Last Updated Mar 1, 2016
INTOUCHCHECK TERMS AND CONDITIONS
This is a legal agreement between you and IntouchCheck a product line of In-Touch Insight Systems Inc. (referred to in these Terms of Service as “IntouchCheck”)
1.1 IMPORTANT: INTOUCHCHECK PROVIDES YOU ACCESS TO CERTAIN SERVICES, PRODUCTS AND FUNCTIONALITY MADE AVAILABLE VIA THE WEBSITE https://www.intouchinsight.com/intouchcheck-mobile-form-software (THE “WEBSITE”) (COLLECTIVELY, THE “SERVICES”) ONLY IF YOU ACCEPT ALL OF THE FOLLOWING TERMS AND CONDITIONS OF SERVICE (“ TERMS OF SERVICE”). YOU SHOULD CAREFULLY READ THESE TERMS OF SERVICE AND UNDERSTAND THAT THEY WILL BE LEGALLY BINDING ON YOU. IF YOU DO NOT AGREE WITH THEM OR DO NOT WANT THEM BINDING ON YOU, YOU SHOULD IMMEDIATELY CEASE YOUR ACCESS TO THE WEBSITE AND THE SERVICES.
1.2 You represent and warrant that you have the legal capacity to form a binding contract with IntouchCheck, and are doing so by your agreement to these Terms of Service. You agree to have this Agreement and any related information made available to you, and to otherwise have communications between you and IntouchCheck, occur electronically.
1.3 You agree to comply with all applicable federal, state, provincial and local laws and regulations that may govern your access to and/or use of the Services (including, without limitation, with respect to intellectual property, privacy, data protection, export and import regulations, and commercial electronic messages), and to respect all applicable third party rights.
1.4 This version of the Terms of Service were last updated, and are effective as of, the “October 2, 2014” indicated above. If IntouchCheck makes material changes to these Terms of Service, we will notify you by email or by posting a notice on our site before the changes are effective. Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to the Terms of Service. Continued use of the Services after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: https://account.check.intouchinsight.com/#/terms. Use of the Services in the future may require you to agree to a new version of these terms that has been amended or modified by IntouchCheck in its sole discretion.
1.5 All rights not expressly granted to you by these Terms of Service are reserved to IntouchCheck.
2.1 For the purposes of this Agreement:
(a) “IntouchCheck content” means any text, sound, graphics, trade-marks, service marks, logos, taglines, trade names and other material owned by IntouchCheck or IntouchCheck licensors and made available or accessed through the Website or the Services;
(b) “IntouchCheck Representatives” means IntouchCheck and its business partners, licensors, agents, content providers (not including you), service providers, employees, officers, directors and representatives;
(c) “Organization” means a group of locations, franchises or other such grouping that are associated by you through the Services;
(d) “your Account” means the user account you must register for in order to use the Services, including, without limitation each Organization, if any, that you create and/or manage through the Services; and
(e) “your content” means any text, sound, photos, graphics, recordings, software, documentation, images or other material of any kind or nature which you post, upload, or otherwise share on or through the Services, and with respect to every Organization, if any, that you create within the Services, all content of those users whom you invite into, or allow access to, such organization(s) shall form part of “your content”.
3.1 The Website is licensed, not sold. Your right to use the Website and the Services is, subject to these Terms of Service and is limited, non-sublicensable, non-exclusive, non-transferable, and revocable right.
3.3 You retain ownership of all of your content. Your profile, audit forms and data uploaded remain yours. However, by setting any of your content to be viewed publicly or shared with other users, you agree to allow others to view your content. By posting, uploading, or sharing your content, you grant IntouchCheck a non-exclusive, sub-licensable, royalty-free, worldwide, and perpetual license to access, use, and display your content in connection with the provision of the Services.
3.4 Subject to any applicable law (and, in the case of personal information, the requirements of Section 5), any communications that you send to IntouchCheck regarding the Services or the Website or which are sent to you via the Website or the Services whether solicited by IntouchCheck or otherwise, are on a non-confidential basis, and IntouchCheck is free to use and disclose the content of any such communication, including any ideas, inventions, concepts or know-how disclosed therein, for any purpose including developing, creating and/or marketing goods and services (including the Website and the Services). You agree to not assert any ownership right of any kind in such communications (including copyright, trade-mark, patent, unfair competition, moral rights, or implied contract). If you send any unsolicited idea, suggestion or other material in any format (“submissions”), to IntouchCheck, you automatically grant to IntouchCheck and its successors and assigns a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the submissions or any ideas, concepts, know-how or techniques associated with the submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or anyone else, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of us or our successors or assigns. You irrevocably waive, in favour of IntouchCheck, its successors, licensors and licencees (including all users), all author’s moral rights in your content and submissions (including the right to be associated with your content or submission) upon submission. You also irrevocably waive the right to receive any financial or other consideration in connection with your content and/or submissions.
4. USE OF THE WEBSITE and the Services
4.1 You must follow the instructions found in any documentation for the Website or the Services relating to the proper use of the Services.
4.2 Use of the Website and the Services may require internet and data access for which you shall be responsible and subject to your internet access provider terms and conditions of use. In no event shall IntouchCheck be liable for any internet or data access fees or other charges incurred by you in connection with your use of the Website or the Services. Any such fees and charges shall be your sole responsibility.
4.3 IntouchCheck does not pre-screen content (including your content), but IntouchCheck and its designees have the right (but not the obligation) in their sole discretion to refuse or remove any content (including your content) that is available via the Service.
4.4 The Website and the Services may be used only for lawful purposes and in a lawful manner. In using the Website and the Services, you agree not to do any of the following:
(a) threaten any person with violence;
(b) use hateful, abusive, harassing, libelous, or obscene language towards any person;
(c) post any material that infringes or violates any third party’s copyright, trade-mark, trade secret, privacy, or other proprietary or property right;
(d) copy any IntouchCheck content onto your own or any other website;
(e) post any material which promotes illegal activity, could constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable law or regulation or this Agreement;
(f) use the Website or the Services to send any commercial electronic messages that are not permitted pursuant to applicable law including, without limitation, commercial electronic messages which you do not have consent to send, as well as any spam, chain letters, junk mail, or any other type of unsolicited mass e-mail or SMS;
(g) use the Services to distribute viruses or other harmful, disruptive, or destructive files;
(h) use the Website or the Services in violation of IntouchCheck’s or any third party's intellectual property or other proprietary or legal rights;
(i) use or attempt to use another person’s account;
(j) disrupt or interfere with the security of, or otherwise abuse, the Services, or any servers or networks connected to the Services;
(k) attempt to obtain unauthorized access to the Website or the Services or any part thereof (including Organizations which you are not authorized to access);
(l) impersonate another person;
(m) share with any minor any content or materials inappropriate for children, or allow any minor access to such materials;
(n) systematically harvest data from the Services, or programmatically register accounts on the Services;
(o) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes;
(p) modify or make derivative works based upon the Website or the Services, or any portion thereof;
(q) “frame” or “mirror” any IntouchCheck content on any other server or wireless or Internet-based device;
(r) reverse engineer or access the Services, including in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Website or the Services;
(s) rent, lease, lend, sell, redistribute or sublicense the Services;
(t) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of Website, any as part of the Website or the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law);
(u) engage in any commercial or promotional distribution, publishing or exploitation of the Website or the Services;
4.5 Support for the IntouchCheck Services is only available in English, via email, telephone or such in-product communication as is made available by IntouchCheck from time to time. IntouchCheck reserves the right to modify, discontinue or add to its support services at any time for any reason.
4.6 You may not use IntouchCheck subdomains in violation of IntouchCheck's trademark or other rights or in violation of applicable law. IntouchCheck reserves the right at all times to reclaim any IntouchCheck subdomain without liability to you.
4.7 You understand that the technical processing and transmission of the Services, including your content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
4.8 If your network bandwidth or file or data storage exceed the limits of your plan we reserve the right to immediately disable your Account until such time as the storage usage is brought below the allowable limit or until additional storage fees are agreed upon and paid.
5. MODIFICATIONS TO THE SERVICES AND PRICES
5.1 IntouchCheck reserves the right at any time, and from time to time and without prior notice or liability to you, to modify or discontinue, temporarily or permanently, the Services (or any part thereof) and/or your access to same, with or without notice to you. Prices of all Services, including but not limited to monthly subscription plan fees for the Services, are subject to change upon 30 days’ notice from IntouchCheck. Such notice may be provided at any time by posting the changes to the Website or the Services. IntouchCheck shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of your Account or of the Services.
5.2 You acknowledge that there is no guarantee that the Website or the Services or any portion or functionality of same will continue to operate or be available for any particular period of time. Further, IntouchCheck may, in its sole discretion, correct any errors or omissions in any portion of the Website or the Services at any time without notice, but has no duty to do so.
6. Your Account
6.1 You acknowledge that the Services currently allow you, using your Account, to access and use the Services as a member of the Organization of another user, or to create and manage your own Organization(s). Where you create your own Organization you will be responsible for the content of those users whom you invite into or otherwise allow to join your Organization. Notwithstanding that you may use the Services as part of another user’s Organization, in all instances, you will remain fully responsible for your own acts and omission and the content that you submit through the Services.
6.2 The Services may only be available to you upon registration for your Account. By registering, you represent and warrant to IntouchCheck that: (a) you are 18 years of age or older and of at least the age of majority in the jurisdiction where you reside as of the time you register with IntouchCheck; (b) all information provided by you to IntouchCheck during the registration process is truthful, accurate and complete; (c) you will comply with all terms and conditions of these Terms of Service, and (d) you are a human or a corporate legal entity, accounts registered by “bots” or other automated methods are strictly prohibited.
6.3 As a registered user, you agree to maintain and promptly update your registration data (including your full legal name, a valid email address and all other information requested in order to complete your Account registration/sign up process) as necessary to keep it true, accurate, current and complete. Your login may only be used by one person - a single login shared by multiple people is not permitted. You may create separate logins for as many people as your plan allows. You will be required to designate one or more administrative user accounts which will have the ability to issue logins (user name and password) for separate users up to the number of distinct authorized users as contemplated in your plan. One person or legal entity may not maintain more than one free account and is only eligible for one Free Trial (as defined below) period to the extent that Free Trials are offered by IntouchCheck.
6.4 IntouchCheck and its service providers will rely on the information you and your authorized users provide. You will be responsible for any and all loss, damage, or additional costs that IntouchCheck and/or all IntouchCheck Representatives may incur as a result of your or any of your authorized users submission of any false, incorrect or incomplete information or your failure or your authorized users to update your registration or other information that you submit via the Website or the Services. You acknowledge that you will be solely responsible for any loss resulting from any unauthorized use of your Account by you and/or each of your authorized users. You agree to immediately notify IntouchCheck of any unauthorized use of your Account. You acknowledge and agree that you are solely responsible for verifying and maintaining the confidentiality, protection, and security of your Account information, including account numbers, user names, and passwords. All liability relating to password management resides with you and under no circumstances, including negligence or misconduct, will IntouchCheck or IntouchCheck Representatives be liable for any damages that result from the use of your Account.
7. API TERMS
You may access your Account data via an Application Program Interface (API). Any use of the API, including use of the API through a third-party product that accesses IntouchCheck, is subject to, and must comply with, these Terms of Service including, without limitation, the following specific terms:
(a) You expressly acknowledge and agree that IntouchCheck shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if IntouchCheck has been advised of the possibility of such damages), resulting from your use of the API or third-party products that access data via the API.
(b) Abuse or excessively frequent requests to IntouchCheck via the API may result in the temporary or permanent suspension of your Account access via the API. IntouchCheck, in its sole discretion, will determine what constitutes abuse or excessive usage of the API. IntouchCheck will make a reasonable attempt via email to warn you prior to suspension.
(c) IntouchCheck reserves the right at any time to modify or discontinue, temporarily or permanently, your access to the API (or any part thereof) with or without notice.
8. Payment, Refunds, Upgrading and Downgrading Terms
8.1 All plans (other than a free trial account established by IntouchCheck for applicable users (“Free Trial”)) must enter a valid credit card or have access codes provided to them by IntouchCheck. Free Trial accounts are not required to provide a credit card number.
8.2 If you are registered under a Free Trial account, if you move from a Free Trial account to a paid account you will be required to provide a valid credit card number or authorized access code at the time of such movement and billing will start immediately.
8.3 For all Services plans other than Free Trial accounts, all of which are monthly payment plans, the fees for the Services are billed in advance on a monthly basis and are non-refundable. There will be no refunds or credits for partial months of Services, for any upgrade or downgrade, or refunds for months unused within an account.
8.4 All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.
8.5 For any upgrade or downgrade in plan level of a monthly payment plan, the credit card that you provided will automatically be charged the new rate on your next billing by IntouchCheck.
8.6 Downgrading your Services plan may cause the loss of your content and any, features, or capacity of your Account, whether by reason of the deletion of elements of your content that exceed your authorized data storage amount or otherwise. IntouchCheck shall not be liable for, and does not accept, any liability for any such loss.
9. your Account Cancellation and Termination
9.1 If you breach any provision of these Terms of Service, then you may no longer use the Website or the Services and you may have your Account cancelled. IntouchCheck, in its discretion, shall determine whether these Terms of Service have been violated.
9.2 IntouchCheck, in its discretion, has the right to suspend or terminate your Account and refuse any and all current or future use of the Services, or any other IntouchCheck service, for any reason at any time. Such termination of the Services will result in the deactivation or deletion of your Account and your access to your Account. IntouchCheck reserves the right to refuse service to anyone for any reason at any time.
9.3 You are solely responsible for properly canceling your Account if you wish to cease using the Services. An email or phone request to cancel your Account is not considered cancellation. You can cancel your Account at any time from the Account Management section of the application. If you cancel the Services before the end of your current paid up month of Service, your cancellation will take effect immediately with no refund, and you will not be charged again.
9.4 Upon the cancellation or termination of your Account, your Content will be deleted upon the expiration of thirty (30) days from the date of cancellation or termination unless you request in writing, prior to the expiration of such period, that IntouchCheck provide you with a copy of your content in a mutually agreed format. Where you make such a request IntouchCheck may agree with you in writing to preserve your content for a reasonable time and to provide you with a copy of your content in a mutually agreed format for such reasonable additional fee as IntouchCheck may determine. Where IntouchCheck does not agree to preserve your content, it will be deleted as per the foregoing.
10. DISCLAIMERS AND LIMITATION OF LIABILITY
10.1 NO DATA TRANSMISSION OVER THE INTERNET CAN BE GUARANTEED TO BE 100% SECURE AND AS A RESULT, INTOUCHCHECK CANNOT ENSURE OR WARRANT THE SECURITY OF ANY INFORMATION OR YOUR CONTENT THAT YOU TRANSMIT TO INTOUCHCHECK.
10.2 THE WEBSITE AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
10.3 THE WEBSITE AND THE SERVICES DO NOT PROVIDE ANY FINANCIAL, TAX OR SECURITIES ADVICE.
10.4 INTOUCHCHECK AND THE INTOUCHCHECK REPRESENTATIVES CANNOT AND DO NOT GUARANTEE AND DO NOT MAKE ANY, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIM, ALL REPRESENTATIONS, WARRANTIES, COVENANTS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF: (a) MERCHANTABILITY, (b) FITNESS FOR A PARTICULAR PURPOSE, (c) NON-INFRINGEMENT, (d) THAT THE WEBSITE OR THE SERVICES WILL MEET YOUR REQUIREMENTS, (e) THAT THE WEBSITE OR THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, (f) THAT DEFECTS OR ERRORS, IF ANY, WILL BE CORRECTED, (g) THAT THE RESULTS THAT MAYBE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE OR (h) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. YOU UNDERSTAND THAT ANY ACCESS TO, USE OF, MODIFICATION TO OR RELIANCE ON THE WEBSITE OR THE SERVICES IS AT YOUR OWN DISCRETION AND RISK.
10.5 You are solely liable and responsible for any and all claims and demands made by any other person arising out of, in connection with, or relating to your use, or that of any Person using a login associated with your Account, of the Website or the Services, your, breach of these Terms of Service, your violation or infringement of the rights of others, or your violation of any applicable civil or criminal law. IntouchCheck disclaims, on its behalf and on behalf of all IntouchCheck Representatives any and all responsibility and liability regarding all such matters. You further agree that you are solely responsible for actions and communications undertaken or transmitted in the course of your usage of the Website and the Services.
10.6 IntouchCheck may investigate occurrences which may involve violations of applicable laws, and may involve, and co-operate with, law enforcement authorities in prosecuting users who are involved in such violations. IntouchCheck reserves the right at all times to disclose any information (including your personal information) regarding your usage of the Website or the Services, in each case as may be permitted or required by applicable law, including as necessary to satisfy any request authorized by applicable law.
10.7 UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL INTOUCHCHECK OR ANY INTOUCHCHECK REPRESENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGES, RESULTING FROM (1) THE USE OR THE INABILITY TO USE THE WEBSITE OR THE SERVICES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF ANY INTOUCHCHECK REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF INTOUCHCHECK OR THE INTOUCHCHECK REPRESENTATIVES EXCEED, IN THE AGGREGATE, THE AMOUNT OF THE FEES PAID BY YOU TO INTOUCHCHECK FOR THE ONE (1) MONTH BILLING PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO YOUR CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.8 Certain links in the Website or the Services may take you to other websites. IntouchCheck Representatives are not responsible for the content of any such linked pages and make no representations or warranties regarding, and do not endorse or approve, any linked websites, the information appearing thereon or any of the products or services described. Your use of any such linked website is at your own risk.
11.1 You agree to indemnify, defend, and hold harmless all IntouchCheck Representatives, from any and all claims and expenses, including reasonable legal fees, arising out of your use of the Website or the Services or from your content, including your violation of these Terms of Service. IntouchCheck may, at its sole discretion, assume the exclusive defense and control of any matter subject to indemnification by you. The assumption of such defense or control by IntouchCheck shall not excuse any of your indemnity obligations.
12. ENTIRE AGREEMENT, AMENDMENT AND ASSIGNMENT
12.1 Any and all prior proposals, understandings, and other agreements, whether oral or written between you and any IntouchCheck Representatives that relate to this subject matter are hereby superseded and merged into these Terms of Service. These Terms of Service may not be modified or altered by you. Notwithstanding the foregoing, IntouchCheck may expressly agree with you in writing to certain customizations to the Services in which case such mutual written agreement shall expressly incorporate by reference these Terms of Service. You may not assign this Agreement, in whole or in part, or any of your rights or obligations hereunder.
13.1 The Services and the Website do not collect information about you other than your registration details. You acknowledge and agree that all personal information collected by IntouchCheck in connection with your use of the Website and the Services is voluntarily and directly provided (e.g., uploaded) by you. You agree that IntouchCheck may use that personal information to facilitate and support your use of the Website. You acknowledge and agree that your use of the Website and the Services shall not involve the collection and use of your personal information or that of other data subjects and you shall not use the Services or the Website to do so.
13.2 For more information about IntouchCheck’s privacy practices, see https://account.check.intouchinsight.com/#/privacy.
14. GOVERNING LAW
14.1 These Terms of Service are governed and will be construed in accordance with the laws applicable and in force in the Province of Ontario, Canada and the federal laws of Canada applicable therein. You hereby irrevocably waive any right to a trial by jury in any action, suit or other legal proceeding arising under or relating to any provision of these Terms of Service, or to the Services, or to the Website.
15.1 The parties confirm hereby that they each require that this agreement and all documents and notices in connection therewith be drawn up in English. Les parties reconnaissent par les présentes que chacune d’elles a exigé que cette convention et tout document ou avis y afférent soient rédigés en anglais.
16.1 IntouchCheck is located at <https://www.intouchinsight.com/intouchcheck-mobile-form-software> and can be contacted at email@example.com.
16.2 If for any reason a court of competent jurisdiction finds any provision of these Terms of Service or any portion thereof to be unlawful, void, or for any reason unenforceable, then that provision shall be enforced to the maximum extent permissible so as to effect the intent of the Agreement, and the remainder of these Terms of Service shall continue in full force and effect.
16.3 No waiver to these Terms of Service shall be effective unless set out in writing. Any failure by IntouchCheck to insist upon or enforce strict performance of any provision of these Terms of Service or any right shall not be construed as a waiver of any such provision or right.
16.4 You and IntouchCheck are independent contractors, and no agency, partnership, joint venture, employment or franchise relationship is intended or created by these Terms of Service or the use of the Website or the Services.
16.5 Nothing in these Terms of Service, whether express or implied, is intended to confer any rights or remedies under or by reason of these Terms of Service on any person, other than IntouchCheck and you and their respective permitted successors and assigns, nor is anything in these Terms of Service intended to relieve or discharge the obligation or liability of any third person to any party, nor give any third person any right of subrogation or action against any party.