Tap’n Merchant Terms of Service
Effective July 1, 2022
Your access, browsing and use of the Fastr Tech, Inc. dba Tap’n’s (“Tap’n”) website andTap’n’s products and services including receiving and managing digital receipts and marketing and other messages from Merchants and ancillary services (collectively, the “Tap’n Services”) are subject to the following terms and conditions which include Your agreement to arbitrate claims. (“Terms of Service”). References to “You” or “Your” shall mean the individual users of
the Tap’n Services depending on the context in which those terms are used.
. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, YOU MAY NOT USE THE TAP’N SERVICES.
In the event You are required to order Services through an on-line order page or an order form (each an “Order Form”) and the Order Form contains additional terms and conditions regarding the Tap’n Services those additional terms are hereby incorporated into this Agreement unless expressly excluded in such Order Form. In addition, Your use of Tap’n Services is subject to all applicable third party rights, laws and regulations. Tap’n Services may integrate with products or services of a 3rd party not affiliated with Tap’n (“3rd Party Services”). You should review the terms of agreements with such 3rd Party Services to ensure they are acceptable to You.
INFORMATION ON THIS WEBSITE
The contents of the Tap’n Services are the sole and exclusive property of Tap’n, protected by law, including, but not limited to United States copyright law and international treaties. The material and functionality provided herein are used for information and convenience purposes only and do not constitute advice, recommendations or counsel. The contents should not be relied upon in any way other than informational purposes. The contents are subject to change without notice to You. Tap’n makes no representation that the materials in the Merchant Services are accurate, appropriate or available for use in all locations.
TAP’N ACCOUNT SETUP
- Eligibility. To be eligible to use the Tap'n Services, You must be at least 18 years old, and reside in the United States. There may be certain features which may or may not be available to You depending on Your location and other criteria.
- Registration of Tap'n Account. You must register for a Tap'n account to use the Tap'n Services (a "Tap'n Account"). By registering or using a Tap' Account You agree and represent that Youhave created Your Tap'n Account and You will use Your Tap'n Account only for Yourself and all information provided is accurate, and not on behalf of any third party, unless You have obtained prior written approval from Tap'n. You are fully responsible for all activity that occurs under Your Tap'n Account. We may, in our sole discretion, refuse to open a Tap'n Account, suspend or terminate any Tap'n Account, suspend or terminate Your use of the Tap'n Services for any reasonable purpose and at any time.
- Access to Tap'n Services. The Tap'n Services can be accessed directly using the Tap'n Site.Access to Tap'n Services may become degraded or unavailable during times of significant volatility or volume. This could result in significant support response time delays. Although we strive to provide You with excellent service, we do not represent that the Tap'n Site or other Tap'n Services will be available without interruption and we do not guarantee that any order will be executed, accepted, recorded, or remain open. Tap'n shall not be liable for any losses resulting from or arising out of delays in processing transactions, inability to execute transactions, or lack of timely response from Tap'n customer support. For example, if You are locked out of Your Tap'n Account.
The Tap'n Services allow You to receive and manage digital receipts and marketing and other messages to You from Merchant's whom You have elected to receive receipts, offers and updates. Tap'n is not involved in or responsible for the marketing messaging from Merchants, except for providing the Merchant's with services that facilitate the creation, delivery and management of messages to You. The Merchant is responsible for marketing messages that You receive using the Tap'n Services, the content of those messages, and honoring any customer privacy choices and terms included in such messages.
- Prohibited Use. You agree You will not: (i) use Tap’n Services in violation of any third parties rights including activity that is illegal, obscene, indecent, offensive, fraudulent or violates any privacy rights or intellectual property rights; (ii) modify, disassemble, decompile, reverse engineers or prepare derivative works of the Tap’n Services or attempt to gain access to the source code of the Tap’n Services; (iii) use Tap’n Services in a manner that does or is intended to harm, disable, or adversely affect the Tap’n Services in any way.
- Limitations on Use. You may not reproduce, resell, or distribute the Tap’n Services or any reports or data generated by the Tap’n Services for any purpose. You will not use the Tap’n Services to develop competing products or services. You may not offer or enable any third parties to use the Tap’n Services acquired by You, display on any website or otherwise publish the Tap’n Services or any Content obtained from a service (other than Content created by You) or otherwise generate income from the Tap’n Services or use the Tap’n Services for the development, production or marketing of a service or product substantially similar to the Tap’n Services.
- Copyrights. Tap’n owns all copyrights in all material provided in Tap’n Services. None of the material may be copied, reproduced, distributed, republished, downloaded, displayed, or posted or transmitted in any form or by any means, including but not limited to, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of Tap’n. Any unauthorized use of any material contained in Tap’n Services may violate laws of the United States and other territories, including without limitation copyright laws, trademark laws, the laws of privacy or publicity, and communications’ regulations and statutes.
- Trademarks. The trademarks, service marks, and logos (the “Trademarks”) used and displayed on this Tap’n Services are the Trademarks of Tap’n and other 3rd parties. Nothing in Tap’n Services should be construed as granting, by implications, estoppels, or otherwise, any license or right to use any Trademark displayed on the Tap’n Services, without the express written permission of the Trademark owner. The name of Tap’n or the Tap’n logo may not be used in any way without prior, written permission from Tap’n. Tap’n prohibits use of the Tap’n logo as a “hot” link to the Tap’n Services unless the establishment of such a link is approved in advance by Tap’n in writing.
DISCLAIMER OF WARRANTIES
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, ALL CONTENT, INFORMATION, SERVICES AND TOOLS IN TAP’N SERVICES ARE PROVIDED ON AN "AS IS", AND "AS AVAILABLE" BASIS. USE OF TAP’N SERVICES IS SOLELY AT YOUR OWN RISK. TAP’N MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TAP’N HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TAP’N MAKES NO WARRANTY THAT THE CONTENT AND SOFTWARE ARE ACCURATE, TIMELY, UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE.
You will indemnify, defend, and hold Tap’n (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of or in connection with any claim, action, or other proceeding instituted by any person or entity that arises out of or relates to: (a) any actual or alleged breach of Your representations, restrictions, warranties, or obligations set forth in these Terms of Service; (b) Your wrongful or improper use of Tap’n Services; (c) Your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) Your violation of any law, or regulation of the United States; and (f) any other party’s access and/or use of Tap’n Services with Your unique name, and password.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND HEREBY AGREE THAT, EXCEPT AS OTHERWISE EXPRESSLY STATED AND TO THE EXTENT APPLICABLE BY LAW, IN NO EVENT WILL TAP’N AND ITS AFFILIATES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, REGARDLESS OF THE NATURE OR BASIS OF THE CLAIM, RESULTING FROM ANY USE OF TAP’N SERVICES, OR THE CONTENTS THEREOF OR OF ANY HYPERLINKED 3RD PARTY SERVICES INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, FAILURE OF PERFORMANCE, DELAY IN OPERATION OF TRANSMISSION, COMPUTER VIRUS OR EQUIPMENT OR NETWORK FAILURE OR OTHERWISE, EVEN IF THERE IS NEGLIGENCE BY TAP’N OR TAP’N HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT COLLECTED UNDER THIS AGREEMENT.
CLASS ACTION WAIVER
Any proceeding(s) to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither You nor Tap’n will seek to have any dispute heard as a class action or in any other proceeding in which either party acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of all parties to all affected proceedings. You and Tap’n also agree not to participate in claims brought in a private attorney general or representative capacity, or any consolidated claims involving another person's account, if Tap’n is a party to the proceeding. You are giving up Your right to participate as a class representative or class member on any class claim You may have against us including any right to class arbitration or any consolidation of individual arbitrations.
You and Tap’n agree that any and all disputes, except those that are resolved informally or brought in a small claims court, will be arbitrated by a neutral arbitrator who has the power to award the same individual damages and individual relief that a court can. ANY ARBITRATION UNDER THESE TERMS OF SERVICE WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, REPRESENTATIVE ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST TAP’N. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration).
Informal dispute Resolution. Before an arbitration is commenced, You or Tap’n agree to attempt to avoid the costs of formal dispute resolution by giving each other a full and fair opportunity to address and resolve a dispute informally. Both parties recognize that this is an important requirement, and that breach of this requirement would be a material breach of the Terms of Service. To provide this opportunity, before commencing any arbitration or suit, each party agrees to send to the other party a written Notice (“Notice”). Any Notice to Tap’n should be sent by mail to 838 Walker Road Suite 21-2, Dover, DE 19904. Any Notice sent to You will be sent to the address on file for Your account. Both parties agree that they will attempt to resolve a dispute through an informal negotiation within sixty (60) days from the date the Notice is sent. After that sixty (60) day period and not before, either party may commence arbitration.
Scope of Arbitration.
If the parties not able to resolve the dispute by informal negotiation or, as provided below, in a small claims court, all disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator (the “Arbitrator”) administered by the American Arbitration Association (https://www.adr.org
) according to this Section and the Commercial Arbitration Rules
for that forum, except You and Tap’n will have the right to file early or summary dispositive motions and to request that the AAA’s Expedited Procedures apply regardless of the claim amount. Except as set forth above, the Arbitrator shall be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms of Service (or any aspect thereof) are enforceable, unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.
Small Claims Court. Subject to applicable jurisdictional requirements, either party may elect to pursue a dispute in a local small-claims court rather than through arbitration so long as the matter remains in small claims court and proceeds only on an individual basis. If a party has already submitted an arbitration demand to the AAA, the other party may, in its sole discretion, inform the AAA that it chooses to have the dispute heard in small claims court. At that time, the AAA will close the arbitration and the dispute will be heard in the appropriate small claims court, with no fees due from the arbitration respondent.
Arbitration Procedures. The Federal Arbitration Act, 9 U.S.C. §§ 1-16, including its procedural provisions, fully applies. Any arbitration hearing will occur in San Francisco, California, at another mutually agreeable location or, if both parties agree, by telephone or videoconference. The Arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. Tap’n values Your privacy, particularly with respect to Your financial transactions and data. Each of the parties shall maintain the confidential nature of the arbitration and shall not (without the prior written consent of the other party) disclose to any third party the fact, existence, content, award, or other result of the arbitration, except as may be necessary to enforce, enter, or challenge such award in a court of competent jurisdiction or as otherwise required by applicable law. While an arbitrator may award declaratory or injunctive relief, the Arbitrator may do so only with respect to the individual party seeking relief and only to the extent necessary to provide relief warranted by the individual party’s claim. The Arbitrator’s decision and judgment thereon will not have a precedential or collateral estoppel effect.
Opt Out. You may reject this provision, in which case only a court may be used to resolve any dispute. To reject this provision, You must send us an opt-out notice (the “Opt Out”) within thirty (30) days after You create a Tap’n Merchant Account or we first provide You with the right to reject this provision.
Fastr Tech, Inc. dba Tap’n and its affiliates and third party service providers (collectively, “Tap’n”) may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding our Services. Your agreement to this E-sign Consent confirms Your ability and consent to receive Communications electronically from Tap’n, its affiliates, and its third party service providers, rather than in paper form, and to the use of electronic signatures in our relationship with you (“Consent”). If You choose not to agree to this Consent or You withdraw your consent, You may be restricted from using the Services.
Under this Consent, Tap’n may provide all Communications electronically by email, by text message, or by making them accessible via Tap’n websites or applications. Communications include, but are not limited to, (1) agreements and policies required to use the Services (e.g. this Consent, the Tap’n Privacy Notice), (2) payment authorizations and transaction receipts or confirmations, (3) account statements and history, (4) and all federal and state tax statements and documents. We may also use electronic signatures and obtain them from you.
You have the right to receive Communications in paper form. To request a paper copy of any Communication at no charge, please write to 838 Walker Road Suite 21-2, Dover, DE 19904 Attn: Customer Support (“255 Executive Drive #202, Plainview, NY - 11803”) within 180 days of the date of the Disclosure, specifying in detail the Communication you would like to receive. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
You may withdraw your consent to receive electronic Communications at any time, by writing to the Tap’n Address. However, withdrawal of your consent to receive electronic Communications may result in termination of your access to Services. Any withdrawal of your consent will be effective after a reasonable period of time for processing your request, and Tap’n will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
You can change your email address by writing to the Tap’n Address. You may also be able to change your email address yourself through the Services.