This Terms of Service (the “Agreement“) sets forth the terms and conditions that apply to your access and use of the internet website owned and operated by TAGGA Media Inc. (“Tagga“, “we“, “our” or “us“) and located at www.TAGGA.com (“TAGGA.com“) and the services available thereon, including without limitation the services that enable you to build, deploy, and report on mobile marketing campaigns (the “Services“).
BY ACCEPTING THIS AGREEMENT, EITHER BY COMPLETING THE ONLINE APPLICATION PROCESS BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION THAT REFERENCES THIS AGREEMENT (THE “SUBSCRIPTION“), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
ABILITY TO ENTER INTO THIS AGREEMENT
In order to enter into this Agreement, you must have reached the legal age of majority in your jurisdiction of residence or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations and warranties set forth in this Agreement, and to abide by and comply with this Agreement. It is your responsibility to ensure that you are legally eligible to enter into this Agreement under any laws applicable to you in your jurisdiction of residence or otherwise. If you accept this Agreement, you represent that you have the capacity to be bound by it.
YOUR PROFILE INFORMATION AND ACCOUNT
You agree and understand that you are responsible for maintaining the confidentiality of your password which, together with your email address, allows you to access the Services. That email address and password, together with any or other user information you provide, form your “Profile Information” and allow you to access your account (“Account“). You agree to provide true, accurate, current and complete information about yourself, and you may not misrepresent your Profile Information. In order for the Services to function effectively, you must also keep your Profile Information up to date and accurate. If you do not do this, the accuracy and effectiveness of the Services to you may be affected.
Your right to access and use the Services is personal to you and is not transferable by you to any other person or entity. You agree not to disclose your password to any third party. You are solely responsible for all activities that occur under your Account or under your Profile Information. If you become aware of any unauthorized use of your Account or Profile Information, you are responsible for notifying TAGGA immediately at the email address security@TAGGA.com.
By providing us with your e-mail address, you agree to receive all required notices electronically, to that e-mail address. It is your responsibility to update or change that address, as appropriate.
You shall pay all fees specified in any Subscription. At our discretion, we may offer free or discounted pricing for use of the Services (a “Trial Program“). Once the terms of any Trial Program have expired, you agree that our normal billing rates shall apply. You agree to comply with any additional terms, restrictions or limitations (including limitations on the total amount of usage) we impose in connection with any Trial Program. You may not sign-up for multiple Accounts in order to receive additional benefits under any Trial Programs.
SUBMISSION OF CONTENT
TAGGA.com and the Services available thereon enable you to provide or upload content, including but not limited to text, images, video, data, and other information or content (collectively, “Content“), to TAGGA for the purpose of providing the Services. You acknowledge and agree that you are solely responsible for all Content you submit, provide or upload and the consequences for submitting, providing or uploading it.
By uploading, displaying or otherwise providing any Content on or through TAGGA.com and/or the Services, you grant to TAGGA a perpetual, worldwide, non-exclusive, royalty-free, sub-licensable and transferable license to use, reproduce, process, modify, display, and perform all or any portion of such Content in connection with TAGGA.com, the Services and our business, including without limitation promoting and redistributing all or any portion of TAGGA.com (and derivative works thereof) in any media formats and through any media channels, without any limitations, including but not limited to any requirement to make payment to you or any third party or the need to seek any third party permission. This license includes the right to host, index, cache or otherwise manipulate the Content in order to provide the Services.
You represent and warrant that you own your Content or have the necessary licenses, rights, consents and permissions to grant the license set forth herein and that its provision to TAGGA or TAGGA’s use thereof will not violate the copyrights, privacy rights, publicity rights, trademark rights, contract rights or any other intellectual property rights or other rights of any person or entity.
You agree that TAGGA is not responsible for any violations of any third party intellectual property rights in any Content that you submit to TAGGA. You agree to pay all royalties, fees and any other monies owing to any person by reason of Content uploaded, displayed or otherwise provided by you to TAGGA.com.
INTELLECTUAL PROPERTY RIGHTS
All right, title, interest and ownership and intellectual property rights in and to TAGGA.com, including but not limited to its “look and feel” (e.g., text, graphics, images, logos, buttons, icons and the placement and layout thereof), images, video, audio, data, content, software (including html-based computer programs) and other media, material or information, other than your Content, are and will remain the property of TAGGA or its software or content suppliers. The TAGGA.com website is protected under Canada, United States and international copyright, trademark and other laws and treaties.
Subject to the terms and conditions of this Agreement, TAGGA grants to you, during the term of this Agreement, a non-transferable, non-sublicensable, non-exclusive, revocable, limited purpose right to access and use the Services that are subject to a valid Subscription.
If you become aware of any unauthorized use of your Profile Information, you agree to notify TAGGA immediately at the email address – security@TAGGA.com. You may download or print a copy of information provided on or by TAGGA.com for your personal and internal use only. Any distribution, reprint or electronic reproduction of any content from TAGGA.com in whole or in part for any other purpose is expressly prohibited without our prior written consent.
You acknowledge that any ideas, suggestions, concepts, processes or techniques which you provide to TAGGA related to the Services, TAGGA.com or TAGGA or its business (“Feedback”) shall become TAGGA’s property without any compensation or other consideration payable to you by TAGGA, and you do so of your own free will and volition. TAGGA may or may not, in its sole discretion, use or incorporate the Feedback in whatever form or derivative TAGGA may decide into TAGGA.com, its software, services, documentation, business or other products, or any future versions or derivatives of the foregoing. You hereby assign all rights on a worldwide basis in perpetuity to TAGGA in any Feedback and, as applicable, waive any moral rights.
TAGGA owns any test results, data information and other output generated by your use of TAGGA.com and/or the Services during the term of this Agreement. You may not disclose to any third party any test results or performance information regarding TAGGA.com or the Services, whether generated by you, TAGGA or a third party.
You agree to safeguard, keep secret and not to disclose to any third party, any Confidential Information acquired, learned or provided from TAGGA during the term of this Agreement or following the expiration or termination of this Agreement. “Confidential Information” means any information marked confidential or that ought reasonably to be considered confidential under the circumstances and includes, without limitation, any business plans, customer lists, operation procedures, trade secrets, design formulas and programming code, know-how and processes, computer programs and inventions, discoveries, and improvements of any kinds.
ACCEPTABLE USE AND CONDUCT:
You agree that that you will not publish or make available any Content that, or use TAGGA.com in a manner that:
infringes, violates or misappropriates any third party’s intellectual property or proprietary rights;
contains software viruses, Trojan horses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
is misleading, deceptive or fraudulent or otherwise illegal or promotes illegal activities, including engaging in phishing or otherwise obtaining financial or other personal information in a misleading manner or for fraudulent or misleading purposes;
is libelous or defamatory, or that is otherwise threatening, abusive, violent, harassing, malicious or harmful to any person or entity, or is invasive of another’s privacy;
is harmful to minors in any way;
is hateful or discriminatory based on race, color, sex, religion, nationality, ethnic or national origin, marital status, disability, sexual orientation or age or is otherwise objectionable, as reasonably determined by TAGGA;
impersonates a TAGGA employee, or any other person, or falsely states or otherwise misrepresents your affiliation with any person or entity, or to obtain access to TAGGA.com or a portion thereof without proper authorization;
interferes or attempts to interfere with the proper working of TAGGA.com or prevents others from using TAGGA.com, or in a manner that disrupts the normal flow of dialogue with an excessive number of messages (flooding attack) to TAGGA.com, or that otherwise negatively affects other persons’ ability to use TAGGA.com;
uses any manual or automated means, including agents, robots, scripts, or spiders, to monitor or copy TAGGA.com or the content contained therein;
facilitates the unlawful distribution of copyrighted Content;
licenses, sublicenses, rents or leases the Services to third parties, uses the Services for third party training, commercial time-sharing or service bureau use, or otherwise makes the Services available to third parties or otherwise commercially exploits the Services;
includes personal or identifying information about another person in a manner that employs misleading email or IP addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of Content transmitted through TAGGA.com to users;
constitutes or contains any form of advertising or solicitation to users who have requested not to be contacted about other services, products or commercial interests;
stalks or otherwise harasses anyone on TAGGA.com or with information obtained from TAGGA.com;
collects, uses or discloses data, including personal information, about users without their informed consent or for unlawful purposes or in violation of applicable law or regulations;
requests, solicits or otherwise obtains access to usernames, passwords or other authentication credentials from any user of TAGGA.com for the purposes of automating logins to TAGGA.com;
attempts to gain unauthorized access to the computer systems of TAGGA or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of TAGGA.com;
posts adult or pornographic Content;
decompiles or reverse engineers or attempt to access the source code of the software underlying TAGGA.com, the Services or any other TAGGA technology;
copies, archives, stores, reproduces, rearranges, modifies, downloads, uploads, creates derivate works from, displays, performs, publishes, distributes, redistributes or disseminates all or any part of TAGGA.com;
accesses TAGGA.com for the purposes of building a product using similar ideas, features, functions, interface or graphics as those found in TAGGA.com;
uses or attempts to use any engine, software, tool, agent, or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to navigate or search TAGGA.com, other than the search engines and search agents available through the Services and other than generally available third-party web browsers (such as Microsoft Internet Explorer); or
accesses TAGGA.com to upload any Content or computer code for the purposes of: (i) causing a breach of security to TAGGA.com; (ii) interfering with the proper working, functionality or performance of TAGGA.com; or (iii) preventing others from accessing or using TAGGA.com.
Disclaimer of Warranties
YOUR USE OF TAGGA.COM AND ALL CONTENT FORMING PART OF OR RELATED TO TAGGA.COM, INCLUDING ANY CONTENT YOU UPLOAD OR SUBMIT AND THIRD PARTY SOFTWARE AND CONTENT, ARE AT YOUR SOLE RESPONSIBILITY AND RISK. TAGGA.COM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TAGGA EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND WITH RESPECT TO TAGGA.COM, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, PERFORMANCE, SYSTEM INTEGRATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT.
TAGGA DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF TAGGA.COM WILL BE UNINTERRUPTED OR ERROR-FREE, AND YOU AGREE THAT FROM TIME TO TIME TAGGA MAY REMOVE TAGGA.COM FOR INDEFINITE PERIODS OF TIME WITHOUT NOTICE TO YOU. YOUR ACCESS AND USE OF TAGGA.COM MAY BE INTERRUPTED FROM TIME TO TIME FOR ANY OF SEVERAL REASONS, INCLUDING, WITHOUT LIMITATION, THE MALFUNCTION OF EQUIPMENT, PERIODIC UPDATING, MAINTENANCE OR REPAIR OF TAGGA.COM OR OTHER ACTIONS THAT TAGGA, IN ITS SOLE DISCRETION, MAY ELECT TO TAKE.
TAGGA IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD-PARTY PROVIDER OF ANY CONTENT, SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO, INTERNET SERVICE PROVIDERS, TELECOMMUNICATIONS PROVIDERS, CONTENT PROVIDED BY OTHER USERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY TAGGA.
You are solely responsible for ensuring that Your CONTENT is compatible with TAGGA.COM. TAGGA disclaims any liability or responsibility for any unauthorized use of Your CONTENT by third parties or OTHER Users of TAGGA.COM and is not responsible for protecting Your CONTENT.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF TAGGA.COM IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TAGGA OR THROUGH OR FROM TAGGA.COM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
TAGGA.COM is offered and controlled by TAGGA from its facilities in Canada. TAGGA makes no representations that TAGGA.COM is appropriate or available for use in other locations. Those who access or use TAGGA.COM from other jurisdictions do so at their own volition and are responsible for compliance with local law.
THIRD PARTY SITES AND CONTENT
TAGGA.com may permit you to link to other websites or resources on the Internet, and other websites or resources may contain links to TAGGA.com. These other websites are not under TAGGA’s control, and you acknowledge that TAGGA is not responsible or liable for any third party content, including but not limited to the accuracy, integrity, quality, usefulness, legality, appropriateness, safety or intellectual property rights of or relating to such third party content or any other aspect of such websites or resources. The inclusion of any such link does not imply endorsement by TAGGA or any association with its operators. You further acknowledge and agree that TAGGA shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such third party content, goods or services available on or through any such website or resource. Access and use of third party sites, including the information, material, products and services on third party sites or available through third party sites, is solely at your own risk.
LIMITATION OF LIABILITY
YOU AGREE THAT, UNDER NO LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, BREACH OF WARRANTY OR CONDITION, BREACH OF CONTRACT OR TORT, SHALL TAGGA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY ACTING ON YOUR BEHALF FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES OR THE COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES (EVEN IF TAGGA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF OR YOUR INABILITY TO USE TAGGA.COM, OR FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT. TAGGA’S LIABILITY UNDER THIS AGREEMENT IS LIMITED TO THE THE TOTAL AMOUNTS YOU PAID TO TAGGA IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE OCCURRENCE OF LOSS OR DAMAGE. TO THE EXTENT ANY PROVINCE, STATE OR JURISDICTION DOES NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, TAGGA’S LIABILITY IN SUCH PROVINCE, STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.
THE FOREGOING LIMITATIONS SHALL ALSO APPLY WITH RESPECT TO ANY DAMAGES INCURRED BY REASON OF ANY CONTENT OR SERVICES PROVIDED ON ANY THIRD PARTY SITES OR OTHERWISE PROVIDED BY ANY THIRD PARTIES OTHER THAN TAGGA AND RECEIVED BY YOU THROUGH OR ADVERTISED ON TAGGA.COM OR RECEIVED BY YOU ON ANY THIRD PARTY SITES. YOU ALSO AGREE THAT TAGGA WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS THE RESULT OF ANY INTERACTIONS OR DEALINGS WITH ADVERTISERS OR AS THE RESULT OF THE PRESENCE OF SUCH ADVERTISERS ON TAGGA.COM.
TAGGA takes NO responsibility for any content forming part of or related to TAGGA.COM and TAGGA has no obligation to monitor TAGGA.COM.
You agree to indemnify, defend, and hold harmless TAGGA, and its subsidiaries, affiliates, co-branders, all third-party advertisers, technology providers, service providers or other partners, and each of their respective officers, directors, agents, shareholders, employees and representatives, from and against any third party claim, demand, loss, damage, cost, or liability (including, reasonable attorneys’ fees) arising out of or relating to this Agreement or TAGGA.com, including but not limited to in relation to: (a) your use, non-use or misuse of, or connection to TAGGA.com, the Services and any Content, including without limitation your Content and any third party Content, forming part of TAGGA.com; (b) your breach or alleged breach of this Agreement; and (c) your violation of any rights, including intellectual property rights, of a third party. TAGGA reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TAGGA and you agree to cooperate with TAGGA’s defense of these claims. You agree not to settle any matter without the prior written consent of TAGGA. TAGGA will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
TERMINATION BY TAGGA
Subject to the terms and conditions of any valid Subscription, TAGGA reserves the right at any time, and without cost, charge or liability, to terminate this Agreement at its sole discretion for any reason, including, but not limited to, a failure to comply with the terms of this Agreement. TAGGA also reserves the right to deny access to anyone, including, but not limited to those users who use proxy servers and/or IP addresses residing in certain geographical areas outside of Canada and the United States. TAGGA reserves the right to terminate any portion of TAGGA.com at any time, for any reason, with or without notice.
If there is any dispute between you and TAGGA about or involving this Agreement, TAGGA.com or the Services, you hereby agree that the dispute shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada, without regard to its conflict of law provisions. You hereby agree to submit to the exclusive jurisdiction of the courts in Vancouver, British Columbia with respect to any claim, proceeding or action relating to or otherwise arising out of this Agreement, TAGGA.com or the Services, howsoever arising, provided always that TAGGA may seek and obtain injunctive relief in any jurisdiction.
If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.
You agree that this Agreement is specifically enforceable by injunctive relief and other equitable remedies without proof of monetary damages.
You agree that if TAGGA does not exercise or enforce any legal right or remedy which is contained in the Agreement (or which TAGGA has the benefit of under any applicable law), this will not be taken to be a formal waiver of TAGGA’s rights and that those rights or remedies will still be available to TAGGA.
The sections of “Submission of Content”, “Intellectual Property Rights”, “Confidential Information”, “Disclaimer of Warranties”, “Third Party Sites and Content”, “Limitation of Liability”, “Indemnity” and “Miscellaneous” will survive any actual or purported termination or expiry of this Agreement and continue in full force and effect.
This Agreement, together with any Subscription, represents the entire understanding and agreement between you and TAGGA regarding the subject matter hereof, and supersedes and replaces all other previous agreements, including, without limitation all previously posted agreements.
You represent and warrant that you are authorized and permitted under all laws applicable to you: to the use TAGGA.com, to enter into this Agreement and comply with its terms, to meet your obligations hereunder and comply with all laws, regulations or policies that apply to TAGGA.com, including, without limitation, any and all import and export control regulations and laws, and a breach of any representation or warranty is a terminable breach of this Agreement.
You may contact TAGGA by email at firstname.lastname@example.org or by mail at TAGGA Media Inc., Suite 210 – 807 Powell Street, Vancouver, British Columbia, Canada, V6A 1H7.