SITE PUBLISHER LICENSE AGREEMENT AND TERMS OF USE

 

IMPORTANT.  PLEASE READ THIS SITE PUBLISHER LICENSE AGREEMENT AND TERMS OF USE (collectively, “Agreement”) CAREFULLY BEFORE DOWNLOADING THE TAPATALK SOFTWARE PLUGIN (“Plugin”). BY DOWNLOADING OR USING THE PLUGIN, YOU (“you” or “your”) ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND COMPLY WITH ALL APPLICABLE LAWS, RULES, REGULATIONS, AND ORDINANCES ASSOCIATED WITH YOUR USE OF THE PLUGIN, DOCUMENTATION, AND SERVICE (defined below).  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, YOU ARE NOT PERMITTED AND ARE NOT AUTHORIZED TO DOWNLOAD OR USE THE PLUGIN. IF YOU REGISTER FOR A PROBOARDS FORUM THROUGH TAPATALK, YOU WILL ALSO BE SUBJECT TO PROBOARDS TERMS OF SERVICE AND PROBOARDS PRIVACY POLICY.

1.  Grant of License; Use of Plugin

Tapatalk, Inc. (“Tapatalk,” “us,” or “we”) grants you a limited, non-exclusive, non-transferable license to download install and use the Plugin with a Tapatalk compatible forum or blog, including any documentation files accompanying the Plugin (“Documentation”) (collectively with the Plugin, Documentation, and Application (defined below), “Service”), provided that:  (i) all copyright notices are maintained on the Plugin; and (ii) you agree to be bound by the terms and conditions of this Agreement, and (iii) the Plugin is used for the limited purpose contemplated in the provision of this Agreement. The Plugin and Documentation shall be used only by you or your organization.

Notwithstanding the foregoing limited use license grant or anything to the contrary in this Agreement, you acknowledge that certain components of the Plugin may be covered by so-called “open source” software licenses (“Open Source Components”), which means any software licenses approved as open source licenses by the Open Source Initiative or any substantially similar licenses, including any license that, as a condition of distribution of the software licensed under such license, requires that the distributor make the software available in source code format.  We will provide a list of Open Source Components for a particular version of the Plugin upon your written request.  To the extent required by the licenses covering Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement with respect to such Open Source Components.  To the extent the terms of the licenses applicable to Open Source Components prohibit any of the restrictions in this Agreement with respect to such Open Source Components, such restrictions will not apply to such Open Source Components. To the extent the terms of the licenses applicable to Open Source Components require us to make an offer to provide source code or related information in connection with the Plugin, such offer is hereby made.  Any request for source code or related information should be directed only to [email protected]k.com.  You acknowledge receipt of notices for the Open Source Components in the initial delivery of the Plugin.

In order to help users find your forum(s) and blog(s) when using the Tapatalk mobile application (“Application”), you grant us a non-exclusive, royalty-free, worldwide license to:  (i) access, index, and cache any part of the publicly available portions your forum(s) and blog(s), by any means, including web spiders and/or crawlers, and (ii) use, copy, adapt, reformat, and recompile any part of our index or cache of your forum(s) and blog(s) for public performance, public display, and distribution through the Application.  The Application will not access your email address, IP address, cookies, or any sensitive information, such as Tax ID numbers, banking or credit card information, or health information.  

2.  Use of Service; Advertisements; Affiliate Links

You may use the Service only if you can form a binding contract with Tapatalk and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. If you accept this Agreement and use the Service on behalf of a company, organization, government, or other entity, you represent and warrant that you are authorized to do so. You may use the Service only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Service.

The Service may include advertisements, which may be targeted to users of your forum(s) and blog(s), the content or information on the Service, including your forum(s) and blog(s), or other information. The Service may also include paid affiliate links to third-party websites. The types and extent of advertising and affiliate links utilized by Tapatalk on the Service are subject to change. In consideration for Tapatalk granting you access to and use of the Service, you agree that Tapatalk and its third party providers and partners may place such advertising and affiliate links on the Service.

We support the cross-industry self-regulatory program for online behavioral advertising, which was developed by leading industry associations to apply consumer-friendly standards to online behavioral advertising across the Internet. As such, while you participate in and/or use the Service, you will maintain and adhere to a privacy policy/notice on each forum/blog to which your ads are served that will, at a minimum:  (a) be available as a clear and conspicuous link on your forum/blog, (b) comply with all applicable laws, rules, and regulations, (c) accurately state the data collection, use and disclosure practices applicable to your forum/blog, including the use of third-party analytics service providers who may use cookies, web beacons, and/or other technologies to collect anonymous data regarding user interaction with your forum/blog, which may be used, among other things, to target ads on other forums and/or websites, (d) disclose the use of third parties to serve ads on your forum/blog, and (e) contain a clear and conspicuous link to an industry-standard opt-out page such as the Network Advertising Initiative’s opt-out page located at http://www.networkadvertising.org/choices, or the Digital Advertising Alliance's consumer opt-out page located at http://www.aboutads.info/choices.

3.  Ownership

You have no ownership rights in the Service. Rather, you have a license to use the Service as long as this Agreement remains in full force and effect. Ownership of the Service, including the Plugin and Documentation and all intellectual property rights therein, shall remain at all times with Tapatalk. Any use of the Service by any other person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

You acknowledge and agree that all of Tapatalk’s trademarks, trade names, service marks, logos, brand features, including the Plugin, Service, and Application names are the property of and are owned Tapatalk, and that you will not make trademark use of or otherwise misappropriate any of the foregoing without Tapatalk’s prior written approval in each instance.

You agree that the Service contains proprietary information protected by applicable intellectual property laws, other laws in favor of Tapatalk, and international treaty provisions. You further agree that content and information presented or available to you through the Service is protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws.

4.  Payment

Subject to Section 4 and Section 12 of this Agreement, we will pay you based on the number of valid clicks on advertisements or affiliate links displayed on the Service within your forum/blog, or other valid events performed in connection with the display of advertisements or affiliate links displayed on the Service within your forum/blog, in each case as determined solely by Tapatalk, and the revenue received by Tapatalk from such advertisements or affiliate links.  Tapatalk will pay you when the revenue derived from such advertisements or affiliate links equals or exceeds the applicable payment threshold to be determined by Tapatalk in its sole discretion.  Payments will be calculated solely based on our accounting. Payments below the payment threshold will accrue for 24 months.  If the payment threshold is not reached after 24 months, payments accrued from the first accrual month may be forfeited. In addition, payments to you may be withheld to reflect, or be adjusted to exclude, any amounts refunded or credited to advertisers, and any amounts arising from invalid activity, as determined by Tapatalk in its sole discretion.  Invalid activity is determined by Tapatalk in all cases, and includes the following:  (i) spam, invalid impressions or invalid clicks on advertisements or affiliate links generated by any person, bot, automated program or similar device, including through any clicks or impressions originating from any IP address or computer under your possession, custody, or control; (ii) clicks solicited or impressions generated by payment of money, false representation, or requests for users to click on advertisements or take other actions; and (iii) clicks or impressions co-mingled with a significant amount of the activity described in (Sections 4(i) and (ii), above.  If you dispute any payment made or withheld relating to the Service, you must notify Tapatalk in writing within 30 days of any such payment; otherwise, any claim relating to the disputed payment is waived and not subject to challenge.  To ensure proper payment, you are responsible for providing and maintaining accurate contact and payment information with us.  Also, you are responsible for any charges assessed by your bank or payment provider.

5.  Restrictions

You agree not to (i) publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Service or any part thereof, (ii) reverse engineer, decompile, translate, adapt, or disassemble the Service, including the Plugin, (iii) attempt to create the source code from the object code for the Service or any part thereof, and/or (iv) publish content in or using the Service that (a) violates any applicable law, statute, rule, regulation, ordinance, right of publicity or privacy, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (such as discrimination of protected classes, hate crimes, or copyright circumvention sites), (c) infringes or misappropriates any copyright, patent trademark, trade secret or other proprietary of any third party, or (d) is defamatory, libelous, threatening, deceptive, pornographic or sexually explicit. If you violate this Section, in addition to other rights, we may immediately ban you from the Service and terminate this Agreement.

6.  Confidentiality

You acknowledge that the Service contains proprietary trade secrets of Tapatalk and you agree to maintain the confidentiality of the Service using at least as great a degree of care as you use to maintain the confidentiality of your own most confidential information. In order to access certain features of the Service, you may be required to register. You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Tapatalk in writing of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session. Tapatalk is not liable for any loss or damage arising from your failure to comply with this Section.

7.  Warranty Disclaimer

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, INCLUDING THE PLUGIN, IS PROVIDED ON AN "AS IS" BASIS WITHOUT REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE OF ANY KIND. THE TAPATALK ENTITIES (defined below) DISCLAIM ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, AND ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

THE TAPATALK ENTITIES ARE NOT RESPONSIBLE OR LIABLE FOR:  (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE; (II) ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE; (III) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND OTHER COMMUNICATIONS ACCESSED BY, THROUGH, OR MAINTAINED BY THE SERVICE; (IV) WHETHER THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; AND (V) ANY CONTENT, SOFTWARE, HARDWARE, OR EQUIPMENT ACCESSED BY, THROUGH, OR IN CONNECTION WITH THE SERVICE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE TAPATALK ENTITIES OR THROUGH THE SERVICE, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

8.  Limitation Of Liability

IN NO EVENT WILL THE TAPATALK ENTITIES BE LIABLE FOR ANY CONTENT CONTAINED WITHIN OR ACCESSED FROM ANY OF YOUR FORUMS OR BLOGS AND/OR THE SERVICE, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY PECUNIARY OR INTANGIBLE LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF THE TAPATALK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT, THE MAXIMUM LIABILITY OF THE TAPATALK ENTITIES, UNDER ANY CAUSE OF ACTION OR THEORY, IS $100.  

9.  Enforceability Of This Agreement

IF ANY PROVISION OF THIS AGREEMENT IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INVALID, THE PARTIES AGREE THAT THE COURT SHOULD ENDEAVOR TO GIVE EFFECT TO THE PARTIES’ INTENTIONS AS REFLECTED IN THE PROVISION, AND IF NOT GIVEN EFFECT, WILL BE DEEMED SEVERABLE FROM THE AGREEMENT AND WILL NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING PROVISIONS OF THIS AGREEMENT, WHICH REMAIN IN FULL FORCE AND EFFECT.

10.  Your Warranties

You represent, warrant, and covenant that (i) you have the right and ability to enter into this Agreement to license and use the Service, and (ii) you and/or any parties who use the Service on your behalf will not use the Service in any manner that might (a) infringe or misappropriate any copyright, patent, trademark, trade secret, or other proprietary right of any third party; (b) violate any applicable law, statute, rule, ordinance, regulation, directive, right of publicity or privacy; (c) introduce into the Service or cause it to contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines; or (d) promote illegal or unlawful activity. If you elect to use the Newsletter feature of the Service, you also represent, warrant, and covenant that you have the right and ability to provide the email addresses of your registered members so we may send an email with “Trending Discussions” from your forum/blog.

11.  Indemnification

You will indemnify, defend and hold harmless Tapatalk and its subsidiaries, affiliates, partners, officers, directors, employees, consultants, and agents (collectively, “Tapatalk Entity”) from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with a breach of this Agreement, use of the Service, including any content you submit, post, transmit, modify or otherwise make available through or in connection with the Service, and/or any violation of law and/or the rights of any third party. You are solely responsible for defending any Claim against a Tapatalk Entity, subject to such Tapatalk Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Tapatalk Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Tapatalk Entity without its prior express written consent.

 

 12.  Termination

This Agreement is effective until terminated. You may terminate this Agreement at any time by discontinuing use of the Service, removing and uninstalling the Plugin from each of your forums and/or blogs, and destroying or returning to Tapatalk all copies of the Plugin and Documentation in your possession, custody, or control. Tapatalk may terminate this Agreement for any reason, including if Tapatalk finds that you have violated any of the terms of this Agreement. Upon notification of termination, you agree to immediately cease use of the Service, remove/uninstall the Plugin, destroy or return to Tapatalk all copies of the Plugin and Documentation, and certify in writing that all known copies of the Plugin and Documentation, including backup copies, have been destroyed. If either party terminates this Agreement for any reason beside your uncured breach of this Agreement and the revenue derived from advertisements or affiliate links equals or exceeds the applicable payment threshold, you will receive your earned balance above the payment threshold within approximately 90 days after the end of the calendar month in which the Agreement is terminated. Any amount below the payment threshold will be forfeited.  Sections 3, 4 (to the extent of accrued but unpaid payments, and 5 through 19 will survive the termination of this Agreement.

13.  Copyright or Intellectual Property Complaints  

Tapatalk respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please provide us with the following information:

We reserve the right to remove content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Tapatalk may also terminate a user’s access to the Service if the user is determined to be a repeat infringer. Please send the foregoing information to our agent for notice of claims of copyright or other intellectual property infringement at:

Tapatalk, Inc.

Attn: Copyright Agent

202 Bicknell Avenue, First Floor

Santa Monica, CA 90405

 

14.  Choice of Law; Venue

This Agreement and the relationship between you and the Tapatalk Entities are governed by the laws of the State of California without regard to its conflict/choice of law provisions, and that any and all claims, causes of action, or disputes (regardless of theory) arising out of or relating to this Agreement, or the relationship between you and Tapatalk, shall be brought exclusively in the state or federal courts located in Los Angeles County, California. You and Tapatalk waive any and all objections to the exercise of jurisdiction over the parties by such courts and venue in such courts.

15.  Class Action Waiver

ANY CLAIM AGAINST THE TAPATALK ENTITIES SHALL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY PROCEEDING WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. AS SUCH, YOU AGREE THAT YOU WAIVE ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION SUIT AGAINST ANY OF THE TAPATALK ENTITIES. You may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding.

16.  Statute of Limitation/Time to File an Action

You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.

 

17.  Notice

You agree that Tapatalk may provide you with notices by email, regular mail, SMS, MMS, text message, push notifications, postings on the Service/website, or other reasonable means now known or hereafter developed. You acknowledge and agree that Tapatalk will have no liability associated with or arising from your failure to maintain and supply Tapatalk with accurate contact information about yourself, including your failure to receive important information and updates about the Service.

 

18.  Miscellaneous

This Agreement may be amended from time-to-time in Tapatalk’s sole discretion. Any changes to this Agreement will be effective immediately upon the posting of the revised Agreement on the Application, our website, or in an updated version of the Service. This Agreement, including any agreements and terms incorporated by reference herein, constitutes the entire agreement between you and Tapatalk and govern your use of the Service, and supersedes any prior and/or contemporaneous version of the Agreement between you and Tapatalk with respect to the Service.  Any suggestions, comments, improvements, ideas, enhancement requests or feedback provided by you with respect to or relating to the Service, may be used by us without compensation or attribution to you, and in connection therewith, you grant the Tapatalk Entities a perpetual, irrevocable, fully paid-up, unrestricted right and license to use any or all of the foregoing. The Service proprietary to us and are protected by applicable state, federal, and international intellectual property laws.  We retain all rights, title, and interests in the Service, together with all derivative works, modifications, enhancements, and upgrades.  All rights not granted to you herein are expressly reserved by Tapatalk. You may not remove any proprietary notice of Tapatalk from any part of the Service.  Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term and/or condition of this Agreement.  No waiver by either you or us of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of this Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a substantially similar effect.  Neither you nor we will have any liability under this Agreement by reason of any failure or delay in the performance of your or our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond as applicable, your or our reasonable control.  You and we are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us.  Except as otherwise set forth in this Agreement, there are no third-party beneficiaries to this Agreement.  Notwithstanding the foregoing, you acknowledge and agree that the Tapatalk Entities are third-party beneficiaries to this Agreement, and will be entitled to directly enforce, and rely upon, any provision in the Agreement which confers a benefit on, or rights in favor of, them.  You may not assign, sublicense, or transfer this Agreement or any right or duty under this Agreement without our prior written consent.  Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect.  We and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time-to-time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity such as the Tapatalk Entities.  The headings in this Agreement are for convenience only and have no legal or contractual effect.  As used in this Agreement, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will”, “shall”, and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.  All definitions apply both to their singular and plural forms, as the context may require.  Please report any violations of this Agreement or questions regarding the Agreement to [email protected]

 

19.  Electronic Signatures Effective

By clicking on the ‘I Accept” or similar button, you create an electronic signature to this Agreement, establishing a valid and binding contract. Therefore, you agree to accept these terms and conditions and any other agreement contained or referenced herein.  In addition, you agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of this Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a written request to us at:  Tapatalk, Inc., 202 Bicknell Avenue, First Floor, Santa Monica, CA 90405.

 

You may choose to withdraw your consent to receive this Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent means that you wish to have our relationship with you governed by a non-electronic form of this Agreement. If you wish to withdraw your consent to receive this Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to us at:  Tapatalk, Inc., 202 Bicknell Avenue, First Floor, Santa Monica, CA 90405. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of the Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of this Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully satisfied by you.

 

In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer or other access device). We will notify you of any material changes in the hardware or software requirements needed to access and/or retain this Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.

 

* * *

This Agreement was last updated on and is effective as of May 8, 2018

 

Email: [email protected]

Tapatalk, Inc.

202 Bicknell Avenue, First Floor

Santa Monica, CA 90405