We reserve the right to change these Terms from time to time. Any updates to these Terms shall be posted http://www.TapLocalmarketing.com/legal. You acknowledge your responsibility to review these Terms from time to time and to be aware of any such changes. By continuing to use any of the TAPLOCAL Sites or Services after we post any such changes, you accept these Terms, as modified. By accessing one of the TAPLOCAL Sites or our Services, you accept these Terms and certify that you have reviewed these Terms and that you are within or have reached the age of majority or age 18 (whichever is greater) in your jurisdiction. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, PLEASE LEAVE THIS WEBSITE BY CLOSING YOUR INTERNET BROWSER WINDOW NOW. IF YOU DO NOT INTEND ON USING THE SERVICES IN ACCORDANCE WITH THESE TERMS, DO NOT UTILIZE THE SERVICES PROVIDED BY TAPLOCAL.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
2. The Services
Services described on the TAPLOCAL Sites may or may not be available in all countries or regions of the world, may be available under different trademarks in different countries and, where applicable, may be approved or cleared by a government regulatory body for sale or use with different indications and restrictions in different countries. You agree to use the TAPLOCAL Services in accordance with all applicable guidelines and all laws of the jurisdiction in which you use the Services or access the TAPLOCAL Sites.
The Services consist of one or more of the following: a web-based interface, access to incoming telephone number or keywords, electronic mail, Direct Inward Dialing Numbers (“DIDs”), Short Codes, messaging applications, mail messaging, voice broadcast applications, SMS and MMS gateway access, data encryption, data transmission, data access, data storage and, if applicable, synchronization software, as well as software maintenance and upgrades and customer support, that enable you to send SMS messages, MMS messages and/or voice broadcasts to recipients designated by you (collectively, the “Services”). We transmit messages initiated by you or sent to you by others through different routes, and the level of reliability and support for special features varies according to the route. You are responsible for obtaining and maintaining all computer hardware, software and communications equipment needed to access and use the Services, and for paying all access charges (e.g., ISP, telecommunications) incurred while using the Services.
TAPLOCAL only provides that the Services are processed correctly and further transmitted by TAPLOCAL to the applicable downstream network. TAPLOCAL is not responsible for the final delivery of any communication initiated by you through the Services, as this is out of our control and is the responsibility of downstream communications carriers.
TAPLOCAL transmits and receives voice, email, SMS, and MMS messages via other major telecommunications companies and mobile network operators, and thus TAPLOCAL’s influence over the timing of the transmission of your messages is within the technical constraints imposed upon TAPLOCAL. While TAPLOCAL shall use commercially reasonable efforts to transmit your messages and broadcasts to the applicable network for final delivery to your designated recipients as fast as possible, we cannot commit to, and do not guarantee, a specific maximum delivery time. Such times depend on various network and system-related factors among the various entities involved in the transmission of your messages across the public switched telephone network and/or Internet. You should know that communications carriers assign messages with a default lifetime and any message that cannot be delivered successfully within the lifetime assigned to it will be discarded by the communications carrier without any notice. TAPLOCAL is not liable for any loss incurred by the failure of a message to be delivered, and you acknowledge that damages for financial or other loss resulting from delivery failure cannot be claimed from TAPLOCAL for any such non-deliveries. Furthermore, you agree that message contents are deemed to have zero value.
Using our Services, accessing the TAPLOCAL Sites and providing data and other information that will be available to your Customers (“Content”) through the Services requires a TAPLOCAL ID. Your TAPLOCAL ID is valuable, and you are responsible for maintaining its confidentiality and security. TAPLOCAL is not responsible for any losses arising from the unauthorized use of your TAPLOCAL ID, the Services or the Content. Please contact TAPLOCAL if you suspect that your TAPLOCAL ID has been compromised. Your use of the Services and Content must follow the requirements set forth in the Agreement. Any other use of the Services and Content is a material breach of this Agreement. TAPLOCAL may monitor your use of the Services and Content to ensure that you are following these requirements. You may use the Services and Content only in connection with the receipt of Services. TAPLOCAL’s delivery of Content does not transfer any promotional use rights to you, and does not constitute a grant or waiver of any rights of the copyright owners. Your provision of Content to TAPLOCAL places no obligation on TAPLOCAL to maintain that Content and TAPLOCAL is not liable for any Content lost or destroyed by TAPLOCAL. You should backup any Content provided to TAPLOCAL. You may not tamper with or circumvent any security technology included with the Services. You may access our Services only using TAPLOCAL’s software, and may not modify or use modified versions of such software.
You agree that we may communicate with you and your Customers by SMS, MMS, text message or other electronic means to your or your Customers’ mobile device and that certain information about your and your Customers’ usage of the Mobile Services may be communicated to us.
TAPLOCAL may affiliate with certain third-party service providers with whom we work to provide you certain Services under this Agreement (“Service Partners”). You hereby acknowledge that our Service Partners are third-party beneficiaries under this Agreement with the right to enforce its terms directly, to the extent applicable. You hereby acknowledge that certain limitations may be placed by us or our Service Partners on your use of the Services, including but not limited to character limits, quality standards, and other applicable content policies, and we and/or our Service Partners may reject any of Your Content at any time, in our or their sole discretion, or modify Your Content at any time in order to comply with such policies, and the appearance and/or location of Your Content placement may change at any time. Further, you acknowledge that certain Services may involve distribution of Your 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 (“Publishers”) that own or operate online business directories, search web sites, social media web sites, mobile apps, or other online properties (the “Publisher Sites”). Neither we nor our Service Partners guarantee that Your Content will be displayed on any Publisher Site. You hereby agree and acknowledge that your use of certain Services shall be subject to additional terms and conditions mandated by our Service Partners.
3. Usage Policy
You represent and warrant that the owners of the phone numbers you initiate messages to through the TAPLOCAL Services or provide directly to TAPLOCAL have expressly consented or otherwise opted-in to the receipt of such messages and broadcasts as required by any applicable law or regulation You further agree that if a consumer receiving communications about your business through TAPLOCAL informs you that they no longer want to receive communications about your business, you will contact TAPLOCAL customer service and inform of the consumer’s request and provide sufficient information for TAPLOCAL to opt that customer out of any future communications from TAPLOCAL or you will go to the appropriate TAPLOCAL Site and opt the consumer out of any future communications from TAPLOCAL.
You agree to familiarize yourself with and abide by all applicable local, state, national and international laws and regulations and are solely responsible for all acts or omissions that occur under your account, including without limitation the content of the messages that you create and initiate through the TAPLOCAL Services. Without limiting the foregoing, you agree to familiarize yourself with the legalities of any messages transmitted through the TAPLOCAL Services by visiting the following websites:
• Federal Trade Commission, http://www.ftc.gov
• Federal Communications Commission, http://www.fcc.gov
• DoNotCall Registry Info, http://www.donotcall.gov
The Telephone Consumer Protection Act (“TCPA”), the Federal Trade Commission, the Federal Communications Commission, the DNC list registry rules (http://www.donotcall.gov) and various state laws, rules and regulations place restrictions on certain types of phone calls and SMS or MMS messages. TAPLOCAL is in no way attempting to interpret any laws, rules, or regulations. This information is provided merely as a courtesy and is not intended to replace your responsibility to familiarize yourself with and abide by the legal requirements pertaining to your messages prior to using the TAPLOCAL Sites or Services. You are ultimately responsible to make your own informed decisions regarding your messages.
You shall schedule your messages responsibly and in a manner that is courteous to the recipients pursuant to local, state, national, and international calling time rules and regulations. You are solely responsible for obtaining any rights or licenses to any data, including without limitation sound files, pictures or videos for inclusion in any outbound messages. If you are unfamiliar or unclear on the legalities of any message that you intend to initiate through the Services, you must consult with your attorney prior to your use of the TAPLOCAL Sites or Services.
You accept that the Services are provided for professional use only, and you agree that your use of the TAPLOCAL Sites or Services shall not include:
• Engaging in any unsolicited advertising, marketing or other activities, including any activities that violate anti-spam laws and regulations including the CAN SPAM Act of 2003, the TCPA, and the Do-Not-Call Implementation Act (or any similar or analogous anti-spam, data protection, or privacy legislation in any other jurisdiction, including state law );
• Using the Services in any manner that violates: industry standards; any third party policies including all of the applicable guidelines published by the CTIA, the Mobile Marketing Association, or any other accepted industry associations, carrier guidelines (or any similar or analogous industry standards, third party policies or requirements in any other jurisdiction);
• Using any equipment or software that has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator, in conjunction with your use of the Services;
• Using any equipment or software that has the capacity to initiate messages without human intervention, in conjunction with your use of the Services;
• Sending any calls to life-line services, such as hospitals, fire, police, 911 or utility- related telephone numbers;
• Using strings of numbers as it is unlawful to engage two or more lines of a multi-line business;
• Harvesting, or otherwise collecting information about others, including email addresses or phone numbers, without their consent;
• Misleading others as to the identity of the sender of your messages, by creating a false identity, impersonating the identity of someone/something else or by providing contact details that do not belong to you;
• Transmitting, associating or publishing any unlawful, racist, libelous, abusive, threatening, demeaning, immoral, harmful, vulgar, obscene, pornographic or otherwise objectionable material of any kind;
• Using the Services in connection with any unsolicited or harassing messages (commercial or otherwise) including unsolicited or unwanted phone calls, SMS or text messages, voice mail, or faxes;
• Transmitting any material that may infringe upon the intellectual property rights of third parties including trademarks, copyrights or other rights of publicity;
• Transmitting any material that contains viruses, Trojan horses, worms, time bombs, cancel-bots or y other harmful/deleterious programs;
• Interfering with, or disrupting, networks connected to the Services or violating the regulations, policies or procedures of such networks;
• Violating or facilitating the violation of any local, state, federal, or foreign law or regulation, including laws and regulations regarding the transmission of data or software;
• Attempting to gain unauthorized access to the Services, other accounts, computer systems or networks connected to the Services, through password mining or any other means;
• Interfering with another’s use and enjoyment of the Services or TAPLOCAL Sites;
• Engaging in any other activity that TAPLOCAL reasonably believes could subject it to criminal liability or civil penalty/judgment; or
• Using the Services, or any component of the Services, in any manner not authorized by TAPLOCAL.
You further agree that TAPLOCAL is, under no circumstances, responsible for the contents and/or accuracy of your messages and TAPLOCAL will only transmit messages at your direction and on a basis of good faith that you use the Services in accordance with these Terms. You are solely responsible for providing the content of all messages initiated by you through the Services. TAPLOCAL will not be liable for any misuse of the Services by you. TAPLOCAL is not responsible for the views and opinions contained in any of your messages or broadcasts.
You acknowledge that the terms upon which TAPLOCAL provides the Services to you are proprietary to TAPLOCAL and that TAPLOCAL will suffer economic harm if these terms become available to TAPLOCAL’s competitors. You, therefore, agree not to disclose or publish the specific financial terms of your agreement with TAPLOCAL.
4. Content Submission / Discussion Areas
You agree that any information or materials that you or individuals acting on your behalf provide to TAPLOCAL (other than information required for your use of the Services as contemplated herein) will not be considered confidential or proprietary. By providing any such information or materials to TAPLOCAL (other than information required for your use of the Services as contemplated herein), you grant to TAPLOCAL an unrestricted, irrevocable, worldwide, royalty-free, perpetual license to use, reproduce, display, publicly perform, transmit, make derivative works of, and distribute such information and materials, and you further agree that TAPLOCAL is free to use any ideas, concepts or know-how that you or individuals acting on your behalf provide to TAPLOCAL (“Your Content”). In connection with such information and materials, you warrant and represent to TAPLOCAL that you have all rights, title and interests necessary to provide such content to TAPLOCAL, and that your provision of the content to TAPLOCAL shall not infringe any third party’s proprietary or personal rights, including but not limited to any trademark, copyright, patent, or trade secret.
TAPLOCAL may at its option provide you with one or more areas within the TAPLOCAL Sites for online discussions (e.g. message boards, wikis, chat rooms, or blogs). Should you choose to participate in such a forum, you agree not to utilize the forum for illegal or inappropriate purposes. TAPLOCAL reserves the right but will not be obligated to edit or delete postings to its forums at any time and for any reason. TAPLOCAL shall also have no responsibility or liability for any content created or posted by you or other third parties within any online forum.
5. Username / Password
As part of the registration process you will need a username and/or password. You shall be responsible for maintaining the confidentiality of your password. You shall provide TAPLOCAL with accurate, complete, and regularly updated contact information. You agree to notify TAPLOCAL of any known or suspected unauthorized use(s) of your user account, or any known or suspected breach of security, including loss, theft, or unauthorized disclosure of your username or password. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your user account, in TAPLOCAL’s sole discretion, and you may be reported to appropriate law-enforcement agencies.
6. Communications Concerning the TAPLOCAL Services
By providing your email address to TAPLOCAL, you expressly consent to receive emails from TAPLOCAL and its affiliates or contractors. By providing your telephone number to TAPLOCAL, TAPLOCAL has the right to contact you via calls or text messages to provide you information about your account and/or the TAPLOCAL Services requested by you. By providing your telephone number, you expressly consent to receive calls and messages from TAPLOCAL and its affiliates or contractors, including communication to collect any past due payments. The caller may use automatic or predictive dialers and recorded voices to contact you. To the extent you have separately agreed to receive periodic text or voice alerts on products, services, events, special offers or other promotional messages related to TAPLOCAL and the TAPLOCAL Sites, TAPLOCAL may contact you pursuant to the terms of any such separate agreement.
7. Intellectual Property
Subject to the terms herein, you are permitted to access the TAPLOCAL Sites, the Services, and any content provided by TAPLOCAL (which may include text, images, hosted software, sound files, video or other content, and may be provided via the TAPLOCAL Sites or otherwise) solely for the purpose of receiving information about TAPLOCAL’s business and products, purchasing and utilizing the Services, communicating with TAPLOCAL, entering prize promotions offered by TAPLOCAL, or otherwise as stated on the TAPLOCAL Sites. TAPLOCAL hereby grants a worldwide, fully paid-up, perpetual, non-exclusive, non-transferable license without the right to sub-license to you to use the TAPLOCAL Sites and Services solely for the purpose of operating the TAPLOCAL Sites and using the Services.
We may have copyrights, trademarks, patents, trade secrets, or other intellectual property rights covering subject matter in the Services, including the web pages that are part of the Services and the TAPLOCAL Sites. Except as expressly provided in these Terms, the availability of the Services and the TAPLOCAL Sites does not give you any license to these patents, trademarks, copyrights, or other intellectual property. All copyrights, trademarks, patents, trade secrets and other intellectual proprietary rights contained in the TAPLOCAL Sites are the sole property of TAPLOCAL or its licensors, each of whom reserves all rights with regard to such materials. You acknowledge and agree that you may not copy, reproduce, retransmit, modify, alter, create any derivative works, reverse engineer, decompile, or disassemble any portion of the Services or TAPLOCAL Sites, including any proprietary communications protocol used by the Services or the TAPLOCAL Sites without the express written permission of TAPLOCAL. All other trademarks or trade names are the property of their respective owners, and such material may not be copied, downloaded, redistributed, modified or otherwise exploited, in whole or in part, without the permission of the owner.
TAPLOCAL abides by the federal Digital Millennium Copyright Act (DMCA) by responding to notices of alleged infringement that comply with the DMCA and other applicable laws. As part of our response, we may remove or disable access to material residing on a site that is controlled or operated by TAPLOCAL that is claimed to be infringing, in which case we will make a good-faith attempt to contact the person who submitted the affected material so that they may make a counter notification, also in accordance with the DMCA. TAPLOCAL does not control content hosted on third party websites, and cannot remove content from sites it does not own or control. If you are the copyright owner of content hosted on a third party site, and you have not authorized the use of your content, please contact the administrator of that website directly to have the content removed.
Before serving either a Notice of Infringing Material or Counter-Notification, you may wish to contact a lawyer to better understand your rights and obligations under the DMCA and other applicable laws. The following notice requirements are intended to comply with TAPLOCAL’s rights and obligations under the DMCA and, in particular, section 512(c), and do not constitute legal advice.
Notice of Infringing Material
To file a notice of infringing material on a site owned or controlled by TAPLOCAL, please provide a notification containing the following details:
1. Reasonably sufficient details to enable us to identify the work claimed to be infringed or, if multiple works are claimed to be infringed, a representative list of such works (for example: title, author, any registration or tracking number, URL);
2. Reasonably sufficient detail to enable us to identify and locate the material that is claimed to be infringing (for example a link to the page that contains the material);
3. Your contact information so that we can contact you (for example, your address, telephone number, email address);
4. A statement that you have a good faith belief that the use of the material identified in (2) is not authorized by the copyright owner, its agent, or the law;
5. A statement, under penalty of perjury, that the information in the notification is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is alleged to be infringed.
6. Your physical or electronic signature.
Then send this notice via email to: Support@TapLocalmarketing.com and type “Notice of Infringing Material” in the subject line.
8. Data Protection & Privacy
You further recognize that TAPLOCAL does not want you to, and you warrant that you shall not, provide any information or materials to TAPLOCAL that is defamatory, threatening, obscene, harassing, or otherwise unlawful, or that incorporates the proprietary material of another.
Your use of the Services is contingent on your paying for such use (whether paid in advance or through the purchase of credits on the TAPLOCAL Sites), in the amounts and using the methods indicated on your TAPLOCAL Service Agreement. Your payment for the Services, Credits (as defined below in Section 10), keywords, DIDs, usage-sensitive fees and/or plans (a portion of which also includes software maintenance and upgrades, as well as customer support) shall be deemed completed when TAPLOCAL receives the full amount of payment owed for such Services, Credits, keywords, DIDs and/or plans. You are responsible to pay for any message or broadcast you attempt to send to any number, regardless of whether the message is actually received by the intended recipient. As TAPLOCAL is dependent on other entities for the delivery of your messages and broadcasts, our price per credit may require adjustment in order to account for costs that are not in our control. If TAPLOCAL’s costs to provide the Services expectantly increases prior to the end of your contract term, we may make a corresponding adjustment in our pricing.
TAPLOCAL will charge your indicated method of payment for the Services, Credits, keywords, DIDs and/or plans immediately upon your confirmation of the payment method and amount. Amounts to be charged may include sales and other taxes where applicable and any other amounts indicated on the TAPLOCAL Sites or in your Service Agreement. Your account will be credited within 24 hours of TAPLOCAL verifying receipt of your payment. If you have elected to make a payment by credit card and we do not receive payment from the credit card issuer, you agree to pay all amounts due immediately upon demand by TAPLOCAL.
TAPLOCAL cannot readily or accurately ascertain your location when you request to use the Services. You therefore agree that your use of the Services occurs in the State of Arizona and is subject to any applicable Arizona taxes. To the extent that you are responsible for any additional taxes or fees beyond those collected by TAPLOCAL, you agree that you will pay them when due to any applicable taxing authority, including any interest or penalties assessed.
TAPLOCAL shall not be responsible for any errors or transmission failures with regard to the charging and collection of funds from your indicated payment method, nor for any actions taken by the provider of the payment method you choose (which could include refusal to authorize the charge). In addition to these Terms, any payments made by you may be subject to the agreement between you and the provider of the payment method.
As between you and TAPLOCAL, you are responsible for all charges related to purchases made using your account and payment method, whether or not you authorized such purchases. Standard charges apply to any test call sent originating from your account or initiated using your API key. In the event of accidental under billing in your favor or non-payment by you for agreed upon Services, TAPLOCAL shall be entitled to immediately proceed with collection remedies and shall be entitled to recover any and all costs, fees, and expenses of such collection efforts, including but not limited to: collection agencies, court costs, filing and service of process fees, expert witness fees, attorneys’ fees incurred from counsel of TAPLOCAL’s choosing, or any other costs, fees, and expenses incurred in the pursuit of collection on all accounts and receivables due and payable under the terms of your Service Agreement.
Credits are paperless vouchers that you purchase and which facilitate the transmission of the TAPLOCAL Services selected by you. The chosen route as well as the destination of a message or broadcast causes the amount of credits required to either increase or decrease but, in either case, will always be made known beforehand through the Pricing Page of our TAPLOCAL Sites. The submission of a seemingly-valid message or broadcast will cause an associated quantity of credits to be debited from your account and you can obtain the real-time status of your account at any time through the online interface.
Expiration of Credits and Prepaid Minutes
Credits purchased as a part of a package or monthly plan, including any additional credits purchased during your monthly billing cycle as part of an upgrade to your plan, and not used within the month of purchase, expire at the end of the month, unless the plan explicitly provides for roll-over of credits. Individual anytime, non-monthly plan credits purchased through your account expire after 18 months from the date of purchase, at which point such credits shall expire automatically, unless otherwise stated at the time of purchase. Credits are purchased on a first-bought, first-to-expire basis. Additionally, the value of credits may change over time as the cost of transmission changes, and thus you acknowledge that the number of credits needed to utilize the Services may change correspondingly. You may request a full refund of any unused, non-monthly plan credits within one (1) business day of purchase. No other refunds will be given. Any unused value shall be forfeited upon expiration. All prices, per-minute rates, and billing increments are subject to change at any time due to fluctuations in market conditions. Notwithstanding the above, TAPLOCAL may, in its sole discretion, offer customized plans that provide for individualized terms concerning credit expiration, billing cycles, account maintenance fees and/or other agreed upon terms. The terms of such customized plans will be agreed upon in the Service Agreement.
11. No Warranty; Limitation of Liability
TAPLOCAL reserves the right to modify, suspend, or discontinue the offering of any of the TAPLOCAL Sites or Services at any time for any reason without prior notice. Further, while TAPLOCAL utilizes electronic and physical security to reduce the risk of improper access to or manipulation of data during transmission and storage, it cannot guarantee the security or integrity of the data and shall have no liability for breaches of security or integrity or third-party interception in transit, nor for any damage which may result to your computer or other property by your use of the TAPLOCAL Sites or Services.
You acknowledge that your messages are transmitted unencrypted and that eavesdropping of communications by third parties is possible. TAPLOCAL recommends that you ensure sensitive and valuable information is communicated by a protected and/or encrypted method.
TAPLOCAL shall use commercially reasonable efforts to make access to the Services available through the required access protocols, but makes no warranty or guarantee that (i) the Services or TAPLOCAL Sites will be available at any particular time; or (ii) you will be able to access the Services or TAPLOCAL Sites at any particular time or from any particular location. TAPLOCAL will not be liable for any act or omission of any other company or companies furnishing a portion of the Services (including, without limitation communications carriers or ISPs), or from any act or omission of a third party, including those vendors participating in TAPLOCAL offerings made to you, or for equipment that it does not furnish, or for damages that result from the operation of customer-provided systems, equipment, facilities or services that are interconnected with the Service.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE TAPLOCAL SITES AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT ANY WARRANTIES OR CONDITIONS WHATSOEVER, EXPRESSED OR IMPLIED. NOTWITHSTANDING THE FOREGOING OR ANY STATEMENT TO THE CONTRARY CONTAINED IN THESE TERMS, TAPLOCAL DOES NOT WARRANT THAT THE USE OF THE TAPLOCAL SITES OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, INCLUDING, BUT NOT LIMITED TO ANY INTERRUPTIONS TO THE SERVICES CAUSED BY THE INTENTIONAL AND/OR MALICIOUS ACTS OF THIRD PARTIES (E.G., “HACKING”) NOR SHALL TAPLOCAL BE RESPONSIBLE FOR ANY DATA LOSS OR LOSS OF ANY INFORMATION IN YOUR ACCOUNT, REGARDLESS OF THE CAUSE. FURTHERMORE, TAPLOCAL MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES OR THAT THE TAPLOCAL SITES OR SERVICES WILL MEET ANY OF YOUR SPECIFIC REQUIREMENTS OTHER THAN AS MAY BE EXPRESSLY SET FORTH IN THESE TERMS. TAPLOCAL MAKES NO REPRESENTATIONS OR WARRANTIES AND HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF THE MATERIAL, SERVICE, SOFTWARE, TEXT, GRAPHICS OR LINKS, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TAPLOCAL SHALL NOT BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES ARISING FROM LOSS OF USE OR LOST BUSINESS, LOSS OF OPPORTUNITY, LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OR DAMAGE TO OR CORRUPTION OF DATA OR LOSS OF GOODWILL), OR FOR ANY COST OF PROCUREMENT OF SUBSTITUTE SERVICES ARISING IN CONNECTION WITH THESE TERMS, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY OR NEGLIGENCE, OR OTHER ACTIONS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THE TAPLOCAL SITES OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT, SOFTWARE, OR DATA, TAPLOCAL IS NOT RESPONSIBLE FOR THOSE COSTS. TAPLOCAL’S TOTAL LIABILITY ARISING OUT OF YOUR USE OF THE TAPLOCAL SITES OR SERVICES FOR DIRECT DAMAGES SHALL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO TAPLOCAL HEREUNDER. TO THE EXTENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT WITH JURISDICTION TO BE UNREASONABLE OR OTHERWISE UNENFORCEABLE, TAPLOCAL’S AGGREGATE LIABILITY SHALL NOT EXCEED AN AMOUNT EQUAL TO THE MONTHLY TRANSACTION FEE PAID BY YOU TO TAPLOCAL. YOU SHALL ACT AT ALL TIMES TO MITIGATE ANY LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT SHARING OF YOUR ACCOUNT INFORMATION, LOGIN INFORMATION OR PASSWORDS SHALL BE ATYOUR SOLE AND ABSOLUTE RISK AND THAT TAPLOCAL SHALL NOT BE LIABLE FOR ANY DAMAGE ARISING AS A RESULT OF SUCH SHARING. THE FOREGOING DISCLAIMERS APPLY BOTH TO TAPLOCAL AND TO ITS THIRD-PARTY BUSINESS PARTNERS.
Some countries do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
12. User Warranties; Indemnification
You warrant and represent to TAPLOCAL that you have all necessary rights, power, and authority to agree to these Terms and perform your obligations hereunder, and nothing contained in these Terms or in the performance of such obligations will place you in breach of any other contract or obligation. You further warrant and represent that you are and shall at all times remain in full compliance with all applicable laws, rules and regulations with regard to your use of the TAPLOCAL Sites and Services, including without limitation the Telephone Consumer Protection Act, the Telemarketing Sales Rule, the CAN-SPAM Act (Controlling the Assault of Non-Solicited Pornography and Marketing Act) of 2003, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing.
You agree to indemnify and hold harmless TAPLOCAL and its affiliates and each of their respective officers, directors, shareholders, employees, agents, contractors, representatives, content providers and service providers, from and against any and all losses, claims, obligations, liabilities, damages, settlements, costs and expenses (including, but not limited to, consequential damages, incidental damages, special damages, exemplary or punitive damages, disbursements and attorneys’ fees, including attorneys’ fees incurred from counsel selected by TAPLOCAL in its sole discretion) arising from or relating to any actual or threatened claim, suit, action, proceeding, governmental investigation or enforcement action based upon or arising out of: (i) your breach of the above warranties; (ii) any use by you, or an account or computer owned by you, of the TAPLOCAL Sites or Services; (iii) any violations or alleged violations of any federal, state or international law or regulation, or (iv) any breach of these Terms. You agree to cooperate as fully as reasonably required in the defense of any claim, suit, action, proceeding, governmental investigation or enforcement action, but we reserve the right, at your expense, to assume the exclusive defense and control of any matter in which you are a named party and that is otherwise subject to indemnification by you. You acknowledge and agree to be held liable for any and all damages caused to TAPLOCAL by you as a direct result of a violation of local, state, national or international laws and regulations, including but not limited to those damages that may arise from your fraudulent, intentional or unintentional harm, disability, unauthorized use of, or destruction to any and all equipment, licensing and/or services provided by TAPLOCAL to you.
13. Termination, Cancellation and/or Suspension by TAP
If at any time you breach these Terms, TAPLOCAL may elect to suspend, terminate, and/or cancel your use of the Services and/or recover any damages from you arising from the event(s) giving rise to the suspension, termination, or cancellation. We reserve the right to suspend the Services at any stage for any reason we may deem necessary to continue to provide our Services in a way that may be hindered by your status as being our client, your financial status or the content of the messages or broadcasts originating from you.
Upon any such termination, cancellation, and/or suspension, you are still responsible for any obligations then accrued. Your obligation to pay all amounts accrued and owed by you shall continue even after any suspension or cancellation of your access to the Services (in whole or in part). Upon termination, for any reason, you agree to immediately cease using the Services and TAPLOCAL shall have no obligation to you after any termination or cancellation of these Terms.
Should such a termination take place when you still have credits in your account, you shall receive back, at our discretion, a fair monetary value of such credits, save any expenses that may be incurred by TAPLOCAL, including, without limitation, for payment of transfer duties, legal costs, third-party costs, or penalties.
The provisions regarding ownership, payments, warranties, and indemnifications will survive any suspension, termination, or cancellation of your use of the Services or TAPLOCAL Sites.
14. Termination by the Merchant
A merchant and/or business in use of the Service must contact Support@TapLocalmarketing.com to terminate contractual agreements, or other fees that may apply to the termination of such account. Any termination must comply with the terms of the Service Agreement.
15. Links to other Websites
The TAPLOCAL Sites may contain links to third party websites. These links are provided solely as a convenience to you and not as an endorsement by TAPLOCAL of the contents on such third-party websites. TAPLOCAL is not responsible for the content of linked third-party websites and does not make any representations regarding the content or accuracy of materials on such third-party websites. If you decide to access linked third-party websites, you do so at your own risk.
TAPLOCAL cannot ensure that you will be satisfied with any products or services that you purchase from a third party website that links to or from the TAPLOCAL Sites. TAPLOCAL does not endorse any of the products/services, nor has TAPLOCAL taken any steps to confirm the accuracy or reliability of any of the information contained in such third party websites. TAPLOCAL does not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to such websites. TAPLOCAL strongly encourages you to make whatever investigation you feel necessary or appropriate before proceeding with any online or off-line transaction with any of these third parties.
TAPLOCAL consents to links to the TAPLOCAL Sites which conform to the following: the appearance, position, and other aspects of any link to the TAPLOCAL Sites may neither create the false appearance that an entity or its activities or products are associated with or sponsored by TAPLOCAL nor be such as to damage or dilute the goodwill associated with the name and trademarks of TAPLOCAL or its affiliates. TAPLOCAL reserves the right to revoke this consent to link at any time in its sole discretion, without notice.
16. Security Rules
You are prohibited from violating or attempting to violate the security of the TAPLOCAL Sites and Services and from using the TAPLOCAL Sites and Services to violate the security of other websites by any method, including, without limitation: (a) accessing data not intended for you or logging into a server or account which you are not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measurers without proper authorization; (c) attempting to interfere with service to any user of the TAPLOCAL Sites or Services, host or network, including, without limitation, via means of submitting a virus to the TAPLOCAL Sites, overloading, “flooding,” “spamming,” “mailbombing,” or “crashing”; (d) sending unsolicited e-mail, including promotions and/or advertising of products or services; or (e) forging any TAPLOCAL packet header or any part of the header information in any e-mail, instant message, text message or newsgroup posting. Violations of system or network security may result in civil or criminal liability. TAPLOCAL may investigate violations of these Terms, and may involve and cooperate with law enforcement authorities in prosecuting users of the TAPLOCAL Sites who are involved in such violations.
17. Force Majeure
TAPLOCAL shall not be liable for any failure or delay in performing its obligations hereunder, which such failure or delay is caused by fire, flood, earthquake, elements of nature or acts of God, acts of war, insurrection, terrorism, strike, failure or downtime of any telecommunications line and/or unavailability of any telecommunications or Internet facilities, power failure, governmental restrictions, any court order, compliance with any law, regulation, or order of any governmental authority, or any other cause beyond the reasonable control of TAPLOCAL. In addition, TAPLOCAL shall be so excused in the event it is unable to acquire from its usual sources, and on terms it deems to be reasonable, any material necessary for the performance of the Services.
18. Binding Arbitration and Class Action Waiver
The provisions of this paragraph apply if you live in or if you are a business your principal place of business is in the United States. We hope we never have a dispute, but if we do, the following terms apply to the resolution of that dispute. Initially, we ask that you contact one of our customer service representatives at 1-844-311-4735 or support@TapLocalmarketing.com. If our customer service representative is unable to resolve the dispute, you and we agree to try for 60 days to resolve it informally through phone calls, letters/emails and meetings. If we do not resolve the dispute through informal means, you and we may choose to resolve the dispute by individual binding arbitration, as described below, instead of in court. Any claim (except for a claim challenging the validity or enforceability of this arbitration agreement, including the Class Action Waiver) may be resolved by binding arbitration if either side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION. If either of us elects to proceed via individual binding arbitration, it shall proceed before the American Arbitration Association (“AAA”) or in such other manner as agreed to by both parties under the Federal Arbitration Act (“FAA”). A neutral arbitrator will resolve the dispute. The arbitrator’s decision will be final, except for a limited right of review under the FAA.
a. Class Action Waiver. CLASS ACTION LAWSUITS, CLASS-WIDE ARBITRATIONS, PRIVATE ATTORNEY-GENERAL ACTIONS, AND ANY OTHER PROCEEDING WHERE SOMEONE ACTS IN A REPRESENTATIVE CAPACITY ARE NOT PERMITTED, NOR IS COMBINING INDIVIDUAL PROCEEDINGS WITHOUT THE CONSENT OF ALL PARTIES.
b. Disputes Covered. The term “dispute” is interpreted as broadly possible. It includes any claim or controversy between you and us concerning the Services or use of the TAPLOCAL Sites under any legal theory including contract, warranty, tort, strict liability, statute, or regulation.
c. Mail a Notice of Dispute First. If you have a dispute and our customer service representatives can’t resolve it, send a Notice of Dispute by U.S. Mail to: TAPLOCALLocal ATTN: Legal Department 2150 South Country Club Drive Suite 18 Mesa, AZ 85210. Tell us your name, address, how to contact you, what the problem is, and what you want.
d. Small Claims Court Option. Instead of mailing a Notice of Dispute, you may sue us in small claims court in your county of residence (or if a business your principal place of business) or Maricopa County, Arizona, U.S.A. if you meet the court’s requirements.
e. Arbitration Procedure. The AAA will conduct any arbitration under its Commercial Arbitration Rules (or if you are an individual and use the Services or TAPLOCAL Sites for personal or household use, or if the value of the dispute is $75,000 or less whether or not you are an individual or how you use the Services or Access the TAPLOCAL Sites, its Consumer Arbitration Rules). For more information, see www.adr.org or call 1-800-778-7879. To start an arbitration, submit the Commercial Arbitration Rules Demand for Arbitration Form available at http://www.adr.org/sites/default/files/Commercial%20Demand%20for%20Arbitration.pdf to the AAA and mail a copy to us at the address listed in subparagraph d. In a dispute involving $25,000 or less, any hearing will be telephonic unless the arbitrator finds good cause to hold an in-person hearing. Any in-person hearing will take place in your county of residence (or if a business your principal place of business) or our principal place of business—Maricopa County, Arizona. You choose. The arbitrator may award the same damages to you individually as a court could. The arbitrator may award declaratory or injunctive relief only to you individually to satisfy your individual claim.
f. Arbitration Fees and Payments.
i. If you wish to begin arbitration against us but you cannot afford to pay the filing fee, we will advance those costs if you ask us to do so in writing at the address listed in subparagraph d. If you lose the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If you win the arbitration, we will not ask for reimbursement of money we advanced.
ii. Disputes Involving $75,000 or Less. We will promptly reimburse your filing fees and pay the AAA’s and arbitrator’s fees and expenses, if you prevail at the arbitration. In addition, if you reject our last written settlement offer made before the arbitrator was appointed, your dispute goes all the way to an arbitrator’s decision (called an “award”), and the arbitrator awards you more than this last written offer, we will: (i) pay the greater of the award or $1,000; (ii) pay your reasonable attorney’s fees, if any; and (iii) reimburse any expenses (including expert witness fees and costs) that your attorney reasonably accrues for investigating, preparing, and pursuing your claim in arbitration.
iii. Disputes Involving More than $75,000. The AAA rules will govern payment of filing fees and the AAA’s and arbitrator’s fees and expenses.
g. Conflict with AAA Rules. These Terms govern to the extent they conflict with the AAA’s Commercial Arbitration Rules or Consumer Arbitration Rules.
h. Must File Within One Year. You and we must file in small claims court or arbitration any claim or dispute within one year from when it first could be filed. Otherwise, it’s permanently barred.
i. You Have the Right to Reject the Class Action Waiver and Changes to the Arbitration Provisions. You may reject the Class Action Waiver provisions of this paragraph, but only if we receive from you a written notice of rejection within 30 days of your first use of the Services to the address listed in subsection d. Your rejection notice must include your name, address, phone number, email address and personal signature. No one else may sign the rejection notice for you. Your rejection notice also must not be sent with any other correspondence. Rejection will not affect your other rights or responsibilities under this Agreement. You may also reject any change we make to this section 18 (except address changes) following your initial use of the Services by sending us notice within 30 days of the change by U.S. Mail to the address in section subsection d. If you do, the most recent version of this section 18 before the change you rejected will apply.
j. Severability. If the class action waiver is found to be illegal or unenforceable as to all or some parts of a dispute, then those parts won’t be arbitrated but will proceed in court, with the rest proceeding in arbitration. If any other provision of section 18 is found to be illegal or unenforceable, that provision will be severed but the rest of section 18 still applies.
k. Other Beneficiaries of this Provision. In addition to you and us, the rights and duties described in this arbitration agreement apply to: our affiliates and our and their officers, directors and employees.
The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind TAPLOCAL in any respect whatsoever. In any action or proceeding to enforce rights under these Terms, TAPLOCAL will be entitled to recover costs and attorneys’ fees if it substantially prevails.
All notices required hereunder shall be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. TAPLOCAL may give notice to you by means of a general notice on the TAPLOCAL Sites or Services, electronic mail to your e-mail address on record in TAPLOCAL’s account information, or by written communication sent by personal delivery, fax, overnight courier, or certified or registered mail to your address on record in TAPLOCAL’s account information.
Nothing contained herein limits TAPLOCAL’s ability to sell all or substantially all of its assets or assign any of its rights and obligations to a third-party without your consent.