TERMS Of SERVICE
TAD’s goal is to connect communities of people through the use of mobile websites and applications. We make our services (collectively “TAD Service”) available through a network of resellers and representatives using our website, mobile applications, content management system (known as the “App Builder Engine”), our software and other current or future technologies or content (collectively “TAD Technologies”). By establishing a Reseller Account with TAD, or using the TAD Services, or using the TAD Technologies (including the App Builder Engine), you are indicating you have read and agree to these updated terms and conditions of the TAD RESELLER ACCOUNT AGREEMENT.
TAD’s Reseller Account Agreement has been updated August 5, 2013
PLEASE READ CAREFULLY THE TAD RESELLER ACCOUNT AGREEMENT BEFORE ESTABLISHING AN ACCOUNT WITH TAD, USING THE TAD SERVICES OR TAD TECHNOLOGIES OR CREATING AN APPLICATION ON OUR WEBSITE USING OUR APP BUILDER ENGINE. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND TAD. IF YOU CONSENT TO THIS AGREEMENT ON BEHALF OF A BUSINESS OR ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS OR ENTITY TO THIS AGREEMENT AND YOUR CONSENT TO THIS AGREEMENT WILL BE TREATED AS THE CONSENT OF THE BUSINESS. IN THAT EVENT, “YOU” WILL REFER TO THAT BUSINESS OR ENTITY.
2. YOUR RIGHTS AND OBLIGATIONS
A. Your Basic Obligations and License
You agree to comply with all applicable laws and the Terms of Service, as may be amended from time to time with or without advance notice to you On the condition that you comply with all your obligations under the Terms of Service, we grant you a limited, revocable, nonexclusive, non-assignable, non-sublicenseable license and right to 1) access the TAD Services, through a generally available web browser or mobile device, and 2) use the TAD Services to create mobile applications (“Applications”) using the TAD Technologies, all in accordance with these Terms of Service. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interests in TAD, the TAD Services, the TAD Technologies (including our software, website, App Builder Engine, and other technology and content).
To be eligible to establish a Reseller Account and to use the TAD Services and TAD Technologies, you must meet the following criteria and represent and warrant that you: (1) are a natural person 18 years old or older; (2) are not currently restricted from establishing a Reseller Account; (3) will use your real name and only provide accurate information to TAD; (4) have full power and authority to enter into this Agreement and doing so will not violate any other agreement to which you are a party; (5) are responsible for maintaining the security of your Reseller Account, username, and password (TAD cannot and will not be liable for any loss or damage from your failure to comply with this security obligation); (6) are responsible for all content posted and activity that occurs under your Reseller Account (even when content is posted by others who have access to your Reseller Account, including end users); (7) will not use your Reseller Account or the TAD Services or TAD Technologies for illegal or unauthorized purposes; and (8) will not violate any rights of TAD or any third party, including intellectual property rights such as copyright, trademark, or trade secret rights. TAD reserves the right to refuse service to anyone for any reason at anytime.
You agree to indemnify us and hold us harmless for all damages, losses and costs (including, but not limited to, reasonable attorneys’ fees and costs) related to all third party claims, charges, and investigations, caused by (1) your failure to comply with the Terms of Service, (2) the use of content under or through your Reseller Account that violates third party rights or applicable laws, (3) any content included in an Application created by you or under your Reseller Account, and (4) any activity in which you engage while using the TAD Services or TAD Technologies not in compliance with these Terms of Services.
You must provide us with a valid credit card(s) to open and maintain a Reseller Account and you agree to TAD storing your payment information. You agree to pay all our fees (including, without limitation, monthly and development fees) as they become due, and to reimburse us for all collection costs and interest for any overdue amounts. You grant us permission to charge any credit card(s) associated with your Reseller Account for all fees incurred, when due. Failure to pay (and maintain a valid credit card associated with your Reseller Account) may result in the termination of your Reseller Account. Generally, your obligation to pay TAD’s fees continues through the end of the month during which you cancel your Account. However, if you engage TAD to perform development services, or become a sponsor or referral, your cancellation rights and obligation to pay sponsorship fees, development fees, monthly fees, and referral fees will be governed by the separate agreement(s) you enter into with TAD for those development services, sponsorship obligations, or referral opportunities. There will be no refunds or credits for setup fees, partial months of service, upgrade/downgrade refunds, or refunds for months unused with an open account. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and you are responsible for payment of all such amounts, excluding only Federal or state income taxes. We do not make refunds for lack of usage or dissatisfaction with the TAD Services, TAD Technologies, or TAD sponsorship/referral program. TAD will use commercially reasonable efforts to have any Application you submit approved by the appropriate mobile platform provider, however, although there is a high probability of approval, we do not and cannot guarantee acceptance. If you require a printed invoice for your transaction with us, please contact our Customer Support.
E. Notifications and Service Messages
For purposes of service messages and notices about the TAD Services or TAD Technologies, notice will consist of an email from TAD to an email address associated with your Reseller Account or a notice prominently displayed on the TAD website, even if we have other contact information. You also agree that TAD may communicate with you through your Reseller Account or through other means including email, mobile number, telephone, or delivery services including the postal service. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive critical information about the Reseller Services.
F. Removal of Content
TAD, in its sole discretion, may deactivate your Reseller Account, remove content from an Application created by you (or associated with your Reseller Account), or “take down” any published Application if the content in any Application associated with your Reseller Account violates the Terms of Service or others’ intellectual property rights.
3. Our Rights & Obligations
A. Services Availability
For as long as TAD continues to offer the TAD Services and TAD Technologies, TAD shall provide and seek to update, improve and expand the TAD Services and TAD Technologies. As a result, you are entitled to access the TAD Services and TAD Technologies as they may exist and be available on any given day and we have no other obligations, except as expressly stated in this Agreement. We may modify, replace, refuse access to, suspend or discontinue the TAD Services or TAD Technologies, partially or entirely, or change and modify prices prospectively for all or part of the TAD Services or TAD Technologies for you in our sole discretion. TAD may, from time to time, issue an update to the TAD Technologies (including the software underlying our application or content management system), which may add, modify, and/or remove features from the TAD Technology. These updates may be pushed out automatically with little or no notice, although TAD will take reasonable steps to notify you in advance of an upcoming update, including details on what that update includes. All of these changes shall be effective upon being directly communicated to you or posted on our website, unless otherwise noted. TAD further reserves the right to withhold, remove or discard any content within your Reseller Account or an application associated with your Reseller Account, with or without notice, if deemed by TAD to be contrary to the Terms of Service. For avoidance of doubt, TAD has no obligation to store, maintain or provide you a copy of any content that you or your end users provide when using the TAD Services.
B. Third Party Sites and Developers
C. Disclosure of User Information
D. Intellectual Property Notices
The TAD Services and TAD Technologies include the copyrights and Intellectual property rights of TAD and except for the limited license granted to you in Section 2. A., TAD reserves all of its intellectual property rights in the TAD Services and TAD Technologies. ,The TAD logos and other TAD trademarks, servicemarks, graphics, and logos used in connection with TAD are servicemarks or registered servicemarks of TAD. This Agreement does not grant you any right or license with respect to any such trademarks and logos.
E. Use of Content
TAD claims no intellectual property right over the material you provide to the TAD Services. TAD does not pre-screen content and your materials uploaded remain yours. However, by posting, downloading, displaying, performing, transmitting, or otherwise distributing user content using the TAD Services, or TAD Technologies you are granting us a license to use user content in connection with the operation of TAD, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat user content. You will not be compensated for any user content. By posting user content using the TAD Services and TAD Technologies, you warrant and represent that you own the rights to the user content or are otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute user content.
F. Right To Include Advertising
TAD does not currently have a specific plan to include advertising in any Application created under or through your Reseller Account, however, TAD reserves the right to include advertising in any such Application in the future, provided the inclusion of such advertising in an Application is approved by the client for which the Application was created. The revenues derived from such advertising may be shared with any applicable client or you, as may be determined by TAD in connection with the institution of such an advertising program.
WE PROVIDE THE TAD SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE DO NOT PROVIDE ANY EXPRESS WARRANTIES OR REPRESENTATIONS. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TAD AND ITS SUPPLIERS DISCLAIM ANY AND ALL IMPLIED WARRANTIES AND REPRESENTATIONS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. SPECFICALLY, WITHOUT LIMITATION, WE DO NOT WARRANT THAT THE TAD SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, RELIABLE, OR ERROR-FREE AND (OR THAT ANY ERRORS WILL BE CORRECTED). IF YOU ARE DISSATISFIED OR HARMED BY TAD OR ANYTHING RELATED TO TAD, YOU MAY CLOSE YOUR ACCOUNT AND TERMINATE THIS AGREEMENT IN ACCORDANCE WITH SECTION 7 (“TERMINATION”) AND SUCH TERMINATION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY. THE OPERATION OF THE TAD SERVICES MAY BE INTERRUPTED DUE TO MAINTENANCE, UPDATES, OR SYSTEM OR NETWORK FAILURES. TAD DISCLAIMS ALL LIABILITY FOR DAMAGES CAUSED BY ANY SUCH MAINTENANCE, INTERRUPTION OR ERRORS IN FUNCTIONING. FURTHERMORE, TAD DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE TAD SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK, AND FOR ANY OTHER REASON.
TAD USES THIRD PARTY VENDORS AND HOSTING PARTNERS TO PROVIDE THE NECESSARY HARDWARE, SOFTWARE, NETWORKING, STORAGE, AND RELATED TECHNOLOGY REQUIRED TO RUN THE TAD SERVICES. YOU UNDERSTAND THAT THE TECHNICAL PROCESSING AND TRANSMISSION OF THE TAD SERVICES, INCLUDING YOUR CONTENT, MAY BE TRANSFERRED UNENCRYPTED AND INVOLVE (A) TRANSMISSIONS OVER VARIOUS NETWORKS, (B) CHANGES TO CONFORM AND ADAPT TO TECHNICAL REQUIREMENTS OF CONNECTING NETWORKS OR DEVICES.
5. Limitation of Liability
Neither TAD nor any of our affiliated companies, suppliers, employees, shareholders, or directors (“TAD Affiliates”) shall be cumulatively liable for (a) any damages in excess of 12 times the most recent monthly fee that you paid for the TAD Services, if any, or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of (or inability to use) the TAD Services, TAD Technologies, any Platform Applications or any of the content or other materials on, accessed through or downloaded from TAD’s website, TAD’s content management system, or otherwise. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
Apply regardless of whether (1) you base your claim on contract, tort, statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
Not apply to any damage that TAD may cause you intentionally or knowingly in violation of this Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in this Agreement.
Not apply if you have entered into a separate agreement to purchase development services with a separate Limitation of Liability provision that supersedes this section in relation to those development services.
A. Mutual rights of termination
You may terminate this Agreement, for any or no reason, at any time, by notice provided to TAD under Section 8.B. This notice will be effective upon TAD processing your notice. TAD may terminate this Agreement and terminate or suspend your Reseller Account for any reason or no reason, at any time, with or without notice. This cancellation shall be effective immediately or as may be specified in the notice. TAD’s right to terminate your Reseller Account may be different if you have entered into a separate agreement for development services, sponsorship obligations, or referral benefits, in which case that separate agreement with TAD shall take precedence over this Agreement with respect to termination. In such a case TAD’s termination of your Reseller Account will be governed by the development, sponsorship, or referral agreement. Termination of your TAD Reseller Account includes disabling your access to all TAD Services and TAD Technologies and may also bar you from any future use of the TAD Services.
B. Misuse of the Services
TAD may restrict, suspend or terminate your Reseller Account if you misuse the TAD Services or TAD Technologies. Misuse of the TAD Services or TAD Technologies (which TAD may determine in its sole discretion) includes: 1) any use in violation of the Terms of Service, 2) uploading, downloading, displaying, performing, transmitting, or otherwise distributing any information or content in violation of any party’s copyrights, trademark, patents, trade secrets, or other intellectual property or proprietary rights, 3) duplicating copying or reusing any portion of the HTML/CSS or visual design elements of the TAD Services or TAD Technologies; 4) selling, redistributing, or reproducing the TAD Technologies (including TAD’s software); 5) decompiling, reverse engineering, disassembling, or otherwise converting the TAD Technologies to a human perceivable form, 6) modifying, adapting, or hacking the TAD Services or TAD Technologies, or modifying another website so as to falsely imply that it is associated with the TAD Services, or any other TAD service; 7) reproducing, duplicating, copying, selling, reselling, or exploiting any portion of the TAD Services or TAD Technologies, use of the TAD Services or TAD Technologies, or access to the TAD Services or TAD Technologies (without the express written consent of TAD); 8) posting unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable content (as determined in our sole discretion); 9) verbally, physically, or in writing abusing (or threatening) any TAD customer, employee, or affiliate; and 9) transmitting worms or viruses or any code of a destructive nature; 10) transmitting information that you do not have the right to disclose or make available under any law or under contractual or fiduciary relationships (such as insider information, or proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); 11) uploading, posting, hosting, or transmitting unsolicited email, SMS’s, or “spam” messages; or, 12) using the TAD Services or TAD Technologies (or any application created using TAD Services or TAD Technology) to distribute any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation (except as may be permitted by the TAD).
C. Effect of Termination
Upon termination of your Reseller Account, you lose access to the TAD Services and TAD Technologies and all of your content will be deleted from the TAD Services (this information cannot be recovered once your Reseller Account is terminated and deactivated). The terms of this Agreement shall survive any termination, except Section 2A (“Your License”) and Section 4A(“Our Rights and Obligations”).
7. Dispute Resolution
A. Law and Forum for Legal Disputes
This Agreement or any claim, cause of action, or dispute (“claim”) arising out of or related to this Agreement shall be governed by the laws of the State of California. You and TAD agree that all claims arising out of or related to this Agreement must be resolved exclusively by a state or federal court located in Orange County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You and TAD agree to submit to the personal jurisdiction of the courts located within Orange County, California for the purpose of litigating all such claims.
B. Arbitration Option
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator shall be final and may be entered in any court of competent jurisdiction.
8. General Terms
If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
B. Notices and Service of Process
In addition to Section 2.E. (“Notifications and Service Messages”), we may notify you via postings on theappdevelopers.com. You may contact us via email, mail or courier at: 27702 Crown Valley Parkway Suite D-4 #266 Ladera Ranch, CA 92694. Any notices that you provide without compliance with this section shall have no legal effect.
C. Entire Agreement
You agree that this Agreement constitutes the entire, complete and exclusive agreement between you and TAD regarding the TAD Services and TAD Technology and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other TAD development services, agree to act as a sponsor, accept a client referral, or use or purchase third-party content or third party software.
D. Amendments to This Agreement
We reserve the right to modify, supplement, or replace the terms of this Agreement, effective prospectively upon posting at www.theappdevelopers.com or notifying you otherwise. If you do not want to agree to changes to this Agreement, you can terminate this Agreement at any time per Section 6 (Termination).
E. No informal waivers, agreements or representations
Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches. Except as expressly and specifically contemplated by the Agreement, no representations, statements, consents, waivers or other acts or omissions by any TAD Affiliate shall be deemed legally binding on any TAD Affiliate, unless documented in a physical writing hand signed by a duly appointed officer of TAD.
F. No Injunctive Relief
In no event shall you seek or be entitled to rescission, injunctive or other equitable relief, or to enjoin or restrain the operation of the TAD Services, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the TAD Services or any content or other material used or displayed through the TAD Services.
G. Assignment and Delegation
You may not assign or delegate any rights or obligations under the Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under the Agreement, fully or partially without notice to you.
MONTHLY SERVICE FEE AUTHORIZATION
I hereby authorize The App Developers, LLC. to charge the indicated credit card for services provided. I agree that this is a periodic charge that will be made according to my billing cycle, and that to terminate the recurring billing process I must either cancel my account, or arrange for an alternative method of payment. I understand that all account cancellations must be made in writing according to the requirements of the App Development Agreement, which I have read and understand. I will not dispute The App Developers’ recurring billing with my credit card issuer so long as the amount in question was for service rendered prior to my canceling my account in the manner required by the App Development Agreement.
I agree that I will not dispute any charges from The App Developers, LLC. unless I have already attempted to rectify the situation directly with The App Developers, LLC and those attempts have failed.
I authorize The App Developers, LLC. and their sponsoring agency to run an address verification search. This verification process is a security measure to protect me, the client, from illegal fraud against my credit card. I guarantee and warrant that I am the legal cardholder for this credit card, and that I am legally authorized to enter into this recurring billing agreement with The App Developers, LLC.