TAPATALK GROUPS TERMS OF USE

 

MASTER TERMS AND CONDITIONS

1.              Introduction

 

Tapatalk, Inc. (“Tapatalk”, “us”, “we” or “our”), a corporation located in the United States of America, provides you access to our products and services (each, a “Service”) for your use pursuant to these Master Terms and Conditions (“Master Terms and Conditions”), the terms and conditions, if any, of the Service in which you participate (“Service Terms”), and the pricing and other terms and conditions within the user interface, platform, or forum.

 

2.              Acceptance of Terms

 

IMPORTANT.  PLEASE READ THESE TAPATALK GROUPS TERMS OF SERVICE, WHICH INCLUDE ALL POLICIES, GUIDELINES, RULES, AND/OR REGULATIONS REFERRED OR LINKED TO HEREIN THE TAPATALK GROUPS TERMS OF SERVICE (collectively, “TOS” or “Agreement”) CAREFULLY BEFORE USING THE PRODUCTS AND SERVICES MADE AVAILABLE BY TAPATALK ON THE TAPATALK WEBSITE, OTHER WEBSITES TAPATALK OWNS OR OPERATES, AND TAPATALK’S APPLICATION (COLLECTIVELY, “Services”).  BY USING THE SERVICES, YOU (“you” or “your”) ACKNOWLEDGE THAT YOU HAVE READ THE TOS, YOU UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE TOS AND COMPLY WITH ALL APPLICABLE LAWS, RULES, REGULATIONS, AND POLICIES ASSOCIATED WITH YOUR USE OF THE SERVICES.  IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS HEREIN, YOU ARE NOT PERMITTED AND ARE NOT AUTHORIZED TO USE THE SERVICES.

 

3.              Class Action Waiver

 

YOU AGREE THAT ANY CLAIM AGAINST THE TAPATALK ENTITIES (defined in Section 20, below) SHALL BE ADJUDICATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY PROCEEDING WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. AS SUCH, YOU FURTHER AGREE THAT YOU WAIVE ANY RIGHT TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN A CLASS ACTION SUIT AGAINST ANY OF THE TAPATALK ENTITIES. Accordingly, you may not be a representative of other potential claimants or a class of potential claimants in any dispute, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding.

 

4.              Grant of License

Tapatalk grants you a limited, non-exclusive, non-transferable license to use the Services subject to, and conditioned upon, your compliance with the terms and conditions of the TOS, the posted policies, guidelines, or rules regarding the Services, and all applicable local, state, federal, and international laws, statutes, directives, ordinances, treaties, rules, and regulations (collectively, “Laws”).  All such guidelines or rules are hereby incorporated by reference into the TOS.  In the event that you violate or do not follow the TOS, policies, guidelines, rules, or Laws, we may immediately terminate your rights under the TOS.  Tapatalk may also offer premium tier services for which Tapatalk charges a fee that are governed by different terms of service, which will either be posted on the relevant service to which they apply or set forth below under Additional Terms for Services.

In order to provide the Services, and to help users find websites, chat rooms, forums, message boards, blogs, RSS Feeds, and/or news groups hosted through the Services (“Site”), as a Site owner/operator, you grant the Tapatalk Entities a non-exclusive, royalty-free, worldwide, sublicensable right and license to:  (i) access, index, and cache any part of the publicly available portions of your Site, by any means, including web spiders and/or crawlers; (ii) use, copy, adapt, reformat, and recompile any part of our index or cache of your Site(s) for public performance, public display, and distribution through Tapatalk’s application; and (iii) place cookies, web beacons, pixels, cross-device identifiers, locally stored objects, clear gifs, or other similar technologies for purposes of monitoring and/or targeting users on your Site in connection with the Services.  

5.              Account Eligibility; Registration Obligations

In consideration of your use of the Services, you represent, warrant, and covenant that you are of legal age to form a binding contract with Tapatalk and are not a person barred from receiving the Services under the laws of the United States or other applicable jurisdiction. If you accept the TOS by using the Services, and use the Services on behalf of a company, organization, government, or other entity, you represent and warrant that you are authorized to do so.    

In order to access certain features of the Services, you may be required to register.  Accordingly, you also agree to:  (i) provide true, accurate, current and complete information about yourself as prompted by the Tapatalk's registration form (“Registration Data”), and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current, incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, we may suspend or terminate your account and refuse to provide the Services (or any portion thereof) to you.  

6.              Privacy Policy

 

Registration Data and certain other information about you are subject to our applicable privacy policy. For more information, see the Tapatalk Privacy Policy located at https://www.tapatalk.com/privacy-policy.php. You understand and agree that by using the Services, you consent to the collection and use of such information as set forth in the Privacy Policy, including the transfer of this information to and within the United States and/or other countries for storage, processing and use by Tapatalk and the Tapatalk Entities.  We encourage you to frequently check the Privacy Policy for changes.

 

 

 

7.              Changes to the TOS and Privacy Policy

 

Internet technology, Laws, and features of the Services may change from time-to-time. Accordingly, and in an effort to improve the Services, we reserve the right to change the TOS and our Privacy Policy at any time upon notice to you.  We may provide such notice by posting a new version or a change notice on our website, or in an updated version of the Services. It is your responsibility to review the TOS and the Privacy Policy periodically. If at any time, you find the TOS and/or the Privacy Policy unacceptable, you must immediately stop using the Services. Unless we obtain your express consent, any revised Privacy Policy will apply only to information collected by us after such time as the revised Privacy Policy takes effect, and not to the information collected under the earlier Privacy Policy.

 

8.              Advertisements; Affiliate Links; Third Party Websites

The Services may include advertisements, which may be targeted to users of your Site, the content or information on the Services, including your Site, or other information. The Services may also include paid affiliate links to third-party websites. The types and extent of advertising and affiliate links utilized by Tapatalk on the Services are subject to change. In consideration for Tapatalk granting you access to and use of the Services, you agree that Tapatalk and its third party providers and partners may place such advertising and affiliate links on the Services. The Services may contain links to other websites that are neither provided through the Services nor owned or controlled by Tapatalk (“Third Party Sites”), as well as articles, photographs, text, graphics, pictures, designs, sound, video, information, and other content or items belonging to or originating from third parties (“Third Party Content”). We are not responsible for any Third Party Sites or Third Party Content accessed through or in connection with the Services. In addition, we do not investigate, monitor, or check the Third Party Sites and Third Party Content, including for accuracy, appropriateness, or completeness. If you access Third Party Sites or use Third Party Content, you do so at your own risk and you should be aware that our TOS, policies, and rules are no longer applicable. As such, you should review the applicable third party's terms of service, policies, and rules, including privacy and data gathering practices of any website to which you navigate.

9.              Donations; Gold Points

You have the option to make a donation to a Site within Tapatalk Groups (e.g., https://www.tapatalk.com/groups/*name of group*).  If you make a donation, you will receive a subscriber badge next to your username in the Site to which you made a donation.  The donation can be a one-time donation, or a recurring monthly donation.  Once the payment is processed, it is non-refundable and our property.  Any dispute about a donation must be submitted to us in writing within 15 days of making the donation, otherwise you waive such dispute

For recurring donations, you must maintain valid and accurate payment information with us such as credit card or PayPal account information (collectively, “Payment Method”), which we will use to process your monthly recurring donations. We do not knowingly accept debit cards, and you should not provide a debit card as a form of payment.  The terms of your Payment Method are determined by the agreement(s) between you and your card issuer or online payment platform.  You agree to keep your payment information on file with us current (such as your address, card number, and expiration date), and you also authorize us to update your payment information with data we obtain from the issuer of your credit card or charge card, from MasterCard, Visa, Discover, or American Express.  In addition, you authorize us to retain your payment information until such time as you revoke your authorization by logging into the applicable Site within Tapatalk Groups and cancelling the subscription in your profile setting.  Your recurring payments will be cancelled within one (1) business day of your request.  Your revocation of your payment authorization will have no effect on your donations made prior to such revocation.

Your donation will be converted into “Gold Points” at a rate determined by Tapatalk in its sole discretion, and the Gold Points will be deposited with the administrator of the Tapatalk Group Site.  The administrator has sole discretion how to use the Gold Points, including removal of advertising from the Site pages and/or converting Gold Points to a cash payment, less a transaction fee paid to Tapatalk.  Tapatalk, in its sole discretion, may determine the number of ad-free page views per Gold Point.

10.           Ownership

You have no ownership rights in the Services. Rather, you have a license to use the Services as long as the TOS remains in full force and effect. Ownership of the Services, including all intellectual property rights therein, shall remain at all times with Tapatalk. Any use of the Services by any other person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of the TOS.

11.           Password and Account Confidentiality

You are responsible for maintaining the confidentiality of your password and account, and are fully responsible for all activities that occur under your password or account. You agree to (i) immediately notify Tapatalk in writing of any unauthorized use of your password or account, or any other breach of security, and (ii) ensure that you log out of your account at the end of each session. We are not liable for any loss or damage arising from your failure to comply with this Section.

12.           User Content

You may be able to upload, store, publish, display and distribute information, text, photos, videos and other content on or through the Services (collectively, "User Content"). User Content includes any content posted by you or by users of your Site(s), and you agree to maintain at least 70% of User Content as publicly viewable.  Each Site owner is solely responsible for all User Content and any transactions, sales, or other activities conducted on or through its Site, and agrees to accept the risk of loss of any and/or all User Content. This means that the Site owner, and not Tapatalk, is entirely responsible for all User Content that is uploaded, stored, published, displayed and/or distributed on or through the Services. Tapatalk does not guarantee the accuracy, integrity or quality of the User Content. Under no circumstances will Tapatalk be liable in any way for any User Content, including any errors or omissions in any User Content, or any loss or damage of any kind resulting from any User Content being uploaded, stored, published, displayed or distributed on or through the Services.  By posting or distributing User Content on or through the Services, you represent and warrant to Tapatalk that (i) you have all necessary rights to post or distribute such User Content, and (ii) the posting or distribution of such User Content does not violate any Laws, or infringe or violate the rights of any third party.

In connection with providing the Services, you grant the Tapatalk Entities a non-exclusive, royalty-free, worldwide right and license to:  (a) use, reproduce, publicly perform, publicly display, modify, translate, excerpt (in whole or in part), publish and distribute User Content, and (b) make archival or back-up copies of User Content and each Site.  Except for the rights expressly granted herein, Tapatalk does not acquire any right, title or interest in or to the User Content.

Tapatalk does not exercise control over and does not accept responsibility for User Content or any information passing through the Services.  In addition, Tapatalk does not monitor User Content. Notwithstanding, you acknowledge and agree that Tapatalk may, but is not obligated to, take any corrective action in Tapatalk’s sole discretion, including removal of User Content or any Site, and suspend or terminate any and all portions of the Services if you violate the TOS or any Law. You agree that Tapatalk will have no liability due to any corrective action that Tapatalk may or may not take.

13.           Website Inactivity and Abandonment

 

We occasionally purge inactive or abandoned Sites. If your Site appears inactive or abandoned, such as having no new posts during the past 90 days, we may remove such Site from the Services or display your Site in read-only format (new posts cannot be added). To keep your Site open, please make sure there is at least one (1) new post per month. If your Site is in read-only format, the Site may not contain any links to a new Site.

 

14.           Restrictions

You agree not to:  (i) publish, display, disclose, modify, loan, and/or distribute the Services or any part thereof; (ii) reverse engineer, decompile, translate, adapt, or disassemble the Services; (iii) attempt to create the source code from the object code for the Services or any part thereof; (iv) access the Services by any means other than through the interface that is provided by Tapatalk for use in accessing the Services; (v) publish, upload, display, or store content using or through the Services that (a) violates any Law or right of publicity or privacy, (b) promotes violence, the use of firearms, or unlawful subject matter or activities (such as discrimination of protected classes, hate crimes, or copyright circumvention sites), (c) infringes or misappropriates any copyright, patent trademark, trade secret or other proprietary right of any third party, (d) is defamatory, libelous, threatening, deceptive, pornographic or sexually explicit, or (e) is larger than 100 megabytes; (vi) create derivative works based on the Services or any part thereof; (vii) reproduce, duplicate, copy, rent, lease, sell, trade, resell or exploit for any reason, any portion or use of, or access to, the Services; and/or (viii) use any device or mechanism, including any engine, software, tool, or agent (e.g., spiders, robots, or avatars) to scrape, harvest, or collect content, data, or information from the Services for any use, including use on third-party websites.  If you violate this Section, in addition to other rights, we may immediately terminate the TOS and your access to the Services.  

15.           Export/Import Compliance; Prohibited Persons

You agree to comply with all applicable export, import and economic laws and regulations, including the Export Administration Regulations and sanctions control programs of the United States administered or enforced by the United States Department of Commerce, United States Department of the Treasury, Office of Foreign Assets Control (“OFAC”), Department of State, and other United States authorities (collectively, “U.S. Trade Laws”). You agree not to use the Services to export or re-export, or permit the export or re-export, of software or technical data in violation of U.S. Trade Laws. In addition, by using the Services, you represent, warrant, and covenant that you are not:  (i) an individual, organization or entity organized or located in a country or territory that is the target of OFAC sanctions (such as Cuba, Iran, Syria, Sudan, North Korea, or the Crimea region of Ukraine); (ii) designated as a Specially Designated National or Blocked Person by OFAC or otherwise owned, controlled, or acting on behalf of such a person; (iii) otherwise a prohibited party under U.S. Trade Laws; or (iv) engaged in nuclear, missile, chemical or biological weapons activities to which U.S. persons may not contribute without a U.S. Government license.

16.           Your Warranties

You represent, warrant, and covenant that:  (i) you have the right and ability to enter into the TOS, grant the rights herein, and use the Services; and (ii) you and/or any parties who use the Services on your behalf will not use the Services in any manner that might (a) infringe or misappropriate any copyright, patent, trademark, trade secret, or other proprietary right of any third party, (b) violate any Law, including U.S. Trade Laws, (c) introduce into the Services or cause the Services to contain viruses, Trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines, or (d) promote illegal or unlawful activity.

17.           HIPAA, Personal, and Medical Sensitive Data Disclaimer.

 

We specifically disclaim any warranty or representation that the Services comply with the federal Health Insurance Portability and Accountability Act ("HIPAA").  The Services are not HIPAA compliant.  Storing and permitting access to “protected health information” as defined under HIPAA within the Services is prohibited, and is a material violation of this Agreement.  We do not sign “Business Associate Agreements”, and you agree that we are not a Business Associate, subcontractor, or agent of yours pursuant to HIPAA.  You are solely responsible for compliance with applicable Laws governing the privacy and security of personal data, such as medical or other sensitive data. You acknowledge and agree that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information.

 

 

 

 

18.           Warranty Disclaimer; No Responsibility for Services

EXCEPT AS EXPRESSLY PROVIDED IN THE TOS, THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS WITHOUT REPRESENTATION, WARRANTY, CONDITION, OR GUARANTEE OF ANY KIND. THE TAPATALK ENTITIES (defined below) DISCLAIM ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES, AND ANY WARRANTIES OF TITLE, MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE TAPATALK ENTITIES OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY WITH RESPECT TO THE SERVICES OR OTHERWISE.

THE TAPATALK ENTITIES ARE NOT RESPONSIBLE OR LIABLE FOR:  (I) THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICES; (II) ANY HARM TO YOUR COMPUTER SYSTEM, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICES; (III) CONTENT, FILES AND/OR DATA RESIDING IN YOUR ACCOUNT AND/OR YOUR SITE(S), INCLUDING ANY LOSS OF SUCH CONTENT, FILES OR DATA; (IV) PROVIDING ANY BACKUPS OF YOUR SITE(S); (V) THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY CONTENT AND OTHER COMMUNICATIONS ACCESSED BY, THROUGH, OR MAINTAINED BY THE SERVICES; (VI) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS, OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS; AND (VII) ANY CONTENT, SOFTWARE, HARDWARE, OR EQUIPMENT ACCESSED BY, THROUGH, OR USED IN CONNECTION WITH THE SERVICES.

19.           Limitation of Liability

IN NO EVENT WILL THE TAPATALK ENTITIES BE LIABLE FOR (I) ANY CONTENT CONTAINED WITHIN OR ACCESSED FROM ANY SITE AND/OR THE SERVICES, OR (II) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA, OR ANY PECUNIARY OR INTANGIBLE LOSS) ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICES, EVEN IF THE TAPATALK ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THE TOS, THE MAXIMUM LIABILITY OF THE TAPATALK ENTITIES, UNDER ANY CAUSE OF ACTION OR THEORY, IS $100.  

20.           Indemnification

You will indemnify, defend and hold harmless Tapatalk and its subsidiaries, affiliates, partners, officers, directors, employees, consultants, agents, and third-party service providers (collectively, “Tapatalk Entity” or “Tapatalk Entities”) from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with (i) breach of the TOS, (ii) use of the Services, including any User Content, or content you submit, post, display, transmit, modify or otherwise make available through or in connection with the Services, (iii) violation of Law, and/or (iv) violation or infringement of the rights of any third party. You are solely responsible for defending all Claims against each Tapatalk Entity, subject to such Tapatalk Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys’ fees, resulting from all Claims against a Tapatalk Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Tapatalk Entity without its prior express written consent.

21.           Termination

The TOS continues until terminated by either you or us as set forth herein.  Except as may be set forth in the Service Terms below, you or we may terminate the TOS and/or your participation in any Service for any or no reason, and we may suspend or limit your participation in any Service or part thereof, including removing your posts and/or listings.  You may terminate the TOS at any time by discontinuing use of all Services, unless you own/operate a Site(s) in which case you must provide 30 days prior written notice (email acceptable to admin@tapatalk.com) to terminate the TOS. We may terminate the TOS for any reason, including if we find that you have violated the TOS. Upon receipt of notice of termination, you agree to immediately stop using all Services. In addition, we reserve the right at any time to modify or discontinue offering any Service or part thereof.  The Tapatalk Entities will not have any liability regarding the foregoing decisions. Upon termination of any Service or the suspension or discontinuation of any Service or your participation therein, any outstanding payment obligations incurred under each such Service will become immediately due and payable.  Sections 3, 8 (6th and 8th sentences only), 10, 11, 12 (last paragraph), and 16 through 29 shall survive the termination of the TOS.

22.           Tapatalk’s Proprietary Rights

You agree that all of Tapatalk’s trademarks, trade names, service marks, logos, brand features, and Service names are the property of and are owned by Tapatalk, and that you will not make trademark use of or otherwise misappropriate any of the foregoing without Tapatalk’s prior written approval in each instance.

You agree that the Services contain proprietary and confidential information protected by applicable intellectual property Laws, other Laws in favor of Tapatalk, and international treaty provisions. You further agree that certain content and information presented or available to you through the Services is protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and Laws.

23.           Copyright or Intellectual Property Complaints

Tapatalk respects the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please provide us with the following information:

Please send the information required above to our agent for notice of claims of copyright or other intellectual property infringement at:

Tapatalk, Inc.

Attn:  Copyright Agent

202 Bicknell Avenue, First Floor

Santa Monica, CA 90405

 

In addition, we reserve the right to remove content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, Tapatalk may also terminate your access to and use of the Services if you are determined to be a repeat infringer.

 

24.           Choice of Law; Venue; Time Limit to File Lawsuit

The TOS and the relationship between you and the Tapatalk Entities are governed by the laws of the State of California without regard to its conflict/choice of law provisions. Any and all claims, causes of action, or disputes (regardless of theory) arising out of or relating to the TOS, or the relationship between you and the Tapatalk Entities shall be brought exclusively in the state or federal courts located in Los Angeles County, California. You and the Tapatalk Entities waive any and all objections to the exercise of jurisdiction over the parties by such courts and venue in such courts.

25.           Statute of Limitation/Time to File an Action

 

YOU AGREE THAT REGARDLESS OF ANY LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SERVICES OR THE TOS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

 

 

 

 

26.           Notice

You agree that Tapatalk may provide you with notices by email, regular mail, overnight courier (e.g., FedEx or UPS), SMS, MMS, text message, push notifications, postings on or through the Services, or other reasonable means now known or hereafter developed. You acknowledge and agree that Tapatalk will have no liability associated with or arising from your failure to maintain and supply Tapatalk with accurate contact information about yourself, including your failure to receive important information and updates about the Services.  Except as expressly set forth in this TOS, you will provide notice to Tapatalk via recognized overnight courier or certified mail, return receipt requested, to: Tapatalk, Inc., Attn: Chief Legal Officer, 202 Bicknell Avenue, First Floor, Santa Monica, CA 90405.

 

27.           Violations

Please report any violations of the TOS or questions regarding the TOS to admin@tapatalk.com.

 

 

28.           Miscellaneous

The TOS, including any agreements and terms incorporated by reference herein, constitutes the entire agreement between you and Tapatalk and govern your use of the Services, and supersedes any prior and/or contemporaneous version of the TOS.  All rights not granted to you herein are expressly reserved by Tapatalk. You may not remove any proprietary notice of Tapatalk from any part of the Services.  Only a written instrument specifically waiving compliance that is executed by whichever of you or us is entitled to waive such compliance may waive any term and/or condition of the TOS.  No waiver by either you or us of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the TOS is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the TOS, and the invalid or unenforceable provision will be replaced by a valid provision that has a substantially similar effect.  Neither you nor we will have any liability under the TOS by reason of any failure or delay in the performance of your or our obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond as applicable, your or our reasonable control.  You and Tapatalk are independent contractors and nothing in the TOS will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between you and us.  Except as otherwise expressly set forth in the TOS, neither you nor Tapatalk will have any right, power, or authority to create any obligation or responsibility on behalf of the other.  Except as otherwise expressly set forth in the TOS, there are no third party beneficiaries to the TOS.  Notwithstanding the foregoing, you acknowledge and agree that the Tapatalk Entities are third party beneficiaries to the TOS, and will be entitled to directly enforce, and rely upon, any provision in the TOS which confers a benefit on, or rights in favor of, them.  Tapatalk and our subsequent assignees may assign, delegate, sublicense, or otherwise transfer from time-to-time the TOS, or the rights or obligations hereunder, in whole or in part, to any person or entity such as the Tapatalk Entities.  The headings in the TOS are for convenience only and have no legal or contractual effect.  As used in the TOS, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will”, “shall”, and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable.  All definitions apply both to their singular and plural forms, as the context may require.

 

29.           Electronic Signatures Effective

By checking the box next to “I Agree” or similar language, you create an electronic signature to the TOS, establishing a valid and binding contract. Therefore, you agree to accept these terms and conditions and any other agreement contained or referenced herein.  In addition, you agree that we may supply you a copy of the TOS in electronic form. Please print or save a copy of the TOS for your records. You also may choose to receive a copy of the TOS in non-electronic form at any time by submitting a written request to us at the address set forth in Section 25, above.

 

You may choose to withdraw your consent to receive the TOS in electronic form. Withdrawing your consent to receive the TOS in electronic form does not change your existing obligations to us under the TOS. Instead, withdrawing your consent means that you wish to have our relationship with you governed by a non-electronic form of the TOS. If you wish to withdraw your consent to receive the TOS in electronic form and to instead enter into a non-electronic form of the TOS, please send a letter and self-addressed, stamped envelope to the address set forth in Section 25, above. We then will send you a non-electronic form of the TOS. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of TOS, at which point our relationship will be governed by the terms of such TOS. In either instance, the obligations that you incur pursuant to the electronic form of the TOS, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully satisfied by you.

 

In order to access and retain the electronic TOS, you must have access to the Internet, either directly or through devices that access web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the TOS that create a material risk that you will not be able to continue to access and/or retain the electronic TOS.

 

SERVICE TERMS

Tapatalk Marketplace Service Terms 

If you participate in the Tapatalk Marketplace, the following terms and conditions apply, which are also governed by the Master Terms and Conditions, above.

1.              Marketplace

Tapatalk is a marketplace that allows users to offer, sell and buy goods. Tapatalk is not directly involved in the sale between buyers and sellers. The actual contract for sale is directly between the seller and buyer.  Tapatalk does not transfer legal ownership of items from the seller to the buyer.  As a result, Tapatalk has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. In addition, Tapatalk does not pre-screen users or User Content. Tapatalk cannot ensure that a buyer or seller will actually complete a sale.  Finally, Tapatalk does not guarantee the identity, age, and nationality of a user.  As such, we encourage you to communicate directly with the other party.

While we may provide shipping, listing, and other guidance, such guidance is solely informational, and you may decide to follow it or not.  Also, while we may help facilitate the resolution of disputes, Tapatalk has no control over and does not guarantee the existence, quality, safety or legality of items advertised, the truth or accuracy of User Content or listing, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will complete a sale or return an item.

2.              Seller Eligibility

To sell items on the Tapatalk Marketplace, you may be required to provide and maintain valid and accurate payment information such as credit card or PayPal account information (collectively, “Payment Method”), which we will use for payment of the fees and charges you incur. We do not knowingly accept debit cards, and you should not provide a debit card as a form of payment.

 

3.              Seller Fees; Charges

Tapatalk may charge fees for listing an item for sale, and a percentage of the sale price when the item sells.  When you list an item, you have an opportunity to review and accept the fees that you will be charged. In addition, Tapatalk may offer promotion opportunities to increase the visibility of your items.  The promotion fees vary by opportunity, and will be clearly set forth before you commit to purchasing a promotion.  Unless otherwise stated, all fees are charged in United States Dollars (“USD”).  Fees and charges do not include any applicable sales, use, value-added, withholding, excise, or any other taxes or government charges, which are payable by you and are in addition to any amounts due to us hereunder.

4.              Payment Terms

When you as a seller supply us with a Payment Method, you authorize us to bill your Payment Method for all charges and fees you incur in connection with your use of the Marketplace Service.  The terms of your Payment Method are determined by the agreement(s) between you and your card issuer or online payment platform.  You agree to keep your payment information on file with us current (such as your address, card number, and expiration date), and you also authorize us to update your payment information with data we obtain from the issuer of your credit card or charge card, from MasterCard, Visa, Discover, or American Express.  In addition, you authorize us to retain your payment information until such time as you revoke this authorization in accordance with our reasonable procedures.  Any revocation by you of this authorization will become effective when all fees and charges associated with your use of the Marketplace Service have been fully satisfied, as reasonably determined by us. Your revocation of your payment authorization will have no effect on your liability for fees and charges that you have incurred in connection with your use of the Marketplace prior to such revocation.

All payments of fees and charges are non-refundable and our property. Any dispute about fees and charges must be submitted to us in writing within 15 days of the date you incurred such fee or charge, otherwise you waive such dispute, and such fee and/or charge will be final and not subject to challenge. If you fail to make payment as set forth herein, or fail to reimburse us for any refund or payment made to the buyer in connection with the sale of an item, you will pay (i) a late fee equal to 1.5% monthly (or the highest amount allowed by law if less than 1.5% monthly) of all past due charges and fees, and (ii) all reasonable expenses (including attorneys’ fees and costs) incurred by us in collecting past due fees and charges.

5.              Listing; Selling; Binding Sale

Listing Description.  By listing an item on the Site, you represent, warrant, and covenant that:  (i) all aspects of the item comply with Tapatalk's policies, guidelines, and rules and applicable Law; (ii) you may legally sell the item; (iii) you will accurately and completely describe your item and all terms of sale in your listing; (iv) each listing will only include text descriptions, graphics, pictures and other content relevant to the sale of that item; (v) the item will be listed in an appropriate category; (vi) if the "in stock" quantity is more than one, all items in that listing must be identical; (vii) each unique item must have its own listing; and (viii) if you display a Tapatalk Marketplace-hosted image from your listing on another website, that image must provide a link back to its listing page on the Tapatalk Marketplace.  Any listing that violates any Tapatalk  or Site policy, guideline or rule, or Law may be modified or removed at Tapatalk's sole discretion.

Binding Sale.  You are entering into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted by the seller).

6.              Prohibited, Questionable and Infringing Items

Each listing and your use of the Tapatalk Marketplace shall not:

      I.         Be false, inaccurate or misleading;

     II.         Be fraudulent or involve the sale of illegal, counterfeit or stolen items;

   III.         Infringe upon any third party's copyright, patent, trademark, trade secret, any other proprietary or intellectual property right, or any right of publicity or privacy;

   IV.         Violate the TOS or Law;

    V.         Be defamatory, libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including Tapatalk staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device;

   VI.         Be obscene or contain pornography;

 VII.    Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information;

VIII.     Host images not part of your listing;

   IX.         Modify, adapt or hack any Tapatalk Service, or modify another website to falsely imply that it is associated with or endorsed by Tapatalk;

    X.         Appear to or actually create liability for Tapatalk or cause Tapatalk to lose (in whole or in part) the services of any third-party service provider;

   XI.         Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under the TOS.

Furthermore, you may not list any item on the Tapatalk Marketplace (or consummate any sale that was initiated using the Tapatalk Marketplace) that, by paying Tapatalk any applicable fee and/or charge, could cause Tapatalk to violate any applicable Law.

7.              Getting Paid; Holds

If the seller used the payment processing feature within the Tapatalk Marketplace, once an item has sold and the buyer has paid, we will hold the funds for two (2) business days after latter of the date that Tapatalk sends the delivery confirmation email to the buyer or acceptance of item receipt by the buyer.  After two (2) business days, the seller will receive the sale proceeds less applicable fees and charges.  We will send the seller an email to let the seller know when the payment is in seller’s account.  If, within two (2) business days after Tapatalk sends the delivery confirmation, the buyer disputes receipts or claims that the item is “not as described”, payment will be delayed pending the “Transactions Disputesprocess set forth below.

8.              Privacy of Users; Marketing

 

As part of a sale, you may obtain personal information, such as an email address and shipping information, from another user.  Without obtaining prior permission from the other user, this personal information shall only be used for that sale or for Marketplace-related communications, and not for any unsolicited message or communication. Without limiting the foregoing, you may not add any user to any email or physical mail list without such user’s prior express consent.

 

9.              Information Control; Transaction Risks

Tapatalk does not control User Content on the Tapatalk Marketplace. You may find some such content offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.

Additionally, there may also be risks dealing with international trade and foreign nationals. By using the Tapatalk Marketplace, you agree to accept such risks and that the Tapatalk Entities are not responsible for any act or omission of users on the Tapatalk Marketplace. Please use caution, common sense, and practice safe buying and selling when using the Tapatalk Marketplace.

Many of the Marketplace Services are accessible to international sellers and buyers. Notwithstanding the foregoing, sellers and buyers are responsible for complying with all Laws applicable to the international sale, purchase, and shipment of items.

10.           Transactions Disputes; Release

As a marketplace, Tapatalk's role is to help buyers and sellers connect. As a buyer, when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted by the seller), you enter into a binding sale with a seller, and not Tapatalk.  Therefore, you agree that Tapatalk is not responsible in any manner for the sale or attempted sale, notwithstanding whether Tapatalk assists in the resolution of any dispute as set forth below.

For the benefit of users, Tapatalk will try to help buyers and sellers resolve disputes regarding a sale when the seller used the payment processing feature within the Tapatalk Marketplace.  However, we will not make judgments regarding legal issues or claims. To the extent that we attempt to resolve any dispute, we will do so in good faith based solely on our policies and/or guidelines, and you agree to release the Tapatalk Entities as more fully set forth below.

Dispute Process

If the seller used the payment processing feature within the Tapatalk Marketplace, a buyer has two (2) business days after the latter of the date that Tapatalk sends the delivery confirmation email to the buyer or receipt of the item by the buyer, to dispute:  (a) "non-delivery" (buyer paid for an item, but did not receive it), or (b) "item not as described" (item is substantially different than described in the listing).  The buyer must first contact the seller directly to try and work out any dispute, before contacting Tapatalk at support@tapatalk.com for assistance.  If the buyer does not contact Tapatalk within two (2) business days after the latter of the date Tapatalk sends the delivery confirmation email to the buyer or receipt of the item by the buyer, the sale will be final, Tapatalk will release payment to the seller, and no refund will be available to the buyer.

Shipping Damage

Please report all shipping damage directly to the shipping carrier (e.g.., FedEx, UPS, or USPS).  Tapatalk is not responsible for shipping damage.

Return Shipping Charges

With respect to sales where the seller used the payment processing feature within the Tapatalk Marketplace, the buyer must initially pay the return shipping charges, and send the tracking number of the returned item to Tapatalk at support@tapatalk.com.  If the buyer is returning an item because it is not as described in the listing, the seller will be responsible for the return shipping charges, regardless of the seller's return policy.  Seller authorizes Tapatalk to charge seller’s Payment Method for such shipping charges.

Once the returned item has been sent by the buyer, and received by the seller, we will refund the purchase price to the buyer and reimburse the buyer for the return shipping charges.  Seller authorizes Tapatalk to charge seller’s Payment Method for the amount of the payment refunded and/or reimbursed to the buyer.

Release

If you have a dispute with a user or an outside party regarding the sale of an item listed in the Tapatalk Marketplace, you release the Tapatalk Entities from any and all claims, demands, causes of action, losses, costs, and damages of every kind and nature, known or unknown, arising out of, relating to, or in connection with such dispute, notwithstanding that Tapatalk may have attempted to resolve the dispute as set forth above.  

11.           Sale Cancellation

Buyer and Sellers are required to complete sales.  However, occasionally, a seller may need to cancel a sale, for instance if the item is no longer available.

Although a buyer is entering into a legally binding contract to purchase an item when the buyer commits to buy an item, the buyer’s offer for an item is accepted, or if the buyer has the winning bid (or the buyer’s bid is otherwise accepted by the seller), a buyer may request the seller to cancel the sale.  To request a cancellation, the buyer should contact the seller directly.  The seller is not required to cancel the sale, but may do so in the seller’s sole discretion.

Sellers who abuse the privilege to cancel sales may be subject to review, which can result in suspension of account privileges and/or termination. Suspended or terminated sellers remain obligated to pay Tapatalk for all unpaid fees and charges.

12.           Effects of Termination

Sections 3, 4, 5, 7, 8, 10, 11, and 12 will survive termination of these Tapatalk Marketplace Service Terms.

* * *

The TOS, including the Master Terms and Condition and Service Terms, was last updated on and is effective as of May 11, 2018.

 

 

Email: admin@tapatalk.com

Tapatalk, Inc.

202 Bicknell Avenue, First Floor

Santa Monica, CA 90405