This End User License Agreement (this “Agreement”) sets forth the legally binding terms between ATX Innovation, Inc. d/b/a “TabbedOut” ("TabbedOut," “us,” or “we”) and you, as an end user of its mobile payment application for iOS and Android (collectively, the “App”).
YOU ARE ONLY AUTHORIZED TO USE THE APP IF YOU AGREE TO ABIDE BY ALL APPLICABLE LAWS AND THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AND SAVE IT. IF YOU DO NOT AGREE WITH IT, YOU SHOULD NOT INSTALL THE APP OR SHOULD DISCONTINUE USE IMMEDIATELY.
Representations About You. The App is not designed for use by children under the age of 13, and we do not intentionally collect personal information from children through the App. You represent and warrant to us that you are at least 18 years of age. Also, you represent and warrant that (i) you have read and understand this Agreement, (ii) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; (iii) you are not listed on any U.S. Government list of prohibited or restricted parties, and (iv) the information that you provide to us about you in connection with the App will be current, true, accurate, supportable and complete, and promise that you will update this information to keep it current.
License Grant. Subject to the terms of this Agreement, TabbedOut hereby grants you a limited, non-exclusive and nontransferable license to download, install, display, perform, access and use the App on a single smart phone, tablet or other mobile device that you own or control for your personal, non-commercial use solely within the United States.
License Restrictions. You shall not: (i) copy the App or any element thereof, except as expressly permitted by this license; (ii) modify, translate, adapt, or otherwise create derivative works or improvements of the App or any element thereof; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the App or any element thereof; (iv) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notice from the App; (v) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the App or any features or functionality of the App, to any third party for any reason, including making the App available on a network where it is capable of being accessed by more than one device at any time; or (vi) use the App to violate any applicable law, including without limitation any law regarding the purchase or sale of alcoholic beverages. If for some reason these restrictions are prohibited by applicable law or by an agreement we have with one of our licensors, then the activities are permitted only to the extent necessary to comply with such law or license(s).
Reservation of Rights. You acknowledge that the App is licensed, not sold, to you. TabbedOut reserves all rights in and to the App not expressly granted to you under this Agreement. You do not acquire any ownership interest in the App under this Agreement. TabbedOut and its licensors and service providers reserve and retain the entire right title and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement. If you submit comments, suggestions, or other feedback regarding the App (“Feedback”), TabbedOut will be free to use such Feedback for any purpose. The word marks “TABBEDOUT” and “PERISCOPE” and the “TabbedOut” and “TO” logos and all associated marks and logos displayed within the App are our trademarks (unless otherwise noted).
Third Party Establishments. You acknowledge and agree that the App is a tool that enables you to make purchases and to settle, pay for or close (“close out”) a check, bill, tab, owed payment or other transaction, whether individually or as a “split” transaction with other users (each a “Transaction”), with third-party establishments, including but not limited to restaurants or bars (each, an “Establishment”). You acknowledge that all Transactions are between you and the Establishments and that TabbedOut is not a party to such Transactions. TabbedOut is not responsible for examining or evaluating the quality, or any other aspect of such products or services of any Establishment and will not have any liability or responsibility to you or any other person therefor. Any Establishment that allows you to use the App to close out a Transaction retains the right to settle your payment should you fail to properly close out your Transaction either as a result of your failure to use the App to pay for the payment or if the App does not properly pay such payment. Any Establishment that allows to use the App to close out any Transaction retains the right to request that you authorize such payment by other means including, but not limited to, signing a printed receipt or delivering a final check, bill or tab to you. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the App to pay for a Transaction in an Establishment, any chargeback for such charge shall apply to such Establishment and that we will not have any liability to you.
Payment Vendors. TabbedOut is a technology provider. It is not a bank, credit union, payment processor or other financial institution. Transactions are processed via an Establishment’s payment processor and/or point of sale (“POS”) system vendor (each a “Payment Vendor”). By processing a Transaction via the App, you authorize an Establishment’s Payment Vendor to charge your credit card or other payment method. Transactions processed via the App may also be subject to the terms and conditions of the applicable Payment Vendor.
Minimum Gratuity. If you use the App to close out a Transaction in an Establishment, or if an Establishment closes out a Transaction on your behalf, the Establishment, not TabbedOut, may add a required minimum tip or gratuity to the Transaction. You acknowledge that TabbedOut does not determine or mandate any such tip or gratuity amount and you hereby agree to pay any minimum tip or gratuity as a condition to entering into the Transaction via the App.
Refunds. You acknowledge and agree that TabbedOut does not provide refunds via the App. You hereby agree to seek any refunds of Transactions directly from the Establishments or your credit card company.
Acknowledgements Regarding Apple, Inc., Google Inc. and other App Store Providers. You acknowledge that this Agreement is between you and TabbedOut and not with Apple, Inc. (“Apple”), Google Inc. (“Google”) or any sponsor or provider of any application marketplace (each an “App Store Provider”) and that TabbedOut (not the applicable App Store Provider) is responsible for the App. YOU ACKNOWLEDGE AND AGREE THAT NO APP STORE PROVIDER MAKES ANY WARRANTIES OR HAS ANY OBLIGATIONS WHATSOEVER UNDER THIS AGREEMENT OR HAS ANY WARRANTY OBLIGATIONS WITH RESPECT TO THE APP. You acknowledge that App Store Provider have no obligation whatsoever to furnish any maintenance and support services with respect to the App or for addressing any claims relating thereto or your possession and/or use thereof, including, but not limited to (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You further acknowledge that App Store Providers have no responsibility for the investigation, defense, settlement or discharge of any third party intellectual property claims that the App or your use thereof infringes intellectual property rights.
If you are using the App on any iOS-based device, this license is granted to you only as permitted by and subject to any applicable Usage Rules set forth in the Apple App Store Terms and Conditions and Apple and its subsidiaries are third party beneficiaries. Upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary hereof. If you are using the App on any Android-based device, this license is granted to you only as permitted by and subject to any applicable Android Market Terms of Service established by Google.
Maintenance. Scheduled system maintenance shall take place from time to time, and during such time, updates the App or elements thereof may be unavailable. Emergency maintenance may be required at other times in the event of system failure. You specifically acknowledge that outage and downtime may occur. If the App is down when you attempt to complete a Transaction, you must make alternative arrangements to pay the applicable Establishment.
Updates. TabbedOut may, but is not required to, develop and provide App updates from time to time, which may include upgrades, bug fixes, patches and other corrections or new features (collectively, “Updates”). Updates may also modify or delete in their entirety certain features or functionality. You agree that TabbedOut has not obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the settings of your mobile device, when your device is connected to the Internet, the App may automatically download and install available Updates, or you will be prompted to download an install available Updates. You acknowledge that the App or any of its features may not operate properly if you fail to install Updates and TabbedOut may, in its sole discretion, cease supporting prior versions of the App after an Update is made available. You further agree that all Updates will be deemed part of the App and subject to the terms of this Agreement.
Communications. You consent to receive communications, including commercial communications (whether by phone, email or text) from TabbedOut and our third party partners, which may include Establishments and other third parties, including without limitation brands. You acknowledge and agree that your primary phone numbers and email addresses and other information may be used for the purpose of initiating commercial messages. Your consent to receipt of such messages is not, and will not be, a condition to any purchase. If at any time you change your mind regarding your consent to such messages, you must [Contact Us.] You may opt out of receiving messages that are primarily commercial in nature, but in order to stop receiving all messages from TabbedOut (including messages related to Transactions and your account), you will need to terminate your account. If the App enables you to send or receive SMS messages, standard text messaging rates or other carrier charges may apply to such use.
Push Notifications. TabbedOut may send you “push notifications” if your device supports such communications. By downloading the App and clicking to allow push notifications, you “opt-in” to receive these push notifications via the App, including notifications that contain commercial messages from TabbedOut and our third party partners. Should you wish to stop receiving push notifications via the App, you may turn off these notifications through the applicable settings on your device.
Third Party Offerings. To enjoy certain third party offerings made available in the App, certain third party terms (each, “Third Party Terms”) may apply. Third Party Terms will be presented for review and acceptance at the time that you undertake such activity within the App, and any such Third Party Terms shall constitute an agreement between you and such third party. We are not responsible for such third party offerings. Further, the App may display, include, or make available content, data, information, applications, or materials from third parties (“Third-Party Materials”) or provide links to certain third-party websites. By using the App, you acknowledge and agree that is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third-Party Materials or websites. TabbedOut does not warrant or endorse and will not have any liability or responsibility to you or any other person for any Third-Party Materials or websites, or any other materials, products, or services of third parties. Third-Party Materials and links to other websites are provided solely as a convenience to you.
Limitations on Availability. The App is based in the United States and is provided for access and use by persons in the United States. We make no representation that the App is available or permitted in any particular location. Use of the App is void where prohibited. You use the App at your own initiative and are responsible for compliance with any applicable laws. We may also impose limits on the use or access to the App as required by law.
Term and Termination. The term of this Agreement and the license and other rights granted herein commence on the Effective Date and continue until terminated by TabbedOut or you. You may terminate this Agreement by deleting the App and all copies of it from your mobile device. TabbedOut may terminate this Agreement at any time without notice in its sole discretion, including if it ceases to support the App, or if you fail to comply with one or more terms of this Agreement. Upon termination of this Agreement: (i) all license and other rights granted to you under this Agreement will terminate, and (ii) you must cease all use of the App and destroy all copies, full or partial, of the App. You acknowledge that TabbedOut may restrict, modify, or terminate this Agreement, without liability, for its convenience, or if you violate this Agreement or any law, rule, or regulation.
Disclaimers and Limitations of Liability. This section is important – please read it carefully - it limits TabbedOut’s liability (and the liability of its affiliates) to you. These disclaimers and limitations apply only to the extent permitted by applicable law. Some jurisdictions do not allow disclaimers of implied warranties or limitations of liability, so this Section may not apply to you.
(a) Disclaimer of Warranties. EXCEPT AS EXPRESSLY STATED ABOVE, THE APP IS PROVIDED "AS IS" AND “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM, ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY.
(b) Limitation of Liability. NEITHER WE NOR OUR AFFILIATES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER RELATED TO THE APP. NEITHER WE NOR OUR AFFILIATES WILL HAVE LIABILITY TO YOU FOR DAMAGES IN EXCESS OF THE GREATER OF: (I) U.S. $50.00, OR (II) THE AMOUNT YOU PAID FOR THE APP, IF ANY, IN THE 12 MONTHS PRIOR TO THE CLAIM. THE ABOVE LIMITATIONS APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Disputes Between You and an Establishment or other User. You are solely responsible for your interactions and Transactions with Establishments or other users of the App. You hereby agree to look solely to such Establishments and other users for any claim, damage or liability associated with any Transaction commissioned via the App and expressly waive and release TabbedOut from any and all claims, damages and liabilities arising out of any act or omission of any Establishment, other user or third party.
Export and Other Restrictions. You may not use or otherwise export or re-export the App or elements thereof except as authorized by United States law and the laws of the jurisdiction in which the App was accessed or obtained. The App and related documentation are “Commercial Items,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. The Commercial Computer Software and Commercial Computer Software Documentation are being licensed to any U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.
Amendments. This Agreement will not be changed, modified, or amended except by a writing executed by both parties or if you electronically accept a subsequent agreement or amendment delivered by TabbedOut via a click-to accept mechanism.
Miscellaneous. The laws of the State of Texas, excluding its conflicts of law rules, govern this this license and your use of the App. The exclusive jurisdiction and venue of any action arising out of or related to this Agreement will be either the state or federal courts in Travis County, Texas, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts. Your use of the App may also be subject to other local, state, national, or international laws. This Agreement constitutes the entire agreement between us regarding the App. The section titles in this Agreement are for convenience only and have no legal or contractual effect. This Agreement operates to the fullest extent permissible by law. You may not transfer or assign this Agreement or any of its rights or obligations hereunder without our prior written consent, and any attempt to do so shall be null and void. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of any remaining provisions.
Contact Us. Please contact us at firstname.lastname@example.org or (866) 626-8045 if you have any questions regarding this Agreement.