Tap Buy TERMS OF SERVICE

Last Updated: October 31, 2011

Kima Labs, Inc. ("Kima Labs", "we" or "our") provides Tap Buy, a shopping service which we make available through the Tap Buy website, accessible at tapbuy.net (the "Site") and through applications for mobile devices, such as Tap Buy Deals ("Applications"). In the future, Tap Buy may also be accessed from third-party applications. Please read carefully the following terms and conditions ("Terms") and our Privacy Policy, which may be found at http://tapbuy.net/privacy-policy.html and which is incorporated by reference into these Terms. These Terms govern your access to and use of the Site and the Application and, except as otherwise provided in these Terms, all text, graphics, images, music, software, audio, video, information or other materials available through the Site and Application ("Content"), and constitute a binding legal agreement between you and Kima Labs. In addition, these Terms and our Privacy Policy describe how we will use the information we obtain, with your consent and upon your request, from the third party services that you have linked to the Site and Application.

Certain areas of the Site and Application (and your access to or use of certain Content) may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, Application or Content, the latter terms and conditions shall take precedence with respect to your use of or access to that area of the Site, Application or Content. Additionally, when you use Tap Buy to order from a third-party merchant, that merchant's terms and conditions and privacy policy shall apply to your order from that merchant.

YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE "I AGREE" OR "I ACCEPT" BUTTON, OR BY ACCESSING OR USING THE SITE OR THE APPLICATION OR BY DOWNLOADING OR POSTING ANY CONTENT FROM OR ON THE SITE OR THROUGH THE APPLICATION OR BY PLACING AN ORDER THROUGH TAP BUY, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, APPLICATION OR CONTENT.

Modification

Kima Labs reserves the right, at its sole discretion, to modify, discontinue or terminate the Site or Application or to modify these Terms, at any time and without prior notice. If we modify these Terms, we will post the modification on the Site or through the Application or provide you with notice of the modification. By continuing to access or use the Site or the Application after we have posted a modification on the Site or through the Application or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site and the Application.

Eligibility

The Site and Application are intended solely for persons who are 13 or older. Any access to or use of the Site or Application by anyone under 13 is expressly prohibited. By accessing or using the Site or Application you represent and warrant that you are 13 or older.

Account Registration

In order to access certain features of the Site and Application, you must register to create an account ("Tap Buy Account") and become a "User." You can register to become a User via the Application.

We will create your Tap Buy Account for your use of the Site and Application based upon the personal information that you provide to us. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete. Kima Labs reserves the right to suspend or terminate your Tap Buy Account if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Tap Buy Account, whether or not you have authorized such activities or actions. You will immediately notify Kima Labs of any unauthorized use of your Tap Buy Account.

Third Party Services

As part of the functionality of the Site and Application, you may access offers and make purchases from other businesses or services ("Third Party Service(s)") by accessing those services from within Tap Buy. By accessing Third Party Services in Tap Buy, you are granting Kima Labs permission to access and use (i) that login information and (ii) certain other information from the Third Party Service that you designate (e.g. retailer purchase data, your activity on the website, service or application of the Third Party Account), which can be accessed and used by Kima Labs within the Site and Application; Kima Labs may use and store this information and such information will be presented to you within the Site and Application in order to provide you with certain functionality of the Site and Application. For example, when you place an order with a Third Party Service in Tap Buy, Kima Labs will use the information in your Tap Buy Account to place your order with the Third Party Service. Additionally, we may serve advertisements to you on the Site and Application. We will use relevant information we have about you to serve advertisements that are tailored to you and your particular interests on the Site and Application. For more information about how we serve advertisements, please see our Privacy Policy.

By submitting this information to Kima Labs and granting Kima Labs permission to access and use such information, you represent that you are entitled to submit and grant access to such information to Kima Labs for use for the purposes described herein, without any breach by you of the terms and conditions to which you are bound that govern your use of Third Party Services and without any obligation by Kima Labs to pay any fees or other limitations on usage that may be imposed by Third Party Services. Kima Labs makes no effort to review the information that will be presented to you in the Site and Application from such Third Party Services for any purpose, including but not limited to accuracy, legality or non-infringement. Kima Labs cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of information, personalization settings or other service interruptions. Kima Labs cannot assume responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any Third Party Services data, communications or personalization settings.

Privacy

See our Privacy Policy at http://tapbuy.net/privacy-policy.html for information and notices concerning our collection and use of your personal information.

Ownership

The Site, Application and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms, Kima Labs and its licensors exclusively own all right, title and interest in and to the Site, Application and Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Application or Content.

Application License

Subject to your compliance with the terms and conditions of these Terms, Kima Labs grants you a limited non-exclusive, non-transferable, revocable license, without the right to sublicense, for you to install, access and use the Application on a single mobile device that you own or control, solely for your personal and non-commercial purposes. Kima Labs reserves all rights in the Application not expressly granted to you by these Terms. You agree that you will only use the Application as permitted by the Usage Rules set forth in the Apple App Store Terms of Service, accessible at http://www.apple.com/ legal/itunes/appstore/us/terms.html.

Content License

Subject to your compliance with the terms and conditions of these Terms, Kima Labs grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view and use any Content solely for your personal and non-commercial purposes. You will not copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Site, Application or Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Kima Labs or its licensors, except for the licenses and rights expressly granted in these Terms.

User Content

Users may post, upload, publish, submit, provide access to or transmit text, graphics, images, information or other materials to be made available through the Site and Application ("User Content"). By making available any User Content through the Site and Application, you hereby grant to Kima Labs a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such User Content only on, through or by means of the Site and the Application. Kima Labs does not claim any ownership rights in any such User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such User Content.

You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Application. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available through the Site or Application or you have all rights, licenses, consents and releases that are necessary to grant to Kima Labs the rights in such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Kima Labs’ use of the User Content (or any portion thereof) on, through or by means of the Site and the Application will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

Feedback

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Application ("Feedback"). You may submit Feedback by emailing us at feedback@tapbuy.net. You acknowledge and agree that all Feedback will be the sole and exclusive property of Kima Labs and you hereby irrevocably assign to Kima Labs and agree to irrevocably assign to Kima Labs all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as Kima Labs may reasonably request to assist Kima Labs to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.

General Prohibitions

You agree not to do any of the following:

Enforcement

Kima Labs has the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Kima Labs may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that Kima Labs has no obligation to monitor your access to or use of the Site, Application or Content or to review or edit any User Content, but has the right to do so for the purpose of operating the Site and Application, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Kima Labs reserves the right, at any time and without prior notice, to remove or disable access to any Content, including any User Content, that Kima Labs, at its sole discretion, considers to be in violation of these Terms or otherwise harmful to the Site or Application.

Copyright and IP Policy

Kima Labs respects copyright law and expects its users to do the same. Kima Labs has adopted and implemented a policy that provides for the termination in appropriate circumstances of registered users or other account holders who repeatedly infringe or are believed to be repeatedly infringing the rights of copyright holders. Please see our Copyright and IP Policy at http://tapbuy.net/copyright.html for further information.

Links

The Site may contain links to third-party websites or resources. You acknowledge and agree that Kima Labs is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by Kima Labs of such websites or resources or the content, products or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

Termination and Account Cancellation

If you breach any of these Terms, Kima Labs will have the right to suspend or disable your Account or terminate these Terms, at its sole discretion and without prior notice to you. Kima Labs reserves the right to revoke your access to and use of the Site, Application and Content at any time, with or without cause. In the event Kima Labs terminates these Terms for your breach, you will remain liable for any amounts due hereunder. You may cancel your Tap Buy Account at any time by sending an email to help@tapbuy.net.

The following provisions will survive termination of this Agreement: Ownership, User Content, Feedback, General Prohibitions, Copyright and IP Policy, Disclaimers, Indemnity, Limitation of Liability, Proprietary Rights Notices, Controlling Law and Jurisdiction, Entire Agreement, Assignment and General.

Disclaimers

THE SITE, APPLICATION AND CONTENT ARE PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, KIMA LABS EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KIMA LABS MAKES NO WARRANTY THAT THE SITE, APPLICATION OR CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. KIMA LABS MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES OR CONTENT OBTAINED THROUGH THE SITE OR APPLICATION OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY CONTENT OBTAINED THROUGH THE SITE OR APPLICATION.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM KIMA LABS OR THROUGH THE SITE, APPLICATION OR CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR APPLICATION. YOU UNDERSTAND THAT KIMA LABS DOES NOT SCREEN OR INQUIRE INTO THE BACKGROUND OF ANY USERS OF THE SITE OR APPLICATION, NOR DOES KIMA LABS MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE OR APPLICATION. KIMA LABS MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE OR APPLICATION OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE OR APPLICATION. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE OR APPLICATION AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR APPLICATION, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON.

Indemnity

You agree to defend, indemnify, and hold Kima Labs, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Site, Application or Content, or your violation of these Terms.

Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATION AND CONTENT REMAINS WITH YOU. NEITHER KIMA LABS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATION OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR APPLICATIONS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION OR CONTENT, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE OR APPLICATION OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE OR APPLICATION, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KIMA LABS HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

IN NO EVENT WILL KIMA LABS’ AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATION OR CONTENT EXCEED FIFTY DOLLARS ($50). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KIMA LABS AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

Proprietary Rights Notices

All trademarks, service marks, logos, trade names and any other proprietary designations of Kima Labs used herein are trademarks or registered trademarks of Kima Labs. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.

Export Control

You may not use, export, re-export, import or transfer the Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the Application, and any other applicable laws. In particular, but without limitation, the Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the Application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

Kima Labs Application from iTunes

The following applies to any Kima Labs Application accessed through or downloaded from the Apple iTunes Store ("iTunes Sourced App"):

Without limiting any other terms of these Terms, you must comply with all applicable third party terms of agreement when using the iTunes Store Sourced App.

Controlling Law and Jurisdiction

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts.

Entire Agreement

These Terms constitute the entire and exclusive understanding and agreement between Kima Labs and you regarding the Site, Application and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Kima Labs and you regarding the Site, Application and Content.

Assignment

You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Kima Labs may assign or transfer these Terms, at its sole discretion, without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Notices

You consent to the use of: (i) electronic means to complete these Terms and to deliver any notices or other communications permitted or required hereunder; and (ii) electronic records to store information related to these Terms or your use of the Application or the Site. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given: (x) by Kima Labs via email (in each case to the address that you provide) or (y) by posting to the Site or through the Application. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

General

The failure of Kima Labs to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Kima Labs. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

Contacting Kima Labs

If you have any questions about these Terms or any questions, complaints or claims with respect to the Application, please contact Kima Labs at:

help@tapbuy.net
Kima Labs, Inc., 649 Mission Street 5th Floor, San Francisco, California 94105
Tel. (415) 488-KIMA