Terms of Service
Effective July 22, 2014
Welcome to The Torch, which is made available by The Torch, LLC, a company organized under the laws of North Carolina (referred to herein as “The Torch”, “we”, “ours” or “us” (or any variation thereof)). These terms of service (“Terms of Service”) constitute a legal agreement between you and The Torch. Any reference to The Torch in this document includes our directors, officers, employees, contractors, owners, agents, licensors, or licensees. As used in these Terms of Service, the words “you” and “your” refer to you, the user of The Torch’s website, device, or applications, as the party agreeing to these Terms of Service. As used in these Terms of Service, the term “Site” includes all websites and all devices or applications that we operate that link to these Terms of Service, pages within each such website, device, or application, any equivalent, mirror, replacement, substitute or backup website, device, or application, and pages that are associated with each such website, device, or application. The use of the word “including” in these Terms of Service to refer to specific examples will be construed to mean “including, without limitation” or “including but not limited to” and will not be construed to mean that the examples given are an exclusive list of the topics covered.
A. GENERAL TERMS
1. ACCEPTANCE OF TERMS
The Torch provides its Sites to you subject to these Terms of Service, which may be updated by us from time to time. You can review the most current version of the agreement online at any time at https://www.thetorch.com/documents/terms-of-service. By using a Site, or selecting the applicable “I agree” button, checkbox, or other similar indication during the registration process, or during a subsequent presentation of a revised version of these Terms of Service, you signify your agreement with these Terms of Service. You agree that your use of the Sites will always be subject to the most current version of these Terms of Service at the time of such use. You may not use a Site and you may not accept these Terms of Service if you are not at least 18 years of age and, in any event, of a legal age to form a binding contract with The Torch. If you accept these Terms of Service, you represent that you have the capacity to be bound by them, and we suggest you print or save a local copy of these Terms of Service for your records. Depending on your activities when visiting the Site or using a particular Service, you may be required to agree to additional terms and conditions as indicated on the applicable Site or via the particular Service.
2. SERVICES OFFERED
The Torch offers various tools and functions through the Sites (the “Services”), including a personal estate organizer service with virtual notebooks, executor checklists, bright ideas list, readiness score, personal network and links to specialized resources. To be eligible to use the certain Services, you must be a resident of the United States or one of the countries specified by The Torch.
3. YOUR USE OF THE SERVICES
Your right to access and use the Sites and use the Services is personal to you and is not transferable by you to any other person or entity, and you may only access and use the Sites and Services for lawful purposes. Accurate records enable us to provide the Sites and Services to you. You represent that you are a legal owner of, and that you are authorized to provide us with, all information necessary to facilitate your use of the Services.
In order to allow you to use certain Services, we may be required to verify your identity. You authorize us to make any inquiries we consider necessary to validate your identity. These inquiries may include asking you for further information, requiring you to take steps to confirm ownership of your email address. If you do not provide this information or we cannot verify your identity, we can refuse to allow you to use the Services. Your access and use of the Sites or Services may be interrupted from time to time for any of several reasons, including the malfunction of equipment, periodic updating, maintenance or repair of the Service, or other actions that The Torch, in its sole discretion, may elect to take. In no event will The Torch be liable to any party for any loss, cost, or damage that results from any period of downtime of the Sites or Services.
Any fees applicable to your use of a Service will be charged regardless of whether or how often you use the Services during each period for which you have subscribed to the applicable Service. There may be charges for additional transactions and other optional services that you elect to use. You agree to pay fees for all the Services you use or subscribe to as described on the Sites.
You authorize The Torch or its third party payment processors to charge your credit card each year. If you are directed to The Torch’s third party payment processor, you may be subject to terms and conditions governing use of that third party’s service and that third party’s personal information collection practices.Your annual membership fees will automatically renew each year unless you notify The Torch of your desire to terminate your use of The Torch Services before the end of the current year. All fees are non-refundable and non-transferable. There will be no refunds or credits for partial year of service.
We control and operate the Service from our offices in the United States of America. We do not represent that materials on the Service are appropriate or available for use in other locations. Persons who choose to access the Service from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable. You understand that The Torch uses United States based third party vendors and hosting partners to provide the necessary hardware, software, networking, storage and related technology required to run the Service.
5. MEMBER ACCOUNT, PASSWORD, AND SECURITY
If you register for an account on a Site, you will receive a password and account designation (your “Site Credentials”) upon completing the registration process. You are responsible for maintaining the confidentiality of your Site Credentials. We strongly recommend that you exit and log off from your account at the end of each session and that you enable password-protection and other security features that may be made available on the Sites.
If you believe that your Site Credentials or device that you use to access any Site has been lost or stolen, that someone is using your account without your permission, or that an Unauthorized Transfer (as defined herein has occurred, you must notify us IMMEDIATELY in order to minimize your possible losses. The following is our contact information: [email protected]
6. TERM AND TERMINATION
These Terms of Service will be in effect from the date you first access a Site. You may terminate your account with The Torch at any time. The Torch may terminate or revise these Terms of Service at any time with or without notice. The provisions and all obligations of and restrictions on you and any user of your account with respect to any Site or Service shall survive any termination of these Terms of Service. The termination of your account with The Torch shall not affect any fees or charges already due to us from you.
You agree that The Torch, in its sole and absolute discretion, may terminate your account (or any part thereof) or your use of any Site or Service, for any reason, including for lack of use or if The Torch believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service or other terms applicable to a specific Site or Service. The Torch may, also, in its sole and absolute discretion, and at any time, discontinue providing any Site or Service, or any part thereof, with or without notice. You agree that any termination of your access to a Site or Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that The Torch may immediately deactivate or delete your account and all related information and files in your account and/or prohibit any further access to all files, the Sites, or the Services by you. Further, you agree that The Torch shall not be liable to you or any third party for any termination of your access to the Sites or the Services.
You can cancel your registration with any Site or Service at any time and have your information deleted from our records. To delete your account, log in to your account at www.thetorch.com, select the “Account” menu option, then click the “Delete my account” link on the profile tab and click “Yes”.
You agree to defend, indemnify, and hold harmless The Torch from and against all claims, suits, proceedings, losses, liabilities, and expenses, including attorneys’ fees, whether in tort, contract, or otherwise, that arise out of or relate, in whole or in part, to your breach of these Terms of Service or any activity by you in relation to the Sites or your use of the Services.
8. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
THE SITES, SERVICES, INFORMATION, DATA, FEATURES, AND ALL CONTENT IS OFFERED AND MADE AVAILABLE ON AN “AS IS” AND “AS AVAILABLE” BASIS. THE TORCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE CONTENT OR OPERATION OF THE SITES OR SERVICES. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITES AND SERVICES IS AT YOUR SOLE RISK. THE TORCH MAKES NO REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, COMPLETENESS, OR CONTINUED AVAILABILITY OF THE CONTENT ON THE SITES OR THE SERVICES, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. THE TORCH MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE THROUGH THE SITES OR SERVICES IS FREE OF BUGS, DEFECTS, OR ERRORS, OR INFECTION FROM ANY VIRUSES OR OTHER CODE OR COMPUTER PROGRAMMING
ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, SURREPTITIOUSLY INTERCEPT, OR EXPROPRIATE ANY SYSTEM, DATA, OR PERSONAL INFORMATION. THE SERVICE IS NOT INTENDED TO PROVIDE ESTATE PLANNING, LEGAL, TAX, OR FINANCIAL ADVICE. THE TORCH IS NOT AN ESTATE PLANNER, FINANCIAL PLANNER, BROKER, OR TAX ADVISOR.
The Service is intended only to assist you in estate organization and is broad in scope. Before making any final decisions or implementing any estate planning strategy, you should consider obtaining additional information and advice from your attorney, accountant or other professional estate planning or financial advisors who are fully aware of your individual circumstances. The Torch does not assume any responsibility for the completeness, accuracy, or failure to store account information. You understand and agree that any alerts provided to you through the Services may be delayed or prevented by a variety of factors. The Torch makes commercially reasonable efforts to provide alerts in a timely manner with accurate information, but we cannot guarantee the delivery, timeliness, or accuracy of the content of any alert. The Torch shall not be liable for any delays, failure to deliver, or misdirected delivery of any alert; for any errors in the content of an alert; or for any actions taken or not taken by you or any third party in reliance on an alert.
9. LIMITATION OF LIABILITY
THE TORCH SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR TO ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES YOU MAY INCUR IN CONNECTION WITH THE SITES, THE SERVICES, YOUR USE THEREOF, OR ANY OF THE USER SUBMISSIONS, INFORMATION, DATA, OR OTHER MATERIAL TRANSMITTED THROUGH OR RESIDING ON THE SITES, OR ANY ERRORS, DEFECTS,INTERRUPTIONS, DELETIONS, OR LOSSES RESULTING THEREFROM, INCLUDING LOSS OF PROFIT, REVENUE, OR BUSINESS, ARISING IN WHOLE OR IN PART FROM YOUR ACCESS TO OR USE OF THE SERVICE, EVEN IF THE TORCH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNLESS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS OF SERVICE,
THE TORCH’S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO US$500.00 (FIVE HUNDRED UNITED STATES DOLLARS).
10. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. IN SUCH STATES LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF SECTIONS 8 AND 9 OF THIS ARTICLE A MAY NOT APPLY TO YOU.
11. REMEDIES OF USER
Your sole and exclusive remedy for any failure or non-performance of a Service, including any associated software or other materials supplied in connection with a Service, shall be for The Torch to use commercially reasonable efforts to effectuate an adjustment or repair of the applicable Service. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Sites or Services or these Terms of Service must be filed within one year after such claim or cause of action arose or be forever barred.
12. MODIFICATIONS TO SITES OR SERVICES
The Torch reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Sites or Services with or without notice. We reserve the right to change the Services, including applicable fees, in our sole discretion and from time to time. In such event, if you are a paid subscriber to the applicable Service, we will provide notice to you. If you do not agree to the changes after receiving a notice of the change to the Services, you may stop using the Services. Your use of the Services after you are notified of any change(s) will constitute your agreement to such change(s). You agree that The Torch shall not be liable to you or to any third party for any modification, suspensions, or discontinuance of the Sites or Services.
13. DEALINGS WITH THIRD PARTIES
Some parts of the Sites are supported by sponsored links from advertisers. Based on information you provide in connection with the Sites or Services, the Sites may present information relating to third party products or services (“The Torch Offers”) to you that may be custom matched to you based on information you provided to the Site, queries made through the Site, or other information. We will always disclose when a particular The Torch Offer is sponsored.
In connection with The Torch Offers, the Site may provide links to other web sites or mobile applications belonging to The Torch advertisers and other third parties. The Torch does not endorse, warrant, or guarantee the products or services available through The Torch Offers (or any other third-party products or services advertised on or linked from our Site), whether or not sponsored, and The Torch is not an agent or broker or otherwise responsible for the activities or policies of those web sites. The Torch does not guarantee that offers from any particular advertiser or other third party are actually the terms that may be offered to you if you pursue the offer or that they are the best terms available.
Any third party listing on The Torch may be a membership, alliance, partnership, sponsorship or paid advertisement and does not in any way constitute a referral or endorsement by The Torch
14. NO UNLAWFUL OR PROHIBITED USE
As a condition of your use of the Sites and Services, you represent and warrant to The Torch that you will not use the Sites or Services for any purpose that is unlawful or prohibited by these Terms of Service. You may not use the Sites or Services in any manner that could damage, disable, overburden, or impair the Sites or Services. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Sites or Services. You agree not to access the Sites by any means other than through the interface that is provided by The Torch for use in accessing the Sites. If The Torch, in its sole discretion, believes that you may have engaged in any activities restricted by these Terms of Service or by law, we may take various actions to protect The Torch, other users, and other third parties from fees, fines, penalties, and any other liability. The actions we may take include the following: i) We may close, suspend, or limit your access to your account or ability to use the Sites or Services; ii) We may update inaccurate information you provided us; iii) We may refuse to allow you to use the Sites or Services in the future; iv) We may take legal action against you; and v) You may be liable to The Torch for the amount of The Torch’s damages caused by your violation of these Terms of Service. The Torch, in its sole discretion, reserves the right to terminate these Terms of Service, access to its Sites, or access to the Services for any reason and at any time with or without notice to you.
15. THE TORCH INTELLECTUAL PROPERTY RIGHTS
All content included or available in connection with the Sites, including any and all materials, information, text, data, contents, names, trade names, trademarks, trade dress, service marks, layout, logos, designs, images, graphics, illustrations, artwork, icons, photographs, displays, sound, music, video, animation, organization, assembly, arrangement, interfaces, databases, technology, and all intellectual property of any kind whatsoever (collectively, the “Content”) and the selection and arrangement thereof is owned exclusively by The Torch or the licensors or suppliers of The Torch and is protected by U.S. and international copyright and other intellectual property laws. All rights are hereby reserved. Without limiting the foregoing, no Content on the Sites may be copied, reproduced, duplicated, published, or distributed in any form or by any means whatsoever without the express prior written permission of The Torch or the appropriate licensor or supplier. Any feedback, questions, comments, suggestions, ideas, or the like that you send to The Torch will be treated as being non-confidential and nonproprietary, and The Torch will be free to use such information for any purpose whatsoever including developing, manufacturing, and marketing products and services incorporating the information. Any submission to a Site shall be deemed and remain the property of The Torch as further set forth in Section 16 of this Article A. No title to the Content or any other intellectual property rights therein, including software are transferred to you and The Torch hereby reserves for itself all such rights to the Content and intellectual property rights of The Torch related thereto. The Content may comprise unpublished software, containing valuable trade secrets and its confidential and propriety to The Torch and/or its licensors and is commercial software developed at private expense. You shall not do any of the following with respect to the Content or any intellectual property rights relating thereto: directly or indirectly reverse engineer, reverse compile nor reverse assemble any software, in whole or in party, ii) do or permit to be done anything which shall adversely affect The Torch’s right, title or interest in the Content or intellectual property rights relating thereto; or (iii) remove, alter, suppress, destroy, or modify in any way any proprietary markings, including copyright or trademark notice. All non-The Torch product and service marks contained on or associated with the Sites are the trademarks of their respective owners. References to any names, marks, products, or services of third parties or hypertext links to third party sites or information do not necessarily constitute or imply The Torch’s endorsement, sponsorship or recommendation of the third party, information, product, or service.
17. CHANGES TO YOUR INFORMATION
You agree to promptly update all your profile information, including, as applicable, your name and email address and billing information. To update your account, log in to your account at www.thetorch.com, click “Account” then click “Edit” on the Profile, Password or Billing tabs. We are not responsible for any payment processing errors or fees or other Services-related issues arising from your failure to keep your account information current.
18. NOTICES TO YOU; CONSENT TO RECEIVE ELECTRONIC COMMUNICATIONS
Notices to you may be sent via email, through the Service by displaying links to notices generally on the site, or to your mobile device. You understand and agree that you are entering into these Terms of Service electronically and that certain categories of information (“Communications”) may be provided by The Torch to you by electronic means (i.e., via email or by posting the information on a Site). The categories of Communications that may be provided by electronic means include: i) These Terms of Service and any amendments, modifications, or supplements; ii) Records of any payment and other transactions you handle through the Sites or Services, including payment histories and transaction confirmations; iii) Disclosures or notices provided in connection with the Services, including any required by federal or state law (including initial disclosures, periodic statements, periodic and annual error resolution notices, initial and annual privacy notices, opt-out notices, and change-in-terms notices); iv) Any customer service communications, including communications with respect to claims of error or unauthorized use of the Sites or Services; v) Any other communication related to the Sites or Services. All Communications will be deemed to have been received by you no later than 5 business days after we send it to you by email or post it on a Site, whether or not you have received the email or retrieved the Communication from the Site. An electronic Communication by email is considered to be sent at the time that it is directed by The Torch’s email server to your email address. You agree that these are reasonable procedures for sending and receiving electronic Communications.
You agree to promptly update your account records with us if your email address changes so that we may contact you electronically. You may update your account records, such as your email address, as described in the Changes to Your Information section of these Terms of Service. You understand and agree that if we send you an electronic Communication but you do not receive it because the email address on file is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, The Torch will be deemed to have provided the Communication to you. Although we reserve the right to provide Communications in paper format at any time, you agree that we are under no obligation to do so. All Communications in either electronic or paper format will be considered to be “in writing.” You should print a paper copy of these Terms of Service and any Communication that is important to you and retain the copy for your records. If you do not wish to receive these Terms of Service or the Communications electronically, you may not use the Sites or Services.
In order to access and retain Communications, you must have: i) a computer with an Internet connection; ii) a current web browser that includes 128-bit encryption (e.g., Internet Explorer version 6.0 and above, Firefox version 2.0 and above, Chrome version 3.0 and above, or Safari 3.0 and above) with cookies enabled; iii) a valid email address (i.e., your primary email address on file withThe Torch); and iv) sufficient storage space to save past Communications or an installed printer to print them.If you have opened an account with us and you wish to withdraw your consent to have Communications provided electronically, you must close your account as described in the Term and Termination section of these Terms of Service and stop using the Sites and Services. There are no fees to close your account with us.
19. JURISDICTION; GOVERNING LAW
These Terms of Service shall be deemed and treated as though they were entered into, executed, and performed solely in North Carolina, and the laws of the State of North Carolina, without regard for conflict of law rules thereof that would result in the application of the laws of another jurisdiction, apply to all matters relating to use of the Sites and Services and shall without limitation govern these Terms of Service. By use of the Sites or Services, you agree that any lawsuit or other action brought or filed with respect to use of the Sites or Services or concerning these Terms of Service shall be brought in a court of competent jurisdiction in Mecklenburg County, North Carolina and you hereby submit to jurisdiction of such court, and any judgment by such courts shall be enforceable by any court worldwide. In any lawsuit or other action relating to enforcement or breach of these Terms of Service, the prevailing party shall be entitled to recovery of costs, fees, and expenses of any action, including attorneys’ fees and accounting fees.
TO THE EXTENT PERMITTED BY LAW, THE PARTIES AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR IN COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH YOU AND THE TORCH SPECIFICALLY AGREE TO DO SO IN WRITING.
If you do not wish to be bound by the class-action waiver in this Section 19, you must notify The Torch in writing within 30 days of the date that you accept these Terms of Service. Your written notification must be mailed to: The Torch, Inc., Attn: CEO, 222 South Church Street, Suite 100, Charlotte, North Carolina 28202.
20. COPYRIGHT POLICY
We respect the intellectual property rights of others and we ask that users of the Site do the same. If you believe that your intellectual property is being used on the Site in a way that constitutes copyright infringement, please provide our Designated Agent (set forth below) the following information (as required by Section 512(c)(3) of the Digital Millennium Copyright Act): i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; vii) The information specified above must be sent to our Designated Agent, whose contact information is as follows: The Torch, Inc., Attention: CEO, 222 South Church Street, Suite 100, Charlotte, North Carolina, 28202. Email: [email protected]
Please note that Section 512(f) of the Digital Millennium Copyright Act may impose liability for damages on any person who knowingly sends meritless notices of infringement. Please do not make false claims. Any information or correspondence that you provide to us may be shared with third parties, including the person who provided us with the allegedly infringing material. Upon receipt of a bona fide infringement notification by the Designated Agent, it is our policy to remove or disable access to the infringing material, notify the user that it has removed or disabled access to the material, and, for repeat offenders, to terminate such user’s access to the service. If you believe that your content should not have been removed for alleged copyright infringement, you may send our Designated Agent a written counter-notice with the following information: i) Identification of the copyrighted work that was removed, and the location on the Site where it would have been found prior to its removal; ii) A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or mis-identification; and iii) Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address). If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
B. ADDITIONAL TERMS
To the extent that use of a Service requires an interface with proprietary software owned, developed or licensed by The Torch, subject to the terms of this Agreement, The Torch grants you a limited, personal, non-exclusive, revocable license to view, download and print any Content on The Torch solely for your non-commercial purposes.
These Terms of Service constitute the entire agreement with respect to the subject matter hereof and supersede all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between The Torch and you.
If any portion of these Terms of Service is deemed unlawful, void, or unenforceable by any arbitrator or court of competent jurisdiction, these Terms of Service as a whole shall not be deemed unlawful, void, or unenforceable, but only that portion of these Terms of Service that is unlawful, void, or unenforceable shall be stricken from these Terms of Service. Headings used herein are for convenience only and shall not limit, control, or add to the meaning of any term, provision, or condition.