1. ACKNOWLEDGEMENT AND ACCEPTANCE OF ACCEPTABLE USE GUIDELINES.
XRomb Inc (on behalf of itself and all Participating Merchants using FastTouch Platform) (the “Company”), maintains this application, portal, and web App or Site (the “App or Site”) as a service to its customers. By using the App or App or App or Site or any current or future service(s) provided to you by the Company (collectively the “Services”) in accordance with an applicable service agreement (“Service Agreement(s)”), you are agreeing to comply with and be bound by the terms and conditions of these Acceptable Use Guidelines and any operating rules, regulations, policies, and procedures that may be modified from time-to-time on the App or App or Site (collectively, the “Terms”). The Terms govern your access to and use of the App or App or Site, the Services and any information, products, software, and/or features made available to you. If you are using the App or Site or Services on behalf of your employer, you represent that you are authorized to accept these Terms on your employer’s behalf. In the case of any violation of the Terms, FastTouch.com reserves the right to seek all remedies available by contract, law and in equity for such violations. The Terms apply to all visits to the App or Site and use of the Services, both now and in the future. ANY VIOLATION OF THESE TERMS MAY RESULT IN THE SUSPENSION OR TERMINATION OF YOUR ACCOUNT, THE SERVICES OR SUCH OTHER ACTION PERMITTED IN ACCORDANCE WITH THE APPLICABLE COMPANY SERVICE AGREEMENT.
2. LAWFUL USE.
You agree that You will not at any time conduct Your business in any manner that directly or indirectly offers, sells, leases, licenses or displays, delivers, advertises, recommends, or promotes any product(s), service(s), data, information, image(s), text and/or any content which:
1. is unlawful or violates any applicable local, state, federal, national or international law, statute, ordinance, or regulation including, without limitation, Credit Card Association rules, consumer protection law, Internet tobacco sales, firearm sales, unfair competition, antidiscrimination or false advertising;
2. is associated with any form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader (e.g., books, text, photos, videos, X-rated movies, pornographic materials, etc.), any materials which require individuals to be eighteen (18) or older to view or purchase those materials, escort services, and adult webApp or Sites;
3. infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, the unauthorized copying and posting of trademarks, pictures, logos, software, articles, musical works and videos;
4. is threatening, abusive, harassing, defamatory, obscene, libelous, slanderous, deceptive, fraudulent, invasive of another’s privacy, tortuous, or otherwise violate Company’s rules or policies;
5. victimizes harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;
6. impersonates any person or entity;
7. contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate the Services or any system, program, data or personal information or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;
8. offers or disseminates fraudulent goods, services, schemes, or promotions (i.e., make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;
9. is associated with illegal telecommunications or cable television equipment;
10. is associated with electronic wallets (i.e., “e-wallets”) or any similar payment type; or
11. is associated with the sale of (a) any controlled drug that requires a prescription from a licensed practitioner unless you are authorized by the National Association of Boards of Pharmacy to offer such products as a Verified Internet Pharmacy Practice App or Site and only if such a prescription has been issued by the practitioner after a bona fide examination of the patient; or (b) any over-the-counter drug, unless the sale of such product, without a prescription, has been approved by the Food & Drug Administration; or (c) nonprescription drugs that make false or misleading treatment claims or treatment claims that require FDA approval; or (d) any drug or controlled substance that the Company believes to be or may become harmful, unlawful, or prohibited. FastTouch.com requires sellers of prescription drugs to abide by all laws applicable to both the buyer and seller and we may require you to provide evidence of compliance with these requirements. In addition, due to the complexities of current laws regulating the importation of controlled drugs into the United States, you may not use the Services to sell prescription drugs that are imported into the United States from an international location. The foregoing list is a non-exhaustive list of prohibited goods and services.
3. MOBILE AND INTERNET ABUSE.
You are prohibited from engaging in any form of Mobile or Internet abuse, including but not limited to: (a) distributing, publishing, or sending any kind of unsolicited or unwelcome SMS email to any number of network users (commonly referred to as “junk mail” or “spam”), including, without limitation, mass promotions, unauthorized or unsolicited commercial advertising, and informational announcements, anywhere on the Internet; (b) posting a single article or substantially similar articles to an excessive number of newsgroups or mailing lists; (c) repeated or deliberate posting of articles that are off-topic according to the charter of the newsgroup or mail list where such articles are posted; (d) posting commercial advertising in a conference or newsgroup, unless it is specifically permitted to be posted within that group; or (e) violating Government Acts.
Company reserves the right and has absolute discretion to enforce the Terms. Company may, in its sole discretion, immediately terminate or suspend: (i) the Services; (ii) a Service Agreement; and/or (iii) access to this App or Site, if it determines that your services, offerings or activities violate the Terms. Without limitation, Company also reserves the right to report any activity (including the disclosure of appropriate data or merchant information) that it suspects may violate any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Company also may cooperate with appropriate law enforcement agencies to assist in the investigation and prosecution of any illegal conduct. If you want to report any violations of these guidelines, please contact abuse@FastTouch.com.
5. MODIFICATIONS TO THE APP OR SITE.
Company reserves the right to amend the Terms and modify or discontinue all or part of the App or Site, temporarily or permanently, with or without notice, and is not obligated to support or update the App or Site. The amended Terms shall automatically become effective immediately after they are initially posted on this App or Site. Your continued use of the App or Site after the posting of the amended Terms on the App or Site constitutes your affirmative: (a) acknowledgement of the Terms and its modifications; and (b) agreement to abide and be bound by the Terms, as amended. Should you object to any modifications of the Terms, your only recourse is to immediately: (a) terminate use of the App or Site and/or Services; and (b) notify Company of termination.
6. LINKS TO THIRD PARTY APP OR SITES ARE NOT ENDORSEMENTS.
The App or Site contains links to third-party web App or Sites. The linked App or Sites are not under the control of Company, and Company is not responsible for the contents or policies of any linked App or Site. Company provides these links as a convenience only, and a link does not imply endorsement of, sponsorship of, or affiliation with the linked App or Site by Company. Links to merchants or advertisers are owned and operated by independent retailers or service providers, and therefore, Company cannot ensure that you will be satisfied with their products, services or practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties.
7. INTELLECTUAL PROPERTY RIGHTS.
The App or Site is proprietary to Company. All the text, images, marks, logos and other content of the App or Site (“App or Site Content”) is proprietary to Company or to third parties from whom Company has obtained permission. Company authorizes you to view, download, and print the App or Site Content provided that: (i) you may only do so for your own personal and non-commercial use; (ii) you may not copy, publish or redistribute any App or Site Content; (iii) you may not modify App or Site Content; (iv) you may not remove any copyright, trademark, or other proprietary notices that have been placed in the App or Site Content by Company. Except as expressly permitted above, reproduction or redistribution of the App or Site Content, or any portion of the App or Site Content, is strictly prohibited without the prior written permission of Company. To request permission you may contact Company at webmaster@FastTouch.com. You represent and warrant that your use of App or Site Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties.
THE APP OR SITE AND SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. NEITHER COMPANY, NOR ITS PARENT CORPORATION, REPRESENTS OR WARRANTS THAT THE APP OR SITE OR SERVICES WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, ENTIRELY ERROR-FREE OR VIRUS FREE NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APP OR SITE OR SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR ANY INFORMATION OR PRODUCTS OBTAINED THROUGH THE APP OR SITE OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED. YOU EXPRESSLY ACKNOWLEDGE THAT THIS APP OR SITE AND THE SERVICES ARE COMPUTER NETWORK-BASED SERVICES, WHICH MAY BE SUBJECT TO OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. IN SUCH AN EVENT AND SUBJECT TO THE TERMS HEREOF, COMPANY SHALL USE COMMERCIALLY REASONABLE EFFORTS TO REMEDY MATERIAL INTERRUPTIONS AND WILL PROVIDE ADJUSTMENTS, REPAIRS AND REPLACEMENTS, WITHIN ITS CAPACITY, THAT ARE NECESSARY TO ENABLE THE APP OR SITE AND THE SERVICES TO PERFORM THEIR INTENDED FUNCTIONS IN A REASONABLE MANNER. YOU ACKNOWLEDGE THAT COMPANY DOES NOT WARRANT THAT SUCH EFFORTS WILL BE SUCCESSFUL. IF COMPANY’S EFFORTS ARE NOT SUCCESSFUL, YOU MAY TERMINATE THE APPLICABLE SERVICE AGREEMENT AND CEASE USING THE APP OR SITE. THE FOREGOING SHALL CONSTITUTE YOUR SOLE REMEDY, AND COMPANY’S SOLE LIABILITY, IN THE EVENT OF INTERRUPTION, OUTAGE OR OTHER DELAY OCCURRENCES IN THE COMPANY SERVICES. YOU WAIVE AND COVENANT NOT TO ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY NATURE ARISING FROM OR RELATING TO YOUR USE OF THE APP OR SITE OR SERVICES, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS AND ALLEGATIONS RELATING TO THE ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS, THE ALLEGED INACCURACY OF CONTENT, OR ALLEGATIONS THAT COMPANY HAS OR SHOULD INDEMNIFY, DEFEND, OR HOLD YOU HARMLESS FROM ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE, REPUBLICATION OR OTHER EXPLOITATION OF THE APP OR SITE OR SERVICES. YOU USE THE APP OR SITE AT YOUR OWN RISK AND NEITHER COMPANY NOR THE PARTIES WHO PROVIDE INFORMATION AND MATERIALS FOR PUBLICATION WITHIN THE APP OR SITE WILL BE LIABLE FOR ANY DAMAGES ARISING FROM YOUR USE OF THIS APP OR SITE. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE APP OR SITE OR THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT USER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ITS COMPUTER SYSTEM, LOSS OF SERVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, COMPANY SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE WITH RESPECT TO THE APP OR SITE OR SERVICES, OR OTHER SERVICES OR GOODS PROVIDED THROUGH THIS APP OR SITE. FOR THE AVOIDANCE OF DOUBT, YOU AGREE THAT COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR APP OR SITE WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ENTIRELY ERROR-FREE.
9. LIMITATION OF LIABILITY.
FASTTOUCH.COM EXPRESSLY DISCLAIMS ANY LIABILITY OR LOSS ARISING FROM OR RELATED TO THE APP OR SITE OR THE SERVICES (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING WITHOUT LIMITATION, LIABILITY OR LOSS ASSOCIATED WITH UNAUTHORIZED ACCESS TO ANY SERVER, MERCHANT INTERFACES, WEBAPP OR SITES, FACILITIES, OR YOUR DATA OR YOUR CUSTOMER DATA (INCLUDING CREDIT CARD NUMBERS AND OTHER PERSONALLY IDENTIFIABLE INFORMATION) DUE TO ACCIDENT, ILLEGAL OR FRAUDULENT MEANS, INCLUDING HACKING, OR DEVICES USED BY ANY THIRD PARTY, OR OTHER CAUSES BEYOND FASTTOUCH.COM’S REASONABLE CONTROL.YOU EXPRESSLY AGREE THAT FASTTOUCH.COM SHALL NOT BE LIABLE FOR ANY LOSS ARISING FROM INFILTRATION OF THE SERVICES, THE FASTTOUCH.COM SYSTEM OR WEBAPP OR SITE BY MEANS OF SOFTWARE VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, OR ANY OTHER SOFTWARE PROGRAMS, OR TECHNOLOGY DESIGNED OR INTENDED TO DISRUPT, DAMAGE, INTERCEPT OR EXPROPRIATE THE FASTTOUCH.COM SERVICES OR ANY SYSTEM, PROGRAM, DATA OR PERSONAL INFORMATION OR LIMIT THE FUNCTIONING OF THE APP OR SITE, SERVICES OR ANY SOFTWARE, HARDWARE, OR EQUIPMENT OR TO DAMAGE OR OBTAIN UNAUTHORIZED ACCESS TO ANY DATA OR ANY INFORMATION OF ANY THIRD PARTY.
AS A CONDITION OF USE OF THE APP OR SITE AND SERVICES, YOU AGREE THAT NEITHER COMPANY, NOR ANY OFFICER, AFFILIATE, DIRECTOR, SHAREHOLDER, AGENT, CONTRACTOR OR EMPLOYEE OF COMPANY WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL LOSS OF PROFITS, LOSS OF EARNINGS, LOSS OF BUSINESS OPPORTUNITIES, DAMAGES, EXPENSES, OR COSTS RESULTING DIRECTLY OR INDIRECTLY FROM, OR OTHERWISE ARISING IN CONNECTION WITH THE APP OR SITE, SERVICES OR SERVICE AGREEMENTS, HOWEVER ARISING, INCLUDING WITHOUT LIMITATION, THE INABILITY TO USE THE SERVICES OR FOR COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES OR RESULTING FROM ANY PRODUCTS, SERVICES PROVIDED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH THE APP OR SITE OR RESULTING FROM UNAUTHORIZED ACCESS TO, DELETION OR ALTERATION OF YOUR TRANSMISSIONS OR DATA OR FAILURE OF THE APP OR SITE TO STORE YOUR TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE PROPERTY, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO THE ACTS, OMISSIONS, NEGLIGENCE, AND GROSS NEGLIGENCE OF COMPANY AND ITS AFFILIATES, PARENTS, SUBSIDIARIES, CONTRACTORS, SUBCONTRACTORS, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, EMPLOYEES, AND AGENTS, WHICH, BUT FOR THIS PROVISION, WOULD GIVE RISE TO A COURSE OF ACTION IN CONTRACT, OR ANY OTHER LEGAL DOCTRINE.
EXCEPT AS OTHERWISE LIMITED, OUR LIABILITY AND THE LIABILITY OF OUR PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCES SHALL BE LIMITED TO THE LESSER OF (A) THE AMOUNT YOU PAY US IN THE 30 DAYS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (B) $100.
11. DISCLOSURE; FORWARD-LOOKING STATEMENTS.
Certain statements that are not historical fact contained in the App or Site may constitute forward-looking statements. Such statements include, without limitation, statements about future financial and operating performance of Company, as well as the Company’s plans, strategies, partnerships, products, service markets, growth prospects, successes, cost-effectiveness and security of new products or services, objectives, expectations, intentions or other statements that are not historical fact. Such statements are based on the then current beliefs and expectations of the management of the Company, and are subject to significant risks and uncertainty. Actual results may vary materially from those contained in forward-looking statements based on a number of factors including, without limitation, (i) dependence on a limited number of clients, (ii) the Company’s revenue concentration in the wireless telecommunications business and the declining subscriber growth rate in that business, (iii) the adverse impact that the financial and operating difficulties of the Company’s clients may have on the Company’s future revenues, and financial and operating results, (iv) continuing rapid change in the telecommunications industry and other markets in which the Company does business that may affect both the Company and its clients, (v) potential state, federal, and international regulation of voice conferencing or other services and related compliance and operating costs, regulatory assessments, and potential suspensions of service pending compliance with such regulation, (vi) uncertainties associated with the Company’s ability to develop new products, services, and technologies, (vii) market acceptance of the Company’s new products, services, and technologies and continuing demand for the Company’s products, services, and technologies, (viii) the impact of competitive products, services, and pricing on both the Company and its clients, (ix) current and future economic conditions including, without limitation, decreases or delays in capital spending by carriers and in new subscriber growth, and global economic recession, (x) integration, employee retention, recognition of cost and other benefits and revenue synergies, and other risks associated with acquisitions, (xi) the Company’s ability to execute on its objectives, plans, or strategies including, without limitation, product or services development plans, the mobile business strategy and the plans to develop alliances and grow its client base, (xii) economic and political instability in the domestic and international markets including, without limitation, the impact of terrorist threats and hostilities and the declaration of war or similar actions, (xiii) uncertainties associated with the Company’s ability to expand into new markets including, without limitation, the mobile business market, (xiv) the impact of restructuring charges and other charges on the Company’s business and operations, (xv) the industry risks associated with FastTouch.com’s business and operations including, without limitation, illegal or improper uses of FastTouch.com’s payment system, unauthorized intrusions or attacks on FastTouch.com’s payment system that may impair the operations of its payment system, changes or failures to comply with credit card association rules, governmental regulation and the application of existing laws to FastTouch.com’s business and dependence on relationships with third party payment processors, and (xvi) the factors disclosed in the Company’s filings with the U.S. Securities and Exchange Commission including, without limitation, its most recent Annual Report on Form 10-K. The Company undertakes no obligation to update any forward-looking statements. Nothing contained in this web App or Site constitutes an offer to sell or solicitation of an offer to buy any of the Company’s securities.
12. ACCESS TO PASSWORD PROTECTED/SECURE AREAS.
Access to and use of password protected and/or secure areas of the App or Site is restricted to authorized users only. Unauthorized individuals attempting to access these areas of the App or Site may be subject to prosecution.
13. SERVICES OFFERED BY COMPANY ON THIS APP OR SITE.
When you enroll to obtain a Service from the Company, you accept the specific terms and conditions applicable to that Service in accordance with the applicable Service Agreement. Except as provided in the Service Agreement, Company does not warrant that any service description or content contained in this App or Site is accurate, current, reliable, complete, or error-free.
14. TERMINATION & EFFECT.
Company may terminate access to the App or Site and the Services, with or without cause, at any time, and effective immediately. Termination shall be accompanied by a written or electronic notice to you. Company shall not be liable to you or any third party for termination. Should you object to any provision of the Terms or any subsequent modifications thereto, your only recourse is immediately to: (a) terminate use of the App or Site and/or Services; and (b) notify Company of termination. Upon termination of access to the App or Site and/or Services, your right to use the App or Site and/or Services shall immediately cease.
16. GOVERNING LAW & JURISDICTION.
This Agreement is intended to be legally binding upon the Parties. The Parties hereby agree that In the event of a dispute arising out of or relating to this contract, including any question regarding its existence, validity or termination, the parties shall first seek settlement of that dispute by mediation in accordance with the London Court of International Arbitration (the LCIA) Mediation Procedure, which Procedure is deemed to be incorporated by reference into this clause. If the dispute is not settled by mediation within 5 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by arbitration under the Ontario Court Rules, which Rules are deemed to be incorporated by reference into this clause. The language to be used in the mediation and in the arbitration shall be English. The governing law of the contract shall be the substantive law of Ontario Canada. In any arbitration commenced pursuant to this clause: (i) the number of arbitrators shall be one; and (ii) the seat, or legal place, of arbitration shall be Ontario.
FASTTOUCH, the FastTouch logos are registered trademarks of the Company. All other company and product names referenced herein are the trademarks or registered trademarks of their respective holders. This list may be modified from time-to-time in the Company’s discretion. You shall not register or attempt to register any of the Company’s marks or trademarks that would reasonably be deemed to be confusingly similar to any of the Company’s marks or trademarks. You shall comply with all standards with respect to the Company’s marks and all uses of the marks shall be consistent with Company standards.
18. FORCE MAJEURE.
Company shall not be liable for any losses arising out of the delay or interruption of its performance of obligations due to any acts of God, acts of civil or military authorities, civil disturbances, wars, strikes or other labor disputes, fires, transportation contingencies, interruptions in telecommunications, utility, Internet services or network provider services, acts or omissions by a third party, infiltration or disruption of the Services by a third party, or other catastrophes or occurrences that are beyond Company’s reasonable control.
In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in any way the remainder of such provision or any other provision of the Terms. Company’s failure to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. In the event of a conflict between the Acceptable Use Guidelines and the applicable Service Agreement, the latter shall govern.