These Touchstone User Access Terms (“Agreement”) are a binding agreement between the organization identified in the application form as the user ("You" or “Your”) and Alchemy Worx Limited, a Georgia corporation with offices at 3399 Peachtree Rd., NE Suite 400, Atlanta, GA 30326 (“Our” or “Us" or "We"). YOU MUST ACCEPT THESE TERMS BEFORE YOU ARE ALLOWED TO ACCESS TOUCHSTONE. IF YOU DO NOT AGREE TO THESE TERMS DO NOT CLICK “ACCEPT.”
The parties hereby agree as follows:
SYSTEM REQUIREMENTS: THIS SOFTWARE REQUIRES a PC or Apple Mac with Google Chrome (latest version), Mozilla Firefox (latest version), Internet Explorer version 9 or later, Apple Safari (latest version).
“Confidential Information” means any data or information that is provided or obtained from one party under this Agreement that is valuable to its owner and not generally known by the public.
“Database” means our database containing email subject line data.
“Documents” means the online instructions and guidance documentation relating to Touchstone, downloadable template files relating to the Input Data upload process and any other documentation that may be made available on the Website or made available to you during the term of this Agreement.
“Event Outside Our Control” means any act or event beyond either party’s reasonable control, including without limitation failure of public or private telecommunications networks, fire, flood, explosion, war, strike, embargo, government requirement, civil or military authority, acts of God, act or omission of carriers.
“Input Data” means your email subject line data which is uploaded in accordance with Section 4.
“Intellectual Property Rights” means all patents, rights to inventions, copyright and related rights, trade marks and services marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off and unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
“Outputs” means the information produced by Touchstone regarding email subject line ratings including downloadable reports.
“Touchstone” means the remotely hosted web based software application developed and provided by us which is used for assessing email subject line data in email marketing campaigns.
“Virus” means anything or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including but not limited to malware, worms, Trojan horses, viruses and other similar things or devices.
“Website” means www.touchstonetests.io
1.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2 Words in the singular shall include the plural and vice versa.
1.3 Unless specified to the contrary in this agreement, a reference to writing or written includes faxes and emails.
1.4 Any words following the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 USER ACCOUNTS & MEMBERSHIPS
2.1 There are two (2) different types of Touchstone memberships, a free membership and a paid membership. The free membership provides you with the opportunity to search your input data only. If you have a free membership, you can elect to purchase credits to access our database on a per search basis. The paid membership allows either one (1) or five (5) named-users to access Touchstone, at your election. Paid memberships come with unlimited access to your input data and the database during the term of this agreement. Free memberships do not include technical support.
2.2 Before you can use Touchstone, you must register your details with us, create a user-ID and password, and become a member of the website. We reserve the right to refuse to register you as a member of the website. We do not have to provide a reason for such refusal.
2.4 You must keep your membership log-in details and password confidential and require your employees, representatives, contractors, or other users to do the same. You are responsible for any activity that occurs on your membership account, whether or not such activity was authorized by you. You agree to immediately contact us in the event that you believe that the security of your account has been compromised.
3 ACCESS AND USE
3.1 Subject to the terms of this agreement, we grant to you a limited, non-exclusive, non-transferable right to use Touchstone and to access the documents for your internal business purposes only.
3.2 We reserve the right, upon notice to you, to recall or modify all or any part of Touchstone, the website, the documentation, the database, or the output and replace it with another version at any time during the term of this agreement.
3.3 You acknowledge that Touchstone has not been developed to meet your requirements, and that it is therefore your responsibility to ensure that the facilities and functions of Touchstone as described in the documents meet your requirements.
3.4 We only supply Touchstone, the outputs, the database, and the documents for your internal business use and you agree not to use Touchstone, the outputs, the database, or the documents for any other purposes including, but not limited to sub-licensing, distribution or re-sale purposes.
4 UPLOADING INPUT DATA
4.1 If you upload your input data, you must do so in accordance with our technical requirements set out in more detail at http://touchstone-sl.com/support
4.2 Upon uploading your input data, our system will make an identical electronic copy of that input data and store it in our database. The original upload of your input data will not be transferred from your information systems and will remain under your ownership and control. You grant to us a non-exclusive, perpetual, worldwide, royalty free license to our copy of your input data:
4.2.1 To amalgamate our copy of the input data with other data in our database;
4.2.2 To use all or part of our copy of your input data to provide services to other users via the website or Touchstone;
4.2.3 To use all or part of our copy of your input data for publicity, commissioning, marketing, research, publications and articles;
4.2.4 To share all or part of our copy of the input data with our third party vendors and suppliers to perform the services and to effectuate our publicity, commissioning, marketing, research, publications and articles;
4.2.5 To transfer your input data without your permission or consent.
4.3 The parties acknowledge that the input data does not contain any personally identifiable data and that neither party intends to transfer to the other any personally identifiable data. You warrant that your input data does not contain any personally identifiable data.
4.4 If the person uploading the input data is your employee, agent, contractor, or representative, you represent and warrant that the person has the right, power and authority to upload input data on your behalf.
4.5 You represent and warrant that your input data does not infringe the intellectual property rights of any third party.
5.1 Except as expressly set out in this agreement or as permitted by any local law, you undertake:
5.1.1 Not to copy Touchstone or the documents except where such copying is incidental to normal use of Touchstone, or where it is necessary for the purpose of back-up or operational security;
5.1.2 Not to make alterations to, or modifications of, the whole or any part of Touchstone, nor permit Touchstone or any part of it to be combined with, or become incorporated in, any other programs;
5.1.3 Not to disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of Touchstone nor attempt to do any such thing except to the extent that permitted by law;
5.1.4 To keep Touchstone, the documentation and the outputs in your exclusive possession and control and safeguard them from access by unauthorised persons;
5.1.5 To supervise and control the use of Touchstone and ensure that it is used by your staff, employees and representatives in accordance with the terms of this agreement;
5.1.6 Not attempt to access or make available to third parties Touchstone in whole or in part (including but not limited to object and source program listings, object code and source code).
5.2 You shall not access, store, distribute or transmit any viruses, or any material during the course of using Touchstone which:
5.2.1 is unlawful or infringing;
5.2.2 facilitates illegal activity;
5.2.3 depicts or makes reference to sexually explicit images or material;
5.2.4 promotes unlawful violence;
5.2.5 in a manner that is otherwise illegal or causes damage or injury to any person or property;
5.2.6 in a manner we deem inappropriate in our sole reasonable discretion.
and We reserve the right, without liability or prejudice to our other rights, to disable your access to Touchstone and the website and remove and delete any material that breaches the provisions of this section.
6.1 All payments for the services will be processed by our third party vendor, PayPal. You will be charged by PayPal for the amount of the services you select on our website.
6.2 If you have a paid membership, your credit card or PayPal will be automatically charged each month until you cancel the services. For avoidance of doubt, your credit card will continue to be charged if you fail to cancel your membership and such amounts will not be refundable to you.
6.3 If you elect to upgrade your free membership in order to access our database, you will have to pre-purchase credits using your credit card (which will be processed by PayPal) or your PayPal account to effectuate a purchase. Your credit card or PayPal account (whichever you elect) we be charged each time you elect to purchase more credits.
7 INTELLECTUAL PROPERTY RIGHTS
7.1 You acknowledge that all intellectual property rights in Touchstone, its outputs, the database, and the documents anywhere in the world belong to us or our licensors, that rights in Touchstone, its outputs and the documents are licensed (not sold) to you, and that you have no rights in, or to, Touchstone, the outputs or the documents other than the right to use them in accordance with the terms of this agreement.
8 TERM & TERMINATION
8.1 This agreement shall remain in force until terminated.
8.2 We may terminate your membership at any time upon notice to you by email. In the event that we terminate your membership for convenience, we will provide a refund for any pre-paid services that have not been rendered to you.
8.3 You may terminate your paid membership at any time by following the cancellation process in the membership portion of the Website. You acknowledge that cancelling your paid membership does not delete your account, but downgrades it to a free membership. You acknowledge that if you terminate this Agreement you will not be refunded for any credits or previously paid fees.
8.4 You acknowledge that termination of a paid membership takes two (2) weeks to process. If you terminate a paid membership after the 15th day of the month, your credit card or PayPal account will be charged the amount due for the following month.
9 EFFECT OF TERMINATION
9.1 Upon termination for any reason:
9.1.1 All rights granted to you under this agreement shall cease, including the license granted under Section 3.1;
9.1.2 You must immediately cease all activities authorized by this agreement;
9.1.3 You must immediately delete or remove Touchstone and the documents from all computer equipment in your possession, and immediately destroy or return to us (at our option) all copies of the Touchstone and documents then in your possession, custody or control and, in the case of destruction, certify to us that you have done so.
10.1 Each party may be given access to confidential information from the other party in order to perform its obligations under this agreement. Confidential information shall not include information that:
10.1.1 Is or becomes publicly known other than through any act or omission of the receiving party;
10.1.2 Was in the other party's lawful possession or independently developed before the disclosure as evidence by the receiving party’s written records prepared prior to the date of execution of this agreement by you.
10.2 Each party shall hold the other's confidential information in confidence and, unless required by law, not make the other's confidential information available to any third party, or use the other's confidential information for any purpose other than the implementation of this agreement.
10.3 Neither party will, except as expressly authorized in writing by the disclosing party, use, disclose, or permit any unauthorized person access to, any confidential information; except that the receiving party may disclose such confidential information to its employees, contractors, or representatives who: (i) have a need to know to have access to such confidential information in connection with this agreement; (ii) have been advised of the confidential and proprietary nature of the confidential information; and (iii) are bound by obligations of confidentiality, no less restrictive than the terms of this section 10, to protect from unauthorized disclosure all confidential information to which they have access.
10.4 In the event that the receiving party is required by law or legal process to disclose any of the confidential information, the receiving party shall provide the disclosing party with prompt oral and written notice of such requirement so that the disclosing party may seek a protective order or other appropriate remedy. The receiving party agrees to cooperate with the disclosing party in any reasonable efforts to obtain such remedies.
10.5 The parties agree that a breach of the obligations set forth in this section 10 by either party would be likely to cause irreparable injury to the other which could not be compensated by money damages alone and that each party shall be entitled to seek and obtain temporary and permanent injunctive relief to prevent such injury.
10.6 The obligations of this section 10 shall survival the termination or expiration of this agreement for a period of two (2) years.
11.1 We represent, warrant, and covenant, with that: (i) all of the services will be rendered using sound, professional practices and in a competent and professional manner by knowledgeable, trained, and qualified personnel; (ii) We are the owner of or otherwise have the right to use and license Touchstone to you; and (iii) We will comply with all applicable federal, state and local laws and regulations in the performance of its obligations hereunder.
11.2 We do not warrant that the outputs are or will be accurate. You should not rely solely on the outputs when making a decision about pursuing or ceasing to pursue a particular course of action (for example, whether or not you should use a particular word, sequence of words or sentence when conducting an email marketing campaign.)
11.3 You acknowledge that access to the internet, mobile phone networks and other communication media required for the provision of Touchstone and use of the website are inherently associated with risk including viruses, data security and piracy, availability of the services and reliability of transmission. We do not warrant that Touchstone will be provided without interruption or error-free. We reserve the right to suspend Touchstone and all or any part of the website as may be necessary, in our sole discretion, to undertake routine or emergency maintenance from time to time.
11.4 EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT , any condition, warranty, representation or other term concerning the supply of Touchstone, the website, the database, the outputs and the documents which might otherwise be implied into, or incorporated in, this agreement whether by statute, common law or otherwise, is expressly disclaimed by us to the fullest extent permitted by law.
12.1 You shall defend, indemnify and hold us harmless against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with your use of Touchstone, the website, the database, the outputs, or the documents or otherwise in connection with this agreement.
12.2 We shall defend, indemnify and hold you harmless against any third party claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) based on a claim that Touchstone, the website, the outputs, the database, or the documents infringe such third party’s intellectual property rights.
13 LIMITATION OF LIABILITY
13.1 Neither party shall under any circumstances whatever be liable, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with this agreement, the website, Touchstone, the database, the outputs, and documents for:
13.1.1 loss of profits, sales, business, or revenue;
13.1.2 business interruption;
13.1.3 loss of anticipated savings;
13.1.4 loss or corruption of data or information;
13.1.5 loss of business opportunity;
13.1.6 loss of goodwill or reputation;
13.1.7 loss of opportunity; or
13.1.8 any indirect or consequential loss or damage.
13.2 The limit of our liability (whether in contract, tort, negligence, strict liability in tort or by statute or otherwise) to you in any manner related to this agreement for any and all claims shall not exceed the total amount of the fees paid or payable to us under this agreement in the two (2) months preceding such claim. Sections 11, 12, and 13 set out the full extent of our obligations and liabilities with respect to your use of touchstone, the outputs, the database, and the documents.
13.3 Notwithstanding the foregoing, the provisions of sections 11.1, 12, 13.1 and 13.2 do not apply to you if you have a free membership of touchstone. If you have a free membership, you use touchstone at your own risk. You acknowledge that touchstone, the website, the outputs and the documents are provided “as is” without warranty of any kind either express or implied including but not limited to the implied warranties of quality, fitness for a particular purpose and time for performance. We have no liability for your use of touchstone, the website, the outputs, and the documents and you are not entitled to any damages associated therewith, whether direct, indirect or consequential.
14 FORCE MAJEURE
14.1 Neither party will be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this agreement that is caused by an event outside our control.
14.2 If an event outside our control takes place that affects the performance of the obligations under this agreement:
14.2.1 Such obligations under this agreement will be suspended and the time for performance of these obligations will be extended for the duration of the event outside our control;
14.2.2 The party experiencing the event outside our control will use reasonable efforts to find a solution by which its obligations under this agreement may be performed despite the event outside our control.
15 GENERAL TERMS
15.1 You may only assign your rights or your obligations under this agreement with our prior written consent.
15.2 This agreement and any document expressly referred to in it constitute the entire agreement between you and us and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this agreement. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of us which is not set out in this agreement or any document expressly referred to in it.
15.3 If we fail to insist that you perform any of your obligations under this agreement, or if we do not enforce our rights against you, or if we delay in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If we do waive a default by you, we will only do so in writing, and that will not mean that we will automatically waive any later default by you.
15.4 You agree that we may use your company name or refer to you directly or indirectly in our advertisement, news releases, or professional or trade publications without prior written approval from you.
15.5 This agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both parties.
15.6 The parties to this agreement are independent contractors and nothing in this agreement will be construed as creating an employment relationship, joint venture, partnership, agency or fiduciary relationship between the parties. No party has any right or power under this agreement to create any obligation, expressed or implied, or any obligation or liability, or to otherwise bind the other party.
15.7 This agreement shall be in all respects governed by the laws of the state of Georgia, without reference to its conflicts of laws. Each party submits to the exclusive jurisdiction of the courts of the state of Georgia and the united states district court for the northern district of Georgia. Each party expressly waives any and all rights to bring any action in or before any court other than those of the state of Georgia. Each of the parties expressly waives any and all objections such party may have to venue, including, without limitation, the inconvenience of such forum, in any of such courts.
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