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Terms and Conditions

Last revised: December 1, 2019

TORCHX Standard Terms and Conditions

By clicking on the Accept button below and thereby submitting the TORCHX online registration form, (1) the person doing so represents that he or she is at least 18 years of age and legally capable of forming a binding contract; (2) whether such person is submitting the registration form on behalf of himself or herself or on behalf of any business, organization, or other entity of any kind, such person represents and warrants that he or she is authorized to sign for and bind the contracting party (“YOU”); and (3) you agree to be bound by these TORCHX Standard Terms and Conditions, together with all amendments and collectively with all applicable TORCHX rules and policies, including the TORCHX Privacy Policy (collectively, the “Agreement”).  The Agreement is between you and TORCHX, as of the date and time that you complete the online registration process at the site by clicking the Accept button below (the “Effective Date”).  The Agreement applies to all products and services provided by TORCHX to you, which may include, without limitation, any one or more of: the TORCHX back office, the SEM Product, internet domain names, websites, website design services, traffic acquisition services, display advertising, pixel creation and placement, list segmentation, and marketing coaching (each and collectively, as applicable, the “Product”).  References to “we” and “our” refer to TORCHX.  References to “you” “your” and “client” refer to the recipient or user of the Product, including your successors and assigns, and your agents, employees or independent contractors.

THIS AGREEMENT COVERS IMPORTANT INFORMATION ABOUT THE PRODUCT, AS WELL PROVISIONS ABOUT DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITY, A CLASS ACTION WAIVER, AND A COMMITMENT TO RESOLVE DISPUTES BY ARBITRATION INSTEAD OF IN COURT.

AS DISCUSSED FURTHER BELOW, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CHANGE THIS AGREEMENT (INCLUDING THE PRIVACY POLICY) FROM TIME TO TIME, WITHOUT PRIOR NOTICE.  YOU ARE RESPONSIBLE FOR REVIEWING THE AGREEMENT REGULARLY.  YOUR ACCESS TO ANY PART OF THE PRODUCT IS DEEMED TO BE YOUR ACCEPTANCE OF THIS AGREEMENT AS IT EXISTS AT THE TIME YOU ACCESS THE PRODUCT.

Registration

  1.  You agree, represent, and warrant that you shall at all times provide accurate information when registering an account with TORCHX and when using the Product, and that you shall update and maintain as accurate all such information during your use of the Product.  You may update the information in your profile, change your password, manage notifications, view this Agreement, and change your settings within the Product.

Products and Product Terms

  1.  This Agreement shall apply to each Product you purchase from TORCHX.  Because the Products may be subject to different terms and conditions and because you may purchase Products at different times, each time you purchase a Product, you consent to the terms and conditions of this Agreement as a separate agreement between you and TORCHX as applied to the purchased Product for the applicable term for the purchased Product.

(a) The term of your contract is indicated in the Estimate and is effective the date service begins.

Compliance with Applicable Laws and Industry Standards

  1.  You shall use all services offered by TORCHX lawfully and in compliance with all federal, state, and local laws and regulations, as well as all industry standards and best practices.

Changes to the Product

  1.  The specific features and functionality of the Product are dynamic and may change from time to time.  We reserve complete discretion with respect to the operation of the Product.  We also reserve the right to withdraw, suspend, or discontinue any feature or functionality of the Product at any time.

Inaccuracies

  1.  We disclaim errors, inaccuracies, and omissions of the Product, and we reserve the right to correct any such errors, inaccuracies, or omissions and to change or update information at any time without prior notice.  TORCHX makes no guarantees as to the completeness, timeliness, correctness, or accuracy of the materials or data available through the Product.  If you believe any portion of the Product includes an error or inaccuracy, please notify us.

Availability

  1.  It is not possible to operate the Product with 100% guaranteed uptime.  TORCHX will make commercially reasonable efforts to keep the Product operational.  However, certain technical difficulties, routine site and software maintenance and upgrades, and other events may, from time to time, result in interruptions to or outages of the Product.  In addition, TORCHX reserves the right at any time, and from time to time, to modify or discontinue (on a temporary or permanent basis) certain functions of the Product, with or without notice.
  2.  You agree that TORCHX shall not be liable to you or to any third party for any direct or indirect consequence of any modification, suspension, discontinuance of, or interruption to the Product.

Disclaimer of Warranties

  1.  YOU EXPRESSLY AGREE THAT ACCESS TO AND USE OF THE PRODUCT ARE AT YOUR SOLE RISK.  EXCEPT FOR THOSE WARRANTIES MADE AND EXPRESSLY IDENTIFIED AS WARRANTIES BY TORCHX, TORCHX DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING (A) THE PRODUCT; (B) ANY PRODUCTS AND SERVICES OFFERED THROUGH THE PRODUCT; AND (C) THE ACTS OR OMISSIONS OF USERS THROUGH THE PRODUCT, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE.  TORCHX MAKES NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS, OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE PRODUCT ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY.  TORCHX ALSO MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS, OR THAT YOUR ACCESS TO AND USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE WILL BE SECURE.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.  ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Intellectual Property

  1.  Certain materials provided through the Product are protected by intellectual property laws, including but not limited to copyright laws.  You acknowledge and agree that the content accessible through the Product that is not uploaded by you and not expressly designated as being provided by a third party is the property of TORCHX and its content providers, and TORCHX and its content providers retain all right, title, and interest in the content.  Specifically, and without limitation, TORCHX and its content providers are the owners of all copyrights with respect to the content that TORCHX provides in connection with the Product.  In this respect, references in this Agreement to your “purchase” or “order” of a Product are to be construed as the purchase of a subscription or term license to such content.  Subject to the terms of this Agreement, you are granted a limited, personal, non-exclusive, non-sublicensable, non-assignable, non-transferable, and revocable license to access and use the Product and related materials solely for your own use of the Product.  Except as expressly provided otherwise in this Agreement, all rights are reserved.
  2.  You shall not remove or modify any proprietary notice or labels on the Product, or related materials, including author attribution and copyright notices, or use any of our trademarks as meta-tags on any other website.
  3.  In connection with the use of the Product, you may not:

(a)   alter or modify the Product, or make any electronic reproduction, adaptation, distribution, performance, or display of the Product, or any portion thereof, except to the extent permitted by the intended functionality of the Product or as required for the limited purpose of reviewing material in connection with legitimate use of the Product otherwise consistent with the Agreement;

(b)   sell, rent, lease, transfer, or assign to any third party any rights to your account, the Product, or related materials;

(c)   use the Product for any non-authorized purpose or any illegal purpose;

(d)   copy, modify, erase, or damage any information contained on computer servers used or controlled by TORCHX or any third party, except to the extent permitted by the intended functionality of the Product;

(e)    use the Product to violate any legal right of any third party, including any publicity or privacy right, copyright, or other intellectual property right, or to take any action that is harassing, libelous, defamatory, abusive, tortious, threatening, harmful, or otherwise objectionable;

(f)   access or use any password-protected, secure, or non-public areas of the Product, or access data on the Product not intended for you, except as specifically authorized by TORCHX;

(g)   impersonate or misrepresent your affiliation with any person or entity;

(h)   use any automated means to access or use the Product, including scripts, bots, scrapers, data miners, or similar software, or display the Product, or portions thereof, in things (e.g., framing, scraping, etc.), except as specifically authorized by TORCHX;

(i)   attempt to or actually disrupt, impair, or interfere with the Product or any information, data, or materials posted and/or displayed by TORCHX;

(j)    attempt to probe, scan, or test the vulnerability of the Product or breach any implemented security or authentication measures, regardless of your motives or intent;

(k)   attempt to interfere with or disrupt access to or use of the Product by any user, processor, host, or network, including, without limitation, by submitting a virus, worm, Trojan horse, or other malicious code;

(l)   willfully or knowingly create or contribute to circumstances that are dangerous or hazardous or that increase the risk of personal injury or damage to real or personal property of another person; or

(m)   post any content to the Product that: (i) includes any profane, obscene, defamatory, discriminatory, threatening, menacing, harassing, or violent content; (ii) depicts or suggests nudity or sexual acts; (iii) promotes hatred, including against members of a protected group under federal, state, or local law (such as, for example, a group defined by race, gender, or national origin); (iv) is objectively shocking or disgusting; (v) depicts or suggests presently occurring illegal activity, including, e.g., illicit drug use or underage drinking; (vi) includes unlicensed proprietary content of a third party, including, e.g., third-party content protected by copyright or trademark for which you do not have a license; (vii) breaches any duty of confidentiality you may have to a third party (e.g., discloses private information about a third party without consent); or (viii) is contrary to the Agreement, including TORCHX’s rules and policies.

TORCHX MAY SUSPEND OR TERMINATE YOUR ACCOUNT AND YOUR ACCESS TO AND USE OF THE PRODUCT AT ANY TIME IN ITS SOLE DISCRETION FOR ANY BREACH OF THE AGREEMENT BY YOU.

  1.  As between you and TORCHX, you will be the owner of, and solely responsible for, the content  that you upload or post on your website or use in connection with the Product (including, without limitation, all text, photographs, logos, graphic designs, images, marks, brands, and other content; collectively, “Your Content”).  You unconditionally represent and warrant that you own or are properly licensed to use all of Your Content in connection with the website or with the Product, as contemplated by this Agreement.  TORCHX is not responsible for verifying your ownership or license rights to Your Content.
  2.  By uploading or posting Your Content or by communicating with TORCHX, including submitting or sending content to us, you grant TORCHX a royalty-free, unrestricted, world-wide, perpetual, irrevocable, non-exclusive, and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such content (in whole or part) in order to communicate with you, to process your requests and transactions, and to provide the Product.
  3.  In the course of using the Product, you may collect and receive data and other information about or from end users of your website, including personal information.  You agree to treat such information in compliance with the TORCHX Privacy Policyand any other applicable privacy policies.  You will maintain such information securely, using reasonable technical means to prevent the unauthorized access, use, or disclosure of such information.

 

  1.  As disclosed in the TORCHX Privacy Policy, some of the services offered by TORCHX to end users on your website or otherwise through the Product may involve the disclosure of end user information to third parties.

Intellectual Property Infringement

  1.  We expect you to respect the intellectual property rights of others.  We may remove material that appears in our sole discretion to infringe upon the intellectual property rights of others.  If you believe a work protected by a U.S. copyright you own has been posted on the Product without authorization, you may notify our copyright agent, and provide the following information:

(a)   a physical or electronic signature of the person authorized to act on behalf of the copyright owner;

(b)    identification of the copyrighted work or works claimed to have been infringed;

(c)   a detailed description of the material you claim is infringing, together with information sufficient to enable us to locate it, including the URL or other description of where the infringing material appears;

(d)   your name, mailing address, telephone number and e-mail address;

(e)   a statement by you that you believe in good faith that the copyrighted material identified is being used in a manner that is not authorized by the copyright owner, its agent or the law; and

(f)   a statement by you that the above information is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of the copyright allegedly infringed.

To notify TORCHX of a claimed copyright infringement, please contact:

Postal Address:

ATTN: TORCHX DMCA Complaint

10045 Mesa Rim Rd

Suite 3

San Diego, CA 92121

Email:

support@torchx.com

California Consumer Privacy Act

  1. TorchX’s CCPA Obligations

(a)      TorchX will only collect, use, retain, or disclose personal information of California consumers for the Contracted Business Purposes for which you provide personal information or permit personal information access in accordance with your instructions. “Contracted Business Purposes” means the services and/or products described in this Agreement for which TorchX receives or accesses personal information. Any terms defined in the California Consumer Privacy Act of 2018, as amended (Cal. Civ. Code §§ 1798.100 to 1798.199), and any related regulations or guidance provided by the California Attorney General (“CCPA”), including “personal information” and “business purposes” carry the same meaning in this Section [1].

(b)      TorchX will not collect, use, retain, disclose, sell, or otherwise make personal information of California consumers available for TorchX’s own commercial purposes or in a way that does not comply with the CCPA. If a law requires TorchX to disclose personal information of a California consumer for a purpose unrelated to the Contracted Business Purpose, TorchX will first inform you of the legal requirement and give you an opportunity to object or challenge the requirement, unless the law prohibits such notice.

(c)      TorchX will limit collection, use, retention, and disclosure of personal information of California consumers to activities reasonably necessary and proportionate to achieve the Contracted Business Purposes or another compatible operational purpose.

(d)      TorchX will promptly comply with any request or instruction from you requiring the [Service Provider] to provide, amend, transfer, or delete the personal information of California consumers, or to stop, mitigate, or remedy any unauthorized processing.

(e)      If the Contracted Business Purposes require the collection of personal information from California consumers on your behalf, the [Service Provider] will provide a CCPA-compliant notice addressing use and collection methods.

(f)       If the CCPA permits, TorchX may aggregate, deidentify, or anonymize personal information of California consumers so it no longer meets the personal information definition, and may use such aggregated, deidentified, or anonymized data for its own research and development purposes. The [Service Provider] will not attempt to or actually re-identify any previously aggregated, deidentified, or anonymized data and will contractually prohibit downstream data recipients from attempting to or actually re-identifying such data.

  1. Assistance with Your CCPA Obligations

(a)      TorchX will reasonably cooperate and assist you with meeting the your CCPA compliance obligations and responding to CCPA-related inquiries, including providing a template privacy policy for any website hosted by TorchX on your behalf, responding to verifiable consumer requests, taking into account the nature of the TorchX’s processing and the information available to TorchX.  TorchX’s provision of a template privacy policy does not constitute and is not a substitute for legal advice.

(b)      TorchX will notify you immediately if it receives any complaint, notice, or communication that directly or indirectly relates either party’s compliance with the CCPA related to the Contracted Business Purposes. Specifically TorchX will notify you within 15 working days if it receives a verifiable consumer request under the CCPA.

  1. No Subcontracting. TorchX will not use a subcontractor to provide the Contracted Business Services.
  2. CCPA Warranties

(a)      Both parties will comply with all applicable requirements of the CCPA when collecting, using, retaining, or disclosing personal information of California consumers.

(c)      Service Provider warrants that it has no reason to believe any CCPA requirements or restrictions prevent it from providing any of the Contracted Business Purposes or otherwise performing under this Agreement. The [Service Provider] will promptly notify you of any changes to the CCPA’s requirements that may adversely affect its performance under the Agreement.

Indemnification

  1.  YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS TORCHX, ITS PARENTS, SUBSIDIARIES, AND AFFILIATES, AND ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, PARTNERS, EMPLOYEES, AGENTS, OTHER CONTRACTORS, SUCCESSORS, AND ASSIGNS (“TORCHX INDEMNITEES”) FROM AND AGAINST ALL CLAIMS, DEMANDS, LAWSUITS, DAMAGES, LIABILITIES, LOSSES, FINES, COSTS, OR EXPENSES (INCLUDING, BUT NOT LIMITED TO, REASONABLE FEES AND DISBURSEMENTS OF COUNSEL AND COURT COSTS), JUDGMENTS, SETTLEMENTS, AND PENALTIES OF EVERY KIND (“LOSSES”) ARISING FROM OR RELATING TO ANY VIOLATION OF THIS AGREEMENT BY YOU AND ANY ACT OR OMISSION BY YOU RELATING TO YOUR USE OF THE PRODUCT.  SPECIFICALLY, AND WITHOUT LIMITATION, YOU SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS THE TORCHX INDEMNITEES FROM AND AGAINST ANY AND ALL LOSSES ARISING FROM: (1) YOUR CONTENT, INCLUDING ANY CLAIMS OF INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OR RIGHTS OF PRIVACY OR PUBLICITY, AND (2) YOUR USE OR MISUSE OF ANY INFORMATION ABOUT END USERS OF YOUR WEBSITE, INCLUDING ANY UNAUTHORIZED ACCESS, USE, OR DISCLOSURE OF SUCH INFORMATION.

Limitation of Liability

  1.  TORCHX has no control over and is not responsible for the content of sites that you may choose to link from your websites.  TORCHX assumes no responsibility for the content of a site your site links to or if a site that you choose to link to has inaccurate data, goes offline, or does not allow linking to it for any reason.  You are independently responsible for the accuracy of Your Content and all content posted on your website, including, without limitation, phone numbers, e-mail, and other contact information.
  2.  To the maximum extent permitted by applicable law and notwithstanding any other provision of this Agreement, in no event shall TORCHX or any of its affiliates or suppliers (including any of its or their partners, officers, employees, agents, other contractors, successors, or assignees) be liable to you or any of your partners, officers, employees, agents, other contractors, successors, or assignees, for any indirect, special, incidental, exemplary, punitive, or consequential damages, whether arising in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), NOR FOR ANY damages arising from delay, loss of goodwill, loss of or damage to data, interruption in use or AVAILABILITY OF DATA (INCLUDING NETWORK OUTAGES DUE TO, WITHOUT LIMITATION, HUMAN ERROR, HARDWARE FAILURE, SOFTWARE FAILURE, OR TELEPHONE COMPANY OR ISP OUTAGES), loss of use of money or use of products, lost profits, revenue or savings (actual or anticipated), or other economic loss ensuing from or in connectiON with (a) the Product; (b) any products and services offered through the Product; OR (C) ANY ACTS OR OMISSIONS OF USERS using THE PRODUCT, even if TORCHX or any of its affiliates or suppliers has been advised of the possibility of such damages.  These limitations shall apply notwithstanding the failure of the essential purpose of any limited remedy.
  3.  YOU EXPRESSLY WAIVE AND RELEASE ANY AND ALL RIGHTS AND BENEFITS UNDER SECTION 1542 OF THE CIVIL CODE OF THE STATE OF CALIFORNIA (OR ANY ANALOGOUS LAW OF ANY OTHER STATE), WHICH READS AS FOLLOWS: “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.”
  4.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TORCHX AND its affiliates AND suppliers (including any of its or their partners, officers, employees, agents, contractors, successors, AND assignees) TO YOU EXCEED THE GREATER OF (A) THE AMOUNT OF FEES PAID OR PAYABLE TO TORCHX BY YOU UNDER THIS AGREEMENT, AND (B) one hundred U.S. dollars ($100).  THIS LIMITATION ON THE AMOUNT OF LIABILITY SHALL APPLY WHETHER A CLAIM OR LIABILITY ARISES in contract, equity, tort, or otherwise (including breach of warranty, negligence, and strict liability in tort), AND EVEN IF TORCHX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR LIABILITY.  THIS LIMITATION SHALL SPECIFICALLY SURVIVE A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.

Third Party Properties

  1.  TORCHX and/or the Product may, from time to time, may refer you to physical venues, geographical sites, websites on the Internet, and/or products or services that are owned, under the control of, or maintained by a third party that is not TORCHX (“Third Party Properties”).  Unless otherwise indicated, such references do not constitute an affiliation with or specific endorsement by TORCHX of any such Third Party Properties.  You acknowledge that TORCHX is providing any references to such Third Party Properties to you solely as a convenience to you, and you agree that TORCHX is not responsible for any injury, harm, damages, or negative experience you may encounter by accessing, visiting, or using such Third Party Properties.  TORCHX does not make any representations about any Third Party Properties.  Additional third-party terms and conditions may apply to your access to or visit or use of Third Party Properties.  Please review any such additional third-party terms and conditions carefully.  You are responsible for complying with any terms of use, license terms and restrictions, and other conditions imposed by third-party service providers.  If you elect to purchase such products or services, you must look solely to the third party with respect to service and warranty claims.

 

  1.  TORCHX is not responsible for any changes made by social media companies.  By choosing to use their products, you are subject to their own terms and conditions, including their privacy policies.

Fees and Billing

  1.  The credit card you provide to TORCHX will be automatically billed monthly for all charges associated with your account.
  2.  If your credit card expires, and you don’t provide TORCHX an updated expiration date, you agree to allow TORCHX to extend the expiration date.
  3.  You will be responsible for applicable monthly service and support fees, which may include fees associated with your website, the Product purchased by you, and additional products and services you may have purchased.
  4.  With respect to the TORCHX Website and Back Office:

(a)   TORCHX Website and Back Office service and support charges begin accruing upon purchase.

(b)    If you are delinquent on a payment, TORCHX may disable your login or deactivate your website, without prior notice.

  1.  With respect to the SEM Product:

(a)    You agree to pay a monthly SEM fee as defined in the SEM Program Details email and you understand and agree that this fee will be billed in arrears to your credit card on file.  The SEM fee will be billed and payable monthly for the previous month’s service.

(b)   Payment for the previous month’s service will automatically be charged to your credit card on file.

(c)     In the event TORCHX is unable to successfully charge your credit card, you will have 10 days to provide an alternate form of payment.  After the 10-day grace period, the SEM Product will be suspended and your traffic program will be paused.  TORCHX will not be required to deliver traffic for a paused campaign.  You are still responsible for the completion of the SEM Product term, even if TORCHX has paused your traffic due to non-payment.

  1.  Fees are non-refundable; provided, however, that TORCHX may review and modify the fees charged and payments made in any transaction, in its sole discretion, based on any complaint or report of special circumstances concerning a transaction.
  2.  TORCHX may make promotional offers with different features and different rates for products and services offered through the Product.  These promotional offers, unless made to you, shall have no bearing whatsoever on your access to and use of the Product.

Cancellations

  1.  You agree to pay any one-time and recurring charges as defined in this Agreement for the length of the term for each Product you purchase.
  2.  IF YOU TERMINATE ANY PRODUCT PRIOR TO THE COMPLETION OF AN INITIAL PRODUCT TERM OTHER THAN DUE TO A MATERIAL CHANGE MADE BY US TO THE FUNCTIONALITY OF THE PRODUCT OR TO THIS AGREEMENT, ALL FEES FOR THE FULL PRODUCT TERM WILL BECOME DUE IMMEDIATELY PRIOR TO TERMINATION.
  3.  Products under contract cannot be downgraded to a less expensive monthly fee until the initial Product term has expired.
  4.   With respect to the TORCHX Website and Back Office:

(a)   At the end of the initial Product term, the TORCHX Website and Back Office shall automatically renew on a month-to-month basis.

(b)   You may terminate the TORCHX Website and Back Office during the month-to-month renewal term upon at least 30 days’ prior notice.  You will be responsible for any charges incurred after your 30-day notice is given, which includes, but is not limited to, monthly website service and support.

  1.    With respect to the SEM Product:

(a)   At the end of the initial SEM Product term, the SEM Product shall automatically renew on a month-to-month basis.

(b)   You may terminate the SEM Product during the month-to-month renewal term upon at least 30 days’ prior notice.

(c)   Notices not given at least 30 days prior to the end of the current billing cycle will result in cancellation at the end of the following month’s billing period.

  1.  Termination of one Product does not absolve you from the terms applicable to any other Product.  You are still bound by any active contract terms.
  2.  In order to protect your account, if you wish to cancel your service, you must contact TORCHX Client Advocacy via telephone at (888) 428-9659 so that we can authenticate that you are the authorized account user.  All cancellation requests must be verbally communicated directly to a TORCHX Client Advocacy Representative.  An email will be sent to the email address on file to confirm cancellation.

Operation of the Product from the United States of America

  1.  Access to and use of the Product are unauthorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation this section.
  2.  By accessing and using the Product, you acknowledge and agree that TORCHX controls and operates all parts of the Product from its offices in the United States of America and that the Product is intended for use by users located in the United States of America.  Unless expressly stated to the contrary, TORCHX makes no representation that the Product is appropriate or will be available for use in other locations.  Unless otherwise explicitly stated, all marketing or promotional materials found on or accessible through the Product are solely directed to individuals, companies, or other entities located in the United States of America.  TORCHX reserves the right to limit, in its sole discretion, the provision and quantity of any feature, product, or service to any person or geographic area.  Any offer for any feature, product, or service made on or through the Product is void where prohibited.  If you access or use the Product from outside the United States of America, you are entirely responsible for compliance with applicable local laws and other applicable laws.  You may not use any portion of the Product in violation of applicable export laws and regulations.
  3.  If you access the Product from outside the United States, you acknowledge and agree that your information may be transferred to and maintained on computers and servers located outside of your state, province, country, or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction.  Your consent to the Agreement followed by your submission of such information represents your agreement to the transfer of such information to the United States and the collection, use, and disclosure of your information in accordance with United States law and the TORCHX Privacy Policy.

Governing Law

  1.  This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California and the federal laws of the United States of America, without regard to the choice or conflicts of law provisions of any jurisdiction.
  2.  Any controversy, claim, or dispute arising out of or related to this Agreement (or the interpretation, performance, or breach of this Agreement) or any Product or other product, service, or content provided or made available by TORCHX (a “Dispute”) shall be solely and exclusively resolved according to the procedures set forth in this section.  If we are unable to resolve any Dispute through informal means, either party may initiate binding arbitration of such Dispute.  Except as described in this section, the arbitration shall be initiated and conducted according to the Rules of the American Arbitration Association then in effect (the “Arbitration Rules”).  The arbitration shall be conducted in the County of San Diego, California, before a single neutral arbitrator appointed in accordance with the Arbitration Rules.  The arbitrator’s decision shall be controlled by this Agreement and any other applicable written agreement between us.  No Disputes may be arbitrated on a class or representative basis; arbitration shall decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.  The arbitrator shall not have the power to award punitive damages against any party.

 

  1.  BY ENTERING INTO THESE TERMS, YOU IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE.  ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE AS ASSERTED INDIVIDUALLY.
  2.  If TORCHX does take any legal action against you as a result of your violation of the Agreement, TORCHX will be entitled to recover from you, and you agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief granted to TORCHX.  You agree that TORCHX will not be liable to you or to any third party for termination of your access to or use of any part of the Product as a result of your breach of the Agreement.

Modifications to this Agreement

  1.    We may modify the Agreement at any time and in our sole discretion.  We will use commercially reasonable efforts to publish to you any revised portion of the Agreement, for example, by publishing the latest version of these terms and conditions at http://www.TorchX.com/terms-conditions/; through email; and/or by posting a notice in your website’s back office/content management tool (e.g., the TORCHX Back Office).  Should you deem any such modification to the Agreement to be unacceptable, you shall stop accessing and using the Product.  All changes to the Agreement shall be effective immediately.  Your continued use of the Product will constitute your acceptance of any change to the Agreement.

Force Majeure

  1. In the event TORCHX’s performance of this Agreement, or any obligation hereunder, is prevented, restricted, or interfered with by reason of acts of God or of the public enemy, acts of the Government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of TORCHX, TORCHX shall be excused from such performance on a day-to-day basis to the extent of such prevention, restriction or interference.

Miscellaneous

    1.  You agree to accept notices delivered via e-mail from TORCHX regarding the Product, service, billing, and marketing-related content.  TORCHX agrees not to release your e-mail address to third parties for solicitation purposes.
    2.  If any part of the Agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, 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 the Agreement shall continue in effect.
    3.      This Agreement is the complete and exclusive statement regarding the subject matter of the Agreement and supersedes all prior and contemporaneous agreements, understandings, and communications, oral or written, between you and TORCHX regarding such subject matter.
    4.     The waiver of any provision on one occasion will not constitute a waiver of such provision on any other occasion, and any failure to enforce any of the provisions of this Agreement will not constitute a waiver.  No waiver of a right or remedy under this Agreement will be binding upon a party unless it is in writing and signed by its authorized representative.
    5.   This Agreement does not create any agency or partnership relationship.
    6. You may not assign this Agreement, in whole or in part, to any other person or entity without the prior written consent of TORCHX.  Any purported assignment lacking such consent will be void at its inception.  TORCHX may assign this Agreement without your consent, including in connection with a merger, a sale of equity, a sale of assets, or other similar organizational transaction.
    7. This Agreement is binding upon and inures to the benefit of the parties and their heirs, executors, legal and personal representatives, successors and permitted assigns, as the case may be.

 

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