TouchPoint Terms of Use

Last Updated: June 25^th, 2022

 

1. Acceptance of Terms

These Terms of Use (these “Terms”) govern your access to websites, the mobile applications, and related services operated by or on behalf of VMAS Solutions, LLC dba The TouchPoint Solution (“TouchPoint” “we” or “us”). These Terms are important and affect your legal rights, so please read them carefully. Note these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.

 

By accessing or using thetouchpointsolution.com, our mobile applications (the “TouchPoint App”, “BLAST App”, “Thodian App”, collectively the “TouchPoint Apps”) ), and various related services (collectively, with the TouchPoint Apps, the “TouchPoint Services”), you agree to be bound by these Terms and all of the terms incorporated herein by reference.

 

You must be 13 years of age or older to use the TouchPoint Services. By accepting these Terms, you represent that you have the legal authority to do so, and that, if you have accepted these Terms on behalf of any person or entity, you represent that you have legal authority to do so and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms. If you do not agree to every provision of these Terms, you may not, and we do not authorize you to, access or use the TouchPoint Services or any features provided therein.

 

By accessing or using the TouchPoint Services, you represent and warrant that you have not been previously suspended or removed from the TouchPoint Services or engaged in any activity that could result in suspension or removal from the TouchPoint Services.

 

You should not construe TouchPoint’s publication of any content found on the TouchPoint Services as an endorsement by TouchPoint of the views expressed therein, or any warranty or guarantee of any strategy, recommendation, treatment, or action made by the author of such content.

 

We may revise these Terms at any time for any reason and may provide you notice of these changes by any reasonable means, including through the TouchPoint Services. You can determine when we last updated these Terms by referring to the “Last Updated” legend at the top of these Terms. Except to the extent that your express consent to any revised Terms is required under applicable law, by continuing to access, browse or use the TouchPoint Services, you agree to any revised Terms. If you do not agree to any revised Terms, you may not and we do not authorize you to use the TouchPoint Services. We strongly recommend that you periodically visit this page to review these Terms.

 

2. User Registration

In order to access and use certain areas or features of the TouchPoint Services, you may need to provide certain information and/or answer certain questions. Each registration is for a single user only.

 

You agree to (a) provide accurate, current and complete information, (b) maintain and promptly update, as necessary, your information, (c) be responsible for the acts or omissions of any third party who has authority to access or use the TouchPoint Services on your behalf, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the TouchPoint Services. If you provide information that is untrue, inaccurate, not current or incomplete, we may suspend and/or terminate your current or future use of the TouchPoint Services.

 

By providing information and/or answering questions, you also consent to receive electronic communications from TouchPoint (e.g., via email or by posting notices to the TouchPoint Services). You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy.

 

We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

 

3. Right to Access and Use the TouchPoint Services and Content

 

You must provide all equipment necessary for you to connect to the TouchPoint Services, including but not limited to, a mobile device that is suitable to connect with and use our mobile applications.

 

Unless otherwise indicated in writing by us, the TouchPoint Services and all content and other materials contained therein, including, without limitation, any TouchPoint service mark or logo and all designs, text, graphics, pictures, information, data, software, other files and the selection and arrangement thereof (collectively, “Content”) are the property of TouchPoint or our licensors or users, as applicable, and are protected by U.S. and international copyright and other laws.

 

Subject to these Terms, you are hereby granted a limited personal, revocable, non-exclusive, non-transferable, non-sublicensable right to access, view and make personal, non-commercial use of the TouchPoint Services and Content. All rights not expressly granted herein are reserved. You do not acquire any ownership interest in the TouchPoint Services or Content under these Terms, or any other rights thereto other than to use the TouchPoint Services in accordance with the rights granted by, and subject to all terms, conditions and restrictions of these Terms.

 

You do not have any right to, and you shall not, directly or indirectly: (a) sell, resell or use commercially the TouchPoint Services or Content, (b) distribute, publicly perform or publicly display the TouchPoint Services or any Content, (c) modify or otherwise make any derivative uses of the TouchPoint Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than page caching) any portion of the TouchPoint Services or Content, except as expressly permitted by us, (f) use the TouchPoint Services to stalk, threaten, or otherwise violate the rights of others, including without limitation others’ privacy rights or rights of publicity; (g) interfere with the TouchPoint Services or servers or networks used in connection with the TouchPoint Services; or (h) use the TouchPoint Services or Content other than for their intended purposes.

 

Any use of the TouchPoint Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the right of access and use granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Except as expressly permitted herein, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of TouchPoint or any third party, whether by estoppel, implication or otherwise.

 

You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any Content and you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit any Content.

 

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the TouchPoint Services (or any features or parts thereof) at any time.

 

The TouchPoint logo, and any other TouchPoint product or service names, trademarks, logos, or other indicia that may appear on the TouchPoint Services, including but not limited to BLAST®, Thodian®, TouchPoint®, TouchPoints®, Better Living Through Neuroscience® (collectively “Marks”) are the property of TouchPoint or its subsidiaries, affiliates or third parties, and may not be copied, imitated or used, in whole or in part, without our prior written permission. Nothing contained in these Terms and/or the TouchPoint Services shall be construed as granting, by implication or otherwise, any license or right to use any such Marks without the prior written permission of TouchPoint or such third party that may own such Marks.

 

5. TouchPoint Privacy Policy

 

Our Privacy Policy describes how we handle the personal information you provide to us when you use the TouchPoint Services. For an explanation of our privacy practices, please visit our Privacy Policy located at: https://thetouchpointsolution.com/pages/privacy-policy-v2

 

6. User Content

 

You are solely responsible and liable for all data, information and other materials (“User Content”) that you submit, upload, post, e-mail or otherwise transmit (“Transmit”) in connection with the TouchPoint Services. In addition, we have no control over, and shall have no liability for, any damages resulting from the use (including without limitation, republication) or misuse by any third party of information made public through the TouchPoint Services. IF YOU CHOOSE TO SUBMIT TO US, OR OTHERWISE MAKE ANY USER CONTENT PUBLICLY AVAILABLE, YOU DO SO AT YOUR OWN RISK AND WE SHALL HAVE NO LIABILITY THEREFOR.

 

You are solely responsible for your interactions with other users of the TouchPoint Services 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.

 

You agree that you will not, and will not permit anyone else to, directly or indirectly: (a) Transmit any User Content that is unlawful, harmful, threatening, abusive, hateful, obscene, harassing, tortious, defamatory, libelous, slanderous, pornographic, profane, vulgar, offensive, lewd, invasive of another’s privacy or racially, ethnically or otherwise objectionable; (b) Transmit any User Content: (i) that you do not have the right to Transmit, under any law or contractual or fiduciary relationships, including, without limitation, any inside information or proprietary or confidential information; (ii) that infringes any patent, copyright, trademark or other intellectual property right or misappropriates any trade secret or right of privacy of any third-party; (iii) that constitutes unsolicited or unauthorized advertising or promotional materials, “spam,” “chain letters,” or pyramid schemes; or (iv) that contains any software routine, code, instruction or virus that is designed to disable, delete, modify, damage or erase software, hardware or data; or (c) forge headers or otherwise manipulate identifiers in order to disguise any User Content Transmitted through the TouchPoint Services.

Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the TouchPoint Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the TouchPoint Services at your sole cost and expense.

 

7. Rights in User Content

 

We do not claim any ownership interest in User Content. However, by uploading, posting or submitting User Content to the TouchPoint Services or to our pages or feeds on third-party social media platforms (e.g., TouchPoint’s Facebook page, LinkedIn page or Twitter feed), you hereby grant TouchPoint a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes. However, TouchPoint will only share personal information that you provide in accordance with our Privacy Policy.

 

You agree that TouchPoint may disclose or use any User Content for any purposes permitted under applicable law, including, but not limited to: (a) enforcing these Terms; (b) complying with any laws, regulations or rules of any federal, state or local government or agency; (c) responding to claims that any User Content violates the rights of third parties; or (d) protecting the rights or property of TouchPoint, its customers or the public.

 

8. Feedback
   

Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about TouchPoint, or the TouchPoint Services (collectively, “Feedback”). Feedback shall become the sole property of TouchPoint. TouchPoint shall own exclusive rights, including, without limitation, all intellectual property rights, in and to Feedback and shall be entitled to the unrestricted use and dissemination of Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

 

9. Fees and Purchase Terms

 

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 (e.g. 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 TouchPoint Services. Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and TouchPoint has no responsibility or liability for the same. By providing TouchPoint with your credit card number or PayPal account and associated payment information, you represent and warrant that you have authority to do so and you authorize TouchPoint to immediately charge you for all fees due and payable to TouchPoint hereunder with no additional notice or consent. 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 through the TouchPoint Services or by any other reasonable means. You may be charged local tax, if applicable.

 

TouchPoint uses Shopify as its third party service provider for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By making a purchase through the TouchPoint Services, you agree to be bound by Shopify’s Privacy Policy available at https://www.shopify.com/legal/privacy. You hereby consent 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 these Terms, including personal, financial, credit card payment, and transaction information.

 

Descriptions, images, references, features, content, specifications, products, prices, and availability of any TouchPoint products are subject to change without notice, and our current prices can be found on the TouchPoint 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 TouchPoint 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 TouchPoint 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.

 

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.

 

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 sent to the following address: The TouchPoint Solution, 8585 E Hartford Dr. Suite 105, Scottsdale, AZ 85255.

 

If for any reason you are not satisfied with a purchase you make through the TouchPoint Services, please see our return policy available at https://thetouchpointsolution.com/pages/returns-and-returns.   

 

10. Third-Party Sites

 

We have not reviewed all of the websites linked to the TouchPoint Services and are not responsible for the content of any third-party pages, any other websites linked to the TouchPoint Services, or any products or services offered by third parties. Nothing in the TouchPoint Services, including, without limitation, any links to other websites, should be construed as an endorsement by TouchPoint of any products, services or information of any other persons or companies. Your choice to access a link to any other website is at your own risk, and you agree to comply with all terms and conditions relating to such websites. TouchPoint reserves the right not to link, or to remove the link, to a particular website at any time.

 

Any links to third-party websites are provided as a convenience to you and are neither owned nor operated by TouchPoint. We have no control over these linked websites and make no representations or warranties with respect to these linked websites or third-party products or services. Your viewing and use of any third-party websites is at your sole discretion and risk.

 

11. Indemnification

You shall indemnify, hold harmless, and, at TouchPoint’s option, defend TouchPoint and its affiliates and subsidiaries from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees), incurred by TouchPoint resulting from any third-party claim, suit, action or proceeding relating to or arising from your use of the TouchPoint Services, any User Content, any Feedback you provide, any violation of these Terms by you, or any other act or omission by you, including your violation of any rights of another, arising from your use of the TouchPoint Services or any of its features. You further agree that TouchPoint shall have control of the defense or settlement of any third-party claims unless TouchPoint exercises its option to require you to defend TouchPoint. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and TouchPoint.

 

12. General Disclaimers

THE TOUCHPOINT SERVICES AND THE CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TOUCHPOINT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE TOUCHPOINT SERVICES; (B) CONTENT; (C) USER CONTENT; OR (D) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO OR FROM THE TOUCHPOINT SERVICES. TOUCHPOINT HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, THAT ANY RESULTS WILL BE ACHIEVED, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS.

 

TOUCHPOINT DOES NOT REPRESENT OR WARRANT THAT THE TOUCHPOINT SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE TOUCHPOINT SERVICES OR THE SERVERS THAT MAKE THE TOUCHPOINT SERVICES AVAILABLE ARE FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. TOUCHPOINT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE TOUCHPOINT SERVICES IS ACCURATE, COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE TOUCHPOINT SERVICES IS AT YOUR SOLE RISK. TOUCHPOINT DOES NOT WARRANT THAT YOUR USE OF THE TOUCHPOINT SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION. TOUCHPOINT SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION’S LAW IS APPLICABLE TO YOU AND THESE TERMS.

 

TOUCHPOINT DOES NOT PROVIDE MEDICAL OR OTHER LICENSED PROFESSIONAL ADVICE. ANY CONTENT ACCESSED THROUGH THE TOUCHPOINT SERVICES ARE FOR INFORMATIONAL PURPOSES ONLY AND ARE NOT INTENDED TO COVER ALL POSSIBLE USES, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS OR ADVERSE EFFECTS. THE TOUCHPOINT SERVICES ARE NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL ADVICE, DIAGNOSIS, OR TREATMENT.  THE CONTENT SHOULD NOT BE USED DURING A MEDCAL 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.

 

BY ACCESSING OR USING THE TOUCHPOINT SERVICES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE TOUCHPOINT SERVICES.

 

13. Limitation of Liability; Waiver

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TOUCHPOINT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE TOUCHPOINT SERVICES (INCLUDING, BUT NOT LIMITED TO, USER CONTENT AND LINKS TO THIRD-PARTY WEBSITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR SERVICE, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM TOUCHPOINT, OR FROM EVENTS BEYOND TOUCHPOINT’S REASONABLE CONTROL, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY, EVEN IF TOUCHPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

 

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF TOUCHPOINT ARISING OUT OF OR IN ANY WAY RELATED TO THE TOUCHPOINT SERVICES EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE TOUCHPOINT’S SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF.

 

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

 

14. Arbitration

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH TOUCHPOINT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

YOU AND TOUCHPOINT AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE TOUCHPOINT SERVICES SHALL BE FINALLY DECIDED BY BINDING ARBITRATION UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION GOVERNING CONSUMER DISPUTES.

 

Arbitration uses a single, neutral arbitrator to decide a dispute (instead of a judge or jury); arbitration allows for more limited discovery than in a court case; and the arbitration process and result is subject to very limited review by courts. In an arbitration you have the right, at your expense, to be represented by an attorney of your choosing. Arbitrators can award the same damages and relief under these Terms that a court can award under these Terms. You and TouchPoint agree that any in-person arbitral hearing would occur in the United States in the same county and state as your billing address. TouchPoint further agrees that your filing fee for an arbitration will be capped at the amount set by the American Arbitration Association. You agree that, by agreeing to these Terms, the U.S. Federal Arbitration Act governs the interpretation and enforcement of this provision, and that you and TouchPoint are each waiving the right to a trial by jury and/or to participate in a class action. This arbitration provision shall survive termination of these Terms and the termination of your use of the TouchPoint Services. Further, unless both you and TouchPoint agree otherwise, the arbitrator may not join or consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.

 

15. Class Action Waiver

 

REGARDLESS OF THE FORUM, YOU AND TOUCHPOINT AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

 

16. Termination

Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate your right to access or use the TouchPoint Services at any time and for any or no reason, and you acknowledge and agree that in such event we shall have no liability or obligation to you.

 

17. Governing Law and Jurisdiction

TouchPoint operates the TouchPoint Services from Arizona, U.S.A. These Terms and the transactions they contemplate, including without limitation their interpretation, construction, performance and enforcement, shall be governed by the laws of the State of Arizona, U.S.A., including its statutes of limitations, but without reference to conflict or choice of law provisions. The International Convention on the Sale of Goods, and other international treaties that are not mandatory with respect to contracts made and performed entirely in Arizona shall not apply.

 

18. Notice

All notices, demands, or consents given by you under these Terms will be in writing and will be deemed given when delivered to TouchPoint at the following contact: Attn: Legal Department, 13430 N Black Canyon Hwy Suite 250, Phoenix, AZ 85029 and hello@thetouchpointsolution.com Attn: Legal Dept. in subject line.  . Any notices to you may be made via either e-mail or postal mail to the address in TouchPoint’s records or via posting on the TouchPoint Services. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.

 

Persons with disabilities who need assistance accessing these Terms may contact us as provided for in this Section, and depending on your individual needs, we will grant reasonable requests to furnish these Terms in an alternative format.

 

19. Severability

If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

 

20. Procedure for Making Claims of Copyright Infringement

If you believe in good faith that any of the content on the TouchPoint Services infringes your copyright, please provide our copyright agent the following written information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of where the material that you claim is infringing is located on the TouchPoint Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the information in the notice is accurate and that you are the copyright owner, or are authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

 

TouchPoint’s copyright agent for notice of claims of copyright infringement can be reached as follows:

 

            The TouchPoint Solution
            Attn: Legal Department

Hello@thetouchpointsolution.com

 

21. App Marketplaces

 

The TouchPoint Apps will be majority deployed via the Apple AppStore and Android Marketplace. Use of the TouchPoint Apps are subject to terms and conditions imposed by the host environment, Apple Inc., and/or Google LLC, respectively. By using the TouchPoint Apps, you agree to reasonably cooperate with TouchPoint’s efforts to comply with such terms. These Terms conform to Apple’s App Store Terms of Service as of the effective date. These Terms are concluded between you and TouchPoint only, and not with Apple. Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.  TouchPoint, not Apple, is solely responsible for the TouchPoint Apps and the content thereof, and TouchPoint shall be responsible for addressing any claims relating to the TouchPoint Apps, including, but not limited to: (i) product liability claims; (ii) any claim that the TouchPoint Apps fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation. In the event of any third party claim that the TouchPoint Apps or your access and/or use of the TouchPoint Apps infringes that third party’s intellectual property rights, TouchPoint, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim. You represent and warrant that: (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the TouchPoint Apps. In the event of any failure of the TouchPoint Apps to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the TouchPoint Apps to you; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the TouchPoint Apps, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be TouchPoint’s sole responsibility.

 

22. Miscellaneous

The TouchPoint Services are hosted in the United States of America. If you are located outside of the United States of America and you contact us, please be advised that any information you provide to us will be transferred to the United States of America and that by submitting information, you explicitly authorize such transfer. These Terms constitute the entire agreement between you and TouchPoint relating to your access to and use of the TouchPoint Services. These Terms, and any rights granted hereunder, may not be transferred or assigned by you without the prior written consent of TouchPoint. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and TouchPoint’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.