Terms and Conditions
Last updated: August 1, 2015
- TOUCHPOINTPLUS LOYALTY, PAYMENT, FEEDBACK, OFFERS SERVICE OVERVIEW. The Service may allow users to pay, join loyalty programs, redeem offers and provide feedback at businesses, including restaurants and bars,that are owned and operated by third parties (each an “Establishment”). The Service may allow users to search Establishments, loyalty balance, e-receipts, feedback and offers. TouchpointPlus or an Establishment may send users an email or mobile message that confirms a loyalty balance, e-receipt, offer, or feedback. By using the Services, you agree to receive such confirmation emails or messages. • Third Party Establishments. You acknowledge and agree that the Digital Bill Folio (“DBF”) is a tool that enables you to make purchases and to settle, pay for or close (“close out”) a check, bill, tab, owed payment or other transaction, whether individually or as a “split” transaction with other users (each a “Transaction”), with Establishments. You acknowledge that all Transactions are between you and the Establishments and that TouchpointPlus is not a party to such Transactions. TouchpointPlus is not responsible for examining or evaluating the quality, or any other aspect of such products or services of any Establishment and will not have any liability or responsibility to you or any other person therefor. Any Establishment that allows you to use the DBF to close out a Transaction retains the right to settle your payment should you fail to properly close out your Transaction either as a result of your failure to use the DBF to pay for the payment or if the DBF does not properly pay such payment. You acknowledge that, should you dispute any charge that appears on your credit or debit card statement related to your use of the DBF to pay for a Transaction in an Establishment, any chargeback for such charge shall apply to such Establishment and that we will not have any liability to you.
- PAYMENT VENDORS. TouchpointPlus is a technology provider. It is not a bank, credit union, payment processor or other financial institution. Transactions are processed via an Establishment’s payment processor and/or point of sale (“POS”) system vendor (each a “Payment Vendor”). By processing a Transaction via the DBF, you authorize an Establishment’s Payment Vendor to charge your credit card or other payment method. Transactions processed via the DBF may also be subject to the terms and conditions of the applicable Payment Vendor.
- MINIMUM GRATUITY. If you use the DBF to close out a Transaction in an Establishment, or if an Establishment closes out a Transaction on your behalf, the Establishment, not TouchpointPlus, may add a required minimum tip or gratuity to the Transaction. You acknowledge that TouchpointPlus does not determine or mandate any such tip or gratuity amount and you hereby agree to pay any minimum tip or gratuity as a condition to entering into the Transaction via the DBF.
- REFUNDS. You acknowledge and agree that TouchpointPlus does not provide refunds via the DBF. You hereby agree to seek any refunds of Transactions directly from the Establishments or your credit card company.
- COMMUNICATIONS. You consent to receive communications, including commercial communications (whether by phone, email or text) from TouchpointPlus and our third party partners, which may include Establishments and other third parties, including without limitation brands. You acknowledge and agree that your primary phone numbers and email addresses and other information may be used for the purpose of initiating commercial messages. Your consent to receipt of such messages is not, and will not be, a condition to any purchase. If at any time you change your mind regarding your consent to such messages, you must email firstname.lastname@example.org. You may opt out of receiving messages that are primarily commercial in nature, but in order to stop receiving all messages from TouchpointPlus (including messages related to Transactions and your account), you will need to terminate your account. If SMS messages are sent or received, standard text messaging rates or other carrier charges may apply to such use.
- PUSH NOTIFICATIONS. TouchpointPlus may send you “push notifications” if your device supports such communications. By utilizing the DBF you “opt-in” to receive these push notifications, including notifications that contain commercial messages from TouchpointPlus and our third party partners. Should you wish to stop receiving push, you may turn off these notifications through the applicable settings in your account or on your device.
- ELIGIBILITY. You must be at least eighteen (18) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least eighteen (18) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
- PROHIBITED CONDUCT. BY USING THE SERVICE YOU AGREE NOT TO:
- use the Service for any illegal purpose, or in violation of any local, state, national, or international law;
- violate, or encourage others to violate, the rights of third parties, including by infringing or misappropriating third party intellectual property rights;
- post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate;
- interfere with security-related features of the Service, including without limitation by (i) disabling or circumventing features that prevent or limit use or copying of any content, or (ii) reverse engineering or otherwise attempting to discover the source code of the Service or any part thereof except to the extent that such activity is expressly permitted by applicable law;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including without limitation by (i) uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, (ii) making unsolicited offers or advertisements to other users of the Service, (iii) attempting to collect, personal information about users or third parties without their consent; or (iv) interfering with or disrupting any networks, equipment, or servers connected to or used to provide the Service, or violating the regulations, policies, or procedures of such networks, equipment, or servers;
- perform any fraudulent activity including impersonating any person or entity, claiming false affiliations, accessing the Service accounts of others without permission, or falsifying your age or date of birth;
- sell or otherwise transfer the access granted herein or any Materials (as defined in Section 10 below) or any right or ability to view, access, or use any Materials; or
- attempt to do any of the foregoing in this Section 5, or assist or permit any persons in engaging or attempting to engage in any of the activities described in this Section 5.
- THIRD-PARTY SERVICES AND LINKED WEBSITES. TouchpointPlus may, now or in the future, provide tools through the Service that enable you to export information to third party services, including through features that allow you to link your account on TouchpointPlus with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information. The Service may also contain links to third-party websites. Such linked websites are not under our control, and we are not responsible for their content.
- TERMINATION OF USE; DISCONTINUATION AND MODIFICATION OF THE SERVICE. If you violate any provision of these Terms, your permission to use the Service will terminate automatically. Additionally, TouchpointPlus, in its sole discretion may terminate any account you may have created on the Service or suspend or terminate your access to the Service at any time, including suspending your ability to pay and participate in loyalty programs through the Service, with or without notice. We also reserve the right to modify or discontinue the Service at any time (including, without limitation, by limiting or discontinuing certain features of the Service) without notice to you. We will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
- Additional Terms. Your use of the Service is subject to any and all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to on the Service (the “Additional Terms”), such as end-user license agreements for any downloadable applications that we may offer, or rules applicable to particular features or content on the Service, subject to Section 9 below. All such Additional Terms are hereby incorporated by reference into, and made a part of, these Terms.
- CHANGES TO THE TERMS. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. In the event that a change to these Terms materially modifies your rights or obligations, we will make reasonable efforts to notify you of such change. We may provide notice through a pop-up or banner within the Service, by sending an email to any address you may have used in connection with the Service, or through other mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, we may require you to provide consent by accepting the changed Terms. If we require your acceptance of the changed Terms, changes are effective only after your acceptance. If you do not accept the changed Terms, we may terminate your access to and use of the Service. All other changes are effective upon publication of the changed Terms. Disputes arising under these Terms will be resolved in accordance with the Terms in effect that the time the dispute arose.
- OWNERSHIP; PROPRIETARY RIGHTS. The Service is owned and operated by TouchpointPlus. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (the “Materials”) provided by TouchpointPlus are protected by all relevant intellectual property and proprietary rights and applicable laws. All Materials contained in the Service are the property of TouchpointPlus or our third-party licensors. Except as expressly authorized by TouchpointPlus, you may not make use of the Materials. TouchpointPlus reserves all rights to the Materials not granted expressly in these Terms.
- INDEMNITY. You agree that you will be responsible for your use of the Service, and you agree to defend, indemnify, and hold harmless TouchpointPlus and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “TouchpointPlus Entities”) from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys’ fees and costs, arising out of or in any way connected with (i) your access to, use of, or alleged use of the Service; (ii) your violation of these Terms or any representation, warranty, or agreements referenced herein, or any applicable law or regulation; (iii) your violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (and without limiting your indemnification obligations with respect to such matter), and in such case, you agree to cooperate with our defense of such claim.
- DISCLAIMERS; NO WARRANTIESTHE SERVICE AND ALL INFORMATION, SERVICES AND MATERIALS ACCESSED THROUGH THE SERVICE, INCLUDING, WITHOUT LIMITATION, RESTAURANT MENU AND LOYALTY INFORMATION, AND ALL OTHER MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSSIBLE BY APPLICABLE LAW, THE TOUCHPOINTPLUS ENTITIES SPECIFICALLY (BUT WITHOUT LIMITATION) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING BUT NOT LIMITED TO (i) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (ii) ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE TOUCHPOINTPLUS ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PART THEREOF, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE ON OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE TOUCHPOINTPLUS ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ALL DAMAGES THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALINGS WITH OTHER SERVICE USERS, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM USED IN CONNECTION WITH THE SERVICE) OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF SUCH MATERIALS OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- LIMITATION OF LIABILITYIN NO EVENT WILL THE TOUCHPOINTPLUS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO (i) YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, (ii) THE PERFORMANCE OR NON-PERFORMANCE OF ANY RESTAURANT INCLUDING A RESTAURANT’S FAILURE TO HONOR AN ORDER OR LOYALTY OFFER, OR (iv) A VISIT TO A RESTAURANT IN CONNECTION WITH AN ORDER MADE THOUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE TOUCHPOINTPLUS ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT ANY THIRD PARTY THAT REFERS YOU TO THE SITE THROUGH ANY OTHER MEANS IS NOT LIABLE TO YOU FOR ANY REASON WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES OR LOSS ASSOCIATED WITH THE USE OF THE SERVICE OR THE SITE. TOUCHPOINTPLUS IS NOT THE AGENT OF ANY THIRD PARTY RESTAURANT WITH WHICH YOU MAY MAKE A RESERVATION. YOU AGREE THAT THE AGGREGATE LIABILITY OF THE TOUCHPOINTPLUS ENTITIES TO YOU FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING TO THE USE OF OR ANY INABILITY TO USE THE SERVICE (INCLUDING ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE) OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF (i) THE AMOUNTS YOU HAVE PAID TO TOUCHPOINTPLUS FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM OR (ii) $100. THIS SECTION DOES NOT EXCLUDE OR LIMIT TOUCHPOINTPLUS LIABILITY FOR FRAUD, FOR DEATH, OR PERSONAL INJURY RESULTING FROM TOUCHPOINTPLUS’S NEGLIGENCE, OR FOR ANY OTHER LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 13 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- DISPUTES BETWEEN YOU AND AM ESTABLISHMENT OR OTHER USER. You are solely responsible for your interactions and Transactions with Establishments or other users of the DBF. You hereby agree to look solely to such Establishments and other users for any claim, damage or liability associated with any Transaction commissioned via the DBF and expressly waive and release TouchpointPlus from any and all claims, damages and liabilities arising out of any act or omission of any Establishment, other user or third party.
- GOVERNING LAW. To the extent permitted by applicable law, these Terms shall be governed by the laws of the State of California without regard to conflict of law principles. To the extent permitted by applicable law, you and TouchpointPlus agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for the purpose of litigating all such disputes.
- CONTACT INFORMATION. The services hereunder are offered by TouchpointPlus Restaurant Innovations, Inc., located at 200 Sheridan Ave #207 Palo Alto, CA 94306. You may contact us by sending correspondence to the foregoing address or by emailing us at support@TouchpointPlus.com. If you are a California resident, you may have these Terms mailed to you electronically by sending a letter to the foregoing address with your electronic mail address and a request for these Terms. You can also call us under: 1 (800) 992-9540