Terms of Service
Who Can Use Torch Services
Only dentists with an active license in the United States, or explicitly authorized representatives of such dentists, including, without limitation, office managers dental assistants or dental hygienists, may access the Services. You must register for an account to use the Services. You agree that all information you provide will be true and complete, and you will keep your information current and up-to-date. You agree to keep your Torch username and password confidential, and to access the Site from devices that have up-to-date operating systems and security software. You agree not to allow anybody else to use your account, including in any way that is meant to circumvent these Terms. You will be responsible for all purchases made, and anything else that occurs, through your account. We cannot and will not be liable for any loss or damage arising from your failure to comply with this, and all other provisions, of the Terms.
- Torch features many different Vendor products (“Products”) on the Site to make it efficient and convenient for its Users. However, Torch has no control over the Products and does not guarantee: the existence, quality, safety or legality of Products advertised; the ability of Vendors to fulfill the orders, or that you will receive the orders in the time you need them.
- While Torch provides customer support regarding the Services, Torch cannot guarantee that its representatives will know each Product and will not be held liable for any incorrect information given. For further information or questions regarding any of the Products, please contact the Vendor directly.
- While the Site displays content, including pricing, Product availability and description of Products, made available by or obtained from Vendors, Torch is in no way responsible for the accuracy, timeliness or completeness of such content. Torch may attempt to curate such information, to the best of our ability, in an attempt to be as accurate as possible. Since Torch has no control over the Products and does not verify the content uploaded by the Vendors, it is not possible for us to guarantee the prices and/or information displayed on the Site. Torch makes no warranties to the accuracy of pricing or availability information of the Products. Despite our best efforts, a small number of the Products on our Services may be mispriced, or stock may be mislabeled. If the error resides with the Vendor, please contact the Vendor and/or refer to the Vendor’s policies for remedies. If you are unsure about the accuracy of a Product’s information, we suggest cross-referencing the Product information with authorized Vendors of the Product, to ensure accuracy.
- Some Products on the Site may be hazardous or controlled substances under DEA schedules, and attempting to view these Products or illicitly obtain them is a serious offense. Any accounts whose information cannot be verified or are found to be unauthorized to access the Services will be terminated immediately.
- If you are participating in a promotional discount program (e.g. points, discount redemptions or other special awards), with your purchases you may earn points/credits redeemable for certain goods or services, in accordance with discount program rules. Upon discount receipt by redemption of your earned points/credits, you are receiving or will receive notice of the discount value. Accordingly, you should retain these records.
- You must review your entire final order, including your total purchase price, and each individual Product price, before submitting your final purchase request at checkout.
- Pricing errors, out-of-stock and other errors occasionally occur on the Site. We reserve the right to cancel any orders containing pricing errors, out of stock errors or other errors at any time without further obligation to you, including after you have received a confirmation of your order.
- Any non-delivery or misdelivery of Products should be addressed to the Vendor. Torch is not liable for any delivery and/or fulfillment errors.
- When accessing and using the Services, you agree not to do the following:
- Violate any law, rule, regulation, or these Terms;
- Engage in conduct that is fraudulent or otherwise harmful to Torch, our partners, or any other user;
- Display to others, mirror, or frame the Site, or any component of the Site;
- Access the Site if we have prohibited you from such access;
- Access, tamper with, or use non-public areas of the Site, Torch’s computer systems, or the technical delivery systems of Torch;
- Probe, scan, or test the vulnerability of any the Site or breach any security or authentication measures;
- Interfere with the access of any user, host or network, including, without limitation, by sending a virus, overloading, flooding, spamming, or mail-bombing the Site;
- Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure intended to protect, limit access to, or control the Site;
- Decipher, decompile, disassemble, or reverse engineer any of the software used on or in connection with the Site;
- Collect or use any Personal Information from other users of the Site;
- Use a third party’s credentials, conceal your true IP address, or otherwise impersonate or misrepresent your identity or affiliation with any person, entity, or user; and
- Use the Site to determine whether a third party holds any type of account, or to learn about or verify information about the account that is not yours.
- You will not use the Site or Torch’s name, logo, brand, identity or Marks to do any of the following:
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters, or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Torch trademark, logo, URL, or Product name without Torch’s express written consent; and
- Permit, encourage, assist, or allow any third party to violate these Terms.
- You agree not to, directly or indirectly (e.g., through a third party), attempt to access, search, or otherwise use the Site (such as by attempting to retrieve information from or about the Site) through the use of any engine, software, tool, agent, device, or mechanism (including, without limitation, spiders, robots, crawlers and data mining tools) other than generally available third-party web browsers that (1) provide accurate and complete User-Agent information in the HTTP header, such as Safari, Firefox, Chrome, and Internet Explorer and (2) have not been modified with plugins or otherwise in a manner that facilitates automated or faster-than-normal access to, searching of, or other use of the Site.
- You also agree not to disregard our robots.txt files (but in the event of a conflict between these Terms and a Torch Site’s robots.txt file, the more restrictive of the two shall apply.
- If you are accessing the Site as an employee or agent, you acknowledge that you are extending the permanent consent and authorization described above on behalf of your employer or principal, and you represent that you have authority from that employer or principal to do so.
Fees, Payments, And Returns
- When the User confirms an order, the User agrees to pay a processing fee, which will be charged on each order for our Services (the “Torch Fees”).
- Title to the Products purchased by you on the Site (and the related risk of loss on these Products) passes to you upon delivery of the Products by the common carrier used by the Vendors.
- All returns will be processed by the respective Vendors in accordance with their own return policies. Please refer to the purchasing and account terms for the Vendors for complete information and policies related to your purchases.
- If a Product discovered on or ordered through the Site is not as described, your sole remedy is to return the Product to the Vendor from where it came, pursuant to the terms of that Vendor’s return policy.
- Torch assumes no responsibility for Products ordered using information obtained on the Site, and will not interact with Vendors on your behalf to initiate or negotiate a return of any Product.
Rights You Grant To Us As Your Authorized Agent
- When you sign up for a Torch account, you designate Torch as your authorized agent with permission to use your login information to third-party services, and represent that you are authorized to do so by your clinic or company. Torch’s systems utilize this login information to access these third-party services’ websites on your behalf to obtain and analyze pricing, availability, order history, cart, and other information.
- By using the Services, you expressly authorize Torch to access your Account Information (as defined herein) maintained by identified third parties, on your behalf as your agent, and you expressly authorize such third parties to disclose your information to us. When you use the Services, you will be directly connected to the website for the third party you have identified. Torch will submit information including usernames and passwords that you provide to log into the Site. You hereby authorize and permit Torch to use and store information submitted by you to accomplish the foregoing and to configure the Services so that it is compatible with the third party sites for which you submit your information.
- Actions you expressly authorize Torch to take on your behalf for all Vendors whose information you’ve submitted to Torch include, but are not limited to, the following:
- Product Retrieval - Torch will locate a given Product on a Vendor’s website and view that Product’s page or listing in order to serve you appropriate content.
- Availability Retrieval - Torch will obtain availability information, including stock or backorder status, quantities in stock, warehouse information, drop-ship information, and other availability information when available.
- Pricing Retrieval - Torch will obtain your pricing information for a Product, including quantity discounts, promotions, and special instructions related to that Product’s purchasing or shipment.
- Cart Modification - Torch will manage your cart on the Vendor’s website by adding or removing Products to/from your cart, or changing quantities in your cart.
- Order History Retrieval - Torch will retrieve and store information on past orders from your Vendors to provide our order history and analytics features.
- Order Placement - Torch will place orders on your behalf with select third-party Vendor websites
- Torch takes the above actions only after you have signed up for a Torch account as a User. Torch will not, except for purposes of providing the Services to you, take actions on your Vendors’ websites without explicit permission.
- For purposes of this Agreement and solely to provide the Account Information to you as part of the Services, you grant Torch a limited power of attorney, and appoint Torch as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities, as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN TORCH IS ACCESSING AND RETRIEVING ACCOUNT INFORMATION FROM THIRD PARTY SITES, TORCH IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY THAT OPERATES THE THIRD PARTY SITE. You understand and agree that the Services are not sponsored or endorsed by any third parties accessible through the Services. Torch is not responsible for any payment processing errors or fees or other Services-related issues, including those issues that may arise from inaccurate account information.
Links To Third Party Sites And Services
- This Site may contain links to other websites and services not owned or managed by Torch, which are the sole responsibility of such independent third parties (“Third Party Services”), and use thereof is solely at your own risk. Those Users who choose to access such Third Party Services from this Site (including any information obtained through any hyperlink) are solely responsible for the compliance of such websites with any applicable law. Torch provides such links solely for the convenience of our Users. Torch is not responsible for the accuracy, legal or regulatory compliance, decency, or any other aspect of the content of such Third Party Services, and such Third Party Services are not investigated, monitored, or checked for accuracy or completeness by Torch. The inclusion of links to such Third Party Services does not imply approval or endorsement of such sites by Torch or any association with its operators and Torch shall not be liable whatsoever for your use of such Third Party Services.
- When you use the Services, you may direct Torch to retrieve your own information maintained online by third-parties with which you have customer relationships, maintain accounts, or engage in purchase transactions to supply your dental practice (“Account Information”). Torch does not review the Account Information for accuracy, legality or non-infringement. Torch is not responsible for the Account Information or products and services offered by or on third-party sites.
- If you wish to link to this Site please email@example.com before creating that link so the Site may be previewed. Torch does not allow the unauthorized use of its logos, trademarks, or other graphics to create links. Text links are permitted upon approval and must be made to the home page at www.torchdental.com rather than to any other specific pages within the Site.
- Torch is always happy to hear from its Users. However, any reviews, questions, answers, comments, suggestions, ideas, or other information from you that you post on, or send to, the Sites (“Content”) is provided on a non-confidential basis with no obligation on our part to keep such Content secret. For the Content you submit to the Services, you grant Torch and our affiliates and third parties a worldwide, royalty-free, sublicensable, perpetual and transferable license to host, store, use, display, reproduce, modify, adapt, edit, publish, create derivative works from your Content, and distribute your Content. You agree that this license includes the right for Torch to provide, promote, and improve the Services and to make your Content available to be submitted to or through the Services available to other companies, organizations or individuals for the distribution, promotion or publication of such Content on other media and services, subject to our Terms. Such additional uses by Torch, or other companies, organizations or individuals, may be made with no compensation paid to you with respect to your Content that you submit, post, transmit or otherwise make available through the Services.
- You hereby release Torch from any liability under any legal theory in connection with the use, modification, sale, or disclosure of any of your Content.
- You shall be solely responsible for your Content and the consequences of posting or publishing them. In connection with your Content, you affirm, represent, and/or warrant that:
- You own or have the necessary licenses, rights, consents, releases and permissions to use and authorize Torch to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all your Content to enable inclusion and use of your Content in the manner contemplated by the Terms;
- Your Content does not contain material that is copyrighted, protected by trademark, patent and/or trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights in, or have permission from their rightful owner to post such material in your Content, and you can grant Torch all of the license rights in such material in your Content;
- You will not publish falsehoods or misrepresentations that could damage Torch or any third party;
- Your Content is not unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate.
Copyright Infringement And The Digital Millennium Copyright Act Of 1998 (DMCA)
- Torch shall, in its sole discretion, terminate the access of Users of the Site who infringe upon the copyrights of Torch or others. Torch has designated an agent to receive notices of claimed copyright infringement relating to the Site under the Digital Millennium Copyright Act, 17 U.S.C. § 512(c). If you believe that your copyright, or the copyright of a person on whose behalf you are authorized to act, has been infringed, you must send a written notice to Torch containing the following information:
- A physical or electronic signature of the owner of, or a person authorized to act on behalf of the owner of, an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.
- 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 us to locate the material.
- Contact information for the notifying party, including name, address, telephone number, and email address.
- A statement that you have 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.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are the owner of, or authorized to act on behalf of the owner of, an exclusive right that is allegedly infringed.
- You must submit your written notice containing the above information by fax, email, or postal to the following Designated Agent:
Torch Technology, Inc.
33 W 17th St, Floor 10
New York, NY 10011
Torch Proprietary Rights
- Torch is the owner or licensee of all copyrights, patents, trademarks, and all other intellectual property rights in the Site, including without limitation, (i) all materials, documentation, text, data, graphics, graphs, charts, buttons, photographs, videos, typefaces, music, sounds, code, interfaces, and Marks contained on this Site; and (ii) the design, selection and arrangement of this Site.
- Unless otherwise specified, you are granted a personal, non-exclusive, non-transferable, limited right to access, use, and display this Site and the materials provided hereon for the purpose of obtaining and reviewing your account information. You may view or download a single copy of the material on the Site solely to access our Services, place orders, and review your account information. When content is downloaded to your computer, you do not obtain any ownership interest in such content, any modifications of the content, or any use of the content for any other purpose than that expressly permitted herein. Ownership of all such content shall at all times remain with Torch or its licensors. Torch and its licensors reserve all rights not expressly granted to you. Use of the copyrightable material on this Site for any purpose not expressly authorized herein without the prior written permission of Torch or its licensors is forbidden.
- All trademarks, service marks, trade names, logos, graphics, page headers, button icons, scripts, and other designations (collectively the “Marks”) are the sole property of Torch, or other third parties that have granted Torch the right and license to use such Marks. Nothing contained on this Site should be construed as granting any license or right to use any such Marks without the written permission of Torch or such third party that may own the Marks displayed.
- We reserve the right, and you authorize us, to use and freely assign all information regarding the use of this Site by you and all information provided by you, including your Content, in any manner consistent with our Privacy Statement, which is incorporated into these Terms by reference.
- All other trademarks not owned by Torch that appear in connection with our Service are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Torch.
Return Policies, Refunds, And Transaction Risks
- Torch is not a seller or shipper of any Products. Thus, all Products viewed or purchased through the Site are sold under the shipment terms of the Vendor from whom you are purchasing. Pursuant to most Vendor terms, the risk of loss and title for such Products may pass to you upon its delivery to the carrier, and conversely, title is not taken for such Products until they reach the Vendor’s fulfillment center. Please refer to the purchasing and account terms for the Vendor for complete information and policies related to your purchases. Torch does not control and is not liable to or responsible for the quality, safety, lawfulness or availability of the Products offered for sale on the Site or the ability of the sellers to complete a sale or fulfill orders or the ability of buyers to complete a purchase.
- Each User acknowledges that it is fully assuming the Transaction Risks (defined herein) of conducting any purchase and sale transactions in connection with using the Site or Services, and that it is fully assuming the risks of liability or harm of any kind in connection with subsequent activity of any kind relating to Products using the Site. Such risks shall include, but are not limited to, misrepresentation of Products, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective or dangerous Products, unlawful Products, delay or default in delivery or payment, cost miscalculations, breach of warranty, breach of contract and transportation accidents. Such risks also include the risks that the manufacture, importation, export, distribution, offer, display, purchase, sale and/or use of products offered or displayed on the Site may violate or may be asserted to violate third party rights, and the risk that User may incur costs of defense or other costs in connection with third parties’ assertion of third party rights, or in connection with any claims by any party that they are entitled to defense or indemnification in relation to assertions of rights, demands or claims by third party rights claimants. Such risks also include the risks that consumers, other purchasers, end-users of Products or others claiming to have suffered injuries or harms relating to Products originally obtained by Users of the Site as a result of purchase and sale transactions in connection with using the Site may suffer harms and/or assert claims arising from their use of such Products. All of the foregoing risks are hereafter referred to as “Transaction Risks.” Each User agrees that Torch shall not be liable or responsible for any damages, claims, liabilities, costs, harms, inconveniences, business disruptions or expenditures of any kind that may arise a result of or in connection with any Transaction Risks.
- Users are solely responsible for all of the terms and conditions of the transactions conducted on, through or as a result of use of the Sites or Services, including, without limitation, terms regarding payment, returns, warranties, shipping, insurance, fees, taxes, title, licenses, fines, permits, handling, transportation and storage.
- User agrees to provide all information and materials as may be reasonably required by Torch in connection with your transactions conducted on, through or as a result of use of the Sites or Services. Torch has the right to suspend or terminate any User’s account if the User fails to provide the required information and materials.
- In the event that any User has a dispute with any party to a transaction, such User agrees to release and indemnify Torch (and our agents, affiliates, directors, officers and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.
Disclaimer Of Warranties; Limitation Of Liability
User shall, at the time of sale, obtain any transferable Product warranties, indemnities and remedies solely provided by the applicable Vendor. The customer agrees to look solely to the Vendor of the Product for any claim arising due to loss, injury, damage or death related to the use or sale of Products.
THE SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE TORCH SITE AND/OR SERVICES ARE PROVIDED BY TORCH ON AN “AS IS” AND “AS AVAILABLE” BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. TORCH MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK.
TO THE FULL EXTENT PERMISSIBLE BY LAW, TORCH DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. TORCH DOES NOT WARRANT THAT THE SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICES, TORCH’S SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM TORCH ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. TO THE FULL EXTENT PERMISSIBLE BY LAW, TORCH WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF ANY TORCH SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY TORCH SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING.
IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES TORCH (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
OUR AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT WILL NOT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNT YOU HAVE PAID US IN THE PAST TWELVE MONTHS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TORCH’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, THE ABOVE APPLIES ONLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
You agree, to the fullest extent permitted by applicable law, to indemnify, defend, and hold harmless Torch and its subsidiaries and affiliates, and as to each, their officers, directors, employees, contractors, agents, licensors, service or third party providers, subcontractors, suppliers, and investors from and against any and all losses, liabilities, expenses, damages, and costs, including reasonable attorneys’ fees and court costs, arising out of or relating to your access to or use of the Services, any content you post or submit to the Site, your violation of law or infringement of the rights of a third party, or your other violation of these Terms. Torch reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in any case, you agree to cooperate with Torch if and as requested by Torch in the defense of such matter.
- While we hope you remain a lifelong Torch user, you can terminate these Terms with thirty (30) days notice to us (our contact information is found at the end of the Terms) and for any reason by deleting your account. Upon termination, all licenses and other rights granted to you under these Terms will immediately cease.
- While we always want to promote a great experience at Torch, if we believe you are using the Services in a manner not intended by us, or in a way that circumvents these Terms, or is contrary to the spirit of any activity on the Services, we shall have the right immediately to terminate this agreement with you and your use of the Services at any time in its sole discretion and without notice to you. In no case will Torch’s closure of your account, or reduction of your access to the Services, waive or affect any other right or relief to which Torch may be entitled.
Choice Of Law And Forum
These Terms shall be governed by and construed in accordance with the laws of the state of New York, without regard to such state’s rules regarding conflicts of laws. By accessing this Site, you agree that courts located in the Eastern and Southern Districts of New York or in the counties within those federal judicial districts shall have exclusive jurisdiction over all claims and actions arising out of or relating to these Terms and/or your use of the Services, and you further agree and submit to the exercise of personal jurisdiction of such courts and consent to extra-territorial service of process for the purpose of litigating any such claim or action.
- For purposes of this section, “Dispute” shall mean any dispute, claim, or controversy arising out of or relating to these Terms (such as with respect to their validity or enforceability), the Services, your (or anybody else’s) access to and/or use of the Services, and/or the provision of content, Products, Services, and/or technology on or through the Site.
- Disputes concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of the Site shall not be subject to arbitration, and the notice and 30-day negotiation period required by this paragraph shall not apply to these types of Disputes.
- Except as otherwise specifically set forth below, any Dispute of any kind, if unresolved through informal discussions within 30 days of the sending of the notice described above, shall be resolved by binding arbitration to be held in New York. You agree to submit to the personal jurisdiction of any state or federal court in New York, New York to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator(s).
- The arbitration shall be conducted in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and administered by the AAA. The AAA Rules and fee information are available at www.adr.org or by calling the AAA at 1 (800) 778-7879.
- Payment of all filings, administration and arbitration fees will be governed by the AAA Rules. The decision from the arbitration will be in writing and binding and conclusive on Torch and you, and judgment to enforce the decision may be entered by any court of competent jurisdiction. Torch and you agree that dispositive motions, including without limitation motions to dismiss and motions for summary judgment, will be allowed in the arbitration. The arbitrator(s) must follow these Terms and can award the same damages and relief as a court, including injunctive or other equitable relief and attorney’s fees. Torch and you understand that, absent this mandatory arbitration provision, Torch and you would have the right to sue in court and have a jury trial. Torch and you further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
You or Torch may choose to pursue a claim in small claims court where jurisdiction and venue over you and Torch otherwise qualifies for such small claims court and where the claim does not include a request for any type of equitable relief. However, if you decide to pursue a claim in small claims court, you agree to still provide Torch 30-day advance notice by email to firstname.lastname@example.org and by U.S. Mail to Torch Technology, Inc. 33 W 17th St, Floor 10 New York, NY 10003.
- You have the right to opt out and not be bound by the provisions requiring arbitration by sending written notice of your decision to opt out to Torch by email to email@example.com AND by U.S. Mail to Torch Technology, Inc. 33 W 17th St, Floor 10 New York, NY 10003. The notice must be sent within 30 days of your first use of any of the Site. If you do not opt out via this method, you will be bound to arbitrate Disputes in accordance with the terms of these paragraphs. If you opt out of the provisions requiring arbitration, Torch will not be bound by these provisions either. If any clause within this Disputes/Arbitration section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect. In any event, if for any reason a Dispute between Torch and you is before a court (e.g., if the arbitration provisions are found unenforceable or if pursuant to these Terms the matter is not subject to arbitration), Torch and you agree to waive, to the fullest extent allowed by law, any trial by jury.
- This Disputes/Arbitration section will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Torch, or any employee, officer, director, or investor of Torch, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person’s access to and/or use of the Site, and/or the provision of content, Products, Services, and/or technology on or through the Site.
Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
- Torch and you agree to resolve any Dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Torch and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any Dispute with a third party.
- If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in New York County, New York.
- If any clause within this Class Action Waiver section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
- This Class Action Waiver section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Torch, or any employee, officer, director, or investor of Torch, and to any claims asserted by any of them against you, to the extent that any such claims is a Dispute.
- A printed version of these Terms and of any notice given in electronic form will be admissible in judicial or administrative proceedings relating to these Terms to the same extent and subject to the same conditions as other business documents originally generated and maintained in printed form. For purposes of any dispute, Torch’s records shall be conclusive in all respects.
- These Terms constitute the entire agreement between you and Torch with respect to the Services and supersede all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between you and Torch with respect to the Services. If any part of these Terms is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.
- You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
Torch can be contacted as follows:
33 W 17th St, Floor 10
New York, NY 10011