tamtam Customer Terms of Service
Last Modified: June 27, 2020
PLEASE READ THESE CUSTOMER TERMS OF SERVICE CAREFULLY.
This is a contract between you (the Customer) and us (tamtam). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. It is a legal document so some of the language is necessarily difficult, but we have tried to make it as easy as possible to understand. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Subscription Service or receiving the Consulting Services, you are agreeing to these terms. We periodically update these terms. If you have an active tamtam subscription, we will let you know when we do via an email or in-app notification. You can read the latest version on the tamtam website (www.tamtam.to).
Finally, we know legal terms can sometimes be difficult to navigate, so we wanted to give you an overview of the Agreement:
A. DEFINITIONS. This is where we provide the details on what the key defined terms in the Agreement mean. You can think of this kind of like a contractual dictionary.
B. GENERAL COMMERCIAL TERMS. Here’s where you can find the basics about how our Subscription Service, Hardware Sales, Software Sales and Consulting Services are provided. For example, you can find information on access and acceptable use. These terms apply to all of our products and service offerings.
C. SUBSCRIPTION TERMS. Customers of ours subscribe to use our software, and there are some fundamental terms that apply to each subscription. There are some differences between the different types of subscriptions, and here’s where you can find that detail.
D. PRODUCT DISCLOSURES. We offer several different products and there are some important things to know before you use them. We’ve collected these important things to know and you can find them here.
E. GENERAL LEGAL TERMS. As we mentioned above, this is a contract, and contracts are filled with legal terms. In this section, we’ve collected many of the remaining legal terms that make up our Customer Terms of Service.
F. JURISDICTION SPECIFIC TERMS. With customers across the globe, this final section is where we address most of the differences in these terms that vary based on customer location.
“Agreement” means these Customer Terms of Service and all materials referred or linked to here.
“Billing Period” means the period for which you agree to prepay fees under an Order Form, which will be the same as or shorter than the Subscription Term as specified in the Order Form. For example, if you subscribe to the Subscription Service for a one (1) year Subscription Term, with a twelve (12) month upfront payment, the Billing Period will be twelve (12) months.
“Communication Services” means third-party forums, online communities, blogs, personal web pages, calendars, and/or other social media communication facilities (such as Facebook, Twitter and LinkedIn) linked to or from the Subscription Service that enable you to communicate with the public or with a private group.
“Confidential Information” means all information provided by you or us (“Discloser”) to the other (“Receiver”), whether orally or in writing that is designated as confidential. Confidential Information will include Customer Data and information about the Discloser’s business plans, technical data, and the terms of the Order. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Discloser or (ii) was known to the Receiver before receipt from the Discloser.
“Contact” means a single individual (other than a User) whose Contact Information is stored by you in the Subscription Service.
“Contact Information” means the name, email address, phone number, online user name(s), telephone number, date of birth and similar information submitted by visitors on the Subscription Service or uploaded by you to the Subscription Service.
“Consulting Services” means the professional services provided to you by us, which may include training services, installation, integration or other IT or AV consulting services.
“Customer Data” means all information that you submit or collect via the Subscription Service. Customer Data does not include Enrichment Data.
“Customer Materials” means all materials that you provide or post, upload, input or submit for public display through the Subscription Service.
“Email Send Limit” means the number of emails that you may send in any given calendar year.
This limit is equal to ten thousand (10000) for our basic service offering, or up to twenty-five thousand (25000) emails per year for our higher end service offering.
“Enrichment Data” means the data we make available to you as part of the Subscription Service. Enrichment Data does not include personally identifiable information. We may obtain Enrichment Data from public or third party sources and our internal data processes provided from Customer Data.
“Free Services” means the Subscription Service or other products or features made available by us to you on an unpaid trial or free basis.
“tamtam Content” means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into the Subscription Service or Consulting Services, including Enrichment Data.
“Order” or “Order Form” means the tamtam-approved form or online subscription process by which you agree to subscribe to the Subscription Service or purchase Hardware, Software or Consulting Services. Most Orders are completed through our online payment process or via in-app purchase. The Order may be referred to as a “Statement of Work” if you are purchasing Consulting Services.
“Paid Users” means those types of Users (defined below) for which we charge you fees as set forth in our Product and Services Catalog.
“Product and Services Catalog” means tamtam’s product and services offered via the domain tamtam.to, as updated by us from time-to-time.
“Sensitive Information” means (a) credit or debit card numbers; passwords; addresses or date of birth, including any information subject to the Payment Card Industry Data Security Standards, and other regulations, laws or industry standards designed to protect similar information; and (b) any information defined under EU data protection laws as ‘Sensitive Personal Data’.
“Subscription Fee” means the amount you pay for the Subscription Service.
“Subscription Service” means the web application that you have subscribed to by an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via the domain tamtam.to or another designated URL, and any ancillary products. apps and services that we provide to you.
“Subscription Term” means the initial term of your subscription to the applicable Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any). For Free Services, the Subscription Term will be the period during which you have an account to access the Free Services.
“Third-Party Sites” means third-party websites linked to from within the Subscription Service, including Communications Services.
“Users” means your members, representatives of members or supporters who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
“tamtam”, “we”, “us” or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
“You”, “your” or “Customer” means the person or entity using the Subscription Service or receiving the Consulting Services and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
B. GENERAL COMMERCIAL TERMS
1. Access. During the Subscription Term, we will provide you access to use the Subscription Service as described in this Agreement and the applicable Order. We may also provide you access to use our Free Services at any time by activating them in your tamtam account. We might provide some or all elements of the Subscription Service through third party service providers.
2. Additional Features. You may subscribe to additional features of the Subscription Service by placing an additional Order or activating the additional features from within your tamtam account (if this option is made available by us.). This Agreement will apply to all additional Order(s) and all additional features that you activate from within your tamtam account.
3. Availability. We try to make the Subscription Service available 24 hours a day, 7 days a week, except for planned down-time for maintenance.
4. Consulting Services. You may purchase Consulting Services by placing an Order with us. Unless we otherwise agree, the Consulting Services we provide are described in the Product and Services Catalog and will be delivered in Dutch or English. Fees for these Consulting Services are in addition to your Subscription Fee. If you purchase Consulting Services that recur, they will be considered part of your subscription and will renew in accordance with your subscription.
All Consulting Services are performed remotely, unless you and we otherwise agree.
For Consulting Services performed on-site, you will reimburse us our reasonable costs for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of the date of the invoice.
If there are a specific number of hours included in the Consulting Services purchased, those hours will expire as indicated in the applicable description, which expiration period will commence upon purchase (the “Expiration Period”). If there are deliverables included in the Consulting Services purchased, it is estimated that those deliverables will be completed within the time period indicated as the delivery period in the applicable description, which delivery period will commence upon purchase (the “Delivery Period”). If there is no Expiration Period or Delivery Period indicated, then it will be one hundred and eighty (180) days from purchase. If the Consulting Services provided are not complete at the end of the Delivery Period due to your failure to make the necessary resources available to us or to perform your obligations, such Consulting Services will be deemed to be complete at the end of the Delivery Period. If the Consulting Services provided are not complete at the end of the Delivery Period due to our failure to make the necessary resources available to you or to perform our obligations, the Delivery Period will be extended to allow us to complete such Consulting Services.
We might provide some or all elements of the Consulting Services through third party service providers. Consulting Services are non-cancellable and all fees for Consulting Services are non-refundable.
5. Fees and Payments
a. Subscription Fees. The Subscription Fee will remain fixed during the Subscription Term unless you: (i) exceed your Email Send Limit, User or other applicable limits (see the ‘Limits’ section below), (ii) upgrade products or base packages, (iii) subscribe to additional features or products, or (iv) unless otherwise agreed to in the Order.
b. Fee Adjustments During a Billing Period. It is possible to upgrade the service during the Subscription Term to increase the amount of managed divisions or to increase the Email Send Limit. In this case, the Subscription Fee will increase to the higher tier price and will be billed pro rata.
c. Fee Adjustments at Renewal. For more detail on renewal pricing, see the ‘Term and Renewal’ section below.
d. Payment by credit card. If you are paying by credit card, you authorize us to charge your credit card or bank account for all fees payable during the Subscription Term. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
e. Payment against invoice. Payment against invoice is only possible for Consulting Services.
All amounts invoiced are due and payable within thirty (30) days from the date of the invoice, unless otherwise specified in the Order Form.
f. Payment Information. You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your tamtam account. All payment obligations are non-cancellable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
g. Sales Tax. All fees are inclusive of taxes.
6. Use and Limitations of Use
a. Acceptable Use.
a.1. You may not use tamtam to send spam.
Spam can be in the form of bulk email or one to one commercial emails. Bulk email is spam when it is unsolicited. Unsolicited means the recipient has not granted verifiable permission for the message to be sent. Bulk means that the message is sent as part of a larger collection of messages that have substantially similar content.
One-to-one commercial emails are spam when they violate CAN-SPAM. One-to-one commercial emails are also considered Spam if the data processed for purposes of sending that email is in scope of the General Data Protection Regulation (‘GDPR’) and you fail to provide notice to individuals and establish a lawful basis of processing.
You may not use the tamtam Service in any way (directly or indirectly) to send, transmit, handle, distribute or deliver: (a) spam in violation of the CAN-SPAM Act (referenced below) or any other law; (b) email to an address obtained via Internet harvesting methods or any surreptitious methods (e.g., scraping or harvesting); (c) email to an address that is incomplete, inaccurate and/or not updated for all applicable opt-out notifications, using best efforts and best practices in the industry, (d) commercial electronic messages in violation of Canada’s Anti-Spam Legislation (referenced below), or (e) in violation of the General Data Protection Regulation (GDPR).
a.2. You may not use any misleading or false names, addresses, email address, or subject line.
Email sent, or caused to be sent to or through the tamtam Service may not: (a) use or contain invalid or forged headers; (b) use or contain invalid or non-existent domain names; (c) employ any technique to otherwise misrepresent, hide or obscure any information in identifying the point of origin or the transmission path; (d) use other means of deceptive addressing; (e) use a third party’s internet domain name without their consent, or be relayed from or through a third party’s equipment without the third party’s permission; (f) contain false or misleading information in the subject line or otherwise contain false or misleading content; or (g) use our trademark(s), tagline(s), or logo(s) without our prior written consent and only then pursuant to our trademark usage guidelines.
a.3. No Disruption
You agree not to use the tamtam Service in a way that impacts the normal operation, privacy, integrity or security of another’s property. Another’s property includes another’s account(s), domain name(s), URL(s), website(s), network(s), system(s), facilities, equipment, data, other information, or business operations. You also agree not to use the tamtam Service to gain unauthorized access to, use, monitor, make an unauthorized reference to, another’s property, unless you have the appropriate express prior consent to do so. Examples of prohibited actions include (without limitation): hacking, spoofing, denial of service, mailbombing and/or sending any email that contains or transmits any virus or propagating worm(s), or any malware, whether spyware, adware or other such file or program. You also agree not to use the tamtam Service in a way that causes or may cause any tamtam IP addresses, tamtam domains, or tamtam customer domains to be blacklisted. These restrictions apply regardless of your intent and whether or not you act intentionally or unintentionally.
b. Prohibited and Unauthorized Use. You will not (i) use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” that sends more request messages to our servers in a given period of time than a human can reasonably produce in the same period by using a conventional browser; (ii) use the Subscription Service in any manner that damages, disables, overburdens, or impairs any of our websites or interferes with any other party’s use of the Subscription Service; (iii) attempt to gain unauthorized access to the Subscription Service; (iv) access the Subscription Service other than through our interface; or (v) use the Subscription Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service. The Subscription Service is not designed to comply with industry-specific regulations such as the Health Insurance Portability and Accountability Act (HIPAA), the Gramm-Leach-Bliley Act (GLBA), or the US Federal Information Security Management Act (FISMA), so you may not use the Subscription Service where your communications would be subject to such laws.
You will notify us right away of any unauthorized use of your Users’ identifications and passwords or your account by emailing email@example.com.
c. No Sensitive Information. YOU AGREE NOT TO USE THE SUBSCRIPTION SERVICE TO COLLECT, MANAGE OR PROCESS SENSITIVE INFORMATION. WE WILL NOT HAVE ANY LIABILITY THAT MAY RESULT FROM YOUR USE OF THE SUBSCRIPTION SERVICE TO COLLECT OR MANAGE SENSITIVE INFORMATION.
7. Subscription Term, Termination, Suspension
a. Term and Renewal. Your initial subscription period will be specified in your Order, and, unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription period, or one year. To prevent renewal of the subscription, the required notice must be provided within the time frame as specified in the ‘Subscription Types’ section below.
The renewal pricing set forth in your Order will apply, subject to adjustment as specified in the ‘Fees and Payments’ section above. If renewal pricing is not included in your Order, then our standard pricing available in our Product and Services Catalog on the date of renewal will apply. If you use our Free Services, we will make the Free Services available to you free of charge until earlier of (a) the date on which your free subscription is terminated or (b) the start date of your paid subscription.
b. No Early Termination; No Refunds. The Subscription Term will end on the expiration date and the subscription cannot be cancelled early. We do not provide refunds if you decide to stop using the tamtam subscription during your Subscription Term.
c. Termination for Cause. Either party may terminate this Agreement for cause, as to any or all Subscription Services: (i) upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers. This Agreement may not otherwise be terminated prior to the end of the Subscription Term.
d. Suspension for Prohibited Acts. We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement, (ii) use of the tamtam’s email send service that results in excessive hard bounces, SPAM complaints via feedback loops, direct spam complaints (to our abuse desk), or requests for removal from a mailing list by recipients, or (iii) repeated instances of posting or uploading material that infringes or is alleged to infringe on the copyright or trademark rights of any person or entity. We may, without notice, review, edit and delete any Customer Data or Customer Materials that we determine in good faith violate these terms or the AUP, provided that, we have no duty to pre-screen, control, monitor or edit your Customer Data or Customer Materials.
e. Suspension for Non-Payment. We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services ten (10) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Subscription Service is suspended for non-payment, we may charge a re-activation fee to reinstate the Subscription Service.
f. Suspension for Present Harm. If your use of the Subscription Service: (i) is being subjected to denial of service attacks or other disruptive activity, (ii) is being used to engage in denial of service attacks or other disruptive activity, (iii) is creating a security vulnerability for the Subscription Service or others, (iv) is consuming excessive bandwidth, or (v) is causing harm to us or others, then we may, with electronic or telephonic notice to you, suspend all or any access to the Subscription Service. We will try to limit the suspension to the affected portion of the Subscription Service and promptly resolve the issues causing the suspension of the Subscription Service. Nothing in this clause limits our right to terminate for cause as outlined above, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
g. Suspension and Termination of Free Services. We may suspend, limit, or terminate the Free Services for any reason at any time without notice. We may terminate your subscription to the Free Services due to your inactivity.
h. Effect of Termination or Expiration. If your paid subscription is terminated or expires, we will continue to make available to you our Free Services provided however, this may not be the case if your Agreement was terminated for cause. You may request deletion of your tamtam account after expiration or termination of your subscription by sending a request to firstname.lastname@example.org or by following the instructions found here. You will continue to be subject to this Agreement for as long as you have access to a tamtam account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service, and if we request, you will provide us written confirmation that you have discontinued all use of Enrichment Data (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) We may or may not provide you the opportunity to retrieve Customer Data after termination or expiration, depending on the type of applicable subscription as specified in the ‘Retrieval of Customer Data’ section below. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Subscription Term. Fees are otherwise non-refundable.
C. SUBSCRIPTION TYPE TERMS
1. Subscription Types. We offer two main types of subscriptions: (1) Full-Service Subscriptions, and (2) Free Subscriptions. There are different terms that apply depending on the subscription you purchase, and we cover those differences in this section. Unless otherwise agreed to in an Order, the following subscription types apply to the products specified:
(1) Full-Service Subscriptions: the tiers of the paid Subscription Service as shown on https://tamtam.to.
(2) Free Subscriptions: the trial service limited in time.
2. Limits. The limits that apply to you will be specified in your Order Form or this Agreement and for our Free Subscriptions, these limits may also be designated only from within the product itself. You must be 18 years of age (or 20 years of age, if you are subject to the laws of Japan) or older to use the Subscription Service.
For our Full-Service Subscriptions, if we make modifications to the limits set forth in the application that would negatively impact you, these modifications will not apply to you until the start of your next renewal Subscription Term. On renewal, the current product usage limits as stated on https://tamtam.to will apply to your subscription, unless you and we otherwise agree.
For our Free Subscriptions, we may change the limits that apply to your use at any time in our sole discretion without notice to you, regardless of whether or not these are used in conjunction with other products or services for which you pay us a fee.
3. Downgrades. For our Subscription Service, you may not downgrade your subscription and in order to avoid additional charges, you should purchase the appropriate tier of Subscription Service for your anticipated needs.
4. Modifications. We modify the Subscription Service from time to time, including by adding or deleting features and functions, in an effort to improve your experience.
5. Customer Support. Email and in-app support is included at no additional cost. We accept email support questions 24 Hours per Day x 7 Days per Week. Email questions can be submitted to email@example.com. We attempt to respond to email support questions within one business day; in practice, our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny your access to support if we determine, in our reasonable discretion, that you are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of tamtam representatives.
6. Notice of Non-Renewal. Your subscription will automatically renew according to the ‘Term and Renewal’ section above.
Unless otherwise specified in your Order, to prevent renewal of a Full-Service Subscription, you or we must give written notice of non-renewal and this written notice must be received no less than ten (10) days in advance of the end of the Subscription Term.
To prevent continuation of the Subscription Term of a Free Subscription, you or we may close your account.
7. Retrieval of Customer Data. For our Full-Service Subscriptions, as long as you have paid all fees owed to us, if you make a written request within thirty (30) days after termination or expiration of your subscription, we will provide you with temporary access to the Subscription Service to retrieve, or we will provide you with copies of, all Customer Data then in our possession or control. If we provide you with temporary access to the account, we may charge a re-activation fee. We may withhold access to Customer Data until you pay any fees owed to us. Thirty (30) days after termination or expiration of your Subscription, we will have no obligation to maintain or provide you the Customer Data and may, unless legally prohibited, delete all Customer Data in our systems or otherwise in our control.
For Free Subscriptions, we will not provide you with any access to Customer Data after termination or expiration of your subscription.
D. PRODUCT DISCLOSURES
E. GENERAL LEGAL TERMS
1. Customer Data
b. Aggregate Data. We may monitor use of the Subscription Service by all of our customers and use the information gathered in an aggregate and anonymous manner. You agree that we may use and publish such information, provided that such information does not incorporate any Customer Data and/or identify you. We may, however, use Customer Data as part of internal data processes to develop and improve Enrichment Data. With these internal data processes, in no event will Customer Data be disclosed, included within or provided to other customers or third parties. For clarity any data provided to other customers or third parties will only be in an aggregated and anonymous manner.
c. Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Data. You consent to the processing of Customer Data in the European Union.
2. tamtam’s Proprietary Rights. This is an Agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement. The Subscription Service and Consulting Services are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the tamtam Content, the Subscription Service, or the Consulting Services in whole or in part, by any means, except as expressly authorized in writing by us.
If we make Enrichment Data available to you, then you may only use that Enrichment Data in connection with your use of the Subscription Service (unless, of course, you have a source other than the Subscription Service for such Enrichment Data.) Enrichment Data may be made available to you based on Customer Data, but we will not use your Customer Data to enrich data for other parties, except as we describe in the ‘Aggregate Data’ section above. The Enrichment Data we provide may be provided from or through third party service providers or public sources.
We encourage all customers to comment on the Subscription Service or Consulting Services, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment or attribution to you.
3. Customer’s Proprietary Rights. As between the parties, you own and retain all rights to the Customer Materials and Customer Data. This Agreement does not grant us any ownership rights to Customer Materials or Customer Data. You grant permission to us and our licensors to use the Customer Materials and Customer Data only as necessary to provide the Subscription Service and Consulting Services to you and as permitted by this Agreement. If you are using the Subscription Service or receiving Consulting Services on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
4. Confidentiality. The Receiver will: (i) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (ii) not use any Confidential Information for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information to any third party (except our third party service providers), and (iv) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Discloser, the Receiver may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
5. Publicity. You grant us the right to add your association’s name, band name and logo to our customer list and website.
6. Indemnification. You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an “Action”) brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) unauthorized or illegal use of the Subscription Service by you, (b) your noncompliance with or breach of this Agreement, (c) your use of Third-Party Products, or (d) the unauthorized use of the Subscription Service by any other person using your User information. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
7. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, TAMTAM CONTENT, OR THE CONSULTING SERVICES FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE SUBSCRIPTION SERVICE, TAMTAM CONTENT AND CONSULTING SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES; PROVIDED THAT, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES.
c. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, AND YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF ONE THOUSAND EURO OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED EUROS.
d. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
e. Agreement to Liability Limit. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
a. Amendment; No Waiver. We may update and change any part or all of these Customer Terms of Service, including the fees and charges associated with the use of the Subscription Service (but, your fees and charges won’t change during the Subscription Term except as we explain in the ‘Fees and Payments’ section above.) If we update or change these Customer Terms of Service, the updated Customer Terms of Service will be posted at https://tamtam.to and we will let you know via email or in-app notification. The updated Customer Terms of Service will become effective and binding on the next business day after it is posted. When we change these Customer Terms of Service, the “Last Modified” date above will be updated to reflect the date of the most recent version.
If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Customer Terms of Service prior to modification for the remainder of your current term. Upon renewal, the Customer Terms of Service published by us on our website will apply.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Compliance with Laws. We will comply with all EU and Belgian laws (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use of the Subscription Service and Consulting Services, including any applicable export laws.
e. Severability. If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
f. Notices. Notice will be sent to the contact address set forth herein, and will be deemed delivered as of the date of actual receipt.
tamtam – General Counsel
To you: your address as provided in our tamtam Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
i. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
j. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
k. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Definitions’, ‘Fees and Payments’, ‘Prohibited and Unauthorized Use’, ‘No Early Termination; No Refunds’, ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Suspension for Present Harm’, ‘Suspension and Termination of Free Services’, ‘Effect of Termination or Expiration’, ‘Retrieval of Customer Data’, tamtam’s Proprietary Rights’, ‘Customer’s Proprietary Rights’, ‘Confidentiality’, ‘Publicity’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
l. Precedence. In the event of a conflict between the terms of the Customer Terms of Service and an Order, the terms of the Order shall control, but only as to that Order.
F. JURISDICTION SPECIFIC TERMS
1. EU/EEA and Switzerland Data Processing.
To the extent that tamtam processes any Personal Data as part of Customer Data that is subject to the General Data Protection Regulation (the “GDPR”), on Customer’s behalf, in the provision of the services hereunder, the terms of the tamtam Data Processing Agreement, which are hereby incorporated by reference, shall apply. For customers that are located in the European Union or the European Economic Area, the Standard Contractual Clauses adopted by the European Commission, attached to the Data Processing Agreement, with tamtam, which provide adequate safeguards with respect to the personal data processed by us under this Agreement and pursuant to the provisions of our Data Processing Agreement apply. You acknowledge in all cases that tamtam acts as the data processor of Customer Data and you are the data controller of Customer Data if you are subject to the applicable data protection regulations in the European Union and European Economic Area. Customer will obtain and maintain any required consents necessary to permit the processing of Customer Data under this Agreement. If you are subject to the GDPR you understand that if you give an integration provider access to your tamtam account, you serve as the data controller of such information and the integration provider serves as the data processor for the purposes of those data laws and regulations that apply to you. In no case are such integration providers our sub-processors.
2. Germany. In the event of a conflict between the terms in this ‘Germany’ section and the terms otherwise set forth in this Agreement, the terms of this ‘Germany’ section shall control.
a. Defects. If the Subscription Service is determined to have a defect, you will notify us in writing. We will remedy material defects in a reasonable period of time. If we cannot, then we will refund to you the pro-rata amount of fees actually paid applicable to the unremedied material defect. You cannot deduct this amount from your Subscription Fee, unless your claim is undisputed or has been confirmed by a final court judgment. You will not have a claim for a defect under this section if: (i) it is caused by your use of the Subscription Service in violation of this Agreement, or (ii) is a defect relating to our Free Services that has not been maliciously concealed by us. Subject to the limitation of liability set forth in this Agreement, the refund described in this section is your sole and exclusive remedy for defect claims.
b. Termination for Cause. The ‘Termination for Cause’ section set forth above is replaced in its entirety with the following:
“Either party may terminate this Agreement for cause, as to any or all Subscription Services upon thirty (30) days’ notice to the other party of a material breach if such breach remains uncured at the expiration of such period. We may also terminate this Agreement for cause on thirty (30) days’ notice if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Subscription Term. The right of either party to terminate this Agreement for a compelling reason under a claim of extraordinary termination under the German Civil Code shall remain unaffected.”
c. Compliance with Laws. We will comply with all E.U. Regulations (where applicable) in our provision of the Subscription Service, the Consulting Services and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request. You will comply with all laws in your use and receipt of the Subscription Service and Consulting Services, including any applicable export laws.
d. Disclaimers; Limitations of Liability. The ‘Disclaimers; Limitations of Liability’ set forth above is replaced in its entirety with the following:
“a. Disclaimer of Warranties. OUR SUBSCRIPTION SERVICE AND CONSULTING SERVICES WILL BE PROVIDED IN A PROFESSIONAL MANNER IN ACCORDANCE WITH CUSTOMARY INDUSTRY STANDARDS UTILIZING REASONABLE CARE AND SKILL. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, TAMTAM CONTENT, OR THE CONSULTING SERVICES FOR A PARTICULAR PURPOSE NOR ON A SPECIFIC RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SUBSCRIPTION SERVICE, DATA MADE AVAILABLE FROM THE SUBSCRIPTION SERVICE, TAMTAM CONTENT, OR THE CONSULTING SERVICES, EXCEPT IF AGREED SEPARATELY.
ANY LIABILITY FOR DEFECTS EXISTING UPON CONCLUSION OF THESE TERMS ACCORDING TO SECTION 536a GERMAN CIVIL CODE SHALL BE EXCLUDED.
APPLICATION PROGRAMMING INTERFACES (APIs) MAY NOT BE AVAILABLE AT ALL TIMES.
OUR FREE SERVICES, ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE SUBSCRIPTION SERVICE AND THE CONSULTING SERVICES, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. Full Liability. We will be liable to you without limit for loss or damage you actually suffer that is caused by: (i) our fraudulent action, (ii) our willful action, (iii) our gross negligence, (iv) our damage to life, body or health, or (v) our action that would give rise to a claim under the German Product Liability Act and/or (vi) from a guarantee of characteristics (“zugesicherte Eigenschaft”). Provided however, the limitations otherwise set forth below shall apply to: (w) our Free Services, (x) those losses or damages caused by our slight negligence, (y) those losses or damages caused by gross negligence of employees who are not legal representatives or senior employees, and (z) our strict liability that may arise from material defects in the Subscription Service that were already in existence at the commencement of your subscription. The claims for which we will be liable to you without limit in accordance with this section are collectively referred to as “Full Liability Claims”.
c. No Indirect Damages. EXCEPT FOR FULL LIABILITY CLAIMS, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR LOSS OF PROFITS, REVENUE, DATA OR BUSINESS OPPORTUNITIES.
d. Limitation of Liability. EXCEPT FOR YOUR LIABILITY FOR PAYMENT OF FEES, YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS, AND OUR LIABILITY FOR FULL LIABILITY CLAIMS, IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF ONE THOUSAND U.S. EURO OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED EURO.
e. Third Party Products. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THIRD-PARTY PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT.
f. EXCEPT FOR FULL LIABILITY CLAIMS, THE PERIOD OF LIMITATION FOR ANY WARRANTY AND LIABILITY CLAIMS SHALL BE ONE YEAR.”
3. France. The following provisions apply to you. In the event of a conflict between the terms in this ‘France’ section and the terms otherwise set forth in this Agreement, the terms of this ‘France’ section shall control.
a. Payment against Invoice. The following is added to the end of the ‘Payment against Invoice’ section: “In case of late payment, an indemnity will be payable, in accordance with articles L. 441-1 and -10 of the French Commercial Code. This penalty amount will be three times (3x) the legal late payment interest rate, plus a lump sum of 40 euros for recovering costs.”
b. Termination for Cause. The following is added to the ‘Termination for Cause’ section: “Rights of termination provided in this section are not exclusive of other remedies to which you or we may be entitled, including the right to compensation”.
c. Limitation of Liability. The Limitation of Liability section set forth above is replaced in its entirety with the following: ”EXCEPT FOR YOUR LIABILITY FOR (i) PAYMENT OF FEES, (ii) YOUR LIABILITY ARISING FROM YOUR OBLIGATIONS UNDER THE ‘INDEMNIFICATION’ SECTION, (iii) YOUR LIABILITY FOR VIOLATION OF OUR INTELLECTUAL PROPERTY RIGHTS AND (iv) OUR LIABILITY FOR LOSS OR DAMAGE THAT IS CAUSED BY OUR FRAUDULENT ACTION (“DOL”) OR OUR GROSS MISCONDUCT (“FAUTE LOURDE”), IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, EITHER PARTY IS DETERMINED TO HAVE ANY LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY, THE PARTIES AGREE THAT THE AGGREGATE LIABILITY OF A PARTY WILL BE LIMITED TO THE LESSER OF ONE THOUSAND EURO OR THE TOTAL AMOUNTS YOU HAVE ACTUALLY PAID FOR THE SUBSCRIPTION SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM; PROVIDED HOWEVER, THIS LIMITATION SHALL NOT APPLY TO YOU IF YOU ONLY USE THE FREE SERVICES, AND IN THIS CASE, IF WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY ARISING FROM YOUR USE OF THE FREE SERVICES, THEN OUR AGGREGATE LIABILITY WILL BE LIMITED TO ONE HUNDRED EURO.”