TERMS AND CONDITIONS Online Touch
Effective Date: 1 January 2015
1. ACCEPTANCE OF TERMS
1.1. Online Touch B.V. (“Online Touch”) is providing a user-generated online publication service that is accessible and operated through its website that is located at http://www.onlinetouch.be and on such other websites (collectively, “Websites”), whether through its subsidiaries or affiliates, including but not limited to its distributors, as may have been decided by Online Touch. The service enables you, the user, to use, create, upload, access, download, sell or purchase online publications or any other such content, submissions, products or information accessible through the Websites at fee plans determined by Online Touch (“the Service”).
1.2. In order to access and use the Service, you are required to create and register a password-protected account with one of the Websites (“User Account”). Where you have opened a User Account on behalf of a company or other entity or organisation, you shall be deemed to be an authorised representative of that company or other entity or organisation.
1.3. By clicking “I Agree” at the time of creating and registering your User Account, you represent that you are at least 18 years of age and that you signify that you have read and understood, and agree to be bound by the terms and conditions contained herein (“Terms”). Where you are, or are acting on behalf of, a company or other entity or organisation, the company or other entity or organisation shall in addition to the user be bound by these Terms.
1.4. Online Touch reserves the right to change, modify or otherwise vary these Terms, including the Service, at its sole discretion and at any time. Where Online Touch changes, modifies or otherwise varies what Online Touch considers in its sole discretion to be material terms (“New Terms”), you shall be so notified by automated email (“Notification Email”) sent to the main email address submitted by you at the time of creating and registering your User Account. Should you not agree with the New Terms, you should cancel your User Account within 2 (two) weeks of receipt of the Notification Email, failing which you shall be deemed to have acknowledged and agreed to be bound by the New Terms. Should you access and use the Service within 2 (two) weeks of the Notification Email, you shall be deemed to have acknowledged and agreed to be bound by the New Terms. Where these Terms, whether in whole or in part, are changed, modified or otherwise varied, the new version of these Terms shall take effect on the date that it is posted, which will be listed at the top of the page as the new Effective Date.
1.5. You acknowledge and agree that access and use of the Service is subject to any and all additional terms, policies, rules or guidelines, including, but not limited to end-user licence agreements for any downloadable applications, rules applicable to features or content of the Service or such terms, policies, rules or guidelines that Online Touch may issue from time to time at its sole discretion. Any additional terms, policies, rules or guidelines are hereby deemed to be incorporated by reference, and made part of these Terms.
2. USER ACCOUNT
2.1. You do hereby represent and warrant that all the information that you have provided in creating and registering your User Account and at all other times, whether requested to do so or not, have been provided wilfully and is true, accurate, up-to-date and complete. You further represent and warrant that you will update any such information promptly after it changes. You acknowledge and agree that Online Touch may use, store and maintain any such information that you have provided for the purposes of your User Account for backup purposes and for the provision of the Service.
2.2. When creating and registering the User Account, you may be required to select and/or input a URL, username, password or other information (“Login Information”). You are responsible for maintaining the confidentiality of the User Account and the Login Information and you agree not to share your User Account or your Login Information with anyone other than as expressly set forth herein.
2.3. In the event that you become aware, or reasonably suspect, that your account is no longer secure, including but without limitation in the case of loss, theft, or unauthorized disclosure of your Login Information, you must immediately notify Online Touch by emailing email@example.com. You acknowledge and agree that you will be responsible for all uses of your User Account or Login Information, including purchases, whether or not authorized by you. You are solely liable for any losses incurred by Online Touch or others due to any unauthorised use of your User Account or Login Information.
3. ACCESS TO THE WORLD-WIDE WEB
In order to access and use the Service on the Websites, you are required to access to the world-wide web. You are responsible to secure all hardware, software and any internet services needed to connect to the world-wide web, including but not limited to a computer, modem or other access device, and you shall be solely responsible for any cost, fees or any other charges associated to your access to the world-wide web.
4. ACCESS TO THE WEBSITES
4.1. Essential cookies are used by the Websites to provide the Service. By using the Websites you agree to these cookies being placed on the computer or other device that you intend to use to access and use the Service. Online Touch does not represent or warrant that you will be able to access and use the Service where you opt not to accept these cookies. The essential cookies that are used by the Websites collect certain information from all users, including internet users browsing the Websites. Cookies provide statistical information and usage data, such as the frequency of visits to the Websites and specific activities thereon. All information collected by these cookies is anonymous and does not in any way impact upon your privacy. Please read the hereunder provisions on ‘Privacy’.
4.2. Where third party software, tools or other service, such as social media platforms, are used to access and use the Service whether in whole or in part, you do so solely at your own risk and you will be solely responsible for obtaining access and the licences to such third party software, tools or other service. You acknowledge and agree that where the Service, whether in whole or in part, is accessed or used through third party software, tools or other service, Online Touch may transfer or otherwise export such information as is necessary to such third party software, tools or other service.
5. USER SUBMISSIONS
5.1. You are solely responsible for any information, data, text, music, software, sound, photographs, graphics, video, messages, submissions or other content (“Content“) which you post or upload or otherwise display onto the Websites. Online Touch may, but is not obliged to, and without notice, delete, edit, lock, move or remove any Content and/or to record the IP address from which any Content is posted, uploaded or otherwise displayed, for any reason and at any time, including but not limited to, Content which, in Online Touch’s sole discretion, violates these Terms or is inappropriate or objectionable in any way whatsoever, or in respect of which the Websites have received a complaint, whatever be the merit thereof.
5.2. By posting, uploading or otherwise displaying any Content on the Websites you do hereby represent and warrant that: (a) you own all intellectual property and proprietary rights in such Content or that you have a licence from the owner of such rights to post, upload or otherwise display such Content on the Websites; and (b) the posting, uploading or otherwise display of such Content on the Websites and the grant of the licence to Online Touch, its subsidiaries or affiliates, including but not limited to its distributors (on the terms set out below) will not infringe the intellectual property or proprietary rights of any third party, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (c) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; and (d) your Content does not contain any viruses, adware, spyware, worms, or other malicious code or any file that provides a method to access potentially infringing material outside of the Service.
5.3. Where you upload, post or otherwise display any Content to the Websites, you automatically grant the Online Touch a non-exclusive, royalty free, sub-licensable, perpetual, world-wide licence to host, transfer, display in whatever form, publish, perform, reproduce (including in the form of excerpts and summaries), distribute, modify (including by adding its own promotional material in whatever form) and otherwise use such Content, whether in whole or in part, as Online Touch deems fit: (a) on the Websites and all promotional materials relating thereto; and (b) in any other form or medium (including but not limited to other publications of Online Touch now known or hereafter devised, including without limitation, RSS feeds, embeddable functionality, and syndication arrangements. You continue to own the Content after it is posted, uploaded or otherwise displayed onto the Websites and may at any time delete or otherwise remove such Content, at which point, the license granted by you to Online Touch in this paragraph shall terminate as to that specific Content.
5.4. You acknowledge and agree that Online Touch may make such copies as Online Touch in its sole discretion may deem necessary for the purposes of providing the Service, including in making back-up copies of such Content. Where Content has been deleted or otherwise removed, you acknowledge and agree that Online Touch may continue to keep archived copies of such Content for backup purposes.
5.5. Online Touch respects the intellectual property rights of others and you do hereby agree to do the same. Online Touch will respond expeditiously to claims of copyright infringement committed using the Websites and/or the Service and reserves its right to promptly take any action that it deems necessary, including but not limited to terminate without notice the User Account of the user who it has been determined by Online Touch to have infringed the copyright of any third party.
6. FEES AND SUBSCRIPTION
6.1. You are solely responsible for paying all fees and other charges, including applicable taxes, incurred by you or anyone using a User Account registered to you, including but not limited to Online Touch fee plans for access to the Service, one-off purchases and monthly or annual subscriptions.
6.2. If you choose to purchase a monthly or annual subscription, you acknowledge and agree that payments will be processed automatically (e.g., charged to your bank account) on a monthly respectively annual billing date for the subscription, until you cancel the subscription or the User Account or Online Touch terminates it. The monthly or annual billing date shall be the date on which you purchased the first subscription and the same date every month respectively year thereafter. Where you cancel your subscription, you shall remain liable to pay the monthly or annual subscription for the billing month respectively year in which the cancellation of the subscription was effected whatever be the date. The billing month or year is the period between two consecutive monthly respectively annual billing dates.
6.3. You hereby do authorise Online Touch or its third parties to process payment or charge the credit card or other payment method identified by you ("Payment Method"), which you represent and warrant that you are authorized to use. For one-off purchases, (i.e., not subscriptions), your billing date shall be the date that you make the purchase. The terms of your Payment Method shall be between you and the financial institution providing such Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or related charge. You are solely responsible to your financial institution for any such transaction fee or related charge.
6.4. You acknowledge and agree that any credit card and related billing and payment information that you provide to Online Touch may be shared by Online Touch with third parties who work on Online Touch’s behalf, such as payment processors or credit agencies, solely for the purpose of checking credit, effecting payment to Online Touch and servicing your account.
6.5. If your Payment Method for the Service fails or your account is past due: (a) you agree to pay all amounts due on your User Account upon demand; (b) Online Touch may collect fees owed using other collection mechanisms, including but not limited to charging other payment methods on file with Online Touch; and (c) Online Touch reserves the right to either suspend or terminate your access to part or whole of its Services or your User Account. Upon any such suspension or termination, you will remain obligated to pay all outstanding fees and charges relating to your User Account and your use of the Service before termination.
6.6. You acknowledge and agree that Online Touch is not required to provide a refund for any reason and that you will not receive money back when the account is closed, whether such closure was voluntary or involuntary, unless otherwise required by law.
6.7. For the avoidance of doubt, Online Touch may at any time and for whatever reason revise generally or for specific users any of its existing fee plans, including but not limited to monthly and annual subscriptions, or imposing any other additional fees to its Service. Where such a revision of fees or imposition of additional fees arise, as a holder of a User Account, you shall be notified of such change by way of a Notification Email and given the option to cancel your User Account or vary or otherwise cancel your monthly or annual subscription within 2 weeks of the Notification Email, failing which you acknowledge and agree to be bound by the new fee plan.
7. FAIR USAGE
7.1. You acknowledge and agree that the Websites and the Service may be accessed by multiple users and network resources will be shared by the number of users active on the Websites and using the Service at any one time. As such Online Touch reserves the right, in its sole discretion and without any liability whatsoever, to limit the data traffic of any user, to charge an additional fee or to suspend access to the Websites and Service to any user for consistently high or extreme use thereof.
7.2. Online Touch may notify you if it considers, in its sole discretion that your usage of the Websites and Service is excessive and shall provide you with the options, including but not limited to a revised fee plan in accordance with clause 6.7 above, that Online Touch considers most appropriate for your type of usage.
7.3. You agree not to use or launch any automated system, including without limitations, robots, spiders or offline readers – that access the Websites in a manner that sends more request and messages to the Websites in a given period of time than a human can reasonably produce in the same period by using conventional web browser or otherwise use the Service to collect or harvest any personally identifiable information or any data regarding activities on or usage of the Websites.
8. ACCEPTABLE USE
8.1. You acknowledge and agree that in your use of the Websites or the Service, you will treat others with respect, including but not limited to by following rules hereunder:
8.1.1. Content: Do not interfere with Content, including but not limited to modifying, adapting, translating or creating derivative works based upon the Content or any part thereof, except and only to the extent that such activity is expressly permitted by these Terms or applicable law notwithstanding this limitation;
8.1.2. Service: Do not interfere with the Service and Websites in a manner that is inconsistent with these Terms, including but not limited to by removing, obscuring, blocking, hiding or otherwise altering the display of Content or any advertising, Online Touch brand elements, including logos, trademarks, service marks or other Materials displayed on the Websites in connection with the Service in any manner whatsoever, regardless of your use of the embedding functionality of the Service to display authorized material on your or other third party sites;
8.1.3. Abusive Behaviour: Do not harass, threaten, or defame any person or entity. Do not contact any person who has requested no further contact. Do not use ethnic or religious slurs against any person or group;
8.1.4. Privacy: Do not violate the privacy rights of any person. Do not collect or disclose any personal address, social security number, or other personally identifiable information without each holder’s written permission. Do not cooperate in or facilitate identity theft;
8.1.5. Intellectual Property: Do not infringe upon the copyrights, trademark rights, trade secret rights, or other intellectual property rights of any person or entity. Do not reproduce, publish, or disseminate software, audio recordings, video recordings, photographs, articles, or other works of authorship without the written permission of the copyright holder;
8.1.6. Hacking, Viruses, & Network Attacks: Do not access any computer or communications system without authorization, including the computers used to provide the Service. Do not attempt to penetrate or disable any security system. Do not intentionally distribute a computer virus, launch a denial of service attack, or in any other way attempt to interfere with the functioning of any computer, communications system, or website. Do not attempt to access or otherwise interfere with the accounts of other Users of the Service.
8.1.7. Spam: Do not send bulk unsolicited e-mails (“Spam”) or sell or market any product or service advertised by or connected with Spam. Do not facilitate or cooperate in the dissemination of Spam in any way;
8.1.8. Fraud: Do not issue fraudulent offers to sell or buy products, services, or investments. Do not mislead anyone about the details or nature of a commercial transaction. Do not commit fraud in any other way; and
8.1.9. Violations of Law: Do not violate any law, whether local or international.
8.2. Violation of these foregoing ‘Acceptable Use’ provisions by you may lead to suspension or termination of your User Accounts or legal action. In addition, you may be required to pay for the costs of investigation and remedial action related to these violations. Online Touch reserves the right to take any other remedial action that it considers appropriate in its sole discretion, including but not limited to using technological barriers, IP mapping, or directly contacting your Internet Service Provider regarding such unacceptable use.
8.3. Online Touch requests that anyone with information about a violation of the Acceptable Use provision to report such violation via an e-mail to the following address: firstname.lastname@example.org, with the date and time (with time zone) of the violation and any identifying information regarding the violator, including e-mail or IP (internet protocol) address if available, as well as details of the violation.
9. TERMINATION AND SUSPENSION
You Acknowledge and agree that Online Touch, in its sole discretion, at any time and without penalty, may terminate or suspend your User Account or your use of the Service and remove and discard all or any part of your User Account and any Content uploaded by you, for any whatever reason. Online Touch may also, in its sole discretion and at any time, discontinue providing access to the Service, or any part thereof, with or without notice. You acknowledge and agree that Online Touch will not be liable to you or any third party for any such termination, including any loss of Content posted, uploaded or otherwise displayed by you. If Online Touch terminates your User Account for your breach of these Terms, Online Touch reserves the right to charge you fees through the end of your subscription term for any part of the Service that you may have purchased prior to termination. If Online Touch terminates your use of any part or all of the Service prior to the completion of your subscription period (except if such termination is a result of your breach of these Terms, in which case Online Touch may terminate without liability as described in the paragraph above), your sole remedy is a pro-rata refund of the purchase price paid by you for any part of the Service that has been terminated.
10.1. These provisions on ‘Privacy’ should be read carefully as it lays out Online Touch’s policy procedure surrounding the collection and handling of any such information that may identify you or that could be used to contact or locate you, including your name, e-mail address, telephone number, address, and credit card number (“Personally Identifiable Information”). These provisions on ‘Privacy’ apply only to the Websites. It does not apply to any third party site or service linked to the Websites or recommended or referred by the Websites.
10.2. You acknowledge and agree that your Personally Identifiable Information may be used by Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, to create your User Account, to communicate with you about the Service or products and services you’ve purchased, to offer you additional products and services, and for the purposes of fees and subscriptions.
10.3. You acknowledge and agree that Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, may disclose Personally Identifiable Information to attorneys, collection agencies, or law enforcement authorities to address potential violations of the provisions on ‘Acceptable Use’, other violations of these Terms, or any other illegal behaviour. You acknowledge and agree Personally Identifiable Information shall also be disclosed if demanded in a court order or otherwise required by law or to prevent imminent harm to persons or property. Website usage statistics from data collected through cookies may be published or shared with third parties, but such usage statistics do not include Personally Identifiable Information.
10.4. While Online Touch endeavours to protect your Personally Identifiable Information, Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, do not in any way guarantee the security thereof. By using the Websites, you acknowledge and agree that Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, make no such guarantee and that access to and use of the Websites by you is solely at your own risk.
10.5. You acknowledge and agree that Online Touch may change, modify or otherwise vary the provisions on ‘Privacy’ at any time at by posting the new version on this page or on a successor page. The new version will become effective on the date that it is posted, which will be listed at the top of the page as the new Effective Date.
11. EXCLUSION OF LIABILITY
11.1. These ‘Exclusion of liability’ provisions should be read carefully as they exclude or limit Online Touch’s legal liability in connection with your use of the Websites and Service. Nothing in these Terms and in particular within the ‘Exclusion of Liability’ provisions shall attempt to exclude liability that is not permissible under the applicable law, including without limitation, for death or personal injury, or for fraudulent misrepresentation. Nothing in these Terms shall exclude or limit or restrict Online Touch’s duties and liabilities to you, the User, under any conduct of business rules or applicable codes of practice which Online Touch is bound to comply with. Where Online Touch’s liability is not excluded pursuant to this provision for whatever reason, the Online Touch’s liability shall not exceed the fees that you will have paid for your access and use of the Service, whether in whole or in part, over a maximum of twelve months prior to the dispute.
11.2. You acknowledge and agree that the Service is accessible solely through the world-wide web and is thus subject to internet networks regardless of the method and/or technology used for access. Online Touch therefore: (a) provides no guarantee for continued service and accepts no liability for any interruption in service for whatever reasons; and (b) provides no guarantee that Content that are uploaded to the Websites are saved and accepts no liability for the loss of such Content. In the event of beta version of the Websites or Websites testing, you unconditionally accept that this version cannot be used in a production environment and that this version may be subject to many malfunctions, which do not entitle you to any compensation.
11.3. While Online Touch has taken all reasonable steps to ensure the accuracy and completeness of the Content on its Websites: (a) Online Touch excludes any warranties, undertakings or representations (either express or implied) to the full extent permitted under applicable law that the Websites, the Service, whether in whole or in Part, or the Content are appropriate or available for use in the United States of America, the European Union or in other jurisdictions. If you use the Websites and Service, you shall be responsible for compliance with applicable local laws; (b) Online Touch accepts no liability (including without limitation) in either contract, tort, negligence, statutory duty or otherwise (to the maximum extent permitted by applicable law) arising out of the use of or access to the Service and Websites (which includes without limitation) any errors or omissions contained in the Websites or if the Websites are unavailable and Online Touch shall not be liable for any direct or indirect: (i) Economic losses (including without limitation loss of revenues, data, profits, contracts, use, opportunity, business or anticipated savings); (ii) loss of goodwill or reputation; and (iii) special, incidental, consequential loss or damage, suffered or incurred arising out of or in connection with your use of the Websites, Service, Content and these Terms.
11.4. Online Touch may provide links to other websites or resources that may not be part of the Service. You acknowledge and agree that, as you have chosen to enter the linked website, Online Touch is not responsible for the availability of such external sites or resources, and do not review or endorse and shall not be responsible or liable, directly or indirectly, for: (a) the privacy practices of such websites; (b) the content of such websites, including (without limitation) any advertising, products, goods or other materials or services on or available from such websites or resources; or (c) the use that others make of these websites or resources, nor for any damage, loss or offence caused or alleged to be caused by, or in connection with, the use of or reliance on any such advertising, products, goods or other materials or services available on such external websites or resources.
You do hereby acknowledge and agree to indemnify Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, and the contractors, employees, agents and their third-party suppliers, licensors, and partners thereof from any claims, losses, damages, liabilities, including legal fees and expenses, arising out of your use or misuse of the Service, any violation by you of these Terms, or any breach of the representations, warranties, and covenants made by you in these Terms.
13. INTELLECTUAL PROPERTY
13.1. Copyright in the Content, exclusive look and feel of the Websites and in any other materials on the Websites vest exclusively and solely in Online Touch, or where otherwise determined by Online Touch, its subsidiaries or affiliates, and reproduction in any form of any part thereof without prior written consent of Online Touch or its subsidiaries or affiliates, as the case may be, is prohibited. All rights, save as expressly granted, are reserved.
13.2. The Websites contain trademarks belonging to Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, including graphics, logos, words, phrases and icons. No rights are granted in respect of any of the above trademarks. If you are in doubt as to whether an item is a trade mark of the Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, please contact Online Touch for clarification.
14. GOVERNING LAW
These Terms are governed by the laws of The Netherlands and, subject to the provisions on ‘Dispute Resolution’, any dispute or claim arising out of these Terms shall be subject to the exclusive jurisdiction of the courts of The Netherlands.
15. DISPUTE RESOLUTION
15.1. Where any dispute or claim arises out of these Terms, and without prejudice to the provisions on ‘Termination and Suspension’, the parties to such dispute or claim shall first attempt to conciliate in good faith with a view to finding an appropriate settlement over a period of 45 days from the date both parties become aware of the dispute or claim. Where conciliation has failed, and provided the parties agree, the dispute or claim shall be referred to and resolved by binding arbitration by an Arbitrator appointed in accordance with the said rules, which are deemed to be incorporated by reference within this provision, except that notwithstanding the said rules, any dispute or claim shall be heard and determined within 30 days of the commencement of the arbitral proceedings, except as may be agreed between the parties. The parties refer to, on the one hand, Online Touch, its subsidiaries or affiliates, including but not limited to its distributors, and on the other hand, any user, company or other entity or organisation that are bound by these Terms. For the avoidance of doubt, where the parties do not agree to binding Arbitration in accordance with this provision, the provision on ‘Governing Law’ shall be applicable.
15.2. A dispute shall only be properly entertained according to the provisions on ‘Dispute Resolution’ or ‘Governing Law’ provided that the dispute be first submitted to Online Touch in writing within 30 days of the dispute arising.
16.1. Online Touch reserves all rights not expressly granted in these Terms.
16.2. Online Touch reserves the right to automatically issue upgraded versions of the software and systems comprising the Websites and Service.
The Content and any other material on the pages of the Websites do not purport and shall not be deemed to provide any financial, investment or professional advice in any way whatsoever.