Terms and Conditions
BEFORE DOWNLOADING , INSTALLING OR USING BANANATAG SOFTWARE YOU MUST AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, THEN DO NOT DOWNLOAD, INSTALL OR USE BANANATAG SOFTWARE. IF YOU DO DOWNLOAD, INSTALL OR USE BANANATAG SOFTWARE YOU SIGNIFY YOUR AGREEMENT TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
IF YOU ARE USING THE BANANATAG SOFTWARE ON BEHALF OF YOUR EMPLOYER OR IN CONNECTION WITH A BUSINESS OR OTHER ORGANIZATION OR ENTITY (“ENTITY”), YOUR ACCEPTANCE OF AND AGREEMENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT WILL BE DEEMED TO BE AN AGREEMENT BETWEEN SAID ENTITY AND BANANATAG AND YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND SAID ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS OR IF YOU ARE NOT AUTHORIZED TO BIND SAID ENTITY, DO NOT DOWNLOAD, INSTALL OR USE THE BANANATAG SOFTWARE.
This Agreement (“Agreement”) sets forth the terms and conditions under which BananaTag Systems Inc. (“BananaTag”, “We” or “Us”) at its sole discretion will provide to you (“Licensee” or “You”) the right to use and access the proprietary BananaTag software application (collectively, the “BananaTag Service”). The BananaTag Service may be used and accessed by You only under the following terms:
1. License, Fees and Conduct .
1.1 License: BananaTag grants to You, subject to the terms and conditions of this Agreement, a non-exclusive, non-transferable, limited license (without the right to sublicense) during the Term (as defined herein) to install and use the BananaTag Service.
1.2 Fees: As consideration using the BananaTag Service, You agree to pay BananaTag, or its agents or subcontractors, as the case may be, the required fees, if any. Operator, or its agents or subcontractors, may take all remedies to collect fees owed. Some Service charges may be payable in advance and may reflect the fee for monthly or annual subscription. Payment for Services rendered is not subject to offset by You for any reason.
BananaTag is not obligated to provide credits or refunds for partial months or years of use of the Service, upgrades or downgrades, or any unused time during your subscription.
If payment method is by credit card, then You agree that BananaTag may, at its option, accumulate charges incurred during the billing cycle and submit them as one or more aggregate charges during or at the end of each cycle. It is Your responsibility to keep Operator informed of changes to Your billing information (e.g., billing address, credit card/account number, and expiration date). You agree to remit payment for Services rendered in a way defined by BananaTag, or its agents if Your credit card issuer refuses any such charges.
If your account is suspended or terminated for any reason, BananaTag shall not be obligated to refund the unused portion of Your advanced payment for BananaTag Service.
NOTE THAT DOWNGRADING YOUR ACCOUNT MAY RESULT IN THE LOSS OF FEATURES, HISTORICAL DATA, CONTENT, OR CAPACITY OF YOUR ACCOUNT. BANANATAG SYSTEMS DOES NOT ACCEPT ANY LIABILITY FOR ANY SUCH LOSSES.
You agree that You will not (i) use the Service to violate any local State, Federal or international law or regulation or encourage conduct that would constitute such a violation or give rise to a civil liability; (ii) interfere with or infringe any intellectual or proprietary rights of any other party, including, for example, copyrights, trademarks, service marks, and patents; (iii) interfere with the ability of other users to access or use the Service; (iv) interfere with or disrupt the Service, or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; (v) reproduce, duplicate, copy, use, distribute, sell, resell or otherwise exploit for any commercial purposes any portion of the Service; (vi) transmit, or otherwise facilitate the transmission by anyone, of unsolicited, erroneously labeled and/or intentionally deceptive e-mail messages (e.g., “spam” or “junk mail”); (vii) copy, reproduce, publish, distribute, modify, create derivative works of, rent, lease, sell, transfer, display, transmit, compile or collect in a database, or in any manner commercially exploit any part of the Service, including content, in whole or in part; or (viii) “mirror” the Service or any content on any other server; (ix) use the Free/Pro/Teams plans to facilitate the tracking of mass email, whether that be to external or internal recipients.
1.4 Password & Security: Certain aspects of the BananaTag Service may require You to first create an account, obtain a login name and password, and/or provide billing information. You must provide accurate, complete and current information, and must update this information promptly if it changes. Failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Your account.
You are solely responsible for maintaining the confidentiality of Your login name and password. You must immediately notify BananaTag of any unauthorized use of Your login name and You are responsible for any unauthorized activities, charges and/or liabilities made on or through Your login name until we receive such notification. You may not transfer or lend login names to any third party.
2. No Transfer of Intellectual Property; You acknowledge that the source code for the BananaTag Service and other trade secrets embodied in the BananaTag Service have not been, will not be, and are not intended to be disclosed to You, nor di you acquire any right to such intellectual property in and to BananaTag Services. Except as specifically permitted in this Agreement, You will not directly or indirectly: (a) distribute, copy, adapt, create derivative works of, translate, localize, port or otherwise modify the BananaTag Service or (b) permit any third party to engage in any of the acts described in clauses (a) and (b). Further, You are not permitted to: (c) decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the BananaTag Service; (d) use any means to discover the source code of the BananaTag Service or to discover the trade secrets in the BananaTag Service; or (e) otherwise circumvent any technological measure that controls access to the BananaTag Service.
3. Maintenance; Enhancements.
3.1 Maintenance: BananaTag will provide such support for the BananaTag Service as it considers appropriate during the Term, and will, in its own discretion, address such issues as may, in Bananatag’s discretion, need addressing, provided that such support will not include support for issues resulting from: (i) the malfunction of software not provided by BananaTag; (ii) the failure of hardware to perform in accordance with its specifications; (iii) Your misuse, negligence or fault; (iv) Your failure to follow the instructions set forth in the Documentation or (v) modifications or changes to the BananaTag Service not performed by BananaTag. BananaTag will have no obligation to make any test, revision or repair to the BananaTag Service requested by You, to maintain the BananaTag Service at any particular level of performance or to keep BananaTag Service in operating condition.
3.2 Enhancements: BananaTag may from time to time make available updates, enhancements and/or modifications to the BananaTag Service and may, at its sole discretion, provide such updates to You, which will be identified by a change in the BananaTag Service version number, but BananaTag is under no obligation to do so. The provision by BananaTag to You of such updates, enhancements and/or modifications to the BananaTag Service will be subject to all covenants and conditions of this Agreement, including, but not limited to, the restrictions on Your use of the BananaTag Service and BananaTag’s disclaimer of warranties.
4.1 Confidential Information: “Confidential Information” means all information of or about BananaTag and BananaTag Services that is not published BananaTag Marketing and Sales materials, and for greater clarity but without detracting from the generality of the foregoing, “Confidential Information” includes without limitation the BananaTag Service, Documentation, Feedback and Revisions (as defined herein), components, parts, drawings, data, sketches, flow charts, plans, reports, handbooks, programs, data, source code, object code, screen displays, feedback, evaluation results, evaluation reports, test results, test reports, reports of errors, problems, defects or suggestions, specifications, features, techniques, processes, algorithms, inventions, other information or material, which is provided or disclosed by BananaTag to You as a user of BananaTag Service and use in accordance with this Agreement or is derived or produced by You pursuant to or in contravention of this Agreement, whether such information is disclosed in writing or other tangible medium, visually or orally. Confidential Information does not include any portion of any such information that You can clearly demonstrate: (i) tobe or have become known in the trade through no act or omission by You, (ii) is disclosed to You by a third party who has a right to make such disclosure without any obligation of confidentiality to BananaTag or (iii) is known to You before receipt thereof pursuant to this Agreement.
4.2 Confidentiality Obligations: You agree to:
(a) keep secret and maintain the Confidential Information as confidential and to hold the Confidential Information in trust for the exclusive benefit of BananaTag;
(b) use the Confidential Information solely as expressly permitted by this Agreement;
(c) segregate the Confidential Information from Your other information and that of third parties;
(d) promptly notify BananaTag upon learning about any court order or other legal requirement that purports to compel disclosure of any Confidential Information and to cooperate with BananaTag in the exercise of BananaTag’s right to protect the confidentiality of the Confidential Information before any tribunal or government agency;
(e) not disclose the Confidential Information to any third party person without the prior written consent of BananaTag; and
(f) return to BananaTag at any time upon BananaTag’ request, any and all Confidential Information.
If applicable, You will be liable for any breaches of this Agreement by Your employees, consultants or contractors.
5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
5.1 Disclaimer: You acknowledges that: (a) the BananaTag Service and the Documentation have not been fully tested and may not be in final form or fully functional and may contain defects, errors, design flaws or other problems, and (b) use of the BananaTag Service and the Documentation may result in unexpected results, loss of data or other unpredictable damage or loss to You. YOU ACKNOWLEDGES THAT THE BANANATAG SERVICE (INCLUDING, WITHOUT LIMITATION, ANY THIRD PARTY SOFTWARE) AND THE DOCUMENTATION ARE BEING SUPPLIED TO YOU ON AN “AS IS” BASIS AND THAT USE OF THE BANANATAG SERVICE SHALL BE AT YOUR SOLE RISK. YOU SHALL HAVE THE SOLE RESPONSIBILITY FOR ADEQUATE PROTECTION AND BACK-UP OF ANY DATA USED IN CONNECTION WITH THE BANANATAG SERVICE. BANANATAG HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES REGARDING THE BANANATAG SERVICE, THE DOCUMENTATION, AND THE USE, PERFORMANCE, OPERATION AND SUPPORT THEREOF, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT, ACCURACY, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES, UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. BANANATAG DOES NOT WARRANT THAT (A) THE BANANATAG SERVICE WILL MEET YOUR REQUIREMENTS, (B) OPERATION OF THE BANANATAG SERVICE WILL BE UNINTERRUPTED OR VIRUS- OR ERROR-FREE, OR (C) DEFECTS WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
5.2 Limitation of Liability: YOU AGREE THAT IN NO EVENT SHALL BANANATAG BE LIABLE (A) FOR DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS OR BUSINESS INTERRUPTION), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THIS AGREEMENT OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE BANANATAG SERVICE, THE DOCUMENTATION OR THIS AGREEMENT, AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF BANANATAG OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DELIVERY, USE OR PERFORMANCE OF THE BANANATAG SERVICE. IN ANY CASE, IF BANANATAG SHOULD BE, OR BE CLAIMED TO BE, LIABLE FOR ANY DAMAGES WHATSOEVER, THE AMOUNT OF SUCH DAMAGES SHALL BE LIMITED TO THE AMOUNT OF ONE MONTH’S FEE PAID BY YOU OR THE ENTITY TO BANANATAG FOR THE USE OF THE BANANATAG SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU.
6. Ownership. You acknowledge and agree that BananaTag owns all right, title and interest in and to the BananaTag Service and the Documentation and all Intellectual Property pertaining to BananaTag Service, (including without limitation any and all patent, copyright, trade secret, trademark, show-how, know-how and any and all other intellectual property rights therein or related thereto) and You agree not to take any action(s) inconsistent with such ownership interests including, without limitation, any use of the BananaTag Service or Documentation except as expressly permitted in this Agreement. Except as expressly provided in this Agreement, You do not acquire any rights or licenses under any of BananaTag’s copyrights, patents, patent applications, trade secrets, trademarks or other intellectual property rights on account of this Agreement or Your performance under this Agreement. All (a) suggestions for correction, change and modification to the BananaTag Service, evaluation data, evaluations and other feedback (including, but not limited to, quotations of written or oral feedback relating to the BananaTag Service or the Documentation), information and reports provided to BananaTag by You (“Feedback”), and all (b) improvements, updates, modifications or enhancements, whether made, created or developed by BananaTag or You relating to or concerning the BananaTag Service or Documentation and, whether or not conceived or made under this Agreement or in the course of, or as a result of, Your use or performance hereunder (collectively, “Revisions”), are and will remain the property of BananaTag and You acknowledges and expressly agrees that any contribution in the form of Feedback or Revisions will not give or grant You any right, title or interest in the BananaTag Service or Documentation or in any such Feedback or Revisions. All Feedback and Revisions will be the sole and exclusive property and Confidential Information of BananaTag and BananaTag may use and disclose any such Feedback and Revisions in any manner and for any purpose whatsoever without compensation to You and without retention by You of any proprietary or other claim. You hereby assigns any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights, and any and all other intellectual property rights) that You may have in and to any and all Feedback and Revisions to BananaTag. Upon request by BananaTag, You will execute any document, registration or filing required to give effect to the foregoing assignment.
7. Term and Termination.
7.1 Term; Termination: The term of or your License and this Agreement (“Term”) will be for 1 month from the date of your sign-up and download of BananaTag software, and such Terms shall automatically renew for further periods of 1 month until terminated by notice in writing by You or by BananaTag. (The date 1 month from sign-up or from the last renewal of the License and this Agreement (whichever is later) shall herein be referred to as the “Renewal Date”) If You have signed up for one of the paid versions of BananaTag, you hereby authorize BananaTag to charge your credit card on (or after) each successive Renewal Date for each successive renewal term of your license at the rate published from time to time on the BananaTag website, which rate may change from time to time at BananaTag’s discretion. If BananaTag offers, and You have subscribed to, an annual paid service, the terms described above for monthly terms shall apply to the annual term, mutatatis mutandis. Either party may terminate this Agreement upon written notice to the other party at any time and for any reason with effect on the next following Renewal Date. This Agreement may also be terminated immediately if You breach any of the terms or conditions of this Agreement.
7.2 Rights Upon Termination: You agree that, in the event of the expiration or termination of this Agreement for any reason, Your rights to access and use the BananaTag Service and the Documentation are terminated and You will cease accessing or using the BananaTag Service and the Documentation. Upon the request of BananaTag, You will certify in writing to BananaTag that all copies of the BananaTag Service, Documentation and Confidential Information have been returned to BananaTag or destroyed. BananaTag reserves the right without notice to disable (including remotely) the BananaTag Service in the event of a breach of this Agreement by You or at any time from and after the expiration or termination of this Agreement.
7.3 Surviving Sections: The rights and obligation of the parties under this Section 7.3, as well as Sections 2, 4, 5, 6, 7.2, 8, 10, 11 and 12 will survive the expiration or termination of this Agreement.
8. Export Laws. You are granted the rights to access and use the BananaTag Service and the Documentation via the site where the BananaTag Service may be accessed and will not export or re-export, directly or indirectly (including via remote access), the BananaTag Service, Documentation and/or other information or materials provided by BananaTag hereunder, to any other country without first obtaining such license or approval. It will be Your responsibility to comply, and You agrees to comply at Your sole expense, with all export laws and regulations applicable to You. The BananaTag Service and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in United States Federal Acquisition Regulations Section 12.212. Any use, duplication or disclosure of the BananaTag Service and Documentation by or on behalf of the U.S. Government is subject to restrictions as set forth in this Agreement.
9. Taxes. You are solely responsible for any and all duties, taxes, levies or fees (including any sales, use or withholding taxes) imposed on or in connection with this Agreement or the BananaTag Service by any authority governing Your subscription, use or payment.
10. Notices. All communications under this Agreement will be in writing. Any notice, request, instruction, or other document to be given by a party under this Agreement shall be delivered to the other party either: (i) in person; (ii) by one day express courier service to the address specified in this Agreement; (iii) by first class mail to the address specified in this Agreement, certified or registered, return receipt requested; or (iv) by written telecommunication, including email, in case of notice to You, to the e-mail address provide by You at the time of signing up for Banantag Service or thereafter edited on Your member/user account webpage. It is your responsibility to keep your address and e-mail address on Your member/user account webpage current.
11. Remedies. The parties acknowledge and agree that a breach or a threatened breach of this Agreement by You would cause not only financial harm, but also irreparable harm to BananaTag and that money damages will not provide an adequate remedy. In the event of a breach or threatened breach of this Agreement by You, BananaTag will, in addition to any other rights and remedies it may have, at law or in equity, be entitled to an injunction restraining, temporarily or permanently, You from disclosing or using, in whole or in part, the BananaTag Service, the Documentation and any Confidential Information, without the necessity of posting any bond or surety.
12. Contact. You agree that BananaTag may contact you from time to time to inform you of updates to the service or your account.