In exchange for the mutual promises contained herein, and for good and valuable consideration the sufficiency and receipt of which is hereby acknowledged, Tadpull and Customer agree to be legally bound as follows:
(a) Services. This Agreement governs your, and your authorized employees and independent contractor end users’, (collectively “Authorized Users”) access and use of Tadpull’s customer, inventory analytics and marketing cloud services technology (collectively, “Services”). The specific Services are as follows:
(b) Additional Services. Any additional Services, other than those specified above, will require a change order and may result in additional fees
(c) Availability. Tadpull will use commercially reasonable efforts to ensure that the Services are available twenty-four hours a day, seven days a week. However, there will be occasions when the Services will be interrupted or delayed for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment or failure of third party services or technology on which the Services depend. Tadpull will take reasonable steps to minimize such disruption where it is within Tadpull’s reasonable control, however, Tadpull will not be liable in any event to you or any other party for any suspension, modification, discontinuance or lack of availability of the Services, your Customer Data or other content.
(d) Professional Services. Tadpull may provide certain mutually agreed professional services under a Professional Services Addendum, as specified in a Service Order. Services will include the offering of any materials displayed or performed via the Services and related features (including text, data, software, graphics, photographs, images, illustrations, audio clips and video clips made available by Tadpull, also known as “Content”).
(a) Ownership. You understand and agree that Tadpull is the sole and exclusive owner of all intellectual property used in and created under the terms of this Agreement, including, but not limited to, all right, title, and interest in and to the Services and Content and all trademarks, copyrights, and patents, whether registered or unregistered, and all trade secrets, ideas, designs, business methods, creative works, processes, and data contained therein (“Intellectual Property”). In the performance of the Services under the terms of this Agreement, Tadpull may use its Intellectual Property in the creation of work product, which may include custom design, programming, modules, plugins, or integrations (“Work Product”). You understand and agree that Tadpull remains the owner of all right, title, and interest in and to both its Intellectual Property and any Work Product created for you under the terms of this Agreement.
(b) Works for Hire. You understand and agree that you will promptly inform Tadpull of the full conception of and details of any and all inventions, discoveries, improvements, innovations, and ideas, whether or not patentable or protectable, that you conceive of, complete, or reduces to practice that (a) relate to Tadpull’s Intellectual Property or (b) result from work done by you using Tadpull’s equipment, facilities, materials, trade secrets, or personnel. You hereby agree that all inventions and discoveries that you might solely or jointly conceive, make, invent, or create during your contractual relationship with Tadpull and that specifically relate to Tadpull’s Intellectual Property are the absolute property of Tadpull and are hereby assigned to Tadpull, and you hereby further agree to assign to Tadpull your entire right, title, and interest in and to all patent applications and any resulting patents, including those applied for or issued in foreign countries, that disclose and/or claim such inventions and discoveries by you that specifically relate to Tadpull’s Intellectual Property. You agree to execute any and all documents necessary to prepare any papers that Tadpull may consider necessary or helpful to obtain or maintain any patents, copyrights, trademarks, or other proprietary rights in its Intellectual Property and will do so at no charge to Tadpull.
(c) Access. Subject to the terms and conditions of this Agreement, Tadpull grants to you and your Authorized Users a non-exclusive, limited, revocable, worldwide, nontransferable right and license (without right to sublicense) to access and use the Services, solely for your and your Authorized Users’ internal business purposes.
(d) Restrictions. You may not (except as provided in this Section of this Agreement) modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content, software, materials, or Services in whole or in part. Nor will you attempt to circumvent any of Tadpull’s technical measures, or decompile, reverse engineer, or disassemble the Services.
(e) No Further Rights. Except as expressly stated in this Agreement, under no circumstances will a party obtain any rights to any IP, technology, know-how, patents, or products of the other party.
(a) Infringement. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Tadpull has a policy of terminating, in appropriate circumstances and in its sole discretion, account holders who are deemed to be repeat infringers. Tadpull may also terminate the accounts of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
(b) Notification. If you think anyone has posted material to Services that violates any copyrights or other intellectual property right, you can notify Tadpull at privacy@tadpull. Upon receipt of such complaint, we may take whatever action, in our sole discretion, we deem appropriate, in accordance with applicable law (including with the safe harbor provisions of the Digital Millennium Copyright Act (DMCA)).
(c) Notification Requirements. Please see 17 U.S.C. §512(c)(3) for notification requirements. Tadpull may give notice of a claim of copyright infringement to users by means of a general notice, electronic mail or by written communication.
(a) Customer Data. For any data you provide to Tadpull, including data regarding your end users (including any personal data contained therein) (“Customer Data”), you grant Tadpull a non-exclusive, worldwide, royalty-free, transferable license to use, modify, reproduce, and display such Customer Data (including all related intellectual property rights) to provide and improve the Services. You represent and warrant that you: (i) have the right to grant Tadpull the rights set forth above; (ii) own all right title and interest or possess sufficient license rights to Customer Data to permit the use contemplated under this Agreement; and (iii) you will not contribute any Customer Data that: (a) infringes any intellectual property right, proprietary right, or the privacy or publicity rights of another, is libelous, defamatory, obscene, pornographic, harassing, hateful, offensive or otherwise violates any law or right of any third party; (b) contains a virus, trojan horse, worm, or other computer programming routine or engine intended to detrimentally interfere with any system, data or information; or (c) causes damage to the systems of Tadpull or its users in any way.
You bear all responsibility and liability for the accuracy, completeness, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right of the Customer Data and Tadpull’s access, possession and use as permitted herein.
(b) Communications. You shall comply with all applicable laws and regulations applicable to your use of the Services, including Customer Communications (emails, SMS messages, online ad platforms and website and Customer Marketing Content, which laws and regulations shall include but not be limited to (a) any applicable laws that govern online promotions, offers, gift cards, coupons, and/or gift certificates, data privacy and protection, intellectual property, the sending of electronic marketing messages and the sending of SMS and/or MMS text messages and (b) laws and regulations that apply to commerce, in each jurisdiction in which Customer will be sending marketing communications to a resident of the jurisdiction. Customer acknowledges and agrees that Tadpull (1) does not control or monitor Customer Communications, or guarantee the accuracy, integrity, security or quality of such Customer Communications and (2) is not responsible for obtaining any necessary consents or permissions from recipients of Customer Communications. Upon request, Customer shall provide reasonable proof of compliance with the provisions set forth in this Section and Tadpull shall have no obligation to provide Services where Tadpull reasonably believes that Customer has not so complied.
(c) Privacy. If you disclose Customer Data which includes personally identifiable information or information that could be used to identify an individual, you represent and warrant that: (i) you comply with all applicable laws relating to the collection, use, and disclosure of such personal data including, but not limited to, the General Data Protection Regulation and California’s Shine the Light Law and Consumer Privacy Act; (ii) you maintain and abide by a privacy policy that complies with all applicable laws; (iii) you have made all required notifications and obtained all required consents and authorizations from your end users relating to the disclosure of end user personal data to a provider like Tadpull; and (iv) you are responsible for assessing whether or not Tadpull’s Services are appropriate for you with respect to your obligations under any applicable laws or regulations, including the EU Data Protection Laws. If you are located in the European Union Economic Area (EEA) or Switzerland, or transmit data to end users in the EEA or Switzerland, you further represent and warrant that: (a) you have read and agree to the terms of the Data Processing Addendum which is fully incorporated herein by reference (currently available at https://www.tadpull.com/dpa/); (b) you will comply with all applicable laws and regulations that apply to the countries to which you transmit data through your use of the Services; and (c) with respect to specific persons, you have the requisite permission to use the Services for the purpose of receiving and processing data on any such person’s behalf, and that you will collect, store, transfer, and use all data relating to specific persons in compliance with all applicable laws and regulations. You further acknowledge and agree that your indemnity obligation under the “Indemnity” section below applies to your disclosure of personal data under this Agreement.
(d) Security. At all times during the term of this Agreement, Tadpull will maintain commercially appropriate technical and organizational measures in accordance with industry standards to protect Customer Data against unauthorized or unlawful transfer, processing or alteration and against accidental or unauthorized access, loss, damage, processing, use, transfer or destruction. Tadpull reserves the right to remove any Customer Data from the Services at any time, for any reason or for no reason at all, though Tadpull will make commercially reasonable efforts to alert you of such actions as soon as practicable. Tadpull may, but is not obligated to, monitor Customer Data and remove any content or prohibit any use of the Services, including by refusing to send email to your end users, if Tadpull believes in its sole discretion such content or use may be (or is alleged to be) in violation of this Agreement or any applicable laws or may impact delivery. All information transmitted through the Services is the sole responsibility of the party from whom such information originated. Tadpull does not assume liability for any Customer Data.
(e) Privacy. Please read Tadpull’s Privacy Policy (currently available at https://www.tadpull.com/privacy-policy/), which along with the Exhibits and any additional terms you agree to pursuant to this Agreement or by turning on specific features, are included as part of this Agreement. We will notify you of any updates to the Privacy Policy, and if you do not agree to any such updates, you may close your account and terminate your use of the Services at any time.
(a) Definition. “Confidential Information” means all non-public information that a party designates in writing or orally as being confidential, or which under the circumstances of disclosure ought to be treated as confidential, including the terms and conditions of this Agreement; a party’s source code; a party’s business policies or practices; and a party’s customers or suppliers. Each party agrees: (i) to hold the Confidential Information of the other party in strict confidence; (ii) not to disclose the other party’s Confidential Information to any third party except as authorized under this Agreement; (iii) to use Confidential Information only for the purpose(s) for which it was originally disclosed and for fulfilling its obligations under this Agreement; and (iv) to return or destroy the other party’s Confidential Information upon request at the termination or expiration of the Agreement. Confidential Information does not include information that: (A) is or becomes known to the public through no fault of the receiving party; (B) is known to the receiving party prior to its receipt or becomes known to the receiving party by disclosure from a third party who has a lawful right to disclose the information; (C) was independently developed by the receiving party, as reasonably established by said party; or (iv) is authorized to be disclosed by prior written consent of the disclosing party.
(b) Disclosure. Neither party has a proprietary interest in the Confidential Information of the other party. Tadpull, however, may use and disclose any knowledge and ideas acquired in connection with the Services to the extent they are retained in the unaided memory of its personnel.
(c) Return or Destruction of Confidential Information. Unless otherwise required by applicable law, within ninety (90) days of the termination of this Agreement for any reason, a receiving party must: (i) cease the use of all Confidential Information of or relating to the disclosing party (or any affiliate of the disclosing party); (ii) delete, and upon request certify that it has deleted, all documents and other materials in its possession or control containing, recording, or constituting that Confidential Information.
(d) Feedback. Tadpull will have a royalty-free, worldwide, perpetual license to use or incorporate into the Services any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer relating to the Services.
(e) Publicity. Except as expressly provided herein, neither party may issue press releases or other publicity related to the parties’ relationship under this Agreement without prior written approval. The parties may indicate the nature of their relationship on their respective websites and marketing materials, utilizing the other party’s trademarks, service marks, and logos. Neither party may use the other party’s marks in a manner that disparages the other party (or its products or services) or violates or infringes any of the other party’s intellectual property rights. No use of a party’s trademark by the other party pursuant to this Agreement will give that other party any rights in the trademark. All use of a party’s marks will inure solely to the providing party’s benefit.
(a) Fees. Customer will pay Tadpull the fees set forth in the software serviced agreement.
(b) Fee Increases. Tadpull will provide Customer fourteen (14) days advance notice for any increase in fees. Any increases to the Fees shall apply at the beginning of the Customer’s following Term. Customer’s continued use of the Services after a Fee increase will constitute Customer’s agreement to the increase in Fees.
(c) Payment. All invoices will be due thirty (30) days after the invoice date. Fees are non-cancellable and non-refundable. Should any uncontested invoice go fifteen (15) days past the due date, Tadpull may cease all associated Services until payment is received in full. In the event you pay by credit card, you expressly agree that you will not charge back any payments made by credit card without the prior written consent of Tadpull. You understand and agree that you will be responsible for paying any costs or fees incurred by Tadpull as a result of any credit card chargebacks initiated by you.
(d) Expenses. Unless mutually agreed, Tadpull will bear all its own expenses incurred in providing Services to Customer.
(e) Taxes. Customer will pay or reimburse Tadpull for all sales, use, transfer, privilege, excise, and all other taxes and all duties levied by reason of the performance by Tadpull under this Agreement; excluding, however, taxes measured by Tadpull’s profits, its overall sales, employment and similar taxes”.
(a) You may not post or transmit, or cause to be posted or transmitted, any communication designed or intended to obtain password, account, or private information from any Tadpull user. Tadpull will not be liable for any failures in the Services or other problems which are related to your Customer Data or any equipment or service outside of Tadpull’s facilities or control. You will not use any part of the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store material that is deemed threatening or obscene, or engage in any kind of illegal activity. You will use the Services only in compliance with all applicable laws (including policies and laws related to spamming, privacy, intellectual property, consumer and child protection, obscenity, or defamation). You are responsible for determining whether the Services are suitable for you to use in light of any regulations like HIPAA, EU Data Protection Laws, or other laws.
(b) Nonsolicitation and Nonhiring of Tadpull Employees. For purposes of this section, "Tadpull Employee" is defined as a Tadpull employee with direct knowledge of and access to Tadpull trade secrets, proprietary information, or confidential information. Customer agrees that during the Term of this Agreement and for a period of twelve (12) months after Termination, Customer shall not, except with the prior written consent of Tadpull, which shall not be unreasonably withheld, (i) directly or indirectly solicit or encourage a Tadpull Employee to terminate their employment or contractual relationship with Tadpull, enter into employment or a service arrangement with a Tadpull Employee, facilitate such employment or arrangement, or otherwise interfere with the performance of any Tadpull Employee's obligations or responsibilities to Tadpull, or (ii) hire any current or former Tadpull Employee as an employee of Contractor. With respect to former Tadpull Employees, this Section 7. shall not apply if a former Tadpull Employee ceased all work for Company more than twelve (12) months before the date of encouragement or hiring.
(a) Each party represents and warrants that it has the full power and authority to enter into this Agreement and perform its obligations under this Agreement.
(b) The Services may contain, or direct you to sites containing, information that some people may find offensive or inappropriate. Tadpull makes no representations concerning any content contained in or accessed through the Services, and Tadpull will not be responsible or liable for the accuracy, copyright compliance, legality or decency of material contained in or accessed through the Services. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
(c) TO THE FULLEST EXTENT ALLOWED BY LAW, TADPULL DISCLAIMS ANY LIABILITY OR RESPONSIBILITY FOR THE ACCURACY, RELIABILITY, AVAILABILITY, COMPLETENESS, LEGALITY OR OPERABILITY OF THE MATERIAL PROVIDED THROUGH THE SERVICES. BY USING THE SERVICES, YOU ACKNOWLEDGE THAT TADPULL IS NOT RESPONSIBLE OR LIABLE FOR ANY HARM RESULTING FROM: (i) USE OF THE SERVICES; (ii) DOWNLOADING INFORMATION CONTAINED ON THE SERVICES; (iii) UNAUTHORIZED DISCLOSURE OF IMAGES, INFORMATION OR DATA THROUGH THE SERVICES; AND (iv) THE INABILITY TO ACCESS OR RETRIEVE ANY CUSTOMER DATA FROM THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR ANY SIMILAR DESTRUCTIVE PROGRAM.
(a) Users of Tadpull may gain access from the Services to third party sites on the Internet. Third party sites or services are not within the supervision or control of Tadpull. Tadpull makes no representations or warranties about any third-party site or resource and does not endorse the products or services offered by third parties. Unless otherwise noted herein, Tadpull disclaims all responsibility and liability for content on third party websites. Third party providers of ancillary services may require your agreement to additional or different license or other terms prior to your use or access of their sites or services. Any such agreement will not in any way modify your Agreement here with Tadpull.
(b)Shopify and BigCommerce Platforms. Shopify and BigCommerce are not liable for any fault in the Services or any harm that may result from its installation or use except where expressly stated by Shopify and BigCommerce in their terms, which can be reviewed here: www.shopify.com/legal/api-terms; www.bigcommerce.com/terms/. Shopify and BigCommerce cannot provide assistance with the installation or use of the Services. You are solely responsible for any liability which may arise from your access to or use of the Services, including: (A) the development, use, marketing or distribution of or access to the Services, including support of the Services; or (B) your access, use, distribution or storage of customer or merchant data.
(a) As a condition to using Services, you and your Authorized Users may be required to supply Tadpull with certain registration information. You will provide Tadpull with accurate, complete, and updated registration information. Tadpull reserves the right to refuse registration of or cancel an account in its discretion. Neither you nor your Authorized Users may share your password or login credentials with anyone. You are responsible for: (i) maintaining the confidentiality of such credentials, and (ii) notifying us if you would like to suspend or terminate the account of any Authorized User.
(b) Each of your Authorized Users must create their own account, subject to any applicable seat limits and such users’ compliance with this Agreement. Both you and the Authorized User are responsible for all activity under such accounts. You will immediately notify us of any suspected, unauthorized use of your or an Authorized User’s account or any other breach of security you become aware of. Tadpull has the right to suspend or terminate any Authorized User account due to the provision of false or inaccurate data. Tadpull may further suspend access to the Services in the event Tadpull reasonably believes such action is necessary to protect the security or integrity of the Service or any data thereon; Tadpull will provide advanced written notice of such suspension, if reasonably practicable.
(a) By Customer. Customer agrees to indemnify and hold harmless Tadpull (and its affiliates (including Shopify and BigCommerce), subsidiaries, shareholders, officers, directors, employees, contractors, agents and representatives, (collectively “Indemnified Parties”) against any cost, claim, liability or expense any of the Tadpull Indemnified Parties incur arising out of or related to: (i) the use or misuse of the Services; (ii) the infringement of a third party’s copyright, trademark, patent, trade secret, or other intellectual property or proprietary rights; (iii) Tadpull’s use of Customer Data provided by you; or (iv) breach by you of any representation or warranty set forth in this Agreement. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, contractors, and agents. If any action is or will be brought against Tadpull with respect to any allegation for which indemnity may be sought, you will provide reasonable cooperation to Tadpull, at your expense, to defend against or settle any such claim. Your obligation to defend Tadpull under the terms of this Agreement will not provide you with the ability to control Tadpull’s defense, and Tadpull reserves the right to control its defense and select its counsel.
(b) By Tadpull. Tadpull agrees to indemnify and hold harmless Customer Indemnified Parties against any cost, claim, liability or expense any of the Customer Indemnified Parties incur as a direct result of: (i) Tadpull’s violation or infringement of any third party rights (including any rights of privacy or publicity); and (ii) Tadpull’s breach of its confidentiality obligations or applicable law. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, contractors, and agents. If any action is or will be brought against you with respect to any allegation for which indemnity may be sought, Tadpull will provide reasonable cooperation to you, at Tadpull’s expense, to defend against or settle any such claim. Tadpull’s obligation to defend you under the terms of this Agreement will not provide Tadpull with the ability to control your defense, and you reserve the right to control your defense and select your counsel.
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER ENTITY, INCLUDING SHOPIFY AND BIGCOMMERCE, FOR ANY LOSS OF PROFITS OR INCOME, OR OTHER CONSEQUENTIAL, COMPENSATORY, PUNITIVE, EXEMPLARY, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, ARISING OUT OF OR RELATED TO ERRORS OR OMISSIONS, THE AVAILABITY OF THE SERVICES, OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT TADPULL’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE SERVICES OR $1,000, WHICHEVER IS LESS.
(a) Term. The Term of this Agreement begins on the Effective Date and continues for two (2) years, and will automatically renew for additional one year terms, unless: (i) either party provides written notice of termination no less than ninety (90) days prior to the expiration of the then-current term, or (ii) terminated earlier according to its terms (collectively, “Term”).
(b) Termination for Cause. Either party may terminate this Agreement upon thirty (30) days written notice in the event of a material breach by the other party of this Agreement, provided that, such breach remains uncured at the end of such thirty (30) day period.
(c) Effect of Termination. If Tadpull terminates for cause (Section 13(a)), Customer will pay for a pro rata portion of fees for Services performed as of the effective date of termination.
(d) Survival. All terms that must survive termination in order to have their customary effect, including terms related to confidentiality, liability, and indemnification, will survive termination or expiration of this Agreement.
(a) Relationship. Tadpull’s relationship with Customer is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship.
(b) Entire Agreement; Counterparts. This Agreement, including those other policies, addenda, and agreements specifically referenced to and incorporated herein, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered will be taken to be an original; but such counterparts will together constitute one and the same document.
(c) Notices. Any notice or other communications required or permitted under this Agreement will be valid only if in writing and will be delivered by e-mail. Notice will be sent to the addresses set forth above.
(d) Governing Law; Venue. This Agreement will be governed in all respects by the laws of the United States of America and by the laws of the State of Montana, without regard to its conflicts of laws principles. Customer irrevocably submits to exclusive venue and exclusive personal jurisdiction in the state courts in Gallatin County or federal courts of Lewis and Clark County, Montana, for any dispute arising out of this Agreement, and waives all objections to exclusive jurisdiction and venue of such courts.
(e) No waiver. The failure of either party to exercise in any respect any right provided for herein will not be deemed a waiver of any further rights hereunder. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
(f) Assignment. Except as set forth herein, Customer may not assign, transfer or sublicense this Agreement without Company's prior, written consent. Upon 30-days' written notice, Company may transfer, assign or delegate this Agreement and any or all of its rights and obligations to its successor-in-interest in the event of an acquisition, merger, or change of control or to an entity controlling, controlled by or under common control with Company. Notwithstanding anything to the contrary herein, Customer shall have the right to terminate this Agreement and any Service Order in the event Tadpull makes any assignment or delegates any obligation or duty to a competitor of Customer.
April 12, 2022
