Terms & Conditions
1. Definitions and Interpretation
In this document, the following terms have the stated meaning:
Client: The Entity indicated in the relevant section of Section A of this document that agrees to buy the Service.
Client Contact: The person indicated in the relevant section of Section A (Agreement and Key Details) that acts as the point of contact between Tapmint and the Client.
Client Data: Any content that the Client or its Users submit or transfer to Tapmint for the purpose of using the Service, (including personal data).
Confidential Information: Any information disclosed by a party (the Discloser), including Client Data, to the other party (the Recipient) in connection with the use of the Service that is marked confidential or would reasonably be considered as confidential under the circumstances. Confidential Information does not include any information that:
- Is or becomes public through no fault of the Recipient;
- The Recipient already lawfully knew;
- Was rightfully given to the Recipient by a third party; or
- Was independently developed by the Recipient without reference to the Discloser’s Confidential Information.
Discloser: The party that discloses confidential information.
Intellectual Property Rights: Any and all present and future intellectual and industrial property rights, including any registered or unregistered forms of copyright, designs, patents, trademarks, service marks, domain names, good will and any commercial information. Intellectual Property Rights also include any application or right to apply for registrations of any of these rights, any rights protected or recognised under any laws throughout the world, related to these rights, and anything copied or derived from such property or rights.
Peopability: The Software provided as the Service, created and owned by Tapmint.
Recipient: The party to whom confidential information is disclosed.
Supplier: Tapmint Pty Ltd, the creator of the Peopability Software Service.
Tapmint: Tapmint Pty Ltd (ACN 164 387 142) of 160B Orrong Rd, Caulfield North, VIC 3161, Australia, and the Supplier of the Peopability Software Service.
The Service: The Peopability Software, created by Tapmint, made available (as may be changed or updated from time to time by Tapmint) via the Website and/or Mobile Application.
Users: Any person or entity to whom the Client provides access to Tapmint’s Service, including any administrators of user accounts.
Website: The Internet site at the domain set out in the Key Details, or such other site notified to the Client by Tapmint.
1.2 Interpretation: In this Agreement:
(a) The person who signs this Agreement on the Client’s behalf must have the authority to bind the Client to this Agreement, and both the Client and such person represents that to be the case.
(b) Clause and other headings are for ease of reference only and do not affect the interpretation of the Agreement;
(c) Words in the singular include the plural and vice versa;
(d) No term of the Agreement is to be construed against a party because the term was first proposed or drafted by that party;
(e) The meaning of any general language is not restricted by any accompanying example, and the use of the terms includes, including, such as, for example, (or similar terms), will be deemed not to limit what else might be included.
2.1 Tapmint Service
During the Term, Tapmint will provide the Client with access to, and use of, the Peopability Software as a Service (hereafter the Service) ordered by the Client via Subscription, as described in Section A. Tapmint will invoice the Client for any additional subscriptions for the Service ordered after the start of the Term at the time they are ordered.
2.2 Changes to the Service
Tapmint continually changes and improves its Service. Tapmint may alter the Service at any time without prior notice and will endeavour to provide the Client with prior notice if it makes a change to the Service resulting in an overall material decrease in functionality. In such cases, the Client may terminate its Subscription under clause 9.4.
2.3 Suspension of the Service
Tapmint may limit or suspend the Service from time to time at its discretion (for example, to perform scheduled maintenance). If Tapmint limits or suspends the Service, it will endeavour to give the Client reasonable advance notice so that plans can be made around it. However, there may be some situations, such as security emergencies, where it may not be practicable for Tapmint to give advance notice. Tapmint will use commercially reasonable efforts to narrow the scope and duration of the suspension or limitation as is needed to resolve the issue that prompted such action.
3. Fees and Payments
3.1 Fees for Service
The Client agrees to pay Tapmint fees for the use of its Service in accordance with the pricing and payment terms outlined in Section A of this Agreement. Except as indicated in this Agreement or required by law, fees paid by the Client are not refundable.
The Service is invoiced on a subscription basis. The Client’s Subscription for the Service is involved in advance and will automatically renew at the end of each calendar month, unless it is cancelled by notifying Tapmint via its nominated email address.
3.3 Payment methods
Tapmint will provide the Client with a valid, monthly invoice on the date set out in Section A of this Agreement.
Overdue payments may incur interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on the amount overdue. The Client will be responsible for all reasonable expenses (including lawyers’ fees) incurred by Tapmint in collecting such overdue amounts, except where:
(a) The overdue amounts are due to Tapmint’s invoicing inaccuracies; or
(b) The Client has sought to resolve a dispute using the dispute resolution process in clause 14.1 and that process is still active.
Unless stated otherwise, all fees for the Service exclude sales tax, GST, VAT, or other similar taxes. Except for any income taxes payable by Tapmint, the Client is responsible for all other taxes or duties related to the sale of the Service under this Agreement, including any penalties or interest. If Tapmint is required to collect or pay any taxes on the Client’s behalf, Tapmint will invoice the Client for those taxes unless valid evidence that no tax should be invoiced is provided.
3.6 Price changes
Tapmint represents and warrants that all fees for the use of the Service in accordance with the pricing and payment terms outlined in Section A of this Agreement are and will continue to be no less favourable than those currently being or which will be offered by Tapmint to any of its similarly situated clients, until a minimum period of five (5) years thereafter.
4. Privacy and Security
Tapmint will store and process Client Data in a manner consistent with industry security standards. Tapmint has implemented technical, organizational, and administrative systems, policies, and procedures to help ensure the security, integrity, and confidentiality of Client Data and to mitigate the risk of unauthorized access to or use of Client Data.
5.1 Confidentiality obligations
The Recipient must:
(a) Protect the Discloser’s Confidential Information using commercially reasonable efforts;
(b) Not disclose the Discloser’s Confidential Information, except to affiliates, employees, directors, contractors, agents, and professional advisors of the Recipient who need to know it and who have agreed in writing to keep it confidential;
(c) Only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement; and
(d) Ensure that its affiliates, employees, directors, contractors, agents and professional advisors only use the Discloser’s Confidential Information to exercise its rights and fulfil its obligations under this Agreement.
5.2 Compelled disclosure
The Recipient may disclose the Discloser’s Confidential Information when required by law or legal process, but only after it, if permitted by law:
(a) Uses commercially reasonable efforts to notify the Discloser; and
(b) Gives the Discloser the opportunity to challenge the requirement to disclose.
6. Intellectual Property
6.1 Client Intellectual Property Rights
The Client retains all ownership and Intellectual Property Rights to Client Data. Tapmint does not claim ownership over any Client Data. This Agreement does not grant Tapmint any licences or rights to Client Data except for the licence granted in clause 6.2, or as otherwise required for Tapmint to provide the Service to the Client or its Users.
6.2 Limited Licence
The Client grants Tapmint a perpetual worldwide, royalty free licence to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, archive, or otherwise exploit Client Data for the limited purposes of providing the Service to the Client as contemplated by this Agreement.
6.3 Customer Data review
The Client acknowledges that, in order to ensure compliance with legal obligations, Tapmint may be required to review certain content submitted to the Service to determine whether it is illegal or whether it violates this Agreement (such as when unlawful conduct or content is reported to Tapmint). Tapmint may also modify, prevent access to, delete, or refuse to display content that it believes violates the law or this Agreement. However, Tapmint otherwise has no obligations to monitor or review any content submitted to the Service by the Client or any other person.
6.4 Client feedback
If the Client provides Tapmint with feedback about the Service, Tapmint may use that feedback without any obligation to the Client.
6.5 Tapmint's Intellectual Property Rights
Nothing in this Agreement or from the Client’s use of the Service grants the Client ownership in the Service or the content the Client accesses through the Service (other than Client Data). Except as permitted by Tapmint, this Agreement does not grant the Client any right to use any Tapmint trademarks or other Intellectual Property Rights contained in its brand identity.
7. Account Management
7.1 Account security and access
The Client is responsible for safeguarding any passwords or other credentials used to access User accounts. The Client is responsible for any activity occurring in any of its accounts (other than activity that Tapmint is directly responsible for and is not performed in accordance with the Client’s instructions), whether or not the Client authorized that activity. If the Client becomes aware of any unauthorized access to, or use of, a user account, the Client should immediately notify Tapmint via its nominated email address.
7.2 Client systems
The Client is responsible for maintaining and updating any operating systems, Internet browsers, anti-virus software, or other software that it or its Users use to access and use the Service.
8. Client Obligations
8.1 Legal compliance
The Client must use the Service in compliance with, and only as permitted by, applicable law. If the Client’s use of the Service requires it to comply with industry-specific regulations applicable to such use, the Client will be solely responsible for such compliance, unless Tapmint has agreed with the Client otherwise. The Client may not use the Service in a way that would subject Tapmint to any industry-specific regulations without obtaining Tapmint’s prior written agreement.
8.2 Unacceptable uses
The Client is responsible for its conduct and the conduct of its Users. The Client must ensure that it and its Users do not:
(a) Misuse the Service by interfering with its normal operation, or attempting to access the software using a method other than through the interfaces and instructions Tapmint provides;
(b) Circumvent or attempt to circumvent any limitations that Tapmint imposes on the Client’s account;
(c) Probe, scan, or test the vulnerability of any Tapmint system or network, unless with prior written authorization of Tapmint;
(d) Reverse engineer the Service, or attempt to do so;
(e) Transmit any viruses, malware, or other types of malicious software, or links to such software, through the Service;
(f) Engage in abusive or excessive use of the Service, which includes usage significantly in excess of average usage patterns that adversely affect the speed, responsiveness, stability, availability, or functionality of the Service for other clients and their users. Tapmint will endeavour to notify the Client of any abusive or excessive usage to provide the Client with an opportunity to reduce such usage to an acceptable level to Tapmint;
(g) Use the Service to infringe the Intellectual Property Rights of others, or to commit any unlawful activity;
(h) Unless authorized in writing by Tapmint, resell, lease or sublicense the Service to a third party.
The Client must:
(a) Ensure that the Client’s Users are governed by, and comply with, this Agreement;
(b) Obtain any consents required from each User to allow the Client and its Admin Users to engage in the activities contemplated by this Agreement;
8.4 Suspension of Users
If a User breaches this Agreement, or uses the Service in a manner that Tapmint reasonably believes will cause Tapmint liability or disrupt others’ use of the Service, then Tapmint may request that the Client suspend or close the applicable User account until the breach has been cured or the use in such manner has stopped. If the Client fails to comply with such request, then Tapmint may suspend or close the applicable User account.
9. Term and Termination
This Agreement begins on the date the Client signs the Agreement or first uses the Service (whichever is earlier), and continues until the Client’s Subscription ends or otherwise terminates, or if this Agreement is terminated.
9.2 Termination without cause
The Client may terminate this Agreement at the end of a calendar month by notifying Tapmint via its nominated email address referred to in Section A. Tapmint may terminate this Agreement for any reason by providing at least 60 days’ prior written notice to the Client and will provide a pro rata refund of any fees prepaid by the Client applicable to the period following the termination of this Agreement.
9.3 Termination for cause
Each party may suspend performance or terminate this Agreement if the other party:
(a) Is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice; or
(b) Ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Tapmint may terminate this Agreement if any payment owed by the Client to Tapmint is more than 30 days overdue.
9.4 Termination for material decrease in functionality
If Tapmint makes a change to the Service resulting in an overall material decrease in functionality, the Client may terminate this Agreement immediately by providing notice to Tapmint. Upon receiving notice of termination from the Client, Tapmint will provide the Client with a pro rata refund of any fees prepaid by the Client applicable to the period following the termination of this Agreement.
9.5 Consequences of Termination
If this Agreement is terminated:
(a) By the Client due to breach by Tapmint, Tapmint will provide the Client with a pro rata refund for any fees prepaid by the Client applicable to the period following the termination of this Agreement; and
(b) Tapmint will invoice the Client, and the Client will pay, for any accrued fees that have not already been invoiced, and the Client will remain liable to pay any invoices outstanding on the termination date; and
(c) Tapmint may assist the Client to export any Client Data that existed in the Client’s account at the time of termination. However, Tapmint does not guarantee that all Client Data will be able to be exported.
The following clauses will survive the termination of this Agreement: 3, 5, 6.2, 9, 11, 12, 14 and 15.
10.1 Each party represents and warrants that:
(a) It has full power and authority to enter into this Agreement; and
(b) It will comply with all laws and regulations applicable to its provision or use of the Service, as applicable.
11.1 By Client
The Client will indemnify, defend, and hold harmless Tapmint from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third party claim regarding or in connection with:
(a) Client Data (including claims of Intellectual Property Rights infringement);
(b) The Client’s use of the Service in breach of this Agreement; or
(c) The Client’s Users’ use of the Service in breach of this Agreement.
11.2 By Tapmint
Tapmint will indemnify, defend, and hold the Client harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable lawyers’ fees) arising out of a third party claim that the technology used to provide the Service to the Client infringes any Intellectual Property Rights of such third party. However, in no event will Tapmint have any obligations or liability under this Section arising from:
(a) Use of the Service in a modified form or in combination with materials not furnished or authorized by Tapmint; or
(b) Any content or data provided by the Client, its Users, or any third parties.
11.3 Potential infringement
If Tapmint believes the Service may infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Tapmint may:
(a) Obtain the right for the Client, at Tapmint’s expense, to continue using the Service;
(b) Provide a non-infringing functionally equivalent replacement; or
(c) Modify the Service so that it no longer infringes.
If Tapmint does not believe that the options above are commercially reasonable, then it may suspend or terminate the Client’s use of the impacted Service and provide the Client with a pro rata refund of any fees prepaid by the Client applicable to the period following the termination of such Service.
11.4 Indemnity procedures
A party seeking indemnification under this Agreement will promptly notify the other party of the claim and cooperate with the other party in defending the claim. If permitted by applicable law, the indemnifying party will have full control and authority over the defence, except that:
(a) Any settlement requiring the indemnified party to admit liability or to pay any money will require that party’s prior written consent (such consent not to be unreasonably withheld or delayed); and
(b) The indemnified party may join in the defence with its own counsel at its own expense.
The indemnities in this Agreement are a party’s sole and exclusive remedy under this Agreement for violation by the other party of a third party’s Intellectual Property Rights.
12. Disclaimers and Limitations of Liability
Except as expressly provided in this Agreement and to the extent permitted by applicable law, neither party makes any warranties of any kind, express, implied, statutory, or otherwise, including those of merchantability, fitness for a particular purpose, and non-infringement. Tapmint provides the Service on an “as is” basis and, except as expressly provided in this Agreement and to the extent permitted by applicable law, Tapmint makes no representations regarding the availability, reliability, or accuracy of the Service, or regarding any Client Data or other content associated with the Client’s account.
12.2 Exclusion of Liability
To the extent permitted by applicable law, neither party will be liable for any indirect, consequential, special, incidental, punitive, or exemplary damages arising out of or in connection with this Agreement, even if the party knew or should have known that such damages were possible and even if a remedy fails its essential purpose.
12.3 Limitation of Liability
To the extent permitted by applicable law, the aggregate liability of either party arising out of or in connection with this Agreement will not exceed the total amounts paid by the Client to Tapmint under this Agreement during the 12 months prior to the event giving rise to the liability.
12.4 Exceptions to Limitations
The limitations of liability in clauses 12.2 (Exclusion of liability) and 12.3 (Limitation of Liability) do not apply to violations of a party’s Intellectual Property Rights by the other party or each party’s confidentiality and indemnification obligations.
13.1 Any amendment to this Agreement must be in writing, signed by the Client and Tapmint, and must expressly state that it is amending this Agreement.
14. Dispute Resolution, Governing Law and Jurisdiction
14.1 Dispute resolution
Before commencing any form of litigation, including court proceedings, professional mediation or arbitration, each party agrees to:
(a) Give the other party notice of the dispute and its nature;
(b) Give the other party the opportunity to remedy any breach of this Agreement within 30 days; and
(c) Hold good faith negotiations with the other party to settle the disputed matter.
14.2 Governing Laws
This Agreement is governed by the laws of Victoria, Australia. Each party submits to the exclusive jurisdiction of the courts of Victoria, Australia, in relation to any proceedings connected with this Agreement.
Nothing in this Agreement prevents a party from seeking a temporary restraining order, injunction, or other equitable relief in relation to a breach (or attempted breach) of this Agreement by the other party.
15. Other Terms
The Client may not assign this Agreement without Tapmint’s prior written consent (such consent not to be unreasonably withheld). Tapmint may assign this Agreement by providing written notice to the Client. However, both parties may assign this Agreement without notice to an affiliate or to a successor or acquirer, as the case may be, in connection with a merger, acquisition, corporate reorganization or consolidation, or the sale of all or substantially all of the party’s assets or its business to which the subject matter of this Agreement relates. Any other attempt to transfer or assign this Agreement or any rights or obligations under this Agreement are void.
15.2 Entire Agreement
This Agreement (including any documents incorporated by reference to a URL or otherwise), constitute the entire agreement between the Client and Tapmint and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by the Client do not apply to the Service, do not override or form a part of this Agreement, and are void.
15.3 Force majeure
Neither party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, governmental action, or internet disturbance) that was beyond the party’s reasonable control.
15.4 Independent contractors
The relationship between the parties is that of independent contractors, and not legal partners, employees, or agents of each other.
15.5 No waiver
A party’s failure or delay to enforce a provision under this Agreement is not a waiver of its right to do so later.
All notices must be in writing and will be deemed given when:
(a) Verified by written receipt, if sent by postal mail; or
(b) When verified by automated receipt or electronic logs if sent by email.
Notices to Tapmint must be sent to 160B, Orrong Rd, Caulfield North, VIC 3161, Australia. Notices to the Client may be sent to the email address associated with the Client Contact details in Section A. The Client must keep the contact details associated with the Client’s account current and accurate by notifying Tapmint via its nominated email address referred to in Section A when the Client’s contact details change. The Client may grant approvals, permission, extensions, and consents by email.
If any provision of this Agreement is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed from this Agreement and the remaining terms will remain in full effect.
15.8 Third party beneficiaries
There are no third party beneficiaries to this Agreement. The Client’s Users are not third party beneficiaries to the Client’s rights under this Agreement.