Lasted Updated: 7/1/2024
YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS OUR SERVICES IN ANY MANNER. If You accept or agree to these Terms and Conditions of Use on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to these Terms and Conditions of Use and, in such event, “You” and “Your” will refer and apply to that company or other legal entity in addition to You.
The purpose of this terms of use agreement (“Terms of Use”) is to set forth the terms and conditions under which Tagit, Inc. and/or its affiliated companies (collectively, “Tagit”, “we”, “us” or “our”), make our Internet website (“Site”) and related software-as-a-service platform (“Platform”), as well as any products and services made available thereon, including but not limited to Tagit’s Shipping Protection (“Protection Services”), including but not limited to our insurance policies for our Protection Services (the “Tagit Policies”) and services (collectively, the Site, Platform, Tagit Policies, and other products and services made available through the Site and Platform, the “Services”) and the content and materials available on the Services (the “Content”) available to merchants and the conditions under which such merchants may have access to and use such Services and Content.
Please read these Terms of Use carefully before using our Services or Content.
By accessing or using the Site and/or Services, clicking on a button or taking any other action to signify Your acceptance of these Terms of Use, or completing our account registration process, You: (1) agree to be bound by these Terms and any future amendments and additions to these Terms as published from time to time through the Site; and (2) represent You are of legal age in Your jurisdiction of residence to form a binding contract with Tagit. These Terms include the provisions in this document, as well as those in the Tagit Privacy Policy.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to You for Your acceptance when You sign up to use the supplemental Service. If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Agreement.” These Terms of Use include the provisions in this document, as well as those in the Tagit Privacy Policy. Tagit may modify these Terms of Use at any time from time to time without prior notice and such modification shall be effective: (1) for Users who first use the Site affected by such modification after the posting, upon posting by Tagit on the Website or (2) for existing Users, thirty (30) days after posting by Tagit on the Website. If You do not agree to the modification, You must cease Your use of the Website immediately and Your only recourse is to cease using the Services.
See our current Privacy Policy for information and notices regarding our collection and use of personal information, found at tagitprotection.com/privacy.
These Terms of Use incorporate the Data Processing Agreement (“DPA”), when either or both of (i) the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (the “GDPR”) or (ii) the California Consumer Privacy Act of 2018 (“CCPA”) apply to your use of the Services to process the categories of data defined in the DPA. The DPA is effective as of 25 May 2018 and replaces and supersedes any previously agreed data processing addendum between you and Tagit relating to the processing of data regulated by the GDPR or CCPA.
Tagit reserves the right to update and upgrade our product offerings in our sole discretion, including, without limitation, the “Tagit widget” and its Services.
Use of Services and Content
Tagit develops and makes available to You applications designed to enhance Your e-commerce platform or, if You are a consumer, Your online shopping experience. Our software applications are built as an add-on to a merchant’s existing online storefront, offering value-added features. Through our software applications, merchants can offer consumers the opportunity to add their shipments to the Tagit Policies (as described in the “Insurance” section below). Tagit provides software that allows consumers to file a notice of loss in connection with the Protection Services. Upon an election to provide the Protection Services under the Tagit Policies, consumers will receive a link to file such notices of loss.
In order to access certain features of the Site and Services, You may be required to register an Account (as defined below) and become a Registered User. For the purposes of this Agreement, a “Registered User” is a User who has registered for any Account. When registering an account for the Services (“Account”), You agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary to keep it current. You represent that You are not barred from using the Services under any applicable law and that You will be responsible for all activities that occur under Your Account. You may not authorize any third party (other than, if applicable, the employees, consultants or agents of the corporate member You represent) to access or use our Services on Your behalf. You are responsible for maintaining the confidentiality of the user ID and password and are fully responsible for all activities that occur under Your user ID or password. You agree to immediately notify us of any unauthorized use of Your user ID or password or any other breach of security. We cannot and will not be liable for any loss or damage arising from any unauthorized use of Your account. You acknowledge and agree that You have no ownership or other property interest in Your Account and that all rights in and to Your Account are owned by and inure to the benefit of Tagit.
Except as otherwise indicated, our Services and Content, and all rights thereto, are the property of Tagit and/or our affiliated companies and are protected under U.S. copyright, trade secret, trademark and patent law as well as international treaty provisions, with all rights reserved. Tagit and other related graphics, logos, service marks and trade names used on or in connection with the Services are the trademarks of Tagit Inc. and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners. Subject to these Terms of Use, Tagit grants You a limited license to install and use the Services solely for the purpose of operating Your online store. Any future release, update, or other addition to the Services and/or Content shall be subject to these Terms of Use. Tagit, its suppliers, and its service providers reserve all rights not granted in Terms of Use.
Restrictions on Use of the Services
Except as authorized herein or with our prior written approval, You are prohibited from copying, modifying, displaying, distributing, transmitting, transferring, redelivering, publishing, selling, marketing, renting, leasing, licensing or sublicensing, creating derivative works, or otherwise using or making available to any third party/parties any of our Services or any of the Content for any purpose. Systematic retrieval of data from any of our Services or the Content thereon to create or compile, directly or indirectly, a collection, compilation, database or directory, unless with our express written permission, is prohibited. You agree that You will not, directly or indirectly, reverse engineer, decompile, reproduce or otherwise attempt to derive source code, trade secrets, or other intellectual property from any information, material, or technology included on any of our Services or in the Content. Any attempt to do so is a violation of our rights, and if You breach this restriction, You may be subject to prosecution and damages. You are strictly prohibited from accessing and/or using the Services or any Content to develop, or have a third party develop, a product or service that is similar or competitive to the Services, including but not limited to any product or service that offers or makes available Protection Services to its customers.
SMS Messaging
Tagit is compliant with the Telephone Consumer Protection Act and other relevant regional laws and regulations, which means Tagit will not send SMS messages without prior explicit consent. In instances where Tagit sends SMS messages on Your behalf, You are also required to comply with the relevant regional laws and regulations, including without exception gathering explicit consent and regulating the use and frequency of SMS messages.
Affiliate Trademark and Intellectual Property Rights
If You are a Merchant or other commercial enterprise (or are acting on behalf of such person), during the Term of this Agreement (“Affiliate Program”), You hereby consent to and grant a limited, revocable, non-exclusive, non-transferable, non-sublicensable, royalty-free, worldwide license to Tagit to use Your trademarks, trade names, service marks, trade-dress, and other marks (collectively “Marks”) and other designations, copyrights (including photographs and other images), data (including product catalogs or user signals), or other materials (collectively “Materials”), including, at Our discretion, for the purpose of advertising, marketing and promoting Your brand and products online.
You shall retain all right, title and interest in and to Your Marks and Materials. If in the course of exercising its right to use the Marks and Materials as specified herein, Tagit acquires any goodwill in the Marks and Materials, all such goodwill shall automatically vest in the owner of the Marks and Materials without any separate action, payment or other consideration of any kind, and, upon request, Tagit shall, at the other party’s expense, take all such actions and execute all such documents as may be necessary to effect such vesting in the owner of the Marks and Materials.
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: (i) Your participation in the Affiliate Program; (ii) Our use of the Marks or Materials (as defined herein) that You provided to us, or (iii) Your noncompliance with or breach of these Terms and Conditions.
Insurance
A summary of the Tagit Policy (Tagit’s cargo insurance policy) can be found at tagitprotection.com/terms/insurance. Tagit’s Shipping Protection is subject to and strictly limited by the terms of the Tagit Policy.
The Shipping Protection Product is a service provided by Tagit and offered by Partner to Buyers. In order for Tagit to extend Shipping Protection protection to a consumer, Tagit’s licensed producer (CoverClub Insurance Services, Inc.) procures a cargo insurance (“the Tagit Policy”) from an insurer. Tagit is the named insured in the Policy. The Policy extends insurance to online purchases that are lost or damaged while in transit. Through our software applications, merchants can offer consumers the opportunity for shipping protection that would be protected by the Tagit Policy. Tagit provides software that allows consumers to file a notice of loss, damage or delay. Upon an election to protect their shipments under the Tagit Policy, consumers will receive a link to file such notices of loss, damage or delay (the foregoing being, collectively, “Tagit Shipping Protection”).
Merchants cannot file a claim on behalf of a customer unless specifically requested by that customer. Tagit may require evidence of the customer’s request before processing the claim.
As a merchant, upon addition of Your billing information to Your Tagit Account, a widget will go live on Your website. Tagit reserves the right to change its pricing at any time. If Your customers opt into Tagit Shipping Protection, this charge will appear for such customers to review and verify at checkout. The Tagit Platform may, from time to time at Tagit’s sole discretion, test cost variances to identify the optimal conversion rate. Upon Your agreement to these Terms, the Tagit Platform and access to the Policy will be activated on Your site.
As a customer of a merchant that offers Tagit Shipping Protection, your election to add packages to the Tagit Policy is entirely optional. You have the option of obtaining protection from an alternative source or not at all. With respect to goods purchased on a subscription basis, adding Tagit to an initial subscription purchase will automatically add Tagit Shipping Protection to all subsequent installments of said subscription. To cancel Tagit Shipping Protection, you must cancel your original subscription with the merchant.
If You elect to add packages to the Tagit Policy, Tagit will provide You with a link to a summary of the Tagit Policy and instructions to file a notice of loss. The Policy does not cover the following without a specific written amendment from Tagit (collectively the “Policy Exclusions”):
Automobiles and motorcycles; Boats and yachts; Live animals; Cash; Lumber; Ceramic, marble or granite tiles, slab blocks countertops or statues; Negotiable papers; Cigarettes and other tobacco products; Raw cotton; Pharmaceutical drugs; Fine arts (valued in excess of $10,000 per piece); Precious stones and metals; Flowers; Scrap metal, steel metal and steel metal products; automotive engines; general used automotive merchandise made of metal; Glass windows, plate glass and similar goods; Securities.
Tagit is not liable for more than $250,000 for any one vessel or conveyance per any one account of the Assured, except that in the following cases, this insurance shall not cover more than: $5,000 any one package or shipment, $2,500 any one package or shipment containing a laptop or tablet computer, mobile/smart phone or watch (“ Shipping Protection Limit”); Limit of Liability for Delay-Any one package or shipment: USD $10.00.
Any shipments that exceed Tagit’s Shipping Protection Limit will not be covered by Tagit Shipping Protection. If for any reason payments are billed/collected for shipments that exceed the Shipping Protection Limit, the excess amount will be returned to the subscriber. Tagit Shipping Protection attaches from the time the covered goods commence transit and/or are located anywhere incidental to transit and continues during the ordinary course of transit until transportation terminates at final destination or the assured’s interest ceases, whichever occurs first.
Requirements for Notice of Loss, Damage or delay.
In general. In the event of any loss, damage or delay or event which may lead to a claim under this Policy, the Insured must give prompt notice to the Insurer and in all events no later than 90 days following the order date for the goods or such shorter period of time for notice as required under this Policy.
Loss due to non-delivery. Where goods are presumed to be lost because the goods were not delivered, the Insured must report the loss to the Insurer no later than 30 days following the date on which the goods were shipped for domestic shipments or 60 days following the date on which the goods were shipped for international shipments.
Damage. Damage to goods must be reported to the Insurer no later than 15 days after the delivery date of the goods.
Delay. Delay in the delivery of goods must be reported no later than 15 days following the date on which the goods were shipped for domestic shipments or 30 days after the date the goods were shipped for international shipments.
Third-Party Services
Your use of the Tagit Services and/or Content may contain links to third-party services (“Third-Party Services”). When You use Third-Party Services, we will not warn You that You have left the Tagit Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Services are not under the control of Tagit. Tagit is not responsible for any Third-Party Services. Tagit provides these Third-Party Services only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services, or any product or service provided in connection therewith. You use all links in Third-Party Services at Your own risk. When You leave our Website, the Agreement and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Services, and make whatever investigation You feel necessary or appropriate before proceeding with any transaction with any third party.
Intellectual Property
We own and retain all right, title, and interest in and our Services (except for any licensed content and software components included therein). You agree not to reverse engineer, decompile, distribute, license, sell, transfer, disassemble, copy, alter, modify, or create derivative works of our Services or otherwise use our Services in any way that violates the use restrictions contained in these Terms of Use. We do not grant You any license, express or implied, to any of our intellectual property or that of our licensors. You further acknowledge and agree that any information regarding the design, “look and feel”, specifications, components, functionality or operation and payment terms and pricing (if applicable) of our Services is considered our confidential and proprietary information (collectively “Confidential Information”).
You retain all right, title and interest in and to (a) all graphics, images, files, data and other information transmitted by You to Tagit in connection with its use of our Services and (b) reports and other materials generated by our Services following such transmission (collectively, “Member Data”), provided, however, that You hereby grant to us a permanent, worldwide, royalty-free, non-exclusive license to use (i) data generated as a result of Your use of our Services solely for purposes of (x) maintaining and improving our Services and (y) providing You with access to special product offers and promotions and (ii) non-identifiable, anonymous, aggregated data regarding Your use of our Services compiled by us.
Our graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Tagit in the U.S. and/or other countries. Our trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without our prior written permission. We also reserve the right to determine and control all aspects (including all functionality) of the Service and our trade dress, as well as the right to re-design, modify and remove any or all aspects of them. You shall retain all right, title and interest in and to all of Your logos, promotional graphics and related marketing designs (collectively, the “Member Art”), provided, however, that You hereby grant to us a permanent, worldwide, royalty-free, non-exclusive license to use the Member Art, as well as Your corporate and/or trade name, for purposes of fulfilling its obligations hereunder and marketing our products and services to third parties.
General Prohibitions
Your use of the Services is further subject to the following additional restrictions:
You represent, warrant, and agree that You will not contribute any content or otherwise use our Services or interact with our Services in a manner that: (i) Infringes or violates the intellectual property rights or any other rights of anyone else (including us); Violates any law or regulation, including any applicable export control laws; Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable; (ii) Jeopardizes the security of Your Tagit account or anyone else’s (such as allowing someone else to log in to our Services as You); (iii) Attempts, in any manner, to obtain the password, account, or other security information from any other user; (iv) Violates the security of any computer network, or cracks any passwords or security encryption codes; (v) Runs Maillist, Listserv, any form of auto-responder or “spam” on our Services, or any processes that run or are activated while You are not logged into our Services, or that otherwise interfere with the proper working of our Services (including by placing an unreasonable load on our Services’ infrastructure); (vi) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to our Services or Content (through use of manual or automated means); (vii) Copies or stores any significant portion of the Content; (viii) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to our Services. A violation of any of the foregoing is grounds for immediate termination of Your right to use or access our Services.
Indemnification
You agree to indemnify and hold Tagit, its parents, subsidiaries, affiliates, officers, employees, contractors, agents, business partners, and licensors (collectively, the “Tagit Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your unauthorized use or misuse of the Services; (b) Your violation of this Agreement; (c) Your violation of any rights of another party, including any Users; or (d) Your violation of any applicable laws, rules or regulations. Tagit reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by You, in which event You will fully cooperate with Tagit in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or Your access to Services.
Disclaimer of Warranty
YOUR USE OF ANY OF OUR SERVICES AND ANY OF THE CONTENT, INCLUDING BUT NOT LIMITED TO SERVICES, POLICY INFORMATION, GRAPHICS, TEXT AND HYPERLINKS OR REFERENCES TO OTHER WEBSITES, IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE HEREBY DISCLAIM ALL WARRANTIES IN CONNECTION WITH OUR SERVICES AND THE CONTENT. OUR SERVICES AND ALL CONTENT IS PROVIDED “AS IS”, “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHER, WE DO NOT MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES THAT OUR SERVICES OR CONTENT WILL MEET YOUR REQUIREMENTS, BE UNINTERRUPTED OR FREE FROM ERRORS, THAT ANY ERRORS WILL BE CORRECTED, OR THAT THE SERVICES OR CONTENT WILL BE FREE FROM MALICIOUS SOFTWARE, VIRUSES OR OTHER HARMFUL COMPONENTS. FURTHER, WE DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR RESULTS OF THE USE OF THE SERVICES OR ANY OF THE CONTENT, NOR THE ADEQUACY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT OR ANY OF THE INFORMATION, PRODUCTS OR SERVICES PROVIDED THROUGH THE SERVICES OR CONTENT. NO ORAL OR WRITTEN INFORMATION GIVEN BY ANY PARTY SHALL CREATE ANY SUCH WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THE ABOVE DISCLAIMER OF THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE DOES APPLY TO YOU BUT DOES NOT LIMIT OUR LIABILITY FOR A VIOLATION OF A STATUTORILY IMPOSED DUTY.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM, AND YOU AGREE NOT TO HOLD US RESPONSIBLE FOR, ANY LOSSES, DAMAGES, INJURIES, CLAIMS OR OTHER LIABILITY OF ANY KIND, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR ACCESSING OR USING OR INABILITY TO ACCESS OR USE ALL OR ANY PART OF ANY OF OUR SERVICES OR ANY OF THE CONTENT, OR YOUR RELIANCE ON SUCH SERVICES AND/OR CONTENT, OR ANY FAILURE OF PERFORMANCE, ERROR, INTERRUPTION, DEFECT, DELAY IN TRANSMISSION, COMPUTER VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT, OR LINE OR SYSTEM FAILURE ASSOCIATED WITH SUCH SERVICES AND/OR CONTENT, REGARDLESS OF OUR NEGLIGENCE AND/OR KNOWLEDGE THEREOF.
UNDER NO CIRCUMSTANCES WILL TAGIT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO TAGIT BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY AND (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF TAGIT FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TAGIT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TAGIT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
THE LAW IN CERTAIN STATES, INCLUDING NEW JERSEY, MAY NOT ALLOW THE DISCLAIMER OR EXCLUSION OF ANY OR ALL OF SUCH LIABILITY, AND AS SUCH, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NEW JERSEY, THIS PROVISION DOES NOT LIMIT OR EXCLUDE OUR LIABILITY FOR OUR OWN INTENTIONAL TORTS, WILLFUL OR RECKLESS CONDUCT, GROSS NEGLIGENCE, OR VIOLATION OF A STATUTORILY IMPOSED DUTY.
International Users
Services can be accessed from countries around the world and may contain references to services and content that are not available in Your country. These references do not imply that Tagit intends to announce or promote the availability of such services or content in Your country. Services are controlled and offered by Tagit from its facilities in the United States of America. Tagit makes no representations that Services are appropriate or available for use in other locations. Those who access or use Services from other countries do so at their own volition and are responsible for compliance with local law.
Dispute Resolution
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires You to arbitrate disputes with Tagit and limits the manner in which You can seek relief from us.
You agree that any dispute or claim relating in any way to Your access or use of the Services, to any products sold or distributed through the Services (including any Tagit Policies), or to any aspect of Your relationship with Tagit, will be resolved by binding arbitration, rather than in court, except that (1) You may assert claims in small claims court if Your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) You or Tagit may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH TAGIT, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TAGIT ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST TAGIT IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Service. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the State of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
Further, unless we otherwise agree in a writing signed by an authorized representative, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this agreement to arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in the State of California. All other claims will be arbitrated.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing, or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration, you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
Miscellaneous
The communications between You and Tagit use electronic means, whether You visit Services or send Tagit e-mails, or whether Tagit posts notices on Services or communicates with You via e-mail. For contractual purposes, You (1) consent to receive communications from Tagit in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications related to these Agreement that Tagit provides to You electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect Your statutory rights.
This Agreement, and Your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by You without Tagit’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Tagit shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both You and Tagit agree that all claims and disputes arising out of or relating to this Agreement or the Services will be litigated exclusively in the state courts located in California or federal courts located in the State of California.
This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Delaware, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Where Tagit requires that You provide an e-mail address, You are responsible for providing Tagit with Your most current e-mail address. In the event that the last e-mail address You provided to Tagit is not valid, or for any reason is not capable of delivering to You any notices required/ permitted by this Agreement, Tagitl’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any portion of these Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Tagit is a registered business in California, USA.