Last Updated: February 6, 2019
***THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION***
1. Revisions to This Agreement
We may revise and update this Agreement from time to time and will post the updated Agreement to the Site. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of this Site will constitute your agreement to any new provisions within the revised Agreement.
2. Your License to Access the Site
All written content (including copy, images, graphics, videos, whitepapers, POVs, newsletters, blog content) prepared and posted by Intouch and the Site design, layout, look, appearance, and graphics on the Site, as well as the trademarks, service marks, and logos contained on the Site (“Intouch Content”) are owned by or licensed to Intouch and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Intouch reserves all rights not expressly granted in, and to, the Site and the Intouch Content.
Except as otherwise provided in this Agreement, no part of the Site and no Intouch Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use, without our prior express written consent.
On the condition that you comply with all your obligations under this Agreement, Intouch grants you a limited, revocable, non-exclusive, non-transferable license to access and use the Site. Any use of the Site in excess of this license is strictly prohibited and constitutes a violation of this Agreement, which may result in the termination of your right to access and use the Site.
Your access to the Site is provided on a temporary basis with no guarantee for future availability. We reserve the right to withdraw or modify any content or services we provide on the Site without notice.
3. Restrictions on Your Use of the Site
You agree that when using the Site, you will not:
- Delete, modify, or attempt to change or alter any of the Intouch Content or notices on the Site;
- Introduce into the Site any virus, rogue program, time bomb, drop dead device, ransomware, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Site or to otherwise harm other users, Intouch Content, or any third parties;
- Use the Site to commit fraud or conduct other unlawful activities;
- Publish, access, or attempt to access any other person’s personal information without permission;
- Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Site is based;
- Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on the Site for any reason;
- Use any Intouch Content made available through the Site in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Submit any content or communications through or relating to the Site that violates any rights of a third party, including copyright, trademark, patent, rights of publicity, or other proprietary right of any party;
- Submit any content or communications through the Site that is unlawful, harmful, hateful, threatening, abusive, violent, profane, discriminatory, prejudicial, disparaging, fraudulent, inaccurate, misleading, dangerous, offensive, indecent, harassing, threatening, intimidating, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, or otherwise objectionable;
- Decrypt, transfer, frame, display, or translate (except translations for personal use) any part of the Site;
- Connect to or access any Intouch computer system or network without authorization;
- Use the information in the Site to create or sell similar services; or
- Use the Site for the purpose of soliciting, selling, or offering services, merchandise, or products.
Intouch may suspend or terminate, in whole or in part, your access to the Site if you violate the terms and conditions set forth in this Section.
4. Your Content and Suggestions
- License to Your Content. The Site may include features that involve information that you upload, submit, or send through the Site (“Your Content”). By submitting Your Content to the Site, you grant Intouch a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform Your Content. You represent and warrant that you have the necessary rights to Your Content, including the right to assign or grant a license to your rights in this Agreement. Please do not submit Your Content to the Site if do not wish to grant us the rights set forth in this Section 4(A).
- Your Suggestions. We welcome your comments regarding the Site, Intouch Content, and our services. In addition to the license you grant to us in Section 4(A) for Your Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials to us in connection with or related to the Site and Intouch’s services (including any related technology), whether you send such information or materials to us through the Site or through a separate communication channel, you grant us a non-exclusive, perpetual, royalty-free, irrevocable right to use, disclose, reproduce, modify, license, transfer, and otherwise distribute, and exploit any such information or materials in any manner. Please do not send us such information or materials, if you do not wish to grant us the rights set forth in this Section 4(B).
5. Third Party Websites
The Site may include or provide links to other websites on the Internet that we do not control. These other websites may provide opinions, recommendations, or other information from various individuals, organizations, or companies. We are not responsible for the nature, quality, or accuracy of the content or opinions expressed on such websites and we do not investigate, monitor, or check them for quality, accuracy, or completeness. Inclusion of any linked website on the Site does not imply or express an approval or endorsement of the linked website by us or of any of the content, opinions, treatments, information, products, or services provided on these websites, even if we receive a referral fee in connection with your use of such third-party websites.
6. Your Privacy
7. Disclaimer of Warranties
THE SITE IS PROVIDED “AS IS”. WE DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE SITE; (ii) ANY ADVICE YOU GLEAN FROM THE Site WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE SITE. WE DO NOT PROMISE THAT THE Site WILL BE UNINTERRUPTED OR WILL BE ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. THERE IS NO WARRANTY OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. NO ADDITIONAL STATEMENTS OUTSIDE THE TERMS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE, WHETHER MADE BY OUR EMPLOYEES OR OTHERWISE, IS A WARRANTY OR PROMISE BY US AND WE HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY SUCH STATEMENTS. WE WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY, OR FAILURE TO STORE ANY COMMUNICATION OR CONTENT.
8. Limitation of Liability
We are not responsible for any damages to you or anyone filing suit on your behalf for any reason.
INTOUCH AND ITS LICENSORS, PARENTS, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ASSIGNEES, OR SUCCESSORS-IN-INTEREST WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, CLAIMS, DEMANDS, LOST PROFITS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE, RELATING TO THIS AGREEMENT, YOUR USE OF THE SITE OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE SITE AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF INTOUCH.
YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SITE WILL BE TO STOP USING THE SITE.
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF INTOUCH, ITS SUPPLIERS, LICENSORS, PARENT, OR AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AND ASSIGNEES OR SUCCESSORS-IN-INTEREST, FOR ANY CLAIM WHATSOEVER RELATING IN ANY WAY TO THIS AGREEMENT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED THE LESSER OF ONE THOUSAND U.S. DOLLARS ($1000.00 USD) or your direct provable damages.
IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO THE CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE WHICH, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST INTOUCH.
YOU WILL HOLD HARMLESS, INDEMNIFY, AND DEFEND INTOUCH, ITS SUBSIDIARIES, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES (COLLECTIVELY, “INTOUCH PARTIES”) FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING ANY AND ALL LIABILITIES, DAMAGES, LOSSES, COSTS, EXPENSES, AND REASONABLE ATTORNEYS’ FEES ARISING THEREFROM) RELATING TO ANY ACTION OR PROCEEDING BROUGHT BY A THIRD PARTY AGAINST ANY ONE OR MORE OF THE INTOUCH PARTIES (I) ALLEGING INJURY, DAMAGE, OR LOSS RESULTING FROM YOUR USE OF THE Site; (II) ALLEGING THAT CONTENT YOU SUBMITTED THROUGH OR RELATING TO THE Site INFRINGES A COPYRIGHT, PATENT, OR TRADEMARK OR MISAPPROPRIATES A TRADE SECRET OF A THIRD-PARTY; (III) RELATED TO ANY ACT OR OMISSION BY YOU WHICH IS A BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT; AND (IV) YOUR USE OF INFORMATION OBTAINED THROUGH THE Site.
You will have the right to defend and compromise such claim at your expense for the benefit of the Intouch Parties; provided, however, you will not have the right to obligate the Intouch Parties in any respect in connection with any such settlement without the prior written consent of the indemnified party. Notwithstanding the foregoing, if you fail to assume your obligation to defend, the Intouch Parties may do so to protect their interests and you will reimburse all costs incurred by the Intouch Parties in connection with such defense.
10. Choice of Law
This Agreement and the rights of the Parties hereunder will be governed by and construed in accordance with the Laws of the State of Kansas, exclusive of conflict or choice of law rules. The Parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive Law, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
11. Dispute Resolution
- Binding Mutual Arbitration. Any dispute, claim or controversy in connection with, arising out of or relating to membership in the Program, this Agreement or the breach, termination, enforcement, interpretation or validity of this Agreement, including, but not limited to, the determination of the scope or applicability of this agreement to arbitrate (a “Dispute”), will be determined by arbitration in Overland Park, Kansas before a single arbitrator. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with AAA Consumer Arbitration Rules. Judgment on the award may be entered in any court having jurisdiction. This provision will not preclude Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
- Conduct of Arbitration. The arbitration will be commenced by the claimant party filing a demand for arbitration with the administrator of AAA and serving the demand on the opposing party. Within thirty (30) calendar days of the date the demand for arbitration is filed, the Parties will select an arbitrator by following the AAA Consumer Arbitration Rules’ appointment procedures. Except as may be required by law, neither Party nor the arbitrator may disclose the existence, content or results of any arbitration under this Agreement without the prior written consent of both Parties. The arbitrator’s award will be in writing accompanied by a reasoned opinion and a written statement of the essential findings and conclusions on which the award is based.
- Costs. The arbitrator will determine how the costs and expenses of the arbitration will be allocated between the Parties, and may award attorneys’ fees.
- Limitation of Liability. In any arbitration arising out of or related to this Agreement, the arbitrator may not award any incidental, indirect, or consequential damages, including damages for lost profits or any punitive or exemplary damages.
- Arbitration is on an Individual Basis Only; Class Action Waiver. The parties agree to arbitrate solely on an individual basis, and that this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the arbitrator’s power to rule on his or her own jurisdiction and the validity or enforceability of the agreement to arbitrate, the arbitrator has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section will remain in force.
12. Miscellaneous Terms
- Complete Agreement. This Agreement constitutes the entire agreement between you and Intouch relating to your use of, and access to, this Site and supersedes any prior or contemporaneous agreements or representations. This Agreement may not be amended except as set forth in Section 1 of this Agreement.
- If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible. Where there is a conflict between the terms in a Specific Agreement and the terms in this Agreement, the conflicting terms in Specific Agreement shall take precedence.
- Descriptive headings contained in this Agreement are for convenience only and shall not control or affect the meaning or construction of any of this Agreement.
- No Waivers. Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision.
- No Assignments and Transfers. No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
- Language of the Agreement. Although this Agreement may be translated into other languages, the English language version of this Agreement shall control in any dispute between the parties.
- No Third Party Beneficiaries. Nothing in this Agreement will confer upon any person, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
- You can provide any notices to us under this Agreement by e-mail or mail using the contact information provided in Section 13. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing Intouch with up-to-date contact information, which you may do by updating your account information through the Site or by sending a message to us. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
13. Contact Us
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail firstname.lastname@example.org.
You may also send us mail at the following address: Intouch Solutions, 7045 College Boulevard, #300, Overland Park, KS 66211, United States.