Confidentiality), 15 (Governing Law), 16 (Notice), and 17 (General).
8. Ownership. TapInfluence retains all right, title, and interest, including all IPR (as defined below), in and to the Platform, Services, Technology, Platform Data and any additions, improvements, updates, and modifications thereto. You acknowledge that You are not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to You to use it apart from your right to access the Services under this Agreement. The TapInfluence name, logo, and the product and service names associated with the Services are trademarks of TapInfluence (or its third party providers), and no right or license is granted to You to use them. For purposes of this Agreement, “IPR” means any and all intellectual property and proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information or intangible property throughout the world, including all copyrights, trademarks, service marks, trade secrets, patent rights, moral rights, rights in data or databases, and contract rights.
9. Performance and Disclaimer. All Services and the Platform provided by TapInfluence is provided “AS IS” and TAPINFLUENCE MAKES NO REPRESENTATION OR WARRANTY REGARDING THE SERVICES, PLATFORM, SOFTWARE, OR PLATFORM DATA AND DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, PLATFORM, OR PLATFORM DATA, INCLUDING ALL WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE.
10.1 By TapInfluence. TapInfluence shall indemnify, defend, and hold You harmless from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorney’s fees) that may be incurred in whole or in part by reason of any third party claim or action to the extent such claim or action alleges that the use or operation of the Platform by You in accordance with this Agreement infringes or misappropriates any third party copyright, trademark, or trade secret or that TapInfluence knowingly infringed any third party U.S. patent in the development or operation of the Platform. If the Platform becomes, or if TapInfluence believes that the Platform is likely to become, the subject of a claim of infringement or misappropriation, TapInfluence may, in its sole discretion, replace or modify the Platform, procure for You the right to continue using the Platform, or terminate this Agreement and require You to immediately cease access to and use of the Platform. TapInfluence shall not be liable for any costs or expenses incurred by You in connection with any claim of infringement or misappropriation without TapInfluence’s prior written authorization. TapInfluence shall have no obligation under this Section 11.1 as to any claim or action arising out of or related to: (a) your failure to use the Platform in accordance with this Agreement, any documentation applicable to the Platform, or TapInfluence’s instructions; (b) Your modification of the Platform not specifically authorized in writing by TapInfluence; (c) the combination of any portion of the Platform with any third party software, equipment, service, or data; and (d) any breach by You of this Agreement. THIS SECTION 11.1 STATES TAPINFLUENCE’S ENTIRE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS OR ACTIONS RELATING TO OR ARISING OUT OF THE PLATFORM OR SERVICES.
10.2 You will indemnify, defend, and hold harmless TapInfluence and its officers, directors, employees, representatives, and agents from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorney’s fees) that may be incurred in whole or in part by reason of any claim or action to the extent such claim or action directly or indirectly from: (a) any use by TapInfluence or any Influencer of any of Your Marks; (b) any Use by You or any third party of any Customer Data or Influencer Data; (c) your gross negligence or willful misconduct (d) any breach by You or any User of this Agreement.
10.3 Procedure. Each party seeking indemnification from the other party under this Section will give the indemnifying party prompt notice of any claim subject to this Section, grant the indemnifying party sole control of the defense or settlement of any claim or action subject to indemnification, and provide the indemnifying party with reasonable cooperation and assistance, at the request and expense of the indemnifying party, in the defense or settlement of any claim or action subject to indemnification under this Section.
11. Limitation of Liability. Except in the case of (1) a User’s obligations under Section 14 (Indemnification), (2) a User’s breach of Section 17 (Confidentiality), or (3) a User’s breach of its obligations regarding the IPR of TapInfluence: (a) neither party will be liable to the other party for any consequential, incidental, indirect, special, exemplary, or punitive damages of any kind, including any loss of use or access, loss of business or loss of revenue or profit, arising out of or in connection with this Agreement or the Platform or Services, whether in contract, tort, or otherwise, even if such party is aware (or should have been aware) of the possibility of such damages; and (b) the total cumulative liability of each party in connection with this Agreement, whether in contract, tort, or otherwise, will not exceed any amounts actually paid to TapInfluence by User under this Agreement under which such liability arose during the 3 month period immediately preceding the events giving rise to such liability.
13. Confidentiality. For purposes of this Agreement, the “Confidential Information” of each party means all nonpublic information disclosed or made available under this Agreement by that party to the other party, including regarding the business, finances, services or technology of that party. Any information about Influencers (including contact information) is the Confidential Information of the TapInfluence. Confidential Information shall not include any information that the party receiving any information can demonstrate: (1) was already lawfully known to that party at the time of disclosure by the other party; (2) is disclosed to that party by a third party who had the right to make such disclosure without any confidentiality restrictions or other obligations as to the information disclosed; or (3) is, or through no fault of that party has become, generally available to the public. Each party agrees to protect the other party’s Confidential Information with the degree of care that such party uses to protect its own confidential information of like nature, but in no case less than reasonable care. Each party agrees that, except as expressly directed by the other party, it will not at any time during or after the term of this Agreement: (a) disclose any Confidential Information to any third party; (b) permit any third party to examine and/or make copies of any reports, documents or electronic data containing Confidential Information; or (c) use any of the Confidential Information for any reason other than for the purposes of this Agreement. Notwithstanding the foregoing, each party will be allowed to disclose Confidential Information of the other party solely to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the party notifies the other party of such required disclosure promptly and in writing and cooperates with the other party in any lawful action to contest or limit the scope of such required disclosure.
14. Governing Law. The interpretation of the rights and obligations of the parties under this Agreement, including, to the extent applicable, any proceedings relating to this Agreement, will be governed in all respects exclusively by the laws of the State of Colorado, U.S.A. as such laws apply to contracts between Colorado residents performed entirely within Colorado. Each party agrees that it will bring any action or proceeding arising from or relating to this Agreement exclusively in a federal court in the District of Colorado, U.S.A. or in state court in Denver, Colorado U.S.A., and You irrevocably submit to the personal jurisdiction and venue of any such court in any such action or proceeding or in any action or proceeding brought in such courts by TapInfluence.
15. Notice. All notices permitted or required under this Agreement will be in writing, delivered by personal delivery, electronic mail, facsimile transmission or by certified or registered mail, return receipt requested, and will be deemed given upon personal delivery, 5 business days after deposit in the mail, first class postage prepaid, or upon acknowledgment of receipt of electronic transmission. Notices from TapInfluence to You may be sent to the electronic mail address associated with your Account. Notices from You to TapInfluence may be sent through the Services, or to an officer of TapInfluence at TapInfluence’s mailing address provided on the Platform (or such other address as TapInfluence may specify in writing).
16. General. The parties are independent contractors and nothing in this Agreement will create an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation or commitment on behalf of the other party. No modification or amendment of this Agreement will be effective unless made in writing and signed by both parties. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect. No term of this Agreement will be construed to confer any rights upon any third party or to create any third-party beneficiary rights. All remedies under this Agreement are cumulative with all other rights and remedies herein or in any other agreement between the parties or under applicable law. Nothing in this Agreement will limit either party’s right to seek immediate injunctive or other equitable relief in any court of competent jurisdiction. The parties acknowledge and agree that monetary damages may be inadequate to compensate for a breach of this Agreement. The prevailing party in any lawsuit or proceeding arising from or related to this Agreement will be entitled to receive its costs, expert witness fees and reasonable attorneys’ fees, including costs and fees on appeal. Neither this Agreement nor any rights or obligations hereunder may be assigned, transferred, or delegated by either party in whole or in part, by operation of law or otherwise, without the prior written approval of the other party, except that either party may assign this Agreement without consent (1) to any of its affiliates or (2) to any third party pursuant to any merger, consolidation, sale of the stock, sale of all or substantially all of the business, or reorganization involving the assigning or transferring party, provided that prior to such assignment or transfer all such assignees and transferees agree in writing to be bound by the terms and conditions of this Agreement. Any attempt to assign or otherwise transfer this Agreement or the rights or obligations under this Agreement will be void. This Agreement will be binding upon, inure to the benefit of, and will be enforceable by and against, the successors, heirs, beneficiaries, personal representatives, and permitted assigns of each party. Any failure of TapInfluence to perform or delay in the performance of TapInfluence’s obligations under this Agreement due to any cause or event not reasonably within TapInfluence’s control, including but not limited to casualty, labor dispute, failure of equipment or carriers or utilities, compliance with governmental authority or Act of God, shall not constitute a breach of this Agreement, and TapInfluence’s performance shall be excused during such period of delay.