Privacy Policy

PLEASE READ THESE TERMS OF USE (“ TERMS OF USE ”) CAREFULLY. THESE TERMS APPLY TO YOUR USE OF: (I) OUR PROPRIETARY MOBILE APPLICATION, INCLUDING ALL ENHANCEMENTS, VERSIONS, AND MODIFICATIONS TO THE FOREGOING (THE “ APP ”); AND (II) THE RELATED SERVICES PROVIDED BY TORCHMETRICS THROUGH THE APP OR THROUGH OUR WEBSITE LOCATED AT www.torchmetrics.com (COLLECTIVELY, THE “SERVICES”). BY DOWNLOADING THE APP OR USING OUR SERVICES, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF USE WITH TORCHMETRICS (“TORCHMETRICS”, “ WE ”, OR “ US ) AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF USE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THE TERMS OF USE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED WITH US. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF USE, YOU MAY NOT ACCESS OR USE THE SERVICES.

TorchMetrics knows that your privacy and the privacy of those responding to your requests for feedback is important. For this reason, we have created a privacy policy that describes our collection, use and disclosure practices regarding any personal information that you and/or those responding to your requests for feedback, provide to us.

Please be advised that the Terms are subject to change by Torch Metrics in its sole discretion at any time. When changes are made, such revised terms will be made available to you. If you do not agree to any changes after receiving a notice of such changes, you shall stop using the App and/or the Services. In that event upon notification from you, TorchMetrics shall make a refund to you of any amounts you have prepaid for the App and Services, adjusted to reflect the amount of App and Services you have already used. Otherwise, your continued use of the App and/or Services constitutes your acceptance of such change(s). Please regularly check our Terms of Use to view then most current terms.

  1. Using our App and Services.

    1. Overview. Our Services and App are primarily designed to enable you to obtain and evaluate Feedback from others in connection with yourself, your employees and/or your clients and to track feedback as well as performance over time.

    2. Services and App License. Subject to your compliance with the Terms, TorchMetrics grants you a limited non-exclusive, non-transferable, non-sub licensable, revocable license to utilize the Services and App for the period of time set forth in your license.

    3. Use of the TorchMetrics Services and App. Use of the TorchMetrics Services and App. The TorchMetrics Services and App are Properties (“Properties”) protected by copyright laws throughout the world. Unless otherwise specified by TorchMetrics in a separate license and subject to the Terms hereof, TorchMetrics grants you a limited license to reproduce portions of the TorchMetrics Properties for the sole purpose of using the Services for your personal or internal business purposes.

    4. Certain Restrictions. The rights granted to you in the Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the TorchMetrics Properties or any portion of the TorchMetrics Properties, (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other TorchMetrics Properties (including images, text, page layout or form) of TorchMetrics; (c) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the TorchMetrics Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (d) access the TorchMetrics Properties in order to build a similar or competitive website, application or service; (e) except as expressly provided in these terms or in any separate license, no part of the TorchMetrics Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (e) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the TorchMetrics Properties. Any future release, update or other addition to the TorchMetrics Properties shall be subject to the Terms.

  2. Registration.

    1. Registering Your Account. In order to access certain features of the TorchMetrics Properties you may be required to become a Registered User. For purposes of the Terms, a “Registered User” is a User who has registered an account with TorchMetrics (“Account”).

    2. Registration Data. In registering for the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the Services’ registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least thirteen (13) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using the TorchMetrics Properties under the laws of the United States, your place of residence or any other applicable jurisdiction.

    3. Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the TorchMetrics Properties, including but not limited to, a mobile device that is suitable to connect with and use the TorchMetrics Properties, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the TorchMetrics Properties.

  3. Responsibility for Content of Presentations. You acknowledge that all information, data, text, software, music, sound, photographs, graphics, video, messages, tags and/or other materials contained in any presentations which are evaluated by TorchMetrics is/are the sole responsibility of you and/or the person or persons making such presentations. This means that you and/or the person or persons making such presentations, and not TorchMetrics, is/are entirely responsible for all content contained in such presentations.

  4. Ownership.

    1. TorchMetrics Properties. Except with respect to Your Content and User Content, you agree that TorchMetrics and its suppliers own all rights, title and interest in the TorchMetrics Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services, or the TorchMetrics Properties.

    2. Trademarks. TorchMetrics and other related graphics, logos, service marks and trade names used on or in connection with the TorchMetrics Properties or in connection with the Services are the trademarks of TorchMetrics and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the TorchMetrics Properties are the property of their respective owners.

    3. Other Content. You agree that you have no right or title in or to any content that appears on or in the TorchMetrics Properties.

  5. User Conduct.

    1. Commercial Activities. You agree that you will not, under any circumstances (except to the extent expressly authorized by the Terms) reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purpose any portion of the TorchMetrics Properties (including your Account), or access to or use of the TorchMetrics Properties;

      (a) Interfere or attempt to interfere with the proper functioning of the TorchMetrics Properties or connect to or use the TorchMetrics Properties in any way not expressly permitted by the Terms;

      (b) Systematically retrieve data or other content from our TorchMetrics Properties to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, spiders, or otherwise;

      (c) Use, display, mirror or frame the TorchMetrics Properties, or any individual element within the TorchMetrics Properties, TorchMetrics’s name, any TorchMetrics trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without TorchMetrics’s express written consent;

      (d) Use any unauthorized software that accesses, intercepts, “mines” or otherwise collects information from or through the TorchMetrics Properties or that is in transit from or to the TorchMetrics Properties, including, but not limited to, any software that reads areas of RAM or streams of network traffic used by the TorchMetrics Properties;

      (e) Intercept, examine or otherwise observe any proprietary communications protocol used by a client, a server or the TorchMetrics Properties, whether through the use of a network analyzer, packet sniffer or other device;

      (f) Make any automated use of the TorchMetrics Properties, or take any action that imposes or may impose (in TorchMetrics’s sole discretion) an unreasonable or disproportionately large load on the infrastructure for the TorchMetrics Properties;

      (g) Bypass any robot exclusion headers or other measures TorchMetrics takes to restrict access to the TorchMetrics Properties, or use any software, technology or device to send content or messages, scrape, spider or crawl the TorchMetrics Properties, or harvest or manipulate data;

      (h) Use, facilitate, create, or maintain any unauthorized connection to the TorchMetrics Properties, including, but not limited to: (i) any connection to any unauthorized server that emulates, or attempts to emulate, any part of the TorchMetrics Properties; or (ii) any connection using programs, tools or software not expressly approved by TorchMetrics;

      (i) Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying software or other intellectual property used to provide the TorchMetrics Properties, or to obtain any information from the TorchMetrics Properties;

      (j) Forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through the TorchMetrics Properties;

      (k) Upload, post, e-mail, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;

      (l) Solicit or attempt to solicit personal information from other users of the TorchMetrics Properties;

      (m) Use the TorchMetrics Properties to collect, harvest, transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;

      (n) Forge any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting, or in any way use the TorchMetrics Properties to send altered, deceptive or false source-identifying information; or

      (o) Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including, but not limited to, clear GIFs, 1x1 pixels, web bugs, cookies or other similar devices (sometimes referred to as “spyware,” “passive collection mechanisms” or “pcms”).

    2. General In connection with your use of the TorchMetrics Properties, you shall not:

      (a) Harm minors in any way;

      (b) Impersonate any person or entity, including, but not limited to, TorchMetrics personnel, or falsely state or otherwise misrepresent your affiliation with a person or entity;

      (c) Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;

      (d) Register for more than one Account or register for an Account on behalf of an individual other than yourself;

      (e) Stalk or otherwise harass any other user of our TorchMetrics Properties; or

      (f) Advocate, encourage or assist any third party in doing any of the foregoing activities in this section.

  6. Interactions with Other Users.

    1. User Responsibility. You are solely responsible for your interactions with other users of the Services and any other parties with whom you interact through the Services. You agree that TorchMetrics will not be responsible for any liability incurred as the result of such interactions.

    2. Content Provided by Third Parties. The TorchMetrics Properties may contain certain links to the content of third parties (“Third Party Websites”). TorchMetrics acknowledges that it is not the owner of such content and is providing the links in order to assist you in finding additional, relevant information pertaining to the results of the feedback you receive. When you click on a link to a Third-Party Website, we will not warn you that you have left the TorchMetrics Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites are not under the control of TorchMetrics. TorchMetrics is not responsible for any Third-Party Websites. TorchMetrics provides these Third-Party Websites & Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, or their products or services. You use all links in Third-Party Websites at your own risk. When you leave our Services, our Terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites.

  7. Fees.

    1. Payment. You agree to pay any fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. We use a third party payment provider to process purchases (“Payment Provider”). Your Payment Provider agreement governs your use of the designated credit card or PayPal account, and you must refer to that agreement and not the Terms to determine your rights and liabilities. You agree that we are authorized to immediately invoice your Account for all fees and charges due and payable to TorchMetrics hereunder and that no additional notice or consent is required. We reserve the right at any time to change our prices and billing methods, either immediately upon posting on the TorchMetrics Properties or by e-mail delivery to you. Except as otherwise provided by a separate agreement, all fees are non-refundable.

  8. Indemnification. You agree to indemnify and hold TorchMetrics, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “TorchMetrics Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) your violation of the Terms; (b) your violation of any rights of another party; or (c) your violation of any applicable laws, rules or regulations. TorchMetrics reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with TorchMetrics in asserting any available defenses. You agree that the provisions in this section will survive any termination of your Account, the Terms or your access to the TorchMetrics Properties.

  9. Disclaimer of Warranties.

    1. As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE TORCHMETRICS PROPERTIES IS AT YOUR SOLE RISK, AND THE TORCHMETRICS PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TORCHMETRICS PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

      (a) TORCHMETRICS PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE TORCHMETRICS PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE TORCHMETRICS PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE TORCHMETRICS PROPERTIES WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE TORCHMETRICS PROPERTIES WILL BE CORRECTED.

      (b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE TORCHMETRICS PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE TORCHMETRICS PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.

      (c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. TORCHMETRICS MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.

      (d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM TORCHMETRICS OR THROUGH THE TORCHMETRICS PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

      (e) From time to time, TorchMetrics may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at TorchMetrics’ sole discretion. The provisions of this section apply with full force to such features or tools.

    2. No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT THE TORCHMETRICS PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TORCHMETRICS PARTIES LIABLE, FOR ANY EVENTS OR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

    3. No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE TORCHMETRICS PROPERTIES.

  10. Limitation of Liability.

    1. Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TORCHMETRICS PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE TORCHMETRICS PROPERTIES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT TORCHMETRICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, OR FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE TORCHMETRICS PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THE TORCHMETRICS PROPERTIES; (2) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (3) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE TORCHMETRICS PROPERTIES; OR (4) ANY OTHER MATTER RELATED TO THE TORCHMETRICS PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.

    2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE TORCHMETRICS PARTIES BE LIABLE TO YOU FOR MORE THAN THE AMOUNT RECEIVED BY TORCHMETRICS FROM YOU IN THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH YOU FIRST ASSERT A CLAIM. IF YOU HAVE NOT PAID TORCHMETRICS ANY AMOUNTS IN SUCH PERIOD, THE TORCHMETRICS PARTIES’ SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO TWENTY FIVE DOLLARS ($25.00).

    3. User Content. THE TORCHMETRICS PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.

    4. Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TORCHMETRICS AND YOU.

    5. EXCLUSION OF DAMAGES. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.

  11. Term and Termination.

    1. Term. The Terms commence on the date when you accept them (as described above) and remain in full force and effect while you use the TorchMetrics Properties and, in certain cases, afterwards as specified in the Terms, unless terminated earlier in accordance with the Terms.

    2. Prior Use. Notwithstanding the foregoing, if you used the TorchMetrics Properties prior to the date you accepted the Terms, you hereby acknowledge and agree that the Terms commenced on the date you first used the TorchMetrics Properties (whichever is earlier) and will remain in full force and effect while you use the TorchMetrics Properties, unless earlier terminated in accordance with the Terms.

    3. Termination of Services by You. If you want to terminate the Services provided by TorchMetrics, you may do so by notifying TorchMetrics at any time. Your notice should be sent, in writing, to TorchMetrics's address set forth below.

    4. Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files inside your Account (or any part thereof). Upon termination of any Service, your right to use such Service will automatically terminate immediately. All provisions of the Terms which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

  12. Remedies.

    1. Breach. In the event that TorchMetrics determines, in its sole discretion, that you have breached any portion of the Terms, TorchMetrics reserves the right to:

      (a) Warn you via e-mail (to any e-mail address you have provided to TorchMetrics) that you have violated the Terms;

      (b) Discontinue your registration(s) with the any of the TorchMetrics Properties, including any Service; and/or

      (c) Pursue any other action which TorchMetrics deems to be appropriate.

    2. No Subsequent Registration. If your registration(s) with or ability to access the TorchMetrics Properties is discontinued by TorchMetrics due to your violation of any portion of the Terms then you agree that you shall not attempt to re-register with or access the TorchMetrics Properties through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those TorchMetrics Properties to which your access has been terminated. In the event that you violate the immediately preceding sentence, TorchMetrics reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.

  13. General Provisions.

    1. Electronic Communications. The communications between you and TorchMetrics use electronic means, whether you visit the TorchMetrics Properties or send TorchMetrics e-mails, or whether TorchMetrics posts notices on the TorchMetrics Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from TorchMetrics in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TorchMetrics provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

    2. Release. You hereby release TorchMetrics Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the TorchMetrics Properties, including but not limited to, any interactions with or conduct of other Users or third-party websites of any kind arising in connection with or as a result of the Terms or your use of the TorchMetrics Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

    3. Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without TorchMetrics’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

    4. Force Majeure. TorchMetrics shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

    5. Compliance. If you believe that TorchMetrics has not adhered to the Terms, please contact TorchMetrics by emailing us at claudyne@torchmetrics.com. We will do our best to address your concerns. If you feel that your complaint has been addressed incompletely, we invite you to let us know for further investigation.

    6. Limitations Period. YOU AND TORCHMETRICS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TERMS, THE TORCHMETRICS PROPERTIES OR THE CONTENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

    7. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement” ) carefully. It is part of your contract with TorchMetrics and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

      (a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by TorchMetrics that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and TorchMetrics, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.

      (b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to TorchMetrics should be sent to: Wilder Presentations, 77 Walnut Hill Rd., Chestnut Hill, MA 02467, Attention: Legal. After the Notice is received, you and TorchMetrics may attempt to resolve the claim or dispute informally. If you and TorchMetrics do not resolve the claim or dispute within 30 days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

      (c) ARBITRATION RULES. ARBITRATION SHALL TAKE PLACE IN BOSTON, MASSACHUSETTS AND BE INITIATED THROUGH THE AMERICAN ARBITRATION ASSOCIATION (“AAA”), AN ESTABLISHED ALTERNATIVE DISPUTE RESOLUTION PROVIDER (“ADR PROVIDER”) THAT OFFERS ARBITRATION AS SET FORTH IN THIS SECTION. IF AAA IS NOT AVAILABLE TO ARBITRATE, THE PARTIES SHALL AGREE TO SELECT AN ALTERNATIVE ADR PROVIDER. THE RULES OF THE ADR PROVIDER SHALL GOVERN ALL ASPECTS OF THIS ARBITRATION, INCLUDING BUT NOT LIMITED TO THE METHOD OF INITIATING AND/OR DEMANDING ARBITRATION, EXCEPT TO THE EXTENT SUCH RULES ARE IN CONFLICT WITH THE TERMS. ANY HEARING WILL BE HELD IN BOSTON, MASSACHUSETTS. ANY JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION IN MASSACHUSETTS.

      (d) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

      (e) Additional Rules for Non-appearance Based Arbitration. If non-appearance arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties.

      (f) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and TorchMetrics in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TORCHMETRICS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

      (g) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

      (h) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.

      (i) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

      (j) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with TorchMetrics.

      (k) Small Claims Court. Notwithstanding the foregoing, either you or TorchMetrics may bring an individual action in small claims court located in Boston, Massachusetts.

      (l) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court located in Boston, Massachusetts in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

      (m) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located in Massachusetts, for such purpose.

    8. Governing Law. The Terms and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms.

    9. Choice of Language. It is the express wish of the parties that the Terms and all related documents have been drawn up in English.

    10. Notice. Where TorchMetrics requires that you provide an e-mail address, you are responsible for providing TorchMetrics with your most current e-mail address. In the event that the last e-mail address you provided to TorchMetrics is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Terms, TorchMetrics’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to TorchMetrics at the following address: Wilder Presentations, 77 Walnut Hill Rd., Chestnut Hill, MA 02467, Attention: Legal. Such notice shall be deemed given when received by TorchMetrics by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

    11. Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

    12. Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

    13. Export Control. ou may not use, export, import, or transfer the TorchMetrics Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained the TorchMetrics Properties, and any other applicable laws. In particular, but without limitation, the TorchMetrics Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the TorchMetrics Properties, 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. You also will not use the TorchMetrics Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by TorchMetrics are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer TorchMetrics products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

    14. Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.

  14. International Provisions. The TorchMetrics Properties can be accessed from countries around the world and may contain references to Services that are not available in your country. These references do not imply that TorchMetrics intends to announce such Services or Content in your country. The TorchMetrics Properties are controlled and offered by TorchMetrics from its facilities in the United States of America. TorchMetrics makes no representations that the TorchMetrics Properties are appropriate or available for use in other locations. Those who access or use the TorchMetrics Properties from other jurisdictions do so at their own volition and are responsible for compliance with local law.

  15. Legal Compliance. 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.