Tagatoo Beta Software License Agreement (“Agreement”)
Please read before downloading and installing the Tagatoo Application/Software (the “Software”).
The Software (i) is owned by and shall forever remain the property of Tagatoo, Inc. (“Tagatoo”), (ii) is protected by worldwide intellectual property rights, and (iii) is being transferred to the original licensee (“You”) subject to, and in accordance with, the license terms set forth below. Downloading, installing and/or using the Software indicate your acceptance of these terms.
If you do not agree to these terms and conditions, do not download, install or use the Software.
1. License, Fees and Conduct.
1.1 License and Fees. Upon payment to Tagatoo of the required fees, when applies, in accordance with the terms and conditions thereof, Tagatoo shall grant to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited license during the Term (as defined herein) to download, install and use the Software and the Documentation. “Documentation” means all user manuals and other written materials that relate to the Software and other technical information provided to You in written form for use in connection with the Software.
You agree that You will not (i) use the Software in violation of Applicable Law; (ii) interfere with or infringe upon any intellectual or proprietary rights of any other party; (iii) interfere with the ability of other users to access or use the Software; (iv) interfere with or disrupt the Software, or servers or networks connected to the Software; (v) fail to adhere to any requirements, procedures, policies or regulations of networks connected to the Software; (vi) use any means to discover the source code of, or the trade secrets in, the Software; (vii) reproduce, duplicate, copy, distribute, sell, resell, reverse engineer, modify or otherwise exploit for any commercial purposes the Software or any portion thereof; or (viii) allow any third party to access, use or examine the Software, the Documentation or any other information relative thereto.
2. No Transfer of Intellectual Property or Agreement. You acknowledge that the source code for the Software and other trade secrets and intellectual property rights embodied in the Software have not been, will not be, and are not intended to be disclosed to You, nor shall you acquire any right to such intellectual property in and to the Software. Title to, and all intellectual property rights in and to, the Software shall remain solely with Tagatoo. In addition, You shall not assign or sublicense this Agreement (or any of your rights and interests herein).
3. Maintenance; Enhancements.
3.1 Maintenance and Support. Tagatoo will provides Updates (as defined below) and such maintenance and support services for the Software as it considers appropriate during the Term, and will, as it determines in its sole discretion, address such issues as may be required in connection with the use of the Software, provided that such services will not include support for issues resulting from: (i) the malfunction of software not provided by Tagatoo; (ii) the failure of hardware to perform in accordance with its specifications; (iii) your misuse, negligence or fault; (iv) your failure to follow the instructions set forth in the Documentation; or (v) modifications or changes to the Software not performed by Tagatoo. Tagatoo has no obligation, and shall not be liable for failure, to (a) perform any test, revision or repair to the Software requested by You, (b) maintain the Software at any particular level of performance or (c) keep the Software in operating condition. “Updates” mean maintenance releases, improvements and bug fixes or error corrections to the Software or Documentation which are generally available which do not add significant new functionality.
3.2 Enhancements. Tagatoo may from time to time make improvements or modifications in the Software or Documentation (other than an Update) which adds new features and/or functionality (collectively, “Upgrades”) and may but shall have no obligation to provide to You such Upgrades, which will be identified by a change in the Software version number, at a cost to be determined by Tagatoo. The provision by Tagatoo to You of any such Upgrade in the Software will be subject to all covenants and conditions of this Agreement.
4.1 Confidential Information. “Confidential Information” means all information provided or disclosed to You by Tagatoo that You know, have reason to know or should know is considered confidential and proprietary, or is otherwise identified as such prior to disclosure, whether disclosed orally, visually or in writing. “Confidential Information” shall include, but not be limited to, the Software, Documentation, Feedback and Revisions (as such terms are hereinafter defined), components, parts, flow charts, reports, handbooks, programs, data, source code, object code, screen displays, feedback, evaluation results, evaluation reports, test results, test reports, reports of errors, problems, defects or suggestions, specifications, features, techniques, processes, algorithms, inventions, other non-public information or material relating to Tagatoo’s business. All of Tagatoo’s Confidential Information (including, without limitation, all copies, extracts and portions thereof) and any material created by You to the extent it embodies Tagatoo’s Confidential Information shall remain the property of Tagatoo.
4.2 Limitations. Confidential Information shall not include any information which You can demonstrate and document clearly: (i) is or has already become part of the public domain at the time of disclosure, by publication or otherwise, no act or omission by You, (ii) is disclosed to You by a third party who has a right to make such disclosure without any obligation of confidentiality to Tagatoo, (iii) is established by written evidence to have been known to You or in your lawful possession before receipt thereof from Tagatoo.
4.3 Confidentiality Obligations. You agree to maintain in confidence the Tagatoo’s Confidential Information and use the Confidential Information only as necessary to exercise your rights under this Agreement. You shall not publish, copy or disclose in any manner the Confidential Information to any third party without the prior written consent of Tagatoo, and shall take the same degree of care that You use to protect your own confidential and proprietary information of similar nature and importance, but in no event less than reasonable care, to prevent the unauthorized use or the disclosure of such Confidential Information to third parties. You shall return to Tagatoo or destroy (or, as to information stored electronically, render practically inaccessible) any and all Confidential Information, at any time upon Tagatoo’s request.
4.4 Survival. The obligations of confidentiality shall survive the termination or expiration of this Agreement for a period of five years.
4.5 Third Party Breach. A breach of any of the terms of this Agreement by any third party to which disclosure of the Confidential Information has been authorized by Tagatoo shall be deemed a breach by You.
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
5.1 Disclaimer. YOU ACKNOWLEDGE THAT THE SOFTWARE AND THE DOCUMENTATION ARE BEING SUPPLIED TO YOU ON AN “AS IS, WHERE IS” BASIS AND THAT USE OF THE SOFTWARE AND DOCUMENTATION SHALL BE AT YOUR SOLE RISK. YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED IN CONNECTION WITH THE SOFTWARE. SUBJECT TO APPLICABLE LAW, TAGATOO HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND REGARDING THE SOFTWARE AND THE DOCUMENTATION, AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. TAGATOO DOES NOT WARRANT THAT (A) THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, OR (C) DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. In addition, You acknowledge that misuse of the Software and the Documentation may result in unexpected results, loss of data or other unpredictable damage or loss to You.
5.2 Limitation of Liability. SUBJECT TO APPLICABLE LAW, YOU AGREE THAT IN NO EVENT SHALL TAGATOO BE LIABLE (A) FOR DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE TAGATOO APPLICATION/SOFTWARE, THE DOCUMENTATION OR THIS AGREEMENT, AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF TAGATOO OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE TAGATOO APPLICATION/SOFTWARE. IN ANY CASE, IF TAGATOO SHOULD BE, OR BE CLAIMED TO BE, LIABLE FOR ANY DAMAGES WHATSOEVER, THE AMOUNT OF SUCH DAMAGES SHALL BE LIMITED TO THE AMOUNT OF ONE MONTH’S FEE PAID BY YOU OR THE ENTITY TO TAGATOO FOR THE USE OF THE TAGATOO APPLICATION/SOFTWARE.
6. Ownership. You acknowledge and agree that Tagatoo owns all right, title and interest in and to the Tagatoo Application/Software and the Documentation and all Intellectual Property pertaining to Tagatoo Application/Software, (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and You agree not to take any action(s) inconsistent with such ownership interests including, without limitation, any use of the Tagatoo Application/Software or Documentation except as expressly permitted in this Agreement. Except as expressly provided in this Agreement, You do not acquire any rights or licenses under any of Tagatoo’s copyrights, patents, patent applications, trade secrets, trademarks or other intellectual property rights on account of this Agreement or Your performance under this Agreement. All (a) suggestions for correction, change and modification to the Tagatoo Application/Software, evaluation data, evaluations and other feedback (including, but not limited to, quotations of written or oral feedback relating to the Tagatoo Application/Software or the Documentation), information and reports provided to Tagatoo by You (“Feedback”), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by Tagatoo or You relating to or concerning the Tagatoo Application/Software or Documentation and, whether or not conceived or made under this Agreement or in the course of, or as a result of, Your use or performance hereunder (collectively, “Revisions”), are and will remain the property of Tagatoo and You acknowledges and expressly agrees that any contribution in the form of Feedback or Revisions will not give or grant You any right, title or interest in the Tagatoo Application/Software or Documentation or in any such Feedback or Revisions. All Feedback and Revisions will be the sole and exclusive property and Confidential Information of Tagatoo and Tagatoo may use and disclose any such Feedback and Revisions in any manner and for any purpose whatsoever without compensation to You and without retention by You of any proprietary or other claim. You hereby assigns any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that You may have in and to any and all Feedback and Revisions to Tagatoo. Upon request by Tagatoo, You will execute any document, registration or filing required to give effect to the foregoing assignment.
7. Term and Termination.
7.1 Term; Termination: The term of or your License and this Agreement (“Term”) will be for 1 month from the date of your sign-up and download of Tagatoo software, and such Terms shall automatically renew for further periods of 1 month until terminated by notice in writing by You or by Tagatoo. (The date 1 month from sign-up or from the last renewal of the License and this Agreement (whichever is later) shall herein be referred to as the “Renewal Date”) If You have signed up for one of the paid versions of Tagatoo, you hereby authorize Tagatoo to charge your credit card on (or after) each successive Renewal Date for each successive renewal term of your license at the rate published from time to time on the Tagatoo website, which rate may change from time to time at Tagatoo’s discretion. If Tagatoo offers, and You have subscribed to, an annual paid service, the terms described above for monthly terms shall apply to the annual term. Either party may terminate this Agreement upon written notice to the other party at any time and for any reason with effect on the next following Renewal Date. This Agreement may also be terminated immediately if You breach any of the terms or conditions of this Agreement.
7.2 Rights Upon Termination: You agree that, in the event of the expiration or termination of this Agreement for any reason, Your rights to access and use the Tagatoo Application/Software and the Documentation are terminated and You will cease accessing or using the Tagatoo Application/Software and the Documentation. Upon the request of Tagatoo, You will certify in writing to Tagatoo that all copies of the Tagatoo Application/Software, Documentation and Confidential Information have been returned to Tagatoo or destroyed. Tagatoo reserves the right without notice to disable (including remotely) the Tagatoo Application/Software in the event of a breach of this Agreement by You or at any time from and after the expiration or termination of this Agreement.
7.3 Surviving Sections: The rights and obligation of the parties under this Section 7.3, as well as Sections 2, 4, 5, 6, 7.2, 8, 10, 11 and 12 will survive the expiration or termination of this Agreement.
8. Export Laws. You are granted the rights to access and use the Software and the Documentation via the site where the Software may be accessed and will not export or re-export, directly or indirectly (including via remote access), the Software, Documentation and/or other information or materials provided to You by Tagatoo hereunder, to any other country without first obtaining such license or approval. It will be Your responsibility to comply, and You agree to comply at Your sole expense, with all export laws and regulations applicable to You. The Software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively; as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the Software and Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
9. Taxes. You are solely responsible for any and all federal, state and local taxes, duties, fees or other charges of any nature (including any sales, use or withholding taxes) imposed in connection with this Agreement or your use of the Software and Documentation.
10. Notices. All communications under this Agreement will be in writing. Any notice, request, instruction, or other document to be given by a party under this Agreement shall be delivered to the other party either: (i) in person; (ii) by one day express courier service to the address specified in this Agreement; (iii) by first class mail to the address specified in this Agreement, certified or registered, return receipt requested; or (iv) by written telecommunication, including email, in case of notice to You, to the e-mail address provide by You at the time of signing up for Tagatoo Application/Software or thereafter edited on Your member/user account webpage. It is your responsibility to keep your address and e-mail address on Your member/user account webpage current.
11. Remedies. The parties acknowledge and agree that a breach by Your or your failure to comply with any term or requirement of this Agreement will cause not only financial harm, but also irreparable harm to Tagatoo and that money damages will not provide an adequate remedy. In such event, in addition to any other rights and remedies it may have hereunder or otherwise at law or under statute or otherwise Tagatoo shall be entitled to pursue injunctive or other equitable relief without prejudice to any other rights and remedies that Tagatoo may have for a breach of this Agreement.
12. Contact. You agree that Tagatoo may contact you from time to time to inform you of updates to your account and/or the services provided hereunder.