Last updated: February 17, 2017
These General Terms of Service (“General Terms”) are a legal agreement between you (“you,” “your”) and Touchpoint Restaurant Innovations, Inc. (“Touchpoint,” “we,” “our” or “us”) and govern your use of Touchpoint’s services, including mobile applications, websites, software, hardware, and other products and services (collectively, the “Services”). By using any of the Services on behalf of a business that business accepts these terms and agrees to these General Terms and any policies referenced within (“Policies”), including terms that limit our liability (see Section 18) and require individual arbitration for any potential legal dispute (see Section 20). You also agree to any additional terms specific to Third Party Services you use (see Section 24). You should read all of our terms carefully.
2. Touchpoint Account Registration
You must create an account with us (a “Touchpoint Account”) to use the Services. During registration we will ask for business information, including name, address, mobile phone number, and email. Some products may require submitting a VAR Sheet or billing information such as a payment card or ACH information. You must provide accurate and complete information in response to our questions, and keep that information current. You are fully responsible for all activity that occurs under your Touchpoint Account, including for any actions taken by persons to whom you have granted access to the Touchpoint Account. We reserve the right to suspend or terminate the Touchpoint Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
3. Revisions, Disclosures and Notices
We may amend the General Terms, any Additional Terms, or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted, but will not apply retroactively. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 19) that arose before the changes will be governed by the General Terms, Additional Terms or Policies in place when the Dispute arose.
We may provide disclosures and notices required by law and other information about your Touchpoint Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Touchpoint Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered.
You may not, nor may you permit any third party, directly or indirectly, to:
a. access or monitor any material or information on any Touchpoint system using any robot, spider,
scraper, headless browser or other automated means;
b. except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;
c. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;
d. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Touchpoint;
e. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;
f. transfer any rights granted to you under these General Terms;
g. use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices
designed to cause physical harm;
h. use the Services for any illegal activity or goods or in any way that exposes you, other Touchpoint
users, our partners, or Touchpoint to harm; or
i. otherwise use the Services except as expressly allowed under these General Terms and applicable
If we reasonably suspect that your Touchpoint Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Touchpoint Account, and any of your transactions with law enforcement.
5. Your Content
The Services may include functionality for uploading or providing photos, logos, loyalty programs, promotions, menus and other materials or information (“Content”).
You may be able to use the Services to create, send and manage marketing messages to your customers (“Buyers”) who have elected to receive offers and updates from Touchpoint merchants they frequent or who provided their contact information to you directly. Touchpoint is not involved in your marketing messaging to Buyers, except for providing the Services that facilitate the creation, delivery and management of messages by you to Buyers. You are responsible for marketing messages that you send using the Services, the Content of those messages, and honoring any terms included in such messages, even if your Touchpoint Account is closed, suspended, or terminated. You may not use the Services to send unsolicited bulk messages. If you offer a loyalty program to your Buyers through the Services, you agree to make available to your Buyers any terms and conditions applicable to your loyalty program. You are responsible for ensuring that your marketing messages, loyalty program and any associated rewards are compliant with applicable federal, state, or local laws, including laws governing special offers such as rebates and coupons.
You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to use, reproduce, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media in order to provide and promote the Services. You retain all rights in your Content, subject to the rights you granted to us in these General Terms. You may modify or remove your Content via your Touchpoint Account or by terminating your Touchpoint Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; or (f) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Touchpoint, its affiliates or its customers to harm or liability of any nature. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.
6. Transaction Information
The Services may collect Buyer contact details, e-receipt, feedback, offer redemptions, tip, payment, order and related information (“Transaction Information”). You may use the Services to view and access shared Transaction Information, as made available in the Services. You understand that that Services utilizing Transaction Information may incur additional fees from Touchpoint (see section 11 “Paid Services”) or from third parties such as payment processors.
Buyers may be able to use the Services, including e-receipts, to submit feedback to you about their recent customer experience. When Buyers submit feedback using the Services, we share that feedback with you and may allow you to send responses to Buyers who have enabled replies to their feedback. You may not use the feedback features of the Services: (a) to send responses to Buyers who have not enabled replies to their feedback, (b) to send Buyers marketing messages, requests for information, or other communications unrelated to their feedback, or (c) to send abusive, harassing, excessive or objectionable messages. If you do not wish to receive feedback you may configure this in the Touchpoint portal.
7. Payment and Buyer Information
Payments are processed by a third party payment gateway service. The minimum necessary transaction information including merchant identification, payment total, and payment card information is encrypted and sent directly to the payment gateway.
We do not sell or share bill detail information, such as line item details, with any third parties, including the payment gateway service. We do not sell your Content to any third party.
We may provide Buyers with the ability to receive e-receipts but do not sell or share Buyer contact information with any third parties. Furthermore we always honor Buyer’s data privacy preferences subject to the terms of the Privacy Agreement.
8. Copyright and Trademark Infringement
We respect the copyright and trademark rights of others and ask you to do the same. It is our policy to suspend or terminate the access privileges of those who repeatedly infringe the copyrights and trademarks of others.
We have implemented technical and organizational measures designed to secure your business information from accidental loss and from unauthorized access, use, alteration, or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your business information for improper purposes. You provide business information at your own risk. You are responsible for safeguarding your password and for restricting access to the Services from your compatible mobile devices and computer(s). You will immediately notify us of any unauthorized use of your password or Touchpoint Account or any other breach of security.
You consent to accept and receive communications from us, including e-mail, text messages, calls, and push notifications to the mobile telephone number and or email you provide to us. Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. You may opt-out of receiving communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Services.
11. Paid Services
Touchpoint may offer Services to be paid for on a recurring basis (“Subscription Services”) or on an as-used basis (“A La Carte Services” and, together with the Subscription Services, “Paid Services”). Touchpoint has the right to change or impose conditions on Paid Services or any feature or aspect of a Paid Service. Touchpoint has the right to delete or discontinue A La Carte Services. Subscription Services may subject you to recurring fees and/or terms. By signing up for a Subscription Service, including after any free trial period, you agree to pay us the subscription fee and any applicable taxes as set forth in your Touchpoint Account settings or as otherwise agreed in writing (“Subscription Fee”). A La Carte Services may subject you to fees charged per usage and/or terms. By using an A La Carte Service, you agree to pay the fees and any taxes incurred at the time of usage (“A La Carte Fees” and, together with Subscription Fees, the “Paid Service Fees”).
Paid Service Fees may be paid by a linked, verified ACH-enabled bank account, debit card or credit card. If you link a bank account, debit or credit card to your account, you authorize us to collect Paid Service Fees by debit from your linked bank account or debit card or to charge your credit card.
Unless otherwise provided in a Subscription Service’s terms, Subscription Fees will be charged monthly or annually for the term of the agreement.
12. Term and Termination
The term of this Agreement shall commence when your Touchpoint Account is established, continue for a period of one (1) year and shall thereafter renew for successive one (1) year periods unless either party notifies the other party of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term, or unless earlier terminated as set forth herein (the “Term”). Continued use of Subscription Services beyond Term constitutes your agreement to any changes to Subscription Fees.
A party shall have the right to terminate this Agreement on written notice if (a) the other party ceases to do business in the ordinary course or is insolvent (i.e., unable to pay its debts in the ordinary course as they come due), or is declared bankrupt, or is the subject of any liquidation or insolvency proceeding which is not dismissed within ninety (90) days, or makes any assignment for the benefit of creditors.
13. Effect of Termination
If these General Terms or your Touchpoint Account is terminated or suspended for any reason: (a) the license and any other rights granted under these General Terms and any Additional Terms will end, (b) we may (but have no obligation to) delete your information and account data stored on our servers, and (c) we will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Services, or for deletion of your information or account data. In addition to any payment obligations under the Payment Terms, the following sections of these General Terms survive and remain in
effect in accordance with their terms upon termination: 5 (Your Content), 8 (Copyright and Trademark Infringement), 13 (Effect of Termination), 15 (Ownership), 16 (Indemnity), 17 (Representations and Warranties), 18 (No Warranties), 19 (Limitation of Liability and Damages), 20 (Disputes), 21 (Binding Individual Arbitration), 23 (Governing Law), 24 (Limitation on Time to Initiate a Dispute), 25 (Assignment), 26 (Third Party Service), and 27 (Other Provisions).
14. Your License
We grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the software that is part of the Services, as authorized in these General Terms. We may make software updates to the Services available to you, which you must install to continue using the Services. Any such software updates may be subject to additional terms made known to you at that time.
We reserve all rights not expressly granted to you in these General Terms. We own all rights, title, interest, copyright and other worldwide Intellectual Property Rights (as defined below) in the Services and all copies of the Services. These General Terms do not grant you any rights to our trademarks or service marks.
For the purposes of these General Terms, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights, and other intellectual property rights that may exist now or come into existence in the future, and all of their applications, registrations, renewals and extensions, under the laws of any state, country, territory or other jurisdiction.
You may submit comments or ideas about the Services (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place us under any fiduciary, confidentiality or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone.
You will indemnify, defend, and hold us and our processors (and our respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these General Terms; (b) your wrongful or improper use of the Services; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Services with your unique name, password or other appropriate security code.
17. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these General Terms for your business; (c) any information you provide in connection with the Services, including your business name, accurately and truthfully represents your business or personal identity under which you sell goods and services; (d) you and all transactions initiated by your business will comply with all federal, state, and local laws, rules, and regulations applicable to you and/or your business; (e) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (f) your use of the Services will be in compliance with these General Terms and applicable Additional Terms.
18. No Warranties
THE USE OF “TOUCHPOINT” IN SECTIONS 18 AND 19 MEANS TOUCHPOINT, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, TOUCHPOINT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
TOUCHPOINT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
Touchpoint does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a third party.
19. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOUCHPOINT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, TOUCHPOINT WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL TOUCHPOINT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR TOUCHPOINT ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF TOUCHPOINT IS LIMITED TO THE AMOUNT OF FEES EARNED BY US IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY OCCURRED.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TOUCHPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
“Disputes” are defined as any claim, controversy, or dispute between you and Touchpoint, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these General Terms, any Additional Terms, or the Services, or any other aspect of our relationship.
21. Binding Individual Arbitration
You and Touchpoint agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST TOUCHPOINT. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. Any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to you and Touchpoint also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.
22. Force Majeure.
Neither party is responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.
23. Governing Law
These General Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles.
24. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within one year after the cause of action accrues.
These General Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void except that you shall have the right to assign this Agreement in whole as part of a corporate reorganization, consolidation or merger on notice to Touchpoint.
26. Third Party Services
Touchpoint may provide payment processing, accounting and other services through third parties (“Third Party Services”). Touchpoint is not a payment processor, reseller, or Merchant Service Provider. You must utilize payment processing services provided by Third Party Services. In using Third Party Services you will be responsible for reviewing and understanding the terms and conditions for these services. We are not responsible for the performance of any Third Party Services. Such Third Party Services are not governed by these General Terms. We expressly disclaim any liability for these Third Party Services. The transactions reported by Third Party Services are the official financial records to be used in determination of payment, credits, disputes, reconciliations or tax records. Touchpoint data should be considered non-comprehensive and may not include all of the transactions that occur between you and Third Party Services.
27. Other Provisions
These General Terms, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Touchpoint regarding the Services. In the event of a conflict between these General Terms and any other Touchpoint agreement or Policy, these General Terms will prevail and control the subject matter of such conflict. If any provision of these General Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.