Last Updated: May 22, 2012
TouchFirst, LLC. (“TouchFirst”, or “we”) provides our users the ability to view material, from either social networking services (“SNSs”) or the Internet generally, in an innovative way. The services offered by TouchFirst include our software applications (including any updates, new versions or new releases thereof), including, but not limited to, applications for mobile, desktop & tablet devices such as Microsoft's Windows 8 and Windows Phone (each a “TouchFirst Application”), our website located at www.touchfirst.com (the “Site”) and any other services offered by TouchFirst in connection with our TouchFirst Application or the Site (any and all of the foregoing are referred to as the “Services”). The Services do not include any SNS or other third-party service you interact with via the Services.
Eligibility and Access
The Site, Services and TouchFirst Content are intended solely for persons who are 13 or older. Any access to or use of the Site, Services and TouchFirst Content by anyone under 13 is expressly prohibited. By accessing or using the Site, Services and TouchFirst Content you represent and warrant that you are 18 or older or, if younger than 18, are at least 13 or older and have a parent’s or guardian’s permission to access or use the Site, Services and TouchFirst Content.
In order to use certain current or future portions or functionalities of the Site, Services or TouchFirst Content, you may be required to register for a user name and password (a “TouchFirst Account”). TouchFirst reserves the right to reject any user name selected by you and/or revoke your right to any previously selected user name and give such user name to any other person or entity in TouchFirst’s sole discretion and without any liability to you. You are responsible for maintaining the confidentiality of your TouchFirst Account credentials in order to use the Services, and are fully responsible for all activities that occur through the use of your credentials. You should use a robust password to protect your TouchFirst Account through a combination of upper and lower case letters, numbers and other characters. You agree to notify TouchFirst immediately of any unauthorized use of your TouchFirst Account credentials or any other breach of security with respect to your TouchFirst Account. TouchFirst will not be liable for any loss or damage arising from unauthorized use of your TouchFirst Account credentials prior to you notifying TouchFirst of such unauthorized use or loss of your credentials.
You agree to provide accurate, current, complete, and non-misleading information to TouchFirst in connection with your creation of a TouchFirst Account and during your use of the Site and Services. TouchFirst reserves the right to suspend or terminate your access to the Site and Services if any information provided to TouchFirst in connection with your TouchFirst Account or use of the Site and Services proves to be inaccurate, not current, incomplete or misleading. If messages sent to an email address provided by you and associated to your TouchFirst Account are returned as undeliverable, TouchFirst reserves the right to terminate your account immediately with or without notice to you and without any liability to you or any third party. You agree that you will not use the TouchFirst Application to access or use third party services to which you do not have the right to access. If you are not a TouchFirst App User, then you may be permitted to browse all areas of the Site or use the parts of the Services that are not limited to TouchFirst App Users only, except as otherwise limited by the functionalities of the Site or Services (e.g., a TouchFirst Account may be required for access to certain Services).
Third Party Materials and Agreements
You may be able to access, review, display or use third party services, resources, content or information (“Third Party Materials”) via the Services. By using the TouchFirst Application to find material on the Internet, you instruct TouchFirst to present portions of the data sources that you have selected. You acknowledge sole responsibility for and assume all risk arising from your access to, use of or reliance upon any such Third Party Materials, and TouchFirst disclaims any liability that you may incur arising from your access to, use of or reliance upon such Third Party Materials or User Content (defined below) via a TouchFirst Application. You acknowledge and agree that TouchFirst: (a) is not responsible for the availability or accuracy of such Third Party Materials or the products or services on or available from such Third Party Materials; (b) has no liability to you or any third party for any harm, injuries or losses suffered as a result of your access to or use of such Third Party Materials; and (c) does not make any promises to remove Third Party Materials from being accessed through the Services. Your ability to access or link to Third Party Materials or third party services (including any SNS) does not imply any endorsement by TouchFirst of Third Party Materials or any such third party services.
Certain types of content are made available through the Site and Services. “TouchFirst Content” means TouchFirst proprietary content, including but not limited to, TouchFirst trademarks and logos, made available through the Site and Services, excluding Third Party Materials and User Content. “User Content” means the text, data, graphics, images, photos, video or audiovisual content, hypertext links and any other content that a TouchFirst user provides directly to TouchFirst via the Site and Services, as applicable.
TouchFirst claims no ownership interest in any Third Party Materials and expressly disclaims any liability concerning those materials.
TouchFirst Application License
Proprietary Rights. The copy of the TouchFirst Application is licensed, not sold, to you. You agree that TouchFirst and its licensors own all right, title and interest in and to the TouchFirst Application, including all intellectual property rights therein, and that TouchFirst retains ownership of all copies of the TouchFirst Application even after installation on your mobile device. The TouchFirst Application is protected by United States copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the TouchFirst Application as delivered to you.
Export Control. You may not use, export, re-export, import, or transfer the TouchFirst Application except as authorized by United States law, the laws of the jurisdiction in which you obtained the TouchFirst Application, and any other applicable Laws. In particular, but without limitation, the TouchFirst Application may not be exported or re-exported: (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the TouchFirst Application, you represent and warrant that you are not located in any such country or on any such list. You also will not use the TouchFirst Application for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.
You agree to the Microsoft Windows Phone Terms of Service if you download a TouchFirst Application from the Microsoft Marketplace.
You agree to the Microsoft Windows 8 Terms of Service if you download a TouchFirst Application from the Microsoft App Store.
Copyrighted Materials: No Infringing Use
You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. TouchFirst has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users or access to the Site and Services to users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders. Please see the TouchFirst Copyright Policy www.TouchFirst.com/copyright.aspx for further information.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Site and Services (“Feedback”). You may submit Feedback by emailing us at firstname.lastname@example.org. You acknowledge and agree that all Feedback will be the sole and exclusive property of TouchFirst and you hereby irrevocably assign to TouchFirst and agree to irrevocably assign to TouchFirst all of your right, title, and interest in and to all Feedback, including without limitation, all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At TouchFirst’s request and expense, you will execute documents and take such further acts as TouchFirst may reasonably request to assist TouchFirst to acquire, perfect, and maintain its intellectual property rights and other legal protections for the Feedback.
Interactions between Users
You agree not to do any of the following while using the Site, Services or TouchFirst Content:
Sweepstakes and Contests
THE SITE, SERVICES, TouchFirst CONTENT, THIRD PARTY MATERIALS AND USER CONTENT ARE PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, TouchFirst EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.TouchFirst MAKES NO WARRANTY THAT THE SITE, SERVICES, TouchFirst CONTENT, THIRD PARTY MATERIALS OR USER CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TouchFirst OR THROUGH THE SITE, SERVICES, TouchFirst CONTENT OR USER CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
Limitation of Liability
IN NO EVENT WILL TouchFirst’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT THEREIN EXCEED ONE HUNDRED U.S. DOLLARS ($100). THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TouchFirst AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
Proprietary Rights Notices
All trademarks, service marks, logos, trade names, and any other proprietary designations of TouchFirst used herein are trademarks or registered trademarks of TouchFirst. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
Mandatory Arbitration. Please read this carefully. It affects your rights. YOU AND TouchFirst AND EACH OF OUR RESPECTIVE SUBSIDIARIES, AFFILIATES, PREDECESSORS IN INTEREST, SUCCESSORS, AND PERMITTED ASSIGNS AGREE TO ARBITRATION (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT), AS THE EXCLUSIVE FORM OF DISPUTE RESOLUTION EXCEPT AS PROVIDED FOR BELOW, FOR ALL DISPUTES AND CLAIMS ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICES. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Please visit www.adr.org for more information about arbitration.
Commencing Arbitration. A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of intent to arbitrate (a “Notice”), or, in the absence of a mailing address provided by you to TouchFirst, to you via any other method available to TouchFirst, including via e-mail. The Notice to TouchFirst should be addressed to: TouchFirst, LLC., 24310 Moulton Pkwy Ste. O, #113, Laguna Hills, CA 92637, Attn: Chief Executive Officer (the “Arbitration Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (the “Demand”). If you and TouchFirst do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or TouchFirst may commence an arbitration proceeding as set forth below or file a claim in small claims court. THE ARBITRATION SHALL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) IN ACCORDANCE WITH ITS COMMERCIAL ARBITRATION RULES AND THE SUPPLEMENTARY PROCEDURES FOR CONSUMER RELATED DISPUTES (the “Rules”), AS MODIFIED BY THIS AGREEMENT. The Rules and AAA forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. If you are required to pay a filing fee to commence an arbitration against TouchFirst, then TouchFirst will promptly reimburse you for your confirmed payment of the filing fee upon TouchFirst’s receipt of Notice at the Arbitration Notice Address that you have commenced arbitration along with a receipt evidencing payment of the filing fee, unless your Demand is equal to or greater than $1,000, in which case you are solely responsible for the payment of the filing fee.
Arbitration Proceeding. The arbitration shall be conducted in the English language. A single independent and impartial arbitrator shall be appointed pursuant to the Rules, as modified herein. You and TouchFirst agree to comply with the following rules, which are intended to streamline the dispute resolution process and reduce the costs and burdens on the parties: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the party initiating the arbitration; (ii) the arbitration shall not require any personal appearance by the parties or witnesses unless otherwise mutually agreed in writing by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
No Class Actions. YOU AND TouchFirst AGREE THAT YOU AND TouchFirst 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. FURTHER, YOU AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OF MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, AND THAT IF THIS SPECIFIC PROVISO IS FOUND TO BE UNENFORCEABLE, THEN THE ENTIRETY OF THIS MANDATORY ARBITRATION SECTION SHALL BE NULL AND VOID.
Improperly Filed Claims. All claims you bring against TouchFirst must be resolved in accordance with this Dispute Resolution section. All claims filed or brought contrary to this Dispute Resolution section shall be considered improperly filed. Should you file a claim contrary to this Dispute Resolution section, TouchFirst may recover attorneys’ fees and costs up to $5,000, provided that TouchFirst has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.