Touchcast Terms of Service and End User License Agreement

1. Your Acceptance

• These Terms of Service and End User License Agreement (this “Agreement”) between you and TouchCast, Inc (hereinafter referred to as “TouchCast”, “we”, or “us”) governs your use of the TouchCast website and all TouchCast products, software, applications and services, and all aspects and features therein, provided to you on, from, or through the TouchCast website or the Distribution Channels, as defined below, including, without limitation, your use of the Licensed Application (as defined herein) (collectively, the “Service”). The “Service” includes all aspects of the services offered by TouchCast, including but not limited to all products, software, applications, and other services offered via the Licensed Application or the TouchCast website.
• This Agreement is between you and TouchCast only. This Agreement is not with the applicable distributor of the TouchCast products, software, applications or services, including but not limited to Apple, Inc., Google Inc., or Microsoft Corp. (the “Distribution Channel(s)”), and TouchCast, not the Distribution Channel(s), is solely responsible for the Service and the content thereof.
• By using the Service you signify your agreement to (i) this Agreement, and (ii) TouchCast’s Privacy Policy, found at www.touchcast.com/privacy. If you do not agree to any of these terms or the TouchCast Privacy Policy, you are not permitted to use the Service.
• You should periodically review the most up-to-date version of the Agreement, located at http://touchcast.com/terms. TouchCast may, in its sole discretion, amend, modify, or revise this Agreement and other policies at any time, and you agree to be bound by such amendments, modifications, or revisions. Your use of the Service after we post a revised version of the Agreement and a notice about the revisions indicates to us that you have agreed to be bound by the revised Agreement. If the revised Agreement is not acceptable to you, your only recourse will be to stop using the Service.

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2. Service

• This Agreement applies to all users of the Service, unless superseded by a separate Enterprise Agreement as set forth in Section 5 below.
• The Service may contain data and links to third party websites that are not owned or controlled by TouchCast. TouchCast has no control over any such third party websites, information, materials, products or services, and TouchCast assumes no responsibility for the content, privacy policies, or practices of any third party websites. If you access any third party website, service, or content by using the Service, you agree that TouchCast will have no liability arising from your use of or access to any third party website, service, or content. We encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policies of third party websites that you visit.
• TouchCast integrates with third-party services (e.g., Zoom) to automate the uploading of media assets from the third-party service to the Service. Your use of any third-party service may be subject to the third party provider’s terms and conditions, intellectual property restrictions and privacy policy and may involve the disclosure or transfer of information from or about you to the third-party provider. You acknowledge and agree that TouchCast is not responsible for the availability of any third-party services and that TouchCast shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with you use of or interaction with any third-party services. By using these third-party integrations, you agree and acknowledge that media assets ingested from third-party services and associated with your TouchCast account are processed according to the same guidelines that apply to the your other media assets and data stored on the Service. Retention of media assets ingested from third-party services is controlled by you, and you may choose to retain such media assets even after ending your relationship with the third-party service. Processing and retention of data from third-party services may also be subject to the privacy policies and terms of use of those third-party services.

• The option in TouchCast’s service to export to YouTube is implemented as a YouTube Data API Client application. To upload videos created on TouchCast directly into the user’s YouTube account, a Google account as well as a YouTube channel is required.
  Use of the API Client is governed by YouTube’s Terms of Service (ToS) and Google’s Privacy Policy. When granting the API Client access to the user’s account, permission is given to manage the user’s YouTube channel. This access can be revoked in the user’s Google account security settings permissions page.

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3. License Grant

• Application License. Subject to your compliance with this Agreement, TouchCast grants you a limited, non-exclusive, non-transferable (except for users to whom you provide a license to use the Service while logged in through the TouchCast’s login mechanism (each, an “Authenticated User”) to Create, view and interact with Touchcasts as provided herein) license to download and use the TouchCast authoring tool application(s) and its companion applications (individually and/or collectively, the “Licensed Application”) as follows and subject to the respective account terms and restrictions set forth in the account descriptions located at [LINK] as amended from time to time (“Account Terms”): (i) for Authenticated Users to download and use the Licensed Application to create and edit Touchcasts and to view and interact with such Touchcasts for an unlimited number of views (“Authenticated Views”), (ii) for persons other than authenticated users, including persons who view Touchcasts while using a view-only account (each, a “Non-Authenticated User”) to view and interact with such Touchcasts, but not to create or edit Touchcasts, up to the number of views permitted according to the respective account terms and restrictions set forth in the Account Terms (“Non-Authenticated Views”), (iii) for Authenticated Users to use TouchCast Stock to incorporate stock videos, photos, illustrations, audio tracks and sound effects into such Touchcasts, (iv) for Authenticated Users to use TouchCast Academy to view and interact with videos therein, and (v) for Authenticated Users the amount of storage per the respective account limit set forth in the Account Terms; all only to the extent of the terms and restrictions for the respective account set forth in the Account Terms and in accordance with the terms and conditions of this Agreement (collectively, the “License”). You shall only download the Licensed Application from a TouchCast-authorized source (including but not limited to the Apple App Store, Google Play, Microsoft Store, the Amazon App Store, the Google Chrome Web Store, HockeyApp, Diawi, or Airwatch MDM (collectively, “Platform Store”)) and to install and use the Licensed Application on any phone, tablet or other device, mobile or otherwise, using any compatible operating system that you own or control and as permitted by the usage rules set forth in the terms of service of the relevant Platform Store or Distribution Channel(s). For clarity, the Licensed Application refers to the standard version(s) of the respective TouchCast application(s), including but not limited to TouchCast Studio, Pitch, TeamTime, Fabric Portal, TouchCast Stock and TouchCast Academy, as well as any customized version of the foregoing which may be offered by TouchCast.
• Content License. Subject to your compliance with this Agreement, TouchCast grants you a limited, non-exclusive, revocable, non-transferable and non-sublicensable license to (1) access and use the Service, and (2) access, use, view, download, combine with other Content, make derivative works of, reproduce, distribute copies of, disseminate, publicly display and publicly perform Content, when using the Service, subject to any terms or limitations applicable to such Content. For purposes of this Agreement, “Content” includes user comments, text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, video applications, and other materials you may view on, access through, or contribute to the Service, except to the extent incorporating, based on or derived by any of the stock videos, photos, illustrations, audio tracks or sound effects provided by TouchCast in its TouchCast Stock service or from another application in the Service.
• License Restrictions. You agree that you will not use or exploit the Service or any Content, or any intellectual property rights in them, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you as set out in this Agreement.
• You grant to TouchCast permission to publicize the fact that you are a customer and use the Service and your related Intellectual Property in TouchCast’s sales, marketing and general promotion of the company, the Service and related Intellectual Property. Towards that end, you grant to TouchCast a non-exclusive, royalty-free, worldwide, perpetual right and license to use your name in such publicity.
• You may at any time during the Term (particularly shortly before the end of a term) download and store .TCT files and .TCP files locally or on the Service (subject to any storage limitations) and may convert same into a non-interactive .mp4 file.

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4. TouchCast Accounts

• The License shall be subject to the terms and restrictions set forth in the Account Terms.
• Some features of the Service do not require a download; however, in order to access the Service, you will need to create a TouchCast account (an “Account”) and password. When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your Account, and you must keep your account password secure. You must notify TouchCast immediately of any breach of security or unauthorized use of your Account.
• Although TouchCast will not be liable for your losses caused by any unauthorized use of your Account, you may be liable for the losses of TouchCast or others due to such unauthorized use.
• Your use of the Service and Licensed Application shall be determined by the type of Account licensed and subject to the terms and limitations set forth in the Account Terms. TouchCast reserves the right to charge fees in exchange for access to certain features of the Service in the future upon thirty (30) days prior written notice to you. TouchCast reserves the right to change existing payment terms and fees upon thirty (30) days’ prior written notice to you. You can cancel access to the Service at any time upon thirty (30) days’ written notice to TouchCast. Notwithstanding the foregoing, in the event of a purchase of an annual subscription, you may not modify cancel access to the Service until the end of the one (1) year term, or modify the account type and number of variable terms, except where expressly set forth herein or in the Account Terms.

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5. Your Use of the Service – Limitations

TouchCast grants you permission to access and use the Service as set forth in this Agreement, provided that:

• You agree to use the Service and the Content (in whole or in part) solely in the manner intended for use by TouchCast.
• You agree not to alter or modify any part of the Service.
• You agree not to access Content or any .TCT file or .TCP file through any technology or means other than the video playback pages of the Service itself or other explicitly authorized means that TouchCast may designate.
• You agree not to use or launch any automated system, including without limitation, robots, spiders, or offline readers, that accesses the Service in a manner that sends more request messages to the TouchCast servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, TouchCast grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. TouchCast reserves the right to revoke these exceptions either generally or in specific cases.
• You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments or email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
• 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.
• In your use of the Service, you will comply with all applicable laws.
• TouchCast reserves the right to discontinue any aspect of the Service at any time.

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6. Your Use of Content – Limitation

In addition to the general restrictions above, the following restrictions and conditions apply specifically to your use of Content.

• The Content on the Service, and the trademarks, service marks and logos made available by TouchCast on the Service are owned by or licensed to TouchCast, subject to copyright and other intellectual property rights under the law. You may not use the TouchCast trademarks, service marks and logos without TouchCast’s prior written permission.
• Content is provided to you AS IS. You may access Content for your personal use solely as intended through the provided functionality of the Service, and solely for Streaming, and as permitted under this Agreement. “Streaming” means a contemporaneous digital transmission of the material by the Service via the Internet to a user operated Internet enabled device in such a manner that the data is intended for real-time viewing and not intended to be downloaded (either permanently or temporarily), copied, stored, or redistributed by the user.
• You shall not download any Content unless you see a “download” or similar link displayed by TouchCast on the Service for that Content. Notwithstanding the foregoing, if such Content has been uploaded to YouTube, you may download the underlying video file via a “download” or similar link displayed by YouTube. You shall not copy, reproduce, distribute, transmit, broadcast, display, sell, license, or otherwise exploit any Content for any other purposes without the prior written consent of TouchCast or the respective licensors of the Content. TouchCast and its licensors reserve all rights not expressly granted in and to the Service and the Content.
• You agree not to circumvent, disable or otherwise interfere with security- related features of the Service or features that prevent or restrict use or copying of any Content or enforce limitations on use of the Service or the Content therein.
• You understand that when using the Service, you will be exposed to Content from a variety of sources, and that TouchCast is not responsible for the accuracy, safety, usefulness, or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against TouchCast with respect thereto.

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7. Education Account Users’ Content and Conduct

• As a TouchCast Education Account user you may submit Content to the Service, including videos, video applications (“User-Created vApps”), and user comments. You understand that TouchCast does not guarantee any confidentiality with respect to any Content you submit.
• All users of the Service retain all of their ownership rights in their Content; however, by submitting Content to TouchCast, Education Account users hereby grant TouchCast a perpetual, irrevocable worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, publicly display, and publicly perform the Content in connection with the Service and TouchCast’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Content (and derivative works thereof) in any media formats and through any media channels, including as permitted through the functionality of the Service and under this Agreement. Education Account users also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, prepare derivative works, publicly display and publicly perform such Content in any media format and through any media channels, including as permitted through the functionality of the Service and under this Agreement. The above licenses granted by Education Account users are perpetual and irrevocable.
• You unconditionally and irrevocably waive, in respect of your Content, all moral rights or similar rights (including, without limitation, all rights of attribution, paternity and integrity) to which you may now or at any future time be entitled under the applicable law of any jurisdiction with respect to uses of your Content permitted under this Agreement. This waiver is made in favor of TouchCast and shall extend to TouchCast’s licensees, sub-licensees, successors and assigns. To the extent that such rights cannot be waived you hereby covenant not to assert any such rights against TouchCast or any of its licensees, sub-licensees, successors or assigns, and to the extent that such covenant is deemed unenforceable, you hereby expressly authorize and direct TouchCast to determine whether to provide attribution in respect of uses of your Content permitted under this Agreement.
• You agree that you will not submit to the Service any Content or other material that is contrary to the TouchCast Community Content Rules, currently found at http://touchcast.com/guidelines which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations. You further agree that you will not submit to the Service any User-Created vApps that violate any of (i) the Terms of Service of the relevant Platform Store or the Distribution Channel or (ii) the TouchCast Community Content Rules.
• Notwithstanding anything in this Agreement to the contrary, as a TouchCast Education Account user you shall not be permitted to download, distribute, or otherwise use the Services on a mobile device management (MDM) or similar basis or platform without the express written consent of TouchCast.
• As an Education Account user, you hereby represent and warrant that you, and all users you provide access to the Service to, are at least thirteen (13) years of age and will not distribute the Service, Licensed Application, or any Touchcast to anyone who is not at least thirteen (13) years of age.

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8. Intellectual Property Rights

• You and TouchCast acknowledge that, in the event of any third party claim that the Service or your possession of the Licensed Application or use of the Service infringes that third party’s intellectual property rights, TouchCast, not the Distribution Channel(s), is solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.
• You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit. You license to TouchCast all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service and other uses pursuant to this Agreement.
• You agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant TouchCast all of the license rights granted herein.
• TouchCast does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and TouchCast expressly disclaims any and all liability in connection with the Content.
• TouchCast does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and TouchCast will remove Content if properly notified pursuant to Section 12 below that such Content infringes on another’s intellectual property rights. TouchCast reserves the right to remove infringing Content, to terminate your use of the Service, or take action deemed appropriate by TouchCast under the circumstances presented, without prior notice.
• Notwithstanding the foregoing or anything contained in Section 7, to the extent you provide specific suggestions, comments or feedback (whether orally or in writing) relating to the Service (“Feedback”) to TouchCast and TouchCast decides to incorporate such Feedback in its Service or processes, you hereby transfer and assign to TouchCast any and all rights title and interest in and to such Feedback.
• Further notwithstanding the foregoing or anything contained in Section 7, you acknowledge that TouchCast shall own all Intellectual Property Rights in generic User-Created vApps and may incorporate them or any part of them into videos or video applications developed by TouchCast.  Moreover, you acknowledge that TouchCast’s or any other user’s Content (whether created or commissioned by, or licensed to, TouchCast and whether based on your Content or otherwise) may be identical or substantially similar to your Content including your User-Created vApps, or the concepts contained therein, and you shall have no legal recourse in respect thereof or be entitled to obtain any injunction or similar relief.

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9. Account Termination Policy

• If an Education Account user’s Account has no activity for three (3) months or longer, TouchCast will send a notification to the Education Account user that such user has three (3) months to claim a non-interactive version of its Content; otherwise, TouchCast reserves the right to remove such Content.
• If an Individual Account user, Business Account user or an Enterprise Account user terminates its Account, TouchCast will send a notification to such user that such user has six (6) months to claim a non-interactive version of its Content; otherwise, TouchCast reserves the right to remove such Content.
• TouchCast may suspend or terminate a user’s right to submit content or his/her access to the Service if the user is reasonably believed to be a repeat infringer of intellectual property rights of third parties.
• TouchCast reserves the right to decide whether Content violates this Agreement for reasons other than copyright infringement, including without limitation for pornography, obscenity, excessive length, or in the case of Education Account users, violation of the covenants set forth in Section 7 hereof. TouchCast may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user’s account for submitting such material in violation of this Agreement.

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10. Warranty Disclaimer

• YOU AGREE THAT YOUR USE OF THE SERVICE SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, TOUCHCAST, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICE AND YOUR USE THEREOF. TOUCHCAST MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THIS SITE’S CONTENT OR THE CONTENT OF ANY SITES LINKED TO THIS SITE AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE. TOUCHCAST DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND TOUCHCAST WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD PARTY PROVIDERS OF PRODUCTS OR SERVICES.
• As between TouchCast and the Distribution Channel(s), TouchCast is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Licensed Application to conform to any applicable warranty, you may notify the Distribution Channel(s), and the Distribution Channel(s) will refund the purchase price for the Licensed Application directly. To the maximum extent permitted by applicable law, the Distribution Channel(s) has no other warranty obligation whatsoever with respect to the Licensed Application, and any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be TouchCast’s sole responsibility.

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11. Maintenance and Support; Product Claims

• TouchCast is solely responsible for providing any maintenance and support services with respect to the Licensed Application and the Service, as specified in this Agreement or as required under applicable law. You and TouchCast acknowledge that the Distribution Channel(s) has no obligation whatsoever to furnish any maintenance and support services with respect to the Licensed Application or the Service.
• TouchCast, not the Distribution Channel(s), is responsible for addressing any claims relating to the Licensed Application or the Service or your possession and/or use thereof, including, but not limited to: (i) product liability claims; (ii) any claim that the Licensed Application or the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.

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12. Digital Millennium Copyright Act

• If you are a copyright owner or an agent thereof and believe that any Content infringes your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing our Copyright Agent with the following information in writing (see 17 U.S.C 512(c)(3) for further detail):
• A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
• Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an e-mail address;
• 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 the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
• TouchCast’s designated Copyright Agent to receive notifications of claimed infringement is Alyson Schwartz, email: contracts@touchcast.com. For clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to TouchCast customer service through support@touchcast.com. You acknowledge that if you fail to comply with all of the requirements of this Section 12, your DMCA notice may not be valid.
• Counter-Notice. If you believe that your Content that was removed (or to which access was disabled) is not infringing, or that you have authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the material in your Content, you may send a counter-notice containing the following information to the Copyright Agent:
• Your physical or electronic signature;
• Identification of the Content that has been removed or to which access has been disabled and the location at which the Content appeared before it was removed or disabled;
• A statement that you have a good faith belief that the Content was removed or disabled as a result of mistake or a misidentification of the Content; and
• Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in Delaware, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
• If a counter-notice is received by the Copyright Agent, TouchCast may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed Content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the Content provider, member, or user, the removed Content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at TouchCast’s sole discretion.

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13. Limitation of Liability

IN NO EVENT SHALL TOUCHCAST OR ITS AFFILIATES OR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM (I) ANY ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICE, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONALLY IDENTIFIABLE INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICE BY ANY THIRD PARTY, AND/OR (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU SPECIFICALLY ACKNOWLEDGE THAT TOUCHCAST SHALL NOT BE LIABLE FOR THE CONTENT OR THE DEFAMATORY, OFFENSIVE, ILLEGAL OR OTHER CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

The Service is controlled and offered by TouchCast from its facilities in the United States of America. TouchCast makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are responsible for compliance with local law.

14. Indemnity

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless TouchCast, its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorneys’ fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, other intellectual property, or privacy right; or (iv) any claim that your Content caused damage to a third party. Your indemnification obligation under this Section 14 will survive this Agreement and your use of the Service.

15. Data Privacy

• In respect of your use of the Service and in relation to any personally identifiable and other data and information you provide to TouchCast, you expressly consent to the use and disclosure of that data and information as described in the Privacy Policy. You are responsible for complying with all applicable data protection and privacy laws in respect of your use of the Service and with regard to any personal data that you provide to TouchCast through the Service. TouchCast may process and store your Content in the United States or any other country in which TouchCast or its agents maintain facilities and, by using the Service, you consent to this processing and storage of Your Content.

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16. Ability to Accept Agreement

• You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service.
• You hereby warrant and represent that if you permit the use of the Service, or any party thereof, by any minor under 13 years of age, that you shall (1) have obtained a parental consent from said minor’s parent or guardian to allow the minor’s use of Service or any part thereof and (2) accept responsibility for and comply with all restrictions and obligations of the Children’s Online Privacy Protection Act (COPPA).

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17. Assignment

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by TouchCast without restriction.

18. Third Party Beneficiaries

The Distribution Channel(s), and the Distribution Channel(s)’ subsidiaries, are third party beneficiaries of this Agreement. Upon your acceptance of the terms and conditions of this Agreement, the Distribution Channel(s) will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.

19. Governing Law; Jurisdiction; Injunctive Relief; Arbitration

• For purposes of jurisdiction and venue in any legal action against TouchCast and/or relating to the Service or the Content, you agree that: (i) the Service shall be deemed solely based in the State of Delaware; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over TouchCast, either specific or general, in jurisdictions other than the State of Delaware. This Agreement shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. Any claim or dispute between you and TouchCast that arises in whole or in part from the use of the Service (or any action pertaining to Content thereon) shall be decided exclusively by a court of competent jurisdiction located in the State of Delaware.
• It is understood and agreed that, notwithstanding any other provisions of this Agreement, actual or threatened breach of the confidentiality, trade secret, intellectual property or license limitation provisions of this Agreement by you, your users, or anyone you permit access to the Service, will cause TouchCast irreparable damage for which recovery of money damages would be inadequate, and that TouchCast shall be entitled to file suit in the courts above or any other court of competent jurisdiction to obtain timely injunctive relief to protect its rights under this Agreement without the requirement of posting bond or other security in addition to any and all remedies available at law. Further notwithstanding any other provisions of this Agreement, in the event such a suit is filed and not dismissed, the court shall have sole jurisdiction over the parties for all issues that may arise, whether or not related to injunctive relief.
• Notwithstanding the foregoing, You and TouchCast agree that in the event a dispute or controversy arises between the parties under or in connection with this Agreement or the use or inability to use the Service, except for claims for injunctive relief as set forth in above, such dispute shall be submitted to arbitration by a single arbitrator appointed by the American Arbitration Association which arbitration shall be conducted in accordance with and governed by its then-current commercial arbitration rules. The arbitrator shall have the right to award attorneys’ fees. Any such arbitration shall be conducted in New York, New York. The parties shall share equally the costs and expenses of any such arbitration. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction.

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20. General

This Agreement, together with the Privacy Policy and any other legal notices published by TouchCast on the TouchCast website, shall constitute the entire agreement between you and TouchCast concerning the Service. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. This Agreement may have been translated for ease of reference, however the controlling terms and conditions shall only be those of the English language version. In the event of any inconsistency between the English language version and any other language version, the English language version shall prevail and is the sole and comprehensive version. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or of any other term, and TouchCast’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in this Agreement, there shall be no third party beneficiaries to this Agreement. TouchCast reserves the right to amend this Agreement at any time and without notice, and it is your responsibility to review this Agreement for any changes. You agree that TouchCast may notify you of the updated Agreement by posting it on the Service, and that your continued use of the Service following any amendment of the Agreement will constitute your acceptance of any modified terms and conditions. YOU AND TOUCHCAST AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

21. Contact Information

You may direct questions, comments, complaints, or claims with respect to the Licensed Application and the Service to: TouchCast Inc, 609 Greenwich Street, 5th Floor, New York, NY 10014 or www.touchcast.com/contactus