Subscription Agreement - Terms
Last Modified: 04-08-2020
If you elect to utilize the local marketing services each of which include different features (“Local Marketing Services”), the following terms and conditions are a legal agreement that govern your use of any Local Marketing Services (collectively, “Subscription Agreement”). “You”, “Client” and “your” will refer to the business by which the individual accepting this Subscription Agreement is employed by or otherwise engaged and “TAPLocal”, “we”, “our”, or “us” will refer to Transactions and Promotions Inc., an Arizona corporation, its Affiliates and third party service providers. TAPLocal and Client are each referred to herein as a “Party,” and collectively as the “Parties.” An entity which (i) controls, (ii) is controlled by, or (iii) is under common control with Client or TAPLocal is referred to herein as an “Affiliate” of such Party.
BY USING OR ACCESSING THE LOCAL MARKETING SERVICES, ARE AGREEING TO THIS SUBSCRIPTION AGREEMENT.
- Subscriptions. TAPLocal offers various Local Marketing Service(s) that may be purchased as subscriptions. We reserve the right, in our sole discretion, to make any changes to the Local Market Services that we deem necessary or useful to (a) maintain or enhance: (i) the quality or delivery of Local Marketing Services to our customers, (ii) the competitive strength of or market for the Local Marketing Services or (iii) the cost efficiency or performance of Local Market Services; or (b) to comply with applicable law. The specific Local Market Service subscriptions you purchase will be identified in one or more separate order confirmations delivered to the email you provide to us and Your online order confirmation will provide you with the terms applicable to your subscription and will become part of these Subscription Agreement (each, a “Subscription”). To the extent any provisions of the order confirmation conflicts with these Subscription Agreement, the order confirmation will control. You may subscribe to additional Local Marketing Services by placing an additional order or activating the additional features from within your TAPLocal account (if this option is made available by us). This Subscription Agreement will apply to all additional order(s) and all additional features that you activate from within your TAPLocal account
- Access. During the Subscription Term, we will provide you access to use the services in your Subscription. Subscription Term means the initial term on your order form, and each subsequent renewal term (if any). For free Local Marketing Services, the Subscription Term will be the period during which you have an account to access the free Local Marketing Service. We might provide some or all elements of the Local Marketing Service through third party service providers. Your Affiliates may access and use the Local Marketing Service purchased under your subscription; provided that, all such access, use and receipt by your Affiliates is subject to and in compliance with the Subscription Agreement and you shall at all times remain liable for your Affiliates’ compliance with the Subscription Agreement.
- Client Content and Publishers.
- Client Content. Client Content means all business data and other information or content that you make available to us or is made available to us on your behalf in connection with the use of the Local Marketing Service. As between you and us, you retain ownership of all rights to the Client Content except as may otherwise be indicated on the online signup page or order confirmation.
- Publishers. Certain Local Marketing Services may involve distribution of your Client Content , including but not limited to business listing information (e.g. store location, hours of operation, and contact information) and/or other interactions with third parties (each, a “Publisher”) that own or operate online business directories, search web sites, social media web sites, mobile apps or other online properties (the “Publisher Sites”). Your acknowledge and agree that (i) all Client Content is subject to the Publisher’s character limits, quality standards and other applicable content policies, and that any such content may be rejected, in whole or in part, by a Publisher at any time in its sole discretion, or modified at any time to comply with such policies, (ii) TAPLocal does not guarantee that any Client Content will be displayed on any Publisher Site and (iii) the appearance and/or location of any Client Content placement may change at any time.
- Local Marketing Services.
- License. Subject to and conditioned on your payment of the fees and compliance with all the terms and conditions of this Subscription Agreement, we grant you a limited, non-exclusive, non-transferable right to access and use the Local Marketing Service(s) you purchased during the Subscription Term. You agree to make available the Client Content that you know to be true and which relates to your own business. You are responsible for all use of the Local Marketing Service(s) by your Affiliates, distributors, franchisees and by any third persons acting on your behalf and yourself. You agree to take commercially reasonable measures to safeguard all information related to the access and use of the Local Marketing Service(s), including (but not limited to) login information, account passwords and API keys, if applicable. If you become aware of any unauthorized access of any of your accounts, you shall immediately notify TAPLocal in writing and shall work cooperatively with TAPLocal to resolve problems related to unauthorized access.
- Restrictions on Client’s Use. Except as expressly provided in this Subscription Agreement you will not: (i) copy, modify, prepare derivative works of, decompile or reverse engineer any Local Marketing Service, or any portion of any of the Local Marketing Services, (ii) use the Local Marketing Services to store or transmit any malware, or for any unlawful or fraudulent purpose, (iii) use the Local Marketing Services to create or assist a third party in creating a competing Local Marketing Service, (iv) bypass or breach any security device or protection used by the Local Marketing Services, (v) access or use the Local Marketing Services in any manner or for any purpose that infringes or misappropriates or otherwise violates any intellectual property right of any third party or (vi) sell, resell, license, sublicense, distribute, rent or lease any Local Marketing Service.
- Proprietary Rights. Except as expressly provided in this Subscription Agreement, as between Client and TAPLocal, TAPLocal owns and retains all right, title and interest (including all intellectual property rights) in and to the Local Marketing Services, including all aspects of the technology and branding, and any software or other materials including without limitation any analytics, reports or aggregated, anonymized data developed or created by or on behalf of TAPLocal in connection with delivery of the Local Marketing Services hereunder. Nothing in this Subscription Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Local Marketing Services, whether expressly, by implication, estoppel or otherwise.
- TAPLocal’s Use of Client Content. If TAPLocal identifies any Client Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with a Publisher’s formatting guidelines (e.g. use of unsupported special characters), TAPLocal may (but is not required to), in addition to its other available rights and remedies, modify the Client Content to render it true.
- You acknowledge that various Local Marketing Services involve the provision of Client Content to Publishers for use and publication, and that such Publishers may require nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights (or a subset of such rights) with respect to such Client Content, including, but not limited to, rights to publish and syndicate such Client Content.
- You grant TAPLocal and its Affiliates and each applicable Publisher a worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited, sublicensable (through multiple tiers of sublicensees) license to use, reproduce, prepare derivative works of, display and distribute the Client Content in each case only to the extent required by such Publisher.
- Representations, Warranties and Covenants; Disclaimer.
- Representations, Warranties and Covenants. Each Party represents, warrants and covenants that as of the Subscription date and at all times during the term of this Subscription Agreement: (i) this Subscription Agreement constitutes a valid and binding obligation and is enforceable against a Party in accordance with the terms of this Subscription Agreement; and (ii) has all corporate authority required to enter into this Subscription Agreement. You represent, warrant and covenant that as of the Subscription date and at all times during the term of this Subscription Agreement you have obtained, and grants to TAPLocal, sufficient rights to access and use Client Content to deliver the Local Marketing Services in accordance with this Subscription Agreement.
- Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6(a), ALL LOCAL MARKETING SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE LOCAL MARKETING SERVICES OR THIS SUBSCRIPTION AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, COMPLIANCE WITH any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TAPLOCAL SHALL HAVE NO LIABILITY FOR ANY PUBLISHER SITES, INCLUDING THEIR AVAILABILITY OR ANY CHANGE IN THE PUBLISHER SITES, FOR ANY DECISION BY A PUBLISHER TO REJECT OR MODIFY ANY CONTENT SUBMITTED BY CLIENT, OR FOR ANY OTHER DECISION, CHANGE OR OTHER ACTION DESCRIBED IN CLAUSES (i), (ii) OR (iii) OF SECTION 3(b) (“PUBLISHERS”) OF THIS SUBSCRIPTION AGREEMENT. To the extent that a Party may not as a matter of applicable law disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such law.
- Liability Exclusion. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM SUCH OTHER PARTY’S RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, LOSS OF DATA, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE LOCAL MARKETING SERVICES OR OTHERWISE ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT (INCLUDING ANY SUBSCRIPTION), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
- Limitation of Damages. EACH PARTY’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE LOCAL MARKETING SERVICES OR OTHERWISE ARISING OUT OF OR RELATING TO THIS SUBSCRIPTION AGREEMENT (INCLUDING ANY SUBSCRIPTION), REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE), WILL NOT EXCEED, IN THE AGGREGATE FOR ALL CLAIMS, THE TOTAL FEES PAID BY CLIENT TO TAPLOCAL UNDER THIS SUBSCRIPTION AGREEMENT DURING THE THREE (3) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE FIRST CLAIM ARISES.
- Exceptions. Notwithstanding anything to the contrary, the exclusions and limitations set forth in Section 7(b) will not apply with respect to: (i) any damages arising from a Party’s fraud or willful misconduct, (ii) Section 8.1 (c), any breach of Section 4, (iv) Client’s failure to pay any fees due under this Subscription Agreement or any Subscription.
- Client’s Indemnity Obligation. Client will defend, indemnify, and hold harmless, TAPLocal and its affiliates, and each of its and their respective officers, directors, employees, Publishers, contractors, third party providers and agents (collectively, “TAPLocal Indemnitees”) from and against any and all claims, actions, lawsuits and investigations brought by a third party (“Third Party Claims”) and will pay any settlements, awards, fines and reasonable attorney’s fees and expenses and court costs (collectively, “Losses”) associated with such Third Party Claims, in each case to the extent arising from or relating to any Client Content and/or the conduct of Client’s business (including, but not limited to, any allegation that any Client Content infringes any third party patents, trademarks, copyrights or other proprietary rights, constitutes false advertising or is defamatory and/or that the Client Content or the conduct of Client’s business is in violation of any applicable law or regulation).
- TAPLocal Indemnity Obligation. TAPLocal will defend, indemnify, and hold harmless, Client and its affiliates, and each of its and their respective officers, directors, employees, contractors and agents (collectively, “Client Indemnitees”) from and against Third Party Claims and will pay any Losses associated with such Third Party Claims, in each case to the extent arising from or relating to: any allegation that TAPLocal’s provision of the Local Marketing Services (excluding, for the avoidance of doubt, any Client Content or third party content provided through the Local Marketing Services) infringes or misappropriates third party intellectual property rights; provided, however, that this indemnity will not apply to the extent the Third Party Claim is caused by: (i) the unauthorized (by TAPLocal) alteration or modification of the Local Marketing Services by a Client Indemnitee, (ii) use of the Local Marketing Services in violation of this Subscription Agreement, (iii) the combination, operation or use of the Local Marketing Services with any Local Marketing Service, device, software or service not supplied by TAPLocal to the extent the combination creates the infringement, or (iv) TAPLocal’s compliance with Client’s designs, specifications, requests, or instructions by Client to the extent the Third Party Claim is based on such compliance.
- Indemnity Procedures. A Party seeking indemnification for a Third Party Claim under this Subscription Agreement will (i) give the other Party (the “Indemnitor”) written notice of the Third Party Claim promptly; provided, however, that the failure to give timely notice hereunder will not affect rights to indemnification hereunder, except to the extent that Indemnitor demonstrates actual prejudice caused by such failure; and (ii) give the Indemnitor primary control of the defense of the Third Party Claim and negotiations for its settlement. The Indemnitor will have the right to compromise, settle or otherwise dispose of the same, if the Indemnitor deems it advisable to do so, all at the expense of the Indemnitor; provided, however, that the Indemnitor will not settle, or consent to any entry of judgment in, any such Third Party Claim without obtaining either: (i) an unconditional release of the Party seeking indemnity (and all other Client Indemnitees or TAPLocal Indemnitees, as applicable) from all liability with respect to all claims underlying such Third Party Claim or (ii) the prior, written consent of the Party seeking indemnity. The Parties will reasonably cooperate with each other in any such Third Party Claim. If TAPLocal believes the Local Marketing Services infringe or may be alleged to infringe a third party’s intellectual property rights, then TAPLocal may, in its discretion: (i) obtain the right for Client, at TAPLocal’s expense, to continue using the Local Marketing Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Local Marketing Services so that they no longer infringe. If TAPLocal does not believe the options described in this section are commercially reasonable, then TAPLocal upon 30 days’ written notice, may terminate Client’s Subscription Schedule(s) or Statement(s) of Work for the affected Local Marketing Services and provide Client with a refund of any prepaid fees covering the remainder of the term of the terminated Subscription Schedule(s) or Statement(s) of Work for the affected Local Marketing Services.
- By virtue of this Subscription Agreement, the Parties (including the Parties’ Affiliates) may have access to information that is confidential or proprietary to one another (“Confidential Information”). Confidential Information shall mean any information that is directly or indirectly disclosed or made accessible by or on behalf of a Party (or its Affiliates) (the “Disclosing Party”) that is marked as confidential or which, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential or proprietary, including Local Marketing Service specifications, pricing, data, proposals, business models, marketing plans and strategic plans, customer and employee information, financial information, software, reports or forms of the Disclosing Party.
- The Party (or its Affiliates) receiving Confidential Information of the other (the “Receiving Party”) agrees to use such Confidential Information solely to perform its respective obligations under this Subscription Agreement and will take reasonable measures to avoid unauthorized disclosure or use, including, but not limited to, taking at least those measures it takes to protect its own similar Confidential Information. Each Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to the Receiving Party’s employees and Representatives (defined below), except to those that have a need to know such information and who are already legally bound to maintain its confidentiality. The Parties acknowledge and agree that breach of this Section 9 may cause irreparable harm to a Disclosing Party, entitling the Disclosing Party to seek injunctive relief without requiring the posting of a bond in addition to all legal or equitable remedies available. Confidential Information shall not, however, include any information which (i) is publicly known and is made generally available through no fault of the Receiving Party; (ii) is already in the possession of the Receiving Party without obligation of confidentiality at the time of disclosure by the Disclosing Party as shown by the Receiving Party’s written records; (iii) is obtained by the Receiving Party from a third party without, to Receiving Party’s knowledge, a breach of such third party’s obligations of confidentiality; (iv) is independently developed by the Receiving Party without use of or reference to a Disclosing Party’s Confidential Information, as shown by the Receiving Party’s documentary records; or (v) is part of the Client Content.
- General Provisions.
- Assignment. Neither Party may assign or otherwise transfer this Subscription Agreement without the prior, written consent of the other Party; provided, however, that, notwithstanding the foregoing, a Party may, without the consent of the other Party, assign or otherwise transfer this Subscription Agreement (including all of such Party’s rights and obligations hereunder) to any of its Affiliates, subsidiaries, or to an entity with or into which it is merged or consolidated or to which it sells its stock or other equity interests or all or substantially all of its assets. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Subscription Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
- Representatives. Except as where otherwise stated, each Party is permitted to use contractors, agents and professional advisors (“Representatives”) in connection with this Subscription Agreement but is liable for their acts and omissions.
- Force Majeure. Except with respect to failure to pay any amount due under this Subscription Agreement, nonperformance of either Party will be excused to the extent that performance is rendered impossible by acts of god, strike, fire, flood, governmental acts, orders or restrictions, failure of suppliers, internet failure, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing Party.
- No Waiver. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the party so charged.
- Severability. If any provision of this Subscription Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Subscription Agreement will remain in full force and effect, and, if legally permitted, such offending provision will be replaced with an enforceable provision that as nearly as possible effects the Parties’ intent.
- Entire Subscription Agreement. This Subscription Agreement (including any Subscription) contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior Subscription Agreements and commitments with respect thereto. There are no other oral or written understandings, terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Subscription Agreement. To the extent Client provides a purchase order or similar document that includes additional terms and conditions, such terms and conditions shall be deemed rejected and of no effect with regards to this Subscription Agreement and the Local Marketing Services.