Last Modified: July 16th 2015
This Agreement is a contract between you and TwoTap. You must read and agree to these terms before using the TwoTap Service. If you do not agree, you may not use the TwoTap Service. You may use the TwoTap Service only if you can form a binding contract with TwoTap, and only in compliance with this Agreement and all applicable laws, rules, and regulations.
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.
1.1 “API(s)” means the application programming interface(s) provided by TwoTap through which TwoTap: (a) as to Retailers, programmatically receives Retailer Content and directs Consumer purchases to Retailer; and (b) as to Platform Provider, programmatically receives Consumer requests for purchases through the TwoTap Service’s integration with Platform Provider’s Platform.
1.2 “Confidential Information” means any and all technical and non-technical information one party provides the other hereunder that is either indicated to be proprietary or confidential information of the disclosing party or which by its nature the receiving party would reasonably deem such information to be confidential or proprietary, regardless of marking, including trade secret, know-how and proprietary information, designs, schematics, techniques, software code, technical documentation, plans or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plan or financial or personnel matter relating to the disclosing party, its present or future products, sales, suppliers, customers, employees, investors or business, whether in written, oral, graphic or electronic form.
1.3 “Consumer” means a person or entity that purchases any Product(s) via the Retailer Platform.
1.4 “Consumer Data” means the information entered by a Consumer who places an order for Products via the TwoTap Service, which information may include the Consumer’s name, address, email, phone number, and transaction history.
1.5 “Intellectual Property Rights” means any and all tangible and intangible (a) rights associated with works of authorship throughout the universe, including copyrights and moral rights, (b) trademark, service mark, domain name and trade name rights and similar rights, (c) trade secret rights, (d) patents, designs, algorithms and other industrial property rights, (e) all other intellectual and proprietary rights (of every kind and nature, whether now known or hereafter recognized, throughout the universe and however designated), whether arising by operation of law, contract, license or otherwise, including, but not limited to, rights of publicity, and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
1.6 “Platform” means your web and/or mobile platform.
1.7 “Platform Provider Content” means all text, pictures, sound, graphics, video, and other data or content supplied by Platform Provider to TwoTap, as such materials may be modified from time to time.
1.8 “Platform Provider Marks” means any trademarks, trade names, logos, service marks, service names, trade dress, or other commercial or product designations associated with Platform Provider or specific Platform Provider programming or media.
1.9 “Product” means all products of any nature that are sold or offered for sale via the Retailer Platform.
1.10 “Retailer Content” means all text, pictures, sound, graphics, video, and other data or content relating to Products supplied by Retailer to TwoTap, as such materials may be modified from time to time.
1.11 “Retailer Platform” means a Retailer’s web and/or mobile platform through which Consumers may purchase Products.
1.12 “TwoTap Service” means the online and/or mobile services, website, and software made available by TwoTap on a hosted basis.
1.13 “Transaction” means the processing at one time of a payment made by a Consumer for one or more Products via the TwoTap Service.
2.1 License to TwoTap Service and API(s). Subject to the terms and conditions of this Agreement, TwoTap hereby grants to Platform Provider a nonexclusive, non-sublicensable license during the Term to: (a) integrate the TwoTap Service with the Platform Provider’s Platform; and (b) access and use the APIs to programmatically direct Consumers to the TwoTap Service in order to facilitate Consumer orders for Products to be fulfilled by Retailers.
2.2 Use Restrictions. Platform Provider will not, and will not permit any third-party to: (a) use the APIs in a manner that impacts the stability of TwoTap’s servers or impacts the behavior of other applications using the API; (b) use the APIs or TwoTap Service in connection with or to promote or sell any products, services, or materials that constitute, promote, or are used primarily for the purpose of dealing in spyware, adware, or other malicious programs or code, counterfeit goods, items subject to U.S. embargo, unsolicited mass distribution of email ("spam"), multi-level marketing proposals, hate materials, hacking/surveillance/interception/descrambling equipment, libelous, defamatory, obscene, pornographic, abusive or otherwise offensive content, prostitution, body parts and bodily fluids, stolen products and items used for theft, fireworks, explosives, and hazardous materials, government IDs, police items, gambling, professional services regulated by state licensing regimes, non-transferable items such as airline tickets or event tickets, weapons and accessories; (c) decompile, decipher, disassemble, translate, modify, prepare derivative works of, reverse engineer or otherwise attempt to access the source code of the APIs or TwoTap Service, except as permitted by applicable law; (b) infringe the Intellectual Property Rights or other proprietary rights of any third party; (d) use the APIs or TwoTap Service in the operation of a service bureau or time-sharing service; (e) circumvent the user authentication or security of the APIs or TwoTap Service or any host, network, or account related thereto, attempt to gain unauthorized access to a network, computer, software application, or any part thereof, misrepresent the source, identity, or content of information transmitted via the APIs or TwoTap Service, or use or access the APIs or TwoTap Service in a manner intended to avoid the payment of fees; (f) make any use of the APIs or TwoTap Service that violates any applicable local, state, national, international or foreign law; (g) fail to use commercially reasonable efforts to prevent the unauthorized license, sale, transfer, lease, transmission, distribution or other disclosure of the APIs or TwoTap Service; or (h) allow any third party to use any user identification(s), code(s), password(s), procedure(s) and user keys issued to, or selected by, Platform Provider for access to the APIs or TwoTap Service.
2.3 Trademarks. Subject to the terms and conditions of this Agreement, Platform Provider hereby grants TwoTap a limited, non-exclusive, non-sublicensable (except with respect to approved subcontractors), royalty-free, worldwide license to use the Platform Provider Marks for the purposes of providing the features and functionalities of the TwoTap Service to Platform Provider, Consumers, and in connection with Third-Party Platforms, and for offering Products for sale via the TwoTap Service in accordance with this Agreement. To the extent that any Products or any Platform Provider Content contain trademarks owned by a third-party, Platform Provider grants TwoTap a limited, non-exclusive, non-sublicensable (except with respect to approved subcontractors), royalty-free, worldwide license to use such trademarks for purposes of offering the Products via the TwoTap Service and in connection with Third-Party Platforms. Platform Provider represents and warrants that it has the right to sublicense any such third-party rights to TwoTap for the purposes set forth above. Title to and ownership of the Platform Provider Marks shall remain with Platform Provider or the applicable licensors.
2.4 All Other Rights Reserved. Each party will retain all right, title, and interest in and to its respective intellectual property, including but not limited to all Intellectual Property Rights therein and thereto. Each party reserves all other rights in and to its intellectual property that are not expressly granted herein.
3. Sales of Products via the TwoTap Service; Payment Terms
3.1 Responsibility for Products. For purposes of clarity, Retailers are responsible for pricing, sale, maintenance, shipping, returns, refunds, support, and all other aspects of the purchase and supply relationship with Consumers with respect to Products purchased via the Retailer Platform, including but not limited to payment processing. TwoTap hereby expressly disclaims any and all liability or other responsibility for the Products except as expressly set forth in this Agreement.
4. Payment Terms. If you are a Platform Provider, the following payment terms shall apply:
4.1 Members. If you are a member of the TwoTap network, TwoTap will pay to you the Agreed Affiliate Commission that TwoTap actually receives from a Retailer in connection with Products purchased by Consumers and facilitated through a Qualifying Link (the “Revenue Share ”). TwoTap will pay you monthly for Revenue Share due in the preceding month.
(a) “Agreed Affiliate Commission” means the percentage agreed by the Retailer to be paid to you via the TwoTap Service for Transactions made via the TwoTap Service integrated with your Platform.
(b) “Qualifying Link” means any type or format of link that is provided or authorized by TwoTap to be displayed by Retailer or Affiliate to its or their users and which, through the addition and/or use of any technology and/or methodology, can be tracked so that TwoTap can monitor orders resulting in Transactions and other tracked activities.
4.2 Non-Members. If you are not a member of the TwoTap network, as between us, you will not owe any fees directly to TwoTap unless otherwise mutually agreed.
All payments made hereunder shall be made via wire transfer of immediately available funds in United States currency drawn on a United States bank, unless otherwise specifically agreed to by TwoTap. All payments shall be sent to the addresses listed above.
5. Consumer Data
5.1 Use of Consumer Data. TwoTap will share certain Platform Provider-related Consumer Data with Platform Provider for the purpose of analyzing and calculating attribution for the Services provided under the Agreement. Platform Provider agrees to treat Consumer Data as confidential and not to share it with third parties or use it for purposes not related to the Services provided under this Agreement, unless such Consumer Data has been aggregated and anonymized such that it does not identify any individual or Retailer. For clarity and without limitation, Platform Provider shall not use Consumer Data for marketing purposes without the express notice and consent of the Consumer.
6. Limited Warranties
6.1 Mutual Warranties. Each party represents and warrants to the other that it: (a) has the right and authority to enter into this Agreement; and (b) has all right, title, and interest (or necessary rights of use and sublicense rights) to grant the licenses set forth herein, and to provide the services described herein, as applicable.
6.2 Platform Provider Warranties. Platform Provider represents and warrants to TwoTap that: (a) the Platform Provider Content and any other data, information, or material provided by Platform Provider to TwoTap hereunder does not and will not infringe upon, misappropriate, or otherwise violate the Intellectual Property Rights or other proprietary rights of any third-party; and (b) Platform Provider Content comply with all applicable laws, rules, regulations, and orders, including but not limited to, tax, export and import, embargo and trade sanctions, intellectual property, content, sales, mail-order, commerce, and e-commerce laws, rules, and regulations.
6.3 Disclaimer of Other Warranties. Except as expressly set forth in writing in this Agreement, neither party makes any representations, warranties, or guarantees, and each party hereby disclaims all other representations, warranties, and conditions, whether express, implied, or statutory, with respect to the subject matter of this Agreement, or any other materials provided herein, including the TwoTap Service and API(s), including any implied warranties of title, non-infringement, merchantability, or fitness for a particular purposes, and whether arising from course of performance, course of dealing, or usage of trade. Any software provided by TwoTap, including but not limited to the TwoTap Service, is made available on an “as is” and “as available” basis. TwoTap has no control over, and disclaims any liability related to or arising from, any Third-Party Platform or for any other events outside of TwoTap’s reasonable control. Platform Provider acknowledges that TwoTap does not manage or control the information provided by Consumers and accessed, stored or distributed through the TwoTap Service, and accepts no responsibility or liability for that information regardless of whether such information is transmitted in breach of these terms or our Terms of Service, available at http://www.twotap.com/terms. TwoTap makes no warranty with respect to such Consumer-provided information. In particular, without limiting the generality of the foregoing, TwoTap makes no warranty that such Consumer-provided information will be free of any virus, worm, trojan horse, easter egg, time bomb, cancelbot, or other destructive or malicious code or programs. Platform Provider hereby agrees to waive, and hereby does waive, any legal or equitable rights or remedies it has or may have against TwoTap with respect to third-party and/or Consumer-provided information.
7. Limitation of Liability. In no event will TwoTap or its affiliates, contractors, employees, agents, or third-party partners, licensors, or suppliers be liable for any special, indirect, incidental, consequential, punitive, or exemplary damages (including without limitation losses or liability resulting from loss of data, revenue, anticipated profits, or business opportunities, that result from Platform Provider’s use or inability to use the APIs or TwoTap Service, or any other products or services provided by TwoTap in connection with this Agreement, even if TwoTap has been advised of the possibility of such damages. In no event will TwoTap’s total aggregate liability under or in connection with this Agreement, under any theory of liability (including negligence) exceed the amounts paid to Platform Provider during the twelve (12) months immediately preceding the day the act or omission occurred that gave rise to Platform Provider’s claim.
8.1 Mutual Indemnification. Each party will indemnify, defend, and hold harmless the other party and its affiliates, and its and their officers, directors, employees, contractors, and agents from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to reasonable attorneys’ fees and court costs) arising from: (a) as to Platform Provider, (i) its use of and access to the API(s), including any other data or content transmitted or received through the API(s) and any other party’s use of or access to the API(s) with Platform Provider’s unique username, password, or other appropriate security code, or (ii) any third-party claim of any kind relating to or arising from Platform Provider’s Platform or the Platform Provider Marks; (b) as to TwoTap, a third-party claim alleging that the TwoTap Service or API(s) infringe such third-party’s valid U.S. intellectual property rights; and (c) such party’s breach of Sections 2, 5, or 8 (each a “Claim”).
8.2 Indemnification Process. The indemnifying party will provide the indemnified party: (a) prompt written notice of a Claim (provided that a failure to provide such notice will not relieve the indemnifying party of its obligations hereunder except to the extent material prejudice results from its failure to provide such notice); (b) sole control over the defense and settlement of the Claim (provided that the indemnifying party may not enter any settlement that imposes a material obligation on an indemnified party without the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) at the indemnifying party’s request, all reasonable cooperation, at the indemnifying party’s expense, in the defense and settlement of the claim.
8.3 Sole Remedy for Infringement. This Section 7 shall constitute TwoTap’s sole liability, and Platform Provider’s sole remedy, for any claims of intellectual property infringement in connection with this Agreement.
9.1 Confidential Information. Both parties will maintain in confidence all Confidential Information disclosed by the other party (the “ Disclosing Party”). Notwithstanding the foregoing, the parties acknowledge and agree that the Confidential Information of TwoTap shall include, without limitation, the terms and existence of this Agreement, lists of, or information relating to TwoTap’s suppliers, licensors, customers, pricing lists, pricing methodologies, cost data, marketshare data, marketing plans, license, contract information, business plans, and other business and financial information of TwoTap. A receiving party hereunder (the “Receiving Party”) will not use, disclose or grant use of such Confidential Information except as expressly authorized by this Agreement. To the extent that disclosure is authorized by this Agreement, a Receiving Party will obtain prior agreement from its employees, agents or consultants to whom disclosure is to be made to hold in confidence and not make use of such information for any purpose other than those permitted by this Agreement. A Receiving Party will use at least the same standard of care as it uses to protect its own most confidential information to ensure that such employees, agents or consultants do not disclose or make any unauthorized use of such Confidential Information. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section shall survive any termination or expiration of this Agreement in perpetuity.
9.2 Exceptions. The obligations of confidentiality contained in Section 8.1 will not apply to the extent that it can be established by the Receiving Party that such Confidential Information: (a) was already known to the Receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the Disclosing Party; (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Receiving Party; (c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the Receiving Party in breach of this Agreement; or (d) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third-party who had no obligation to the other party not to disclose such information to others.
10. Term and Termination
10.1 Term. This Agreement will be effective for the period to which you agreed during the onboarding process, unless earlier terminated in accordance with this Agreement (the “Initial Term”). The Agreement will automatically renew for additional one (1) year periods (each a “ Renewal Term”) unless a party provides the other party with written notice of its intention not to renew at least ninety (90) days’ prior to the anniversary then-current Renewal Term. The Initial Term and any Renewal Terms are collectively referred to as the “Term.”
10.2 Termination. Either party may terminate this Agreement immediately for cause if: (i) the other party materially breaches any provision of this Agreement and fails to cure such breach within sixty (60) days after receiving written notice describing the breach; or (ii) the other party becomes or is declared insolvent or bankrupt, or is the subject of any proceeding related to its liquidation or insolvency (voluntary or involuntary), which is not dismissed within thirty (30) days after its institution, or makes an assignment for the benefit of creditors. In addition, TwoTap may terminate this Agreement at any time and for any reason or no reason on thirty (30) days’ prior written notice to Platform Provider.
10.3 Effects of Termination. In any event of termination, (i) all and licenses granted under this Agreement shall immediately cease, (ii) all Confidential Information of the Disclosing Party in the Receiving Party’s possession will be promptly transferred to the Disclosing Party or destroyed., and (iii) for the avoidance of doubt, Platform Provider will have no further rights to use the TwoTap Service and TwoTap will have no further rights to facilitate the sale of Products via the TwoTap Service. The termination of this Agreement shall not in any respect affect a party’s obligations to make any payments to the other party in connection with the distribution or purchase of Products that occurred prior to termination. Sections 1, 2.2, 2.4, 3, and 5 through 10 (inclusive) shall survive any termination or expiration of this Agreement in accordance with their terms.
11.1 Force Majeure. Neither party shall be liable to the other in any way whatsoever for any failure or delay in performance of any of the obligations under this Agreement, arising out of any event or circumstance beyond the reasonable control of such party (including war, rebellion, civil commotion, strikes, lock-outs or industrial disputes; fire, explosion, earthquake, acts of God, flood, drought or bad weather; or the requisitioning or other act or order by any government department, council or other constituted body) for so long as such cause continues.
11.2 Relationship. Nothing contained in this Agreement will be construed as creating any agency, partnership, or other form of joint enterprise between the parties. The relationship between the parties will at all times be that of independent contractors. Neither party will have authority to contract for or bind the other in any manner whatsoever. This Agreement confers no rights upon either party except those expressly granted herein or to make any representation or commitment on behalf of the other.
11.3 Non-Solicitation. During the Term and for a period of twelve (12) months thereafter, neither party will, whether as a principal, agent, employee, employer, consultant, director or partner of any person, firm, corporation or business entity, or in any individual or representative capacity whatsoever, directly or indirectly, without the express prior written consent of the other party approach, counsel or attempt to induce any person who is then in the employ of the other party to leave the employ of the other party. This prohibition does not apply to generally accepted means of advertising job opportunities to the general public, such as newspaper advertisements, job fairs and job bulletin boards, or to unsolicited applications received from employees of the other party.
11.4 Assignment. Neither party may assign its rights or obligations under the Agreement without the other party’s prior written consent (not to be unreasonably withheld); provided that a party may assign the Agreement without the other party’s prior written consent to a successor in interest or assignee in connection with any reorganization, change of control, merger, acquisition, or sale or transfer of all or substantial part of the assets of such party to any person, or to an Affiliate. Any other assignment shall be null and void, and the Agreement will be binding upon, and inure to the benefit of, each party’s successors and assigns.
11.5 Waiver. Failure or neglect by either party to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of such party’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice such party’s rights to take subsequent action.
11.6 Notices. All notices required or permitted to be given by either party under this Agreement will be in writing, and shall be deemed to have been duly given (i) upon receipt, when delivered by hand, (ii) three days after deposit, postage pre-paid, with certified or registered first class mail (airmail if international), (iii) one day after pre-paid deposit with a commercial overnight courier service (e.g., Federal Express, DHL), or (iv) upon receipt, when sent by fax (with a confirmation copy to follow by regular U.S. Mail or airmail, if international), in any such case, to the other party at its address first set forth above, or to such other address as such party may have specified to the other in writing.
11.8 Severability. In the event that any clause, sub-clause or other provision contained in this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such clause, sub-clause or other provision shall to that extent be severed from the remaining clauses and provisions, or the remaining part of the clause in question, which shall continue to be valid and enforceable to the fullest extent permitted by law.
11.9 Governing Law. This Agreement shall be governed in all respects by the laws of the State of California, without regard to conflicts of law provisions and of the United States of America. The parties expressly exclude the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim arising out of, or relating to, any provision of this Agreement or the breach thereof which cannot be resolved by good faith negotiations between the parties shall be resolved by final and binding arbitration in Santa Clara County, California by JAMS, Inc. (“ JAMS”) under the Optional Expedited Arbitration Procedures then obtaining for JAMS, except as provided herein. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing TwoTap from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
11.10 Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the TwoTap Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one (1) person’s claims. You agree that, by entering into this Agreement, you and TwoTap are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
11.11 Compliance with Law. Each party agrees that in the course of its performance under this Agreement to comply at all times with all applicable international, federal, state and local laws, including all applicable privacy laws and regulations.
11.12 Injunctive Relief. Each party acknowledges that its breach of Section 8 (Confidentiality) of this Agreement may irreparably harm the other party, and that such harm may not be susceptible to accurate measurement for the purpose of calculating money damages. Accordingly, the other party, in addition to seeking and recovering money damages and other remedies available at law, will have the right to seek an injunction or other equitable relief to prevent a breach or threatened breach of such Sections, without the necessity of posting a bond or other security.
11.13 No Publicity. Neither party may use the trademarks, service marks, trade names, logos, or other commercial or product designations of the other in connection with any promotion or marketing without the prior written consent of the other party, not to be unreasonably withheld, conditioned, or delayed; provided that TwoTap may: (a) list Platform Provider (using the Platform Provider Marks) as a user of TwoTap’s products on TwoTap’s website and other marketing and promotional materials; and (b) otherwise use the Platform Provider Marks to identify Platform Provider in connection with TwoTap marketing and promotional activities.
11.14 Entire Agreement. This Agreement supersedes any arrangements, understandings, promises or agreements made or existing between the parties hereto prior to or simultaneously with this Agreement and constitutes the entire understanding between the parties hereto. Except as otherwise provided herein, no addition, amendment to or modification of this Agreement shall be effective unless it is in writing and signed by and on behalf of both parties.