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TERMS OF USE

Version 2.1

Last Revised:  May 25, 2018 

(This policy has been updated to comply with the terms of GDPR)

PLEASE READ THIS TERMS OF USE AGREEMENT (THE “TERMS OF USE”) CAREFULLY.  THIS WEBSITE AND ANY OTHER WEBSITES OF VMAS Solutions, LLC dba THE TOUCHPOINT SOLUTION  (“TOUCHPOINT,” “US,”OR “WE”), ITS AFFILIATES OR AGENTS (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY TOUCHPOINT.  THESE TERMS OF USE GOVERN THE USE OF THE WEBSITE AND OUR RELATED MOBILE APPLICATION (THE “APP”) AND APPLY TO ALL USERS VISITING THE WEBSITE OR THE APP BY ACCESSING OR USING THE WEBSITE OR APP IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE AND THE APP (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING THE APP, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TOUCHPOINT, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF USE.  THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE OR THE APP.  IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.

Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Use or will be presented to you for your acceptance when you sign up to use the supplemental Service.  If the Terms of Use are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service.  The Terms of Use and any applicable Supplemental Terms are referred to herein as the “Terms.

The Services provide information about our products. Our products, including our wearable devices that are designed to relieve stress (“TouchPoints”) and related accessories are available for purchase through the Website and the App.  The App operates as a remote control, tracks information via a dashboard as well as providing additional resources for reducing stress, access to research and a community of other TouchPoints users. 

PLEASE NOTE THAT THIS AGREEMENT IS subject to change by TOUCHPOINT in its sole discretion at any time.  When changes are made, Touchpoint will make a new copy of the Agreement available on the Website and the App.  We will also update the “Last Updated” date at the top of this Agreement.  If we make any material changes, and you have registered to use the Services, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement.  Any changes to this Agreement will be effective immediately for new users of the Services and will be effective thirty (30) days after posting of notice of such changes for existing users.  If you do not agree to any change(s), you must stop using the Services.  Otherwise, your continued use constitutes your acceptance of such change(s).

  1. Use of the Services and the Touchpoint Properties. The App, the Software, the Website, the Services, and the information and content available on the Website and in the App and the Services (as these terms are defined herein) (collectively, the “Touchpoint Properties”) are protected by copyright laws throughout the world.  Subject to the Terms, Touchpoint grants you a limited license to reproduce portions of the Touchpoint Properties for the sole purpose of using the Services for your personal or internal business purposes. Unless otherwise specified by Touchpoint in a separate license, your right to use any the Touchpoint Properties is subject to the Terms.
  • App License.Subject to your compliance with the Terms, Touchpoint grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the App on a single mobile device or computer that you own or control and to run such copy of the App solely for your own personal or internal business purposes.  Furthermore, with respect to any App accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
  • Touchpoint Software.Use of any software and associated documentation, other than the App, that is made available via the Website or the Services (“Software”) is governed by the terms of the license agreement that accompanies or is included with the Software, or by the license agreement expressly stated on the Website page(s) accompanying the Software.  These license terms may be posted with the Software downloads or at the Website page where the Software can be accessed.  You shall not use, download or install any Software that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement.  At no time will Touchpoint provide you with any tangible copy of our Software.  Touchpoint shall deliver access to the Software via electronic transfer or download and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation.  For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium.  Unless the accompanying license agreement expressly allows otherwise, any copying or redistribution of the Software is prohibited, including any copying or redistribution of the Software to any other server or location, or redistribution or use on a service bureau basis.  If there is any conflict between the Terms and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes.  If no license agreement accompanies use of the Software, use of the Software will be governed by the Terms.  Subject to your compliance with the Terms, Touchpoint grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by the Terms.  Some Software may be offered under an open source license that we will make available to you. There may be provisions in the open source license that expressly override some of these terms.
  • Updates.You understand that the Touchpoint Properties are evolving.  As a result, Touchpoint may require you to accept updates to the Touchpoint Properties that you have installed on your computer or mobile device.  You acknowledge and agree that Touchpoint may update the Touchpoint Properties with or without notifying you.  You may need to update third-party software from time to time in order to use the Touchpoint Properties.
  • Certain Restrictions.The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, duplicate, copy, trade, resell, distribute, host or otherwise commercially exploit the Touchpoint Properties or any portion of the Touchpoint Properties, including the Website,  (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Touchpoint Properties (including images, text, page layout or form) of Touchpoint; (c) you shall not use any metatags or other “hidden text” using Touchpoint’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Touchpoint Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Touchpoint Properties in order to build a similar or competitive website, application or service; (g) you shall not interfere or attempt to interfere with the proper functioning of the Touchpoint Properties or connect to or use the Touchpoint Properties in any way not expressly permitted by the Terms; (h) you shall not make any automated use of the Touchpoint Properties, or take any action that imposes or may impose (in Touchpoints’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the Touchpoint Properties; (i) you shall not forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Touchpoint Properties; (j) except as expressly stated herein, no part of the Touchpoint Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (k) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Touchpoint Properties. Any future release, update or other addition to the Touchpoint Properties shall be subject to the Terms.  Touchpoint, its suppliers and service providers reserve all rights not granted in the Terms.  Any unauthorized use of the Touchpoint Properties terminates the licenses granted by Touchpoint pursuant to the Terms.
  • Third-Party Materials.As a part of the Touchpoint Properties, you may have access to materials that are hosted by another party.  You agree that it is impossible for Touchpoint to monitor such materials and that you access these materials at your own risk.
    • Registering Your Account.In order to access certain features of the Touchpoint Properties you may be required to create an account (“Account”). To create an Account and make purchases through the Services, you will be asked to submit certain information, which may include your name, a username, email address, and password.  Each time you use your password or identification, you will be deemed to be authorized to access and use the Services in a manner consistent with this Agreement and we have no obligation to investigate the authorization or source of any such access or use of the Services.

YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THE SERVICES BY ANYONE (INCLUDING MINORS) USING YOUR PASSWORD AND IDENTIFICATION WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING, WITHOUT LIMITATION, FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. 

You are solely responsible for protecting the security and confidentiality of your password and identification. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of the Services’ security.

  • Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Touchpoint.
  • Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Touchpoint Properties, including but not limited to, a mobile device that is suitable to connect with and use the Touchpoint Properties, in cases where the Services offer a mobile component.  You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Touchpoint Properties.  By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services. Touchpoint will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply.  You may opt out of receiving text messages from us by emailing hello@thetouchpointsolution.com.  
  1. Responsibility for Content.
  • Types of Content.You acknowledge that all content, including the Touchpoint Properties (the “Content”), is the sole responsibility of the party from whom such Content originated.  This means that you, and not Touchpoint, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Touchpoint Properties (“Your Content”), and that you and other users of the Touchpoint Properties (“Users”), and not Touchpoint, are similarly responsible for all Content they Make Available through the Touchpoint Properties (“User Content”).
  • No Obligation to Pre-Screen Content.You acknowledge that Touchpoint has no obligation to pre-screen Content (including, but not limited to, User Content), although Touchpoint reserves the right in its sole discretion to pre-screen, refuse or remove any Content.  By entering into the Terms, you hereby provide your irrevocable consent to such monitoring.  You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications.  In the event that Touchpoint pre-screens, refuses or removes any Content, you acknowledge that Touchpoint will do so for Touchpoint’s benefit, not yours.  Without limiting the foregoing, Touchpoint shall have the right to remove any Content that violates the Terms or is otherwise objectionable.
  • Storage.Unless expressly agreed to by Touchpoint in writing elsewhere, Touchpoint has no obligation to store any of Your Content that you Make Available on the Touchpoint Properties.  Touchpoint has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Touchpoint Properties.  Certain Services may enable you to specify the level at which such Services restrict access to Your Content.  You are solely responsible for applying the appropriate level of access to Your Content.  If you do not choose, the system may default to its most permissive setting.  You agree that Touchpoint retains the right to create reasonable limits on Touchpoint’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Touchpoint in its sole discretion.
    • The Touchpoint Properties.Except with respect to Your Content and User Content, you agree that Touchpoint and its suppliers own all rights, title and interest in the Touchpoint Properties (including but not limited to, any visual interfaces, graphics, designs, compilations, information, data, computer code (including source code or object code), products, software, all other elements of the Services).  You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or the Touchpoint Properties.
    • Trademarks.and other related graphics, logos, service marks and trade names used on or in connection with the Touchpoint Properties or in connection with the Services are the trademarks of Touchpoint and may not be used without permission in connection with any third-party products or services.  Other trademarks, service marks and trade names that may appear on or in the Touchpoint Properties are the property of their respective owners.
    • Other Content.Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in the Touchpoint Properties.
    • Your Content; License to Your Content.Touchpoint does not claim ownership of Your Content.  However, when you as a User post or publish Your Content on or in the Touchpoint Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. 

Subject to any applicable account settings that you select, you grant Touchpoint a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing the Touchpoint Properties to you and to our other Users.  Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Touchpoint Properties.  You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated aboveYou agree that you, not Touchpoint, are responsible for all of Your Content that you Make Available on or in the Touchpoint Properties.

  • Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Touchpoint through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that Touchpoint has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback.  You represent and warrant that you have all rights necessary to submit the Feedback.  You hereby grant to Touchpoint a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Touchpoint Properties.
  1. [Interactions with Other Users.
  • User Responsibility.You are solely responsible for your interactions with other Users and any other parties with whom you interact; provided, however, that Touchpoint reserves the right, but has no obligation, to intercede in such disputes.  You agree that Touchpoint will not be responsible for any liability incurred as the result of such interactions.
  • Content Provided by Other Users.The Touchpoint Properties may contain User Content provided by other Users.  Touchpoint is not responsible for and does not control User Content.  Touchpoint has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content.  You use all User Content and interact with other Users at your own risk.
  1. Third-Party Services.
  • Third-Party Websites, Applications & Ads.The Touchpoint Properties may contain links to third-party websites (“Third-Party Websites”)and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Touchpoint Properties and are subject to the terms and conditions (including privacy policies) of another website or destination.  Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Touchpoint.  Touchpoint is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads.  Touchpoint provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services.  You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, our Terms and policies no longer govern.  You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
  1. Fees and Purchase Terms.
  • General Purpose of Terms: Not Sale of Software.The purpose of the Terms is for you to secure access to the Services.  All fees set forth within and paid by you under the Terms shall be considered solely in furtherance of this purpose.  In no way are these fees paid considered payment for the sale, license, or use of Touchpoint’s Software, and, furthermore, any use of Touchpoint’s Software by you in furtherance of the Terms will be considered merely in support of the purpose of the Terms.
  • Payment.You agree to pay all fees or charges to you in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable.  You must provide Touchpoint with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or PayPal account (“Payment Provider”), or purchase order information as a condition to signing up for the Services.  Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities.  By providing Touchpoint with your credit card number or PayPal account and associated payment information, you authorize Touchpoint to immediately charge you for all fees due and payable to Touchpoint hereunder and that no additional notice or consent is required.  You agree to immediately notify Touchpoint of any change in your billing address or the credit card or PayPal account used for payment hereunder.  Touchpoint reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Touchpoint Properties or by e-mail delivery to you.  You may be charged local tax, if applicable.
  • Third Party Provider.The Touchpoint uses Shopify as its third party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Services, you agree to be bound by Shopify’s Privacy Policy available at https://www.shopify.com/legal/privacy. You hereby consent to provide and authorize Touchpoint and Shopify to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information.
  • Purchasing Products.If you wish to purchase any products or services through the Services (“Products”), you will be required to supply certain information applicable to your purchase, including payment, contact, and other information.  Any such information will be treated as described in our Privacy Policy.  All information that you provide to us or our third party service provider for payment services must be accurate, current and complete.  YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARDS OR OTHER PAYMENT MEANS USED TO INITIATE ANY TRANSACTION.  You agree to pay all charges incurred by you or any users of your account and credit card (or other applicable payment mechanism) at the prices in effect when such charges are incurred.  You will also be responsible for paying any applicable taxes relating to your purchases.  Verification of information applicable to a purchase may be required prior to our acceptance of any order.
  • Product Descriptions.Descriptions, images, references, features, content, specifications, products, prices, and availability of any Products are subject to change without notice, and our current prices can be found on the Services.  We make reasonable efforts to accurately display the attributes of our Products, including the applicable colors; however, the actual color you see will depend on your computer system, and we cannot guarantee that your computer will accurately display such colors.  The inclusion of any Products on the Services at a particular time does not imply or warrant that these products or services will be available at any time. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the possession, use, and sale of any item purchased through the Services.  By placing an order, you represent that the Products ordered will be used only in a lawful manner.  We reserve the right, with or without prior notice, to limit the available quantity of or discontinue any Product; to honor or impose conditions on the honoring of, any coupon, coupon code, promotional code, or other similar promotions; to bar any user from making any or all purchases; and to refuse to provide any user with any product or service.
  • Orders.Title and risk of loss for any purchases pass to you upon our delivery to our carrier.  We reserve the right to ship partial orders (at no additional cost to you), and the portion of any order that is partially shipped may be charged at the time of shipment.
  • Disputes.You must notify us in writing within seven (7) days after receiving your credit card statement, if you dispute any of our charges on that statement or such dispute will be deemed waived.  Billing disputes should be notified to the following address: The TouchPoint Solution, 8585 E Hartford Dr. Suite 105, Scottsdale, AZ 85255
  • Returns.If for any reason you are not satisfied with a purchase you make on the Services, please return it in accordance with the terms of our return policy or limited warranty, available at https://thetouchpointsolution.com/pages/returns-and-returns 
  1. You agree to indemnify and hold Touchpoint, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “Touchpoint Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, the Touchpoint Properties; (c) your violation of the Terms; (d) your violation of any rights of another party, including any Users; or (e) your violation of any applicable laws, rules or regulations.  Touchpoint reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Touchpoint in asserting any available defenses.  This provision does not require you to indemnify any of the Touchpoint Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.  You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the Touchpoint Properties.
  2. Disclaimer of Warranties and Conditions.
  • As Is.YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE TOUCHPOINT PROPERTIES IS AT YOUR SOLE RISK, AND THE TOUCHPOINT PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TOUCHPOINT PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES.  This Section 9 does not affect in any way our return policy or limited warranty for goods purchased on the Services. 
    • TOUCHPOINT PARTIES MAKE NO GUARANTEE, WARRANTY, REPRESENTATION OR CONDITION THAT: (1) YOU OR ANY OTHER USER OF THE SERVICES WILL OBTAIN ANY PARTICULAR OR TANGIBLE RESULT OR GOAL THROUGH THE USE OF THE SERVICES, OR ANY PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE SERVICES OR WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE TOUCHPOINT PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TOUCHPOINT PROPERTIES, INCLUDING ANY PRODUCT MADE AVAILABLE THROUGH THE SERVICES, WILL BE ACCURATE OR RELIABLE.
    • ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE TOUCHPOINT PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE TOUCHPOINT PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
    • THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TOUCHPOINT MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
    • TOUCHPOINT DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. ANY CONTENT ACCESSED THROUGH THE TOUCHPOINT PROPERTIES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS OR ADVERSE EFFECTS.  THE SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.  THE CONTENT SHOULD NOT BE USED DURING A MEDICAL EMERGENCY OR FOR THE DIAGNOSIS OR TREATMENT OF ANY MEDICAL CONDITION.  PLEASE CONSULT YOUR DOCTOR OR OTHER QUALIFIED HEALTH CARE PROVIDER IF YOU HAVE ANY QUESTIONS ABOUT A MEDICAL CONDITION, OR BEFORE TAKING ANY DRUG, CHANGING YOUR DIET, OR COMMENCING OR DISCONTINUING ANY COURSE OF TREATMENT.  DO NOT IGNORE OR DELAY OBTAINING PROFESSIONAL MEDICAL ADVICE BECAUSE OF INFORMATION ACCESSED THROUGH THE TOUCHPOINT PROPERTIES.  CALL 911 OR YOUR DOCTOR FOR ALL MEDICAL EMERGENCIES. 
    • From time to time, Touchpoint may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Touchpoint’s sole discretion.  The provisions of this section apply with full force to such features or tools.
  • No Liability for Conduct of Third Parties.YOU ACKNOWLEDGE AND AGREE THAT TOUCHPOINT PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TOUCHPOINT PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
  • No Liability for Conduct of Other Users.YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE TOUCHPOINT PROPERTIES. YOU UNDERSTAND THAT TOUCHPOINT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE TOUCHPOINT PROPERTIES.
  • Exclusion of Warranties, Etc.SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, REPRESENTATIONS OR CONDITIONS, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY IN FULL TO YOU. WHERE LEGISLATION IN A JURISDICTION IMPLIES IN THE TERMS ANY CONDITION OR WARRANTY THAT CANNOT BE EXCLUDED, TOUCHPOINT’S LIABILITY FOR BREACH THEREOF SHALL BE LIMITED AT COMPANY’S OPTION TO ONE OR MORE OF THE FOLLOWING: (1) WHERE THE BREACH OF THE CONDITION OR WARRANTY RELATES TO GOODS, THE REPLACEMENT OR REPAIR OF THE GOODS, THE SUPPLY OF EQUIVALENT GOODS OR PAYMENT OF THE COST OF DOING SO; AND (2) WHERE THE BREACH OF THE CONDITION OR WARRANTY RELATES TO SERVICES, THE SUPPLY OF SERVICES AGAIN, OR THE PAYMENT OF THE COST OF HAVING THEM SUPPLIED AGAIN.
  1. Limitation of Liability.
  • Disclaimer of Certain Damages.YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TOUCHPOINT PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TOUCHPOINT PROPERTIES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER OR NOT TOUCHPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE TOUCHPOINT PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE TOUCHPOINT PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE TOUCHPOINT PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE TOUCHPOINT PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO THE TOUCHPOINT PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TOUCHPOINT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TOUCHPOINT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TOUCHPOINT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
  • Cap on Liability.UNDER NO CIRCUMSTANCES WILL TOUCHPOINT PARTIES BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (A) THE TOTAL AMOUNT PAID TO Touchpoint by you during the one-month period prior to the act, omission or occurrence giving rise to such liability and (B) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES.  THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A TOUCHPOINT PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A TOUCHPOINT PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A TOUCHPOINT PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
  • User Content.EXCEPT FOR TOUCHPOINT’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE TOUCHPOINT’S PRIVACY POLICY, TOUCHPOINT ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
  • Basis of the Bargain.THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TOUCHPOINT AND YOU.
    • Violations.If Touchpoint becomes aware of any possible violations by you of the Terms, Touchpoint reserves the right to investigate such violations.  If, as a result of the investigation, Touchpoint believes that criminal activity has occurred, Touchpoint reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities.  Touchpoint is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Touchpoint Properties, including Your Content, in Touchpoint’s possession in connection with your use of the Touchpoint Properties, to (1) comply with applicable laws, legal process or governmental request; (2) enforce the Terms, (3) respond to any claims that Your Content violates the rights of third parties, (4) respond to your requests for customer service, or (5) protect the rights, property or personal safety of Touchpoint, its Users or the public, and all enforcement or other government officials, as Touchpoint in its sole discretion believes to be necessary or appropriate.
    • Breach.In the event that Touchpoint determines, in its sole discretion, that you have breached any portion of the Terms, or have otherwise demonstrated conduct inappropriate for the Touchpoint Properties, Touchpoint reserves the right to:
      • Warn you via e-mail (to any e-mail address you have provided to Touchpoint) that you have violated the Terms;
      • Delete any of Your Content provided by you or your agent(s) to the Touchpoint Properties;
      • Discontinue your registration(s) with the any of the Touchpoint Properties, including any Services or any Touchpoint community;
      • Discontinue your subscription to any Services;
      • Notify and/or send Content to and/or fully cooperate with the proper law enforcement authorities for further action; and/or
      • Pursue any other action which Touchpoint deems to be appropriate.
  1. Term and Termination.
  • Term.The Terms commence on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use the Touchpoint Properties, unless terminated earlier in accordance with the Terms.
  • Prior Use.Notwithstanding the foregoing, if you used the Touchpoint Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the Touchpoint Properties (whichever is earlier) and will remain in full force and effect while you use the Touchpoint Properties, unless earlier terminated in accordance with the Terms.
  • Additional Termination Rights. Either party may terminate this Agreement or suspend its performance under this Agreement at any time upon notice to the other party if the other party breaches any material term hereof and fails to cure such breach in accordance with the following cure procedure. If a party wishes to terminate this Agreement due to the other party breaching a material term of this Agreement, then the nonbreaching party shall serve written notice on the other party specifying the breach and requiring it to be rectified.  If the material breach has not been remedied within thirty (30) days of the original notice of default or such other period as may be agreed, then the notifying party will have the right to terminate this Agreement by a further written notice, with immediate effect.  Touchpoint may also decommission the Services and terminate at any time upon thirty (30) days’ notice.
  • Effect of Termination.Termination of any Service includes removal of access to such Service and barring of further use of the Service.  Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content.  Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases.  Touchpoint will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content.  All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
  • No Subsequent Registration.If your registration(s) with or ability to access the Touchpoint Properties, or any other Touchpoint community is discontinued by Touchpoint due to your violation of any portion of the Terms or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Touchpoint Properties or any Touchpoint community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Touchpoint Properties to which your access has been terminated.  In the event that you violate the immediately preceding sentence, Touchpoint reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
  1. International Users.The Touchpoint Properties can be accessed from countries around the world and may contain references to Services and Content that are not available in your country.  These references do not imply that Touchpoint intends to announce such Services or Content in your country.  The Touchpoint Properties are controlled and offered by Touchpoint from its facilities in the United States of America. Touchpoint makes no representations that the Touchpoint Properties are appropriate or available for use in other locations.  Those who access or use the Touchpoint Properties from other countries do so at their own volition and are responsible for compliance with local law.
  2. Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully.  It requires you to arbitrate disputes with Touchpoint and limits the manner in which you can seek relief from us. 
  • Applicability of Arbitration Agreement.You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Touchpoint, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Touchpoint may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.  

IF YOU AGREE TO ARBITRATION WITH TOUCHPOINT, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST TOUCHPOINT ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF.  INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE TOUCHPOINT IN AN INDIVIDUAL ARBITRATION PROCEEDING.  IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.  YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.

  • Arbitration Rules and Forum.The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.  To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Anthony W. Clark, PO Box 34506, Phoenix, AZ 85067. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider.   Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/.  JAMS’s rules are also available at jamsadr.com or by calling JAMS at 800-352-5267.  If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum.  If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Touchpoint will pay them for you.  In addition, Touchpoint will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous.  Likewise, Touchpoint will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.

You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location.   Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

  • Authority of Arbitrator.  The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Touchpoint.   The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties.  The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have.  The award of the arbitrator is final and binding upon you and us. 
  • Waiver of Jury Trial.  YOU AND TOUCHPOINT HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Touchpoint are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 1 above.  An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would.   However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.  
  • Waiver of Class or Consolidated Actions.  ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in the Federal or state courts of Scottsdale, Arizona.
  • 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address at The TouchPoint Solution, 8585 E Hartford Dr. Suite 105, Scottsdale, AZ 85255 or email address at hello@thetouchpointsolution.com within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Touchpoint username (if any), the email address you used to set up your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement.  If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
  • Severability.If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
  • Survival of Agreement.This Arbitration Agreement will survive the termination of your relationship with Touchpoint.
  • Modification.Notwithstanding any provision in this Agreement to the contrary, we agree that if Touchpoint makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Touchpoint.
  1. General Provisions.
  • Electronic Communications.The communications between you and Touchpoint use electronic means, whether you visit the Touchpoint Properties or send Touchpoint e-mails, or whether Touchpoint posts notices on the Touchpoint Properties or communicates with you via e-mail.  For contractual purposes, you (1) consent to receive communications from Touchpoint in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Touchpoint provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.  The foregoing does not affect your statutory rights.
  • Release.You hereby release Touchpoint Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the Touchpoint Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the Touchpoint Properties.  If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.  The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Touchpoint Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder.
  • Assignment.The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Touchpoint’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
  • Force Majeure.Touchpoint shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
  • Questions, Complaints, Claims.If you have any questions, complaints or claims with respect to the Touchpoint Properties, please contact us at: The TouchPoint Solution, 8585 E Hartford Dr. Suite 105, Scottsdale, AZ 85255 or hello@thetouchpointsolution.com.  We will do our best to address your concerns.  If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
  • Limitation Period.YOU AND TOUCHPOINT AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE TOUCHPOINT PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR   AFTER THE CAUSE OF ACTION ACCRUES.  OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
  • Exclusive Venue.To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Touchpoint agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Arizona.
  • Governing Law.The Terms and any action related thereto will be governed and interpreted by and under the laws of the State of ARIZONA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the App of the law of another jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.
  • Notice.Where Touchpoint requires that you provide an e-mail address, you are responsible for providing Touchpoint with your most current e-mail address.  In the event that the last e-mail address you provided to Touchpoint is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, Touchpoint’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice.  You may give notice to Touchpoint at the following address: The TouchPoint Solution, 8585 E Hartford Dr. Suite 105, Scottsdale, AZ 85255.  Such notice shall be deemed given when received by Touchpoint by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
  • Waiver.Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
  • Severability.If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
  • Export Control.You may not use, export, import, or transfer the Touchpoint Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the Touchpoint Properties, and any other applicable laws.  In particular, but without limitation, the Touchpoint Properties 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 Touchpoint Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the Touchpoint Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.  You acknowledge and agree that products, services or technology provided by Touchpoint are subject to the export control laws and regulations of the United States.  You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer Touchpoint products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
  • Consumer Complaints.In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
  • Entire Agreement.The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

PRIVACY POLICY

Version 2.1

Last Revised:  May 25, 2018 

(This policy has been updated to comply with the terms of GDPR)

VMAS Solutions LLC dba The Touchpoint Solution (“Company,” “we,” or “us”) is committed to protecting your privacy.  We have prepared this Privacy Policy to describe to you our practices regarding the Personal Data (as defined below) we collect from users of our website, located at www.thetouchpointsolution.com and our mobile application (“Application”) (collectively, the “Site”) and online services (“Services”).

  1. Questions; Contacting Company; Reporting Violations. If you have any questions or concerns or complaints about our Privacy Policy or our data collection or processing practices, or if you want to report any security violations to us, please contact us at the following address or phone number:

The Touchpoint Solution

Attn: Data Protection Officer

8585 E Hartford Dr. Suite 105

Scottsdale, AZ 85255

877-77-TOUCH

  1. User Consent.By submitting Personal Data through our Site or Services, you agree to the terms of this Privacy Policy and you expressly consent to the collection, use and disclosure of your Personal Data in accordance with this Privacy Policy.
  2. A Note About Children.We do not intentionally gather Personal Data from visitors who are under the age of 16.  If a child under 16 submits Personal Data to Company and we learn that the Personal Data is the information of a child under 16, we will attempt to delete the information as soon as possible.  If you believe that we might have any Personal Data from a child under 16, please contact us at delete@thetouchpointsolution.com.
  3. A Note to Users Outside of the United States. If you are a non U.S. user of the Site, by visiting the Site and providing us with data, you acknowledge and agree that your Personal Data may be processed for the purposes identified in the Privacy Policy.  In addition, your Personal Data may be processed in the country in which it was collected and in other countries, including the United States, where laws regarding processing of Personal Data may be less stringent than the laws in your country.  By providing your data, you consent to such transfer.  
  4. Types of Data We Collect. “Personal Data” means data that allows someone to identify or contact you, including, for example, your name, address, telephone number, e-mail address, as well as any other non-public information about you that is associated with or linked to any of the foregoing data.  “Anonymous Data” means data that is not associated with or linked to your Personal Data; Anonymous Data does not, by itself, permit the identification of individual persons.  We collect Personal Data and Anonymous Data, as described below.
  • Information You Provide to Us.
    • We may collect Personal Data from you, such as your first and last name, gender, e-mail and mailing addresses, professional title, company name, and password when you create an account to log in to our network (“Account”).
    • We may also collect your interests if you choose to sign up for our newsletter for news and exclusive offers.
    • If you use our Services on your mobile device, including through our Application, we may collect your phone number and the unique device id number.
    • Our Site lets you store preferences like how your content is displayed, your location and safe search settings. We may associate these choices with your ID, browser or the mobile device, and you can edit these preferences at any time.
    • When connecting to our Services via a service provider that uniquely identifies your mobile device, we may receive this identification and use it to offer extended services and/or functionality.
    • Certain Services, such as two-factor authentication, may require our collection of your phone number. We may associate that phone number to your mobile device identification information.
    • When you order products or services on our Site, we will collect all information necessary to complete the transaction, including your name, credit card information, billing information and shipping information. We do not store this information directly on our servers, but this information may be shared with third parties who will help process and fulfill your purchases.  When you submit credit card numbers, we encrypt that information using industry standard technology.
    • We retain information on your behalf, such as files and messages that you store using your Account.
    • If you provide us feedback or contact us via e-mail, we will collect your name and e-mail address, as well as any other content included in the e-mail, in order to send you a reply.
    • When you post content (text, images, photographs, messages, comments or any other kind of content that is not your e-mail address) on our Site, the information contained in your posting will be stored in our servers and other users will be able to see it and any other information that you choose to make public on your public profile page (“Profile”). The information that you provide in your Profile will be visible to others, including anonymous visitors to the Site.
    • When you post messages on the message boards or blog on our Site, the information contained in your posting will be stored on our servers and other users will be able to see it. Comments on our blog are subject to our approval before being posted on the Site.
    • When you participate in one of our surveys, we may collect additional profile information.
    • We also collect other types of Personal Data that you provide to us voluntarily, such as your operating system and version, product registration number, and other requested information if you contact us via e-mail regarding support for the Services.
    • We may also collect Personal Data at other points in our Site that state that Personal Data is being collected.
  • Information Collected via Technology.
    • Information Collected by Our Servers. To make our Site and Services more useful to you, our servers (which may be hosted by a third party service provider) collect information from you, including your browser type, operating system, Internet Protocol (“IP”) address (a number that is automatically assigned to your computer when you use the Internet, which may vary from session to session), domain name, and/or a date/time stamp for your visit. 
    • Log Files.As is true of most websites, we gather certain information automatically and store it in log files.  This information includes IP addresses, browser type, Internet service provider (“ISP”), referring/exit pages, operating system, date/time stamp, and clickstream data.  We use this information to analyze trends, administer the Site, track users’ movements around the Site, gather demographic information about our user base as a whole, and better tailor our Services to our users’ needs.  For example, some of the information may be collected so that when you visit the Site or the Services again, it will recognize you and the information could then be used to serve advertisements and other information appropriate to your interests.  Except as noted in this Privacy Policy, we do not link this automatically-collected data to Personal Data.
    • Cookies. Like many online services, we use cookies to collect information.  “Cookies”are small pieces of information that a website sends to your computer’s hard drive while you are viewing the website.  We may use both session Cookies (which expire once you close your web browser) and persistent Cookies (which stay on your computer until you delete them) to provide you with a more personal and interactive experience on our Site.    This type of information is collected to make the Site more useful to you and to tailor the experience with us to meet your special interests and needs.
    • In addition, we use “Pixel Tags” (also referred to as clear Gifs, Web beacons, or Web bugs). Pixel Tags are tiny graphic images with a unique identifier, similar in function to Cookies, that are used to track online movements of Web users.  In contrast to Cookies, which are stored on a user’s computer hard drive, Pixel Tags are embedded invisibly in Web pages.  Pixel Tags also allow us to send e-mail messages in a format users can read, and they tell us whether e-mails have been opened to ensure that we are sending only messages that are of interest to our users.  We may use this information to reduce or eliminate messages sent to a user.  We do not tie the information gathered by Pixel Tags to our users’ Personal Data.
    • Collection of Data by Advertisers. We may also use third parties to serve ads on the Site.  Certain third parties may automatically collect information about your visits to this and other websites, your IP address, your ISP, the browser you use to visit our Site (but not your name, address, e-mail address or telephone number).  They do this by using Cookies, Pixel Tags, or other technologies.  Information collected may be used, among other things, to deliver advertising targeted to your interests and to better understand the usage and visitation of our Site and the other sites tracked by these third parties.  This policy does not apply to, and we are not responsible for, Cookies or Pixel Tags in third party ads, and we encourage you to check the privacy policies of advertisers and/or ad services to learn about their use of Cookies and other technologies.  You may opt out of receiving interest-based advertising from some of our partners by visiting https://thetouchpointsolution.com/pages/unsubscribe. If you would like more information about this practice and to know your choices about not having this information used by these companies, click here: http://www.aboutads.info/choicesor http://www.networkadvertising.org.
    • How We Respond to Do Not Track Signals. We do not currently respond to “do not track” signals or other mechanisms that might enable Users to opt out of tracking on our site.
    • Flash LSOs. When we post videos, third parties may use local shared objects, known as “Flash Cookies,” to store your preferences for volume control or to personalize certain video features.  Flash Cookies are different from browser Cookies because of the amount and type of data and how the data is stored.  Cookie management tools provided by your browser will not remove Flash Cookies.  To learn how to manage privacy and storage settings for Flash Cookies, click here: http://www.macromedia
      .com/support/documentation/en/flashplayer/help/settings_manager07.html
      .
    • Mobile Services. We may also collect non-personal information from your mobile device if you have downloaded our Application.  This information is generally used to help us deliver the most relevant information to you. Examples of information that may be collected and used include your geographic location, how you use the Application, and information about the type of device you use.  In addition, in the event our Application crashes on your mobile device, we will receive information about your mobile device model software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our Application.  This information is sent to us as aggregated information and is not traceable to any individual and cannot be used to identify an individual.
    • Analytics Services and Interest-Based Advertising.In addition to the tracking technologies we place, other companies may set their own cookies or similar tools when you visit our Site.  This includes third party analytics services, including but not limited to Google Analytics (“Analytics Services”), that we engage to help analyze how users use the Site, as well as third parties that deliver content or offers.  We may receive reports based on these parties’ use of these tools on an individual or aggregate basis.  We use the information we get from Analytics Services only to improve our Site and Services.  The information generated by the Cookies or other technologies about your use of our Site and Services (the “Analytics Information”) is transmitted to the Analytics Services.  The Analytics Services use Analytics Information to compile reports on user activity.  The Analytics Services may also transfer information to third parties where required to do so by law, or where such third parties process Analytics Information on their behalf. Each Analytics Services’ ability to use and share Analytics Information is restricted by such Analytics Services’ Terms of Use and Privacy Policy.  By using our Site and Services, you consent to the processing of data about you by Analytics Services in the manner and for the purposes set out above.  For a full list of Analytics Services, please contact us at customerservice@thetou
      com
      .  We may also partner with ad companies to support out marketing efforts, including by serving you ads better tailored to your likely interests.  If you don’t want to take advantage of these services, you may be able to opt-out by visiting http://www.aboutads.info/ or http://networkadvertising.org/choices/ , or if you are located in the EU, http://www.youronlinechoices.eu/.

 

  • Information Collected from Third Party Companies. We may receive Personal and/or Anonymous Data about you from companies that provide our Services or companies that offer their products and/or services to us such as your location data.  These third party companies may supply us with Personal Data.  We may add this information to the information we have already collected from you via our Site in order to improve the Services we provide.
  1. Use of Your Personal Data
  • General Use.In general, Personal Data you submit to us is used either to respond to requests that you make, or to aid us in serving you better.  We use your Personal Data in the following ways to:
  • facilitate the creation of and secure your Account on our network;
  • identify you as a user in our system;
  • provide improved administration of our Site and Services;
  • provide the Services you request;
  • improve the quality of experience when you interact with our Site and Services;
  • send you a welcome e-mail to verify ownership of the e-mail address provided when your Account was created;
  • send you administrative e-mail notifications, such as security or support and maintenance advisories; and
  • send newsletters, surveys, offers, and other promotional materials related to our Services and for other marketing purposes of Company.

 

  • User Testimonials and Feedback. We often receive testimonials and comments from users who have had positive experiences with our Services.  We occasionally publish such content.  When we publish this content, we may identify our users by their first and last name and may also indicate their profession.  We obtain the user’s consent prior to posting his or her name along with the testimonial.  If you make any comments on a blog or forum associated with any third party site, you should be aware that any Personal Data you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages.  We are not responsible for the personally identifiable information you choose to submit in these blogs and forums.
  • Creation of Anonymous Data.We may create Anonymous Data records from Personal Data by excluding information (such as your name) that makes the data personally identifiable to you.  We use this Anonymous Data to analyze request and usage patterns so that we may enhance the content of our Services and improve Site navigation.  We reserve the right to use Anonymous Data and aggregated and other de-identified information for any purpose and disclose Anonymous Data to third parties in our sole discretion.
  1. Disclosure of Your Personal Data.We disclose your Personal Data as described below and as described elsewhere in this Privacy Policy.
  • Third Parties Designated by You.When you use the Services, the Personal Data you provide will be shared with the third parties that you designate to receive such information, including other websites. Depending on the type of access you grant to such third parties, they may also be permitted to edit the information you have provided to us and to designate others to access and edit such information.  You may change your settings at any time as to who has access to your information by going to your account settings and changing your publishing options.
  • We will share your Personal Data with other Users solely for the purpose of providing the Services.
  • Third Party Service Providers.We may share your Personal Data with third party service providers to:  provide you with the Services that we offer you through our Site; to conduct quality assurance testing; to facilitate creation of accounts; to provide technical support; and/or to provide other services to the Company.  These third party service providers are required not to use your Personal Data other than to provide the services requested by Company.
  • Affiliates. We may share some or all of your Personal Data with our parent company, subsidiaries, joint ventures, or other companies under a common control (“Affiliates”), in which case we will require our Affiliates to honor this Privacy Policy. 
  • Corporate Restructuring.We may share some or all of your Personal Data in connection with or during negotiation of any merger, financing, acquisition or dissolution transaction or proceeding involving sale, transfer, divestiture, or disclosure of all or a portion of our business or assets.  In the event of an insolvency, bankruptcy, or receivership, Personal Data may also be transferred as a business asset. If another company acquires our company, business, or assets, that company will possess the Personal Data collected by us and will assume the rights and obligations regarding your Personal Data as described in this Privacy Policy.
  • Social Networking Sites.Some of our Applications and Services may enable you to post content to Social Networking Sites (“SNSs”) (e.g., Facebook or Twitter).  If you choose to do this, we will provide information to such SNSs in accordance with your elections.  You acknowledge and agree that you are solely responsible for your use of those websites and that it is your responsibility to review the terms of use and privacy policy of the third party provider of such SNSs.  We will not be responsible or liable for: (i) the availability or accuracy of such SNSs; (ii) the content, products or services on or availability of such SNSs; or (iii) your use of any such SNSs.
  • Disclosure to Third Party Companies.We may enter into agreements with companies that provide our Services by way of a co-branded or private-labeled website or companies that offer their products and/or services on our website (“Third Party Companies”). A Third Party Company may want access to Personal Data that we collect from its customers.  AS A RESULT, WE MAY PROVIDE YOUR PERSONAL DATA TO A THIRD PARTY COMPANY.  BECAUSE WE DO NOT CONTROL THE PRIVACY PRACTICES OF THESE THIRD PARTY COMPANIES, YOU SHOULD READ AND UNDERSTAND THEIR PRIVACY POLICIES.

NOTICE TO CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS

(AS PROVIDED BY CALIFORNIA CIVIL CODE SECTION 1798.83)

A CALIFORNIA RESIDENT WHO HAS PROVIDED PERSONAL INFORMATION TO A BUSINESS WITH WHOM HE/SHE HAS ESTABLISHED A BUSINESS RELATIONSHIP FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES (A “CALIFORNIA CUSTOMER”) MAY REQUEST INFORMATION ABOUT WHETHER THE BUSINESS HAS DISCLOSED PERSONAL INFORMATION TO ANY THIRD PARTIES FOR THE THIRD PARTIES’ DIRECT MARKETING PURPOSES.  IN GENERAL, IF THE BUSINESS HAS MADE SUCH A DISCLOSURE OF PERSONAL INFORMATION, UPON RECEIPT OF A REQUEST BY A CALIFORNIA CUSTOMER, THE BUSINESS IS REQUIRED TO PROVIDE A LIST OF ALL THIRD PARTIES TO WHOM PERSONAL INFORMATION WAS DISCLOSED IN THE PRECEDING CALENDAR YEAR, AS WELL AS A LIST OF THE CATEGORIES OF PERSONAL INFORMATION THAT WERE DISCLOSED.  CALIFORNIA CUSTOMERS MAY REQUEST FURTHER INFORMATION ABOUT OUR COMPLIANCE WITH THIS LAW BY E-MAILING legal@ying.com.  PLEASE NOTE THAT WE ARE REQUIRED TO RESPOND TO ONE REQUEST PER CALIFORNIA CUSTOMER EACH YEAR AND WE ARE NOT REQUIRED TO RESPOND TO REQUESTS MADE BY MEANS OTHER THAN THROUGH THIS E-MAIL ADDRESS.

  • Public Profile.Certain portions of the information you provide to us may also be displayed in the public areas of the Site.  You are solely responsible for applying the appropriate level of access to information you provide to be displayed in the public areas of the Site.  If you do not choose, the system may default to its most permissive setting.  Your photos, posts, and other content you post to the Site are also meant for public consumption.  We may display this content on the Site and further distribute it to a wider audience through third party sites and services.  Once displayed on publicly viewable web pages, that information can be collected and used by others.  We cannot control who reads your postings or what other users may do with the information that you voluntarily post, so it is very important that you do not put Personal Data in your posts.  Once you have posted information publicly, while you will still be able to edit and delete it on the Site, you will not be able to edit or delete such information cached, collected, and stored elsewhere by others (e.g., search engines). 
  • Protected Health Information. Any content that you post to the Site may not contain Protected Health information (PHI) as defined under HIPAA. Examples of PHI include biometric identifiers, information your doctors and health care providers put in your medical record, conversations with your doctor about your care or treatment or payment history if that information can be linked to you as an individual.
  • Other Disclosures. Regardless of any choices you make regarding your Personal Data (as described below), Company may disclose Personal Data if it believes in good faith that such disclosure is necessary (a) in connection with any legal investigation; (b) to comply with relevant laws or to respond to subpoenas or warrants served on Company; (c) to protect or defend the rights or property of Company or users of the Site or Services; and/or (d) to investigate or assist in preventing any violation or potential violation of the law, this Privacy Policy, or our Terms of Use.
  1. Third Party Websites. Our Site may contain links to third party websites.  When you click on a link to any other website or location, you will leave our Site and go to another site, and another entity may collect Personal Data or Anonymous Data from you.  We have no control over, do not review, and cannot be responsible for, these outside websites or their content.  Please be aware that the terms of this Privacy Policy do not apply to these outside websites or content, or to any collection of your Personal Data after you click on links to such outside websites.  We encourage you to read the privacy policies of every website you visit.  The links to third party websites or locations are for your convenience and do not signify our endorsement of such third parties or their products, content or websites.
  2. Your Choices Regarding Information. You have several choices regarding the use of information on our Service:
  • Email Communications.We will periodically send you free newsletters and e-mails that directly promote the use of our Site or Services.  When you receive newsletters or promotional communications from us, you may indicate a preference to stop receiving further communications from us and you will have the opportunity to “opt-out” by following the unsubscribe instructions provided in the e-mail you receive or by contacting us directly (please see contact information below). Despite your indicated e-mail preferences, we may send you service related communications, including notices of any updates to our Terms of Use or Privacy Policy.
  • If you decide at any time that you no longer wish to accept Cookies from our Service for any of the purposes described above, then you can instruct your browser, by changing its settings, to stop accepting Cookies or to prompt you before accepting a Cookie from the websites you visit. Consult your browser’s technical information. If you do not accept Cookies, however, you may not be able to use all portions of the Service or all functionality of the Service. If you have any questions about how to disable or modify Cookies, please let us know at the contact information provided below.
  • Changing or Deleting Your Personal Data. All users may review, update, correct or delete the Personal Data in their user account by editing their Account via the Services.  If you completely delete all of your Personal Data, then your user account may become deactivated.  We will use commercially reasonable efforts to honor your request.  We may retain an archived copy of your records as required by law or for legitimate business purposes. 
  • You can stop all collection of information by the Application by uninstalling the Application.  You may use the standard uninstall processes as may be available as part of your mobile device or via the mobile application marketplace or network.  To serve ads in our Application where Cookie technology is not available, the Company hashes users’ device ID.  Users may choose to reset or opt out of anonymous IDs at any time.  If users choose to opt out, ads delivered to the Application by ad serving technology will not be served on an anonymous ID. 
  1. Security of Credit Card and Bank Account Information.For online payments and/or Automated Clearing House (ACH) payouts, we use the payment services of Shopify (https://www.shopify.com/?ref=out-of-the-sandbox). We do not process, record or maintain your credit card or bank account information.  For more information on how payments are handled, or to understand the data security and privacy afforded such information, please refer to Shopify’s Privacy Policy available at https://www.shopify.com/legal/privacy.
  2. Changes to This Privacy Policy.This Privacy Policy is subject to occasional revision, and if we make any material changes in the way we use your Personal Data, we will notify you by sending you an e-mail to the last e-mail address you provided to us and/or by prominently posting notice of the changes on our Site.  Any changes to this Privacy Policy will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you or thirty (30) calendar days following our posting of notice of the changes on our Site.  These changes will be effective immediately for new users of our Service.  Please note that at all times you are responsible for updating your Personal Data to provide us with your most current e-mail address.  In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice.  If you do not wish to permit changes in our use of your Personal Data, you must notify us prior to the effective date of the changes that you wish to deactivate your Account with us.  Continued use of our Site or Service, following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.

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