TAP 11, INC.

TERMS OF SERVICE

THIS TERMS OF SERVICE ("AGREEMENT") GOVERN YOUR 30-DAY FREE TRIAL OF THE SERVICES (As defined below).

THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ANY USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT or otherwise using the services, YOU AGREE TO THE TERMS and conditions OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS of this agreement, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU SHALL HAVE NO RIGHT TO USE THE SERVICES.

You shall have no right to access or use the Services if You are direct competitor of Tap11, Inc. ("Tap11"), except if you have obtained Tap11 prior written consent. In addition, You may not access the Services for purposes of monitoring the Services availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on March 5, 2010. It is effective between You and Tap11 as of the date of You accepting this Agreement.

Definitions
30-Day Free Trial
Purchased Services
Use of the Services
Third-Party Providers
Fees and Payment for Purchased Services
Proprietary Rights
Confidentiality
Warranties and Disclaimers
Mutual Indemnification
Limitation of Liability
Term and Termination
General Provisions

1. DEFINITIONS

"Accounts" means the number of Twitter or other social networking site accounts for which subscriptions to the Service have been ordered as part of the 30-day free trial and purchased under an Order Form.

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, "control" means direct or indirect ownership or control of more than 50% of the voting interests or other ownership interest of the subject entity, or if it directly or indirectly possesses the power to direct or cause the direction of the management and policies of the other entity by any means whatsoever.

"Malicious Code" means viruses, worms, time bombs, Trojan horses, code, files, scripts, agents or programs or other harmful code who purpose is to damage, interfere, halt, disable or permit the circumvention of normal security of a computer system, software or related service.

"Order Form" means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Tap11 from time to time. Order Forms shall be deemed incorporated herein by reference.

"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a 30-day free trial.

"Services" means the online, Web-based applications and platform provided by Tap11 via http://www.tap11.com and/or other designated websites described in this Agreement including associated offline components but excluding Third Party Applications.

"Tap11 means Tap11, Inc.

"Third Party Applications" means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.

"Users" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Tap11 at Your request). Users may include but are not limited to Your employees, directors, officers, consultants, contractors and agents, or third parties with which You transact business.

"You" or "Your" means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.

"Your Content" means any text, links, photos, videos or other content posted to the Tap11.com website.

"Your Data" means all electronic data or information submitted by You to Tap11 while utilizing the Services.

2. 30-DAY FREE TRIAL

Tap11 will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the thirtieth (30th) day after Your acceptance of this Agreement or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY OF YOUR DATA ENTERED INTO THE SERVICES or otherwise provided to Tap11, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE 30-DAY TRIAL PERIOD. YOU CANNOT TRANSFER YOUR DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 30-DAY FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE 30-DAY TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST. Tap11 shall have no obligation to retain or attempt to obtain any of your data provided to tap11 by you.

NOTWITHSTANDING SECTION 9 (WARRANTIES AND DISCLAIMERS), DURING THE 30-DAY FREE TRIAL THE SERVICES ARE PROVIDED "AS-IS" WITHOUT Tap11 making ANY WARRANTY whether express, implied or statutory regarding or relating to the services provided to you. Tap11 specifically disclaims any and all implied warranties of merchantability, fitness for a particular purpose and non-infringement. Tap11 further does not guarantee that access to the services will be uninterrupted or error-free.

Please review the FAQ during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.

3. PURCHASED SERVICES

3.1. Provision of Purchased Services. Tap11 shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term set forth in the Order Form. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Tap11 regarding future functionality or features.

3.2. Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as User and Account subscriptions as set forth in your Order Form (collectively, "Subscriptions"). User subscriptions may be accessed by no more than the specified number of Users. Account subscriptions may access no more than the specified number of Accounts. Additional Subscriptions may be added pursuant to an additional Order From during the subscription term at the same pricing as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect at the time such Subscriptions are added. Any Subscriptions added during the subscription term shall terminate on the same date as the pre-existing Subscriptions. Subscriptions are for designated Users and cannot be shared or used by more than one User; provided that new Users may replace former Users who no longer require ongoing use of the Services. For Account subscriptions, the total number of accounts shall not exceed the number of accounts set forth on the Order Form. You shall have the right to change Accounts.

4. USE OF THE SERVICES

4.1. Tap11 Responsibilities. Tap11 shall: (a) provide to You basic support that includes the ability to email Tap11 for customer support questions for the Professional Version and an assigned Account Representative for the Enterprise Version at no additional charge, and/or upgraded support if purchased separately, (b) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Tap11 shall give at least 8 hours notice via the Purchased Services and which Tap11 shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Pacific time Friday to 3:00 a.m. Pacific time Monday), or (ii) any unavailability caused by circumstances beyond Tap11 reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Tap11 employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations in the United States.

4.2. Your Responsibilities. You shall (a) be responsible for Users' compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Tap11 promptly of any such unauthorized access or use or evidence of any Malicious Code, and (d) use the Services only in accordance with the FAQ, any written instructions provided to You by Tap11 and applicable laws and government regulations. You shall not (i) make the Services available to anyone other than Users, (ii) sell, resell, rent or lease the Services, (iii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (iv) use the Services to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (vi) attempt to gain unauthorized access to the Services or any related systems or networks.

4.3. Third Party Terms and Conditions. Services may be subject to third party terms and conditions including without limitation additional limitations. For example, to the extent a Service that enables You to access data from Third Party Applications such as Twitter, such Service may be subject to the terms and conditions of such Third Party Application, which such terms and conditions may limit the number of calls against their interfaces. Any such terms and conditions shall be specified in the FAQ, which Tap11 shall have the right to update from time to time.

4.4. Privacy Rights. Your use of the Services is governed by the TAP11 Privacy Policy, which is available at http://tap11.com/privacy.htm (the "Privacy Policy").

4.5. Your Content. When You submit Your Content through the Services or the Tap11.com website, you hereby grant Tap11 and its Affiliates and their respective employees, directors, officers, agents, representatives, providers of Third Party Applications or third party outsourcers a non-exclusive, worldwide, fully-paid up, royalty-free, perpetual and sublicensable right and license to use Your Content (in any media now known or not currently known or invented) including allowing other Users to view and share it with each other on and beyond Tap11. You acknowledge that you are responsible for all of Your Content. You agree that Your Content is provided to Tap11 on a non-proprietary and non-confidential basis.

4.6. Prohibited Content. You agree not to post: (a) language or content that is false, misleading, inaccurate, unlawful, harmful, threatening, abusive, harassing, defamatory, off-topic, vulgar, obscene, libelous, hateful, racially, ethnically, or otherwise objectionable, (b) pornographic material, sexually explicit images or video, (c) discuss or incite illegal activity, (d) defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights, such as rights of privacy and publicity, of others, (e) pictures or video of any individual unless you have their permission, (f) violate any applicable local, state, national or international law or regulations having the force of law, (g) any worms or viruses or any code of a destructive nature, and (h) any material protected by copyright, trademark, or any other proprietary right without the express permission of the owner of such copyright, trademark or other proprietary right, and the burden of determining that any material is not protected by any such right is on you. You agree to be solely liable for any damage resulting from any infringement of copyrights, trademarks, proprietary rights, or any other harm resulting from any of Your Content.

4.7. Interaction With Other Users. You acknowledge and agree that: (a) You are solely responsible for your interactions with other users of the Tap11.com website and the social sites to which Tap11 connects, (b) that Tap11 has the right, but has no obligation, to monitor communications between you and other users or Tap11.com or other public sites, (b) Tap11 has no obligation to monitor or remove any submissions or other information submitted by you or any other user to the Tap11 site, (c) Tap11 reserves the right to immediately terminate your access to your account or ability post to Tap11 if you violate Tap11's terms of service, or (d) Tap11 may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required or at Tap11's discretion, Tap11 will cooperate with law enforcement agencies in any investigation of alleged illegal activity on the Internet.

4.8. Access To 3^rd Party Sites. Users of Tap11 may gain access from the site to third party sites on the Internet through computer links on the Site. Third party sites are not within the supervision or control of Tap11. Unless explicitly otherwise provided, Tap11 does not make any representations or warranties whatsoever about any third party site that is linked to Tap11, or otherwise endorses the products or services offered on such third-party website. Tap11 specifically disclaims all responsibility and liability for content from or posted to any third party websites. You hereby irrevocably waive any claim against Tap11 with respect to such sites and third party websites.

5. THIRD-PARTY PROVIDERS

5.1. Acquisition of Third-Party Products and Services. Tap11 may offer Third-Party Applications for sale under Order Forms, or for free as part of the Service. Any other acquisition or use by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. Tap11 do not warrant or support third-party products or services, whether or not they are designated by Tap11 as "certified" or otherwise, except as expressly written and specified in an Order Form. No purchase of third-party products or services is required to use the Services.

5.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that Tap11 may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. Tap11 shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.

6. FEES AND PAYMENT FOR PURCHASED SERVICES

6.1. User Fees. You shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (a) fees are quoted and payable in United States dollars, (b) fees are based on services purchased and not actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of User and Account subscriptions purchased cannot be decreased during the relevant subscription term stated on the Order Form. 6.2. Invoicing and Payment. You will provide Tap11 with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Tap11. If You provide credit card information to Tap11, You authorize Tap11 to charge such credit for all Services listed in the Order Form for the initial term and any renewal term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Tap11 will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due within thirty (30) days following the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.

6.3. Overdue Charges. If any charges are not received from You by the due date, then at Tap11 discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) Tap11 may condition future subscription renewals and Order Forms on payment terms other than those specified in Section 6.2 (Invoicing and Payment).

6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Tap11 services is thirty (30) or more days overdue (or ten (10) or more days overdue in the case of amounts You have authorized Tap11 to charge to Your credit card), Tap11 may, without limiting Tap11 other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and/or suspend Tap11 services to You until such amounts are paid in full.

6.5. Payment Disputes. Tap11 shall not exercise Tap11 rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.

6.6. Taxes. Unless otherwise stated, Tap11 fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If Tap11 have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be invoiced to and paid by You, unless You provide Tap11 with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Tap11 are solely responsible for taxes assessable against it based on Tap11 income, property and employees.

7. PROPRIETARY RIGHTS

7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, Tap11 reserve all rights, title and interest in and to the Services, including all related intellectual property rights and any current or future trademarks of Tap11 (including without limitation as TAP11 and TWEET ONE LOUDER). No rights are granted to You hereunder other than as expressly set forth herein. All third party trademarks, names and logos on the Tap11.com website are property of their respective owners. Unless otherwise specified, as between You and Tap11, all information and screens appearing on Tap11 including documents, services, site design, text, graphics, logos, images and icons, as well as the selection and arrangement thereof, are the sole property of Tap11.

7.2. Restrictions. You shall not (a) permit any persons or third party to access the Services except as permitted herein or in an Order Form, (b) create derivate works based on the Services, (c) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (d) reverse engineer the Services, or (e) access the Services in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the Services.

7.3. Suggestions. Tap11 shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Users, relating to the operation of the Services.

7.5. Federal Government End Use Provisions. Tap11 provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation76). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Tap11 to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

7.6. Copyrights and Copyright Agents. Tap11 respects the intellectual property of others, and we ask you to do the same. If you believe that your work is the subject of copyright infringement and appears on Tap11, please provide our copyright agent the following information: (a) An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest, (b) A description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work, (c) Your address, telephone number, and email address, (d) A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, and (e) A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Tap11's agent for notice of claims of copyright infringement on Tap11 can be reached as follows:

By mail:
TAP11
Attn: Copyright Agent
113 Stillman Street
San Francisco, CA 94107

By email:
biz@tap11.com

8. CONFIDENTIALITY

8.1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential information disclosed by a party (" Disclosing Party") to the other party (" Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Tap11 Confidential Information shall include the Services; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

8.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (a) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

8.3. Protection of Your Data. Without limiting the above, Tap11 shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. Tap11 shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law in accordance with Section 7.5 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.

8.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

9. WARRANTIES AND DISCLAIMERS

9.1. Tap11 Warranties. Tap11 warrant that (i) the Services shall perform materially in accordance with the FAQ, and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 12.3 (Termination for Cause) and Section 12.4 (Refund or Payment upon Termination) below.

9.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).

9.3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY REGARDING OR RELATING TO THE SERVICES PROVIDED TO YOU. TAP11 SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE non-infringement. Tap11 further does not guarantee that access to the services will be uninterrupted or error-free.

10. MUTUAL INDEMNIFICATION

10.1. Indemnification by Tap11. Tap11 shall defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney's fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Tap11 written notice of the Claim; (b) give Tap11 sole control of the defense and settlement of the Claim (provided that Tap11 may not settle any Claim unless the settlement unconditionally releases You of all liability); and (c) provide to Tap11 all reasonable assistance, at Tap11 expense.

10.2. Indemnification by You. You shall defend Tap11 against any Claim made or brought against Tap11 by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Tap11 for any damages finally awarded against, and for reasonable attorney's fees incurred by, Tap11 in connection with any such Claim; provided, that Tap11 (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Tap11 of all liability); and (c) provide to You all reasonable assistance, at Tap11 expense.

10.3. Exclusive Remedy. This Section 10 (Mutual Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of Claim described in this Section.

11. LIMITATION OF LIABILITY

11.1. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE LESSER OF: (a) TOTAL AMOUNT PAID OR PAYABLE BY YOU HEREUNDER OR (b) THE AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES) OR OTHERWISE UNDER THIS AGREEMENT.

11.2. Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY IS FORESEEABLE OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. TERM AND TERMINATION

12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a 30-day free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the 30-day free trial period.

12.2. Term of Purchased User Subscriptions. Subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one (1) year (whichever is shorter), unless either party gives the other party notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless Tap11 have given You written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

12.3. Termination for Cause. A party may terminate this Agreement for cause: (a) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

12.4. Refund or Payment upon Termination. Upon any termination for cause by You pursuant to Section 12.3(a) or (b), Tap11 shall refund You any prepaid fees prorated to cover the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Tap11, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Tap11 for the period prior to the effective date of termination.

12.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Purchased Services subscription, Tap11 will make available to You for download a file of Your Data in comma separated value (.csv) format along with attachments in their native format. After such 30-day period, Tap11 shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Tap11 systems or otherwise in Tap11 possession or under Tap11 control.

12.6. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Confidentiality), 9.3 (Disclaimer), 10 (Mutual Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 12.5 (Return of Your Data), 13 (General Provisions) shall survive any termination or expiration of this Agreement.

13. GENERAL PROVISIONS

13.1. General. Under this Agreement, you are contracting with Tap11, Inc., 113 Stillman Street, San Francisco, CA. You should direct notices to under this Agreement to biz@Tap11.com.

13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, (c) the second business day after sending by confirmed facsimile, or (d) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to You shall be addressed to the system administrator designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.

13.3. Agreement to Governing Law and Jurisdiction. This Agreement will be interpreted and construed in accordance with the laws of the state of California, without regard to choice or conflicts of law rules, and to each party consent to the exclusive jurisdiction of the applicable courts located in San Francisco, California.

13.4. Waiver of Jury Trial. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13.5. Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.

13.6. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.7. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.

13.8. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

13.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

13.10. Attorney Fees. You shall pay on demand all of Tap11 reasonable attorney fees and other costs incurred by Tap11 to collect any fees or charges due Tap11 under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)

13.11. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, Tap11 shall refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.12. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.