Last Modified: Jun 15th 2016
Welcome to Two Tap, the eCommerce Gateway, provided by amber.io, Inc. (“Two Tap,” “we,” or “us”). These International Consumer Terms and Conditions (this “Agreement”) govern your use of the online and/or mobile services, website, and hosted software provided on or in connection with our services (collectively, the “Two Tap Services”) in connection with the purchase of products intended by you to be shipped internationally (“International Products”).
This Agreement is a legal contract between you, either an individual customer or user of at least 18 years of age or a single company, organization, or entity (“you” or, collectively, “Customers”), and Two Tap regarding your use of the Two Tap Services.
If you are using or opening an account with Two Tap on behalf of a company, entity, or other organization (collectively, the “Subscribing Organization”) then “you” includes that Subscribing Organization, and you represent and warrant that you: (a) are an authorized representative of that entity with the authority to bind such entity to this Agreement; and (b) have read, understand, and agree to this Agreement on behalf of such Subscribing Organization.
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. License Grant. Subject to the terms and conditions of this Agreement, Two Tap hereby grants to you a limited, personal, non-transferable license to use the Two Tap Services in the manner contemplated by this Agreement and in accordance with the features and functionality of the Two Tap Services made available by Two Tap. Customers shall have no right to sub-license or resell the Two Tap Services or any component thereof.
3. Individual Features and Services. When using the Two Tap Services, you will be subject to any additional posted guidelines or rules applicable to specific services and features which may be posted from time to time (the “Guidelines”). All such Guidelines are hereby incorporated by reference into this Agreement.
4. Modifications of this Agreement. Two Tap reserves the right, at its sole discretion, to change, modify, add, or remove portions of this Agreement at any time. You agree to review this Agreement and any Guidelines periodically for changes. If we make any material changes to this Agreement, we will notify you via email at the address you have provided to us and request that you agree to the new version of the Agreement. If any changes are unacceptable to you, your only remedy is to terminate your Two Tap Customer Account.
5. Customer Service; Customer Communications and Notice. Please email firstname.lastname@example.org for further assistance. Under this Agreement, you consent to receive communications from Two Tap electronically. We will communicate with you by email or by posting notices on the Two Tap Services. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
6. Eligibility. The Two Tap Services are not available to persons under 18 years of age or to any Customers previously suspended or removed from the Two Tap Services. Two Tap may terminate your account, delete any content or information that you have posted on the Two Tap Services, and/or prohibit you from using or accessing the Two Tap Services (or any portion, aspect or feature of the Two Tap Services) for any reason or no reason, at any time in its sole discretion, with or without notice, including without limitation if it believes that you are under 18. By agreeing to this Agreement as described above or using the Two Tap Services you represent that you are at least 18 years of age.
7. Account Activity Responsibility.
(a) Customer Accounts. In order to use certain aspects of the Two Tap Services, you will have to register and create an account (“Customer Account”). When creating your account for the Two Tap Services, you agree to provide true, accurate, current, and complete information. You further agree to maintain and update your personal information as needed to keep it true, accurate, current, and complete. You are solely responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. If you have reason to believe that your account is no longer secure (for example, in the event of a loss, theft or unauthorized disclosure or use of your ID, password, or any credit, debit or charge card number), you agree to immediately notify Two Tap and to cooperate with our investigation of the incident. You may be liable for the losses incurred by Two Tap or others due to any unauthorized use of your Customer Account.
(b) Account Information. You acknowledge and agree that Two Tap may access, preserve and disclose your account information and related contents if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any Information violates the rights of third parties; (d) respond to your requests for customer service; or (e) protect the rights, property or personal safety of Two Tap, its users, or the public.
(a) Two Tap facilitates transactions between various third-party retailers (“Retailers”) and Customers through integration of Two Tap’s software with third-party websites and platform service providers (“Publishers”). Two Tap contracts with suppliers, including Retailers, to provie Retailers’ International Products to consumers like you for delivery through the Two Tap shipping and fulfillment network. Accordingly, all products you purchase from a Retailer through the Two Tap Services will be: (a) priced by Two Tap and/or its designee(s) (including but not limited to whether such prices include applicable local, state, or federal taxes, and any additional fees, such as shipping and handling); and (b) fulfilled, shipped, and otherwise serviced (including but not limited to the processing of returns, refunds, and cancellations (if any)) by TwoTap and/or its designee(s), including but not limited to third-party payment processors. Additional terms may apply to your purchases from Retailers, so you should read the applicable terms of sale before you make any such purchase.
(b) All payments for products purchased from Retailers via the Two Tap Services are processed by Two Tap or its designee(s). You agree to pay for all International Products that you purchase through the Two Tap Services, and we or our third-party service providers may charge your selected payment method for any such fees owed. You are required to keep your billing information current, complete, and accurate (g., a change in billing address, credit card number, or expiration date) and to notify Two Tap if your selected payment method is cancelled (e.g., for loss or theft). Authorization to charge your chosen payment method account will remain in effect until you cancel or modify your preferences within the Two Tap Services; provided, however, that such notice will not affect charges submitted before Two Tap could reasonably act.
(c) Through the Two Tap Services, you may be provided with an opportunity to purchase International Products in a currency selected by you, inclusive of international shipping costs, brokerage and customs clearance costs. Please note that the purchase total is exclusive of any surcharges that may be imposed by the issuing bank of any credit card you use for your purchase. Further, when purchasing International Products, you may be given an option to prepay or not prepay import taxes and customs duties that may be levied by the destination country, and any disbursement fees, advancement fees or similar fees that may be imposed by the shipper, broker, the customs authority of the destination country or other party (collectively, “Import Fees”). Two Tap will use commercially reasonable efforts to estimate the amount of Import Fees for you. However, Two Tap has no control over the Import Fees and cannot always predict with 100% accuracy what the final actual amounts may be. For greater certainty, you should contact your local customs office for further information on the import taxes and customs duties that may be applicable to the International Products you have purchased. Regardless, you will be responsible for, and shall pay, all Import Fees.
IF YOU CHOOSE TO NOT PREPAY THE IMPORT FEES, YOU ACKNOWLEDGE AND AGREE THAT (i) THE ACTUAL IMPORT FEES MAY BE MORE OR LESS THAN THE ESTIMATE WE PROVIDED YOU; (ii) YOU MUST BEAR THE FULL RESPONSIBILITY OF PAYING ALL ACTUAL IMPORT FEES; (iii) IF ANY ENTITY OTHER THAN YOU MUST PAY SOME OR ALL OF THE ACTUAL IMPORT FEES ON YOUR BEHALF TO EFFECT CUSTOMS CLEARANCE, YOU WILL REIMBURSE (UPON REQUEST) THAT ENTITY IN FULL FOR THE ACTUAL IMPORT FEES PAID ON YOUR BEHALF; AND (iv) YOUR FAILURE TO PAY IMPORT FEES IN A TIMELY MANNER MAY NOT ONLY CAUSE DELAYS IN DELIVERY, BUT ALSO MAY PUT YOU AT RISK OF POTENTIAL LIABILITY FOR ADDITIONAL TAXES AND FEES.
MOREOVER, IF YOU CHOOSE TO NOT PREPAY THE IMPORT FEES AND IF YOU REFUSE OR FAIL TO ACCEPT DELIVERY OF THE INTERNATIONAL PRODUCTS, REFUSE OR FAIL TO PAY IMPORT FEES, AND/OR ATTEMPT TO RETURN THE INTERNATIONAL PRODUCTS TO AVOID PAYING IMPORT FEES: (1) THE COSTS YOU PREPAID TWO TAP FOR SHIPPING AND/OR HANDLING WILL NOT BE REIMBURSED TO YOU; (2) YOU WILL BE RESPONSIBLE FOR ALL CHARGES RESULTING FROM YOUR REFUSAL OR FAILURE TO PAY IMPORT FEES (SUCH AS COSTS FOR SHIPPING AND HANDLING BACK TO TWO TAP’S UNITED STATES FACILITIES AND ANY OTHER FEES RESULTING, DIRECTLY OR INDIRECTLY, FROM YOUR FAILURE TO PAY THE IMPORT FEES); (3) SUBJECT TO APPLICABLE LAW, YOU UNDERSTAND THAT ALL SALES ARE FINAL AND WE ARE NOT REQUIRED TO REFUND YOU THE COST OF THE INTERNATIONAL PRODUCTS, BUT WE MAY DO SO IN CERTAIN CASES IN OUR SOLE DISCRETION; (4) YOU ARE STILL RESPONSIBLE FOR ALL ACTUAL IMPORT FEES; (5) YOU WILL NOT REQUEST THAT TWO TAP OR ANY OTHER ENTITY REIMBURSE YOU FOR ANY IMPORT FEES PAID; and (6) APPLICABLE LAW MAY PROVIDE YOU THE OPTION TO BE REIMBURSED BY A GOVERNMENTAL OR OTHER AUTHORITY FOR SOME OR ALL OF THE ACTUAL IMPORT FEES, BUT YOU WILL BE RESPONSIBLE FOR TAKING ANY AND ALL ACTION REQUIRED FOR SUCH REIMBURSEMENT.
(d) All orders are subject to acceptance by Two Tap. Two Tap is not obliged to accept and/or process your purchase and may, at our discretion, decline to accept and/or process your purchase. Notwithstanding the foregoing, you acknowledge that by checking out in the Two Tap Services, you are obligated to pay for the International Products you have purchased in the event that your purchase is accepted by Two Tap. Upon successful verification by Two Tap of the authenticity and sufficiency of the payment information you provide, Two Tap will purchase the merchandise from the Retailer for the sole purpose of reselling it to you. Two Tap will provide the Retailer with Two Tap’s own payment information to purchase the merchandise. You acknowledge that if Two Tap is unable to verify the authenticity and sufficiency of the payment information you provide, or if Two Tap is unable to verify the information automatically, Two Tap representatives may contact you and/or your tender type issuer and/or take other actions (including looking at publicly available information) to confirm your identity and/or your intent to place the order.
(e) After Two Tap purchases and takes title to the relevant International Products from the Retailer to fulfill your purchase, title of the International Products will transfer from Two Tap to you, in the United States, at the time Two Tap ships the merchandise to you from Two Tap's facilities in the United States provided full payment for the International Products has been received.
(f) While Two Tap uses commercially reasonable efforts to provide accurate pricing information regarding the International Products, Two Tap cannot insure against pricing errors due to Retailers. Two Tap may, at its sole discretion and prior to acceptance of your purchase, choose to not process or cancel any orders placed for an International Product that it reasonably believes was priced incorrectly by a Retailer or in the Two Tap Services as a result of an error. If this occurs, Two Tap will notify you by email. In addition, Two Tap may, at its sole discretion, correct any error in the stated retail price.
(g) By purchasing International Products via the Two Tap Services, you acknowledge that Two Tap uses third-party service providers to help us provide the Two Tap Services. Accordingly, you hereby authorize a licensed customs broker chosen by Two Tap to act as your agent and transact business with foreign revenue authorities to clear your International Products, account for duties and taxes on your behalf, return your International Products, and if applicable, prepare and submit refund claims on your behalf for any International Products that you return.
(h) Please follow this https://twotap.com/return-policy/ to review our International Products Returns Policy.
9. No Intent to Resell and Compliance with Applicable Export, Import and Sanctions Law(s). You acknowledge and agree that International Products available for purchase from Two Tap are intended for non-commercial use, and purchase of any merchandise for resale purposes is strictly prohibited. Further, you hereby represent, warrant, and covenant that any International Products you purchase will not be re-exported, sold, or transferred in violation of any applicable laws, including the U.S. Export Administration Regulations or applicable U.S. sanctions and embargoes administered by the U.S. Department of the Treasury. Any attempt to have commodities, technology and/or software exported from the United States not in accordance with the U.S. Export Administration Regulations and any other applicable law is strictly prohibited. YOU ARE THE IMPORTER OF RECORD OR CONSIGNEE, AS APPLICABLE, AND YOU MUST COMPLY WITH ALL LAWS AND REGULATIONS OF THE COUNTRY INTO WHICH THE PURCHASED ITEMS ARE BEING DELIVERED. It is your responsibility to know the laws in the country into which you are receiving the International Products. By purchasing International Products hereunder, you acknowledge that our delivery of such International Products does not violate any laws or regulations in the country into which the purchased merchandise will be delivered.
10. Use Restrictions. When using the Two Tap Services you agree not to: (a) use the Two Tap Services for any purpose that is unlawful or is otherwise prohibited by this Agreement; (b) use the Two Tap Services in any manner that in our sole discretion could damage, disable, overburden, or impair the Two Tap Services; (c) attempt to gain unauthorized access to the Two Tap Services, or any part of them, other accounts, computer systems or networks connected to the Two Tap Services, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Two Tap Services or any activities conducted on the Two Tap Services; (d) modify the Two Tap Services in any manner or form, or use modified versions of the Two Tap Services, including (without limitation) for the purpose of obtaining unauthorized access to the Two Tap Services; (e) use any robot, spider, scraper, or other automated means to access the Two Tap Services for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Two Tap Services; (f) impersonate another person or access another Customer’s Customer Account without that person’s permission or to violate any contractual or fiduciary relationships; (g) share Two Tap-issued passwords with any third party or encourage any other Customer to do so; (h) modify, adapt, translate or create derivative works based upon the Two Tap Services; (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Two Tap Services, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (j) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Two Tap Services to any third party; provide time sharing or similar services for any third party; or use the Two Tap Services for any purpose other than your own internal personal or business use; (k) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Two Tap Services, features that prevent or restrict use or copying of any content accessible through the Two Tap Services or Two Tap Services, or features that enforce limitations on use of the Two Tap Services or Two Tap Services; (l) access the Two Tap Services if you are a direct competitor of Two Tap, except with Two Tap’s prior written consent, or for any other competitive purposes; or (m) collect or harvest any personally identifiable information, including account names, from the Two Tap Services.
11. Communications. You acknowledge that you are solely responsible for the use of electronic mail and Short Message Service (SMS) in connection with the Two Tap Services. You represent and warrant that you have complied and will continue to comply with all applicable laws, statutes, ordinances, and regulations (including without limitation the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in your use of the Two Tap Services.
12. Violations; Termination. You agree that Two Tap, in its sole discretion and for any or no reason, may terminate any account (or any part thereof) you may have with Two Tap. In addition, Two Tap reserves the right to discontinue any aspect of the Two Tap Services at any time. You agree that any termination of your access to the Two Tap Services or any Customer Account you may have or portion thereof may be affected without prior notice, and you agree that Two Tap will not be liable to you or any third-party for such termination. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Two Tap Services may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies Two Tap may have at law or in equity.
13. Customer Provided Information.
(a) Definition of Customer Provided Information; Ownership. Two Tap may now or in the future permit Customers to provide information through the Two Tap Services (“Customer Provided Information”). Customers retain all right, title, and interest in and to all Customer Provided Information. Customer Provided Information does not include information about the Customer’s use of the Two Tap Services or transaction data related to Customer’s use of the Two Tap Services which Two Tap receives from the Retailer or the Platform.
(b) License Grant to Two Tap. By submitting Customer Provided Information to Two Tap, you hereby grant to Two Tap a worldwide, non-exclusive, sublicensable, transferable, perpetual, irrevocable, fully paid-up, and royalty-free license to use, display, reproduce, modify, distribute, list information regarding, edit, translate and analyze your Customer Provided Information within the Two Tap Services in any formats and through any applicable channels for the purposes of: (a) providing the applicable features and functionality of the Two Tap Services, (b) improving the Two Tap Services, and (c) enforcing its rights under this Agreement. This license does not grant Two Tap the right to use your Customer Provided Information for any other commercial purposes. Notwithstanding the foregoing, you agree that Two Tap may collect, analyze, and use Customer Provided Information, as well as data about your and other Customers’ access and use of the Two Tap Services, for purposes of operating, analyzing, improving, or marketing the Two Tap Services and any related services. If Two Tap shares or publicly discloses information that is derived from Customer Provided Information, such data will be aggregated or anonymized to reasonably avoid identification of a specific individual or party. You further agree that Two Tap will have the right, both during and after the Term, to use, store, transmit, distribute, modify, copy, display, sublicense, and create derivative works of the anonymized, aggregated data (“Derivative Data”).
(c) License Termination. The foregoing licenses granted by you terminate as to specific Customer Provided Information once you remove or delete such Customer Provided Information from the Two Tap Services; except for Two Tap’s right to archive such Customer Provided Information in accordance with its standard policies. Notwithstanding anything to the contrary in this Agreement, nothing herein will require Two Tap to remove, delete, or discontinue use of any Derivative Data.
(d) Customer Provided Information Representations. You agree not to submit Customer Provided Information that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) contains any information or content that is illegal; (vi) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) contains any information or content that you know is not correct and current. You agree that any Customer Provided Information that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights, rights of publicity and privacy. Two Tap reserves the right, but is not obligated, to reject and/or remove any Customer Provided Information that Two Tap believes, in its sole discretion, violates these provisions.
14 .Ownership; Proprietary Rights. The Two Tap Services and Derivative Data are owned by Two Tap and its third-party service providers. The visual interfaces, graphics, design, compilation, information, computer code, products, software, services, and all other elements of the Two Tap Services provided by Two Tap (“Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. Except for any technology licensed by Two Tap, which is owned by and provided by our third-party licensors, all Materials contained in the Two Tap Services, including without limitation the intellectual property rights therein and thereto, are the property of Two Tap or its subsidiaries or affiliated companies. All trademarks, service marks, and trade names are proprietary to Two Tap or its affiliates and/or third-party licensors. Except as expressly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Materials or the intellectual property rights therein or thereto, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials.
15. Third-Party Sites, Third-Party Information. The Two Tap Services call the servers of other web sites or services at the direction of and as a convenience to Customers (“Third-Party Sites”). Two Tap makes no express or implied warranties with regard to the information, or other material, products, or services that are contained on or accessible through Third-Party Sites. Access and use of Third-Party Sites, including the information, material, products, and services on such sites or available through such sites, is solely at your own risk.
We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You understand that internet technologies have the inherent potential for disclosure. You acknowledge that you are under no obligation to provide personal or sensitive information in order to use the Two Tap Services, and that you provide any personal or sensitive information at your own risk. In the event of disclosure of or access to Customer Provided Information by an unauthorized party caused by Two Tap’s act or omission, Two Tap will notify affected Customers to the extent required by state and federal law.
17. Disclaimers; No Warranties.
THE TWO TAP SERVICES AND ANY THIRD-PARTY INFORMATION, SOFTWARE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE TWO TAP SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TWO TAP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS.
TWO TAP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN TWO TAP SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE (INCLUDING WITHOUT LIMITATION ANY FORECASTS OR PREDICTIONS RELATED TO THE PROJECT MANAGEMENT FUNCTIONALITY AND BASED UPON CUSTOMER PROVIDED INFORMATION THEREIN), THAT THE TWO TAP SERVICES WILL MEET YOUR REQUIREMENTS, THAT DEFECTS WILL BE CORRECTED, OR THAT TWO TAP SERVICES OR THE SERVER THAT MAKES IT AVAILABLE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
TWO TAP, ITS SUPPLIERS, LICENSORS, AND PARTNERS DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF TWO TAP SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. YOU (AND NOT TWO TAP NOR ITS SUPPLIERS, LICENSOR OR PARTNERS) ASSUME THE ENTIRE COST OF ANY NECESSARY SERVICING, REPAIR, OR CORRECTION. YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD OR OTHERWISE OBTAIN THIRD-PARTY OR CUSTOMER PROVIDED INFORMATION, MATERIAL, OR DATA THROUGH THE USE OF TWO TAP SERVICES AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH THIRD-PARTY OR SUBSCRIBER PROVIDED INFORMATION, MATERIAL, OR DATA. TWO TAP WILL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE OR MAINTAIN ANY THIRD-PARTY OR CUSTOMER PROVIDED INFORMATION.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
18. Limitation of Liability.
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL TWO TAP OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE INFORMATION OR MATERIALS ON TWO TAP SERVICES, OR ANY OTHER INTERACTIONS WITH TWO TAP, EVEN IF TWO TAP OR A TWO TAP AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TWO TAP’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL TWO TAP’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSOR’S, OR SUPPLIERS’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF TWO TAP SERVICES, INCLUDING WITHOUT LIMITATION YOUR INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING TWO TAP SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR ONE HUNDRED DOLLARS, WHICHEVER IS GREATER.
YOU ACKNOWLEDGE AND AGREE THAT TWO TAP HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TWO TAP.
20. Indemnification. You agree to defend, indemnify and hold harmless Two Tap and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (a) your use of and access to the Two Tap Services, including any data or work transmitted or received by you; (b) your violation of any term of this Agreement, including without limitation, your breach of any of the representations and warranties above; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claim or damages that arise as a result of any of your Customer Provided Information or any other data that are submitted via your account; or (f) any other party’s access and use of the Service with your unique username, password or other appropriate security code. Two Tap will have the right to control the defense, settlement, adjustment or compromise of any such claims, actions or proceedings by using counsel selected by Two Tap. Two Tap will use reasonable efforts to notify you of any such claims, actions, or proceedings upon becoming aware of the same.
(a) Notice. Two Tap may provide you with notices, including those regarding changes to Two Tap’s terms and conditions, by email, regular mail or postings on the Two Tap Services. Notice will be deemed given twenty-four hours after email is sent, unless Two Tap is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to a postal address, if provided by you through the Two Tap Services. In such case, notice will be deemed given three days after the date of mailing. Notice posted on the Two Tap Services is deemed given 5 days following the initial posting.
(b) Waiver. The failure of Two Tap to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Two Tap.
(c) Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law.
(d) Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Two Tap. For any dispute with Two Tap, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Two Tap has not been able to resolve a dispute it has with you after 60 days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Two Tap agree otherwise. If you are using the Two Tap Services for commercial purposes, 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. If you are an individual using the Two Tap Services for non-commercial purposes: (i) JAMS may require you to pay a fee for the initiation of your case, unless you apply for and successfully obtain a fee waiver from JAMS; (ii) the award rendered by the arbitrator may include your costs of arbitration, your reasonable attorney’s fees, and your reasonable costs for expert and other witnesses; and (iii) you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. 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 Two Tap 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.
(e) Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Two Tap Services 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 person’s claims. You agree that, by entering into this Agreement, you and Two Tap 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.
(f) Severability. If any provision of this Agreement or any Guideline is held to be unlawful, void, or for any reason unenforceable, then that provision will be limited or eliminated from this Agreement to the minimum extent necessary and will not affect the validity and enforceability of any remaining provisions.
(g) Assignment. This Agreement and related Guidelines, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Two Tap without restriction.
(h) Survival. Upon termination of this Agreement, any provision which, by its nature or express terms should survive, shall survive such termination or expiration, including, but not limited to, any limitations on liability, representations and warranties, and indemnification obligations.
(i) Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.
(j) Entire Agreement. This is the entire agreement between you and Two Tap relating to the subject matter herein and will not be modified except in a writing, signed by both parties, or by a change to this Agreement or Guidelines made by Two Tap as set forth in this Agreement.
(k) Disclosures. The services hereunder are offered by Two Tap, Inc., located at: Two Tap @ Bespoke @ Westfield / 845 Market Street Suite 450 / San Francisco, CA 94103 and email: firstname.lastname@example.org . If you are a California resident, you may have this same information emailed to you by sending a letter to the foregoing address with your email address and a request for this information.