TOS Version 1.0 (05.10.2017)
These Terms of Service (“TOS”), effective May 10, 2017, contain the terms and conditions under which Tapyness provides Services and describe how the Services may be accessed and used by you.
By clicking or tapping on the button below, you affirm: 1) that you have read these Terms of Service fully, 2) that you have understood these Terms of Service fully, and 3) that you agree to these Terms of Service. (Alternatively, executing a written document stating the same or using the Services shall affirm that you have read and understood these Terms of Service fully and that you agree to these Terms of Service.)
If you will be using the Services on behalf of an organization, you agree to these Terms of Service on behalf of that organization, and you warrant that you have the authority to do so. In such case, “you” and “your” will refer to that organization.
1. Contracting Entity
1.1. With whom you are contracting. Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Tapyness, LLC, located at 730 New Hampshire Street, Suite 3F, Lawrence, KS, 66044, USA.
1.2. References. “Tapyness”, “we”, “us”, and “our” herein are references to Tapyness, LLC.
1.3. Services. For any Service provided by Tapyness, these Terms of Service will apply to the provision or use of that Service, collectively referenced as “Services”.
2. User Requirements
2.1. Legal Status. If you are an individual, you may only use the Services if you have both the ability and the authority to form a contract with Tapyness; by agreeing to these Terms of Service, you warrant that you are at least 18 years of age and that you possess the capacity to form a contract. If you are not an individual, you warrant that you are a validly-formed entity lawfully existing and operating under the laws of your jurisdiction of formation, that you have full authority to agree to these Terms of Service, and that you have duly authorized the agent indicating agreement below to bind you to these Terms of Service. You represent and warrant that you will comply with all laws and regulations applicable to your use of the Services.
2.2. Embargoes. You agree not to use the Services if you are barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List or the U.S. Treasury Department’s List of Specially Designated Nationals, you are not permitted to purchase any Services from Tapyness. You agree to ensure: (a) that your end users do not use the Services in violation of any export restriction or embargo by the United States; and (b) that you do not provide access to the Services to any person or entity on any of the aforementioned lists.
3. Fees and Payments
3.1. Fees for Services. You agree to pay to Tapyness the fee charged for any Service which you purchase or use in accordance with the pricing, delivery, and payment terms (presented on Tapyness’ website) for that Service. You further agree to abide by the limitation on the number of kiosks permitted at a single physical address for any Service which you purchase or use in accordance with the pricing, delivery, and payment terms (presented on Tapyness’ website) for that Service. All prices are in U.S. dollars (USD). Where applicable, you will be billed using the billing method that you select through your account profile page. Fees paid by you are nonrefundable, except as provided in these Terms or when required by law.
3.2. Subscriptions. Our Services are billed on a Subscription basis. This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account profile page. You may cancel auto-renewal of your Subscription immediately after your Subscription begins or anytime thereafter, in which case your Subscription will continue until the end of the then-current billing cycle before terminating.
3.3. Taxes. To the maximum extent allowed by applicable law, you are responsible for paying any taxes (other than Tapyness’ income tax) or duties associated with your purchase of the Services, including any related penalties or interest (collectively, “Taxes”).
3.4. Price Changes. Tapyness may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. Tapyness will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
4. Tapyness’ Intellectual Property
4.1. Tapyness’ IP. Neither these Terms of Services nor your use of the Services grants you ownership in the Services or in any content that you access through the Services (except Content which you provide). These Terms of Service do not grant you any right to use Tapyness’ trademarks or other brand elements.
5. Account Management
5.1. Keep Your Password Secure. If you have been issued an account by Tapyness in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not Tapyness, are responsible for any activity occurring in your account (other than activity for which Tapyness is directly responsible and which is not performed pursuant to your instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you agree to notify Tapyness immediately.
5.2. Keep Your Details Accurate. Tapyness occasionally sends notices to the email addresses registered with users’ accounts. You agree to keep your email address and, where applicable, any other contact and payment information associated with your account, current and accurate. Accounts are controlled by the individual or entity whose email address is registered with the account.
5.3. Account Inactivity. Tapyness may terminate your account and delete any content contained in it if there is no account activity (such as a login event or payment) for over 12 months. However, Tapyness will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
6. Access and Use of Services
6.1. Legal Compliance. You agree to access and use the Services in compliance with, and only as permitted by, applicable law.
6.2. Your Responsibilities. You agree to be responsible for your conduct, your Content, defined as any text, image, or other form or piece of information provided to Tapyness by you or displayed via the Services by you, and your communications with others while using the Services. You agree to comply with the following requirements when accessing and using the Services:
(a) You agree not to purchase, use, or access the Services for the purpose of building a competitive product or service or for any other competitive purposes.
(b) You agree not to misuse the Services by interfering with their normal operation or by attempting to access them using a method other than through the interfaces and instructions that Tapyness provides.
(c) You agree not to circumvent or attempt to circumvent any limitations that Tapyness imposes on your account.
(d) Unless authorized by Tapyness in writing, you agree not to probe, scan, or test the vulnerability of any Tapyness system or network.
(e) Unless authorized by Tapyness in writing, you agree not to use any automated system or software to extract or scrape data from the websites or other interfaces through which Tapyness makes our Services available.
(f) Unless permitted by applicable law, you agree not to deny others access to the Services, not to reverse engineer the Services, and not to attempt to do either of the foregoing.
(g) You agree not to transmit any viruses, malware, or other types of malicious software or links to such software through the Services.
(h) You agree not to engage in abusive or excessive usage of the Services, defined as usage significantly in excess of average usage patterns which adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. Tapyness will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to Tapyness.
(i) You agree not to use the Services to infringe the intellectual property rights of others.
(j) You agree not to represent yourself to be any person or entity other than yourself when subscribing to or using the Services.(k) You agree not to use the Services to commit any illegal act.
(l) You agree not to use the Services in any way that Tapyness, in our sole discretion, deems detrimental to our brand. Tapyness will endeavor, as it deems commercially reasonable, to notify you of any such usage and to provide you with an opportunity to resume usage of the Services in a manner acceptable to Tapyness.
(m) Unless authorized by Tapyness in writing, you agree not to resell or lease the Services.
(n) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you agree to be solely responsible for such compliance, unless Tapyness has agreed with you otherwise. You agree not to use the Services in a way that would subject Tapyness to those industry-specific regulations without obtaining Tapyness’ prior written agreement. For example, you agree not to use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103) without entering into a separate business associate agreement with Tapyness which permits you to do so.
7. Your Content
7.1. You Retain Ownership of Your Content. You retain ownership of all of your intellectual property rights in any Content that you provide or display using the Services. Tapyness does not claim ownership over any of your Content. These Terms of Service grant Tapyness only the limited rights and license needed for it to provide the Services and as otherwise described in these Terms of Service.
7.2. Limited License to Your Content. By agreeing to these Terms of Service, you grant Tapyness a worldwide, royalty-free license to use, reproduce, distribute, modify, adapt, create derivative works from, make publicly available, and otherwise exploit your Content for the limited purposes of providing the Services to you and to other users and as otherwise permitted by Tapyness’ Privacy and Data Policy. This license for such limited purposes continues even after you stop using our Services with respect to aggregate and de-identified data derived from your Content and to any residual backup copies of your Content made in the ordinary course of Tapyness' business. This license extends to any trusted third parties with whom we work to the extent necessary to provide the Services to you. If you provide Tapyness with feedback about the Services, we may use your feedback without any obligation to you.
7.3. Customer Lists. Tapyness may identify you (by name and logo) as a Tapyness customer on the Tapyness website and on other promotional materials.
7.4. Copyright Claims (DCMA Notices). Tapyness, LLC responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify Tapyness.
7.5. Other IP Claims. Tapyness respects the intellectual property rights of others, and we expect our users to do the same. Claims of copyright infringement should follow the DMCA process or any equivalent process available under local law.
7.6. Responsibility for User-Provided Content. The Services display content provided by others which is not owned by Tapyness. Such content is the sole responsibility of the users who make it available. Tapyness is not responsible for any action that any user takes with respect to any Content provided by that user, including the public display of that Content.
7.7. Content Review. You acknowledge that, in order to ensure compliance with legal obligations, Tapyness may be required to review certain Content provided to us or displayed via our services in order to determine whether that Content violates the law or whether it violates these Terms of Service (such as when unlawful Content is reported to us) or whether it is detrimental to our brand. We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law, violates these Terms of Service, or is detrimental to our brand. However, Tapyness undertakes no affirmative obligation to monitor or to review any Content provided by any user or displayed by any user via the Services.
8.1. Privacy. In the course of using the Services, you may submit Content to Tapyness (including your personal account data and the non-identified data of others who provide information via the Services). We know that by giving us your Content, you are trusting us to treat it appropriately. Tapyness' Privacy and Data Policy, together with any Service-specific data use policies, privacy statements, and privacy notices (collectively, “privacy policies”), detail how we treat your Content and personal data, and we agree to adhere to those privacy policies. You in turn agree that Tapyness may use and share your Content in accordance with our privacy policies.
8.2. Confidentiality. Tapyness will only use and disclose your Content in accordance with these Terms of Service (including our privacy policies) and will otherwise treat it as confidential information. However, your Content will not be regarded as confidential information if such Content: (a) is or becomes public (other than through a breach of these Terms of Service by Tapyness); (b) was lawfully known to Tapyness before receiving it from you; (c) is received by Tapyness from a third party without knowledge of a breach of any obligation owed to you; (d) was independently developed by Tapyness without reference to your Content; (e) is needed by a credit-card company, bank, collection-agency or other person or entity involved in the collection of moneys owed to or by Tapyness; (f) is believed potentially to be evidence of a violation of the law; or (g) is needed by an attorney, process server, court of law, or other person or entity participating in a legal process or proceeding involving Tapyness. Tapyness may disclose your Content when required by law or by legal process, but in that case, Tapyness will endeavor, as it deems commercially reasonable, to first notify you and to give you an opportunity to challenge the requirement to disclose.
8.3. Security. Tapyness will store and process your Content in a manner consistent with industry security standards. Tapyness has implemented appropriate technical, organizational, and administrative systems, policies, and procedures designed to help ensure the security, integrity, and confidentiality of your Content and to mitigate the risk of unauthorized access to or use of your Content.
9. Suspension or Termination of Service or Subscription
9.1. By You. If you terminate a Subscription in the middle of a billing cycle, you will not receive a refund for any period of time you did not use Services in that billing cycle unless you are terminating the Subscription for any of the following reasons: (a) we have materially breached these Terms of Service and failed to cure that breach within 30 days after you have so notified us in writing; or (b) a refund is required by law.
9.2. By Tapyness. Tapyness may terminate your Subscription at the end of a billing cycle by providing at least 30 days’ prior written notice to you. Tapyness may terminate your Subscription for any reason by providing at least 90 days’ written notice to you and will provide a pro rata refund for any period of time you did not use in that billing cycle. Tapyness may suspend performance or terminate your Subscription for any of the following reasons: (a) you have materially breached these Terms and failed to cure that breach within 30 days after Tapyness has so notified you in writing; (b) you cease your business operations or become subject to insolvency proceedings and the proceedings are not dismissed within 90 days; or (c) you fail to pay fees for 30 days past the due date. Additionally, Tapyness may limit or suspend any Service to you if you fail to comply with these Terms of Service, or if you use that Service in a manner which Tapyness believes, in our sole discretion, causes legal liability to it, disrupts others’ use of our Services, or is detrimental to our brand. Tapyness may also suspend any Service to you while we are investigating any suspected misconduct by you. If we limit, suspend, or terminate any Service which you have been receiving from us, we will endeavor, as we deem commercially reasonable, to give you advance notice of the limitation, suspension, or termination and an opportunity to export a copy of your Content from that Service. There may, however, be time-sensitive situations in which Tapyness may decide that we need to take immediate action without notice. Tapyness undertakes no obligation to retain your Content upon termination of a Service to you.
9.3. Further Measures. If Tapyness stops providing the Services to you because you repeatedly or egregiously breach these Terms, Tapyness may take measures to prevent any further use of the Services by you, including blocking your IP address.
10. Changes and Updates
10.1. Changes to Terms. Tapyness may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. The most current version will always be posted on the Tapyness website. If an amendment is material, as determined in Tapyness' sole discretion, Tapyness will notify you by email. Notice of amendments may also be posted to the Tapyness website or upon your login to your account. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require Tapyness to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
10.2. Changes to Services. Tapyness constantly changes and improves the Services. Tapyness may add, alter, or remove functionality from a Service at any time without prior notice. Tapyness may also limit, suspend, or discontinue a Service at our discretion. If Tapyness discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. Tapyness may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
11. Disclaimers and Limitations of Liability
11.1. Disclaimers. While it is in Tapyness’ interest to provide you with a great experience when using the Services, there are certain things which we do not promise about them. We try to keep our online Services available, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND TAPYNESS DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REPRESENTATIONS REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
11.2. Exclusion of Certain Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TAPYNESS, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, OR (B) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS OF SERVICE, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF TAPYNESS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF TAPYNESS, OUR AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE LESSER OF: (A) THE AMOUNTS PAID BY YOU TO TAPYNESS FOR USE OF THE SERVICES AT ISSUE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) USD $200.00.
11.4. Indemnification. You agree to indemnify and hold harmless Tapyness and our affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your or your end users’ use of the Services or breach of these Terms of Service, to the extent that such liabilities, damages and costs were caused by you or your end users. You also agree to indemnify and hold harmless Tapyness and our affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim regarding or in connection with your use of the Services in any way which allegedly violates any industry-specific regulation (such as a regulation pertaining to the collection of “Protected Health Information” referenced in the Health Insurance Portability and Accountability Act or student-identifying data referenced in the Family Educational Rights and Privacy Act) without obtaining Tapyness’ prior written agreement. You also agree to indemnify and hold harmless Tapyness and our affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim regarding or in connection with your or your end users’ use of any ancillary product or service, defined as any product or service which you did not procure directly from Tapyness (including but not limited to: tablets, computers, monitors, kiosks, other hardware, electrical components, and installation labor used to access or deliver the Services) even if you procured such ancillary product or service pursuant to a recommendation or referral from Tapyness or from one of our affiliates, officers, agents, or employees.
12. Additional Provisions
12.1. Precedence. To the extent that any conflict exists, these “Additional Provisions” shall take precedence over any other provision(s) of these Terms of Service.
12.2. Interpretations of Words. The use herein of the words “includes”, “including”, “such as”, and similar words, will be deemed not to limit what else might be included. In addition, as used herein, as the context requires, each gender shall include all genders, the singular shall include the plural, and the plural shall include the singular.
12.3. Independent Contractors. The relationship between you and Tapyness is that of independent contractors. Neither you nor Tapyness is a legal partner, employee, or agent of the other.
12.4. Third Party Beneficiaries. There are no third party beneficiaries to these Terms of Service.
12.5. Governing Law. These Terms of Service shall be governed by and interpreted in accordance with the laws of the State of Kansas (without regard to its conflict of laws provisions).
12.6. Jurisdiction. Except if prohibited by applicable law, you agree to the exclusive jurisdiction of the state court located in Douglas County, Kansas and of the federal court located in the District of Kansas over the subject matter of these Terms of Service.
12.7. Assignment. You may not assign these Terms of Service without Tapyness' prior written consent, which may be withheld in Tapyness’ sole discretion. Tapyness may assign these Terms at any time without notice to you.
12.8. Entire Agreement. These Terms of Service constitute the entire agreement between you and Tapyness, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral, concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms of Service, and are void.
12.9. No Waiver. If Tapyness fails to enforce or delays enforcement of any provision under these Terms of Service, such failure or delay shall not be deemed to be a waiver of our right to enforce such provision later.
12.10. Severability. If any provision of these Terms of Service is determined to be unenforceable by a court of competent jurisdiction, that provision shall be deemed to be severed, and the remainder of these Terms of Service shall remain in full effect.
12.11. Survival. The following sections shall survive the termination of these Terms of Service: 1, 3, 8, 9, 11, and 12. In addition, provision 7.2 shall survive the termination of these Terms of Service.