Effective February 20, 2018
This Take2 Platform Service Agreement ("Agreement") is a legal agreement made between Take2 Holdings, LLC ("Take2") and you, as an individual or any business entity or form, including any affiliates, subsidiaries or any entity that is controlled by you (collectively, "You," "Your" or "Yours") and is effective upon the establishment of a username and acceptable password to access Your Services (as defined herein) (the "Account"). By accepting this Agreement, you also agree to be bound by any policies referenced herein ("Policies"), including without limitation the Privacy Policy and Support Policy. Links to the Policies are provided at the end of this Agreement.
Take2 provides a system, software and platform allowing You to initiate, design, develop, confirm and deliver signage and other physical printing orders to Your customers, including all customer management (name and contact), customer communications (electronic mail only), customer maintenance, customer invoicing, and payment processing (collectively the "Services").
You must open an account with Take2 ("Take2 Account") to use the Services. During registration Take2 will ask You for certain information, including Your name and other personal information. You must provide accurate and complete information in response to those questions, and must keep that information current. You are fully responsible for all activity that occurs under your Take2 Account, including for any actions taken by persons to whom You have granted access to Your Take2 Account. Take2 reserves the right to suspend or terminate the Take2 Account of any user who provides false, incomplete, or inaccurate information, or who fails to comply with Take2 Account registration requirements.
Take2 may amend the Agreement or the Policies at any time with notice deemed reasonable by Take2 under the circumstances existing at that time. Take2 will make such amendment by posting the revised version on the Take2 website or communicating the revisions to You directly through the Services (each, a "Revised Item"). The Revised Item will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 19) that arose before the Revised Item was posted or delivered will be governed by the Agreement or Policies in place when the Dispute arose.
You may not, nor may you permit any third party, directly or indirectly, to:
Without affecting any other remedies available to Take2, Take2 may permanently or temporarily suspend or terminate Your account or access to the Services without notice or liability if Take2 (in its sole discretion) determines that You have violated Section 4 of this Agreement.
Take2 does not warrant that the Services will be compatible with Your mobile device or carrier. Your use of the Services may be subject to the terms of any agreements You have with Your mobile device manufacturer or carrier, including without limitation agreements concerning data charges. You may not use a modified device to use the Services if the modification is contrary to the manufacturer"s software or hardware terms of service, including disabling hardware or software controls (e.g., "jail breaking").
The Services include functionality for uploading or providing photos, logos, products, designs, and other materials or information ("Content").
You grant Take2 and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, modify, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media in order to provide and promote the Services. You retain all rights in your Content, subject to the rights You granted to us in this Agreement. You may modify or remove Your Content via Your Take2 Account or by terminating Your Take2 Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
Your Content must conform to any relevant term or condition set forth in this Agreement, including without limitation, those set forth in Section 4, and Policies.
Take2 responds promptly to all valid notices of copyright and trademark infringement, and our policy is to suspend or terminate the access privileges of those who infringe the copyrights and trademarks of others.
Take2 grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Services, as authorized in this Agreement. Take2 may make software updates to the Services available to You, which You must install to continue using the Services. Any such software updates may be subject to additional terms made known to You at that time.
Take2 reserves all rights not expressly granted to You in this Agreement. Take2 owns all rights, title, interest, copyright and other worldwide Intellectual Property Rights in the Services and all copies of the Services. This Agreement does not grant You any rights to our trademarks or service marks. For the purposes of this Agreement, "Intellectual Property Rights" means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit to Take2 comments or ideas about the Services ("Ideas"). By submitting any Idea, You agree that Your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Take2 under any fiduciary, confidentiality or other obligation, and that Take2 is free to use the Idea without any additional compensation to You, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
Take2 has implemented technical and organizational measures designed to secure Your personal information from accidental loss and from unauthorized access, use, alteration, or disclosure. Further, Take2 agrees to treat all Your information and customer data (e.g., customer information, including but not limited to name and contact, as well as functions available to edit or update as necessary) that You disclose to Take2 in accordance with applicable privacy laws, rules, and regulations. Take2 will use such information solely for the purpose of performing the Services or as provided herein. Take2 will not disclose such information to anyone other than: (i) to Take2"s employees in the ordinary course of Take2"s business; (ii) to non-affiliated third parties who need access in order for Take2 to carry out the Services; (iii) to employees, agents, affiliates, or contractors of You that supplied such information to Take2 or that You have authorized to receive such information from Take2; or (iv) as is otherwise required by applicable law (including but not limited to complying with subpoenas, investigations by government regulatory authorities, and disclosing such information to Take2"s attorneys, auditors, and accountants).
Take2 shall take appropriate measures to maintain the security and confidentiality of any such information that You disclose to Take2, treating such confidential information in a manner similar to which Take2 treats its own confidential information.
The Services may be accessed by You and Your authorized employees only through the Internet at a website provided by Take2 or on behalf of Take2, including any website hosted by Take2 on behalf of You. In addition, and notwithstanding anything to the contrary contained herein, You acknowledge that security of transmissions over the Internet cannot be guaranteed. Take2 is not responsible for (i) Your access to the Internet, (ii) interception or interruptions of communications through the Internet, or (iii) changes or losses of data through the Internet, in each case other than to the extent caused solely by Take2.
You are responsible for safeguarding Your password and for restricting access to the Services from Your compatible mobile devices and computer(s). You are fully responsible for all activities that occur under Your password and Take2 Account. You agree to (i) immediately notify Take2 of any unauthorized use of Your Account or any other breach of security; and (ii) ensure that You exit from Your Take2 Account at the end of each session. Take2 shall not be liable for any damages incurred by You or any third party arising from Your failure to comply with this Agreement. In order to protect Your data, Take2 may suspend immediately and without prior notice, Your use of the Services if any breach of security is suspected. Notwithstanding Sections 19 and 20, in the event of any dispute between two or more parties as to account ownership, Take2 will be the sole arbiter of such dispute in the sole discretion of Take2. The decision of Take2 (which may include termination or suspension of any Take2 Account subject to dispute) will be final and binding on all parties.
Notwithstanding the foregoing, Take2 cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Your personal information for improper purposes. Therefore, You provide Your personal information at Your own risk.
You consent to accept and receive communications from Take2, including e-mail, text messages, calls, and push notifications to the telephone number you provide to Take2. These communications may be generated by automatic telephone dialing or other systems which will deliver prerecorded messages, including for the purposes of secondary authentication, receipts, reminders and other notifications. Standard message and data rates applied by Your cell phone carrier may apply to the text messages Take2 sends to You. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You may also opt-out of text messages from Take2 at any time by replying with the word "STOP" to a Take2 message. You acknowledge that opting out of receiving communications may impact Your use of the Services.
You acknowledge that payment processing services for Take2 are provided by Stripe, Inc. ("Stripe") and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). You agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time.
The Services shall be paid for on a recurring basis, which subject You to recurring fees and/or terms ("Subscription Fees"), as well as to any additional processing fees required by Take2 to maintain the Paid Services, and any applicable taxes as set forth in your Take2 Account settings or as otherwise agreed to in writing (collectively, the "Paid Services Fees"). Take2 has the right to change, delete, discontinue or impose conditions on the Services or any feature or aspect of the Services. By signing up for the Services, including after any free trial period, You agree to pay Take2 the Paid Service Fees.
Paid Service Fees may be paid by debit card, credit card, or deducted from your transaction proceeds. If you link a debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked debit card or charge to your linked credit card, and to make inquiries Take2 may consider necessary to validate your designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from your payment, credit card, or banking account provider (e.g., updated expiry date or card number as may be provided to us by your credit card company) and share such information with Stripe. Regardless of payment device, we reserve the right to collect Paid Service Fees by deduction from your transaction proceeds, the Stripe Connect account balance relating to Your Take2 Account, or your linked bank account.
Unless otherwise provided in your Take2 Account settings, Subscription Fees will be charged on a recurring basis beginning on the date You subscribed to the Services. You may cancel a Subscription Service at any time from your Take2 Account settings. If you cancel a Subscription Service, you will continue to have access to that Subscription Service through the end of your then current billing period, but you will not be entitled to a refund or credit for any Subscription Fee already due or paid. We reserve the right to change our Subscription Fee upon thirty (30) days" advance notice. Your continued use of Subscription Services after notice of a change to our Subscription Fee will constitute your agreement to such changes.
Take2 may charge additional fees for services not enumerated in this Agreement if such additional services are requested by You. Take2 may charge reasonable miscellaneous fees including but not limited to stop payment fees, wire transfer fees ("Wire Fee") and credit card or chargeback fees and costs, as applicable, and all such fees may be adjusted at any time without notice.
Paid Services Fees are exclusive of all taxes, including without limitation, sales, use, value-added or other taxes or levies on transactions made under this Agreement. You shall pay Take2 an amount equal to any tax Take2 is required to collect or pay upon the sale, license, or delivery of Services to You, whether for You or Your customer, by Take2 exclusive of taxes imposed upon Take2"s income.
Take2 may terminate this Agreement, or suspend or terminate Your Take2 Account or Your access to the Services, at any time for any reason. Take2 will take reasonable steps to notify You of termination by email or at the next time you attempt to access Your Take2 Account. Unless otherwise provided in this Agreement, You may not terminate the Agreement prior to the expiration of any Subscription period.
If this Agreement or your Take2 Account is terminated or suspended for any reason: (a) the license and any other rights granted under this Agreement will end, (b) Take2 may (but has no obligation to) delete Your information and account data stored on Take2 servers, and (c) Take2 will not be liable to You or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of Your information or account data. In addition to any payment obligations under the Payment Terms, the following sections of this Agreement survive and remain in effect in accordance with their terms upon termination: 6 (Your Content), 7 (Copyright and Trademark Infringement), 9 (Ownership) 14 (Effect of Termination), 15 (Representations and Warranties), 16 ( Limited Warranty), 1 7 (Limitation of Liability), 19 (Disputes and Binding Individual Arbitration), 2 0 (Governing Law and Inducement), 21 (Limitation on Time to Initiate a Dispute), 22 (Assignment), 2 7 (Entire Agreement).
Take2 assumes no responsibility for Your failure to obtain electronic or physical copies of any content, customer data, Your information or confirmations of Product or Payment Processing, whether such information is requested or required by You or Your customer.
Without limiting any remedies available to Take2, You agree to pay for all collection costs, including reasonable attorney's fees, which Take2 may incur as a result of Your failure to perform any obligation under this Agreement.
You represent and warrant to Take2 that: (a) You are at least eighteen (18) years of age; (b) You are eligible to register and use the Services and have the right, power, and ability to enter into and perform under this Agreement; (c) any information You provide in connection with the Services, including Your business name, accurately and truthfully represents Your business or personal identity under which You sell goods and services; (d) You and all transactions initiated by You will comply with all federal, state, and local laws, rules, and regulations applicable to You and/or Your business; (e) You will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) Your use of the Services will be in compliance with this Agreement and any applicable Policies.
Take2 represents and warrants that: (a) it shall provide the Take2 Services in a good and workmanlike manner, consistent with industry standards, using personnel with the appropriate degree of skill (b) the functionality of the Take2 Services will not be materially decreased during the term of this Agreement, subject to Take2"s right to modify, enhance or terminate any of the Take2 Services from time to time upon reasonable notice; (c) it shall utilize software and other security means to prevent the Take2 Services from containing or transmitting malicious code; (d) the Take2 Services will perform in accordance with user documentation; and (e) to its knowledge, it owns or otherwise has sufficient rights in the Take2 Services and the user documentation granted herein.
WITH THE EXCEPTION OF ANY WARRANTY EXPRESSLY SET FORTH HEREIN, TAKE2 MAKES NO WARRANTIES, AND SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY TAKE2 SERVICES OR TAKE2 PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY OF NON-INFRINGEMENT, NON-INTERRUPTION OF USE OR FREEDOM FROM ERRORS.
EXCEPT FOR (1) INTEREST CHARGES AND PENALTIES IMPOSED BY TAXING AUTHORITIES THAT ARE THE DIRECT RESULT OF TAKE2"S NEGLIGENCE; (2) ACTUAL DAMAGES INCURRED BY YOU AS A DIRECT RESULT OF THE CRIMINAL OR FRAUDULENT ACTS OR WILLFUL MISCONDUCT OF TAKE2 OR ANY OF ITS EMPLOYEES; AND (3) THIRD PARTY CLAIMS AS DESCRIBED IN SECTION VIII (INDEMNIFICATION) BELOW, THE CUMULATIVE LIABILITY OF TAKE2 TO YOU FOR ALL CLAIMS RELATING TO OR ARISING FROM THE TAKE2 SERVICES OR THE AGREEMENT, IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE MONIES RECEIVED BY TAKE2 FROM YOU. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR OTHER DAMAGES OF ANY SORT (INCLUDING LOST PROFITS, LOST REVENUE, LOST INCOME, OR ANY REVENUE ARISING FROM LOSS OF ANTICIPATED BUSINESS) NOT SPECIFICALLY PROVIDED FOR HEREIN AS A RESULT OF THE PERFORMANCE OR NON"PERFORMANCE OF ANY OBLIGATION UNDER THIS AGREEMENT, EVEN IF A PARTY HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, AND EVEN IF SUCH DAMAGES WERE OR SHOULD HAVE BEEN FORESEEABLE. FURTHERMORE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY WITH RESPECT TO ACTIONS, FACTS OR CIRCUMSTANCES OCCURRING OR EXISTING PRIOR TO THE DATE OF THIS AGREEMENT. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF DAMAGES APPLIES REGARDLESS OF ANY OTHER REMEDIES A PARTY MAY HAVE. YOU ACKNOWLEDGES THAT THIS SECTION IS AN INTEGRAL PART OF THE AGREEMENT THAT HAS BEEN BARGAINED FOR BY THE PARTIES, AND THAT THIS SECTION WILL REMAIN IN EFFECT EVEN IF ANY OTHER PROVISION OF THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
Except to the extent a Loss (as hereinafter defined) arises solely and exclusively from Take2"s negligence or error, You shall indemnify and hold Take2 (and its respective employees, directors, agents, affiliates, and representatives) harmless from and against any loss, liability, cost, damage or expense (each a "Loss") arising from or otherwise relating to: (i) Your breach of any representation or warranty set forth in this Agreement; (ii) Your failure to perform any covenant or other obligation set forth in this Agreement; (iii) the timeliness or accuracy of information supplied by You to Take2; (iv) actions taken by Take2 pursuant to instructions provided by You; or (v) Your use, misuse, or resale of the Services.
Take2 shall indemnify and hold harmless You from and against any Loss directly arising from a claim that Your use of any of the Services infringes the Intellectual Property rights of a third party; provided, however, that: (a) You have not modified or otherwise altered any of the Intellectual Property comprising or contained in the Take2 Services; (b) You shall give prompt written notice to Take2 of the third-party claim; (c) Take2 has full and complete control over the defense and settlement of the third-party claim; and (d) You shall assist Take2 in connection with the defense and settlement of the third-party claim as reasonably requested by Take2. If You are enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a claim that such Services infringe the Intellectual Property rights of a third party, then Take2 may, at its sole expense and at its option, either: (a) obtain for You the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If Take2 determines that the foregoing options are not commercially possible, Take2 may terminate the Agreement upon thirty (30) days advance written notice to You. Without limiting Take2"s obligation to indemnify You as set forth above, the remedy set out in this Section is Your sole and exclusive remedy for any actual or alleged infringement by Take2 of any third-party Intellectual Property rights in the event that You are enjoined or otherwise prohibited from using any such Services.
As used in this Agreement, the term "Disputes" is defined as any claim, controversy, or dispute between You and Take2, its processors, suppliers, or licensors (or their respective agents, directors, employees, or affiliates), including any claims relating in any way to this Agreement, any Policies, or the Services, or any other aspect of the relationship between You and Take2.
You and Take2 agree that Disputes arising out of this Agreement shall be settled by binding arbitration in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for you in your hometown area), or at such other location as may be mutually agreed upon by both Take2 and You, in accordance with the applicable procedural rules set forth in the then prevailing Comprehensive Arbitration Rules and Procedures of JAMS ("JAMS Rules and Procedures"), and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The JAMS Rules and Procedures are available at www.jamsadr.com or by calling (800) 352-5267. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. Alternatively, You may assert your claims in small claims court in accordance with the terms of this Agreement if Your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The arbitrator shall apply Texas law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. If You initiate arbitration against Take2, You will not be responsible for professional fees for the arbitrator"s services or any other JAMS fees. Each party will pay for their proportionate share for the arbitrator"s services and any other JAMS fees associated with the arbitration. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class or representative basis, then the entirety of this arbitration provision shall be null and void, and neither you nor Take2 shall be entitled to arbitrate their dispute. THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED. BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL AND YOU UNDERSTAND THAT YOU ARE WAIVING YOUR RIGHTS TO OTHER AVAILABLE RESOLUTION PROCESSES, SUCH AS A COURT ACTION.
This Agreement shall be construed in accordance with and governed by the law of the State of Texas (without regard to principles of conflict of laws), including the application of any applicable statutes of limitations. You consent to the exclusive jurisdiction and venue of the courts located in Williamson County, Texas for all disputes arising out of, or relating to this Agreement that are not subject to binding arbitration as set forth herein.
Any action or proceeding initiated by You relating to any Dispute must commence within one year after the cause of action accrues.
This Agreement may not be assigned by You without prior written consent of Take2, and any assignment made without such consent is null and void.
This Agreement establishes an independent contractor relationship only, by which Take2 will perform the Services for You. It is not intended as, and may not be construed to establish, a partnership, joint venture, agency or master/servant relationship between Take2 and You.
If any provision of this Agreement or any portion thereof is held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remainder of this Agreement will not in any way be affected or impaired.
A waiver by either party of its rights hereunder is not binding unless contained in a writing signed by an authorized representative of the party waiving its rights. The non-enforcement or waiver of any provision on one occasion does not constitute a waiver of such provision on any other occasions unless expressly so agreed in writing.
Any party hereto will be excused from performance under this Agreement for any period of time that the party is prevented from performing its obligations hereunder as a result of an act of God, war, utility or communication failures, or other cause beyond the party"s reasonable control. Both parties will use reasonable efforts to mitigate the effect of a force majeure event.
This Agreement constitutes the entire understanding of the parties, and supersede all prior agreements between the parties, whether oral or written. In the event of a conflict between this Agreement and any other Take2 agreement or Policy, this Agreement will prevail and control the subject matter of such conflict. If any provision of this Agreement is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that Take2 may have under trade secret, copyright, patent, or other laws. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term.
During the term of this Agreement and for a period of five years from the date of termination of this Agreement by any party, You shall not solicit the employment of any Take2 employee who has been involved in furnishing Take2 Services hereunder. Nothing contained in this Section, however, shall prohibit You from hiring any Take2 employee who responds to a general advertisement for employment, provided You did not initiate contact with the employee or otherwise alert the employee to the advertisement.
By selecting the "I Accept" button, You are signing this Agreement electronically. You agree that Your electronic signature is the legal equivalent of Your manual signature on this Agreement. By selecting "I Accept" You consent to be legally bound by this Agreement's terms and conditions. You further agree that your use of a key pad, mouse or other device to select an item, button, icon or similar act/action, or to otherwise provide Take2 in accessing the Services or making any Order constitutes Your signature (hereafter referred to as "E-Signature"), acceptance and agreement as if actually signed by You in writing. You also agree that no certification authority or other third party verification is necessary to validate Your E-Signature and that the lack of such certification or third party verification will not in any way affect the enforceability of your E-Signature or this Agreement. You also represent that You are authorized to enter into this Agreement for all persons or entities who created or are authorized to access Your Account and that such persons will be bound by the terms of this Agreement.