These Creator Terms and Conditions between With Tether Inc. (“Tether”) and Creator (defined below) govern Tether’s provision of the Service to Creator. Tether and Creator may be referred to herein collectively as the “Parties” or individually as a “Party”. These Creator Terms and Conditions are a legally binding contract between Creator and Tether regarding Creator’s use of the Service.
PLEASE READ THE FOLLOWING TERMS CAREFULLY:
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A “I AGREE”, EXECUTING AN ORDER FORM (DEFINED BELOW) REFERENCING THESE TERMS (DEFINED BELOW), USING (OR MAKING ANY PAYMENT FOR) THE SERVICE (DEFINED BELOW), OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS, YOU: (A) AGREE TO AND ANY OTHER DOCUMENTS INCORPORATED HEREIN (THIS “AGREEMENT”) ON BEHALF OF YOURSELF AS AN INDIVIDUAL AND “CREATOR” REFERS TO YOU, UNLESS YOU ARE USING THE SERVICE ON BEHALF OF AN ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY, IN WHICH CASE YOU AGREE TO THIS AGREEMENT ON BEHALF OF SUCH ENTITY FOR WHICH YOU ACT AND “CREATOR” REFERS TO SUCH ENTITY; AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND CREATOR TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
1. ACCESS TO AND USE OF THE SERVICE
1.1 Generally. Tether’s cloud-based service and related software (including mobile applications) (collectively the “Service”) enables Creator to create and manage an online community and content hosted by Tether and accessible by third-party users, including those to whom Creator has granted access or directed Tether to grant access (such community, the “Community” and such users, “Members”). The features of the Service available to Creator will be determined (a) if Creator has purchased a subscription through Tether’s website, by the subscription tier indicated during the online checkout process or (b) if Creator has executed an order form referencing these terms (the “Order Form”), then by the description of the Service and related features set forth thereon (each of such online checkout process and such Order form, the “Order”). The Order Form is deemed incorporated into this Agreement.
1.2 Limited License to Service. During the initial subscription period indicated in the Order (the “Initial Term”) and subject to Creator’s compliance with this Agreement, Tether hereby grants Creator a limited, non-exclusive, non-transferable, revocable license to:
1.2.1 access and use the Service to manage and maintain the Community;
1.2.2 make calls to, and receive data from, any application programming interfaces maintained, and made available to Creator, by Tether for use in connection with the Service; and
1.2.3 authorize Members to access the Community solely pursuant to terms and conditions between Creator and such Members prepared and approved by Tether (the current template of which is available at https://Tether.so/community-terms-template (the “Community Terms”), including, if permitted by the Order, by granting Members a license to install and use the Community App (defined below) on Member-controlled hardware.
1.3 Restrictions. Creator will not (and will not encourage or permit its Members to): (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party other than as expressly permitted by this Agreement; (b) use the Service to Process (defined below) data on behalf of any third party other than Members; (c) modify, adapt, or hack the Service or otherwise attempt to gain unauthorized access to the Service or related systems or networks; (d) falsely imply any sponsorship or association with Tether, (e) use the Service in violation of any applicable law, rule or regulation, including, but not limited to, violation of any person’s privacy or proprietary rights; (f) use the Service to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Service to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Service or the Community App (defined below); (j) use the Service to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Service to knowingly post transmit, upload, link to, send or store any viruses, malware, trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (l) use or launch any automated system that accesses the Service (i.e., bot) in a manner that sends more request messages to any Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; (m) use the Service for benchmarking or any purposes that are competitive with Tether; (n) use the Service in violation of any Additional Terms, including the Anti Spam Policy; or (o) otherwise use or attempt to use the Service in violation of this Agreement.
1.4 Creator Account; Log-in Credentials. To access the Service, Creator must register for an account on the Service (the “Creator Account”) and, in doing so, may be required to provide Tether with information (such name, email address, or other contact information). Creator agrees that the information it provides to Tether is accurate, complete, and not misleading and that it will keep it accurate and up to date at all times. Creator may only access the Service using the mechanism designated by Tether (“Log-in Credentials”). Creator will maintain the confidentiality of its Log-in Credentials and not share the Log-in Credentials with anyone else. Creator is responsible for any and all activities that occur under the Creator Account. Creator will promptly notify Tether if it becomes aware of any compromise of its Log-in Credentials. Tether may Process Log-in Credentials in connection with Tether’s provision of the Service or for Tether’s internal business purposes. Without limiting the foregoing, Creator is solely responsible for ensuring that use of the Service to store and transmit the Creator Materials (defined below) and Community Content (defined below) is compliant with all applicable laws and regulations.
2. COMMUNITY TERMS
2.1 Community Terms. Prior to granting a Member access to a Community, Creator will enter into the Community Terms with each Member of the Community. Creator agrees to be bound by the Community Terms with respect to each Member and designates Tether as Creator’s agent to present the Community Terms to each Member for acceptance through the Service. Creator acknowledges that the Community Terms may be updated from time to time upon notice (email being acceptable), and agrees to be bound by the updated Community Terms. Creator will provide all assistance that Tether may request from time to time (at Tether’s expense) in enforcing the Community Terms and will not challenge, or assist any third party (including any Member) in challenging the validity or enforceability of the Community Terms. Without limiting the foregoing, where Creator is required to present the Community Terms to Members (including as set forth in Section 1.5), Creator will update the Community Terms and will require each Member to accept such updated Community Terms promptly following Creator’s receipt of notice in accordance with the immediately foregoing sentence.
2.2 Community Privacy Policy. Prior to granting a Member access to a Community, Creator will provide a privacy policy to each Member of the Community that complies with all applicable laws (“Community Privacy Policy”). FOR THE AVOIDANCE OF DOUBT, CREATOR UNDERSTANDS AND AGREES THAT (A) THE TEMPLATE COMMUNITY PRIVACY POLICY IS PROVIDED FOR REFERENCE ONLY, (B) TETHER DOES NOT WARRANT THE SUFFICIENCY NOR ADEQUACY OF THE TEMPLATE COMMUNITY PRIVACY POLICY; AND (C) CREATOR SHALL BE SOLELY RESPONSIBLE FOR PROVIDING MEMBERS THE COMMUNITY PRIVACY POLICY AND THE CONTENTS THEREIN.
2.3 Community Guidelines. The Service may enable Creator to include additional Creator-specific terms or guidelines for Members of the Community that supplement and are incorporated into the Community Terms (“Creator Terms”). Creator agrees that the Creator Terms will not circumvent, diminish, or otherwise abrogate the rights of Tether or the obligations of Creator under the Community Terms, override any of the language contained in such Community Terms, grant additional rights to Members in relation to the Service, or purport or attempt to do any of the foregoing.
2.4 Third Party Beneficiary; Breach. Creator agrees that Tether is a third-party beneficiary of the Community Terms and may enforce such Community Terms to the fullest extent at Tether’s sole discretion. Creator acknowledges that any breach of this Section 2 by Creator is a material breach of these Creator Terms entitling Tether to immediately terminate this Agreement without notice.
3. CREATOR MATERIALS; CONTENT AND DATA; CONTENT DISCLAIMER; DIGITAL MILLENNIUM COPYRIGHT ACT
3.1 Creator Materials. During the Subscription Term (defined below), and subject to the terms and conditions of this Agreement, Creator hereby grants Tether a limited, sublicensable, non-exclusive, worldwide, royalty-free license to use, copy, display, publicly perform, distribute, modify, edit, adapt, reproduce and create derivative works of any materials made available to Tether by Creator, including software, trademarks, service marks, logos, images, or other content and materials of Creator (collectively, “Creator Materials”), in each case for the purpose of providing the Service in accordance with this Agreement. Without limiting the foregoing, if the Creator Materials include trademarks, logos, or other branding elements and Creator’s subscription enables the application of Creator-provided branding to the Community, then Creator agrees that Tether may brand the Community using such trademarks, logos, branding elements, or other Creator Materials.
3.2 Community Content. Creator hereby grants Tether a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable, irrevocable (except with respect to personal data to the extent required by applicable law) license and right to collect, access, use, derive, disclose, generate, transfer, transmit, store, host, or otherwise process (“Process”) data, information, and other content and materials (including, but not limited to, text, messages, audio content, video, images, or other works) submitted to, or stored or otherwise Processed by, the Service with respect to the Community (including materials posted on or uploaded to the Community by Creator and Members) (“Community Content”) and data concerning use or performance of the Service (“Usage Data”): (a) during the Subscription Term, for the purpose of exercising Tether’s rights and performing its obligations under this Agreement (including, without limitation, to provide the Service, in response to Creator’s support requests, and to track use of Service for billing purposes) and (b) in perpetuity, in a form that does not identify Creator or any Member as the source thereof and does not otherwise constitute personal data, to develop and improve Tether’s products and services and for all other lawful business practices, such as fixing or addressing security concerns and defects, analytics, benchmarking, and reports. FOR THE AVOIDANCE OF DOUBT, AS BETWEEN TETHER, CREATOR, AND EACH MEMBER, CREATOR OR THE APPLICABLE MEMBER RETAINS OWNERSHIP OF ITS INTELLECTUAL PROPERTY RIGHTS IN COMMUNITY CONTENT AND TETHER CLAIMS NO OWNERSHIP THEREOF.
3.3 Other Content. Creator understands and agrees that Members may be part of other communities on the Service, and that “Community Content” does not include data, information, content, and materials Processed in connection with the Service that are subject to Tether’s Terms of Service or the terms of an agreement between the applicable Member and the creator of another community on the Service.
3.4 Content Disclaimer. Creator understands that by using the Service, Creator may encounter data, information, applications, materials, and other content from third parties, including Community Content (collectively, “Third-Party Materials”). Creator relies upon and uses any Third-Party Materials at Creator’s sole risk. Tether has no liability to Creator for any Third-Party Materials that may be found to be offensive, indecent, or that are infringing, inaccurate, incomplete, untimely, invalid, illegal, indecent, of poor quality, or otherwise objectionable. Tether is under no obligation to edit or control Third-Party Materials or Community Content that Creator or Members post or publish, and will not be in any way responsible or liable for the foregoing. Tether may, however, at any time and without prior notice, screen, remove, edit, or block any Third-Party Materials or Creator Materials that violate this Agreement or that are otherwise objectionable in Tether’s sole judgment.
3.5 Digital Millennium Copyright Act. Tether respects Creator rights, and it is Tether’s policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). Tether’s DMCA policy can be located at https://tether.site/legal/dmca. In the event of a DMCA complaint in relation to a Community, Creator agrees that Tether may respond to such complaint in accordance with its policy.
4. PRIVACY
4.1 Privacy. Creator understands and agrees to the processing of its personal data in accordance with Tether’s Data Processing Addendum (available at https://tether.site/legal/dpa), which is hereby incorporated by reference into Section 4.1 of this Agreement.
4.2 Data Subject Requests. Creator understands and agrees that it shall be solely responsible for responding to any and all privacy-related requests made by Members in connection with the Community. Creator may request commercially reasonable assistance from Tether in responding to such requests via email at legal@tether.site.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Ownership. Each Party will retain all rights, title and interest in and to all its respective intellectual property or proprietary rights. Tether’s name and logos used or displayed in or on the Service are registered or unregistered trademarks of Tether (collectively, “Tether Marks”), and Creator may not attempt, now or in the future, to claim any rights in the Tether Marks, degrade the distinctiveness of the Tether Marks, or use the Tether Marks to disparage or misrepresent Tether, Tether’s Service or products. The rights granted to Creator to use the Service under this Agreement do not convey any additional rights, including any intellectual property rights therewith. As between the Parties and subject to the limited rights granted herein, all, right, title, and interest in and to (a) the Community Content and Creator Materials are owned by Creator; and (b) the Service, Tether Marks, Usage Data, and all other components used to provide the Service are owned by Tether.
5.2 Branded Applications. All right, title, and interest in and to the Tether platform, software, source code, and related technology (including but not limited to the branded iOS and Android applications created under this Agreement) remain the exclusive property of Tether. Branded applications are provided to you under a limited, non-exclusive, non-transferable license to distribute such applications under your own developer accounts during the term of your Agreement with Tether. You retain ownership of your own trademarks, logos, and content incorporated into the branded applications. Except for this limited license, no ownership rights in the Tether platform or branded applications are granted to you.
5.3 Feedback. Creator hereby grants Tether a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Tether receives from Creator, Members, or other third parties acting on Creator’s behalf.
6. THIRD-PARTY SERVICES
6.1 Generally. Certain features of the Service may enable integration with third-party platforms, add-ons, services, or products not provided by Tether (“Third-Party Services”). If Creator directs Tether to transmit data to, or receive data from, a Third-Party Service on Creator’s behalf (including by enabling the applicable integration in the settings of the Service), then Creator authorizes Tether to Process any such data (including Community Content) in connection with the applicable integration, in a manner consistent with the functionality of the Service requested by Creator and the permissions granted to Tether by the relevant integration (which Processing may include, without limitation, performing queries on the data held by the Third-Party Service). Creator acknowledges and agrees that Creator’s use of a Third-Party Service is subject to Creator’s agreement with the relevant provider of such Third-Party Service, and that Tether is not a party to such agreement. Tether does not control and has (and shall have) no liability for Third-Party Services, including their security, functionality, operation, availability, or interoperability with the Service or how the Third-Party Services or their providers use Community Content. All data received from Third-Party Services on behalf of Creator as described in this Section 6.1 will be deemed Community Content under this Agreement.
6.2 Developer Terms. If permitted by the Order, Creator may request that Tether create a branded mobile application allowing Members to access the Community (the “Community App”), which app may be made available on one or more third party app stores (which app stores are deemed Third-Party Service). As a condition of making available the Community App, Tether may require Creator to (a) create and maintain (at Creator’s sole cost and expense) its own developer account on the applicable third-party app stores and (b) publish the Community App through such developer account. Creator will promptly make available to Members any updated versions of the Community App provided by Tether, and will promptly remove the Community App from its developer account and cease making available the Community App upon request by Tether or upon termination of this Agreement.
7. BILLING AND FEES
7.1 Fees. Unless otherwise set forth in the Order, fees for the Service will be as indicated on Tether’s pricing page located at https://tether.site/pricing (as may be updated from time to time) and will be payable and due to Tether in accordance with the Order. Except as set forth in the Order, all payments will be made in U.S. Dollars via credit card or such other method as Tether communicates to Creator.
7.2 Overages. Tether reserves the right to charge Creator additional fees if it exceeds any usage or plan limits. Such overage fees may be subject to a new agreement or separate invoice, as determined by Tether in its discretion.
7.3 Taxes. Creator is responsible for paying any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes associated with the Order (“Taxes”), excluding Taxes based on net income. If Tether has the legal obligation to pay or collect Taxes for which Creator is responsible under this Section, the appropriate amount will be invoiced to and paid by Creator unless Creator provides Tether with a valid tax exemption certificate authorized by the appropriate taxing authority.
7.4 Late payments. Tether may suspend or terminate Creator’s and all Members’ access to the Service if Creator fails to timely pay any amounts due under this Agreement. In addition to the amount due for the Service, Creator will be charged fees or charges that are incidental to any chargeback or collection of any unpaid amount due under this Agreement, including collection fees, court costs and attorney fees. Tether may, prior to such suspension, elect to offer a 21-day grace period during which Creator may pay past-due amounts to avoid suspension. If Creator’s payment method is no longer valid at the time a fee for a Renewal Subscription Term is due, then Tether reserves the right to delete the Creator Account and any information, Community, or Creator Materials associated with the Creator Account, without any liability to Creator.
7.5 Fee Increases. Tether may increase the Fees for the Service in its sole discretion, provided Tether gives Creator at least 30 days’ prior notice of such fee increase.
7.6 No Refunds. All payments are non-refundable. Customer acknowledges that fees are non-refundable, including for partial months, unused Services, or early termination.
7.7 Transaction Fees. Tether charges a standard 0.5% transaction fee on any member purchases made via Tether paywalls (in addition to Stripe's standard processing fees, which vary from country to country).
8. Modification.
8.1 Creator acknowledges that Tether may modify the features and functionality of the Service at any time in its sole discretion, including by limiting or discontinuing certain features or functionality of the Service, temporarily or permanently, without notifying Creator (except that Tether will use commercially reasonable efforts provide Creator with 30 days’ prior notice in the event of any deprecation of any material feature or functionality of the Service). Tether will have no liability for any change or modification to the Service.
8.2 Notwithstanding Section 8.1, if Creator is a Tether Enterprise customer, Tether will not, during Creator’s then-current subscription term, materially reduce, remove, or discontinue any features or functionality of the Tether Enterprise offering that are expressly identified in the applicable Order Form or related schedules (for which Creator has separately contracted and paid), provided, however, that Tether may implement changes that (i) are required by applicable law or court/administrative order, (ii) are necessary to address a material security, privacy, or performance risk, or (iii) result from the cessation or material change of a third-party service or license outside of Tether’s reasonable control, in each case using commercially reasonable efforts to provide functionally equivalent alternatives and, where practicable, providing at least thirty (30) days’ prior notice.
9. TERM AND TERMINATION
9.1 Term and Renewal. Unless otherwise set forth in the Order, the Initial Term commences upon the effective date of the Order. Immediately following the last day of the Initial Term, this Agreement will automatically renew for successive terms equal in length to the Initial Term or such other length as may be specified in the Order (each a “Renewal Term” and together with the Initial Term, the “Subscription Term”) until canceled. If the Order does not specify a minimum subscription term, then Creator may cancel the Service through the Creator Account on the Service at any time. If the Order provides that Creator’s subscription is non-cancelable, then to cancel the Service Creator must provide written notice of non-renewal to Tether at least 30 days prior to the end of the then current Subscription Term. Such cancellation of the Service will become effective at the end of the then-current Subscription Term.
9.2 Violation of this Agreement. Tether reserves the right to modify, suspend, or terminate the Service and Community, the Creator Account, or a Member’s account or right to access and use the Service and Community, and remove, disable, or discard any Creator Materials and Community Content, in each case if Tether believes that Creator has violated this Agreement. Tether will have no liability to Creator or any Members for taking the foregoing actions. Unless legally prohibited from doing so, Tether will use commercially reasonable efforts to contact Creator directly via email to notify Creator upon taking any of the foregoing actions.
9.3 Termination for Breach. Tether may terminate this Agreement immediately in the event of a material breach of this Agreement by Creator. In no event will termination of this Agreement relieve Creator of Creator’s obligation to pay any fees payable to Tether under this Agreement.
9.4 Termination for reputational harm. Tether may terminate this Agreement immediately where, in its reasonable opinion, it has grounds to suspect that you or your Community are engaged (or will be engaged) in any activities that may harm the reputation of Tether.
9.5 Effects of Termination. Immediately upon termination of this Agreement (a) Creator’s licenses under this Agreement will terminate and (b) Creator will cease use of the Service and Tether will have no obligation to continue providing the Service, including the Community, to Creator or any Member.
9.6 Survival. Sections 1.3, 1.5, 2, 3, 4, 5, 6, 7, 9.5, 9.6, 10.2, 11, 12, 13, 14, and 15 will survive the expiration or termination of this Agreement.
10. REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
10.1 Mutual Warranties. Each Party represents and warrants to the other Party that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and (c) the execution, delivery and performance of this Agreement does not and will not violate the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
10.2 DISCLAIMER. THE SERVICE (INCLUDING THE COMMUNITY AND THE COMMUNITY APP) ARE PROVIDED BY Tether ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND Tether EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CREATOR ACKNOWLEDGES THAT Tether DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, NOR THAT THE TEMPLATE COMMUNITY PRIVACY POLICY WILL BE SUFFICIENT OR ADEQUATE TO COMPLY WITH ALL LAWS APPLICABLE TO CREATOR, AND NO INFORMATION OR ADVICE OBTAINED BY CREATOR FROM Tether OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
11. LIMITATION OF LIABILITY
11.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL Tether OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO CREATOR OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOSS OF ANTICIPATED SAVINGS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION, LOSS OF GOODWILL (REGARDLESS OF WHETHER THE AFOREMENTIONED TYPES OF LOSS OR DAMAGE ARE DIRECT, INDIRECT OR CONSEQUENTIAL), OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER LOSS OR DAMAGES INCURRED BY CREATOR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, REGARDLESS OF WHETHER Tether HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.
11.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, Tether’S AGGREGATE LIABILITY TO CREATOR OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY USE OF (OR INABILITY TO USE) THE SERVICE, WILL IN NO EVENT EXCEED THE FEES FOR SUCH SERVICE PAID BY CREATOR DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. CREATOR ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 12.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Tether WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. Tether HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CREATOR THE RIGHTS TO ACCESS AND USE THE SERVICE PROVIDED FOR IN THIS AGREEMENT.
11.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Creator. IN THESE JURISDICTIONS, Tether’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
12. INDEMNIFICATION
12.1 Creator Indemnification. Creator will (a) indemnify and hold harmless Tether and its affiliates (including its and their directors, officers, members, employees and agents) (collectively, “Tether Indemnified Parties”) from and against any claims, demands, causes of action, losses, costs, or damages, including reasonable attorney’s fees, as incurred, arising out of or in connection with a claim brought by any third party against any of the Tether Indemnified Parties arising out of or relating to: (i) Creator’s breach of this Agreement; (ii) the Community Privacy Policy; (iii) Community Content(iv) Creator Materials; (v) any claim against Tether by a Member or other third party that relates to an act or omission of Creator (including with respect to moderation of a Community or any products or services offered to such Member by Creator); (vi) Creator’s misrepresentation, fraud, negligence, or willful misconduct; or (vii) Creator’s violation of law and (b) upon request, defend Tether against any such claim.
12.2 Indemnification Procedure. Tether will: (a) promptly notify Creator in writing of any claim for which it seeks indemnification under Section 13.1 (provided that failure to provide such notice promptly will not relieve Creator of its obligations under Section 13.1 unless such failure materially prejudices Creator) and (b) to the extent Tether requests that Creator defend it against such claim, make all reasonable efforts to provide Creator with information and materials in Tether’s possession regarding such claim and grant Creator sole control over the defense and settlement of such claim (provided, however, that Creator will not dispose of or settle any such claim in any manner requiring more than the payment by Creator of an amount fully indemnified hereunder).
13. MISCELLANEOUS
13.1 Publicity & Marketing. Following the successful implementation and go-live of Creator’s Tether Community, Tether may invite Creator to participate in optional marketing initiatives, such as a video interview, testimonial, or a case study, to showcase Creator’s success with Tether. Creator’s participation in any such initiative shall be entirely voluntary and subject to the Creator’s prior written consent.
13.2 Assignment. Creator may not, directly or indirectly, by operation of law or otherwise, assign or transfer all or any part of this Agreement or Creator’s rights under this Agreement or delegate performance of Creator’s duties under this Agreement without Tether’s prior written consent, which consent will not be unreasonably withheld. Tether may, without Creator’s consent, freely assign this Agreement, including in connection with any merger or change of control of Tether or the sale of all or substantially all of Tether’s assets. Subject to the foregoing restrictions, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns. Any assignment in violation of this Section 14.3 will be null and void.
13.3 Amendments to these Terms. Tether, acting in its sole discretion, may make amendments to this Agreement from time to time.
13.4 Additional Terms. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services that Tether offers as part of or distinct from the Service (the “Additional Terms”). In those instances, Tether will notify Creator of such Additional Terms prior to the activation of these features, functionality, or services and activation the same in Creator’s Account will be understood to evidence Creator’s acceptance of the Additional Terms. All such Additional Terms are hereby incorporated into this Agreement upon their acceptance by Creator.
13.5 Conflict. If there is a conflict between or among the terms set forth in Sections 1 through 15 of this Agreement (the “Terms and Conditions”), the Order, or the Additional Terms, the conflict will be resolved in the following descending order of precedence: (a) the Additional Terms, (b) the Order, and (c) the Terms and Conditions.
13.6 Severability. If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
13.7 Export Compliance and Use Restrictions. The Service and any components of the Service that Tether may provide or make available to Creator or Members may be subject to U.S. export control and economic sanctions laws. Creator agrees to comply with all such laws and regulations as they relate to access to and use of the Service and such other components by Creator and Members. Creator will not access or use the Service if Creator is located in any jurisdiction in which the provision of the Service or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Creator will not provide access to the Service to any government, entity or individual located in any Prohibited Jurisdiction. Creator represents, warrants and covenants that (a) Creator is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) Creator is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) Creator will not permit Members to access or use a Community in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) Creator will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Creator and any Members are located.
13.8 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties.
13.9 Notice. Any notices under this Agreement provided by (i) Tether to Creator may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by Creator on the Order; or (b) electronic mail to the electronic mail address associated the Creator Account; or (ii) Creator to Tether may be delivered in writing by electronic mail to legal@tether.site. All notices will be deemed to have been given one business day after sending via electronic mail or two (2) business days after being deposited in the mail or with a Courier as permitted above.
13.10 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Each Party hereby irrevocably submits to the jurisdiction of the state and federal courts in the State of Tennessee with regard to any dispute arising out of or relating to this Agreement.
13.11 Consent to Electronic Communications. By using the Service, Creator consents to receiving certain electronic communications from Tether as further described in Tether’s Privacy Policy. Please read Tether’s Privacy Policy to learn more about Tether’s electronic communications practices. Creator agree that any notices, agreements, disclosures, or other communications that Tether sends to Creator electronically will satisfy any legal communication requirements, including that those communications be in writing.
13.12 Notice to California Residents. If Creator is a California resident, then under California Civil Code Section 1789.3, Creator may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at +1-800-952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
13.13 Entire Agreement. This Agreement, together with the Order Form, constitutes the entire agreement, and supersedes any and all prior agreements between Creator and Tether with regard to the subject matter hereof. This Agreement will apply in lieu of the terms or conditions in any purchase order or other order documentation Creator or any entity which Creator represents provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either Party with respect to the subject matter hereof.
14. NOTICE REGARDING APPLE. This Section applies to the extent Creator uses any Tether-branded or Tether-powered mobile application on an iOS device. Creator acknowledges that this Agreement is between Creator and Tether only, not Apple Inc. (“Apple”), and that Apple is not responsible for the Services or their content. Apple has no obligation to provide any maintenance or support services with respect to the iOS application.
To the maximum extent permitted by applicable law, Apple has no warranty obligation whatsoever with respect to the iOS application. Apple is not responsible for addressing any claims by Creator or any third party relating to the iOS application or Creator’s possession or use of the iOS application, including: (a) product liability claims; (b) any claim that the iOS application fails to conform to applicable legal or regulatory requirements; or (c) claims arising under consumer protection or similar laws. Apple is not responsible for the investigation, defense, settlement, or discharge of any claim that the iOS application or Creator’s use thereof infringes any third-party intellectual property right.
Creator agrees to comply with any applicable third-party terms when using the iOS application. Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and upon Creator’s acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against Creator as a third-party beneficiary.
Creator represents and warrants that (i) Creator is not located in a country subject to a U.S. Government embargo or designated as a “terrorist supporting” country; and (ii) Creator is not listed on any U.S. Government list of prohibited or restricted parties.
Exhibit A
Branded Mobile Applications
If your Agreement with Tether includes branded mobile applications, the following terms apply:
- Branded App Deliverables
- Tether will create and maintain branded iOS and Android applications reflecting your organization’s name and brand identity.
- Branded apps will provide access to the features of the Tether platform available under your Agreement.
- Branded apps may include, as applicable:
- Branded app listings on the Apple App Store and Google Play Store;
- A custom-branded home screen icon for iOS and Android;
- A branded splash screen for iOS and Android;
- Branded push notifications for iOS and Android; and
- Ongoing maintenance, performance enhancements, and software updates provided by Tether in the ordinary course of business.
- App Store Accounts
- You are responsible for maintaining the required developer accounts for app distribution. Specifically:
- Apple App Store: You must create and maintain your own Apple Developer account, which requires a DUNS number and costs approximately $100 per year.
- Google Play Store: Your Android application will be distributed under your own Google Developer Account.
- Tether will assist with submission and branding but cannot assume liability for delays or restrictions imposed by Apple or Google.
- You are responsible for maintaining the required developer accounts for app distribution. Specifically:
- Limitations
- Branded apps are available only to customers whose Agreement expressly includes them.
- If branded applications do not apply to your Agreement, this section does not create any obligation for Tether to provide such applications.
- Intellectual Property in Branded Applications
- All right, title, and interest in and to the Tether platform, software, source code, and related technology (including but not limited to the branded iOS and Android applications created under this Agreement) remain the exclusive property of Tether. Branded applications are provided to you under a limited, non-exclusive, non-transferable license to distribute such applications under your own developer accounts during the term of your Agreement with Tether. You retain ownership of your own trademarks, logos, and content incorporated into the branded applications. Except for this limited license, no ownership rights in the Tether platform or branded applications are granted to you.
- In-App Payments
- At this time, Tether does not support or facilitate in-app payments through Apple’s App Store or Google Play. Customers and end users may not use the Tether mobile applications to process or collect payments via Apple or Google in-app purchase systems. Any payment functionality, including but not limited to subscriptions, donations, or transactions, must be conducted outside of the mobile applications in accordance with the payment methods authorized by Tether. Tether reserves the right to update this policy if in-app payment support is introduced in the future.
