BY ACCESSING A TOUCH PRESS SERVICE, DOWNLOADING A TOUCH PRESS APPLICATION, OR CONTINUING TO USE SUCH SERVICES OR APPLICATIONS, YOU ACKNOWLEDGE THAT: (1) YOU ARE AT LEAST 18 YEARS OF AGE OR ANY OLDER LEGAL AGE REQUIRED TO FORM A CONTRACT IN YOUR JURISDICTION; (2) YOU HAVE THE RIGHT, AUTHORITY AND LEGAL CAPACITY TO ENTER INTO THIS AGREEMENT; (3) YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THESE TERMS WITH RESPECT TO YOURSELF AND ANY MINOR CHILD AUTHORIZED BY YOU.
IF YOU OR YOUR PARENT/LEGAL GUARDIAN DO NOT WISH TO BE BOUND BY THE THESE TERMS, PLEASE DISCONTINUE ANY ACCESS OR USE OF TOUCH PRESS’S SERVICES OR APPLICATIONS. YOUR AGREEMENT WITH US REGARDING COMPLIANCE WITH THESE TERMS BECOMES EFFECTIVE IMMEDIATELY UPON COMMENCEMENT OF SUCH ACCESS OR USE.
- User’s Acknowledgment and Acceptance of Terms
- App Store Subscription Terms
- User Information
- User Account
- Conduct Through the Services
- Intellectual Property
- Charges and Billing
- Third Party Websites and Information
- Procedure for Alleging Copyright Infringement
- Disclaimer of Warranties; Limitation of Liability
- Services Termination, Suspension and Changes
- Survivability of Terms
- Governing Law
- Dispute Resolution
- Entire Agreement
- Additional Terms for iOS Apps
1. User’s Acknowledgment and Acceptance of Terms
Although we may attempt to notify you when major changes are made to these Terms, you acknowledge and agree that it is your responsibility to review these Terms from time to time and to familiarize yourself with any modifications. Any modifications will be effective immediately, and will apply to disputes arising under the Terms from the date of posting forward. Your continued use of the Services after a modification has been made to the Terms constitutes your acceptance of such modification.
You may not use the Services in any way that is for commercial purposes, is unlawful, or harms Touch Press or any other person or entity.
2. App Store Subscription Terms
Touch Press Games – All Access Pass is a subscription that gives access to all Touch Press Games titles. As a user you will continue to have full access to all Touch Press Games for every month or partial month you remain subscribed.
- The monthly charge for subscription is $4.99/€4.99/£3.99 or other local currency equivalent.
- Payment will be charged to your iTunes Account at confirmation of purchase. This will start the monthly billing cycle or “current period.”
- Subscription automatically renews unless auto-renew is turned off at least 24-hours before the end of the current period.
- Your Account will be charged $4.99/€4.99/£3.99 for renewal within 24-hours prior to the end of the current period.
- Subscriptions may be managed by you and auto-renewal may be turned off by going to your Account Settings. To do this, go to “iTunes & App Store” in Settings on your iPad or iPhone, tap on your Apple ID, View Apple ID, and tap “Manage” under “Subscriptions.”
- Any cancellation will not go into effect until the end of the monthly billing cycle, and you will continue to have full use of the Touch Press Games for the current period.
All other iOS App Terms are detailed at section 21, below.
3. User Information
4. User Account
YOU ACKNOWLEDGE AND AGREE THAT SHOULD TOUCH PRESS PROVIDE THE ABILITY TO CREATE A USER ACCOUNT, YOU SHALL HAVE NO OWNERSHIP OR OTHER PROPERTY INTEREST IN ANY ACCOUNT OR USER PROFILE, AND YOU FURTHER ACKNOWLEDGE AND AGREE THAT ALL RIGHTS IN AND TO ANY ACCOUNT OR USER PROFILE ARE AND SHALL FOREVER BE OWNED BY AND INURE TO THE BENEFIT OF TOUCH PRESS. Touch Press does not recognize the transfer of any account or user profile. Therefore, you may not give, purchase, sell, bargain, barter, market, trade, offer for sale, sell, license, assign or otherwise divest your rights, responsibilities or obligations under the Terms, either in whole or in part, without the prior written consent of Touch Press. Any attempt to do so shall be void and of no effect.
5. Conduct Through the Services
You are solely responsible for your conduct through the Services and agree that you will not:
5.1 Publish, post, upload, transmit, distribute, disseminate or otherwise make available through the Services:
- any pyramid schemes, chain letters, junk email, spam, or unsolicited messages;
material that is harmful, abusive, defamatory, libelous, obscene, infringing, invasive of another’s right of privacy or publicity, hateful, offensive, objectionable, or otherwise inappropriate as determined by Touch Press in its sole discretion;
- material or User Submissions (defined below) or information that infringes any copyright, trademark, patent, trade secret, privacy, publicity, or other right of others;
- files that contain any malicious code, including viruses, spyware, Trojan horses, worms, time bombs, cancelbots, corrupted data, or that may in any way damage or interfere with the operation of the Services, other users’ access to the Services, and/or other users’ computers.
5.2 Defame, abuse, harass, stalk, threaten, bully or otherwise violate the legal rights of others.
5.3 Violate any applicable laws or regulations, or promote or encourage any illegal activity.
5.4 Impersonate another user or create a false identity, including but not limited to identities falsely indicating that the user is another user, a celebrity or other well-known person, or a Touch Press representative.
5.5 Gain or attempt to gain unauthorized access to the Services, to other users’ account or profile information, or to computer systems and/or networks connected to the Services.
5.6 Make false reports through the Services or to Touch Press’s administrators.
5.7 Take any action that (as determined by Touch Press in its sole discretion) may impose an unreasonable or disproportionately large load on Touch Press’s (or third party providers’) infrastructure.
5.8 Engage in fraudulent transactions.
5.9 Establish more than one account to participate in Services.
5.10 Use the service for any form of wagering or gambling.
6. Intellectual Property
Content. The Services contain a variety of content including, without limitation: (i) information, videos, photos, graphics, music, sounds, text, data, communications, illustrations, documentation, and other material and services that users can view on, access through, or contribute to the Services; (ii) trademarks, logos, trade names, service marks, and trade identities of Touch Press and our licensors; and (iii) other forms of intellectual property (all of the foregoing, collectively “Content”). This includes support forums, message boards, chat, and other original content.
Ownership. The Services (including past, present, and future versions) and the Content are owned or controlled by Touch Press and our licensors and certain other third parties. All right, title, and interest in and to the Content available via the Services is the property of Touch Press, our licensors, or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. Touch Press owns the copyright in the selection, compilation, assembly, arrangement, and enhancement of the Content on the Services. You are only permitted to use the Content as expressly authorized by Touch Press or the specific Content provider, and only through the functionality of the Services.
Limited License. Subject to your strict compliance with these Terms and any applicable additional terms that may be included in the Services, Touch Press grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to (i) download, display, view, use, and play the Content (excluding source and object code, other than as made available to access and use to enable display and functionality) solely through the Services on a personal computer, mobile phone or other wireless device, or other Internet enabled device (each, a “Device”), and (ii) to use certain Content that we may from time to time make available on the Services solely and explicitly for you for use as part of your User Submissions (defined below) (“Licensed Elements”), but solely for use within the functionality of the Services and only for such purposes as may be explicitly stated at the time that the Licensed Elements are made available on the Services. We and our licensors and certain other third parties, as the case may be, retain ownership of such Content. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, (ii) may be immediately suspended or terminated for any reason, in Touch Press’s sole discretion, and without advance notice or liability; and (iii) does not permit you to use any Content or Licensed Elements outside the functionality of the Services (e.g., if the Services permit you to create a video using Content on the Services, you are prohibited from posting that video on YouTube or any other video service and may only use that video within the Services).
Reservation of All Rights Not Granted As To Content and Services. These Terms and any applicable additional terms include only narrow, limited grants of rights to the Content within the functionality of the Services and to use and access the Services solely as permitted herein. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Touch Press and its licensors and other third parties. Any unauthorized use of any Content or the Services for any purpose is prohibited.
By use of the Services you acknowledge, agree and otherwise consent not to engage in, permit another person or entity to engage, or otherwise be related to or a part of the following restricted activities: (i) market, share, distribute, offer to sell, sell, or otherwise make reproductions or copies of the Services or Content in any way inconsistent with the rights provided to you by Touch Press herein; (ii) remove any applicable, relevant identification, copyright, trademark, or other notices relating to the intellectual property or other property of Touch Press; (iii) attempt to access source or object code of the Services, by methods including reverse engineering or otherwise reducing it to a form readable without the use of a computer, except and unless any applicable statutes or laws specifically prohibit said restrictive language; (iv) amend, change, or modify (including the creation of any derivative works of) the Services; (v) create code, software or other program that incorporates any elements of the Services; (vi) attempt to hack into, compromise or otherwise access the object or source code of the Services for any purposes, personal or commercial; or (vii) interrupt or attempt to interrupt the operation of the Services in any way.
6.3 Your Grant of Rights
- use, reproduce, distribute, remove, and analyze any of your User Submissions as Touch Press may deem necessary or desirable for any purpose in connection with the operation of the Services, and
- copy, modify, and reproduce your User Submissions for marketing, promotional and/or other purposes in connection with Touch Press or the Services in any media,
- use, edit, modify, reproduce, distribute, prepare derivative works of, display, post or otherwise make available your User Submissions to any other user in connection with any feature of the Services, and
- delete any or all of your User Submissions from the Services, whether intentionally or unintentionally, for any reason or no reason, without any liability of any kind to you or to any other party, and
- enable the Services or users of the Services to share or post your User Submissions on third party sites, such as, without limitation, on social networking sites.
6.4 Submission of Ideas
To the extent that you submit, via the Services or otherwise, any unsolicited concepts, ideas, or suggestions (collectively, the “Ideas”) for, by way of example and without limitation, any features or functionality for the Services, you agree that such Ideas are not confidential, and Touch Press shall not be liable for the disclosure of such Ideas. You hereby grant and agree to grant Touch Press, under all of your rights in the Ideas, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Ideas for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in the Services, or any Touch Press product or service, without compensation or accounting to you and without further recourse by you.
7. Charges and Billing
7.1 Paid License
You agree to pay all fees or charges incurred by you or any child authorized by you, including applicable taxes, in accordance with these Terms and the billing terms that are in effect at the time that the fee or charge becomes payable. You acknowledge that Touch Press may utilize certain third-party providers to collect or otherwise process any such fees and charges. Any additional, separate charges or obligations you directly incur with said third-party are your responsibility. TOUCH PRESS MAKES NO REPRESENTATION OR WARRANTY REGARDING ANY INFORMATION, GOODS AND/OR SERVICES PROVIDED BY ANY THIRD PARTY. Unless otherwise indicated, all prices are in United States Dollars and do not include Internet service provider, telephone, and other connection charges.
8. Third Party Websites and Information
The Services may link you to other websites or otherwise include references to information, materials and/or services provided by other parties. These other websites and parties are not under Touch Press’s control, and you acknowledge that Touch Press is not responsible for the accuracy, copyright compliance, legality, decency, or any other aspect of the content of such websites, nor is Touch Press responsible for errors or omissions in any references to other parties or their products and services. The inclusion of such a link or reference is provided merely as a convenience and does not imply endorsement of, or association with, the website or party by us, or any warranty of any kind, either expressed or implied.
9. Procedure for Alleging Copyright Infringement
Touch Press will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”).
9.1 Notification of Alleged Copyright Infringement
If you have a good faith belief that materials hosted by Touch Press infringe on copyright rights that you are entitled to enforce (for example, materials posted by a user on the Services), you (or your agent) may send us a written notification pursuant to the DMCA, by providing our DMCA Agent with the information listed below (and as further set forth in 17 U.S.C. § 512(c)(3)) and requesting that the material be removed or access to it blocked:
- Identification in sufficient detail of the copyrighted work that you claim has been infringed. If multiple copyrighted works on the Services are covered by a single notification, you may provide a representative list of such works on the Services, however, the representative list must still contain sufficient detail of the copyrighted works so that we can identify them;
- Identification of the URL or other specific location on the Services that contains the material that you claim to be infringing your copyright. You must provide us with reasonably sufficient information to enable us to locate the alleged infringing material(s), so that we can comply with your request to remove or deny access to it/them;
- Your name, address, telephone number and email address (if available) to permit us to contact you, if necessary;
- The electronic or physical signature of the owner of the copyright or a person authorized to act on the owner’s behalf;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that you swear under penalty of perjury that the information contained in your notification is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You acknowledge that if you fail to comply with all of the requirements of this Section 8.1, your DMCA notice will not be valid and no action will be taken by Touch Press.
You must submit any notification of an alleged copyright infringement to Touch Press’s DMCA Agent by mail or email as set forth below:
Touch Press, Inc.
ATTN: Copyright Agent
55 Washington Street, Suite 800
Brooklyn, NY 11201
Email: [email protected], with the subject line “DMCA Notification”
This contact information is for DMCA notifications and counter notifications ONLY. ALL OTHER INQUIRIES DIRECTED TO THE DMCA AGENT WILL NOT BE ANSWERED.
Please note that you may be liable for damages, including court costs and attorneys’ fees, if you materially misrepresent that materials on the Services are infringing a copyright.
9.2 Counter Notification
If you believe in good faith that your material has been improperly removed from the Services as a result of a DMCA notification, you may submit a written counter notification letter to Touch Press’s DMCA Agent pursuant to Sections 512(g)(2) and (3) of the DMCA. To be an effective counter notification under the DMCA, your written correspondence must include substantially the following:
- Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
- A statement that you consent to the jurisdiction of the Federal District Court in which your address is located, or the judicial district where Touch Press is located if your address is outside the United States, and that you will accept service of process from the party that filed the notification of alleged copyright infringement or the party’s agent;
- Your name, address and telephone number;
- A statement that you swear under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
- Your physical or electronic signature.
You acknowledge that if you fail to comply with all of the requirements of this Section 8.2, your DMCA counter notification will not be valid.
You may submit your counter notification to Touch Press’s DMCA Agent by mail or email as set forth below:
Touch Press, Inc.
ATTN: Copyright Agent
55 Washington Street, Suite 800
Brooklyn, NY 11201
Email: [email protected], with the subject line “DMCA Counter Notification”
This contact information is for DMCA notifications and counter notifications ONLY. ALL OTHER INQUIRIES DIRECTED TO THE DMCA AGENT WILL NOT BE ANSWERED.
If a counter notice is received by Touch Press’s DMCA Agent, we may send a copy of the counter notification to the original complaining party informing that person that Touch Press may replace the removed content or cease disabling it. Unless the copyright owner files an action seeking a court order against Touch Press or the user, the removed content may be replaced or access to it restored by Touch Press.
Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorney’s fees.
9.3 Account Termination
Please be aware that it is Touch Press’s policy to terminate the user accounts of repeat infringers. If you believe that a user is a repeat infringer, please follow the requirements above, but also include information or evidence that will reasonably prove to Touch Press that the user is a repeat infringer.
If you provide false information to Touch Press regarding any of the above notifications, counter-notifications or repeat infringer notifications, Touch Press may immediately terminate your user account and you may be subject to legal and equitable remedies.
10. Disclaimer of Warranties; Limitation of Liability
Neither Touch Press nor its affiliates, subsidiaries, officers, directors, stockholders, employees, licensors, distributors, sublicensees, agents or subcontractors (collectively, the “Touch Press Parties”) warrant any connection to, transmission over, features or system functionality, or results or use of, any facilities provided or failed to be provided through the Services.
YOU EXPRESSLY AGREE THAT THE USE OF THE SERVICE IS AT YOUR SOLE RISK. ALL MATERIALS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THE WARRANTY OF NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT (A) THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE EFFECTIVE, ACCURATE OR RELIABLE, OR (D) THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS OR BE FREE FROM MISTAKES, ERRORS OR DEFECTS.
TOUCH PRESS MAKES NO COMMITMENT TO UPDATE ITS SERVICES. THE DISCLAIMERS OF LIABILITY CONTAINED IN THIS SECTION APPLY TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE WEBSITE AND SERVICE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
YOU ACKNOWLEDGE AND AGREE THAT THE TOUCH PRESS PARTIES ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT THROUGH THE SERVICES OR ANY RELATED PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT YOUR EXCLUSIVE REMEDY FOR ANY DISPUTE RELATED TO THE SERVICES IS TO STOP USING THE SERVICES, AND TO DELETE ANY DOWNLOADED APPLICATION(S). IN NO CASE SHALL ANY LIABILITY OF THE TOUCH PRESS PARTIES TO YOU EXCEED THE AMOUNT, IF ANY, THAT YOU PAID FOR THE APPLICABLE SERVICES GIVING RISE TO ANY SUCH LIABILITY. IN NO EVENT SHALL THE TOUCH PRESS PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE OR DATA, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICE.
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, THE LIABILITY OF THE TOUCH PRESS PARTIES SHALL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Residents of California are entitled to the following specific consumer rights information: You may contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs by mail at 400 R St., Suite 1080, Sacramento, California, 95814, or by telephone at 916.445.1254. California residents expressly agree to waive California Civil Code Sec. 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
If you are a New Jersey resident, the above disclaimer and limitation of liability do not limit or waive your rights under New Jersey law. Furthermore, these provisions are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. Touch Press reserves all rights, defenses and permissible limitations under New Jersey law.
You agree to defend, indemnify, and hold Touch Press and its affiliates harmless from all liabilities, claims, losses, costs and expenses, including attorney’s fees, that arise from (a) your use of, or activities in connection with the Services, or those of any child authorized by you; (b) any violation of these Terms by you or any child authorized by you; or (c) any allegation that any content that you or any child authorized by you make available via the Services infringes or otherwise violates the copyright, trademark, trade secret, privacy or other intellectual property or other rights of any third party. Touch Press reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with Touch Press in asserting any available defenses.
12. Services Termination, Suspension and Changes
Touch Press reserves the right to terminate (including withhold or revoke the awarding of any prizes), suspend, or change any service or feature of the Services at any time, for any reason or no reason, with or without notice to you. Additionally, Touch Press may terminate or suspend your use of the Services for violation of these Terms or violation of any other policy related to the Services (including the policies of affiliates accessible by the Services). Without limiting the foregoing, your access to the Services may be terminated without warning if Touch Press believes, in its sole discretion, that you are under the age of eighteen (18) years but do not your parent’s or guardian’s permission to register for and/or access the Services. You agree that Touch Press shall not be liable for any loss or damage caused, directly or indirectly, by any such termination, suspension, or change and you will have no further access to the Services and shall have no right to any refund of any amounts paid to Touch Press.
13. Survivability of Terms
The Terms set forth herein continue to remain in full force and effect until such time as terminated by either party. You retain full discretion to end or terminate and discontinue use of the Services at any time, pursuant to the terms of these Terms. The provisions of Sections 1, 2, 3, 5 through 7, and 9 through 19 shall survive any termination of these Terms.
Touch Press may assign these Terms, in whole or in part, at any time. Notwithstanding, you may not assign, transfer or sublicense any or all of your rights or obligations under these Terms without Touch Press’s express prior written consent.
15. Governing Law
The Services (excluding any linked websites) are governed by the laws of the United States of America and the State of New York, without regard to the latter’s conflict of laws provisions. You shall comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services. Although the Services may be accessible worldwide, we make no representation that materials on the Services are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Services from other locations do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
16. Dispute Resolution
A printed version of the Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings. You and Touch Press agree that any cause of action arising out of or related to the Services shall be heard under New York law and must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
You hereby specifically acknowledge, agree and consent that you waive your right to a trial, by jury or otherwise, and that you agree that any suit, action, proceeding, dispute, controversy or claim (“Dispute”) arising out of or relating to these Terms or any of the transactions contemplated herein or related to the Services or any contests or services thereon will be dealt with in accordance with the following procedures. All parties shall first attempt to negotiate all Disputes informally for at least thirty (30) days before initiating any arbitration. Such informal negotiations shall commence following the receipt of a notice in writing by one of the parties sent to the other. Touch Press will send its notice to your billing address, if provided, and email you a copy to the email address you have provided to us, if any. You may send any notice to Touch Press to the addresses listed below.
If the Dispute is not resolved through informal negotiations, the Dispute shall be finally and exclusively resolved by binding arbitration before a sole arbitrator. Such Dispute shall be arbitrated within thirty (30) days of the appointment of the arbitrator, unless the parties agree otherwise in writing. If you are a resident of the United States, any arbitration will take place at any reasonable location within the United States convenient for you or in the State of New York where Touch Press is located. For residents outside the United States, any arbitration shall be initiated in the State of New York using the English language in accordance with the Commercial Arbitration Rules and Procedures of the American Arbitration Association (“AAA”) then in effect, by one arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of AAA arbitrators. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by an arbitrator rather than a court. The prevailing party in any arbitration or other proceeding arising under these Terms shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Terms, including without limitation, this section.
The parties agree that any arbitration shall be limited to the Dispute between you and Touch Press individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis and you agree to no class action as set forth below; and (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
If you have a dispute with another user of the Services, you release Touch Press (and Touch Press’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. Touch Press, at its sole discretion, may try to help resolve disputes between users; however it has no obligation to do so.
No Class Action Matters. YOU AND TOUCH PRESS AGREE THAT WITH RESPECT TO ARBITRATION DISPUTES EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING OR AS AN ASSOCIATION. All Disputes will be heard or arbitrated only on an individual basis and will not be joined or consolidated with any other claims or arbitrations or other proceedings that involve any claim or controversy of any other party. There shall be no right or authority for any Dispute to be arbitrated on a class action basis or on any basis involving Disputes brought in a purported representative capacity on behalf of the general public, or other persons or entities similarly situated. But if, for any reason, any court with competent jurisdiction holds that the restriction set forth in this Section is unconscionable or unenforceable, then our agreement to arbitrate will not apply and the Dispute must be brought exclusively in the courts located within the State of New York. Notwithstanding any other provision herein, any and all issues relating to the scope, interpretation and enforceability of the class action waiver provisions contained in this “No Class Action Matters” section, are to be decided only by a court of competent jurisdiction, and not by the arbitrator. The arbitrator does not have the power to vary these class action waiver provisions.
All notices to a party shall be in writing and shall be made either via email or conventional mail. The parties agree that all correspondence relating to this Agreement shall be written in the English language. Notices to Touch Press must be sent to the attention of Customer Service at [email protected], if by email, or to Touch Press at the address below if by conventional mail. Notices to you may be sent to the email or mailing address supplied by you as part of your account or user profile, if any. In addition, we may broadcast notices or messages through the Services to inform you of changes to the Services or other matters of importance, and such broadcasts shall constitute notice to you at the time of sending.
You may contact Touch Press at the following address:
Touch Press, Inc.
55 Washington St, Suite 800
Brooklyn, NY 11201
18. Entire Agreement
These Terms constitute the entire agreement and understanding between Touch Press concerning the subject matter of the Terms and supersedes all prior agreements and understandings of the parties with respect to that subject matter. These Terms may not be altered, supplemented, or amended by the use of any other document(s), unless otherwise agreed to in a written agreement signed by you and Touch Press. To the extent that anything in or associated with the Services is in conflict or inconsistent with these Terms, these Terms shall take precedence.
If any part of these Terms is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect.
Nothing contained in these Terms is in derogation of our right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Services or information provided to or gathered by Touch Press with respect to such use. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
21. Additional Terms for iOS Apps
By using the Services through Apple’s App Store (“iOS Products”), you agree that the following additional terms apply to your use of our iOS Products:
21.1 These Terms are not a legal agreement with Apple, Inc. (“Apple”). As between Touch Press and Apple, Touch Press (not Apple) is responsible for the iOS Products and the contents thereof.
21.2 The license to use the iOS Products under Section 5 above is limited to use (a) on iPhone, iPod touch, and iPad devices that you or your Organization own or control, separate from and in addition to any specific technical requirements for any iOS Product, and (b) as permitted by the Usage Rules set forth in the App Store Terms of Service.
21.3 Without limiting Section 9 above and solely as between Touch Press and Apple, you acknowledge that: (a) Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Products; (b) Touch Press (not Apple) is responsible for addressing any claims of yours or any third party relating to the iOS Products or your possession and/or use of the iOS products, including but not limited to (1) product liability claims, (2) any claim that the iOS Products fail to conform to any applicable legal or regulatory requirement, and (3) claims arising under consumer protection or similar legislation; (c) in the event of any failure of the iOS Products to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iOS Products to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iOS Products, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Touch Press’s sole responsibility; and (d) in the event of any third party claim that the iOS Products or your possession and use of the iOS Products infringes that third party’s intellectual property rights, Touch Press (not Apple) will be responsible for any investigation, defense, settlement and discharge of any such intellectual property infringement claim.
21.4 Apple and Apple’s subsidiaries, are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
Effective Date: September 13, 2016