Terms of Service
END USER LICENSE AGREEMENT AND TERMS OF SERVICE (“EULA”)
Last Updated Date: September 23, 2019
These Terms of Service govern access to and use of Tapcast, operated and provided by Osix Corporation (“Tapcast”), which includes the use of (1) our websites, including www.tapcast.io and (2) our products, such as (a) our mobile or desktop application app.tapcast.io (or mobile or desktop applications developed by other Osix subsidiaries or partners), (b) our insights tool Audience Map, (c) our Targeted Video application, (d) other parts of the Osix technology and service platform; the websites and products collectively referred to as “Tapcast”, (3) our services, such as (a) agency services such as running Facebook/Instagram ad operations, and (b) providing strategic social advertising or social marketing services including analysis of Facebook/Instagram ad performance data (collectively referred to as “Tapcast Services”), and (4) any audiences, advertising (“ad”) content, ads, ads sets, campaigns, videos, information, text, graphics, photos, or other materials uploaded, downloaded, or appearing on Tapcast or accessed during provision of Tapcast Services (collectively referred to as “Materials”) by the customer defined in the Order Form (the “Customer”). Customer access to and use of Tapcast is conditioned on acceptance of and compliance with these Terms of Service. By accessing or using Tapcast, Tapcast Services, or Materials, the Customer acknowledges and agrees to be bound by these Terms of Service.
1. Definitions
As used in these Terms of Service, unless expressly otherwise stated or evident in the context, the following capitalized terms shall have the following meaning:
1.1. “Ad Account” means a predefined advertising account registered with Tapcast and associated with the advertising account(s) on Facebook/Instagram or Snapchat.
1.2. “Advertising Spend” means all charges payable by the Customer for all advertising conducted with respect to an Ad Account in Facebook, Instagram, or Snapchat and regardless of whether the Customer conducted advertising campaigns using the Service or not.
1.3. “Affiliate” means an entity which is a subsidiary or parent of, or under common control with, the Party. For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty (50) per cent or more of the voting shares in such entity, or that other entity is able to direct the Party’s affairs or is able to appoint a majority of the members of the board of directors or an equivalent body.
1.4. “Agreement” means these Terms of Service together with the Privacy Policy, Order Form, and any appendices thereto which shall govern the provision of the Service by Tapcast and the use of the Service by the Customer.
1.5. “Content” means any advertising content created by or on behalf of Customer for an advertising campaign or otherwise.
1.6. “Facebook” means the social media site known as Facebook and all advertising platforms in Facebook’s ecosystem including but not limited to Facebook, Instagram, Messenger and Whatsapp and Facebook audience network.
1.7. “Order Form” means the order form, contractual agreement, or online order screen through which the Customer orders the Service and which, by reference, incorporates these Terms of Service. In the event of a conflict between these Terms of Service and the Order Form or any other appendices thereof, the Order Form shall prevail unless expressly stated otherwise in the Terms of Service or any other appendices thereof.
1.8. “Party” means Tapcast or Customer separately. Customer and Tapcast together are referred to as the “Parties”.
1.9. “Service” means the provision of Tapcast Software available on a software as a service (SaaS) basis via the Internet on Tapcast’s application and website and/or by any other means via which the service is made available or can be used, provision of any Tapcast Services, as well as any ancillary services that may be available and provided by Tapcast in relation to Tapcast Software such as phone support, web meetings, webinars, screen share sessions, or in person support. In addition, the Service includes Tapcast’s support center documentation, support chat, and newsletter, which contain information about the Service such as information on updates and new features in the Service.
1.10. “Tapcast Software” means Tapcast’s proprietary marketing software, including any changes, updates, upgrades, modifications, and enhancements made thereto, and any related modules, add-ons, tools, browser plugins and applications as well as any documentation relating thereto all of the foregoing to the extent offered by Tapcast.
1.11. “Terms of Service” means these terms and conditions applicable to the use of the Service. Tapcast may update and modify the Terms of Service from time to time and by continuing to use the Service after having been informed of the modification by written notice of Tapcast, the Customer accepts the modification and the revised Terms of Service shall enter into force after 30 days have elapsed from the notice of revised Terms of Service. All material changes to these Terms of Service shall be informed to the Customer via email prior to them becoming effective.
2. Service
2.1. The Service consists of Tapcast Services, SaaS marketing tools, and documentation provided by Tapcast, and used by Customer via the Internet. The Service may be used by Customer or Tapcast to fund, create, manage, and optimize advertising campaigns on Facebook, Instagram, or Snapchat. The Service is described in more detail in the support center and on the tapcast.io website which both may be updated from time to time by Tapcast.
2.2. The Service is designed to help the Customer in understanding, optimizing, and scaling its marketing efforts and advertising campaigns but the Customer remains responsible for how the Customer uses the Service and for achieving the intended goals and results of Customer's advertising campaigns, unless Tapcast explicitly takes responsibility for these efforts as documented in the Order Form. Tapcast’s Service operates between the Customer and Facebook, Instagram, or Snapchat platform on which the advertising campaigns are being conducted, and it is the responsibility of the Customer to ensure that the output and results of the Service meet Customer's expectations and requirements, unless explicitly stated in the Order Form.
2.3. The Customer is responsible for any Materials created on Tapcast or during the provision of Tapcast Services, and for any consequences thereof. The Materials created, posted, or displayed will be able to be viewed by other users and through third party services and websites. The Customer should only provide Materials which the Customer is comfortable sharing with others under this Agreement. Note: The Materials shared with others may be viewed around the world, including on other services and websites.
2.4. Tapcast does not endorse, support, represent, or guarantee the completeness, truthfulness, accuracy, or reliability of any Materials or communications posted via Tapcast or endorse any opinions expressed via Tapcast. Under no circumstances will Tapcast be liable in any way for any Materials, including, but not limited to, any errors or omissions in any Materials, or any loss or damage of any kind incurred as a result of the use of any Materials posted, emailed, transmitted or otherwise made available via Tapcast or broadcast elsewhere.
2.5. The Customer is responsible for safeguarding the credentials used to access Tapcast and for any activities or actions conducted within the Customer’s account or during the provision of Tapcast Services. The Customer is encouraged to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers, and symbols) with the Tapcast account or any other account that is used to connect to the Tapcast account. Tapcast cannot and will not be liable for any loss or damage arising from the failure to comply with the above requirements.
2.6. Customers are not permitted to and agree not to post any Materials to the Service that are or could be interpreted to be (i) abusive, bullying, defamatory, harassing, harmful, hateful, inaccurate, infringing, libelous, objectionable, obscene, offensive, pornographic, shocking, threatening, unlawful, violent, or vulgar, (ii) promoting bigotry, discrimination, hatred, racism, or inciting violence in each of clauses (i) and (ii) of this Section, as Tapcast may determine in its sole discretion (collectively, “Objectionable Content”). The posting of any Objectionable Content may subject Customers to third party claims and none of the rights granted to Customers in this Agreement may be raised as a defense against any third party claims arising from posting of Objectionable Content. Customers also agree not to use the Service for illegal or unlawful purposes. If any Objectionable Content is encountered on the Service, then Customers must email Tapcast at support@tapcast.io or inform Tapcast through communication functionality offered on the Service. Customers acknowledge and agree that Tapcast provides the right to report Objectionable Content as a courtesy, and Tapcast has no obligation to remove or take any other action with respect to any Objectionable Content on the Service that is reported. Tapcast may terminate, suspend, warn, or take other appropriate actions against Customers for posting Objectionable Content to the Service. Tapcast reserves the right at all times (but will not have an obligation) to remove or refuse to distribute any Materials on Tapcast, to suspend or terminate users, and to reclaim usernames without liability.
2.7. Tapcast is entitled to produce the Service as it deems appropriate. The Service and Facebook, Instagram, or Snapchat are constantly evolving and, as a result, the features made available on the Service may change from time to time without prior notice. In addition, Tapcast may stop (permanently or temporarily) providing the Service (or any features within the Service) and may not be able to provide prior notice of these changes or interruptions. Tapcast also retains the right to create limits on use and storage at our sole discretion at any time without prior notice.
2.8. Tapcast may provide assistance to the Customer upon request and provide support via chat, phone, email, screen share, or other common messaging and communication tools. If required, the Customer must allow Tapcast to access the necessary information. If requested by the Customer or with the Customer’s approval, Tapcast’s personnel may modify Customer’s advertising campaigns and other settings via Customer’s Ad Accounts based on mutually agreed instructions.
2.9. The Service does not include, and Tapcast does not offer, any telecommunication or networking services or equipment, security services or systems, or hardware or other equipment. If Customer requires any of the foregoing, Customer must obtain such systems, services, and equipment at its own expense from third party vendors.
2.10. The Customer undertakes not to use the Service for any unlawful purposes. The Customer also undertakes to comply with Tapcast's reasonable directions and requests related to the Service.
2.11. The Customer is responsible for complying with all laws, rules, and regulations applicable to Customer, including all laws, rules, and regulations related to advertising and conducting advertising campaigns.
3. Registration and trial period
3.1. Unless otherwise agreed, the Customer shall register on https://www.tapcast.io/ before commencing the use of the Service. In connection with the registration, the Customer shall sign up to the Service and authorize Tapcast’s access to the Customer’s Facebook, Instagram, or Snapchat accounts and to all the information therein and the Customer shall register the Ad Accounts with the Service. Tapcast shall confirm Customer's registration and the Ad Accounts in due course after having received the registration. The Customer may add and remove its Ad Accounts in the Service.
3.2. In order to use the Service, the Customer is required to complete an online registration. The customer is entitled to use the Service free of charge for the trial period stated on the price list made publicly available at https://www.tapcast.io. The trial period starts on the day the Customer signs up for the trial or when otherwise agreed in writing and ends after the prescribed number of days have elapsed, at which point the Customer will be locked out of the Service. In order to gain access to the Service after the trial has expired, the Customer must provide upfront payment for one of the monthly or annual plans as described in Section 5 below. The Customer's right to use the Service shall automatically continue for an indefinite period unless the Customer notifies Tapcast in writing that it does not wish to continue to use the Service in accordance with Section 9 below. Except for an obligation to pay fees pursuant to Section 5, all other provisions of these Terms of Service shall apply during the trial period.
4. Rights of Use and Proprietary Rights
4.1. Subject to the Customer’s compliance with all the terms of this Agreement, Tapcast grants to the Customer a non-exclusive, non-transferable, limited right to access and use the Service, against due payment of the agreed fees, solely in connection with the registered predefined Ad Accounts in Facebook, Instagram, or Snapchat.
4.2. The Customer shall retain rights to any Materials created, posted, or displayed on or through Tapcast by the Customer. By creating, submitting, posting, or displaying Materials on or through Tapcast or during the provision of Tapcast Services, the Customer grants Tapcast a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Materials in any and all media or distribution methods (now known or later developed).
4.3. Tapcast may modify or adapt the Customer’s Materials in order to transmit, display, or distribute it over computer networks and in various media and/or make changes to these Materials as necessary to conform and adapt these Materials to any requirements or limitations of any networks, devices, services, or media. Tapcast will not be responsible or liable for any use of Customer Materials by Tapcast in accordance with this Agreement. The Customer represents and warrants to have all the rights, power, and authority necessary to grant the rights granted herein to any Materials submitted. Tapcast also reserves the right to access, read, preserve, and disclose any information as necessary to (i) satisfy any applicable law, regulation, legal process, or governmental request, (ii) enforce this Agreement, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property, or safety of Tapcast, its users, and the public.
4.4. Customer shall not i) attempt to copy, modify, duplicate, create or prepare derivative works from or based upon, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Service in any form or media or by any means; ii) access all or any part of the Service in order to build a product or service or feature which competes with the Service; iii) attempt to obtain, or assist third parties in obtaining, unauthorized access to the Service; iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise make the Service available to any unauthorized third party; v) reverse engineer, decompile, decode, decrypt, disassemble, or attempt to derive any source code from the Tapcast Software (except and only to the extent any foregoing restriction is prohibited by applicable law); vi) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; vii) access or search or attempt to access or search Tapcast Services by any means (automated or otherwise) other than through our currently available, published interfaces; viii) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use Tapcast Services to send altered, deceptive, or false source-identifying information; or (ix) interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing Tapcast Services, or by scripting the creation of Materials in such a manner as to interfere with or create an undue burden on Tapcast Services. If Customer grants any subcontractor, supplier, end-customer or other third party any access to the Service, such subcontractor, supplier, end-customer and third party shall be considered equivalent to the Customer for the purposes of these Terms of Service and the Customer shall be fully responsible and liable for all acts and omissions of such subcontractor, supplier, end-customer and third party as well for ensuring their compliance with this Agreement.
4.5. The Customer agrees and acknowledges that the title and all intellectual property rights in and to the Service and any business processes, methods, data, documentation, images and/or Tapcast Software related thereto are owned and remain vested in Tapcast or a third party. No intellectual property rights of Tapcast shall be transferred pursuant to these Terms of Service. Tapcast agrees that, unless otherwise agreed in this Agreement, Customer-owned materials provided by the Customer to Tapcast in connection with the Service shall remain the property of the Customer and Tapcast agrees that the title and all intellectual property rights in and to such Customer-owned materials remain vested in the Customer.
4.6. If the Customer comments on the Service or provides suggestions or ideas for improving the Service, notwithstanding anything stated to the contrary in this Agreement, the Customer agrees that all such comments, suggestions, and ideas thereof will be fully assigned to Tapcast and hence Tapcast shall own all rights to use and incorporate them into its product offerings.
4.7. For the avoidance of doubt, if the Service includes third-party solutions for which the Customer has a direct contractual relationship with the providers of these third-party solutions (such as Facebook, Instagram, or Snapchat or other marketing, advertising, or social media platforms) regardless of anything to the contrary stated herein, their use shall be exclusively governed by their provider's terms and conditions in their standard form, or as negotiated between the Customer and such third party, applicable to such solutions. This Agreement does not modify or amend, and is not in lieu of, any terms, policies or rules of Facebook, Instagram, or Snapchat or any other third-party provider used by Customer.
4.8. Tapcast respects the intellectual property rights of others and expects users and Customers of Tapcast Services to do the same. Tapcast will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. Customers who believe that Materials have been copied in a way that constitutes copyright infringement should provide Tapcast with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Customer contact information, including address, telephone number, and an email address; (v) a statement expressing a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that the provider of this information is authorized to act on behalf of the copyright owner. Tapcast reserves the right to remove Materials alleged to be infringing without prior notice and at Tapcast’s sole discretion. In appropriate circumstances, Tapcast will also terminate a user’s account if the user is determined to be a repeat infringer. Tapcast’s designated copyright agent for notice of alleged copyright infringement appearing on Tapcast is:
Copyright Agent - Tapcast
475 El Camino Real, Suite 405
Millbrae, CA 94030 U.S.A
5. Fees
5.1. Tapcast’s fees are defined in the price list made publicly available at https://www.tapcast. io or as defined in the Order Form. The fee charged to the Customer shall either be (a) paid via credit card, (b) calculated and invoiced prior to the start of the billing period defined in the plan selected by the Customer, or (c) paid by other methods such as ACH as defined in the Order Form. Any additional work referred to in Section 2.8 above shall be charged separately on a time and material basis as agreed separately by the Parties in writing.
5.2. Tapcast may change the fees from time to time upon 30 days prior notice. The change shall not affect the fees for invoicing periods commenced before the effective date of the change. In case of a price change, the Customer shall be entitled to terminate this Agreement to end on the effective date of the price change by notifying Tapcast thereof in writing.
5.3. The fees for the Service are invoiced upfront via credit card, ACH, or invoice, depending on the payment method offered by Tapcast at the time and chosen by the Customer. The Customer shall remit payment 14 days net from the date of invoice. Interest on delayed payments accrues at 1% per month or the maximum legal interest rate for late payment, whichever is less.
5.4. The fees are exclusive governmental taxes and levies. The Customer shall be solely responsible for taxes and levies imposed on the Customer by applicable laws and authorities in relation to the fees.
6. Warranties
6.1. Tapcast will make commercially reasonable efforts to ensure that the Service will be available for use on a 24/7 basis excluding temporary maintenance, updating, and repairs (for products provided by Tapcast), or during normal business hours (for Tapcast Services). Tapcast does not assume any liability for usage interruptions or breaks, but it will attempt to inform the Customer of Service issues whenever reasonably possible. Tapcast does not warrant that the Service will be uninterrupted or error-free. However, Tapcast agrees to use commercially reasonable efforts to be at Customer's disposal in order to support the Customer and to correct any material error or deficiency in the Service. Notwithstanding the above, Tapcast makes no warranty and disclaims all responsibility and liability for: (i) the completeness, accuracy, availability, timeliness, security, or reliability of Tapcast or any Materials; (ii) any harm to a Customer’s computer system, loss of data, or other harm that results from access to or use of Tapcast, or any Materials; (iii) the deletion of, or the failure to store or to transmit, any Materials and other communications maintained by Tapcast; (iv) whether Tapcast will meet Customer requirements or be available on an uninterrupted, secure, or error-free basis. No advice or information, whether oral or written, obtained from or through Tapcast, will create any warranty not expressly made herein.
6.2. The warranty does not cover errors or deficiencies attributable to (a) changes to the Service made by the Customer which have not been approved by Tapcast in writing; (b) use of the Service contrary to these Terms of Service, or the written instructions given by Tapcast; (c) use of the Service contrary to the Facebook, Instagram, or Snapchat terms and policies; (d) disturbances or interruptions in the Service due to data network connectivity or performance; (e) use of the Service on a platform, operating system, or device that is not supported by Tapcast; or (f) a service or product not supplied by Tapcast or other similar reason outside of the Service.
6.3. The Customer acknowledges that the use of the Service is dependent on Facebook, Instagram, or Snapchat in which Customer's advertising campaigns are carried out and that the actions of the Customer and third-party data providers may also affect the use of the Service. Tapcast does not accept any liability for the operation and function of any Customer or third-party products, services, actions or omissions, including, but not limited to, those of third-party data providers, Facebook, Instagram, or Snapchat, or any third party that operates in or with Facebook, Instagram, or Snapchat.
6.4. TO THE EXTENT ALLOWED BY MANDATORY LAW, TAPCAST.IO DOES NOT HAVE ANY OTHER RESPONSIBILITY OR LIABILITY FOR THE SERVICE. THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE" AND TAPCAST.IO EXPRESSLY DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, CORRECTNESS, AND FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnification and Limitation of Liability
7.1. Provided that the Customer remains in compliance with this Agreement, Tapcast will defend or settle any claim made against the Customer for any intellectual property rights violation relating to the Service arising solely from the actions for which Tapcast is legally responsible. Customer agrees to promptly notify Tapcast in writing of any such claim, ii) to allow Tapcast to have sole control over the defense, litigation, and/or settlement of any such claim and iii) to cooperate with Tapcast in the investigation, defense, and settlement thereof. Tapcast shall indemnify Customer for such claim by paying the costs and reasonable attorneys’ fees Customer incurs as a results of such claim, including damages awarded to such third party in a judgment finally awarded against Customer or settlement approved by Tapcast. If such claim is made or, in Tapcast's opinion, is likely to be made, then Tapcast may, at its sole discretion, (i) modify the Service or if it’s not commercially reasonable for Tapcast to modify the Service, (ii) terminate the Service and/or the Agreement with immediate effect. In no event shall the termination of the Service or the Agreement due to infringement relieve Tapcast from its obligation to defend and indemnify Customer as set forth herein. Tapcast shall not settle any claim on behalf of Customer without Customer’s prior written consent if the settlement requires any admission of fault by Customer.
7.2. The Customer shall defend or settle any claim made against Tapcast, and if applicable, its licensors, and each such Party’s parent organizations, subsidiaries, Affiliates, officers, directors, and employees, if such claim arises out of or in connection with: (a) Customer disrupting the Service in violation of applicable legislation or in violation of Section 4.4 of these Terms of Service; or (b) Customer’s infringement or alleged infringement of any third party’s intellectual property right or (c) the Content or Materials. Tapcast agrees i) to promptly notify the Customer in writing of any such claim, ii) to allow the Customer to have sole control over the defense, litigation, and/or settlement of any such claim and iii) to reasonably cooperate with the Customer in the investigation, defense, and settlement thereof. The Customer shall indemnify Tapcast and if applicable, its licensors, and each such Party’s parent organizations, subsidiaries, Affiliates, officers, directors, and employees for such claim by paying the costs and reasonable attorneys’ fees incurred by the foregoing persons or parties as a result of such claim, including damages awarded to such third party in a judgment finally awarded against Tapcast or settlement approved by the Customer. Customer shall not settle any claim on behalf of Tapcast without Tapcast’s prior written consent if the settlement requires any admission of fault by Tapcast.
7.3. Tapcast shall have no obligations under this Section 7 to the extent any infringement claim arises from: a) the Customer’s combination of the Service with other software or services or Customer’s modification to any part of the Service or Customer’s violation of Section 4.4 if such claim would not have been made but for Customer’s combination or modification or Customer’s violation of Section 4.4; or b) information or materials provided by the Customer and used by Tapcast for the performance of the Service in accordance with this Agreement or c) the Content or Materials.
7.4. The foregoing remedies constitute Customer’s sole and exclusive remedies and Tapcast’s entire liability with respect to third party infringement claims.
7.5. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING ATTORNEYS' FEES) IN ANY WAY ARISING IN CONNECTION WITH THE SERVICE OR THESE TERMS OF SERVICE, INCLUDING BUT NOT LIMITED TO LOSS OF DATA, LOST BUSINESS OPPORTUNITIES, OR LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.6. EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT MAY NOT IN ANY CALENDAR YEAR STARTING FROM THE DAY THE CUSTOMER STARTED USING THE SERVICE EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF FEES RECEIVED BY TAPCAST FROM THE CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE ONE (1) MONTH PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
7.7. THE LIMITATIONS OF THIS SUBSECTION SHALL APPLY TO ANY THEORY OF LIABILITY, WHETHER BASED ON WARRANTY, CONTRACT, STATUTE, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND WHETHER OR NOT THE TAPCAST HAS BEEN INFORMED OF THE POSSIBILITY OF ANY SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE LIMITATIONS SET FORTH ABOVE IN SECTION 7.5 AND 7.6 SHALL NOT APPLY TO (i) A VIOLATION OF SECTION 4.4; OR (ii) THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 7.1 AND 7.2.
8. Confidentiality
8.1. Each Party shall keep in confidence all material and information received from the other Party and marked as confidential or which should be understood to be confidential, and may not use such material or information of the other Party for any purpose other than for the proper fulfilment of the Agreement. The confidentiality and non-use obligations shall not, however, be applied to material and information: (a) which is generally available or otherwise public; or (b) which the receiving Party has received from a third party without any obligation of confidentiality; or (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto or breach of confidentiality obligations.
8.2. Notwithstanding the confidentiality provisions, Tapcast may collect and analyze the Customer’s advertising spend data and trends, ad content, audiences, ad performance, and other Facebook, Instagram, or Snapchat data, or any applicable banking and Ecommerce data, but may only disclose this Customer data if the data is de-identified or if it is not attributable to any individual or company. In addition, Tapcast may collect, analyze, and use aggregated, de-identified technical data and related information (such as product or feature usage, device metrics/metadata, etc.) to facilitate market research and analysis, quality control, product development/improvement, provision of advertising budgets, and to provide support and maintenance services. Tapcast may use, store, or disclose such information or material derived from such information, as long as it is in a form that does not identify or is not attributable to any individual or company.
8.3. Each Party shall promptly upon termination of the Agreement (or when the Party no longer needs the material or information in question for the purposes of the Service) cease using confidential material and information received from the other Party and, unless the Parties separately agree on destruction of such material, return the material in question (including all copies thereof). Each Party shall, however, be entitled to retain the copies required by law or regulations and Tapcast may use information in the connection with Section 8.2.
8.4. The confidentiality and non-use obligations set out herein will remain in force for five (5) years from the disclosure of each respective confidential material and/or information except that the foregoing time limit shall not apply to trade secrets.
9. Term and termination
9.1. Unless defined otherwise in the Order From, the Customer may terminate the Agreement and the use of the Service at any time by a prior written notice (email being sufficient) to the account manager assigned to Customer or to support@tapcast.io, in which case Tapcast shall send the Customer a written confirmation regarding termination without undue delay. Upon termination, Tapcast shall terminate automatically billing the Customer for billing periods following the end of the billing period defined in the plan selected by the Customer.
9.2. Tapcast may terminate the Agreement and the use of the Service for convenience upon written notice by email.
9.3. Either Party may terminate this Agreement with immediate effect, if the other Party is in material breach of its obligations hereunder and fails to remedy such breach within 14 days written notice given by the non-breaching Party.
9.4. Upon expiration or termination of this Agreement, the Customer is obliged to cease the use of the Service and shall return or, upon Tapcast’s request, destroy Tapcast’s material in its possession and upon Tapcast's request confirm in writing that it has complied with the aforesaid.
9.5. Upon termination for whatever reason, no paid fees will be refunded by Tapcast, and the Customer is obliged to pay the fees past due up through the effective date of such termination. In the event that fees are not fully paid when due or the obligations set out in this Agreement are not otherwise followed by the Customer, Tapcast reserves the right to terminate the Customer’s right to use the Service with immediate effect.
10. Processing of data
10.1. The Customer expressly acknowledges and agrees that it is Customer's obligation to observe and to comply with any and all privacy and data protection laws (including but not limited to EU General Data Protection Regulation, GDPR), regulations and terms applicable to information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context (“Personal Data”) contained in the materials provided by the Customer for the purposes of the Service regardless of the country/state in which the Customer is based. The above mentioned includes, but is not limited to, complying with terms and restrictions related to Customer's use of customer/contact databases and complying with any applicable privacy policies and cookie opt-in policies.
10.2. In the event that (i) Tapcast in connection with the Service processes Personal Data as a processor on behalf of the Customer and (ii) the applicable legislation (such as the GDPR) requires Parties to put in place a data processing agreement (DPA) to govern such data processing, a DPA shall be provided to the Customer by Tapcast prior to such data being processed. In such event, the DPA provided forms an integral part of the Agreement and shall be applied to the processing of Personal Data by Tapcast as a processor.
10.3. Tapcast may collect and process Personal Data regarding Customer’s personnel, customers, prospective customers, and/or other representatives of the Customer using the Service for the Customer. Such processing is described in Tapcast’s Privacy Policy, the current version of which is available via the Service and on Tapcast’s website at https://www.tapcast. io/privacy. The Customer shall ensure that its employees and representatives engaging with the Service are informed about the contents of Tapcast Privacy Policy.
11. Applicable law and dispute resolution
11.1. This Agreement and any action related thereto will be governed by the laws of the State of California without regard to or application of its conflict of law provisions or the Customer’s state or country of residence. All claims, legal proceedings or litigation arising in connection with Tapcast Services will be brought solely in the federal or state courts located in San Mateo County, California, United States, and the Customer consents to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum.
11.2. If the Customer is a federal, state, or local government entity in the United States using Tapcast in an official capacity and legally unable to accept the controlling law, jurisdiction, or venue clauses above, then those clauses do not apply. For such U.S. federal government entities, this Agreement and any action related thereto will be governed by the laws of the United States of America (without reference to conflict of laws) and, in the absence of federal law and to the extent permitted under federal law, the laws of the State of California (excluding choice of law).
12. General Provisions
12.1. Tapcast is entitled to change the working methods, hardware, data communication links, software, user interface, or other system components used in the providing the Service. Tapcast may also use subcontractors.
12.2. Tapcast is entitled to use the Customer's name and logo for advertising purposes.
12.3. Neither Party may assign this Agreement without other Party’s prior written consent. Parties shall, however, be entitled to assign this Agreement in whole or in part to its Affiliates and in the connection with a merger or acquisition process including but not limited to the transfer of business and/or any other corporate transaction or restructuring.
12.4. No provision or right under this Agreement shall be considered waived without an explicit written statement or agreement signed by the waiving Party in each specific case. A waiver of any term, provision, or right under this Agreement shall not be construed as a waiver of any other term, provision, or right hereunder. The failure of Tapcast to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision.
12.5. Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure.
12.6. This Agreement and the information submitted by the Customer during the registration process for the Service constitute the entire agreement with respect to its subject matter and replaces and supersedes any prior written and/or verbal communications. Tapcast may revise these Terms of Service from time to time, and the most current version will always be posted at www.tapcast.io/terms. If the revision, in Tapcast’s sole discretion, is material, we will notify Customers through Tapcast Services. Customers who do not wish to be bound by any such revisions to the Terms must terminate this Agreement with Tapcast as set forth in Section 9 above. By continuing to access or use Tapcast Services after those revisions become effective, Customers agree to be bound by the revised Terms.
12.7. If any provision herein is held to be invalid or unenforceable to any extent, then such provision will be interpreted, construed, and reformed to the extent reasonably required to render it valid, enforceable and consistent with its original intent, and the remaining provisions of these Terms of Service will remain in full force and effect.
12.8. Headings in these Terms of Service are for convenience of reference only and shall in no way affect interpretation of the Agreement.
These Terms of Service are an agreement between Customers as defined above and Tapcast, 475 El Camino Real, Suite 405, Millbrae, CA 94030 U.S.A. Customers who have any questions about these Terms of Service should contact Tapcast at support@tapcast.io.