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Tapify Inc. - Services Agreement

 

 

Tapify Inc. (“Tapify”) provides its services to you (the “Customer”) subject to the following. When using Tapify services, Customer and Tapify will be subject to any guidelines or rules applicable to these services which Tapify may communicate to Customer or post on its web site (www.tapifystudios.com and/or its affiliates' and or successors' Web sites (together, the "Web Site")) from time to time.

 

TERMS OF SERVICE

 

 

1.General

 

Tapify, by itself or through its partners, provides users with the online applications and related services offered through the Web Site (the "Services"). Tapify reserves the right, at any time, to modify or update this Services Agreement upon notice to Customer via e-mail, posting or otherwise. Customer confirms its acceptance of such modifications or updates by continuing to use the Services.

 

 

2.Use of Services

 

  1. Customer Use of the Services.

 

In order to use the Services, Customer must obtain access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. Customer must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Customer agrees to timely provide Tapify with all information and decisions reasonably required for the performance of the Services hereunder.

 

  1. Registration Information. In consideration of the use of the Services, Customer agrees to:

 

  1. provide true, accurate, current and complete information about Customer as prompted by Tapify's registration form (the "Registration Data"); and

  2. maintain and promptly update the Registration Data to keep it true, accurate, current and complete.

 

  1. Access Rights.

 

During the term of the Services, Customer will have a limited, revocable, non-transferable and non-exclusive licence to use the Services solely for Customer's personal use and enjoyment. Customer shall:

 

  1. be responsible for the security and/or use of his or her logon identifier;

 

  1. not disclose such logon identifier to any person or entity;

 

  1. not permit any other person or entity to use his or her logon identifier; and

 

  1. use the Services consistent with the Membership Agreement.

 

Customer will be responsible for any and all costs and expenses incurred through the use of Customer's Logon(s). Tapify reserves the right to deny, suspend or revoke access to the Services, in whole or in part, if Tapify believes Customer and/or its Authorized Users are in breach of, or using the Services in a manner inconsistent with, the Membership Agreement.

 

  1. Security.

 

Customer will be responsible for all electronic communications, including account registration and other account holder information, e-mail and financial, accounting and other data ("Electronic Communications") entered through or under Customer access number(s), logon(s), password(s), or account number(s). Tapify will act as though any Electronic Communications it receives under Customer's access number(s), password(s) or account numbers(s) have been sent by Customer.

Customer agrees to notify Tapify immediately if Customer becomes aware of any loss or theft or unauthorized use of any of Customer access number(s), password(s), logon(s) and/or account number(s). The security of Customer's Business Data (as defined below in Section 2.05) shall be maintained through the use of data encryption, data security protocols, passwords and/or other methods that Tapify may employ, or which Tapify may suggest or require that Customer employ. However, Customer acknowledges that Tapify cannot guarantee that the Web Site and Customer's Business Data will be protected against third party or other actions beyond its reasonable control, including, but not limited to, those events set forth in Section 10.08.

 

  1. Electronic Communications between Customer and Tapify.

 

The Services allow Customer to send Electronic Communications directly to Tapify and interact within applicable areas of the Services. Electronic Communications include Customer's data that Customer sends in connection with the Services (the "Business Data"). Customer acknowledges and agrees to the following with respect to use of Electronic Communications through the Services:

 

  1. Tapify shall be entitled, but is not obligated, to review or retain Customer's Electronic Communications for Customer's compliance with the Membership Agreement and the security of the Services. Tapify may also review or retain Electronic Communications (other than Business Data) for other reasons, which Tapify believes in good faith will improve the quality of the Services;

 

  1. Tapify may disclose Electronic Communications if required to by law or in the good faith belief that such disclosure is reasonably necessary to: (i) comply with legal, judicial or other governmental process; (ii) enforce the Membership Agreement; (iii) respond to claims that any Electronic Communications violate the rights of third parties; or (iv) protect the rights, property or personal safety of Tapify, its users or others;

 

  1. Customer will not use any Electronic Communications for any purpose that is unlawful, abusive, harassing, libellous, defamatory, obscene or threatening;

  2. Customer will not upload, post, reproduce or distribute any information, software or other material protected by copyright or any other intellectual property right (as well as rights of publicity and privacy) without first obtaining the permission of the owner of such rights and in no event shall Customer upload, introduce or transmit in, to or through the Web Site any viruses, worms, trap door, back doors, timers, clocks, counters or other limiting, harmful or destructive routines, instructions, files or designs;

 

  1. Customer shall not provide, disclose, divulge or make available to, or permit use (directly or indirectly) of the Services by, any third party without Tapify's prior written consent;

 

  1. Customer agrees to provide Tapify with Customer's e-mail address (es), promptly provide Tapify with any changes to Customer's email address (es) and accept Electronic Communications from Tapify at the e-mail address (es) Customer specifies;

 

  1. Customer agrees that Tapify may provide notices, statements and other communications to Customer solely through e-mail, posting on the Web Site or other electronic transmission; and

 

  1. Customer understands that the technical processing and transmission of the Services, including Customer's Electronic Communications, may involve transmissions over various networks and changes to conform and adapt to technical requirements of connecting networks or devices.

 

  1. General Practices Regarding the Use of the Services.

 

Customer acknowledges that Tapify may establish general practices concerning use of the Services. Customer acknowledges that Tapify reserves the right to disable and/or delete accounts that are inactive for an extended period of time or that are otherwise disruptive of the operation of the Web Site. Customer further acknowledges that Tapify reserves the right to change these general practices and limits at any time, in its discretion.

 

3.Fees

 

  1. Payment Terms.

 

Customer shall pay to Tapify all the fees for Services in the event Customer has agreed to

pay for the Services. Tapify will charge Customer monthly for all amounts due, which amounts shall be due on the date the charge is made. All payments shall be made in Canadian dollars. Customer agrees to pay, and Tapify shall charge and collect, the fees for the Services by and through Customer's Tapify account, or by and through Customer's credit card account as specified by

 

Customer in Customer's registration for the Services, as mutually agreed by the parties from time to time. Customer hereby authorizes Tapify to make such Tapify account charges and credit card charges and collections.

 

  1. Taxes.

 

Customer shall (i) be solely responsible for all fees, taxes and governmental charges, if any, which may be imposed in connection with its receipt of the Services, and (ii) pay all such taxes. Tapify may withhold, collect and pay any such fee or tax that is the responsibility of Customer and include any such amount in Customer's related invoice.

 

4.Intellectual Property

 

  1. Ownership of work; license.

 

Tapify owns or has contracted for all necessary right, title and interest, including intellectual property rights, to the Services, and any and all Tapify property, whether tangible or

intangible. This Agreement shall not prohibit, limit or encumber Tapify's use of, or right to use, any general skills, knowledge, experience, and/or know-how, including processes, ideas, concepts and techniques, developed in the course of providing the Services. Tapify reserves all rights not expressly granted to Customer hereunder.

 

  1. License grant by Customer.

 

Customer hereby grants to Tapify a non-exclusive, non-transferable, non-sublicensable, royalty- free, worldwide licence, to use the Customer's Electronic Communications in connection with its delivery of the Services.

 

5.Term

 

  1. This Agreement shall commence on the first use of the Services and shall continue thereafter until terminated in accordance with Section 6 below (the “term”).

 

6.Termination

 

  1. Either party may terminate the Services at any time, without cause, upon sixty (60) days’ prior written notice to the other party. Neither party will be liable to the other for any such termination of any Services. Either party may terminate the Services for cause if the other is in material breach of this Agreement and fails to cure such breach within ten (10) days of notice by the other party. Upon any termination of any of the Services:

 

  1. all obligations and rights hereunder relating to those Services terminate except as expressly stated to survive;

 

  1. any and all payment obligations relating to those Services incurred through the date of termination will immediately become due and payable by Customer; and

 

  1. Customer’s personal information shall be dealt with according to Tapify’s privacy policies in effect at that time.

 

7.Indemnification

 

  1. Customer agrees to defend, indemnify and hold Tapify harmless from and against any and all claims, losses, liabilities, costs and expenses (including but not limited to attorneys' fees) arising from or in connection with Customer's violation of the Membership Agreement; provincial, federal, foreign or international laws, codes or regulations; or any third party's rights, including, but not limited to, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights. This obligation will survive the termination of Services.

 

  1. Disclaimer of Warranties

 

THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. CUSTOMER'S USE OF AND RELIANCE THEREON ARE AT CUSTOMER'S OWN RISK. TAPIFY DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY AND ALL EXPRESS AND/OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION ON THE FOREGOING,

 

  1. TAPIFY DOES NOT WARRANT THAT

 

  1. THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS,

 

  1. THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE,

 

  1. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, OR

 

  1. ANY ERRORS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED; AND

 

  1. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM TAPIFY OR THROUGH THE USE OF THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE MEMBERSHIP AGREEMENT;

  1. Liability Limitations

 

  1. Consequential Damages Waiver

 

IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY TYPE OF INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DA-MAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF PROPRIETARY MATERIAL, RIGHTS OR SERVICES, LOSS OR CORRUPTION OF DATA, OR INTERRUPTION OR LOSS OF USE OF SERVICES OR EQUIPMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING UNDER THEORY OF CON-TRACT, TORT (INCLUDING NEGLIGENCE),

 

STRICT LIABILITY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE TOTAL AGGREGATE LIABILITY OF TAPIFY AND ITS AFFILIATES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER TO TAPIFY FOR SER-VICES UNDER WHICH ANY SUCH LIABILITY ARISES. WITHOUT LIMITATION ON THE FOREGOING, TAPIFY SHALL NOT BE LIABLE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH TAPIFY DOES NOT HAVE DIRECT CONTROL, INCLUDING BUT NOT LIMITED TO, FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT OR COMMUNICATION LINES; TELEPHONE OR OTHER INTERCONNECTION PROBLEMS; BUGS, ERRORS, CONFIGURATION PROBLEMS OR INCOMPATIBILITY OF COMPUTER HARDWARE OR SOFTWARE; FAILURE OR UNAVAILABILITY OF INTERNET ACCESS; PROBLEMS WITH INTERNET SERVICES TAPIFY'S OR OTHER EQUIPMENT OR SERVICES RELATING TO CUSTOMER'S COMPUTERS; PROBLEMS WITH INTERMEDIATE COMPUTER OR COMMUNICATIONS NETWORKS OR FACILITIES; PROBLEMS WITH DATA TRANSMISSION FACILITIES OR CUSTOMER'S TELEPHONE OR TELEPHONE SERVICES; OR UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES OR LABOUR DISPUTES. SOME JURISDICTIONS IN SOME CIRCUM-STANCES DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

 

  1. Basis of the Bargain.

 

The parties acknowledge that Tapify has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that such limitation are an essential basis of the bargain between the parties.

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  1. Miscellaneous

 

  1. No Third Party Beneficiaries.

 

Except as expressly provided in this Agreement, there are no third party beneficiaries to this Agreement.

 

  1. Severability; Waiver.

 

If any provision of this Membership Agreement is found to be contrary to law, the remainder of that provision (if any) and the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement shall not constitute a waiver of any subsequent breach or default and shall not act to amend or negate the rights of the waiving party.

 

  1. Notice.

 

Customer shall give notice to Tapify by e-mail with a copy in writing by certified mail return receipt requested and postage prepaid.

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  1. Relationship of Parties.

 

Tapify and Customer are independent of each other.

 

  1. Governing Law.

 

This Agreement is made under and will be governed by and construed in accordance with the laws of the Province of Nova Scotia, Canada.

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  1. Exclusive Venue.

 

The parties shall submit any unresolved disputes to court located in the Province of Nova Scotia, Canada , for resolution. The parties acknowledge that the aforesaid courts shall have exclusive jurisdiction over such disputes, and specifically waive any claims they may have which involve jurisdiction or venue, including, but not limited to, forum non conveniens. The foregoing sentence shall be subject to Tapify's right to enforce any judgments against Customer in other jurisdictions.

 

  1. Survival.

 

The following provisions will survive any termination of the Agreement: Sections 1; 2(5)(a) and (b); 3(1), 3(2) and 3(3); 4; 6; 7; 8; and 10.

 

  1. Force Majeure.

 

Neither party shall be liable for failure or delay in its performance under this Membership Agreement due to any cause beyond its reasonable control, including, but not limited to: acts of God; failure or disruptions in third-party-controlled or operated communications facilities; and/or worms, viruses and other disabling and/or disruptive software, communications and/or files. If Tapify cannot provide the Services for a period of five (5) consecutive days as a result of a continuing force majeure event, Customer may terminate this Agreement without penalty.

 

  1. Entire Agreement.

 

This Agreement constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof. It supersedes and replaces all prior discussions, negotiations, understandings and agreements, written and oral, regarding such matters. Any additional or different terms in any purchase order or other written or oral response by Customer shall be deemed rejected by Tapify without need of further notice and shall not be part of this Agreement or in any way binding upon Tapify.

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