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Terms of Use – syntouchcloud.com

Effective December 18, 2022

 

The following Terms of Use (these “Terms”) govern the access to and use of the software-as-a-service data analysis and visualization platform (codenamed “EMU”, the “Platform”) located at syntouchcloud.com (the “Site”; the Site and the Platform collectively, the “Service”) owned and operated by SynTouch Inc. (“SynTouch,” “we,” “us,” or “our” below). “You” or “your” or similar terms refer to you as a licensed user of the Service.

This is a binding agreement. If you use the Service or click “accept” or “agree” to these Terms if presented to you in a user interface for the Service, you accept all of its terms and conditions. By accepting these Terms or using the Service, you represent and warrant that you (1) have the legal capacity to contract where you reside; and (2) have the authority to act on behalf of the company or other entity for whom you are using the Service, and if so, “you” and “your” will refer and apply to that company/entity. If you do not agree to all of these Terms, you are not authorized to use the Service and you must promptly cease using it.

By agreeing to these Terms, you expressly agree to the arbitration of all Disputes set forth in Section 17 (Dispute resolution) below.

1. YOUR ACCESS TO THE SERVICE

a. Access device. You are solely responsible for, and we are not responsible for, (i) the operation of the mobile phone or tablet, laptop computer, desktop computer or other device you use to access the Service (“Access Device”); (ii) maintaining Internet access for your Access Device; and (iii) any Internet connection or telecommunications fees and charges that you incur.

b. No guarantee. Access to the Service may be suspended temporarily and without notice in the event of (i) system failure, (ii) maintenance or repair, (iii) our reasonable suspicion there has been a breach of these Terms, (iv) reasons reasonably beyond our control, or (v) reasons otherwise explained in these Terms.

2. PERMITTED USE AND RESTRICTIONS

a. License grant. Subject to these Terms, we hereby grant you a limited, non-exclusive, personal, non-transferrable, non-sublicensable, non-assignable license to access and use the Service (including updates and upgrades that replace or supplement it in any respect and which are not distributed with a separate license or documentation) solely in connection with uploading, viewing, visualizing and analyzing Your Data as defined in Section 7 (Intellectual property rights) below, and solely in the manner described in these Terms and in any technical documentation contained in, or provided with, the Service. The Service is provided under license, and not sold, to you. You do not acquire any ownership interest in the Service under these Terms, or any other rights thereto other than to use the Service in accordance with the license granted. We reserve all other rights that are not granted in these Terms.

b. Use restrictions. You may not access or use the Service in any way that is not expressly permitted by these Terms. Without limiting the generality of the foregoing, you may not, and may not permit a third party to, (i) cause, permit or authorize the modification, copy, creation of derivative works, translation, reverse engineering, decompiling, disassembling, or hacking of the Service; (ii) sell, assign, rent, lease, or grant rights in or access the Service, including, without limitation, through sublicense, to any person or entity not authorized by us; (iii) use the Service for any unlawful, prohibited, abnormal, or unusual activity as determined by us in our sole discretion including, for example, by hacking into or inserting malicious code, including viruses, or harmful data, into the Service or any operating system used by the Service; (iv) use the Service in a way that could damage, disable, overburden, impair or compromise our systems or security, or interfere with other users; (v) use the Service to collect or harvest any information or data from the Service or our systems or attempt to decipher any transmissions to or from the servers running the Service; (vi) via use of a robot, spider, or other automated device, monitor or copy the Service or any information provided by the Service; (vii) use the Service to send, knowingly receive, upload, download, use, or reuse any material which does not comply with these Terms; (viii) use the Service to transmit, or procure the sending of, any unsolicited or unauthorized advertising or promotional material or any other form of similar solicitation (spam); or (ix) use the Service or any software, documentation or component thereof to provide service bureau, testing service, consulting or similar services to third parties.

c. Eligibility. To access and use the Service or register an Account as defined in Section 4 (Accounts) below, you must be at least eighteen (18) years of age or a duly organized, validly existing business, organization, or other legal entity in good standing under all applicable laws, and able to enter into legally binding contracts. Individuals under the age of 18 are not permitted to use the Service.

d. Investigations. We may, but are not obligated to, monitor, or review the Service at any time. If we become aware of any possible violations by you of these Terms, we reserve the right to investigate such violations, and we may, at our sole discretion, immediately terminate your license to use the Service pursuant to Section 14 (Termination) below.

e. Violation of these Terms. You are solely responsible, and we have no responsibility or liability to you or any other person or entity, for any violation by you of these Terms or for the consequences of any such violation.

3. PRIVACY

These Terms incorporate the terms of our Privacy Policy (as updated from time-to-time). Our Privacy Policy explains how your personal information will be collected and used as well as other information regarding your privacy. By agreeing to these Terms, you are also agreeing to the Privacy Policy, and you consent to: (i) the processing of your personal information as explained in the Privacy Policy, and (ii) the collection of information from your Access Device as explained in the Privacy Policy.

4. ACCOUNTS

a. User account. To use the Service, you will be required to create a user account and provide your name, email address, and certain other information (“Account”). You are solely responsible for the information associated with your Account and anything that happens related to your Account. You will provide true, accurate, current, and complete information as requested by any forms and maintain and update such information to keep it true, accurate, current, and complete. Your failure to maintain true, accurate, current, and complete account information may result in your inability to access or use the Service.

b. Account security. You are solely responsible for maintaining the confidentiality of your Account’s access credentials such as user name and password, and properly securing Your Data. You agree to maintain all necessary safeguards to prevent any unauthorized person or entity from accessing the Service, your Account, or Your Data. We will take commercially reasonably measures to prevent unauthorized access to the Service via your Account or Your Data, and to otherwise protect using industry-standard efforts the confidentiality of Your Data to which we have access pursuant to Section 8 (Confidentiality) below. However, we are not responsible or liable for any loss or damage or breach of confidentiality resulting from your failure to prevent such unauthorized access to the Service or Your Data, or your actions that otherwise compromise the confidentiality of Your Data. You will notify us immediately if you become aware of any unauthorized use of your access credentials or Account.

c. Account sharing or transfers. Your Account is registered to you personally and may not be sold, traded, gifted, or otherwise transferred at any time under any circumstances. You may not share your Account with or disclose your access credentials to anyone else.

d. Account deletion by you. To delete your Account, contact us as set forth below in Section 20 (Contact information).

e. Account deletion by us. We may terminate your Account at any time for any reason or no reason, including if we determine that (i) you are (A) in breach of or otherwise acting inconsistently with these Terms or (B) engaging in fraudulent or illegal activities or other conduct that may result in liability to us; (ii) it is required by law to terminate your Account; or (iii) we must stop providing the Service or critical portions of the Service. When terminating your Account, we may delete your Account and the information in it. You have no ownership rights to your Account.

f. Access to Your Data. We will provide you with the ability to download Your Data prior to and for thirty (30) days following termination of your Account.

5. LOCATION

If you choose to access the Service from outside the United States, you are solely responsible for compliance with applicable local laws relating to your access.

6. FEEDBACK

We do not require but welcome your suggestions, comments, and survey responses regarding the Service (“Feedback”). We (i) will consider such Feedback non-confidential and non-proprietary; (ii) have the right, subject to our Privacy Policy, without limit in time and without payment to you, to use, copy, distribute, adapt, and disclose Feedback via the Service or otherwise to third parties for any purpose, in any way, and in any media worldwide now known or later discovered, including, without limitation, the right to create derivative works, make improvements, display, perform (including through digital performance), and transmit (including through digital transmissions) such Feedback, and the right to transfer or sublicense such rights; (iii) may have something similar to what is described in the Feedback already under consideration or in development; and (iv) are not obligated under any circumstances to pay you and you are not entitled to receive any compensation or reimbursement of any kind from us in connection with the Feedback.

7. INTELLECTUAL PROPERTY RIGHTS

a. Your use of the Service is at all times governed by and subject to laws regarding copyright ownership and use of intellectual property.

b. “Your Data” consists of (i) data you collect using a Toccare Haptics Measurement System that you own, rent or otherwise have a right to use to collect data, (ii) data we collect on your behalf using a Toccare Haptics Measurement System; (iii) other data you own; and (iv) third-party data to which you have been granted ownership or rights by their owners sufficient for you to use such data with the Service. Your Data does not include data that we or a third party may allow you to use but not own. You may use, visualize, and distribute Your Data if you do not otherwise violate these Terms or infringe proprietary rights of SynTouch or any third party.

c. Except for Your Data that you own, all right, title, and interest in and to the Service, including all intellectual property, industrial property, and proprietary rights, whether registered or unregistered, including but not limited to rights in graphics, logos, “look and feel,” trade dress, structure, organization, code, software, algorithms, data belonging to other users or entities, and all other content in the Service and compilation thereof, anywhere in the world, (i) belong to us, our licensors or other entities, (ii) are our valuable trade secrets and confidential information, and (iii) are protected by intellectual property laws. Nothing posted on the Service grants you a license to any SynTouch trademarks, copyrights, or other intellectual property rights, whether by implication, estoppel or otherwise.

You should assume that everything you see or read on the Service is copyrighted or trademarked by us unless otherwise noted and may not be used, copied or distributed except with our prior written permission.

The SynTouch name and logo are trademarks and service marks of SynTouch. You do not have the right to use any of our trademarks, service marks, or logos, and your unauthorized use of any of these may be a violation of trademark laws in the United State or other countries.

You will obey the law and respect the intellectual property rights of others.

8. CONFIDENTIAL INFORMATION

a. Confidentiality. While you have access to the Service, you may be given access to information we have identified as confidential (“SynTouch Confidential Information”). By storing it in the Service, you will provide us with access to Your Data and your Account’s access credentials (collectively, “Your Confidential Information”). You and we each will hold in strict confidence all Confidential Information of the other, and in no event exercise less than a reasonable degree of care to do so. Neither you nor we may (i) use any of the other’s Confidential Information except as needed to provide, access or use the Service under these Terms; or (ii) disclose the other’s Confidential Information to any third party except on a strict “need to know” basis and as long as the third party is bound to terms of confidentiality that are not less strict than those set forth in this Section 8.

b. Exceptions. Your and SynTouch’s obligations under this Section 8 will not apply to any information received from the other that either demonstrates by written evidence (i) was or becomes publicly available through no fault of the recipient of the Confidential Information, (ii) was already in the possession of the recipient without restriction on use or disclosure at the time of its disclosure under these Terms, or (iii) was rightfully obtained from a third party, without any obligation of confidentiality, that is entitled to disclose such information. Moreover, you and we may disclose Confidential Information as may be required by law or court order; provided that, to the extent not prohibited under applicable law, each party gives notice to the other party of such requirement.

9. THIRD-PARTY SITES AND SERVICES

a. The Service may contain links to or allow you to share content directly with third-party websites and application programming interfaces (“Third-Party Sites and APIs”). We have no control over the Third-Party Sites and APIs and are not responsible for their contents and/or availability. We do not assume any liability for your use of any of the foregoing, which you use at your own risk.

b. We provide you access to the Third-Party Sites and APIs for convenience only and do not constitute our endorsement or approval of the organizations that operate them, their content, or other material they contain, and we have no association with their operators. Your use of the Third-Party Sites and APIs will be governed by their terms and conditions and privacy policies (if any) (“Third-Party Terms”). It is your responsibility to read and comply with Third-Party Terms.

10. NOTICE FOR CALIFORNIA RESIDENTS PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1789.3

Under California Civil Code Section 1789.3, California users of an electronic commercial service receive the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd. Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.

11. INDEMNITY

You will indemnify and hold us and our affiliates, and their respective business partners, licensees, licensors, officers, directors, employees, and agents (the “Indemnified Parties”) harmless from and against any and all claims, demands, losses, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and costs), arising out of or in connection with (i) your use of the Service; (ii) your breach or violation of any of these Terms; or (iii) your violation of the rights of any third party. We reserve the right to assume the exclusive defense and control of any matter subject to indemnification by you, which shall not excuse your indemnity obligations. In such event, you shall provide the Indemnified Parties with such cooperation as is reasonably requested by them.

12. WARRANTY DISCLAIMER

a. WE PROVIDE THE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO GUARANTEE THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. WE HAVE NO OBLIGATION TO CORRECT ANY BUGS, DEFECTS OR ERRORS IN THE SERVICE OR TO OTHERWISE SUPPORT, DEVELOP OR MAINTAIN THE SERVICE. While we take reasonable precautions to prevent the existence of computer viruses and/or other malicious programs, we accept no liability for them. We also make no promises or guarantees, whether express or implied, that the content included in the Service is accurate, complete, or up to date.

b. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL CONDITIONS, WARRANTIES, REPRESENTATIONS AND OTHER TERMS, WHICH MAY APPLY TO THE SERVICE WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT OF THE RIGHTS OF THIRD PARTIES WITH RESPECT TO THE SERVICE AND ALL INFORMATION AND CONTENT INCLUDED ON THE SERVICE.

c. No information or advice obtained through the Service, or affirmation by us, by words or actions, shall constitute a warranty.

d. Because some jurisdictions do not allow the disclaimer of implied warranties, the foregoing disclaimers may not apply to you.

13. LIMITATION OF LIABILITY

a. IN NO EVENT SHALL THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOST PROFITS, ANY BREACH OF SECURITY OR ANY DAMAGE TO YOUR ACCESS DEVICE S OR DATA NETWORKS, LOST DATA, PERSONAL INJURY, PROPERTY DAMAGE, OR LOSSES ARISING OUT OF YOUR USE OF OR RELIANCE ON THE SERVICE OR YOUR INABILITY TO ACCESS OR USE THE SERVICE) ARISING FROM, RELATING TO, OR IN ANY WAY CONNECTED WITH THE USE OR THE PERFORMANCE OF THE SERVICE OR THESE TERMS, ARISING AND WHETHER FRAMED IN CONTRACT OR TORT, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF SYNTOUCH, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

b. Your sole remedy for dissatisfaction with the Service including, without limitation, content or information provided through the Service, is to stop using the Service.

c. In the event the foregoing exclusion of liability is determined, in whole or in part, to be invalid or unenforceable, the Indemnified Parties’ liability arising in connection with the Service or under these Terms whether in contract, tort (including negligence) or otherwise, shall not exceed, under any circumstances one hundred United States dollars (USD100). Any claim or cause of action arising under these Terms or the performance or non-performance of the Service must be brought within one year after such claim or cause of action arises or be forever barred.

d. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH JURISDICTIONS, SYNTOUCH’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON SYNTOUCH’S GOVERNING LAW PROVISION SET FORTH BELOW.

14. TERMINATION

a. We may terminate these Terms and/or terminate your permission to use the Service immediately, without prior notice or liability, if (i) you commit any breach of these Terms, (ii) we discontinue the Service, or (iii) we are prevented from providing the Service for any reason.

b. We reserve the right to change, edit, suspend, delete, and/or cancel, temporarily or permanently, any part of the Service and/or your access to it at any time with or without notice to you: (i) if required by law, or (ii) due to an event beyond our control.

c. On termination of these Terms for any reason, (i) all rights granted to you under these Terms will cease immediately, (ii) you must immediately cease all activities authorized by these Terms (including your use of the Service), and (iii) we may restrict your access to the Service. Sections 3 (Privacy), 6 (Feedback), 7 (Intellectual property rights), 11 (Indemnity), 12 (Warranty disclaimer), 13 (Limitation of liability), this subsection 14.c., 15 (Communication between us), 16 (Governing law), 17 (Dispute resolution), and 18 (Miscellaneous) will survive termination or expiration of these Terms.

15. COMMUNICATION BETWEEN US

If you wish to contact us in writing, or if any condition in these Terms require you to give us notice in writing, you can send this to us as indicated below in Section 20 (Contact information). If we have to contact you or give you notice in writing, we may do so by email or using any other contact details you provide to us.

16. GOVERNING LAW

Yhese Terms and any matter arising out of or relating to these Terms, and any claim, cause of action, controversy, or matter in dispute between you and us, whether based on any contract, tort, statute, regulation, or otherwise, shall be governed by the internal laws of the State of California and the United States, consistent with the United States Federal Arbitration Act, without regard to any choice or conflict of laws principles (whether of the State of California or any other jurisdiction). Except as otherwise provided below, the state and federal courts located in Los Angeles County, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Service and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, we will be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.

17. DISPUTE RESOLUTION

a. Mandatory arbitration. Any controversy, allegation, or claim that arises out of or relates to the Service, these Terms, or any additional terms, whether heretofore or hereafter arising (collectively, a “Dispute”), except for any controversy, allegation, or claim that arises out of or relates to our actual or alleged intellectual property rights (an “Excluded Dispute”), shall be finally resolved by arbitration. You and we will arbitrate solely on an individual basis, and these Terms do not permit class arbitration, or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitrator or arbitral panel may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of the arbitration provisions will remain in force.

b. Arbitration procedures. Except as provided in Section 17.e. below, all Disputes, (each a “Claim”), shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 17 and the JAMS Rules, the terms in this Section 17 will control and prevail.

Except as otherwise set forth in Section 17.e. below, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and we will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (i) you and we may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate, or enter judgment on the award entered by the arbitrator; and (ii) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.

IN THE CASE OF ARBITRATION AND WHERE PERMITTED BY LAW, YOU GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. ARBITRATOR DECISIONS ARE ENFORCEABLE AS ANY COURT ORDER AND ARE SUBJECT TO VERY LIMITED REVIEW BY A COURT.

c. Location. The arbitration will take place in Los Angeles County, California unless the parties agree to video, phone, or internet connection appearances.

d. Limitations. Any arbitration shall be limited to the Claim between you and we individually. (i) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (ii) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (iii) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION.

e. Exceptions to arbitration. The following Claims are not subject to the above provisions concerning binding arbitration: (i) any Excluded Dispute; (ii) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (iii) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.

f. Arbitration fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If we initiate arbitration for a Claim, we will pay the JAMS arbitration initiation fee. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.

g. Severability. If any portion of this Section 17 is found illegal or unenforceable (except any portion of Section 17.e.), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 17.e. is found to be illegal or unenforceable then neither you nor we will elect to arbitrate any Claim falling within that portion of Section 17.e. found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles County, California, and you and SynTouch agree to submit to the personal jurisdiction of that court.

18. MISCELLANEOUS

a. Assignment. The rights granted to you under these Terms may not be assigned without our prior written consent, and any attempted unauthorized assignment by you shall be null and void.

b. Severability. Except as otherwise provided in Section 17.f., if any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of the Terms shall be given full force and effect.

c. Attorneys’ fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 17.d., the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in any legal action relating to these Terms.

vd. No waiver. Our failure to enforce any provision of these Terms shall in no way be construed to be a waiver of such provision, nor in any way affect our right to enforce the same provision later. An express waiver by SynTouch of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement later.

e. Equitable remedies. We would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore we will be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect to any breach of these Terms, in addition to such other remedies as we may otherwise have available to us under applicable laws.

f. Entire agreement. These Terms, including the documents referenced in these Terms, constitutes the entire agreement between you and SynTouch with respect to the Service and your use of it and supersedes all prior agreements between you and SynTouch relating to the Service or your use of it.

g. Transfer. We may transfer our rights and obligations under these Terms to another entity, but this will not affect your rights or our obligations under these Terms.

19. CHANGES TO THESE TERMS

a. We reserve the right, at our sole discretion, to amend these Terms at any time. As applicable, we will notify you of material changes to these Terms when you next access the Service (we may also email you about any material changes to these Terms).

20. CONTACT INFORMATION

Send all questions or comments relating to the Service or these Terms to legal@syntouchinc.com.