Terms of Use

1. General. These Tapa Terms of Service (the “Terms of Service”) and the Order Form (collectively, the “Agreement”) together constitute the entire agreement between Tapa, LLC. (doing business as “Tapa”) (“Tapa”) and the Person identified as the “Customer” in the Order Form (“Customer”, “you” or derivations thereof) with respect to the Services and the subject matter of this Agreement.
For the avoidance of doubt, if the Terms of Service are attached to or incorporated by reference into an additional Order Form(s), each Order Form incorporating these Terms of Service will constitute a separate agreement.
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2. Definitions. In addition to those terms defined elsewhere in the Agreement, the following terms will have the defined meanings given below:
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a. “Affiliate” means, with respect to a party, an entity that, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “ownership” means the beneficial ownership of more than fifty percent (50%) of an entity's voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity. For the avoidance of doubt, an entity will only qualify as an Affiliate of a party as long as such ownership or control exists.

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a. “Application Service” means the Tapa-provided software-as-a-service offering(s) identified in the Order Form made available for access and use via the internet, including any Updates thereto.

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a. “Authorized User” means an individual that Customer authorizes to access and use the Application Services, subject to and in compliance with any limitations and conditions of the Scope of Use.
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a. “Customer Data” means any and all Data that is uploaded, submitted, transmitted or otherwise provided by or at the direction of Customer or an Authorized User to the Application Service for processing under this Agreement.

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a. “Customer Materials” means any and all trademarks, logos, audio, video and/or audiovisual content, software, and Data provided to Tapa by or on behalf of Customer for use in branding, creating, displaying on, and/or otherwise incorporating into or with, the Application Service.

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a. “Data” means text, images, displays, photos, reports, graphs, content, information and other data.

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a. “Documentation” means any user guides, training materials, and other technical documentation published by Tapa describing the features, functionality, use and operation of the Application Service that Tapa makes generally available to its users of the Application Service.

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a. “Intellectual Property Rights” means any and all patent rights, copyrights, trademark rights, trade secret rights, sui generis database rights, and other proprietary or intellectual property rights, whether now existing or hereafter arising, under the laws of any jurisdiction.

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a. “Month-to-Month Subscription” means the type of subscription for an Application Service or any other subscription-based Services if the initial subscription/service period indicated in the Order Form for such Services is for a “month-to-month” period or a period of thirty-one days or less.

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a. “Other Services” means any services (other than the Application Service) identified in the Order Form or the Terms of Service to be provided by Tapa under this Agreement, including Standard Support or, implementation or other professional services with respect to the Application Service.

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a. “Order Form” means a written or electronic order agreed to in writing (whether manually or electronically) by Customer and Tapa (including any and all schedules and SOWs attached thereto or otherwise incorporated by reference therein) that (i) incorporates, or otherwise references it is subject to or governed by, these Terms of Service, (ii) identifies the Services provided or to be provided by Tapa to Customer, and (ii) sets forth any additional terms and conditions relating thereto.

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a. “Permitted Use” means, subject to the other terms, conditions and restrictions set forth in this Agreement, to use for Customer's and its Affiliates; internal business purposes in accordance with the
Documentation and Customer's Scope of Use.

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a. “Person” means any individual, partnership, corporation, limited liability company, trust, joint stock company, government (including any department or agency thereof) or any other form of association or entity.

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a. "Scope of Use” means, with respect to the Services, any specific usage rights, terms, conditions, and limitations with respect to the Services as set forth in an Order, which may include (i) the number and type of Authorized Users, (ii) the amount and type of transactions, data storage capacity, or volume-based usage parameters, and (iii) other terms, conditions, and limitations based on the type of customer, services, or subscription package.

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a. "Service Period" means, unless otherwise expressly provided in the Order Form, (i) with respect to an Application Service or any other subscription-based Service, the initial period indicated in the Order
Form for such Service (with such period commencing on the first day of the next calendar month immediately following the effective date of the Order Form), and thereafter automatically renewing (A) in the case of a Month-to-Month Subscription, for consecutive month-to-month renewal periods unless a party notifies the other party of its decision not to renew in writing (with such expiration to be effective upon the last day of the next calendar month following the calendar month in which such
notice was delivered) and (B) in all other cases, for consecutive renewal periods each equal to one year unless a party notifies the other party in writing at least thirty (30) days prior to the end of the then-
current period of its decision not to renew (each renewal period, a “Renewal Service Period”), or (ii) with respect to Standard Support, the period corresponding to the Service Period for the associated
Application Service, or (iii) with respect to any Other Service, the period commencing on the effective date of the Order Form or the commencement of performance of such Other Service (whichever is
first to occur) and ending upon Tapa's completion of such Service. For the avoidance of doubt, each Service Period is subject to earlier termination under Section 12 of the Terms of Service.

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a. “Services” means the Application Service and/or the Other Services, as applicable.

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a. “Standard Support” means Tapa's provision of (i) its standard technical support via telephone, email and/or any other communications channels offered by Tapa (e.g., live chat features) (depending on the particular support package included in the Application Service package subscribed to by Customer) during its standard support hours; (ii) access to Tapa's online library of technical support information, FAQs, and/or other related Documentation that Tapa makes generally available to its supported users of the Application Service; (iii) reasonable efforts to resolve errors reported by Customer; (iv) any fixes, workarounds or other solutions developed by Tapa to address any error reported by Customer, including, to the extent applicable, any specific Updates developed by Tapa to address such error; and (v) all Updates. Customer agrees that any Updates may be implemented in
order to ensure that Customer's version of the Application Service does not become a legacy unsupported version of the Application Service. An “error” means a verifiable and reproducible failure of the Application Service to conform with the specifications set forth in the then-current Documentation.

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a. “Statement of Work” or “SOW” means a written statement of work agreed to (whether manually or electronically) by Customer and Tapa that (i) is attached to or otherwise incorporated by reference into the Order Form, (ii) identifies professional services to be provided by Tapa to Customer and (iii) sets forth any additional terms and conditions relating thereto.

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a. “Term” has the defined meaning set forth in Section 12(a) of the Terms of Service.

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a. “Update” means any modification, improvement or other change to the Application Service (including bug fixes and error corrections) that Tapa makes generally available without additional charge to its customers of the Application Service, excluding, however, any new version or release that Tapa determines in its sole judgement adds significant new or expanded functionality for which Tapa charges an additional fee.

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3. Application Service and Documentation.

a. Right to Use. Subject to the terms and conditions of this Agreement, Tapa grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable (except to its Affiliates) right, during the Service Period for the Application Service, to access and use the Application Service and Documentation for the Permitted Use. Customer may make a reasonable number of copies of the Documentation, and distribute copies to its employees, contractors, representatives, and Authorized Users, for the Permitted Use. Any permitted copy of the Documentation (x) will remain the exclusive property of Tapa, (y) will be subject to the terms and conditions of this Agreement, and (z) must
include all copyright or other Intellectual Property Rights notices contained in the original.

a. Conditions and Restrictions. Anything to the contrary notwithstanding, the rights granted in Section 3(a) above do notauthorize Customer to, and Customer will not (directly or indirectly): (i) reproduce (except for copies of the Documentation expressly authorized under Section 3(a) above), modify, adapt, alter, translate, or create derivative works of the Application Service or the Documentation; (ii) rent, lease, loan, sell, distribute, disseminate, disclose, publish, display, transfer or otherwise make available (including on a time share, application service or outsourced basis) the Application Service to any Person (except to Authorized Users as expressly authorized under this Section 3); (iii) reverse engineer, decompile, disassemble, decode or otherwise attempt to discover the source code, architecture, structure, or underlying technology of the Application Service; (iv) use the
Application Service or the Documentation for purposes of (A) engaging in any activities in violation of applicable laws, rules or regulations or (B) competitive or benchmarking analysis or for development of a competing product, service or other offering; (v) gain unauthorized access to, interfere with, damage or disrupt any portions of the Application Service (including any servers, databases or accounts), or
attempt to do any of the foregoing; (vi) introduce into the Application Service any viruses, trojan horses, worms, logic bombs or other material which is malicious or technologically harmful, or (vii) use the Application Service in any manner that could disable, overburden, damage, or impair the Application Service or interfere with the authorized use of the Application Service by others. Customer
acknowledges and agrees that additional Service-specific terms, conditions, and restrictions applicable to a specific Service may be set forth in this Agreement (including an Order Form) and will apply to
Customer's access to and use of such Services.

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a. Affiliates. Tapa agrees that Customer will be entitled to permit any of its Affiliates to use the Services (including the right of access and use the Application Service) on the same basis as Customer is permitted under the Agreement, subject to the Affiliate's compliance with the terms and conditions set forth in the Agreement applicable to Customer (including all duties or obligations imposed on Customer under this Agreement). Customer will be responsible for any and all acts or omissions of its
Affiliates, and for any failure of any of its Affiliates to comply with the terms and conditions of this Agreement (including any duties or obligations imposed on Customer under this Agreement), in each case, to the same extent as if such act, omission, failure, or non-compliance was committed by Customer itself.

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a. Authorized Users. The rights granted in Section 3(a) above are limited to access and use of the Application Service by Authorized Users for the Permitted Use. Customer acknowledges and agrees that, depending on the Customer's Scope of Use, (x) Authorized Users may have different access and usage rights to the Application Service and (y) Customer's use of the Applicable Service may be subject to usage limitations. Customer is responsible for all activities that occur as a result of the use of log-in credentials issued to or adopted by Authorized Users. Customer will ensure that its Authorized Users
maintain the security and confidentiality of such log-in credentials and notify Tapa promptly of any unauthorized use of such log-in credentials or other breach of security known to Customer. Customer will ensure that its Authorized Users comply with the terms and conditions of this Agreement with respect to access and use of the Application Service (including via any mobile application made available for download by Authorized Users) and Documentation and agrees that Customer will
be responsible for any non-compliance. Tapa will have the right (but not the obligation) to monitor use of the Application Service to confirm Customer's compliance with the terms of this Agreement.

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a. Rights Reserved. All rights with respect to the Application Service and Documentation not expressly granted to Customer in this Agreement are reserved by Tapa and its licensors. For the avoidance of doubt, a violation or breach of any of the provisions of this Section 3 will constitute a material breach of this Agreement.

4. Ownership of Application Service and Documentation. Customer acknowledges that the Application Service and Documentation are not sold to Customer. Customer is not being provided with any source or object code of any software constituting a part of the Application Service (or rights to receive or copy any of the foregoing) under this Agreement. Except for the limited rights expressly granted to Customer in Section 3 above, nothing in this Agreement will be construed, either by implication, estoppel, or otherwise, as a grant to Customer of any right, title, or interest in the Application Service or Documentation (including any Intellectual Property Rights with respect to any of
the foregoing). Tapa and/or its licensors will retain exclusive ownership and title (including all Intellectual Property Rights) in and to the Application Service and Documentation. Anything to the contrary notwithstanding, to the extent that Customer (including any Authorized User) provides to Tapa any suggestions, recommendations, or other feedback relating to any modifications, corrections,
improvements, updates or enhancements to the Application Service and/or other Tapa offerings (whether current or proposed), Customer hereby grants to Tapa a non-exclusive, irrevocable, worldwide, perpetual, fully transferable and sublicensable (through multiple tiers), royalty-free right and license to use and otherwise exploit the same without restriction.

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5. U.S. Government Restricted Rights. If Customer is a U.S. government entity or a contractor to any U.S. government entity, or the Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS), Customer acknowledges that the Application Service constitute “commercial computer software,” and the
Documentation constitutes “commercial computer software documentation,” as such terms are used in FAR Section 12.212 and DFARS Section 227.7202 (or successor regulations). Any and all use, modification, reproduction, release, performance, display, or disclosure of the Application Service and Documentation
is governed solely by the terms, conditions and restrictions set forth in this Agreement.

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6. Customer Data and Customer Materials.

a. Customer Obligations. Customer represents and warrants that: (i) Customer has obtained all necessary rights and consents in and with respect to the Customer Data and Customer Materials (A) to use the Customer Data and Customer Materials in connection with the Services (including the right to permit its Authorized Users to use the Customer Data), and (B) to grant Tapa the rights to use the Customer Data and the Customer Materials as set forth in this Agreement; (ii) the Customer Data and the Customer Materials (including the use thereof pursuant to the rights granted under this Agreement) do not violate, misappropriate or infringe the Intellectual Property Rights of any Person or any applicable laws, rules or regulations; and (iii) Customer will not (and will not permit any Person to) upload, submit, transmit or otherwise provide to the Application Service (or use the Application Services to process) any patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act.

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a. Customer Ownership; Tapa Rights of Use. As between the parties, Customer will retain all of its ownership rights in the Customer Data and Customer Materials (including all Intellectual Property Rights with respect thereto). Customer hereby grants to Tapa a non-exclusive, worldwide, fully transferable and sublicensable (through multiple tiers), royalty-free right and license to reproduce, display, distribute, modify, and otherwise use the Customer Data and Customer Materials for the
purposes of providing the Services and otherwise performing under this Agreement, including by providing access to and use of Customer Data to (i) an Authorized User through its use of the Application Service, (ii) Third Party Services pursuant to Section 9(b) below, and (iii) any other
Person as instructed by Customer's (including an Authorized User’s) use of the Application Service. Furthermore, if Tapa receives a judicial or other governmental order requesting disclosure of Customer Data, then Tapa will be permitted to disclose the Customer Data pursuant to such order, so long as (x) Tapa first gives given prompt written notice to Customer of the same (to the extent not prohibited by applicable law), and (y) Tapa reasonably cooperates with Customer’s efforts to prevent or limit any such disclosure. Tapa will maintain administrative, physical, and technical safeguards designed to protect the security and integrity of the Customer Data from unauthorized access.

7. Other Services. Subject to the terms and conditions of this Agreement, Tapa will provide the Standard Support and those Other Services as may be described in the Order Form (including any SOW). In connection with the performance of the Other Services, Customer will provide Tapa personnel with all such cooperation and assistance as they may reasonably request, or otherwise may reasonably be required, to enable Tapa to provide the Other Services under and in accordance with the terms and conditions of this Agreement.

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8. Third Party Services.

a. Generally. Tapa may from time to time recommend, enable integration with or access to via the Application Service, or resell to Customer certain third-party products, services, or offerings that you acquire rights to independently from Tapa (“Third Party Services”), such as payroll provider applications, social media platforms, and any Third Party Services identified in an Order Form provided to Customer on a reseller basis by Tapa. In some instances, Tapa may receive a revenue share or other compensation from Third Party Providers with respect to Third Party Services or Tapa may resell the Third Party Services to Customer for a separate fee. Third Party Services are not part of the Services. Any access enabled via the Application Service to such Third Party Services is done only as a convenience to Customer, and Customer’s (including any Authorized User’s) purchase, access, or use of any such Third Party Services is solely between Customer and the applicable Third Party Services provider (“Third Party Provider”). Customer acknowledges and agrees that Customer’s (including any Authorized User’s) purchase, access to, and use of any Third Party Services is subject to and governed by the applicable Third Party Provider’s terms and conditions (including any privacy policies) with respect to the Third Party Services and Customer agrees to be bound by such terms and conditions. Any use by Customer (including Authorized Users) of Third Party Services is entirely at Customer’s own risk and discretion. Tapa does not provide any warranties or make representations to Customer with respect to Third Party Services. Customer acknowledges and agrees that Tapa has no control over Third Party Services and will not be responsible or liable to Customer or anyone else for such Third Party Services. The availability of Third Party Services, or the integration or enabling of access to such Third Party Services via the Application Service, does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Tapa. Tapa does not guarantee the availability of Third Party Services. Tapa may discontinue any integration with or access to any Third Party Services via the Application Service at any time in its sole discretion, with or without notice and without liability.

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a. Data Exchange with Third Party Services. If Customer installs or enables a Third Party Service for use with the Application Service, Customer authorizes Tapa to allow the applicable Third Party Provider
to access Customer Data and to take any other actions as required for the interoperation of the Third Party Service with the Application Service, and any exchange of Data or other interaction between
Customer (including any Authorized User) and the Third Party Provider is solely between Customer and such Third Party Provider. Tapa is not responsible for any disclosure, modification, or deletion of such Data, or for any losses or damages, as a result of such access by a Third Party Service or a Third Party Provider.

9. Hardware and System Requirements. Customer is solely responsible for obtaining and maintaining, at its own expense, all hardware, software and services needed to access and/or use the Application Service, including any and all computers and internet access services.

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10. Fees and Payments.

a. Fees. Customer will pay to Tapa fees based on the rates and charges as set forth in the Order Form (“Fees”). The recurring Fees (whether fixed or variable) will be assessed on the billing cycle basis as indicated on the Order Form.

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a. Fee Adjustments.‍

i. Customer agrees that, if, at any time during the Service Period, Customer’s use of the Application Service exceeds the usage parameters included in its Scope of Use, then Tapa shall have the right to (A) immediately upgrade Customer’s Scope of Use as sufficient to allow for Customer’s excess usage (as calculated at the time of upgrade) and (B) thereafter assess to Customer additional Fees associated
with such upgraded Scope of Use at Tapa’s then-current rates and charges (provided, that, such additional Fees due for the remainder of the then-current Service Period at the time of upgrade will be assessed on a pro-rata basis for such period), and the Order Form shall be deemed amended to include
such upgraded Scope of Use and associated rates/charges.

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i. Anything to the contrary notwithstanding, Tapa may revise the rates/charges applicable to any Renewal Service Period by providing written notice (which may be via electronic notice through the Application Service or email) to Customer of the revised rates/charges at least sixty (60) days prior to the commencement date of such Renewal Service Period (and the Order Form will be deemed amended to include such revised rates/charges).

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a. Expenses. Customer will reimburse Tapa for any expenses incurred by Tapa that are specified for reimbursement in the Order Form or otherwise approved in writing (which may be via email) by Customer. Upon Customer’s written request, Tapa will provide reasonable supporting documentation with respect to any requests for such expense reimbursements.

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a. Invoicing; Payment Terms. Unless otherwise expressly provided in the Order Form, Customer will pay recurring Fees as follows: (i) recurring Fees for the initial billing cycle of the Service Period will be invoiced on or after the effective date of the Order Form, and Customer will pay such Fees within thirty (30) days following the date of invoice, and (ii) recurring Fees for each subsequent billing cycle of the Service Period will be due and payable by Customer on the first day of each such period and will be invoiced to Customer in advance prior to the applicable due date. Unless otherwise expressly provided in the Order Form (including any applicable SOW), any implementation Fees will be invoiced on or after the effective date of the Order Form, and any other non-recurring Fees or charges and any reimbursable expenses will be invoiced as incurred, and Customer will pay all such amounts due within thirty (30) days following the date of invoice. Customer will pay all amounts due without deduction or set-off. Except as otherwise expressly provided in this Agreement, all amounts are payable in U.S. Dollars and are non-refundable. If Tapa has agreed to accept payment of any amounts due hereunder via ACH or credit/debit card, (x) Customer hereby grants permission to Tapa to charge all Fees and other amounts due and owing under this Agreement to the applicable bank/financial account or credit/debit card on or after the applicable payment due date(s), (y) Customer agrees that Tapa may charge an additional credit card processing fee of three percent (3%) of the charge processed to Customer, and (z) Customer will execute and deliver any additional documentation required in order to confirm authorization of payment/charges of all such amounts. Customer further represents and warrants that it is the card holder of any credit card or debit card that it provides to Tapa for payment(s), or that Customer is duly authorized to provide the consent to use such credit card or debit card as set forth in this Section. Customer will pay interest at a rate of 1.5% per month, or, if less, the maximum rate permitted by law, on any unpaid amount to Tapa under this Agreement for such time as the outstanding balance remains past due. Failure of Customer to pay any amounts when due under and in accordance with this Agreement will constitute a material breach of this Agreement, and Customer agrees to reimburse Tapa for any and all reasonable attorneys’ fees and other costs of litigation incurred by Tapa in connection with its efforts to collect such amounts.

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a. Taxes. All amounts payable by Customer are exclusive of applicable sales, use, value-added and other taxes assessed on the provision of the products, services and/or offerings provided by Tapa under this
Agreement, and Customer agrees to pay any such applicable taxes as invoiced by Tapa. If Customer asserts a tax exemption with respect to any such taxes, Customer will furnish Tapa with a valid tax exemption for each jurisdiction in which it is claiming an exemption. Unless otherwise agreed to by the parties, offerings provided by Tapa to Customer under this Agreement are provided and sourced to Customer at the billing address identified on the Order Form.

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11. Term and Termination.

a. Term. The term of this Agreement will commence on the effective date of the Order Form and, unless earlier terminated in accordance with this Section, will continue until all Service Periods have expired or terminated (the “Term”). Upon the termination or expiration of the Service Period for a particular Service, all other outstanding Services Periods will remain in effect and the terms and conditions of this Agreement will continue in effect with respect to each Service under an outstanding Service Period until its expiration or termination as set forth herein. Upon the termination of this Agreement (as a whole) pursuant to Section 12(b) or 12(c), all then-existing Service Periods for all Services will terminate upon the effective date of the termination of this Agreement.

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a. Termination for Breach. This Agreement (as a whole) may be terminated by a party immediately upon notice to the other party if the other party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days after notice of the breach.

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a. Termination on Other Grounds. This Agreement (as a whole), or any Service Period for a particular Service, may be terminated pursuant to any other specific right of termination expressly granted to a party under this Agreement.

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a. Effect of Termination. Upon termination or expiration of this Agreement (as a whole), or the Service Period for a particular Service, (i) all unpaid Fees and other amounts payable to Tapa under this Agreement with respect to the affected Service(s) (including, in the case of termination, any unpaid Fees for the remaining portion of the then-current Service Period without regard to termination) will become immediately due and payable, (ii) the rights granted to Customer with respect to the affected
Service(s) will terminate automatically, (iii) Customer will immediately cease further use of the affected Application Service, Documentation, and/or Service (as applicable), and (iv) Customer will delete the Documentation (including all copies), as applicable, from Customer’s servers, equipment or storage devices, and return to Tapa or destroy any other copies in Customer’s care, custody or control. Upon Tapa’s request, Customer will provide Tapa with written certification of Customer’s compliance with the foregoing obligations. Customer shall be responsible for retrieving all necessary Customer Data from the Application Service prior to the effective date of termination or expiration of the applicable Service Period. Customer acknowledges that following such termination or expiration all remaining Customer
Data with respect to such Application Service will be deleted from Tapa’s systems in accordance with Tapa’s standard practices.

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a. Survival. Anything to the contrary notwithstanding, termination or expiration of this Agreement will not affect any of the parties'; respective rights or obligations that (A) are vested pursuant to this Agreement as of the effective date of such termination or expiration (including obligations for payment and remedies for breach of this Agreement) or (B) arise under Sections 4, 11(d), 11(e), 12(d), 12(e), 13 and 15 through 29 of the Terms of Service, all of which will survive any termination or expiration of this Agreement.

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a. Suspension of Use. Tapa may (without limitation of any other rights or remedies) suspend access to and use of the Application Service in the event that (i) Customer is delinquent in payment of any amount due to Tapa under this Agreement (and has not cured such delinquency within five (5) days following written notice thereof to Customer), (ii) Customer has breached any of the provisions of Section 3 of this Agreement, or (iii) in Tapa’s reasonable good faith determination, suspension of the
Application Service is necessary to avoid or mitigate harm to the security of Tapa’s systems or data. Any such suspension will not constitute a breach or termination by Tapa of this Agreement.

12. Confidentiality.

a. Each party (a “Receiving Party”) agrees that any and all information (regardless of form or medium) obtained or otherwise received by Receiving Party from, through, by or on behalf of the other party (a
“Disclosing Party”) during the Term that (i) is conspicuously marked as “proprietary” or “confidential” or similar designation, or (ii) if disclosed orally or visually, is identified by Disclosing Party as “proprietary” or “confidential” or similar designation either through an oral or written statement at the time of such disclosure or through a written statement delivered to Receiving Party within a reasonable period of time (not to exceed ten (10) days) following such disclosure, or (iii) based on the nature of the information, or the manner of its disclosure, should reasonably be considered as confidential, in each case, will be deemed the confidential information of Disclosing Party (“Confidential Information”). Examples of Confidential Information include information consisting of or relating to the Disclosing Party's technology, information security and audit information, trade secrets, know-how, business
operations, plans, strategies, customers, and pricing, and similar information with respect to which the Disclosing Party has contractual or other confidentiality obligations. Receiving Party will maintain the
Confidential Information in confidence and, subject to the terms and conditions of this Section, will not disclose or use any Confidential Information. Receiving Party agrees to use the same degree of care to
protect the Confidential Information as it uses to protect its own confidential information of like importance, but in no event will Receiving Party use less than reasonable care.

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a. Receiving Party may use the Confidential Information only to the limited extent necessary to perform its duties and/or exercise its rights subject to and in accordance with this Agreement, and for no other purpose, commercial or otherwise. Receiving Party may not disclose the Confidential Information to third parties, except as permitted under this Agreement. Receiving Party may disclose the Confidential Information only to those (i) Receiving Party employees, contractors and representatives, (ii) Disclosing Party employees, contractors and representatives, and (iii) such other Persons approved in writing by Disclosing Party, who need to know the Confidential Information in
order to assist Receiving Party in its authorized use of the Confidential Information; provided, that, in the case of disclosure to Receiving Party employees, contractors and representatives, such Persons agree to be bound by obligations of confidentiality and nonuse (without further rights of distribution) no less restrictive than those contained in this Section, and Receiving Party will be jointly and severally liable for anysuch Person's breach of the foregoing obligations of confidentiality and nonuse.

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a. Disclosure or use of any Confidential Information will not be restricted to the extent that: (i) it is or becomes generally available to the public without any breach of this Agreement, (ii) it is known to Receiving Party without restriction prior to the date of disclosure by or on behalf of Disclosing Party hereunder; (iii) Receiving Party rightfully obtains it from a third party who Receiving Party reasonably believes has the right to transfer or disclose it without restriction; or (iv) it is developed independently by Receiving Party without any breach of this Agreement and without any use of the Confidential Information.

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a. Further, disclosure of any Confidential Information to any judicial or other governmental entity will not be prohibited to the extent that such disclosure is required by applicable laws, so long as (x) Receiving Party will first have given prompt written notice to Disclosing Party of the same (to the extent not prohibited by applicable law), and (y) Receiving Party reasonably cooperates with Disclosing Party’s efforts to prevent or limit any such disclosure.

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a. At Disclosing Party’s written request, Receiving Party will destroy (and certify such destruction in writing to Disclosing Party) all information and materials containing or embodying any Confidential Information, within thirty (30) days after delivery of such request by Disclosing Party. For the avoidance of doubt, the provisions of this Section will not be deemed to expand the scope of the rights granted to Customer under Section 3 above (or reduce any of the restrictions and conditions applicable to such rights) with respect to the Application Service or Documentation.

13. Compliance with Laws. Each party agrees to comply with all laws, rules and regulations applicable to such party and its performance under this Agreement.

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14. Limited Warranty; Remedies. Tapa warrants that, during the Service Period, the Application Service will conform, in all material respects, to its specifications set forth in the then-current Documentation. The foregoing warranty will not apply (i) if Customer is in default or breach of any of its obligations under this Agreement, or (ii) to any non-conformance due to (A) Customer’s failure to permit the
implementation of any Update provided by Tapa, (B) Customer’s negligence, abuse, misapplication or misuse of the Application Service (including Customer’s failure to operate the Application Service in accordance with the then-current Documentation), or (C) Customer’s use or operation of the Application Service in or with any technology (including any software, hardware, firmware, system or
network) not provided by Tapa, including the Third Party Services. In the event of a breach of the foregoing warranty for which Customer provides notice to Tapa, Tapa, at its sole expense, will use reasonable efforts to correct the non-conformance and, if, after thirty (30) days following Tapa’s receipt of notice of the non-conformance, Tapa is unable to correct such non-conformance, then Customer may terminate the Service Period with respect to the Application Service upon notice to Tapa and be entitled to a refund of any pre-paid Fees for the Applicable Service attributable to the period following the effective date of termination (calculated on a pro-rated basis). THE PRECEDING SENTENCE SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, AND TAPA’S SOLE AND EXCLUSIVE LIABILITY, FOR THE BREACH OF THE WARRANTY SET FORTH ABOVE IN THIS SECTION 15.

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15. Disclaimers. ANYTHING TO THE CONTRARY NOTWITHSTANDING, EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN SECTION 15 ABOVE, TAPA (INCLUDING, FOR PURPOSES OF THIS SECTION, ITS
LICENSORS) DOES NOT MAKE ANY, AND HEREBY EXPRESSLY DISCLAIMS ALL, WARRANTIES, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE APPLICATION SERVICE, THE OTHER SERVICES, ANY OTHER PRODUCTS, SERVICES, OFFERINGS, INFORMATION OR ITEMS PROVIDED, OR TO BE PROVIDED, TO CUSTOMER ARISING OUT OF OR RELATNG TO THIS AGREEMENT (COLLECTIVELY, THE “OFFERINGS”), AND THE THIRD PARTY SERVICES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. WITHOUT LIMITING THE FOREGOING, TAPA DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS,
WARRANTIES AND/OR GUARANTEES REGARDING (I) THE USE OF OR THE RESULTS OF THE USE OF THE OFFERINGS OR THE THIRD PARTY SERVICES IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, TIMELINESS, AVAILABILITY, SECURITY OR OTHERWISE, OR (II) WHETHER ACCESS TO, OR USE OR OPERATION OF, THE OFFERINGS OR THE THIRD PARTY SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. TAPA IS NOT IN THE BUSINESS OF RENDERING LEGAL, TAX, ACCOUNTING, OR OTHER PROFESSIONAL ADVICE, AND NEITHER TAPA NOR THE OFFERINGS SHOULD BE RELIED UPON AS SUCH. IF SUCH ADVICE OR EXPERT ASSISTANCE IS REQUIRED BY CUSTOMER, CUSTOMER SHOULD SEEK THE SERVICES OF A COMPETENT LICENSED PROFESSIONAL.

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16. Limitation of Liability.

a. IN NO EVENT WILL TAPA (OR ITS LICENSORS) BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF REVENUE OR PROFIT, LOSS OF DATA, OR LOSS OF TIME OR BUSINESS, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT
OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, AND REGARDLESS OF WHETHER TAPA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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a. ANYTHING TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT WILL THE TOTAL MAXIMUM AGGREGATE LIABILITY OF TAPA FOR ANY AND ALL CLAIMS, DAMAGES AND LIABILITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OFFERINGS, WHETHER LIABILITY IS ASSERTED IN CONTRACT
OR IN TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO TAPA BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE OCCURRENCE OF SUCH CLAIM, DAMAGE OR LIABILITY, LESS THE AMOUNT OF ANY CLAIMS, DAMAGES OR LIABILITIES PREVIOUSLY PAID BY OR ON BEHALF OF TAPA.

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17. Indemnity.

a. Tapa will indemnify and defend Customer from and against any third party claim that the Application Service infringes, violates or misappropriates the United States intellectual property rights of any other Person; provided, that such indemnification obligations will not extend to any infringement claim to the extent based on (i) any modification to the Application Service made by or on behalf of Customer without Tapa’s written approval, (ii) the combination of the Application Service with any technology (including any software, hardware, firmware, system or network) not provided by Tapa, including the Third Party Services, (ii) the failure of Customer to permit the implementation of any Update provided by Tapa, (iii) any Customer Data, (iv) any Customer Materials, or (v) Customer’s use of the Application Service in violation of the terms, conditions and restrictions set forth in this Agreement. If Customer’s use of the Application Service is, or, in Tapa’s opinion, is likely to be, enjoined due to any such alleged
infringement, then Tapa, at its sole option and expense, may, in addition to its indemnification obligations under this Section 18(a), do one or more of the following: (x) obtain for Customer the right to continue using the alleged infringing item as otherwise provided in this Agreement; (y) replace or modify the alleged infringing item so that it is no longer infringing, and require Customer to implement such replaced or modified item; or (z) terminate this Agreement upon notice to Customer
and refund to Customer any pre-paid Fees for the Application Service attributable to the period following the effective date of termination (calculated on a pro-rated basis).

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a. Customer will indemnify and defend Tapa from and against any third party claim that arises out of or relates to Customer’s breach or violation of Section 3 (Application Service and Documentation) or
Section 7(a) (Customer Obligations).

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a. In the event of any such indemnifiable claims, the party seeking indemnification (the “Indemnified Party”) will notify the party required to provide indemnification (the “Indemnifying Party”) of any matter with respect to which the Indemnified Party may seek indemnification from the Indemnifying Party under this Section promptly after the Indemnified Party becomes aware of such matter; provided, however, that any failure to give prompt notice of any such matter will not relieve the Indemnifying Party from any of its liabilities or obligations hereunder with respect to such matter unless (and then only to the extent that) such failure adversely affects the ability of the Indemnifying Party to defend any claim arising out of such matter. The Indemnifying Party will assume the defense and have sole control over the defense and settlement of any claim subject to indemnification hereunder, and will pay any amounts awarded in judgment or agreed in settlement against the Indemnified Party with respect to such claim, provided that the Indemnified Party will have the right (i) to participate in the defense with counsel of its own choice and (ii) to approve any settlement or compromise, or any consent to entry of any judgment, with such approval not to be unreasonably withheld or delayed. The fees and expenses of any counsel retained by the Indemnified Party will be at the expense of the Indemnified Party unless the Indemnifying Party has not employed counsel to defend the Indemnified Party for a claim subject to indemnification hereunder within a reasonable time after the Indemnified Party requests the same or fails to continue to do so until the matter is resolved, in which case, the reasonable fees and expenses of such separate counsel (and other costs of litigation) will be paid by the Indemnifying Party. The Indemnifying Party will keep the Indemnified Party reasonably informed as to the status of the Indemnifying Party’s efforts and consult with the Indemnified Party concerning same.

18. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (WHICH CONVENTION SHALL NOT APPLY TO THIS AGREEMENT) AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.

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19. Jurisdiction; Venue; Waiver of Jury. EACH PARTY IRREVOCABLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE UNITED STATES FEDERAL AND STATE COURTS LOCATED IN SALT LAKE CITY, UTAH, AND HEREBY AGREES THAT SUCH COURTS WILL BE THE EXCLUSIVE AND PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. FURTHERMORE, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.

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20. Equitable Remedies. Customer agrees that its breach of Sections 3, 4, or 13 of this Agreement would cause irreparable harm to Tapa for which monetary damages alone would not be an adequate remedy. Accordingly, Customer agrees that, in addition to any other remedies to which Tapa may be entitled, in the event of any such breach by Customer, Tapa will be entitled to seek equitable relief (including injunctive relief) with respect to such breach in any court of competent jurisdiction (notwithstanding any exclusive venue provisions of this Agreement).

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21. Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

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22. Notices. Except to the extent as may be otherwise expressly permitted in this Agreement and for routine electronic communications regarding the Services provided on or through the Application Service, any notice required or permitted under this Agreement will be in writing, and will be delivered (a) personally by hand, (b) by certified mail, postage prepaid, with return receipt requested, (c) by email, or (d) by internationally recognized express delivery service (e.g., UPS or FedEx), to the parties as follows: if to Customer, at the address(es) indicated in the Order Form; and if to Tapa, at P.O. Box 1132, Eagle, ID 83616, Attn: President. Notice given will be deemed effective on the date delivered, if by hand, three (3) days following deposit in the U.S. Mail properly addressed, if by mail, or on the date of delivery, if by email or internationally recognized express delivery service. Either party may change the person(s) and/or address(es) designated for notice effective ten (10) days following delivery of notice of such change(s).

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23. Assignment. Neither party may assign or otherwise transfer this Agreement, or any of its rights or obligations hereunder, in any manner, including by way of merger, exchange, consolidation or combination, or sale of fifty percent (50%) or more of its capital stock or similar ownership interests, or sale of all or substantially all of its assets, without the prior written consent of the other party; provided, however, that a party may assign and transfer this Agreement, and all of its rights and obligations hereunder, without the consent of the other party, to the purchaser or surviving entity in connection with a sale of its business (whether by way of merger, exchange, consolidation or combination, or sale of fifty percent (50%) or more of its capital stock or similar ownership interests, or sale of all or substantially all of its assets), subject to and conditioned upon (a) the assigning party providing the other party with prompt written notice of the assignment and (b) the assignee agrees in writing to assume all obligations of the assigning party’s obligations under this Agreement. Any attempted assignment or transfer of this Agreement by a party in violation of this Section will be void. Subject to the foregoing, this Agreement will be binding on the parties and their respective successors and assigns. For the avoidance of doubt, no Customer Affiliate shall have the right to assign or otherwise transfer any rights granted to it by Customer with respect to this Agreement.

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24. Interpretation. Each instance in this Agreement of the words "include," "includes," and "including" will be deemed to be followed by the words "without limitation." As used in this Agreement, the term "days" means calendar days, not business days, unless otherwise specified. All headings or section divisions contained in this Agreement are for reference purposes only and will not be construed to affect the meaning or interpretation of this Agreement.

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25. Force Majeure. Tapa will not be liable for any failure or delay in performance resulting from any event beyond its reasonable control, including due to fire, flood, action or decree of civil or military authority, insurrection, act of war, vandalism, terrorism, hackers, denial of service attacks, labor disputes or shortages, material shortages, power outages, failure of internet connections, failure of suppliers, or embargo.

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26. Waiver; Amendments. No waiver of any provision of this Agreement will be effective unless made in writing and signed by the party to be charged with such waiver. Except as otherwise expressly provided in this Agreement, this Agreement may only be amended by a written agreement executed by Customer and Tapa referencing this Agreement and the provisions hereof to be amended; provided, however, that Tapa may amend these Terms of Service by providing notice to Customer of such amendment on or through the Application Service or such other means of notice permitted under this Agreement, but, except as otherwise provided in this Agreement, such amended Terms of Service will not be effective as to any Service under an Order Form that Tapa accepted prior to the date Tapa provided notice of such amendment until the first day of the next Renewal Service Period that follows the effective date of the amendment. Any preprinted legal terms contained on any purchase order, confirmation notice or other similar document delivered by Customer in connection with this Agreement will not serve to amend or modify any provision of this Agreement.
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27. Publicity. Tapa may identify Customer as a customer of Tapa on its website and in other promotional materials. Tapa will promptly stop doing so following receipt of Customer’s request.

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28. Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior representations, warranties, understandings or agreements (written or oral) between the parties with respect to the subject matter hereof. In the event of a conflict between or among the Terms of Service and the Order Form, the provisions contained in the Terms of Service will prevail over any conflicting provisions in the Order Form (except to the extent that the Order Form indicates that such provisions of the Order Form are to prevail or control over any conflicting provisions in the Terms of Service). This Agreement may be executed in multiple counterparts. Facsimile, electronic or scanned signatures are effective in all respects.

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