TERMS OF SERVICETerms of service are rules by which a user must agree to abide by in order to use the software and services provided by Torchlite.
TORCHLITE TECHNOLOGIES INC.
PLATFORM TERMS OF SERVICETHESE PLATFORM TERMS OF SERVICE (THE “TERMS OF SERVICE”) GOVERN THE USE OF AND ACCESS TO THE PLATFORM (AS DEFINED HEREIN) PROVIDED BY TORCHLITE TECHNOLOGIES INC., A DELAWARE CORPORATION (“TORCHLITE”), WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION FOR THE USE OF THE PLATFORM, A FREE TRIAL OF THE PLATFORM OR ANY OTHER ACCESS TO OR USE OF THE PLATFORM. Each User (AS DEFINED HEREIN) hereby agrees and acknowledges that such User shall be responsible for ALL actions of such User’s employees, independent contractors AND AGENTS (IF ANY) with respect to SUCH USER’S use of the Platform, including any actions that are prohibited herein, BY LAW, or in ANY OTHER AGREEMENT BY AND BETWEEN SUCH USER AND TORCHLITE. Torchlite operates the Torchlite software platform and affiliated websites (and subdomains thereof) (the “Platform”) and provides access to the Platform to (1) companies, other entities, and the employees and independent contractors of such companies and other entities (“Corporate Users”); (2) Torchlite’s independent contractors (“Torchliters”), and (3) other persons, entities, or organizations that access and use the Platform (“Individual Users”) (Corporate Users, Torchliters and Individual Users may be referred to herein individually as a “User”, and, collectively, “Users”), subject to these Terms of Service. These Terms of Service shall be effective as of the date the relevant User accepts these Terms of Service (the “Effective Date”). If any Authorized User (as defined herein) accepts these Terms of Service on behalf of such Authorized User’s company, employer or another entity, then such Authorized User hereby represents and warrants to Torchlite that such Authorized User: (i) has full legal authority to bind such Authorized User’s company, employer, or the applicable entity to these Terms of Service; (ii) has read and understands these Terms of Service; and (iii) agrees, on behalf of the party represented, to these Terms of Service. Each Authorized User hereby represents to Torchlite that such Authorized User is at least eighteen (18) years of age. Torchlite may modify these Terms of Service at any time, provided that each User will have an opportunity to review and accept the modified Terms of Service. If a User fails to accept such modified Terms of Service, then Torchlite reserves the right to terminate access and use of the Platform upon the termination of the relevant Subscription Term.
- DEFINITIONS. The following terms shall have the following definitions as used in these Terms of Service:
- Torchliter License. These Terms of Service supplement and incorporate that certain Torchliter Agreement by and between Torchlite and each Torchliter, pursuant to which Torchlite has granted each Torchliter a limited, non-transferable, non-sublicensable, non-exclusive, revocable license to use the Platform for the provision of services to or on behalf of Torchlite (“Torchliter License”).
- Corporate User License. Torchlite hereby grants each Corporate User a limited, non-transferable, non-sublicensable, non-exclusive, revocable license (a “Corporate License”) to use the Platform for the purposes of receiving the Services, which receipt of Services shall be subject to the terms and conditions set forth herein and those terms and conditions contained in that certain Marketing and Advertising Agreement by and between such Corporate User and Torchlite. Torchlite retains any and all rights in the Platform not expressly granted to the Corporate User hereunder.
- Individual User License. Torchlite hereby grants each Individual User a limited, non-transferable, non-sublicensable, non-exclusive, revocable license (an “Individual License”) to use the Platform to submit and download User Content. Torchlite retains any and all rights in the Platform not expressly granted to the Individual User hereunder.
- Provision of Platform. During the Subscription Term, and subject to all terms and conditions of these Terms of Service, Torchlite will use commercially reasonable efforts to provide the Platform to User. Torchlite may provide the Platform using third party vendors or service providers. User may have the right to register Authorized Users, who may access and use the Service. User’s use of the Platform under a Subscription may be measured based on the number of Authorized Users described in the Subscription. If a User adds more Authorized Users than the number purchased, then Torchlite shall have the right to impose additional charges for such additional Authorized Users on an ongoing basis.
- Updates to the Platform. These Terms of Service shall govern any updates to, or supplements or replacements for, the Platform unless separate terms accompany such updates, supplements, or replacements, in which case such separate terms will apply.
- Limitations. In addition to and not in lieu of any other limitations of liability identified herein, Torchlite shall not be responsible or liable for any failure in the Platform resulting from or attributable to (i) User’s Systems; (ii) other network, telecommunications or other services or equipment; (iii) User’s products or services or third party products or services procured or used by User; (iv) User’s negligence or willful misconduct or the negligence or willful misconduct of User’s Authorized Users; (v) any Force Majeure Event; (vi) scheduled or emergency maintenance; or (vii) unauthorized access by third parties to the Platform that results from Systems used by User.
- Systems. User shall obtain and operate all Systems needed to use the Services, and provide all corresponding backup, recovery and maintenance services therefor. User shall ensure that all Systems are compatible with the Platform.
- User Account Security. Each User shall be responsible for (i) keeping such User’s account secure, (ii) all content posted and activity that occurs under such User’s account, including Authorized Users under such User account, and (iii) maintaining the security of such User’s account and each set of login credentials for such account. Each User shall (y) promptly notify Torchlite upon becoming aware of any unauthorized use of, or access to, the Platform through such User’s account, including any unauthorized use of login credentials, (z) not share login credentials with any Authorized User outside User’s company, organization or other entity. Torchlite shall not be liable for any loss or damage from any User’s failure to comply with the requirements of this subsection.
- PROPRIETARY RIGHTS.
- User Content. Each User represents and warrants to Torchlite that: (i) the User owns or otherwise has the rights to User’s User Content and otherwise has the right to grant the rights set forth in these Terms of Service; (ii) the posting and use of User Content on or through the Platform does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights; (iii) such User shall pay for all royalties, fees, and any other monies owed by reason of User Content posted on or through the Platform by such User; and (iv) such User has the legal right and capacity to enter into these Terms of Service. User hereby grants Torchlite a non-exclusive, transferable, sub-licensable, royalty-free, irrevocable, worldwide, perpetual license to (a) use, copy, perform, display, and distribute User Content and to create derivative works of User Content for the purpose of providing the Platform and the Services; and (b) use, copy, display and to create derivative works of anonymized User Content, by itself or in combination with any Torchlite Data (as defined herein) for (1) the purposes of improving the Platform and the Services; and (2) Torchlite’s business purposes. Any User Content that a User posts publicly to the Platform may be viewed by any other User. By setting any User Content to be viewed publicly, such User grants each other User of the Platform a non-exclusive, worldwide license to use, display, and perform such User Content through the Platform and to reproduce and create derivative works of such User Content. For the avoidance of any doubt, with respect to any User Content that is uploaded to the Platform that such User did not create or own, such User shall be responsible for ensuring that such User Content is licensed under terms that grant permissions to other Users as provided for in this section.
- Profiles. Torchlite shall have the right to use the name of any User provided for such User’s profile and account within the Platform. Torchlite shall have the right to use, copy and display any User’s publicly-visible Platform account information, such as such User’s name, photo, logo and/or other information included in any third-party social media profile linked or otherwise connected to such Platform account for the purposes of providing the Platform and Services. Torchlite shall have the right to track, maintain and retain any feedback, reviews or comments submitted by any Corporate User with respect to any Torchliter (“Feedback Data”). Torchlite shall have the right to use the Feedback Data for any purpose, as determined exclusively by Torchlite.
- Torchlite Data. All right, title, and interest in and to all of the information, data, content and media files created or generated as a result of each User’s access to and use of the Platform (the “Torchlite Data”) is and shall at all times remain the exclusive property of Torchlite, whether or not specifically recognized or perfected under law, and each User shall have no rights or interests whatsoever to such Torchlite Data.
- Prohibited Use. Any use of the Platform by User in any manner other than as provided for in these Terms of Service, including, without limitation, resale, transfer, modification, decompilation, disassembling, reverse-engineering or the unauthorized distribution of the Platform or text, pictures, music, barcodes, video, data, hyperlinks, displays, and any other content associated with the Platform is prohibited. Without limiting the foregoing and for the avoidance of any doubt, User shall not reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any aspect of the Platform.
- No Other Rights. Except for the limited rights expressly granted hereunder, no other license is granted to User, no other use is permitted and Torchlite shall retain all right, title and interest in and to the Platform and all updates and modifications thereto (including all intellectual property and proprietary rights embodied therein). No User shall take any action inconsistent with such rights.
- CONFIDENTIAL INFORMATION. Each party shall: (a) protect the other party’s Confidential Information with the same standard of care it uses to protect its own Confidential Information; and (b) not disclose the Confidential Information, except to Affiliates, employees and agents who need to know it and who have agreed in writing to keep it confidential. Each party (and any Affiliates’ employees and agents to whom it has disclosed Confidential Information) may use Confidential Information only to exercise rights and fulfill its obligations under these Terms of Service, while using reasonable care to protect it. Each User is responsible for any actions of its Authorized User’s violation of this section. Confidential Information does not include information that: (i) the recipient of the Confidential Information already knew at the time of disclosure; (ii) becomes public through no fault of the recipient; (iii) was independently developed by the recipient; or (iv) was rightfully given to the recipient by another party. Each party may disclose the other party’s Confidential Information when required by law but only after it, if legally permissible, both uses commercially reasonable efforts to notify the other party and gives the other party the chance to challenge the disclosure.
- TRIAL PERIOD. If a User registers for a trial Subscription, then Torchlite will make one or more Platform services available to such User on a trial basis until the earlier of (a) the end of the trial period for which User registered, (b) the start date of any purchased Subscription, or (c) termination by Torchlite in its sole discretion.
- ACCEPTABLE USE.
- In no event shall User use the Platform in a manner that (i) harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights); (ii) is unlawful, fraudulent, or deceptive; (iii) uses technology or other means to access the Platform that is not authorized by Torchlite; (iv) uses or launches any automated system, including without limitation, “robots,” “spiders,” or “offline readers,” to access the Platform; (v) attempts to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment; (vi) attempts to gain unauthorized access to Torchlite networks and systems, User accounts, or the Platform; (vii) encourages any conduct that would constitute a criminal offense or that gives rise to civil liability; (viii) violates these Terms of Service; (ix) attempts to damage, disable, overburden, or impair Torchlite servers or networks; (x) impersonates any person or entity or otherwise misrepresents User’s identity or affiliation with another person or entity; or (xi) fails to comply with applicable third party terms.
- Torchlite reserves the right, in its sole discretion, to (i) terminate any Corporate License, Torchliter License, or Individual License, (ii) remove User Content, assert legal action with respect to User Content or use of the Platform, and/or (iii) revoke any User or Authorized User access. Torchlite’s failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms of Service.
- Each User represents and warrants to Torchlite that such User’s use of the Platform will not violate any applicable laws, including copyright or trademark laws, export control laws, or other laws. Each User hereby agrees and acknowledges that such User shall be responsible for ensuring that such User’s use of the Platform is in compliance with applicable laws and regulations.
- Payment Terms. User shall pay Torchlite the Subscription Charges, in the amounts and at the times specified in the relevant Addendum. Subscription Charges are billed upon commencement of the relevant Subscription Term and are indicated in the relevant Addendum. Unless indicated in an Addendum between the parties, Torchlite shall not be obligated to provide any refund or credit for partial periods of access to the Platform.
- Taxes. All Subscription Charges are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes), and User shall bear and be responsible for the payment of all such charges.
- INDEMNIFICATION. In addition to any other indemnification requirements set forth in an Addendum, each User hereby agrees to defend, indemnify, and hold harmless Torchlite and any Affiliates, independent contractors, service providers and consultants, and their respective employees, contractors, agents, officers, and directors from any and all claims, suits, damages, costs, lawsuits, fines, penalties, loss, liability, and expenses (including attorney’s fees) that arise from or relate to such User’s use or misuse of the Platform, violation of these Terms of Service, or violation of any rights of a third party. Torchlite reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses.
- NO WARRANTIES; DISCLAIMERS.
- TORCHLITE IS PROVIDING THE PLATFORM TO EACH USER “AS IS” AND THE USER IS USING THE PLATFORM AT HIS, HER OR ITS OWN RISK. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, TORCHLITE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES THAT THE PLATFORM IS MERCHANTABLE, RELIABLE, AVAILABLE, ACCURATE, FIT FOR A PARTICULAR PURPOSE OR NEED, NON-INFRINGING, FREE OF DEFECTS OR VIRUSES, ABLE TO OPERATE ON AN UNINTERRUPTED BASIS, OR THAT THE USE OF THE PLATFORM BY THE USER IS IN COMPLIANCE WITH LAWS APPLICABLE TO THE PLATFORM.
- Torchlite shall have no obligation to furnish any maintenance or support services with respect to the Platform.
- Although it is Torchlite’s intention for the Platform to be available as much as possible, there might be occasions when the Platform may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications equipment or connections, for which Torchlite shall have no liability. Any User Content removed from the Platform by Torchlite may be stored by Torchlite. Torchlite shall not be liable for any modification, suspension, or discontinuation of the Platform, or the loss of any User Content. Each User hereby acknowledges that the Platform may be subject to breaches of security.
- NO LIABILITY. TO THE FULLEST EXTENT ALLOWABLE UNDER APPLICABLE LAW, IN NO EVENT SHALL TORCHLITE (A) BE LIABLE TO ANY USER WITH RESPECT TO USE OF THE PLATFORM; AND (B) BE LIABLE TO USER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOSS OF DATA, LOSS, THEFT OR CORRUPTION OF CONTENT OR USER CONTENT, THE INABILITY TO USE THE PLATFORM OR ANY OF ITS FEATURES, OR DEVICE FAILURE OR MALFUNCTION.
- TERM AND TERMINATION.
- Term. These Terms of Service shall commence on the Effective Date and shall continue in effect for the relevant Subscription Term.
- Termination. These Terms of Service may be terminated by either party (i) if the other party materially breaches a provision of these Terms of Service and fails to cure such breach within twenty (20) days (ten (10) days in the case of non-payment) after receiving written notice of such breach from the non-breaching party; (ii) immediately upon written notice, if the other party makes any assignment for the benefit of creditors, or a receiver, trustee in bankruptcy or similar officer is appointed to take charge of any or all of the other party's property, or the other party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding or such a proceeding is instituted against the other party and is not dismissed within ninety (90) days, or the other party becomes insolvent or, without a successor, dissolves, liquidates or otherwise fails to operate in the ordinary course; (iii) effective as of the termination of that certain Marketing and Advertising Agreement by and between Corporate User and Torchlite or Torchliter Agreement by and between Torchliter and Torchlite, as the case may be; or (iv) as otherwise set forth in these Terms of Service.
- Effects of Termination. Upon any expiration or termination of these Terms of Service, all rights, obligations and licenses of the parties shall cease, except that (i) Torchlite may, but shall not be obligated to, delete User Content; and (ii) the provisions of Sections 3 (Proprietary Rights), 4 (Confidentiality), 7 (Billing), 8 (Indemnification), 9 (No Warranties; Disclaimers), 10 (No Liability) and this section shall survive. Following any termination or expiration of these Terms of Service, User shall have fifteen (15) days to export User Content.
- TRADEMARKS AND CONTENT. Torchlite, the Torchlite logo, and other Torchlite trademarks, service marks, graphics, and logos used in connection with the Platform are trademarks or registered trademarks of Torchlite (collectively “Torchlite Marks”). Other trademarks, service marks, graphics and logos used in connection with the Platform are the trademarks of their respective owners (collectively “Third Party Marks”). The Torchlite Marks and Third Party Marks may not be copied, imitated, or used, in whole or in part, without the prior written permission of Torchlite or the applicable owner. The Platform and the content therein is protected by copyright, trademark, patent, trade secret, international treaties, laws, and other proprietary rights and also may have security components that protect digital information only as authorized by Torchlite or the owner of the relevant content.
- COPYRIGHT INFRINGEMENT. Torchlite has adopted the following policy toward copyright infringement on the Platform in accordance with the Digital Millennium Copyright Act (the “DMCA”). The address of Torchlite’s designated agent for copyright takedown notices (“Designated Agent”) is:
Torchlite Technologies Inc.
342 Massachusetts Avenue, Suite 203
Indianapolis, IN 46204
Attn: Designated Agent
Phone Number: (317) 643-4200
- Takedown Notice. If a User believes that content residing or accessible on or through the Platform infringes a copyright, such User may send a notice of copyright infringement containing the following information to the Designated Agent at the address above: (i) identification of the work or material being infringed, (ii) identification of the material that is claimed to be infringing, including its location, with sufficient detail so that Torchlite is capable of finding it and verifying its existence, (iii) contact information for the party notifying Torchlite of the infringement (the “Notifying Party”), including name, address, telephone number and email address, (iv) a statement that the Notifying Party has a good faith belief that the material is not authorized by the copyright owner, its agent or law, (v) a statement made under penalty of perjury that the information provided in the notice is accurate and that the Notifying Party is authorized to make the complaint on behalf of the copyright owner, and (vi) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed. Torchlite will respond to valid DMCA requests within ten (10) days of receipt of the same. In all cases, if a Notifying Party does not receive a reply from Torchlite within ten (10) days of submitting a complaint, then please email Torchlite again at the address indicated above to confirm that Torchlite received the original complaint. Please note that under applicable law, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability for damages. In an effort to be transparent in removing or restricting access to User Content, Torchlite may make public any DMCA notice received (with personal contact information removed). This may include posting the notice to a public-facing website, among other methods. After removing access to the material pursuant to a valid DMCA notice, Torchlite will immediately notify the User responsible for the allegedly infringing material that it has removed or disabled access to the infringing material. Torchlite reserves the right, in its sole discretion, to immediately terminate the account of any User who is the subject of repeated DMCA notifications.
- DMCA Counter-Notification. If a User believes that such User is the wrongful subject of a DMCA notice, then such User may file a counter-notice with Torchlite by providing the following information to the Designated Agent at the address above: (i) detailed evidence of material that Torchlite has removed or to which Torchlite has disabled access within the Platform, (ii) User’s name, address, telephone number, and email address, (iii) a statement that such User consents to the jurisdiction of Federal District Court for the judicial district in which such User’s address is located (or the United States District Court for the Southern District of Indiana, if such User’s address is outside of the United States), and that such User will accept service of process from the person who provided the original DMCA notification or an agent of such person, (iv) the following statement: “I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled.”, and (v) User’s signature. Upon receipt of a valid counter-notice, Torchlite will forward it to the Notifying Party who submitted the original DMCA notice. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify Torchlite that he or she has filed legal action relating to the allegedly infringing material. If Torchlite does not receive any such notification within ten (10) days, then Torchlite may restore the material to the Platform.
- GENERAL PROVISIONS.
- Entire Agreement. These Terms of Service (together with the applicable Addenda) constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements (oral or written), between the parties about the subject matter of these Terms of Service. In the event of any conflict or inconsistency between the Agreement and the any Addendum, the terms and conditions in the Addendum will prevail and be controlling.
- Waiver. No waiver, consent or, except as expressly provided herein, modification or amendment of these Terms of Service (including any and Addenda) shall bind either party unless in writing and signed by the party against which enforcement is sought. The failure of either party to enforce its rights under these Terms of Service at any time for any period will not be construed as a waiver of such rights. Any waiver granted hereunder must be in writing, signed by both parties and shall be valid only in the specific instance in which given.
- Severability. If any provision of these Terms of Service is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms of Service will otherwise remain in full force and effect and enforceable.
- Governing Law and Disputes. These Terms of Service and use of the Platform are governed by the laws of the State of Indiana, without regard to conflict of laws principles. Except as provided for in Section 13, each (i) Corporate User and Torchliter agrees and acknowledges that any claim or dispute arising out of or related to the Platform or these Terms of Service shall be resolved according to the dispute resolution provisions of that certain (a) Marketing and Advertising Agreement by and between Corporate User and Torchlite; or (b) Torchliter Agreement by and between Torchliter and Torchlite, as the case may be, and (ii) Individual User agrees and acknowledges that the any claim or dispute arise out of or related to the Platform or these Terms of Service shall be brought in the state or federal courts located in Indianapolis, Indiana.
- Assignment. These Terms of Service and the rights and obligations hereunder may not be assigned, in whole or in part, by User without the written consent of Torchlite (which shall not be unreasonably withheld). Torchlite may assign these Terms of Service. These Terms of Service shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.