Tapstream services agreement

Last revised: June 14, 2014 (supersedes version of September 16, 2013)

The following terms and conditions apply to Your, being the Person (as defined below) subscribing for the Solution (as defined below), ("You" or "Your") subscription and use of the proprietary software services offered by Tapstream Network Inc. ("Company", "We", "Us" or "Our") known as Tapstream.

1. Overview

1.1 Scope of Agreement. This Agreement (as defined below) governs Your access and use of the Solution. Your electronic acceptance of this Agreement signifies that You have read, understand, acknowledge and agree to be bound by this Agreement, along with the following policies and agreements, which are incorporated herein by reference including, but not limited to, the Privacy Policy (as defined below) and the Website Terms (as defined below).

1.2 Entire Agreement. This Agreement together with all documents, policies and agreements incorporated into this Agreement by reference constitute the entire agreement between You and Us and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

1.3 Eligibility. Use of the Solution is available only to Persons who can form legally binding contracts under applicable law. You represent and warrant that You are: (i) at least eighteen (18) years of age; and/or (ii) otherwise recognized as being able to form legally binding contracts under applicable law. If You, being the individual accepting the terms of this Agreement, are agreeing to this Agreement on behalf of a corporate entity, You represent and warrant that You have the legal authority to bind such corporate entity to this Agreement, in which case the terms "You" and "Your" shall refer to such corporate entity. If, after Your acceptance of this Agreement, We find that You do not have the legal authority to bind such corporate entity, You will be personally responsible for the obligations contained in this Agreement.

1.4 Amendment. Company, in its sole and absolute discretion, may change or modify this Agreement and any policies or agreements which are incorporated herein, at any time, and such changes or modifications shall be effective immediately upon posting to the Website (as defined below). You acknowledge and agree that: (i) Company may notify You of such changes or modifications by posting them to the Website; and (ii) Your use of the Solution and the SDK after such changes or modifications have been made (as indicated by the "Last revised" date at the top of this page) shall constitute Your acceptance of this Agreement as last revised. If You do not agree to be bound by this Agreement as last revised, do not use (or continue to use) the Solution and the SDK. Company may also occasionally notify You of changes or modifications to this Agreement by e-mail. It is therefore very important that You keep Your account information, including Your e-mail address, current. Company assumes no liability or responsibility for Your failure to receive an e-mail notification if such failure results from an inaccurate or out-of-date e-mail address.

2. Definitions

Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:

2.1 "Agreement" means these terms and conditions of use as it may be supplemented, amended, restated or replaced.

2.2 "Device" means a computer, tablet, mobile or other device that is used to access Your Materials.

2.3 "End User" means a Person that uses Your Materials.

2.4 "End User Data" means the data concerning the characteristics and activities of Ends Users that is collected through use of the Trackers and analysed by the Solution.

2.5 "Person" means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any person acting in a representative capacity.

2.6 "Personal Information" means any information that identifies an individual or for which it is reasonably foreseeable in the circumstances that it could be utilized, either alone or with other information, to identify an individual, recorded in any form.

2.7 "Privacy Policy" means Company’s privacy policy, which, among other things, governs the collection, retention, use and disclosure of Personal Information (as defined below) by Company and is available here: Privacy Policy (or such other URL as We may provide). The Privacy Policy is incorporated into this Agreement by reference.

2.8 "SDK" or "Software Development Kit" means the software product known as the "Tapstream SDK", which includes, but is not limited to, all software (including programs, tools, sample code, templates, simulator, libraries, and interfaces), application programming interfaces, and Updates (as defined below) to any of them.

2.9 "Solution" means, collectively, Our proprietary conversion tracking and analytics service known as Tapstream.

2.10 "Support" means the general maintenance services and technical support provided in respect of the Solution, but, for greater certainty, does not include any other support services that are Professional Services (as defined below).

2.11 "System" means the systems including, but not limited to, third party hosting facilities, used by Us to support and provide certain features and functionality relating to the Solution.

2.11 "Tier" means the subscription plan purchased by You for access to and use of the Solution, having the features and pricing indicated on the Website.

2.13 "Trackers" means the proprietary Tapstream tracking scripts, codes, cookies, beacons, tags, images, and/or other data that installed in or used in connection with Your Materials for the purpose of collecting End User Data.

2.14 "Updates" means bug fixes, updates, upgrades, modifications, enhancements, supplements, new releases or versions of the applicable software.

2.15 "Your Data" means any data or information or other materials of any nature recorded in any form whatsoever disclosed or provided to Us by You in the course of using the Solution or in connection with the Solution and/or and all information generated by use of the Solution, which for greater certainty, includes Personal Information, but excludes Your Materials.

2.16 "Your Materials" means any website, web pages and/or software applications owned by You.

2.17 "Website" means the website located at tapstream.com or such other URL as indicated by us from time to time from which the Solution will be made available.

2.18 "Website Terms" means the terms of use for the Website, which are available at the following location: Terms of Use

3. Subscription to the Solution

3.1 Access to the Solution. We shall make the Solution, the SDK and any Professional Services available to You pursuant to this Agreement during the Term (as defined below). Your access to and use of the Solution will be on a subscription basis for the Tier selected by You. You agree that any of Your purchases made under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features. The Solution shall be made available to You from the Website or such other websites as made available by Us from time to time.

3.2 Free, Advanced, and Enterprise Tiers We make available free accounts to the Solution which provide access to key features of the Solution but not all functionality available to paid subscribers. For free accounts, You acknowledge and agree that we may use advertising links to monetize click-throughs and other interactive behavior of End Users through the Website. For greater certainty, You will not be entitled to any remuneration (including commission or revenue shares) in connection with such monetization activities.

3.3 Solution License Grant. Subject to the terms and conditions of this Agreement, We grant You a limited, revocable, non-exclusive, non-transferable, non-sublicensable licence to: (i) install, copy and use Trackers solely as necessary for You to use the Solution; (ii) bundle Trackers and the SDK together with Your Materials solely as necessary for You to use the Solution; and (iii) access and use the Solution to view and download the reports generated by the Solution in connection with data generated by Trackers and the SDK. The foregoing license is personal to You. Upon the termination of this Agreement, You must destroy all originals and copies of the Trackers in Your possession or control and cease any further use of the Solution.

3.4 License Restrictions.

3.4 Acceptable Use Policy. You acknowledge and agree that for any Tier which provides for unlimited End Users and/or data, in order to ensure a high quality of service for all Tapstream users, Your use of the Solution must not unduly burden the System. Accordingly, we reserve the right to suspend access to the Solution at any time, without notice, to investigate any user activity which appears abusive or inordinately demanding of the System (including but not limited to poor integration or an unreasonable number of events per active user). If You are a subscriber to a free Tier and use through your account is seen as breaching this Acceptable Use Policy, You may be required to upgrade to a paid Tier in order to continue using the Solution.

3.5 Support. Subject to the terms and conditions of this Agreement, We shall provide the following Support to You: (i) if You are subscribing for free or pro level versions of the Solution, You shall be entitled to receive basic technical support from Us by e-mail; and (ii) if You are subscribing for the corporate level version of the Solution, You shall be entitled to also receive assistance by from Our telephone support desk, which is available to You from 9 a.m. to 5 p.m. PST, Monday to Saturday.

4. Your access and use of the Solution

4.1 Accounts. You will have to register for and create an account ("Account") in order to access and use the features of the Solution permitted by Your Tier. You represent and warrant to Us that all information that You submit when You register for Your Account is accurate, current and complete, and that You will keep Your Account information accurate, current and complete. If Company has reason to believe that any of Your Account information is untrue, inaccurate, out-of-date or incomplete, Company reserves the right, in its sole and absolute discretion, to terminate Your Account. You are solely responsible for the activity that occurs on Your Account, whether authorized by You or not, and You must keep Your Account information secure, including without limitation Your login, password and Payment Method(s) if applicable (as defined below). You must notify Company immediately of any breach of security or unauthorized use of Your Account. COMPANY WILL NOT BE LIABLE FOR ANY LOSS YOU INCUR DUE TO ANY UNAUTHORIZED USE OF YOUR ACCOUNT. YOU, HOWEVER, MAY BE LIABLE FOR ANY LOSS COMPANY OR OTHERS INCUR CAUSED BY YOUR ACCOUNT, WHETHER CAUSED BY YOU, OR BY AN AUTHORIZED PERSON, OR BY AN UNAUTHORIZED PERSON. The foregoing sentence shall survive the termination or expiration of this Agreement.

4.2 Your Obligations. In addition to the obligations set forth elsewhere in this Agreement:

5. Fees and payment for services

5.1 Fees and Billing. You agree to pay any and all prices and fees due, as applicable, for Your subscription to the Solution. You shall be responsible for all sales, use, value added, or other taxes or duties, as applicable, with respect to the Solution, or otherwise arising out of or in connection with this Agreement. All prices and fees are non-refundable unless otherwise expressly noted, even if Your access to the Solution is terminated, or transferred prior to the end of the services term. If subscribing for a paid subscription level for the Solution, You will be billed for access to the Solution on a monthly basis.

5.2 Payment. You may pay for Your subscription to the Solution (as applicable for paid Tiers) by providing a valid credit card (the "Payment Method"). Confirmation of an order will be sent to the e-mail address on file for Your Account. Payments are processed by Our third party billing and payment processing provider (the "Billing Provider"). When You provide Us with Your information about Your Payment Method, that information, along with other personal information about You, will be shared with the Billing Provider for the purposes of managing subscriptions to the Solution and processing Your payments. You hereby consent to the collection, use and disclosure of Your personal information by and to the Billing Provider for the foregoing purposes. You further acknowledge and agree that the Billing Provider may also collect from You Your Personal Information or information about You and the collection and use of such information will be subject to the terms of its privacy policy, which may be made available to You during the payment information registration process. You acknowledge and agree that Company shall have no liability to You in connection with the use and disclosure of Your Personal Information when collected by the Billing Provider. Your Payment Method on file must be kept valid if You are using any paid subscription levels for the Solution.

6. Proprietary rights

6.1 Reservation of Rights. This Agreement does not transfer or assign to You any intellectual property right including, but not limited to, any patent, design, industrial design, trademark, servicemark, copyright or rights in any confidential information or trade secrets in or related to the Solution, the SDK and/or or any part thereof. The Solution and the SDK and all copies thereof remain the property of Company and are licensed and not sold to You under this Agreement. You acknowledge that there are no implied licenses granted under this Agreement, and all rights, granted to You hereunder shall remain with Company. Company has no obligation to You with respect to providing notice of or acquiring such licenses. Nothing in this Agreement shall adversely affect any rights and recourse to remedies, including, but not limited to, injunctive relief, that Company may have under any applicable laws relating to the protection of Company’s intellectual property or other rights.

6.2 Our Use of Your Data and Your Materials.

6.3 Suggestions. Notwithstanding any term of the Terms of Use, You acknowledge and agree that any suggestions, enhancement requests, recommendations or other feedback provided to Us by You relating to the Solution and/or the SDK (collectively, "Submissions") shall become Our sole property. We shall own exclusive rights, including all intellectual property rights, in and to all Submissions. We shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to You. In the event that any intellectual property rights in and to any Submissions vests, or has vested, in You, You hereby assign to Us all of Your right, title and interest in all such Submissions and You hereby waive to and in favour of Us any of Your moral rights in and to all such Submissions.

7. Indemnification

7.1 Indemnification by You. You shall defend, indemnify, and hold Us harmless from any claims, costs, damages, losses, settlement fees, and expenses (including without limitation legal fees and disbursements) incurred directly or indirectly as a result of or otherwise relating to: (i) any breach of this Agreement whether by You; (ii) Your use of the Solution; (iii) Your violations of applicable laws, rules or regulations in connection with the Solution, the SDK and/or Your Materials; or (iv) any violations of Your obligations of privacy to any Person; (v) any allegations or claims that any of Your Data or Your Materials infringes, violates or misappropriates privacy or any intellectual property right of any Person including, but not limited to, a patent, design, industrial design, copyright, trade secret or trademark or other proprietary rights.

8. Warranties and disclaimers

8.1 Disclaimer of Warranties.

9. Limitation of liability

9.1 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY OR ANY OTHER DAMAGES INDIRECTLY ARISING OUT OF OR RELATED TO THE AGREEMENT, IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT OR ANY PRODUCTS, SERVICES OR CONTENT MADE AVAILABLE THROUGH YOUR MATERIALS, WHETHER OR NOT SUCH DAMAGES COULD REASONABLY BE FORESEEN OR THEIR LIKELIHOOD HAS BEEN DISCLOSED TO COMPANY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

9.2 Limitation of Liability. IN NO EVENT SHALL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY YOU TO US IN THE THREE MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. WHERE YOUR USE OF THE SOLUTION HAS BEEN ON A FREE BASIS, OUR AGGREGATE LIABILITY TO YOU WILL NOT EXCEED $100.

10. Term and termination

10.1 Term. The term of this Agreement will commence, and You may begin using the Solution, once You agree to the terms and conditions of this Agreement by clicking "I agree to the Tapstream Services Agreement" button and completing the registration process for Your Account. The Agreement will remain in effect until terminated by You or Us in accordance with the terms and conditions of this Agreement.

10.2 Termination By You. You agree that You will be responsible for notifying Company should You desire to terminate Your use of the Solution and cancel Your subscription. You may notify Company at any time in order to cancel Your subscription.

10.3 Termination By Company. We may, in our sole discretion, terminate or suspend Your access to all or part of the Solution at any time, with or without notice, for any reason, including, without limitation, breach of this Agreement. In addition to any of Our termination rights set out elsewhere in this Agreement, We reserve the right to suspend or terminate Your access to the Solution and/or Your account if Your usage of the Solution results in, or is the subject of, legal action or threatened legal action, against Us or any of Our affiliates or partners, without consideration for whether such legal action or threatened legal action is eventually determined to be with or without merit.

10.4 Effect of Termination. Upon the termination or expiration this Agreement: (a) You shall pay all amounts owed to Us as of such date within 5 days of such termination or expiration; and (b) Your rights to use the Solution shall be terminated on the last day for which You have made payment. If Your account is terminated or suspended by Us, We may, in our sole discretion, refund a pro-rated amount of Your payment for Your current term, and terminate Your rights to use the Solution immediately.

10.5 Surviving Provisions. Any terms and conditions of this Agreement, which by their nature extend beyond the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement including, without limitation, Sections 3.3, 5.2, 6.1, 6.2, 6.3, 7, 8, 9, 10.4, and 11.

11. General provisions

11.1 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the first business day after sending by e-mail (provided e-mail shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the member of Your organization designated by You to act on Your organization’s behalf in your Account settings, and in the case of billing-related notices, to the relevant billing contact designated by You.

11.2 Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the Province of British Columbia and the laws of Canada applicable in that Province without regards to conflict of laws principles. The parties hereby expressly and irrevocably attorn to the exclusive jurisdiction of the courts in the Province of British Columbia. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention, and which is cited in the statutes of Canada as the International Sales of Goods Contracts Convention Act) will not apply to this Agreement or the transactions contemplated by this Agreement.

11.3 Export Compliance. You acknowledge that the SDK may include encryption software that may be subject to export, import, and/or use controls by government authorities by way of law or regulation. You agree that the SDK and all Your Materials will not be exported, imported, used, transferred, or re-exported except in compliance with the laws and regulations of the national and/or other (sub-national and/or supranational) government authorities with authority over the country(ies) and/or territory(ies) from which the SDK and/or Your Materials are being exported to. Without limitation, the SDK and/or all Your Materials will not be exported: (i) to any country on Canada’s Area Control List; (ii) to any country subject to UN Security Council embargo or action; (iii) contrary to Canada’s Export Control List Item 5505; (iv) to countries subject to U.S. economic sanctions and embargoes; and (v) to persons or entities prohibited from receiving Canadian or U.S. exports or Canadian or U.S.-origin items.

11.4 Force Majeure. We shall not be liable to You for any failure or delay in performance by circumstances beyond its control, including, but not limited to, acts of God, fire, labour difficulties, governmental action or terrorism.

11.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.6 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement.

11.7 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

11.8 Assignment. You may not assign any of Your rights or obligations hereunder, whether by operation of law or otherwise, without Our prior written consent (not to be unreasonably withheld).

11.9 Headings and References. The division of this Agreement into sections and subsections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms "this Agreement", "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular section, subsection or other portion hereof and include any agreement supplemental hereto. Unless something in the subject matter or context is inconsistent therewith, references herein to "Sections" are to sections, subsections and further subdivisions of sections of this Agreement.