General Terms of Service

Effective Date: March 18, 2023

These General Terms of Service (“General Terms”) are a legal agreement between you (“you,” “your”, “buyer”) and Touchpoint Restaurant Innovations, Inc. (“Touchpoint,” “we,” “our” or “us”) and govern your use of Touchpoint’s services, including mobile applications, websites, Kiosks, POS systems, Loyalty and Rewards programs, and other products and services (collectively, the “Services”) that are used by our business partners who operate individual stores, locations or entire brands (collectively, “Businesses” or “Stores”)

By using any of the Services directly or via a business that uses our Services, you accept and agree to these General Terms and any policies referenced within (“Policies”), including terms that limit our liability (see Section 10 and 11) and require individual arbitration for any potential legal dispute (see Section 12 and 13). You should read all of our terms carefully.

1. Privacy
You agree to Touchpoint’s Privacy Policy (https://www.touchpoint.io/privacy), which explains how we collect, use and protect the information you provide to us. In accordance with our Master Service Agreement with each Business that uses our Services, we honor your data privacy preferences about sharing data with the Business subject to the terms of the Privacy Agreement. You have the right to not share information with a Business and to opt out of all marketing communication.

2. Touchpoint Account Registration
By providing your mobile phone number via POS, Kiosk, website, mobile app or other Service powered by Touchpoint, you create an account with us (“Touchpoint Account”) that is connected to your mobile phone number.  Your Touchpoint Account may then be used to participate in one or more loyalty programs associated with a Business that uses our Services.  When you join a loyalty or rewards program for a Business that uses our Services, certain information including your name, profile picture and birthdate may auto populate in the POS, Kiosk, website, mobile app or other Service powered by Touchpoint.  You must agree to these Touchpoint Terms of Service and Privacy Policy to continue using your Touchpoint Account.

You must provide accurate and complete information in response to our questions, and keep that information current. You are fully responsible for all activity that occurs under your Touchpoint Account, including for any actions taken by persons to whom you have granted access to the Touchpoint Account. We reserve the right to suspend or terminate the Touchpoint Account of any user who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.

If your Touchpoint Account is suspended or terminated, you may lose access to any Loyalty Points balances or Gift Card balances tied to that account.

Optional Information

You may add other account information such as email, birthday, and profile picture, and other personal information. Individual loyalty programs may solicit additional information which will be noted as required or optional.

3. Revisions, Disclosures and Notices
We may amend the General Terms, any Additional Terms, or our Policies, at any time with notice that we deem to be reasonable in the circumstances, by posting the revised version on our website or communicating it to you through the Services (each a “Revised Version”). The Revised Version will be effective as of the time it is posted. Your continued use of the Services after the posting of a Revised Version constitutes your acceptance of such Revised Version. Any Dispute (as defined in Section 12) that arose before the changes will be governed by the General Terms, Additional Terms or Policies in place when the Dispute arose.
We may provide disclosures and notices required by law and other information about your Touchpoint Account to you electronically, by posting it on our website, pushing notifications through the Services, or by emailing it to the email address listed in your Touchpoint Account. Electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within twenty-four (24) hours of the time posted to our website, or within twenty-four (24) hours of the time emailed to you unless we receive notice that the email was not delivered.

4. Restrictions
You may not, nor may you permit any third party, directly or indirectly, to:

a. access or monitor any material or information on any Touchpoint system using any robot, spider, scraper, headless browser or other automated means;

b. except to the extent that any restriction is expressly prohibited by law, violate the restrictions in any robot exclusion headers on any Service, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble or otherwise reverse engineer the Services;

c. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other customers, or impose an unreasonable or disproportionately large load on our infrastructure;

d. copy, reproduce, alter, modify, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material, information or Services from Touchpoint;

e. use and benefit from the Services via a rental, lease, timesharing, service bureau or other arrangement;

f. transfer any rights granted to you under these General Terms;

g. use the Services for the sale of firearms, firearm parts, ammunition, weapons or other devices designed to cause physical harm;

h. use the Services for any illegal activity or goods or in any way that exposes you, other Touchpoint users, our partners, or Touchpoint to harm; or

i. otherwise use the Services except as expressly allowed under these General Terms and applicable Additional Terms.

If we reasonably suspect that your Touchpoint Account has been used for an unauthorized, illegal, or criminal purpose, you give us express authorization to share information about you, your Touchpoint Account, and any of your transactions with law enforcement.

5. Your Content
The Services may include functionality for uploading or providing photos, reviews, feedback, favorite names, and any other information you may enter or post in the Services.

You grant us and our subsidiaries, affiliates, and successors a worldwide, non-exclusive, royalty-free, fully-paid, transferable, and sub-licensable right to store, record, use, transmit, maintain, display, reproduce, adapt, publish, prepare derivative works of, distribute, publicly perform, and publicly display your Content throughout the world in any media in order to provide and promote the Services. You retain all rights in your Content, subject to the rights you granted to us in these General Terms. You may modify or remove your Content via your Touchpoint Account or by terminating your Touchpoint Account, but your Content may persist in historical, archived or cached copies and versions thereof available on or through the Services.
You will not upload or provide Content or otherwise post, transmit, distribute, or disseminate through the Services any material that: (a) is false, misleading, unlawful, obscene, indecent, lewd, pornographic, defamatory, libelous, threatening, harassing, hateful, abusive, or inflammatory; (b) encourages conduct that would be considered a criminal offense or gives rise to civil liability; (c) breaches any duty toward or rights of any person or entity, including rights of publicity, privacy or trademark; (d) contains corrupted data or any other harmful, disruptive, or destructive files; or (e) in our sole judgment, is objectionable, restricts or inhibits any person or entity from using or enjoying any portion of the Services, or which may expose Touchpoint, its affiliates or its customers to harm or liability of any nature. We take no responsibility and assume no liability for any Content, including any loss or damage to any of your Content.

6. Communications

When you participate in a loyalty or rewards program, a Business may opt to send you marketing communications via SMS, push notifications, email or other channels according to preferences you set.   You may change your preferences in the profile settings for each brand.  

Additionally transactional messages that contain information about your order or reservation may be sent.  Periodic survey questions may be sent but you are under no obligation to answer them.

Standard message and data rates applied by your mobile phone carrier may apply to the text messages we send you. You may opt-out of receiving marketing communications by following the unsubscribe options we provide to you. You acknowledge that opting out of receiving communications may impact your use of the Services.

7. Business Has Responsibility for Content

Touchpoint is not involved in the marketing messaging sent to you, except for providing the Services that facilitate the creation, delivery and management of messages sent. Each Business is responsible for marketing messages sent using the Services, the Content of those messages (including errors), and honoring any terms included in such messages. Businesses are responsible for determining how they handle any errors contained in any sent message.

Businesses using our Services are individually responsible for ensuring that their marketing messages, loyalty program and any associated rewards are compliant with applicable federal, state, or local laws, including laws governing special offers such as rebates and coupons.

For the avoidance of doubt, Touchpoint explicitly disclaims all responsibility for compliance, or content of any message sent via Touchpoint Services.
8. Term and Termination
The term of this Agreement shall commence when your Touchpoint Account is established, and continue unless you delete your account or we notify you of our intent or action to suspend or delete your account.

9. Representations and Warranties
You represent and warrant to us that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Services and have the right, power, and ability to enter into and perform under these General Terms; (c) any information you provide in connection with the Services, accurately and truthfully represents your identity; (d) you will not use the Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Services; and (e) your use of the Services will be in compliance with these General Terms and applicable Additional Terms.

10. No Warranties
THE USE OF “TOUCHPOINT” IN SECTIONS 10 AND 11 MEANS TOUCHPOINT, ITS PROCESSORS, ITS SUPPLIERS, AND ITS LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS, AND EMPLOYEES).
THE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, TOUCHPOINT SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
TOUCHPOINT DOES NOT WARRANT OR GUARANTEE THAT THE SERVICES ARE ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Touchpoint does not warrant, endorse, guarantee, or assume responsibility for any product or services advertised or offered by a Business or third party.

11. Limitations of Liability and Damages
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOUCHPOINT BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE SERVICE. IN ALL CASES, TOUCHPOINT WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
UNDER NO CIRCUMSTANCES WILL TOUCHPOINT BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR TOUCHPOINT ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF TOUCHPOINT IS LIMITED TO THE AMOUNT OF PRO RATA FEES EARNED BY US IN CONNECTION WITH YOUR PRO RATA USE OF THE SERVICES DURING THE MONTH IN WHICH THE EVENT GIVING RISE TO THE CLAIM FOR LIABILITY OCCURRED.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF TOUCHPOINT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

12. Disputes
“Disputes” are defined as any claim, controversy, or dispute between you and Touchpoint, its processors, suppliers or licensors (or their respective affiliates, agents, directors or employees), including any claims relating in any way to these General Terms, any Additional Terms, or the Services, or any other aspect of our relationship.

13. Binding Individual Arbitration
You and Touchpoint agree to arbitrate any and all Disputes by a neutral arbitrator who has the power to award the same damages and relief that a court can. ANY ARBITRATION UNDER THESE GENERAL TERMS WILL ONLY BE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, REPRESENTATIVE ACTIONS AND CONSOLIDATION WITH OTHER ARBITRATIONS ARE NOT PERMITTED. YOU WAIVE ANY RIGHT TO HAVE YOUR CASE DECIDED BY A JURY AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS ACTION AGAINST TOUCHPOINT. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced (but in no case will there be a class or representative arbitration). All Disputes will be resolved finally and exclusively by binding individual arbitration with a single arbitrator administered by the American Arbitration Association (https://www.adr.org) according to this Section and the applicable arbitration rules for that forum. Any arbitration hearing will occur in San Francisco, California, or another mutually agreeable location. The arbitrator’s award will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. For purposes of this arbitration provision, references to you and Touchpoint also include respective subsidiaries, affiliates, agents, employees, predecessors, successors and assigns as well as authorized users or beneficiaries of the Services. Subject to and without waiver of the arbitration provisions above, you agree that any judicial proceedings will be brought in and you hereby consent to the exclusive jurisdiction and venue in the state courts in the City and County of San Francisco, California, or federal court for the Northern District of California.

14. Force Majeure

Neither party is responsible for delays or failures to perform its responsibilities under this Agreement due to causes beyond its reasonable control, including but not limited to acts of God, acts of government, flood, fire, earthquakes, tornadoes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, internet service provider or hosting facility failures or delays involving hardware, software or power systems, Malicious Code, denial of service attacks, and inability to obtain energy (each a “Force Majeure Event”); provided, however, that it will resume performance as soon as reasonably practicable.

15. Governing Law
These General Terms and any Dispute will be governed by California law and/or applicable federal law (including the Federal Arbitration Act) as applied to agreements entered into and to be performed entirely within California, without regard to its choice of law or conflicts of law principles.

16. Limitation on Time to Initiate a Dispute
Any action or proceeding by you relating to any Dispute must commence within 30 days after the cause of action accrues.

17. Other Provisions
These General Terms, and any applicable Additional Terms or Policies, are a complete statement of the agreement between you and Touchpoint regarding the Services. In the event of a conflict between these General Terms and any other Touchpoint agreement or Policy, these General Terms will prevail and control the subject matter of such conflict. If any provision of these General Terms or any Additional Term is invalid or unenforceable under applicable law, then it will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. These General Terms do not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.

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