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Terms

Touchcast Terms of Service and End User License Agreement

1. Your Acceptance

  • These Terms of Service and End User License Agreement (this "Agreement") between you and TouchCast, LLC (hereinafter referred to as "TouchCast", "we", or "us") governs your use of the TouchCast website and all TouchCast products, software, applications and services provided to you on, from, or through the TouchCast website (collectively, the "Service"). This agreement is between you and TouchCast only, and not with Apple, Inc. ("Apple"), and TouchCast, not Apple, is solely responsible for the Service and the content thereof.
  • By using the Service you signify your agreement to (1) this Agreement, and (2) TouchCast's Community Guidelines, found at http://bbc-vip.touchcast.com/guidelines, which are incorporated herein by reference. If you do not agree to any of these terms or to the Community Guidelines, please do not use the Service.
  • You should periodically review the most up-to-date version of the Agreement, located at http://bbc-vip.touchcast.com/terms. TouchCast may, in its sole discretion, amend, modify, or revise this Agreement and other policies at any time, and you agree to be bound by such amendments, modifications, or revisions. Your use of the Service after we post a revised version of the Agreement and a notice about the revisions indicates to us that you have agreed to be bound by the revised Agreement. If the revised Agreement is not acceptable to you, your only recourse will be to stop using the Service.

2. Service

  • This Agreement applies to all users of the Service, including users who are also contributors of Content on the Service. For purposes of this Agreement, "Content" includes user comments, text, software, scripts, graphics, photos, sounds, music, videos, audiovisual combinations, interactive features, video applications, and other materials you may view on, access through, or contribute to the Service. The Service includes all aspects of TouchCast, including but not limited to all products, software, applications, and other services offered via the TouchCast website.
  • The Service may contain data and links to third party websites that are not owned or controlled by TouchCast. TouchCast has no control over any such third party websites, information, materials, products or services, and TouchCast assumes no responsibility for the content, privacy policies, or practices of any third party websites. If you access any third party website, service, or content by using the Service, you agree that TouchCast will have no liability arising from your use of or access to any third party website, service, or content. We encourage you to be aware when you leave the Service and to read the terms and conditions and privacy policies of third party websites that you visit.

3. License Grant

  • Application License. Subject to your compliance with this Agreement, TouchCast grants you a limited, non-exclusive, non-transferable license to download the TouchCast application (the "Licensed Application") from a TouchCast-authorized source and to install and use the Licensed Application on any iPad, iPhone, or iPod Touch that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service.
  • Content License. Subject to your compliance with this Agreement, TouchCast grants you a worldwide, limited, non-exclusive, non-transferable license, to (1) access and use the Service, and (2) access, use, view, download, combine with other Content, reproduce, distribute copies of, disseminate, publicly display and publicly perform Content, when using the Service, subject to any terms or limitations applicable to such Content.
  • License Restrictions. You agree that you will not use or exploit the Service or any Content, or any intellectual property rights in them, except as expressly permitted in this Agreement. No licenses or rights are granted to you by implication or otherwise, except for the licenses and rights expressly granted to you as set out in this Agreement.

4. TouchCast Accounts

  • In order to access some features of the Service, you will need to create a TouchCast account (an "Account"). When creating your Account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your Account, and you must keep your account password secure. You must notify TouchCast immediately of any breach of security or unauthorized use of your Account.
  • Although TouchCast will not be liable for your losses caused by any unauthorized use of your Account, you may be liable for the losses of TouchCast or others due to such unauthorized use.

5. Fees

  • Free Account. The Service is currently free for personal, non-commercial use. With a Free Account, you can upload up to one (1) hour of non-commercial Content.
  • Pro Account. With a Pro Account, you can upload more than one (1) hour of non-commercial Content for a price to-be-determined.
  • Enterprise Account. With an Enterprise Account, you can use the Service for commercial use for a price to-be-determined.
  • TouchCast reserves the right to charge fees in exchange for access to certain features of the Service in the future upon thirty (30) days prior written notice to you. TouchCast reserves the right to change existing payment terms and fees upon thirty (30) days' prior written notice to you. You can cancel access to the Service at any time upon thirty (30) days' written notice to TouchCast.

6. Your Use of the Service - Limitations

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

  • You agree not to distribute in any medium any part of the Service or the Content without TouchCast's prior written authorization, unless TouchCast makes available the means for such distribution through functionality offered by the Service.
  • You agree not to alter or modify any part of the Service.
  • You agree not to access Content through any technology or means other than the video playback pages of the Service itself or other explicitly authorized means that TouchCast may designate.
  • You agree not to use or launch any automated system, including without limitation, robots, spiders, or offline readers, that accesses the Service in a manner that sends more request messages to the TouchCast servers in a given period of time than a human can reasonably produce in the same period by using a conventional online web browser. Notwithstanding the foregoing, TouchCast grants the operators of public search engines permission to use spiders to copy materials from the site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials. TouchCast reserves the right to revoke these exceptions either generally or in specific cases.
  • You agree not to collect or harvest any personally identifiable information, including account names, from the Service, nor to use the communication systems provided by the Service (e.g., comments or email) for any commercial solicitation purposes. You agree not to solicit, for commercial purposes, any users of the Service with respect to their Content.
  • You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
  • In your use of the Service, you will comply with all applicable laws.
  • TouchCast reserves the right to discontinue any aspect of the Service at any time.

7. Your Use of Content - Limitations

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

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

8. Your Content and Conduct

  • As a TouchCast account holder you may submit Content to the Service, including videos, video applications ("User-Created vApps"), and user comments. You understand that TouchCast does not guarantee any confidentiality with respect to any Content you submit.
  • You shall be solely responsible for your own Content and the consequences of submitting and publishing your Content on the Service. You affirm, represent, and warrant that you own or have the necessary licenses, rights, consents, and permissions to publish Content you submit. You license to TouchCast all patent, trademark, trade secret, copyright or other proprietary rights in and to such Content for publication on the Service pursuant to this Agreement.
  • You will retain all of your ownership rights in your Content; however, by submitting Content to TouchCast, you hereby grant TouchCast a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and TouchCast's (and its successors' and affiliates') business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user of the Service a non-exclusive license to access your Content through the Service, and to use, reproduce, distribute, display and perform such Content as permitted through the functionality of the Service and under this Agreement. The above licenses granted by you in video Content you submit to the Service terminate within a commercially reasonable time after you remove or delete your videos from the Service. You understand and agree, however, that TouchCast may retain, but not display, distribute, or perform, server copies of your videos that have been removed or deleted. The above licenses granted by you in user comments you submit are perpetual and irrevocable.
  • You agree that Content you submit to the Service will not contain third party copyrighted material, or material that is subject to other third party proprietary rights, unless you have permission from the rightful owner of the material or you are otherwise legally entitled to post the material and to grant TouchCast all of the license rights granted herein.
  • You agree that you will not submit to the Service any Content or other material that is contrary to the TouchCast Community Guidelines, currently found at http://bbc-vip.touchcast.com/guidelines which may be updated from time to time, or contrary to applicable local, national, and international laws and regulations. You further agree that you will not submit to the Service any User-Created vApps that violate any of (i) the Apple App Store terms and conditions, currently available at http://www.apple.com/legal/internet-services/itunes/us/terms.html#GIFTS, (ii) the Intel AppUp Terms of Use, currently available at http://www.appup.com/appup-terms/index, or (iii) the TouchCast Community Guidelines.
  • TouchCast does not endorse any Content submitted to the Service by any user or other licensor, or any opinion, recommendation, or advice expressed therein, and TouchCast expressly disclaims any and all liability in connection with the Content.
  • TouchCast does not permit copyright infringing activities and infringement of intellectual property rights on the Service, and TouchCast will remove Content if properly notified pursuant to Section 12 below that such Content infringes on another's intellectual property rights. TouchCast reserves the right to remove infringing Content without prior notice.
  • TouchCast reserves the right to remove your Content if your Account has no activity for six (6) months or longer.

9. Account Termination Policy

  • TouchCast will terminate a user's access to the Service if, under appropriate circumstances, the user is determined to be a repeat infringer.
  • TouchCast reserves the right to decide whether Content violates this Agreement for reasons other than copyright infringement, including but not limited to pornography, obscenity, excessive length, or violation of Section 8(A) hereof. TouchCast may at any time, without prior notice and in its sole discretion, remove such Content and/or terminate a user's account for submitting such material in violation of this Agreement.

10. Warranty Disclaimer

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

11. Maintenance and Support; Product Claims

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

12. Digital Millennium Copyright Act

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

13. Intellectual Property Rights

You and TouchCast acknowledge that, in the event of any third party claim that the Licensed Application or your possession and use of the Licensed Application infringes that third party's intellectual property rights, TouchCast, not Apple, is solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

14. Limitation of Liability

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

YOU SPECIFICALLY ACKNOWLEDGE THAT TOUCHCAST SHALL NOT BE LIABLE FOR THE CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU.

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

15. Indemnity

To the extent permitted by applicable law, you agree to defend, indemnify and hold harmless TouchCast, its affiliates, and their respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorneys' fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Agreement; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content caused damage to a third party. Your indemnification obligation under this Section 13 will survive this Agreement and your use of the Service.

16. Ability to Accept Agreement

You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. In any case, you affirm that you are over the age of 13, as the Service is not intended for children under 13. If you are under 13 years of age, then please do not use the Service.

17. Assignment

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

18. Third Party Beneficiaries

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

19. Governing Law; Jurisdiction

You agree that: (i) the Service shall be deemed solely based in the State of Delaware; and (ii) the Service shall be deemed a passive website that does not give rise to personal jurisdiction over TouchCast, either specific or general, in jurisdictions other than the State of Delaware. This Agreement shall be governed by the internal substantive laws of the State of Delaware, without respect to its conflict of laws principles. Any claim or dispute between you and TouchCast that arises in whole or in part from the use of the Service shall be decided exclusively by a court of competent jurisdiction located in the State of Delaware.

20. General

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

21. Contact Information

You may direct questions, comments, complaints, or claims with respect to the Licensed Application and the Service to: TouchCast LLC, 603 Greenwich Street, Suite 101, New York, NY 10014. 646-380-7253. info@touchcast.com