Terms and Conditions
Last Revised: May 25, 2018
(This policy has been updated to comply with the terms of GDPR)
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.
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).
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 email@example.com.
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 above. You 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.
[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.
- 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.
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.
- 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.
- 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.
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.
- 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.
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.
- 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.
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.
- 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.
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 firstname.lastname@example.org 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.
- 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 email@example.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.