Effective Date: September 4, 2020
PLEASE NOTE THAT ANY DISPUTE OR CLAIM RELATED TO THESE TERMS OR ARISING OUT OF YOUR USE OF THE SERVICE MUST BE RESOLVED BY ARBITRATION ON AN INDIVIDUAL BASIS, AND MAY NOT BE ARBITRATED OR OTHERWISE PURSUED AS A CLASS ACTION. PLEASE SEE SECTION 15 BELOW.
- General. The Service is owned and operated by Freetouch Inc, a Delaware corporation (“Freetouch” and “we”). We reserve the right to revise these Terms in our sole discretion at any time by updating this posting, such changes to be effective prospectively. We will notify you of any changes to these Terms by posting them to this page. Your continued use of the Service after a change has been posted constitutes your acceptance of the change. If you disagree with any of these Terms, your sole remedy is to discontinue your use of this Service.
- Limited License. Subject to the terms and conditions of these Terms, Freetouch hereby grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service only on your mobile device as permitted by the operating system for your device.
- License Restrictions. Except as expressly set forth in these Terms, you shall not, directly or indirectly, in whole or in part: (i) copy the Service; (ii) cause or permit any reverse engineering, decompilation, modification, translation or disassembly of the Service; (iii) sell, rent, sublicense, distribute, disclose, publish, assign or otherwise transfer any rights in the Service; (iv) create any derivative works based upon the Service, in whole or in part; (v) permit any third party to benefit from the use or functionality of the Service via a timesharing, Service bureau or similar arrangement; (vi) use the Service in any unlawful manner or for any unlawful purpose; (vii) remove or destroy any copyright notices or other proprietary marking on the Service; or (viii) do anything which adversely affects any of Freetouch’s rights, title or interest in or to the Service.
- Ownership. You acknowledge that, as between Freetouch and you, title and ownership of all proprietary rights, including any copyright, patent, trade secret, trademark or other intellectual property rights, in and to the Service are and will at all times remain the property of Freetouch. Freetouch retains all rights, title and interest in and to the Service not specifically granted to you hereunder.
- No Guarantee. You acknowledge that Freetouch does not endorse, represent or guarantee the truthfulness, accuracy, completeness, or reliability of any of data or results generated by or through the Service. Your use of or reliance on any such data or results is at your own risk.
- Transmission. The Service is designed to communicate with you via the Internet and/or other computer networks, and you are authorized to use the Service with such technologies. You acknowledge that transmitting data over such networks or similar technologies is not 100% secure or free from risk of compromise.
- Termination. You acknowledge that Freetouch may terminate your access to or use of the Service at any time in our sole discretion. Upon any such termination, you must cease all use of the Service.
- Disclaimers. THE SERVICE AND ALL DATA AND RESULTS MADE AVAILABLE BY OR THROUGH THE SERVICE ARE PROVIDED “AS IS.” FREETOUCH MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, FREETOUCH MAKES NO WARRANTY THAT THE SERVICE OR ANY DATA OR RESULTS MADE AVAILABLE BY OR THROUGH THE SERVICE WILL BE ERROR-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SERVICE OR ANY DATA OR RESULTS MADE AVAILABLE BY OR THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS. Some jurisdictions do not allow some of the foregoing exclusions or limitations, so some of these exclusions or limitations may not apply to you.
- User-Provided Content. As between Freetouch and you, all materials that you provide or allow to be provided to or through the Service (“Your Content”) shall remain your exclusive property. You understand and agree that you are solely responsible for all of Your Content. You grant Freetouch a non-exclusive, transferable, sublicensable, fully paid, worldwide license to use, copy, prepare derivative works of, distribute and display Your Content solely for purposes of providing the Service to you. You authorize Freetouch to store copies of any or all of Your Content as we deem necessary in order to facilitate the operation of the Service. You represent and warrant that you have all rights, consents, and permissions necessary to grant the foregoing license, without requiring the payment of any fees or charges. You shall not provide or allow to be provided to the Service any materials for which you do not have all necessary rights, consents, and permissions needed to so provide.
- Indemnity from You. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS FREETOUCH AND OUR SUCCESSORS, ASSIGNS, DIRECTORS, OFFICERS, REPRESENTATIVES, AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, OBLIGATIONS, LOSSES, LIABILITIES, COSTS, PENALTIES, FEES, OR EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) INCURRED, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH (I) YOUR USE OF THE SERVICE, (II) ANY OF YOUR CONTENT, OR (III) YOUR VIOLATION OF ANY OF THESE TERMS. Your obligations in this Section 10 do not apply to any claims, damages, obligations, losses, liabilities, costs, penalties, fees, or expenses of any kind to the extent arising from any act or omission of Freetouch or any of our successors, assigns, directors, officers, representatives, or employees.
- Limitations of Liability. IN NO EVENT WILL FREETOUCH BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, OR DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, OR LOSS OR INACCURACY OF INFORMATION, ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF THE SERVICE, REGARDLESS OF THE FORM OF ACTION, EVEN IF THE CLAIM WAS REASONABLY FORESEEABLE OR IF FREETOUCH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY ESSENTIAL PURPOSE OF ANY REMEDY. FREETOUCH’S MAXIMUM LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS AND/OR YOUR USE OF THE SERVICE, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED $100. You acknowledge and agree that the foregoing limitations of liability are essential elements of the bargain and that in the absence of such limitations, the financial and other terms of these Terms would be substantially different. Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so these limitations may not apply to you.
- Compliance with Law. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You may not export, re-export, import, or transfer the Service or any data available thereon in violation of any applicable export laws or regulations, and you may not assist or facilitate others in doing any of the foregoing. You acknowledge that it is your responsibility to comply with any and all applicable export and import laws.
- Security. You are prohibited from violating, or attempting to violate, the security of the Service. Any such violation may result in criminal and/or civil penalties against you. Freetouch will investigate any alleged or suspected violations and if a criminal violation is suspected, we will cooperate with law enforcement agencies in their investigations.
- Governing Law. These Terms shall be interpreted in accordance with the laws of the state of California, without reference to its conflict of law provisions. These Terms shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
- Disputes. Any dispute, claim or controversy arising out of or in connection with these Terms and/or your access to or use of the Service (“Dispute”) shall be resolved individually and exclusively by final and binding arbitration administered by JAMS, by a single arbitrator selected, all in accordance with JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). For more information on JAMS, the JAMS Rules, or the process for filing an arbitration claim, you may call JAMS at 800.352.5267 or visit the JAMS website at www.jamsadr.com. You and Freetouch agree to the following with respect to the arbitration of any Dispute hereunder: (a) ANY CLAIM MUST BE BROUGHT IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (b) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING AND MAY NOT AWARD CLASS-WIDE RELIEF; (c) the arbitration will be held at a location in your hometown area unless you and we both agree to another location or telephonic arbitration; (d) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation; (e) we reserve the right, in our sole discretion, to assume responsibility for any or all of the costs of the arbitration; (f) the arbitrator will honor claims of privilege and privacy recognized at law; (g) the arbitration will be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award; (h) the arbitrator may award any individual relief or individual remedies that are expressly permitted by applicable law; and (i) each party will pay its own attorneys’ fees and expenses, unless there is a statutory provision that requires the prevailing party to be paid its fees and litigation expenses and the arbitrator awards such attorneys’ fees and expenses to the prevailing party, and, in such instance, the fees and costs awarded will be determined by the applicable law. ANY RIGHT TO A TRIAL BY JURY, WHETHER ON AN INDIVIDUAL OR A CLASS BASIS, IS HEREBY WAIVED.
- Miscellaneous. If any provision of these Terms is held to be unenforceable, such provision shall be reformed to the extent necessary to make it enforceable so as to effect the intent of the parties, and the remainder of these Terms shall continue in full force and effect. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of your rights hereunder without Freetouch’s prior written consent, and any such attempt is void. The parties acknowledge and agree that a material breach of these Terms adversely affecting Freetouch’s proprietary rights would cause irreparable harm to Freetouch for which a remedy at law would be inadequate and that Freetouch shall be entitled to injunctive relief in addition to any remedies it may have hereunder or at law. These Terms reflect the complete agreement between Freetouch and you concerning the Service, and supersedes any and all prior agreements and representations between Freetouch and you related to such subject matter.
- Contact. If you have any questions regarding the Service or these Terms, please contact Freetouch at email@example.com.