Terms of Service
Last updated: June 11, 2020
IMPORTANT: PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS OF USE (“TERMS”). THEY CONTAIN AN ARBITRATION AGREEMENT, CERTAIN WAIVERS, LIMITATIONS ON LIABILITY AND OTHER PROVISIONS THAT MAY AFFECT YOUR LEGAL RIGHTS.
These Terms cover your use of and access to the websites, products, applications, tools and features (collectively, the “Services”) provided by TouchPoint Studio, Inc. (“TPS”, “we” or “us”). By using these Services in any way, you agree to and accept the Terms. You also understand and consent to TPS’s Privacy Policy, which is incorporated into, and part of, this agreement (“Agreement”). Our Privacy Policy describes how we collect, use and share information when using the Services.
The Services are not intended to be used by, or targeted to, anyone under the age of 13 years old. You must be at least 13 years old to use the Services. If you are at least 13 years old but not yet 18 years old (or the legal age of majority if different in your jurisdiction), then you must review these Terms with your parent or guardian and they must understand and agree to these terms in order for you to use the Services. If you are using the Services for an organization, you’re agreeing to this Agreement on behalf of that organization, and represent and warrant that you can do so. If you don’t agree to all the terms in this Agreement, you may not use or access the Services.
By accepting these Terms, you understand and agree that you are waiving your right to resolve any dispute through other processes that could be available to you, such as court actions or administrative proceedings. It also means that you are waiving your rights to a trial by jury or to combine your dispute with others in a class action.
1. User Accounts and Account Security
To use the Services, you may be required to create an account (“Account”). In consideration of use of the Service, you agree to maintain and update true, accurate, current and complete Account information. If you provide any information that is untrue, inaccurate, not current or incomplete, or if TPS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your Account and refuse any and all current or future use of the Service or any portion thereof.
You are responsible for maintaining the security of your Account and for all activities that occur or actions taken under the Account. You agree to immediately notify us in writing of any unauthorized uses of the Account or any other breaches of security. We will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will we be liable, in any way, for any of your acts or omissions or those of any third party, including damages of any kind incurred as a result of such acts or omissions.
2. Rights to User Content
Users of the Services may provide us with content, including without limitation text, photos, images, audio, video, code and any other materials (“User Content”). TPS does not claim ownership of your User Content, however, by using the Services, you grant TPS a non-exclusive, worldwide, perpetual, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Services.
3. User Responsibilities and Obligations
You represent that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions to legally use, share, display, transfer and license your User Content via the Services. If we use your User Content in the ways contemplated in this Agreement, you represent that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights or any other intellectual property or proprietary rights. Content on the Services may be protected by others’ intellectual property or other rights, so please don’t copy, upload, download or share content unless you have the right to do so.
By using the Service, you may be exposed to content that is offensive, indecent or objectionable. Under no circumstances will we be liable for your User Content or the content of any third party, including, but not limited to, for any errors or omissions in your User Content, or for any loss or damage of any kind incurred as a result of the use of any User Content posted, transmitted or otherwise made available via the Service. You acknowledge that we do not pre-screen User Content, but that we shall have the right (but not the obligation) to refuse, move or delete any User Content that is available via the Service. We shall also have the right to remove any User Content that violates these Terms or is otherwise objectionable in our sole discretion. You must evaluate, and bear all risks associated with, the use of any User Content. You may not rely on any User Content created by us. You acknowledge and agree that we may preserve User Content and may also disclose User Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce these Terms; (c) respond to claims that any User Content violates the rights of third-parties; or (d) protect our rights, property, or personal safety and those of our users and the public.
You may use the Services to create or publish website, mobile applications and other products or services (“Your Properties”), and Your Properties may have their own visitors and users (“End Users”). You understand and agree that Your Properties and your End Users are your responsibility, and you’re solely responsible for compliance with any laws or regulations related to Your Properties and your End Users, including without limitation the posting of your own privacy policy. We’re not liable for, and won’t provide you with any legal advice regarding, Your Properties or your End Users.
4. Third Party Services and Sites, No Implied Endorsement
The Services may contain links to third party sites. When you access third party sites, you do so at your own risk. We don’t control and aren’t liable for those sites. These third party sites may have their own terms and policies, and your use of them will be governed by those terms and policies. You also agree that we may, at any time and in our sole discretion, and without any notice to you, suspend, disable access to or remove any third party services. We’re not liable to you for any such suspension, disabling or removal, including without limitation for any loss of profits, revenue, data, goodwill or other intangible losses you may experience as a result thereof (except where prohibited by law).
5. Intellectual Property
The Services are protected by copyright, trademark and other US and foreign laws. These Terms don’t grant you any right, title or interest in the Services, our trademarks, logos or other brand features or intellectual property, or others’ content in the Services. You agree not to change, translate or otherwise create derivative works of the Services.
Some of the software used in the Services may be offered under an open source license that we may make available to you. There may be provisions in the open source license that override some of these Terms.
6. Our Rights
We reserve these rights, which we may exercise at any time and in our sole discretion, and without liability or notice to you (except where prohibited by law): (a) we may change the Services and their functionality; (b) we may restrict access to or use of parts or all of the Services; (c) we may suspend or discontinue parts or all of the Services; (d) we may terminate, suspend or restrict your access to or use of parts or all of the Services; (e) we may terminate, suspend or restrict access to your Account or Your Properties; and (f) we may change our eligibility criteria to use the Services (and if such eligibility criteria changes are prohibited by law where you live, we may revoke your right to use the Services in that jurisdiction).
Sometimes, ownership of an Account or site is disputed between one or more parties, such as a business and its employee, or a web designer and their client. We reserve the right, at any time and in our sole discretion, and without notice to you, to determine rightful Account or site ownership and to transfer an Account or site to the rightful owner. If we can’t reasonably determine the rightful owner, we reserve the right to suspend an Account or site until the disputing parties reach a resolution. We also may request documentation, such as a government-issued photo ID, a credit card invoice or a business license, to help determine the rightful owner.
7. Privacy
Our Privacy Policy explains how we collect, use and share your and your End Users’ information. By using the Services, you agree to our collection, use and sharing of information as set forth in the Privacy Policy.
8. Paid Services and Fees
Access to certain portions of the Services may require a fee payment (“Paid Services”). Paid Services will remain in effect until cancelled or terminated in accordance with this Agreement. You may cancel Paid Services at any time via the Services or by contacting Customer Care. If you don’t pay for Paid Services on time, we reserve the right to suspend or cancel your access to the Paid Services.
All fees are exclusive of applicable federal, state, local or other taxes (“Taxes”). You are responsible for all applicable Taxes, and we’ll charge Taxes in addition to the fees for the Services when required to do so. If you’re exempt from Taxes, you must provide us with a valid tax exemption certificate (we reserve the right to determine whether a certificate is valid). Tax exemption will only apply from and after the date we receive such certificate.
To ensure uninterrupted service, we’ll automatically bill you for certain Paid Services from the date you submit your initial payment and on each renewal period thereafter until cancellation. At the time of renewal, we will automatically charge you the applicable amount using the payment method you have on file with us.
While you may cancel any Paid Services at any time, you won’t be issued a refund except in our sole discretion, or if legally required.
We may change our fees at any time. When applicable, we’ll give you advance notice of these fee changes via the Services. New fees will not apply retroactively. If you don’t agree with the fee changes, you have the right to reject the change by cancelling the applicable Paid Service before your next payment date.
If you contact your bank or credit card company to decline, chargeback or otherwise reverse the charge of any payable fees to us (“Chargeback”), we may automatically terminate your Account. If you have questions about a payment made to us, we encourage you to contact Customer Care before filing a Chargeback. We reserve our right to dispute any Chargeback.
9. Term and Termination
This Agreement will remain in effect until terminated by either you or us. To terminate this Agreement, you may contact Customer Care or simply stop using the Services at any time. We reserve the right to suspend or terminate the Services at any time at our sole discretion and without notice. All sections of this Agreement that by their nature should survive termination shall survive termination.
10. Warranty Disclaimers
To the fullest extent permitted by law, TPS makes no warranties, either express or implied, about the Services. The Services are provided “as is.” TPS also disclaims any warranties of merchantability, fitness for a particular purpose and non-infringement. No advice or information, whether oral or written, obtained by you from TPS shall create any warranty. TPS makes no warranty or representation that the Services will: (a) be timely, uninterrupted or error-free; (b) meet your requirements or expectations; or (c) be free from viruses or other harmful components.
11. Limitation of Liability
To the fullest extent permitted by law, in no event will TPS be liable with respect to any claims arising out of or related to the Services or this Agreement for: (a) any indirect, special, incidental, exemplary, punitive or consequential damages; (b) any loss of profits, revenue, data, goodwill or other intangible losses; (c) any damages related to your access to, use of or inability to access or use the Services or any portion thereof, including without limitation interruption of use or cessation or modification of any aspect of the Services; (d) any damages related to loss or corruption of any content or data, including without limitation, User Content; (e) any User Content or other conduct or content of any user or third party using the Services, including without limitation defamatory, offensive or unlawful conduct or content; or (f) any third party sites accessed via the Services. These limitations apply to any theory of liability, whether based on warranty, contract, tort, negligence, strict liability or any other legal theory, whether or not TPS has been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed its essential purpose. To the fullest extent permitted by law, in no event shall the aggregate liability of TPS for all claims arising out of or related to the Services and this Agreement exceed the greater of twenty dollars ($20) or the amounts paid by you to TPS in the twelve (12) months immediately preceding the event that gave rise to such claim.
12. Exclusions and Limitations
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES AS SET FORTH IN SECTION 11. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTION 11 MAY NOT APPLY TO YOU.
13. Indemnification
To the fullest extent permitted by law, you agree to indemnify and hold harmless TPS from and against all damages, losses and expenses of any kind (including without limitation reasonable attorneys’ fees and costs) arising out of or related to: (a) your breach of this Agreement; (b) your User Content, and Your Properties; (c) any claims from your End Users; and (d) your violation of any law or regulation or the rights of any third party.
14. Dispute Resolution
We want to address your concerns or issues before filing a claim against TPS. Please contact us at Customer Care. We’ll contact you by email to informally resolve the dispute. You or TPS may start a formal dispute resolution process if a dispute is not resolved within 10 business days of your submission.
YOU MAY ONLY RESOLVE DISPUTES WITH US ON AN INDIVIDUAL BASIS AND YOU WILL NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION (E.G., CLASS ACTION, CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR CONSOLIDATION WITH OTHER ARBITRATIONS).
Any claim relating to these Terms that is not resolved through our informal process, or as set forth below, will be settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with JAMS Rules. The arbitration will take place in Seattle, Washington, in the English language, and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding arising from these Terms will be entitled to costs and attorneys’ fees. If any part of these Terms is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Service, or to enforce intellectual property rights (e.g., copyright, trademark, trade secret, or patent rights) without first engaging in our informal dispute resolution process or arbitration. In the event this agreement to arbitrate does not apply to you or your claim, any judicial proceeding will be brought in the federal or state courts of King County, Washington. You and TPS agree to submit to the personal and exclusive jurisdiction of the courts in Seattle, Washington. REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUR OF OR RELATED TO USE OF THE SERVICE OR THESE TERMS MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
15. General
This Agreement constitutes the entire agreement between you and TPS regarding the subject matter of this Agreement, and supersedes and replaces any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of this Agreement. This Agreement creates no third party beneficiary rights. You and TPS agree to submit to the personal and exclusive jurisdiction of the courts located within Seattle, Washington. Our failure to enforce any provision of this Agreement is not a waiver of our right to do so later. If any provision of this Agreement is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under this Agreement, and any such attempt will be void. We may assign our rights under this Agreement to any of our affiliates or subsidiaries, or to any successor in interest of any business associated with the Services. We may modify this Agreement from time to time, and will always post the most current version on our site. If a modification meaningfully reduces your rights, we’ll notify you (by, for example, sending you an email or displaying a prominent notice within the Services). The notice will designate a reasonable period after which the new terms will take effect. Modifications will never apply retroactively. By continuing to use or access the Services after any modifications come into effect, you agree to be bound by the modified Agreement. If you disagree with our changes, then you should stop using the Services.