2015 © All Rights Reserved. Privacy Policy | Terms of Use
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.
Please read the following terms and conditions (“Terms of Use”) carefully. These Terms of Use govern your access to and use of the Site, Services and TouchFirst Content (defined below) and set forth the legally binding terms for your use of the Site, Services and TouchFirst Content, whether or not you are a TouchFirst App User (defined below) or a visitor of the Site. A “TouchFirst App User” is a person who has downloaded and installed a copy of the TouchFirst Application.
SPECIAL NOTE TO TOUCHFIRST APP USERS: Without limiting any other terms of these Terms of Use, by using an SNS via the Services you understand and agree that TouchFirst, as an agent on your behalf, will access and store your SNS account information and content so that they are available to you through your use of the TouchFirst Application and you give TouchFirst permission to do so. You agree that any content that you submit to an SNS while using the Services may be stored by TouchFirst at your direction, although TouchFirst does not undertake any obligations to maintain such submissions.
Certain areas of the Site and Services (and your access to or use of TouchFirst Content) may have different terms and conditions posted or may require you to agree to and accept additional terms and conditions or to register for certain uses of the Site or Services. If there is a conflict between these Terms of Use and terms and conditions posted for a specific area of the Site, Services or TouchFirst Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, Services or TouchFirst Content.
YOU ACKNOWLEDGE AND AGREE THAT BY ACCESSING OR USING THE TouchFirst APPLICATION, SITE, OR SERVICES, BY DOWNLOADING THE TouchFirst APPLICATION TO ANY DEVICE OR POSTING OR ACCESSING ANY CONTENT ON THE SITE OR THROUGH THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF USE. IF YOU DO NOT AGREE TO THESE TERMS OF USE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SITE, SERVICES OR TouchFirst CONTENT.
Modification
TouchFirst reserves the right, in its sole discretion, to modify, discontinue or terminate the Site or Services or to modify these Terms of Use, at any time and without prior notice. If we modify these Terms of Use, we will post the modification on the Site or within the TouchFirst Application or otherwise provide you with notice of the modification. The date of most recent revision shall be noted at the beginning of these Terms of Use. By continuing to access or use the Site or Services (including any TouchFirst Application) after we have posted a modification to these Terms of Use or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Use. If the modified Terms of Use are not acceptable to you, your only recourse is to cease using the Site and Services. Notwithstanding the preceding sentences of this paragraph, no revisions to these Terms of Use will apply to any dispute between you and TouchFirst that arose prior to the date of such revision. These Terms of Use may only be modified in writing as set forth in this paragraph, and may not be modified orally.
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.
These Terms of Use do not authorize you to, and you may not, reproduce, distribute, publicly display, publicly perform, communicate to the public, make available, create derivative works of or otherwise use or exploit any Third Party Materials except as expressly permitted by the Application as authorized by TouchFirst, and the owners of such Third Party Materials may have the right to seek damages against you for any unauthorized use of their Third Party Materials.
Privacy
By using the Services you are subject to TouchFirst’s Privacy Policy located at TouchFirst.com/privacy, which is hereby incorporated into and made part of these Terms of Use. The Privacy Policy provides information and notices concerning TouchFirst’s collection and use of your personal information. If you have any questions about the TouchFirst Privacy Policy, then please contact TouchFirst at privacy@touchfirst.com.
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.
Ownership
The Site, Services, and TouchFirst Content are protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in these Terms of Use, TouchFirst and its licensors exclusively own all right, title and interest in and to the Site, Services, and TouchFirst Content, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services or TouchFirst Content.
TouchFirst claims no ownership interest in any Third Party Materials and expressly disclaims any liability concerning those materials.
TouchFirst Application License
License Grant. Subject to your compliance with the terms and conditions of these Terms of Use, TouchFirst grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to download and install a copy of the TouchFirst Application onto any authorized device you own and control, and run such copy of the TouchFirst Application solely for your personal, non-commercial use. Furthermore, with respect to any iTunes Store Sourced App (defined below) you will only use the iTunes Store Sourced App as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. TouchFirst reserves all rights in the TouchFirst Application not expressly granted to you in these Terms of Use.
Restrictions. Except as expressly specified in these Terms of Use, you may not (a) copy or modify the TouchFirst Application, including, but not limited to, adding new features or otherwise making adaptations that alter the functioning of the TouchFirst Application; (b) transfer, sell, rent, lease, distribute, sublicense or otherwise assign any rights to, or any portion of, the TouchFirst Application to any third party; or (c) make the functionality of the TouchFirst Application available to multiple users through any means, including, but not limited to, distribution of the TouchFirst Application or by uploading the TouchFirst Application to a network or file-sharing service or through any hosting, application services provider or any other type of service. The TouchFirst Application contains trade secrets, and in order to protect those secrets you agree not to disassemble, decompile or reverse engineer the TouchFirst Application, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition. You will comply with any technical restrictions in the TouchFirst Application that allow you to use the TouchFirst Application only in certain ways.
Updates and Upgrades; No Obligation. TouchFirst is not obligated to maintain or support the TouchFirst Application, to provide all or any specific content through the TouchFirst Application, or to provide you with updates, upgrades or services related thereto. You acknowledge that TouchFirst may from time to time in its sole discretion issue updates or upgrades to the TouchFirst Application, disable access to the TouchFirst Application for any period of time or permanently, and may automatically update or upgrade the version of the TouchFirst Application that you are using on your mobile device. You consent to such automatic updating or upgrading on your mobile device, and agree that the terms and conditions of these Terms of Use will apply to all such updates or upgrades. TouchFirst shall have no liability to you arising out of any unavailability of the TouchFirst Application.
Term and Termination. The license to the TouchFirst Application granted under these Terms of Use remains in effect for a period of 75 years, unless earlier terminated by you or TouchFirst in accordance with this provision. You may terminate the license at any time by destroying all copies of the TouchFirst Application in your possession or control. Without limiting any other terms of these Terms of Use, the license will automatically terminate without notice from TouchFirst if you breach any terms of these Terms of Use. Upon any termination of these Terms of Use, you must cease all use of the TouchFirst Application and promptly delete and destroy all copies, full or partial, of the TouchFirst Application.
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.
U.S. Government End Users. The TouchFirst Application and related documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the TouchFirst Application and related documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the TouchFirst Application and related documentation will be only those specified in these Terms of Use.
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.
User Content
By making available any User Content through the Site and Services, you hereby grant to TouchFirst a worldwide, non-exclusive, transferable, assignable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, publicly display, publicly perform, transmit, stream, broadcast, make available, communicate to the public, and otherwise use and exploit (collectively, “Use”) such User Content only on, through or by means of the Site and the Services. TouchFirst does not claim any ownership rights in any such User Content and nothing in these Terms of Use will be deemed to restrict any rights that you may have to Use any such User Content. Licenses granted with respect to any photographs, artwork or images uploaded by you will terminate within 30 days following your deletion of such User Content from the Services or the termination of your TouchFirst Account, but the license granted by you with respect to any other User Content, including, but not limited to, any comments regarding any aspect of the Services or communications with another user of the Services, will be perpetual and irrevocable. Notwithstanding the preceding sentence, you hereby acknowledge and agree that TouchFirst shall not be liable for any Uses of your User Content by any third party that had access to your User Content during the period in which your User Content was available on or through the Services.
You acknowledge and agree that you are solely responsible for all User Content that you make available through the Site or Services. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available through the Site or Services or you have all rights, licenses, consents, and releases that are necessary to grant to TouchFirst the rights in such User Content, as contemplated under these Terms of Use; (b) neither the User Content nor your accessing, posting, submission or transmittal of the User Content or TouchFirst’s Use of the User Content (or any portion thereof) on, through or by means of the Site and the Services will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation; and (c) no payments of any kind shall be due to any third party, whether a copyright owner or an agent thereof, for any Use made of the User Content (or any portion thereof) on, through or by means of the Site and the Services.
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.
Feedback
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 contactus@touchfirst.com. 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 are solely responsible for your interactions (including any disputes) with other users. You understand that TouchFirst does not in any way screen TouchFirst users. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Site and Services and disclosing personal information to other TouchFirst users. You agree to take reasonable precautions in all interactions with other TouchFirst users, particularly if you decide to communicate with TouchFirst user offline or meet them in person. Your use of the Site, Services, TouchFirst Content, and any other content made available through the Site or Services is at your sole risk and discretion, and TouchFirst hereby disclaims any and all liability to you or any third party relating thereto. TouchFirst reserves the right to contact TouchFirst users, in compliance with applicable law, in order to evaluate compliance with the rules and policies in these Terms of Use. You will cooperate fully with TouchFirst to investigate any suspected unlawful, fraudulent or improper activity via the Services.
General Prohibitions
You agree not to do any of the following while using the Site, Services or TouchFirst Content:
TouchFirst will have the right to investigate and prosecute violations of any of the above, including intellectual property rights infringement and Site and Services security issues, to the fullest extent of the law. TouchFirst may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Use or the rights of any third party.
You acknowledge that TouchFirst has no obligation to monitor your access to or use of the Site, Services or TouchFirst Content or to review or edit any User Content or Third Party Materials, but has the right to do so for the purpose of operating the Site and Services, to ensure your compliance with these Terms of Use, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. TouchFirst reserves the right, at any time and without prior notice, to remove or disable access to any TouchFirst Content, Third Party Materials, and any User Content, that TouchFirst, in its sole discretion, considers to be in violation of these Terms of Use or otherwise harmful to the Site or Services.
Sweepstakes and Contests
TouchFirst may operate sweepstakes, contests and similar promotions (collectively, “Promotions”) through the Site and Services. You should carefully review the rules (e.g., the “Official Rules”) of each Promotion in which you participate through the Site and Service, as they may contain additional important information about TouchFirst rights to and ownership of the submissions you make as part of the Promotions and as a result of your participation in such Promotion. To the extent that the terms and conditions of such Official Rules conflict with these Terms of Use, the terms and conditions of such Official Rules will control.
Termination
Without limiting other remedies, TouchFirst may at any time suspend, terminate, or refuse to provide you with access to the Site or Services. In addition, TouchFirst may notify authorities or take any actions it deems appropriate, without notice to you, if TouchFirst suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (a) failed to comply with any provision of these Terms of Use or any policies or rules established by TouchFirst; or (b) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, TouchFirst users, TouchFirst or any other third parties or the Site or Services.
Without limiting any other terms of these Terms of Use, you may stop using the Site and Services at any time.
After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Use will immediately cease. TouchFirst will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER CONTENT) THAT YOU HAVE SUBMITTED ON THE SITE OR VIA THE SERVICES WILL NO LONGER BE ACCESSIBLE BY YOU VIA THE SERVICES.
Any suspension, termination or cancellation will not affect your obligations to TouchFirst under these Terms of Use (including, without limitation, proprietary rights and ownership, indemnification, and limitation of liability), which by their sense and context are intended to survive and do survive such suspension, termination or cancellation.
Disclaimers
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.
Indemnity
You agree to defend, indemnify, and hold TouchFirst, its officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with User Content, your access to or use of the Site, Services or TouchFirst Content, or your violation of these Terms of Use.
Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, SERVICES, INCLUDING THE TouchFirst APPLICATION, AND CONTENT THEREIN REMAINS WITH YOU. NEITHER TouchFirst NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, SERVICES OR TouchFirst CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE OR FROM THE USE OF OR INABILITY TO USE THE SITE, SERVICES OR CONTENT THEREIN, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TouchFirst HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU SPECIFICALLY ACKNOWLEDGE THAT TouchFirst IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS, THIRD PARTIES OR THIRD PARTY MATERIALS, AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
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.
Dispute Resolution
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.
Decision of the Arbitrator. Barring extraordinary circumstances, the arbitrator shall issue his or her decision within 120 days from the date the arbitrator is appointed. The arbitrator may extend this time limit for an additional 30 days in the interests of justice. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. The award of the arbitrator shall be in writing and shall include a statement setting forth the reasons for the disposition of any claim. The arbitrator shall apply the laws of the State of California in conducting the arbitration. You acknowledge that these terms and your use of the Service evidences a transaction involving interstate commerce. The United States Federal Arbitration Act shall govern the interpretation, enforcement, and proceedings pursuant to the Mandatory Arbitration clause in these Terms of Use.
These Terms of Use and your use of the Service shall be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the Mandatory Arbitration clause is deemed to be null and void, then all disputes arising between you and TouchFirst under these Terms of Use shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and you and TouchFirst hereby submit to the personal jurisdiction and venue of these courts.
Equitable Relief. The foregoing provisions of this Dispute Resolution section do not apply to any claim in which TouchFirst seeks equitable relief of any kind. You acknowledge that, in the event of a breach of these Terms of Use by TouchFirst or any third party, the damage or harm, if any, caused to you will not entitle you to seek injunctive or other equitable relief against TouchFirst, including with respect to any User Content, and your only remedy shall be for monetary damages, subject to the limitations of liability set forth in these Terms of Use.
Claims. You and TouchFirst agree that, notwithstanding any other rights the party may have under law or equity, any cause of action arising out of or related to these Terms of Use or the Site or the Services, excluding a claim for indemnification, must commence within one year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
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.
Entire Agreement
These Terms of Use constitute the entire and exclusive understanding and agreement between TouchFirst and you regarding the Site, Services and TouchFirst Content, and these Terms of Use supersede and replace any and all prior oral or written understandings or agreements between TouchFirst and you regarding the Site, Services, and TouchFirst Content.
Assignment
You may not assign or transfer these Terms of Use, by operation of law or otherwise, without TouchFirst’s prior written consent. Any attempt by you to assign or transfer these Terms of Use, without such consent, will be null and of no effect. TouchFirst may freely assign these Terms of Use. Subject to the foregoing, these Terms of Use will bind and inure to the benefit of the parties, their successors, and permitted assigns.
Notices
You consent to the use of: (a) electronic means to complete these Terms of Use and to deliver any notices or other communications permitted or required hereunder; and (b) electronic records to store information related to these Terms of Use or your use of the Site or Services. Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms of Use, will be in writing and given by TouchFirst (x) via email if applicable (in each case to the address that you provide); or (y) by posting to the Site or Services. For notices made by e-mail, the date of transmission will be deemed the date on which such notice is transmitted.
General
These Terms of Use represent the entire agreement between you and TouchFirst relating to the subject matter herein and supersede all previous communications, representations, understandings, and agreements, either oral or written, between you and TouchFirst with respect to the subject matter hereof. These Terms of Use shall not be modified except in a writing, signed by both parties, or by a change to these Terms of Use made by TouchFirst as authorized in these Terms of Use. The heading references used in these Terms of Use are for convenience purposes only, do not constitute a part of these Terms of Use, and shall not be deemed to limit or affect any of the provisions hereof. The failure of TouchFirst to enforce any right or provision of these Terms of Use will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of TouchFirst. Except as expressly set forth in these Terms of Use, the exercise by either party of any of its remedies under these Terms of Use will be without prejudice to its other remedies under these Terms of Use or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms of Use will remain in full force and effect. There are no third-party beneficiaries of these Terms of Use unless provided expressly by this agreement. You agree that no joint venture, partnership, employment, or agency relationship exists between you and TouchFirst as a result of these Terms of Use or your use of the Site or the Services. You further acknowledge that by submitting User Content, no confidential, fiduciary, contractually implied or other relationship is created between you and TouchFirst other than pursuant to these Terms of Use.
Disclosure
The services hereunder are offered by TouchFirst, LLC., located at 24310 Moulton Pkwy Ste. O, #113, Laguna Hills, CA 92637. You may contact us by sending correspondence to the foregoing address or by emailing us at contactus@touchfirst.com. If you are a California resident, you may have these Terms of Use mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms of Use.
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