TabTab, LLC

TERMS OF SERVICE

Last updated: August 1, 2019

These Terms of Service (the “Terms”) govern the relationship between TabTab, LLC (hereinafter, “TabTab,” “us,” or “we”) and you regarding your use of services provided by TabTab, any website we operate to provide or facilitate the provision of such services, and any mobile applications we provide for your use with such services (“Website”) and any other of TabTab’s products or services used to facilitate your use of such services (collectively the “Service”). The Service is owned and operated by TabTab.

Use of the Service is also governed by TabTab’s Privacy Policy, the current version of which can be found at www.TabTab.com/privacypolicy (the “Privacy Policy”), which is incorporated herein by reference.

IMPORTANT – PLEASE READ CAREFULLY – THESE TERMS CREATE A LEGALLY BINDING AGREEMENT WHICH GOVERNS YOUR USE OF THE SERVICE. BY CREATING AN ACCOUNT (AS DEFINED BELOW) OR BY ACCESSING OR USING THE SERVICE OR ANY CONTENT OFFERED THROUGH THE APPLICATION, YOU ACCEPT AND AGREE TO BE BOUND, WITHOUT LIMITATION OR QUALIFICATION, BY THESE TERMS. IF YOU DO NOT ACCEPT ANY OF THESE TERMS, YOU ARE PROHIBITED FROM USING THE SERVICE. IF YOU WERE USING A BETA VERSION OR OTHER VERSION OF THE SERVICE OFFERED PRIOR TO YOUR ACCEPTANCE OF THESE TERMS, THESE TERMS ALSO APPLY TO YOUR PAST USE OF THAT BETA OR OTHER VERSION OF THE SERVICE.

If you are using the Service on behalf of another person or entity (the “Principal User”), then you personally represent and warrant to us that the Principal User has authorized you to act on the Principal User’s behalf and to obligate the Principal User to be bound by these Terms; you hereby agree to these Terms in the name of and on behalf of the Principal User. Except in the prior sentence, as used in these Terms (and the Privacy Policy and any other policies), “you” refers to the Principal User on behalf of whom the Service is used.

1. Right, License and Restrictions.

1.1. License Grant and Website Terms. Subject to your agreement to, and continuing compliance with, these Terms and any other relevant TabTab policies, TabTab grants you a non-exclusive, non-transferable, revocable limited right and license to access and use the Service. As used in these Terms, “Other User” means another licensee or user of the Service; “All Users” means you and all Other Users. You agree not to reverse engineer, decompile or otherwise attempt to view the source code for any portion of the Website and not to distribute or modify the any portion of Website. You agree to use only the most recently available version of a mobile application when using the Service through such mobile application. In the event of any conflict between these Terms and any terms you may have agreed to regarding use of any mobile application, these Terms shall control.

1.2. Minimum Age Requirement. An individual must be at least 18 years of age to use the Service.

1.3. Accounts and Access. You must register for an account through the Service (an “Account”). You may only register for one Account. An “Account Holder” means the person or entity in whose name an Account is registered. A “Third Party Account” means an Account not registered by you.

1.4. Use of the Service: The following restrictions apply to the use of the Service:

(a) You accept full responsibility for any unauthorized use of the Service by parties not authorized to use any of your Accounts. Additionally, you are responsible for any use of your credit card or other payment instrument (e.g. PayPal) incurred by parties using your Account;

(b) You shall not create an Account using a false identity or false information, or on behalf of someone other than yourself;

(c) Without first obtaining the written permission of TabTab, you shall not register for an Account or in any way use the Service if TabTab has removed, suspended, or otherwise terminated any Account registered for by you, or on behalf of you or if TabTab has notified you that you may not use the Service;

(d) Except for using features of the Service related to claiming and offering your products for sale through the Service, you shall not use your Account to advertise, solicit or transmit any commercial advertisements (including offering your products for sale other than through the Service), including chain letters, junk email or repetitive messages to anyone;

(e) You shall not use the Service to engage in any illegal conduct;

(f) You shall not rent, lease, sell, trade, gift, bequeath or otherwise transfer your Account to anyone without TabTab’s written permission;

(g) You shall not reproduce, distribute or publicly display any content you access through the Service unless such content is clearly marked as “public” and you have been given the right to view such content; and

(h) You shall not do anything with any content you access through the Service that has been marked with restrictions or other instructions that is counter to such restrictions or other instructions.

1.5. Account Information and Management.

(a) Information Provided When Setting Up Account. When creating or updating an Account on the Service, you are required to provide TabTab with certain personal information for yourself or for the individual acting on your behalf if you are a User who is not an individual, which may include (but is not limited to) personal information such as name, birth date and email address, and, in some cases, payment information (“Account Information”). Account Information will be held and used in accordance with the Privacy Policy. You agree that you will supply accurate and complete Account Information to TabTab, and that you will update such information when and as it changes.

(b) Login Information. During the Account creation process, you will be required to select a username and password (“Login Information”). The following rules govern the security of your Login Information:

(i) You shall not share the Account or the Login Information, nor let anyone else access your Account or do anything else that might jeopardize the security of your Account;

(ii) In the event you become aware of, or reasonably suspect, any breach of security, including without limitation any loss, theft or unauthorized disclosure of the Login Information, you must immediately notify TabTab and change the password on your Account;

(iii) You are solely responsible for maintaining the confidentiality of the Login Information and you will be responsible for all uses of the Login Information, including purchases, whether or not authorized by you; and

(iv) You are responsible for anything that happens through your Account.

(c) Login with Third Party Service. The Website may allow also you to login to the Website or create an Account by authenticating through a service provided by a third party with which you have an established relationship, such as, for example, Duoplane. If you login or create an Account through such means of authentication, you explicitly consent to TabTab obtaining all information that TabTab obtains from a third party as reasonably necessary for administering and creating your Account and you represent and warrant that all personal information and other information that TabTab obtains reasonably related to creation of an Account is accurate.

(d) Reclaiming Usernames. TabTab reserves the right to remove or reclaim any username at any time and for any reason or no reason, including but not limited to claims by a third party that a username violates the third party’s rights.

1.6. License and Account Limitations and Prohibitions.

(a) General Effects of Violations. Any use of the Service in violation of these Terms is strictly prohibited, can result in the immediate revocation of your limited license granted pursuant to Section 1, and may subject you to liability for violations of law. TabTab is permitted restrict use of the Service for anyone who TabTab reasonably believes has or will violate any applicable law when using the Service.

(b) Activity Prohibitions. You agree that you will not, under any circumstances:

(i) Engage in any act that TabTab deems to be in conflict with the spirit or intent of the Service, including but not limited to circumventing or manipulating these Terms;

(ii) Use the Service in connection with any violation of any applicable law or regulation, or do anything that promotes the violation of any applicable law or regulation;

(iii) Modify or cause to be modified any files or content that are used to offer the Service, without the express prior written consent of TabTab;

(iv) Disrupt, overburden, or aid or assist in the disruption or overburdening of (1) any computer or server used to offer or support the Service (each a “Server”) or (2) the use or enjoyment of the Service by any other person;

(v) Institute, assist or become involved in any type of attack, including without limitation distribution of a virus, denial of service attacks upon the Service, or other attempts to disrupt the Service or any other person’s use or enjoyment of the Service;

(vi) Gain, or attempt to gain, unauthorized access to the Service, Accounts, Servers or networks connected to the Service by any means (including, but not limited to, circumventing or modifying, or encouraging or assisting any other person to circumvent or modify, any security, technology, device or software that is part of the Service);

(vii) Post any information that is abusive, threatening, obscene, defamatory, libelous or racially, sexually, religiously or otherwise objectionable or offensive;

(viii) Post any information that contains nudity, excessive violence or offensive subject matter or that contains a link to such content;

(ix) Harass, abuse, harm, or advocate or incite harassment, abuse or harm of another person or group of persons, including TabTab employees or customer service representatives;

(x) Post, distribute or make available through the Service any material or information that infringes any copyright, trademark, patent, trade secret, right of privacy, right of publicity or other right of any person or entity or impersonates any other person;

(xi) Transmit unauthorized communications through the Service, including junk mail, chain letters, spam and any materials that promote malware, spyware and downloadable items;

(xii) Interfere or attempt to interfere with the proper functioning of the Service or connect to or use the Service in any way not expressly permitted by these Terms;

(xiii) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a Server or the Service, whether through the use of a network analyzer, packet sniffer or other device;

(xiv) Make any automated use of the Service or take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure, as we determine in our sole discretion;

(xv) Bypass any robot exclusion headers or other measures we take to restrict access to the Service or use any software, technology or device to send content or messages, scrape, spider or crawl the Service, or harvest or manipulate data from, through, or relating to the Service;

(xvi) Use, facilitate, create or maintain any unauthorized connection to the Service, including without limitation (1) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the Service or (2) any connection using programs, tools or software not expressly approved in writing by TabTab;

(xvii) Copy, modify or distribute rights or content from any TabTab site, including but not limited to content that contains or is protected by TabTab’s copyrights or trademarks or use any method to copy or distribute the content of the Service, except as specifically allowed in these Terms;

(xviii) Solicit or attempt to solicit personal information from Other Users, other than as a Vendor or Brand (as defined in Section 2.1) in connection with soliciting feedback regarding your transactions or Products;

(xix) Collect, harvest or post anyone’s private information, including personally identifiable information (whether in text, image, video, or other form), identification documents or financial information through the Service; or

(xx) Upload or transmit (or attempt to upload or to transmit), without TabTab’s express written permission, any material that acts as a passive or active information collection or transmission mechanism, including, without limitation clear graphics interchange formats (“gifs”), 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).

1.7. Suspension and Termination of Account and Service:

(a) FAILURE TO COMPLY. WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY, WITH OR WITHOUT NOTICE TO YOU, LIMIT, SUSPEND, TERMINATE, MODIFY OR DELETE YOUR ACCOUNT OR YOUR ACCESS TO THE SERVICE OR PORTIONS THEREOF IF, IN OUR SOLE DISCRETION, YOU FAIL TO COMPLY WITH ANY OF THESE TERMS OR YOUR ACCOUNT IS USED FOR ACTUAL OR SUSPECTED ILLEGAL ACTIVITY OR IMPROPER USE OF THE SERVICE. TabTab SHALL BE UNDER NO OBLIGATION TO COMPENSATE YOU FOR ANY LOSSES OR ADVERSE RESULTS THAT ARE DUE TO THE SUSPENSION, TERMINATION, MODIFICATION, OR DELETION OF YOUR OR ANY ACCOUNT.

(b) IP INFRINGEMENT.

(i) WITHOUT LIMITING ANY OTHER REMEDIES, WE MAY LIMIT, SUSPEND OR TERMINATE THE SERVICE AND ACCOUNTS OR PORTIONS THEREOF, PROHIBIT ACCESS TO OUR SITES AND THEIR CONTENT, SERVICES AND TOOLS, DELAY OR REMOVE ANY CONTENT AND TAKE TECHNICAL AND LEGAL STEPS TO PREVENT USERS FROM ACCESSING THE SERVICE IF WE BELIEVE THAT YOU ARE CREATING RISK OR POSSIBLE LEGAL LIABILITIES, INFRINGING THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES OR ACTING INCONSISTENTLY WITH THE LETTER OR SPIRIT OF OUR TERMS OR POLICIES.

(ii) REPEAT INFRINGERS. IN APPROPRIATE CIRCUMSTANCES IT IS OUR POLICY TO SUSPEND OR TERMINATE ACCOUNTS OF USERS WHO ARE REPEAT INFRINGERS OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

(c) Right to Cease Service. TabTab reserves the right to stop offering and/or supporting the Service or part of the Service at any time, at which point the license granted hereunder to you to use the Service or a part thereof will automatically terminate. TabTab shall not be required to provide refunds, benefits or other compensation to users in connection with such cessation of the Service or any part thereof.

(d) Termination of Account. Termination of your Account can include disabling your access to the Service or any part thereof, including disabling access to any content that you or Other Users submitted. You agree that if your Account is terminated, TabTab will not be obligated to preserve, provide you access to, or provide copies of any content submitted to the Service relating to your Account, whether by you or an Other User.

(e) Cancellation of Account. You may cancel your Account at any time by using the cancellation feature of the Service.

1.8. Intellectual Property Ownership in the Service. The Service, and all of its components and contents, (including without limitation any computer code, template content, pre-populated content, concepts, artwork, animations, sounds, musical compositions, audio-visual effects and text contained within) is owned by TabTab or its licensors, and all of which material is protected by United States and international patent, copyright, trademark, trade secret, and other intellectual property laws.

2. Product Catalog and Purchases.

2.1. Certain Definitions. For the purposes of this Agreement, the following terms have the meanings as set forth below:

(a) “Brand” means, with respect to a Product, the person or entity that produces and distributes, or is responsible for the production and distribution of, such Product.

(b) “Product” means a product described on the Website, at any time or from time to time, regardless of whether such product is, or has been, available for purchase through the Service.

(c) “Product Page” means those portions of the Website that describe a Product.

(d) “Product Information” means the information about a Product provided through the Service.

(e) “Purchaser” means a person who offers to purchase a Product through the Service.

(f) “Vendor” means a person or entity, engaged in the business of selling one or more Products, that registers with the Service to sell one or more Products through the Service.

(g) “Vendor Page” means those portions of the Website that describe a Vendor, including any informational or legal notices posted by such Vendor.

2.2. Product Information.

(a) Products and Product Information. The Website will contain a Product Page for each Product to be offered for sale through the Service. Each Product Page will contain the Product Information for the respective Product. TabTab reserves the right and sole discretion to select which products will be available through the Service as Products.

(b) Brands. Products that are available for purchase through the Service have been claimed by their respective Brand, which has confirmed the accuracy of the Product Information about each such Product.

(c) Vendor Disclosures and Notices. Vendors may post information, warnings, and notices on their respective Vendor Pages. Each Vendor is responsible for posting all warnings and notices that the Vendor is legally required to post.

2.3. Sales and Purchases of Products.

(a) Generally. The Service provides a marketplace to connect Purchasers ready to buy with Vendors ready to deliver. A Purchaser can place an order for a Product. The Service will send that order to the Vendors that have registered to sell that Product, and the first Vendor to accept the order will fulfill the order by the next business day.

(b) Placing an Order. As a Purchaser, when you place an order through the Service, you are offering to purchase the Product or Product(s) you order from any Vendor that accepts your order through the Service. There is no guarantee that any Vendor will accept any order (i.e., no Vendors have the Product in stock). The Service will, through its third-party payment processor, authorize the total amount of your order on your credit card at the time you submit the order through the Service.

As a Purchaser, you represent and warrant that all the information you provide in using the Service or ordering any Products is truthful and accurate.

{/* As a Purchaser, you acknowledge that you have read the notices and other information posted at [insert weblink to notices page]. */}

(c) Purchase Contracts. All orders placed by a Purchaser and accepted by a Vendor are intended to form a binding agreement between the Purchaser and the Vendor for the sale and purchase of the Products on the terms described in the order. You acknowledge that TabTab is not a party to any such contracts or arrangements. We are not responsible for approving or negotiating any contractual formation or the performance of any contractual obligations between a Vendor and a Purchaser. You acknowledge that the Service allows a Purchaser to place orders for Products and Vendors to agree to sell and deliver such Products, but does not permit either party to make counter-offers or propose revisions to the pricing. Whether you are a Vendor or a Purchaser, you acknowledge that we are not responsible for the execution or performance of any contracts between a Vendor and a Purchaser. You agree that in the performance of any such contract, we will act as an agent of the Vendor for the limited purposes of collecting the invoice amounts from a Purchaser.

2.4. Posted Content: “Posted Content” means any Product Information, Vendor Information, communications, videos, images, sounds, and all the material, data, and information that you upload, post, publish or transmit through the Service, including without limitation any comments you may make about content uploaded or transmitted by Other Users. We may provide you with templates, pre-populated communications, or other content through the Service (“Template Content”) that you may distribute, use or modify as part of using our Service to communicate with Other Users in a manner consistent with the intended use of the Service. You acknowledge that your use of any Template Content does not relieve you of any responsibilities or obligations under this Agreement. By transmitting or submitting any Posted Content while using the Service, you affirm, represent and warrant that such transmission or submission (a) is accurate and not confidential; (b) not in violation of any applicable law, contractual restrictions or other third party rights, and that you have permission from any third party whose personal information or intellectual property is comprised in the Posted Content; (c) along with the exercise of the rights by TabTab granted in Section 2.5 will not result in any infringement of the intellectual property rights of any third party or violate or misappropriate any rights of publicity or privacy for any third party; and (d) is free of viruses, adware, spyware, worms or other malicious code. You further represent and warrant that you have all rights necessary to transmit Posted Content to TabTab and to grant the rights in Posted Content granted to TabTab under these Terms.

2.5. Licenses to Posted Content: You hereby grant TabTab a perpetual and irrevocable (other than as provided below), worldwide, fully paid-up and royalty free, non-exclusive, assignable, unlimited license and right to copy, reproduce, fix, adapt, modify, improve, translate, reformat, create derivative works of, manufacture, introduce into circulation, publish, distribute, sublicense, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, display, perform, enter into computer memory, and use and practice, in any way now known or in the future discovered, your Posted Content as well as all modified and derivative works thereof. TabTab will only exercise the rights granted in this Section 2.5 to offer or to facilitate the offering of Services. To the extent permitted by applicable laws, you hereby waive any moral rights or any of your rights of publicity or privacy you may have in any Posted Content. TabTab will cease any further public display or distribution of any Posted Content if you use the features of the Service that permit you to indicate that certain Posted Content is to no longer be displayed or distributed to Other Users except TabTab retains the right to display or distribute any Posted Content as necessary for TabTab to fulfill its legal duties or in connection with bringing or defending any legal claims or actions that may arise now or in the future.

2.6. Content Screening.

(a) Consent to Monitoring. By entering into these Terms, you hereby provide your irrevocable consent to our monitoring and recording of your use of the Service. You acknowledge and agree that you have no expectation of privacy concerning the transmission of any information, including without limitation chat, text or voice communications.

(b) Options Regarding Submitted Content. TabTab may reject, refuse to post or delete any or all Product Information or Vendor Information for any or no reason, including, but not limited to for the reason, in the sole judgment of TabTab, that posting of any particular Product Information or Vendor Information violates these Terms.

2.7. User Interactions and Legal Disputes.

(a) Responsibility For Interactions. You are solely responsible for your interactions with other Account Holders, Vendors, Purchasers, and any other parties with whom you interact through the Service. TabTab reserves the right, but has no obligation, to become involved in any way with disputes among Users.

(b) Legal Issues. You acknowledge that TabTab is not a law enforcement agency and will not perform or attempt to perform any functions regarding any unlawful or allegedly unlawful offering of or use of any Product. We may cause any offer or transaction, that we reasonably believe, in our sole discretion, may or would be illegal, not to occur. TabTab cannot and does not make any representations or warranties regarding any Product, Vendor, Brand, or Purchaser and related matters regarding the availability, lawfulness, or use of any Product.

(c) User Ratings. In order to promote the exchange of information about Users, our Service may permit Users to rate the performance of other Users they interact with using the Service and each User consents to such ratings being published and calculated through the Service. We may remove or not process any ratings if we believe that such ratings may be fraudulent or invalid.

(d) Release for Blocked Transactions and Disputes. You hereby release us, and our officers, directors, agents, subsidiaries, joint ventures and employees, from any and all claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with any transaction that TabTab does not process via the Service pursuant to its rights under Section 2.7(b), any dispute that arises between your and one or more Other Users (for example, with a Vendor or a Purchaser or between a Vendor or a Purchaser) or related in anyway regarding fees to be paid or that may be owed under or while using the Service. If you are a California resident, you acknowledge that you are aware of, understand and waive any rights you may have under the provisions of California Civil Code Section 1542, which provides: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”

3. Fees; Third Party Payments Processor and Handling of Fees Generally.

3.1. Payment of Fees. You agree to pay any and all fees and applicable taxes incurred by you or anyone using an Account registered to you. Any required fees will be specified as part of the Service or when you register your Account. TabTab reserves the right to charge fees for any parts of the Service that may have previously been offered without a fee. You agree that TabTab in the future may offer premium services as part of the Service that may require fees or additional fees. TabTab may revise the pricing for the goods and services offered through the Service at any time. YOU ACKNOWLEDGE THAT TabTab IS NOT REQUIRED TO PROVIDE A REFUND FOR ANY REASON EXCEPT FOR REFUNDING ANY FEES PAID BY A PURCHASER WHO CANCELS AN ORDER AS PERMITTED UNDER AND USING THE PROCEDURES SPECIFIED BY THE SERVICE.

3.2. Third Party Payment Processor. You acknowledge and agree that we may, and hereby give your consent to us to, use a third party to process or handle or assist in the processing or handling of fees to be paid by a Purchaser.

4. Third Party Advertising.

4.1. Third Party Advertisements. You understand that the Service may feature advertisements from TabTab or third parties. The Privacy Policy addresses our disclosure of information for third party advertising.

4.2. Links to Third Party Sites and Dealings with Advertisers. TabTab may provide links on the Service to third party websites or vendors who may invite you to participate in a promotional offer in return for receiving a benefit. Any charges or obligations you incur in your dealings with these third parties are your responsibility. TabTab makes no representation or warranty regarding any content, goods, or services provided by any third party even if linked from our Service, and we will not be liable for any claim relating to any third party content, goods, or services. The linked sites are not under the control of TabTab and may collect data or solicit personal information from you. TabTab is not responsible for their content, business practices or privacy policies, or for the collection, use or disclosure of any information those sites may collect. Further, the inclusion of any link does not imply endorsement by TabTab of these linked sites.

5. Copyright Notices; Complaints. It is TabTab’s policy to respond to notices of alleged copyright infringement that comply with the Digital Millennium Copyright Act (the “DMCA”). For more information, please go to TabTab’s “Copyright Page” to review our DMCA procedures. TabTab reserves the right to terminate without notice any user’s access to the Service if that user is determined by TabTab to be a “repeat infringer.” In addition, TabTab accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.

6. Updates to the Service. You understand that the Service undergoes frequent changes. TabTab may require that you accept updates to the Service, these Terms or our Privacy Policy in order to continue using the Service. You acknowledge and agree that TabTab may update the Service without notifying you.

7. Disclaimer; Limitations; Waivers on Liability; Indemnification.

7.1. Disclaimer of Warranties.

(a) SERVICE PROVIDED “AS IS”. YOU EXPRESSLY AGREE THAT USE OF THE SERVICE IS AT YOUR SOLE RISK AND IS PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE (EXCEPT ONLY TO THE EXTENT PROHIBITED UNDER APPLICABLE LAW WITH ANY LEGALLY REQUIRED WARRANTY PERIOD THE SHORTER OF THIRTY (30) CALENDAR DAYS FROM FIRST USE OR THE MINIMUM PERIOD REQUIRED).

(b) NO WARRANTY OF ERROR-FREE OPERATION. WITHOUT LIMITING THE FOREGOING, NEITHER TabTab NOR ITS AFFILIATES OR SUBSIDIARIES, OR ANY OF THEIR DIRECTORS, EMPLOYEES, AGENTS, ATTORNEYS, THIRD-PARTY CONTENT PROVIDERS, DISTRIBUTORS, LICENSEES OR LICENSORS (COLLECTIVELY, “TabTab PARTIES”) WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

(c) NO WARRANTY REGARDING ACCESS TO ACCOUNTS AND CONTENT. TabTab DOES NOT WARRANT THAT ALL CONTENT OR INFORMATION POSTED BY AN ACCOUNT HOLDER WILL REMAIN AVAILABLE AT ALL TIMES OR WILL NEVER BE DELETED, CORRUPTED OR OTHERWISE UNAVAILABLE. TabTab DOES NOT WARRANT THAT THE SERVICE, ACCOUNT HOLDER INFORMATION OR ANY INFORMATION POSTED BY AN ACCOUNT HOLDER WILL BE KEPT FROM ANY PARTICULAR INDIVIDUAL WHO EITHER HACKS OR ENGAGES IN UNAUTHORIZED ACCESS TO SUCH CONTENT OR INFORMATION OR IS MISTAKENLY GRANTED ACCESS BY TabTab OR THROUGH THE SERVICE.

7.2. Limitations; Waivers of Liability.

(a) DISCLAIMER OF INDIRECT DAMAGES. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY ANY APPLICABLE LAW, THE DISCLAIMERS OF LIABILITY CONTAINED HEREIN APPLY TO ANY AND ALL DAMAGES OR INJURY WHATSOEVER CAUSED BY OR RELATED TO USE OF, OR INABILITY TO USE, THE SERVICE UNDER ANY CAUSE OR ACTION WHATSOEVER OF ANY JURISDICTION, INCLUDING, WITHOUT LIMITATION ACTIONS FOR BREACH OF WARRANTY, BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND THAT THE TabTab PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY WHATSOEVER ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE SERVICE.

(b) NOT RESPONSIBLE FOR THIRD PARTY CONDUCT. YOU FURTHER SPECIFICALLY ACKNOWLEDGE THAT THE TabTab PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE TabTab PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER ACCOUNT HOLDERS OR USERS OF THE SERVICE AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF THE SERVICE AND EXTERNAL SITES AND OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

(c) MONETARY LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL THE TabTab PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT YOU HAVE PAID TabTab IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM.

(d) FAILURE TO PAY. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID TabTab ANY AMOUNTS IN THE ONE HUNDRED EIGHTY (180) CALENDAR DAYS IMMEDIATELY PRECEDING THE DATE ON WHICH YOU FIRST ASSERT ANY SUCH CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH TabTab IS TO STOP USING THE SERVICE AND TO CANCEL YOUR ACCOUNT.

(e) DISCLAIMER MAY NOT BE APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THE SECTION MAY NOT APPLY TO YOU.

7.3. Indemnification. You agree to defend, indemnify, save, and hold the TabTab Parties harmless from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms or any breach of the representations, warranties and covenants made by you herein. TabTab reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify TabTab and you agree to cooperate with TabTab’s defense of these claims. TabTab will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it. You agree that the provisions in this paragraph will survive any termination of your Account or of the Service.

8. Dispute Resolution.

8.1. General. If a dispute arises between you and TabTab, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and TabTab agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a “Claim”) in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution by going to Customer Support. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation. Other than those matters listed in Section 8.2, you and TabTab agree to seek resolution of the dispute only through arbitration of that dispute in accordance with the terms of this Section 8, and not litigate any dispute in court. Arbitration means that the dispute will be resolved by a neutral arbitrator instead of in a court by a judge or jury.

8.2. Exclusions from Arbitration. YOU AND TabTab AGREE THAT ANY CLAIM FILED BY YOU OR BY TabTab IN SMALL CLAIMS COURT OR BY TabTab RELATED TO PROTECTION OF TabTab’S OR ANY TabTab LICENSOR’S INTELLECTUAL PROPERTY ARE NOT SUBJECT TO THE ARBITRATION TERMS CONTAINED IN THIS SECTION 8.

8.3. RIGHT TO OPT OUT OF BINDING ARBITRATION AND CLASS ACTION WAIVER WITHIN 30 DAYS. IF YOU DO NOT WISH TO BE BOUND BY THE BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 8, YOU MUST NOTIFY TabTab IN WRITING WITHIN TEN (10) DAYS OF THE DATE THAT YOU FIRST ACCEPT THIS AGREEMENT. YOUR WRITTEN NOTIFICATION MUST BE EMAILED TO contact@TabTab.com AND MUST INCLUDE: (1) YOUR NAME, (2) YOUR ADDRESS, (3) YOUR USERNAME, AND (4) A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH TabTab THROUGH ARBITRATION.

8.4. Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND TabTab SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.

8.5. Initiation of Arbitration Proceeding; Selection of Arbitrator. If you or TabTab elect to resolve your dispute through arbitration, the party initiating the arbitration proceeding may initiate it with the American Arbitration Association (“AAA”), www.adr.org, or JAMS www.jamsadr.com. The terms of this Section 8 govern in the event they conflict with the rules of the arbitration organization selected by the parties.

8.6. Arbitration Procedures. Because the software and/or service provided to you by TabTab concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, applicable federal or state law may also apply to the substance of any disputes. For claims of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes (“Supplementary Procedures”) shall apply, including the schedule of arbitration fees set forth in Section C-8 of the Supplementary Procedures; for claims over $75,000, the AAA’s Commercial Arbitration Rules and relevant fee schedules for non-class action proceedings shall apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Further, if your claims do not exceed $75,000 and you provided notice to, and negotiated in good faith with, TabTab as described above, and if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorneys’ fees and costs as determined by the arbitrator, in addition to any rights to recover the same under controlling state or federal law afforded to TabTab or you. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be binding and final, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

8.7. Location of Arbitration. You or TabTab may initiate arbitration in either Orange County, California or the county in which you reside. If you initiate arbitration in the county of your residence, TabTab may transfer the arbitration to Orange County, California provided that TabTab agrees to pay any additional fees or costs you incur as a result of the change in location, as determined by the arbitrator.

8.8. Severability. If any clause within this Section 8 (other than the Class Action Waiver clause of Section 8.4) is found to be illegal or unenforceable, that clause will be severed from this Section 8 and the remainder of this Section 8 will be given full force and effect. If the Class Action Waiver (Section 8.4) clause is found to be illegal or unenforceable, this entire Section 8, except for this Section 8.8, will be unenforceable and the dispute will be decided by a court and IN THAT INSTANCE, YOU AND TabTab EACH WAIVE AND AGREE TO WAIVE ANY RIGHT TO TRIAL BY JURY, TO THE EXTENT ALLOWED BY LAW.

8.9. Survival. This Section 8 shall survive any termination of the Terms.

9. General Provisions.

9.1. Updates to the Terms and Privacy Policy.

(a) Right to Update. TabTab reserves the right, at our discretion, to change, modify, add or remove portions of these Terms and our Privacy Policy at any time by posting the amended Terms or Privacy Policy through the Service. You may also be given additional notice, such as an email message or messaging within the Service, of any changes. You will be deemed to have accepted such changes by continuing to use the Service. Except as otherwise stated, all amended terms shall automatically be effective thirty (30) calendar days after they are initially posted. TabTab may also revise other policies, codes or rules at any time and the new versions will be available on www.TabTab.com/privacypolicy or through the Service. No amendment to the Terms or Privacy Policy shall apply to any dispute of which TabTab had actual notice before the date of the amendment.

(b) Seeking Consent. If TabTab revises these Terms or its Privacy Policy and seeks your consent to be bound by such revised Terms or revised Privacy Policy and you do not agree to be bound by such revised Terms or revised Privacy Policy before using the Service again, then notwithstanding anything to the contrary, TabTab reserves the right to terminate your Account and use of the Service.

(c) Disagreement With Terms. If at any time you do not agree to any provision of the then-current version of our Terms, the Privacy Policy or any other TabTab policy, rule or code of conduct relating to your use of the Service, your right to use the Service will immediately terminate, and you must immediately stop using the Service.

(d) Conflict. To the extent these Terms or the Privacy Policy conflict with any other TabTab terms, policy, rule, or code of conduct, the provisions of these Terms and the Privacy Policy will prevail.

9.2. Severability. If any provision of these Terms or the Privacy Policy is found invalid, illegal, or unenforceable, in whole or in part, by any court of competent jurisdiction, such provision will, as to such jurisdiction, be ineffective solely to the extent of such determination of invalidity, illegality, or unenforceability without affecting the validity, legality, or enforceability thereof in any other manner or jurisdiction and without affecting the remaining provisions of the Terms, which will continue to be in full force and effect.

9.3. Assignment. TabTab may assign any of its rights or delegate any of its obligations under these Terms, in whole or in part, to any person or entity at any time without your consent. You may not assign or delegate any rights or obligations under the Terms without the prior written consent of TabTab; any purported assignment or delegation in violation of this Section 9.3 is void.

9.4. Supplemental Policies. TabTab may publish additional policies related to specific services such as forums, contests, or loyalty programs. Your use, if any, of such services is subject to such specific policies and these Terms.

9.5. Entire Agreement. These Terms, together with any supplemental policies, the Privacy Policy, and any other documents expressly incorporated by reference herein, contain the entire agreement between TabTab and you with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, agreements, representations and warranties of the parties hereto relating to the subject matter hereof, whether electronic, oral or written, or whether established by custom, practice, policy or precedent.

9.6. No Waiver. The failure of TabTab to require or enforce strict performance by you of any provision of these Terms or the Privacy Policy or failure to exercise any right under them shall not be construed as a waiver or relinquishment of TabTab’s right to assert or rely upon any such provision or right in that or any other instance. The express waiver by TabTab of any provision, condition or requirement of these Terms or the Privacy Policy shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement. Except as expressly and specifically set forth in these Terms, no representations, statements, consents, waivers or other acts or omissions by TabTab shall be deemed a modification of these Terms nor legally binding, unless documented in physical writing, hand signed by you and a duly appointed officer of TabTab.

9.7. Notices. We may notify you via postings on [www.TabTab.com/requirednotices] and via email or any other communications means through contact information you provide to us. All notices given by you or required from you under these Terms or the Privacy Policy shall be in writing and addressed to the address in this Section 9.7. Any notices that you provide without compliance with this Section 9.7 shall have no legal effect.

TabTab, LLC
200 Spectrum
Suite 300
Irvine, CA 92618
Attn: Terms Administrator


9.8. Equitable Remedies. You acknowledge that the rights granted and obligations made under these Terms to TabTab are of a unique and irreplaceable nature, the loss of which shall irreparably harm TabTab and which cannot be replaced by monetary damages alone, so that TabTab shall be entitled to injunctive or other equitable relief (without the obligations of posting any bond or surety or proof of damages) in the event of any breach or anticipatory breach by you. You irrevocably waive all rights to seek injunctive or other equitable relief, or to enjoin or restrain the operation of the Service, exploitation of any advertising or other materials issued in connection therewith, or exploitation of the Service or any content or other material used or displayed through the Service and agree to limit your claims to claims for monetary damages, limited by Section 7.2.

9.9. Force Majeure. TabTab shall not be liable for any delay or failure to perform resulting from causes outside the reasonable control of TabTab, including without limitation any failure to perform hereunder due to unforeseen circumstances or cause beyond TabTab’s control, such as acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes, shortages of transportation facilities, fuel, energy, labor or materials.