TERMS & CONDITIONS

Surveyor

(by Touchpoint Solutions, Inc.) 


Master Subscription Agreement 

THANKS FOR USING OUR PRODUCTS AND SERVICES (“SERVICES”). THE SERVICES ARE PROVIDED BY TOUCHPOINT SOLUTIONS, INC. (“TOUCHPOINT SOLUTIONS”), LOCATED AT 630 ROOSEVELT, IRVINE, CA, UNITED STATES. 

THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR ACQUISITION AND USE OF SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “LICENSEE” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF LICENSEE DOES NOT HAVE SUCH AUTHORITY, OR IF LICENSEE DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, LICENSEE MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. 

Licensee may not access the Services if Licensee is a direct competitor, except with Our prior written consent. In addition, Licensee may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. 

This Agreement was last updated on April 26, 2023. It is effective between the Licensee and Touchpoint Solutions as of the date the Licensee accepts this Agreement. 

Touchpoint Solutions reserves the right to update and change the Agreement from time to time without notice. 

Any new features that augment or enhance the current Services, including the release of new features, tools and/or resources, shall be subject to this Agreement. Continued use of the Services after any such changes shall constitute your consent that this Agreement applies to the augmented or enhanced Services. 

1. DEFINITIONS 

"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the Licensee. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity. 

"Malicious Code" means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs. 

"Order Form" means the documents for placing orders hereunder, including addenda thereto, which are entered into between the Licensee and Touchpoint Solutions or any of Our Affiliates from time to time, including addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference. 

"Purchased Services" means Services that Licensee or Licensee’s Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial. 

"Services" means the products and services that are ordered by Licensee under a free trial or an Order Form and made available by Touchpoint Solutions online via the customer login link at http://surveyorsurvey.com and/or other web pages designated by Touchpoint Solutions. 

"Users" means individuals who are authorized by Licensee to use the Services, for whom subscriptions to a Service have been ordered or a free trial started, and who have been supplied user identifications and passwords by Licensee (or by Touchpoint Solutions at Licensee’s request). Users may include but are not limited to Licensee’s employees, consultants, contractors and agents, and third parties with which Licensee transacts business. 

"We", "Us" or "Our" means Touchpoint Solutions, Inc. 

"You", "Your" or “Licensee” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. 

"Licensee Data" means any business information or other data of any type that is provided by Licensee to Touchpoint Solutions in connection with Touchpoint Solutions providing the Services. 

“Touchpoint Solutions” means Touchpoint Solutions, Inc. (EIN 45-0543871) of 630 ROOSEVELT, IRVINE, CA USA. 

“Touchpoint Solutions Information” means information relating to the business or affairs of Touchpoint Solutions, Inc., including but not limited to; technology and technical information, product plans and designs, work product, business strategies and plans, customer identities, potential customers, servicing methods, or other proprietary information used by Touchpoint Solutions in connection with its business. However, Touchpoint Solutions Information shall not include any information that (i) is or becomes generally public information without breach of any obligation owed to Touchpoint Solutions by the Licensee, (ii) was known to the Licensee prior its disclosure by Touchpoint Solutions without breach of any obligation owed to Touchpoint Solutions, (iii) is received from a third party without breach of any obligation owed to Touchpoint Solutions, or (iv) was independently developed by the Licensee. 

2. FREE TRIAL 

If Licensee registers on Our website for a free trial, Touchpoint Solutions will make one or more Services available to Licensee on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Licensee registered or is registering to use the applicable Services (b) the start date of any Purchased Services ordered by Licensee upon the expiration of a free trial. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Touchpoint Solutions reserves the right to refuse or disable a free trial for any reason. 

3. SERVICES 

3.1 Obligation of Touchpoint Solutions. Subject to the terms and conditions of this Agreement, Touchpoint Solutions agrees to make the Services available via Internet for on-line use by Licensee solely for the purpose of surveying (the "Permissible Use"). 

3.2 Grant of License. Subject to the terms and conditions of this Agreement, Touchpoint Solutions grants to Licensee a limited, nontransferable, nonexclusive, non-sublicensable (except pursuant to Section 12) license for the term of this Agreement to access and use Services via the Internet solely for Permissible Use. 

3.3 Restrictions on Use. Licensee may not, directly or indirectly, (i) license, sell, lease or otherwise transfer the Services, (ii) alter or permit a third party to alter any part of the Services; (iii) process or permit to be processed the data of any third party other than Your Customers; (iv) use or permit the use of the Services in the operation of a service bureau; or (v) disassemble, decompile, reverse engineer, seek to obtain the source code or any non-public APIs, or otherwise attempt to derive source code or other trade secrets from the Services. The look and feel of the Service is Copyright Touchpoint Solutions. All rights reserved. Licensee may not duplicate, copy, or reuse any portion of the HTML/CSS/JavaScript/Images or visual design elements without express written permission from Touchpoint Solutions. 

3.4 Passwords. Licensee is responsible for all use of Licensee account information and maintaining the confidentiality of all passwords and information provided by Touchpoint Solutions. Sharing of passwords, account numbers or information among Third Parties who are not authorized users of the Services is strictly prohibited. 


4. USE OF THE SERVICES 

4.1. Our Responsibilities. We shall: (i) provide Our basic email support for the Purchased Services to Licensee at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (We shall schedule to the extent practicable during the weekend hours from 7:00 p.m. Friday to 5:00 a.m. Monday Pacific Standard Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations. 

4.2. Your Responsibilities. Licensee shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality, integrity and legality of Licensee Surveys and of the means by which Licensee acquired Survey Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Touchpoint Solutions promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with applicable laws and government regulations. Licensee shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, copyright, or other ownership rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. 


5. FEES AND PAYMENT FOR PURCHASED SERVICES 

5.1. Fees. Licensee shall pay all fees specified in all Order Forms hereunder. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the number of User subscriptions or level of Service purchased cannot be decreased during the relevant subscription term stated on the Order Form. 

5.2. Invoicing and Payment. Licensee will provide Touchpoint Solutions with valid and updated ACH or credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. Touchpoint Solutions uses a third-party PCI compliant vendor for payment processing. If Licensee provides credit card information to Us, Licensee authorizes Us to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 11.1 (Term of Agreement). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than ACH or a credit card, Touchpoint Solutions will invoice Licensee in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. Licensee is responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information. 

5.3 Cancellation and Termination. Our Services are offered with a free trial thus giving the Licensee ample time to determine if the Licensee will continue to use Services after the free trial and if the Services meet the Licensee’s needs. If Licensee cancels the Services before the end of the current subscription term, the cancellation will take effect at the end of the current subscription. There will not be any prorating of unused time in the current billing cycle. Notification of non-renewal must be received 30-days prior to the end of the current subscription term. 

5.4 Late Charges. Any payment not received within thirty (30) days after the new subscription term will accrue interest at a rate of one and one-half percent (1 1/2%) per month, or the highest rate allowed by applicable law, whichever is lower. If Licensee is delinquent in payments, Touchpoint Solutions may, upon prior written notice to Licensee, and at Touchpoint Solution's sole discretion (i) terminate this Agreement, (ii) in whole or in part suspend or block Licensee’s access to the Services until payment in full has been paid, or (iii) require other assurances to secure Licensee’s payment obligations hereunder. 

5.5 Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal, or foreign jurisdiction (collectively, "Taxes"). Licensee is responsible for paying all Taxes associated with purchases hereunder. If We have the legal obligation to pay or collect Taxes for which Licensee is responsible under this paragraph, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Us with a valid tax exemption certificate authorized by the appropriate taxing authority. 

5.6 Future Functionality. Licensee agrees that purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Touchpoint Solutions regarding future functionality or features. 

6. CONFIDENTIAL INFORMATION 

6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Licensee Information; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. 

6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, or accountant’s compliance with this Section 6.2. 

6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information. 

7. PROPRIETARY RIGHTS 

7.1 Touchpoint Solution's Proprietary Rights. Exclusive of Licensee Data, Touchpoint Solutions will retain all right, title, and interest (including copyright and other intellectual property rights, or informational rights) in and to the Services, the Touchpoint Solutions Information, and all legally protectable elements or derivative works thereof. No right, title, or interest in any of the Services or any Touchpoint Solutions Information will be deemed to be transferred or assigned to Licensee by virtue of this Agreement or Licensee's use of or access to the Services. Touchpoint Solutions may place copyright and/or proprietary notices, including hypertext links, within the Services indicating Touchpoint Solution's proprietary interest therein. Licensee may not alter or remove such notices without Touchpoint Solution's written permission. 

7.2 Licensee's Proprietary Rights. Licensee will retain all right, title, and interest (including copyright and other intellectual property rights, or informational rights) in the Licensee Surveys. No right, title, or interest in or to any of the Licensee Survey will be deemed to be transferred or assigned to Touchpoint Solutions by virtue of this Agreement. 

7.3 Suggestions. Touchpoint Solutions shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Services any suggestions, enhancement requests, recommendations, or other feedback provided by Licensee, including Users, relating to the operation of the Services. 

8. WARRANTIES AND DISCLAIMERS 

In General, Touchpoint Solutions warrants that it will use industry standard efforts to provide the Services to Licensee in accordance with Section 4 of this Agreement, that it has all rights necessary to provide the Services, and that the Services will contain no Malicious Code; provided that: 
 

1. Licensee uses only such computer equipment, operating environment, web browser, and software recommended or approved by Touchpoint Solutions for accessing and using the Services; web browsers supported are listed on the Salesforce.com login page: Google Chrome, Mozilla Firefox, Safari (Mac), Internet Explorer (10+) 

2. Licensee has paid all amounts due under this Agreement and is not in default of any provision of this Agreement; and 

3. Licensee has made no changes (nor permitted any changes to be made other than by or with the express approval of Touchpoint Solutions) to the Services. ANY UNAUTHORIZED CHANGES TO THE SERVICES WILL VOID THE WARRANTY. 

For any breach of the above warranty, Licensee’s exclusive remedies are those described in Section 11.3. 

8.1 No Other Warranties. THE WARRANTY SET FORTH IN THIS SECTION IS THE SOLE AND EXCLUSIVE WARRANTY FOR ANY FAILURE BY TOUCHPOINT SOLUTIONS TO PROVIDE THE SERVICES. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, TOUCHPOINT SOLUTIONS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. TOUCHPOINT SOLUTIONS DOES NOT WARRANT THAT THE SERVICES WILL BE PROVIDED UNINTERRUPTED OR WITHOUT ERROR OR THAT SERVICES WILL MEET LICENSEE’S SPECIFIC NEEDS 

8.2 Precedence. IN NO EVENT DOES THE USE OF SERVICES (SECTION 4.1, 4.2, 4.4, AND 4.5) WAIVE THE WARRANTY DISCLAIMER SET OUT HEREIN. IN THE EVENT OF ANY CONFLICT BETWEEN THE PROVISIONS OF THE USE OF SERVICES (SECTION 4.1, 4.2, 4.4, AND 4.5) AND THE WARRANTY DISCLAIMER IN THIS SECTION, THE WARRANTY DISCLAIMER IN THIS SECTION WILL TAKE PRECEDENCE. 

8.3 Non-GA Services. From time to time, Touchpoint Solutions may invite Licensee to try, at no charge, content or Services that are not generally available to Our customers ("Non-GA Services"). Licensee may accept or decline any such trial. Any Non-GA Services will be designated and or communicated as beta, pilot, limited release, non-production, or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED "SERVICES" HEREUNDER AND ARE PROVIDED "AS IS" WITH NO EXPRESS OR IMPLIED WARRANTY. We may discontinue Non-GA Services at any time at Our sole discretion and may never make them generally available. 

9. MUTUAL INDEMNIFICATION. Each party will indemnify, defend, and hold harmless the other party and its officers, directors, managers, partners, members, employees, and agents (collectively "Indemnified Parties") from and against any and all costs, liabilities, losses, and expenses, (including, but not limited to, reasonable attorneys' fees) (collectively "Losses") resulting from any claim, suit, action, or proceeding (each an "Action") brought by any third party against an Indemnified Party alleging the other party's ("Indemnifying Party"): infringement or misappropriation of any intellectual property right, including but not limited to copyright, trade secret, and trademark rights. The Indemnifying Party's indemnification obligation hereunder shall be subject to: (a) receiving prompt written notice of the existence of any Action; (b) being able to, at its option, control the defense of such Action; (c) permitting the Indemnified Party to participate in the defense of any Action; and (d) receiving full cooperation of the Indemnified Party in the defense thereof. 

10. LIMITATIONS OF LIABILITY 

10.1 Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND BREACH OF CONFIDENTIALITY, NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY LICENSEE HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT WITH THE EXCLUSION OF THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND BREACH OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT LICENSEE'S PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR PURCHASED SERVICES). 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. 

11. TERM AND TERMINATION 

11.1 Term of Agreement. This Agreement commences on the date the Licensee accepts it and continues until all Licensee’s subscriptions granted in accordance with this Agreement have expired or been terminated. If Licensee elects to use the Services for a free trial period and does not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period. 

11.2 By Touchpoint Solutions. Touchpoint Solutions may terminate this Agreement upon giving Licensee a written notice of termination if Licensee (i) breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach, except in the case of failure to pay fees, which must be cured within fifteen (15) days after Touchpoint Solutions gives Licensee notice of such delinquency, or (ii) becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition is not dismissed within sixty (60) days of filing. 

11.3 By Licensee. Licensee may terminate this Agreement upon giving Touchpoint Solutions a written notice of termination if Touchpoint Solutions (i) breaches this Agreement and fails to cure such breach within thirty (30) days of written notice describing such breach, or (ii) becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition is not dismissed within sixty (60) days of filing. 

11.4 Procedure upon Termination. Upon the effective date of termination of this Agreement, Touchpoint Solutions will cease providing access to the Services and Licensee will cease using and accessing the Services. In the event that this Agreement is terminated by the Licensee in accordance with Section 11.3 Sub-Section (i), the Licensee will be refunded any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Touchpoint Solutions in accordance with Section 11.2, the Licensee will pay any unpaid fees covering the remainder of the term of all Order Forms. 

11.5 Surviving Provisions. Section 5 (Fees and Payment), 6 (Confidential Information), 8 (Warranties and Disclaimers), 9 (Mutual Indemnification), 10 (Limitations of Liability), 12 (Assignment), 13 (Manner of Giving Notice), 14 (General Provisions) shall survive any termination or expiration of this Agreement. 

12. ASSIGNMENT

Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party (not to be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement together with all rights and obligations under this Agreement, without consent of the other Party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party (if a public company, as listed in the other Party’s then-most recent 10-K filing). Any attempt by a Party to assign its rights or obligations under this Agreement in breach of this section will be void and of no effect. 

13. MANNER OF GIVING NOTICE 

Except as otherwise specified in this Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to Licensee shall be addressed to the relevant billing contact designated by Licensee. All other notices to Licensee shall be addressed to the relevant Services system administrator designated by Licensee. 

14. GENERAL PROVISIONS 

14.1 Who Licensee Is. Contracting With Touchpoint Solutions, Inc. 630 ROOSEVELT, IRVINE, CA 

14.2 Mediation and Arbitration. 
 

1. If a dispute arises out of or relates to this Agreement, or the breach thereof, and the dispute cannot be settled informally, the parties agree first to try in good faith to settle the dispute by mediation. If the parties cannot reach agreement on selecting a mediator, the parties shall contact JAMS mediation service for a list of mediators in Irvine, California and shall alternatively strike names from that list until a mediator is chosen. 

2. Nothing herein shall prohibit parties from seeking injunctive relief as warranted and/or permitted by this Agreement. 

3. Subject to subsections (i) and (ii) above, the parties agree to resolve any dispute arising out of or related to this Agreement, or the breach thereof, by arbitration in Irvine, California in accordance with the rules of the American Arbitration Association (“AAA”). Notwithstanding the above, there is no obligation on the parties to utilize AAA for administrative purposes. A single arbitrator shall be agreed upon by the parties or, if the parties cannot agree upon an arbitrator within thirty (30) days, then the parties agree that a single arbitrator shall be appointed by the AAA. The arbitrator may award attorneys' fees and costs as part of the award. The award of the arbitrator shall be binding and may be entered as a judgment in any court of competent jurisdiction. 

14.3 Waiver. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof. 

14.4 Severability. If any provision of this Agreement is determined to be invalid under any applicable statue or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable. 

14.5 Governing Law. This Agreement and performance hereunder shall be governed by the laws of the State of California, USA. 

14.6 Entire Agreement. This Agreement, including any Order Forms, contains the entire agreement and understanding between the parties, and supersedes all written and oral understandings and negotiations relating to the subject matter hereof. 


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