1. Grant of License; Use of Plugin
Tapatalk, Inc. ("Tapatalk," "us," or "we") grants you a limited, non-exclusive, non-transferable license to download install and otherwise use the Tapatalk Plugin software in conjunction with a Tapatalk compatible forum, including any documentation files accompanying the Plugin ("Documentation") (collectively with the Plugin, Documentation, and Application (defined below), "Service"), provided that: (i) all copyright notices are maintained on the Plugin; and (ii) you agree to be bound by the terms and conditions of this Agreement, and (iii) the Plugin is used for the limited purpose contemplated in the provision of this Agreement. The Plugin and Documentation shall be used only by you or your organization.
Certain items of independent, third-party code may be included in the Plugin that are subject to the GNU General Public License ("GPL") or other open source licenses ("Open Source Software"). Such Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open Source Software. In particular, nothing in this Agreement restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
In order to help users find your forum(s) when using the Tapatalk mobile application ("Application"), you grant us a non-exclusive, royalty-free, worldwide license to: (i) access, index, and cache any part of the publicly available portions your forum(s), by any means, including web spiders and/or crawlers, and (ii) use, copy, adapt, reformat, and recompile any part of our index or cache of your forum(s) for public performance, public display, and distribution through the Application.
2. Use of Service; Advertisements; Affiliate Links
You may use the Service only if you can form a binding contract with Tapatalk and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you accept this Agreement and use the Service on behalf of a company, organization, government, or other entity, you represent and warrant that you are authorized to do so. You may use the Service only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Service.
The Service may include advertisements, which may be targeted to users of your forum(s), the content or information on the Service, including your forum(s), or other information. The Service may also include paid affiliate links to third-party websites. The types and extent of advertising and affiliate links utilized by Tapatalk on the Service are subject to change. In consideration for Tapatalk granting you access to and use of the Service, you agree that Tapatalk and its third party providers and partners may (i) place such advertising and affiliate links on the Service, and (ii) access your email database solely in connection with Tapatalk's invite a friend feature which allows users to invite friends to join your forum, and trending email service which sends emails to forum users letting them know of top conversations in the forum.
You have no ownership rights in the Service. Rather, you have a license to use the Service as long as this Agreement remains in full force and effect. Ownership of the Service, including the Plugin and Documentation and all intellectual property rights therein, shall remain at all times with Tapatalk. Any use of the Service by any other person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
Subject to this Section 4 and Section 12 of this Agreement, we will pay you based on the number of valid clicks on advertisements or affiliate links displayed on the Service, or other valid events performed in connection with the display of advertisements or affiliate links displayed on the Service, in each case as determined solely by Tapatalk, and the revenue received by Tapatalk from such advertisements or affiliate links. Tapatalk will pay you when the revenue derived from such advertisements or affiliate links equals or exceeds the applicable payment threshold to be determined by Tapatalk in its sole discretion. Payments will be calculated solely based on our accounting. In addition, payments to you may be withheld to reflect, or be adjusted to exclude, any amounts refunded or credited to advertisers, and any amounts arising from invalid activity, as determined by Tapatalk in its sole discretion. Invalid activity is determined by Tapatalk in all cases, and includes (i) spam, invalid impressions or invalid clicks on advertisements or affiliate links generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from your IP addresses or computers under your control; (ii) clicks solicited or impressions generated by payment of money, false representation, or requests for users to click on advertisements or take other actions; and (iii) clicks or impressions co-mingled with a significant amount of the activity described in (Sections 4(i) and (ii), above. If you dispute any payment made or withheld relating to the Service, you must notify Tapatalk in writing within 30 days of any such payment; otherwise, any claim relating to the disputed payment is waived and not subject to challenge. To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information with us. Also, you are responsible for any charges assessed by your bank or payment provider.
You agree not to (i) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Service or any part thereof, (ii) reverse engineer, decompile, translate, adapt, or disassemble the Service, including the Plugin, (iii) attempt to create the source code from the object code for the Service or any part thereof, and/or (iv) publish content in or using the Service that (a) violates any applicable law, statute, rule, regulation, ordinance, right of publicity or privacy, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (such as discrimination of protected classes, hate crimes, or copyright circumvention sites), (c) infringes or misappropriates any copyright, patent trademark, trade secret or other proprietary of any third party, or (d) is defamatory, libelous, threatening, deceptive, pornographic or sexually explicit. If you violate this Section, in addition to other rights, we may immediate ban you from the Service and terminate this Agreement.
You acknowledge that the Service contains proprietary trade secrets of Tapatalk and you agree to maintain the confidentiality of the Service using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. In order to access certain features of the Service, you may be required to register. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Tapatalk in writing of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session. Tapatalk is not liable for any loss or damage arising from your failure to comply with this Section.
7. Warranty Disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, INCLUDING THE PLUGIN, IS PROVIDED ON AN "AS IS" BASIS WITHOUT REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE OF ANY KIND. THE TAPATALK ENTITIES DISCLAIM ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, AND ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
THE TAPATALK ENTITIES ARE NOT RESPONSIBLE OR LIABLE FOR: (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND OTHER COMMUNICATIONS ACCESSED BY, THROUGH, OR MAINTAINED BY THE SERVICE; (IV) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; AND (V) ANY CONTENT, SOFTWARE, HARDWARE, OR EQUIPMENT ACCESSED BY, THROUGH, OR IN CONNECTION WITH THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE TAPATALK ENTITIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
8. Limitation Of Liability
IN NO EVENT WILL THE TAPATALK ENTITIES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY PECUNIARY OR INTANGIBLE LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF THE TAPATALK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT, THE MAXIMUM LIABILITY OF THE TAPATALK ENTITIES, UNDER ANY CAUSE OF ACTION OR THEORY, IS $100.
9. Enforceability Of This Agreement
IF ANY PROVISION OF THIS AGREEMENT IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, THE PARTIES AGREE THAT THE COURT SHOULD ENDEAVOR TO GIVE EFFECT TO THE PARTIES' INTENTIONS AS REFLECTED IN THE PROVISION, AND IF NOT GIVEN EFFECT, WILL BE DEEMED SEVERABLE FROM THE AGREEMENT AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS OF THIS AGREEMENT, WHICH REMAIN IN FULL FORCE AND EFFECT.
10. Your Warranties
You represent, warrant, and covenant that (i) you have the right and ability to enter into this Agreement to license and use the Service, and (ii) you and/or any parties who use the Service on your behalf will not use the Service in any manner that might (a) infringe or misappropriate any copyright, patent, trademark, trade secret, or other proprietary right of any third party; (b) violate any applicable law, statute, rule, ordinance, regulation, right of publicity or privacy; (c) introduce into the Service or cause it to contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines; or (d) promote illegal or unlawful activity.
You will indemnify, defend and hold harmless Tapatalk and its subsidiaries, affiliates, partners, officers, directors, employees, consultants, and agents (collectively, "Tapatalk Entity") from all claims, whether actual or alleged (collectively, "Claims"), that arise out of or in connection with a breach of this Agreement, use of the Service, including any content you submit, post, transmit, modify or otherwise make available through or in connection with the Service, and/or any violation of law and/or the rights of any third party. You are solely responsible for defending any Claim against a Tapatalk Entity, subject to such Tapatalk Entity's right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, resulting from all Claims against a Tapatalk Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Tapatalk Entity without its prior express written consent.
This Agreement is effective until terminated. You may terminate this Agreement at any time by discontinuing use of the Service, removing and uninstalling the Plugin from each of your forums, and destroying or returning to Tapatalk all copies of the Plugin and Documentation in your possession or under your control. If you terminate the Agreement and the revenue derived from such advertisements or affiliate links equals or exceeds the applicable payment threshold, we will pay you your earned balance within approximately 90 days after the end of the calendar month in which the Agreement is terminated. Any amount below the applicable threshold will remain unpaid. Tapatalk may terminate this Agreement for any reason, including if Tapatalk finds that you have violated any of the terms of this Agreement. Upon notification of termination, you agree to immediately cease use of the Service, remove/uninstall the Plugin, destroy or return to Tapatalk all copies of the Plugin and Documentation and certify in writing that all known copies of the Plugin and Documentation, including backup copies, have been destroyed. If we terminate this Agreement for any reason beside your uncured breach of this Agreement and the revenue derived from such advertisements or affiliate links equals or exceeds the applicable payment threshold, we will pay you your earned balance within approximately 90 days after the end of the calendar month in which the Agreement is terminated. All provisions relating to confidentiality, proprietary rights, non-disclosure, limitation of liability and indemnification (specifically Sections 3 through 17) shall survive the termination of this Agreement.
You agree that all of Tapatalk's trademarks, trade names, service marks, logos, brand features, including the Plugin, Service, and Application names are the property of and are owned Tapatalk, and that you will not make trademark use of or otherwise misappropriate any of the foregoing without Tapatalk's prior written approval in each instance.
You agree that the Service contains proprietary information protected by applicable intellectual property laws, other laws in favor of Tapatalk, and international treaty provisions. You further agree that content and information presented or available to you through the Service is protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws.
14. Copyright or Intellectual Property Complaints
Tapatalk respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please provide us with the following information:
We reserve the right to remove content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Tapatalk may also terminate a user's access to the Service if the user is determined to be a repeat infringer. Please send the foregoing information to our agent for notice of claims of copyright or other intellectual property infringement at:
2105 Colorado Avenue, Suite 109
Santa Monica, CA 90404
15. Choice of Law; Venue; Class Action Waiver.
This Agreement and the relationship between you and the Tapatalk Entities are governed by the laws of the State of California without regard to its conflict/choice of law provisions, and that any and all claims, causes of action, or disputes (regardless of theory) arising out of or relating to this Agreement, or the relationship between you and Tapatalk, shall be brought exclusively in the state or federal courts located in Los Angeles County, California. You and Tapatalk waive any and all objections to the exercise of jurisdiction over the parties by such courts and venue in such courts. ANY CLAIM AGAINST THE TAPATALK ENTITIES SHALL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY PROCEEDING WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. AS SUCH, YOU AGREE THAT YOU WAIVE ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION SUIT AGAINST ANY OF THE TAPATALK ENTITIES. You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals' disputes be consolidated or otherwise determined in one proceeding. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
You agree that Tapatalk may provide you with notices by email, regular mail, SMS, MMS, text message, push notifications, postings on the Service/website, or other reasonable means now known or hereafter developed. You acknowledge and agree that Tapatalk will have no liability associated with or arising from your failure to maintain and supply Tapatalk with accurate contact information about yourself, including your failure to receive important information and updates about the Service.
17. General Information
This Agreement may be amended from time-to-time without notice in Tapatalk's sole discretion. Any changes to this Agreement will be effective immediately upon the posting of the revised Agreement on the Application, our website, or in an updated version of the Service. This Agreement, including any agreements and terms incorporated by reference herein, constitutes the entire agreement between you and Tapatalk and govern your use of the Service, and supersedes any prior version of the Agreement between you and Tapatalk with respect to the Service. All rights not granted to you herein are expressly reserved by Tapatalk. You may not remove any proprietary notice of Tapatalk from any part of the Service. The failure of Tapatalk to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement. The headings in this Agreement are for convenience only and have no legal or contractual effect. As used in this Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Please report any violations of this Agreement or questions regarding the Agreement to email@example.com.
2105 Colorado Avenue, Suite 109
Santa Monica, CA 90404