This End-User License Agreement (Agreement) is between the business or individual accepting this Agreement (this business or individual being you) and TorchFi, Inc. (Developer). This Agreement is solely between you and Developer, and governs your use of Developer’s software application and the corresponding services it provides (together, along with the associated documentation, proprietary, or intellectual property: the App). Review this Agreement completely. You agree to be bound by the terms of this Agreement when you click “Accept” or otherwise download, install, copy, or use the App, and must accept this Agreement before doing so. If you do not agree to the terms of this Agreement, you must click “Decline” and must not download, install, copy or use the App.

1. The App

1.1 The App will provide you with the ability to import your inventory data into Developer’s platform and build an online ordering portal on it. Orders data from the Developer platform is then submitted to your point of sale backed through the app.

1.2 Developer grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license during the Term (defined below) of this Agreement to use the App solely for your internal business purposes. You will not otherwise distribute, lease, rent, host, sublicense, transfer, sell, export, modify, reverse engineer, decompile, copy, benchmark, create derivative works from, or attempt to derive the source code for the App. This license does not grant you any rights to Developer’s (or any other third party’s) trademarks, service marks, logos, trade dress, proprietary, or other intellectual property unless provided with the App. Developer reserves to itself (or applicable third parties) all right, title, interest, and license (express or implied) to the App that are not specifically granted to you under this Agreement. You will preserve and display any proprietary notices, markings, or branding associated with use of the App.

1.3 The App may update automatically from time-to-time, and you may be required to accept these updates to continue using the App. Developer may perform maintenance on the App, which may result in service interruptions or delays from time-to-time. Developer may not support older versions of the App. You are solely responsible for obtaining all equipment and services (e.g., Internet connectivity) necessary to access and use the App.

2. Fees

Developer is offering this application to you free of charge. You are responsible for payment of all sales, use, excise, or similar taxes (excluding taxes based on Developer’s income) imposed by federal, state, or local tax authority. You must notify Developer of any billing errors within 120 days from when an error appears on your invoice, after which time period you release Developer from all liability for Losses (defined below) resulting from these errors.

3. Term

This Agreement commences when you accept or otherwise download, install, copy, or use the App; and will continue month-to-month until terminated (this period of time is the Agreement’s Term).

4. Suspension and Termination

4.1 Developer may promptly suspend or terminate your use of the App if (1) you violate this Agreement’s terms; (2) Developer believes your use of the App may damage its reputation or intellectual property rights; (3) Developer suspends or terminates its agreement(s) with any third party involved in providing the App; (4) you exceed normal and reasonable usage for the App; (5) you experience a bankruptcy or insolvency event; or (6) you are using the App for any fraudulent, illegal, or unauthorized purpose, or engage in willful misconduct with respect to use of the App.

4.2 You may terminate this Agreement at any time and for any reason (without cause) by providing notice to Developer. Your termination will be effective at the end of the then current month or billing period in which you give notice. You will not receive a refund for the billing period in which you terminate this Agreement.

5. Confidentiality, Data, and Ideas

5.1 Neither of us will disclose non-public information about the other’s business; including, without limitation, the terms of this Agreement, technical specifications (whether related to the App or otherwise), customer lists, or information relating to a party’s operational, strategic, or financial matters (together, Confidential Information). Confidential Information does not include information that (1) is or subsequently becomes publicly available (through no fault of the recipient); (2) the recipient lawfully possesses before its disclosure; (3) is independently developed without reliance on the discloser’s Confidential Information; or (4) is received from a third party that is not obligated to keep it confidential. Each of us will implement and maintain reasonable safeguards to protect the other’s Confidential Information.

5.2 Neither of us may disclose the other’s Confidential Information except (1) to our respective directors, officers, employees, or representatives that need to know it in order to perform our obligations under this Agreement; (2) in response to a subpoena or court order; or (3) as required by applicable law, rule, or regulation.

5.3 Developer may use data or information obtained through the App to provide its services, for research and development, or in aggregated and anonymized form to provide services generally; all subject to applicable Laws (defined below). Information Developer collects about you or your consumers is subject to Developer’s privacy policy, which is accessible at here

5.4 You may provide, or Developer may invite you to provide, comments or ideas about the App (including, without limitation, improvements to it) (together, Ideas). By submitting any Ideas, you agree that (1) they are not Confidential Information; (2) they are not subject to any use or disclosure restrictions (express or implied); (3) you claim no rights in them; and (4) Developer has no obligation to notify or compensate you in connection with their disclosure or use. You release Developer from all liability or obligations that may arise from the receipt, review, disclosure, or use of any Idea that you submit.

6. Account

You will be required to register for an account with Developer to use the App. You will provide us with accurate information when setting-up your account, and will maintain your account with current information. You will be responsible for establishing safeguards designed to prevent unauthorized access to, disclosure, use, or alteration of your account (safeguards may include, without limitation, user names, passwords, security questions and answers, or other credentials). You must notify Developer if you discover a security breach involving your account or the App. You are responsible for any unauthorized access to, disclosure, use, or alteration of your account, the App, or other transaction information that arises through your systems or account. It is your responsibility to back-up and maintain the accuracy and completeness of any content created, derived from, stored, or accessed through your account or your use of the App (content may include, without limitation, transaction information, text, images, graphics, or photos).

7. Risk Allocation

7.1 The App is provided to you “as-is” and “as-available.” You are solely responsible for determining if the App meets your needs. Developer disclaims all warranties (express or implied) related to your account or the App; including, without limitation, warranties of security, merchantability, fitness for a particular purpose, non-infringement, accuracy, and uninterrupted or error-free operation. Developer is not responsible for any disclosures, modifications, deletions, or other errors that arise in connection with your use of the App due to its interaction with other applications or their content.

7.2 You will indemnify Developer, its directors, officers, employees, agents, subsidiaries, and affiliates against any third party claims for losses, damages, costs, or expenses (including reasonable attorneys’ fees) (together, Losses) that result from your use or misuse of the App, or your breach of this Agreement. Developer may assume the defense of any third party claims that you must indemnify it for (at your expense), and you will cooperate with the defense of these claims. You will not settle any third party claims involving more than the payment of money without Developer’s written consent.

7.3 To the extent permitted by applicable law, Developer will not be liable to you for any lost profits, revenues, or business opportunities, nor any exemplary, punitive, special, indirect, incidental, or consequential damages; regardless of whether these damages were foreseeable or either of us was advised they were possible.

7.4 Developer’s total, aggregate liability to you for all Losses arising from any cause (regardless of the form of action or legal theory) in connection with this Agreement will not exceed the amount of fees you’ve paid to Developer during the 3 months prior to a Loss.

8. Communications

You authorized Developer to communicate with you electronically or otherwise using the contact information you provide to it (e.g., without limitation, via your account, the Internet, email, text, or live agent or automated calls to your mobile or other phone, even if these numbers appear on a Do Not Call or other non-solicitation registry). You are responsible for any fees charged by you communications provider for phone, text, or email communications that Developer sends to you.

9. General

9.1 You represent and warrant that you have authority to enter into this Agreement, creating performance obligations that are legally enforceable against you.

9.2 Developer may modify this Agreement from time-to-time and will provide you with notice when these modifications occur (notification may be through the App, email, a website, changes to the date shown at the top of this Agreement, or other electronic means). Your continued use of the App indicates your acceptance of any modifications to this Agreement. You must stop using and uninstall the App if you do not agree to any modifications that are made to this Agreement.

9.3 Each of us will comply with the laws, rules, and regulations (together, Laws) that apply to our respective performance under this Agreement; including, without limitation, laws related to the collection and use of consumer information obtained via the App. You will follow the requirements of all user documentation provided for the App. You will not use your App to access, store, or transmit materials that are tortious, libelous, or offensive; contain malicious code, viruses, time bombs, Trojan horses, bots, scrips or other programs; or infringe third parties’ intellectual property rights.

9.4 This Agreement is governed by New York law, without regard to its conflicts or choice of law statutes. The courts in or for Suffolk County, New York are proper venue for any proceedings in connection with this Agreement. Both of us waive our rights to a trial by jury in connection with this Agreement.

9.5 This is the entire agreement between us, and supersedes any prior agreements related to its subject matter. Any sections or terms of this Agreement that are, or become, invalid or unenforceable will be severed; and the remaining terms will continue in effect. Developer is not waiving any of its rights under this Agreement if it delays their exercise or fails to exercise them. We are independent contractors. This Agreement does not create an agency, partnership, or joint venture of any kind.

9.6 You may not assign this Agreement without Developer’s written consent, which assignment is voidable by the Developer; however, Developer may assign this Agreement without notice to you or your consent.

9.7 You may contact Developer at: Phone: +1 (813) 750-7671, Email: support@torchfi.com

Your Duties.

By using our Services, you agree that you will not use our Services in any unlawful manner or in any manner that could damage, disable, overburden, or impair TorchFi. TorchFi may investigate and take any available legal action in response to illegal or unauthorized use of the Services. In addition, by using our Services, you agree NOT to:

• Impersonate any person or entity, create a false identity, or falsely state or otherwise misrepresent yourself or your affiliation with any person or entity;
• Harm any person or entity in any way through use of the Services;
• Intimidate, stalk or harass another;
• Use or attempt to use another’s account, service or system without authorization from TorchFi;
• Forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Services; or
• Attempt to circumvent or disrupt TorchFi’s provision of its Services or its operation in any way.

Use of Our Services.

You may use our Services at your sole risk. We provide our Services on an “as is,” “as available,” and “with all faults” basis. By using our Services, you acknowledge and agree that Consumers and Merchants are not employed by TorchFi, its employees, officers, directors, or affiliates. By using our Services, you agree to pay all costs associated your use.

No Warranty.

TorchFi makes no warranties or guarantees, either express or implied, regarding your ultimate experience with the Services, including any implied warranty or condition of merchantability, satisfactory quality, or fitness for a particular purpose; as to the usefulness, quality, suitability, truth, accuracy, or completeness of the information provided through the Services; that the Services will be uninterrupted, timely, secure, or error-free or that the results that may be obtained from your use of the Services will be accurate or reliable; about the quality of any Services, Content, or information obtained through TorchFi’s Services; that the Services will meet your expectations or requirements; or that any errors in TorchFi’s Services will be corrected.

Assumption of Risk.

You assume all risk for any damage to your computer system or loss of data that results from obtaining any Content from TorchFi’s Services, including any damages resulting from computer viruses.

Limitation of Liability.

To the fullest extent permitted by law, TorchFi, its affiliates, and its partners are not liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (including, without limitation, loss of business, revenue, profits, goodwill, use, data, electronically transmitted orders, or other economic advantage) arising out of or in connection with the Services, even if we have been previously advised of, or reasonably could have foreseen, the possibility of such damages, however they arise, whether in breach of contract or in tort (including negligence), including without limitation damages due to: the use of or the inability to use our Services; the cost or procurement of substitute goods and services resulting from any goods, data, information, or services purchased or obtained, or messages received or transactions entered into, through or from our Services; statements or conduct of any other party related to our Services, including, without limitation, unauthorized access to or alteration of transmission or data, malicious or criminal behavior, false or fraudulent transactions, or conduct of any other Consumer or Merchant; or Content or information you may download, use, modify, or distribute. Wherever the law prohibits TorchFi’s absolute exemption from liability, TorchFi’s total aggregate liability, under or in relation to any warranty or condition implied by law, shall be limited to the aggregate sum total of fees paid to TorchFi by you in connection with your access to the Services, less any costs directly associated with your fees (such as processing costs).

Indemnity.

You agree to indemnify and hold TorchFi and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, suppliers, other partners, employees, and representatives harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of or connection to the Services (including any use by you on behalf of another party), your violation of the Terms, or your violation of any rights of another.

Arbitration and Governing Law.

The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof) or the Services shall be BINDING ARBITRATION administered by the American Arbitration Association. You may not under any circumstances commence or maintain against TorchFi any class action, class arbitration, or other representative action or proceeding. By using the Services in any manner, you agree to arbitration, GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend any claims between you and TorchFi (except for matters that may be taken to small-claims court). YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY. Any proceeding to enforce this arbitration clause, including any proceeding to confirm, modify, or vacate an arbitration award, may be commenced in any court of competent jurisdiction. In the event that this arbitration clause is for any reason held to be unenforceable, any litigation against TorchFi may be commenced only in the federal or state courts located in Hillsborough County, Florida. User hereby irrevocably consents to the jurisdiction of those courts for such purposes. This Agreement, and any dispute between you and TorchFi, shall be governed by the laws of the state of Florida without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.

Term and Termination.

This Agreement, as modified from time to time, will remain in full force and effect as long as you access our Services or maintain an account with TorchFi. You may terminate your account at any time, and TorchFi has the right to terminate or suspend your account at any time without notice if we believe that you have breached this Agreement, or for any other reason at our sole and absolute discretion. If we are forced to terminate or suspend your account, you will not be entitled to any refunds. TorchFi may decline to disclose the reason for the termination or suspension.

Amendment.

This Agreement is subject to change by TorchFi at any time for any reason, and such modifications will be effective upon posting to any web application, website, or mobile application controlled by TorchFi and accessed by you. Your continued use of the Services after any such changes constitutes your acceptance of any modifications. If you do not agree to abide by these or any future Terms of Use, you must not use or access the Services. It is your responsibility to regularly review this Agreement.

Notice

You consent to have this Agreement and all notices provided to you in electronic form. TorchFi may provide you with notices, including those regarding changes to this Agreement, using any reasonable means now known or hereafter developed, including by email, regular mail, SMS, MMS, text message or postings in the Services. Such notices may not be received if you violate this Agreement by accessing the Services in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Services in an authorized manner. You are advised to print a copy of this Agreement for your records. To receive a non-electronic copy of this Agreement, please contact TorchFi at support@torchfi.com.

Customer Service.

TorchFi provides assistance and guidance through its customer care representatives. When communicating with our customer care representatives, you agree not to be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or to otherwise behave inappropriately. If TorchFi feels that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your account.

Contact Us.

If you have any questions about TorchFi’s Privacy Policy, Terms of Use, or the practices of TorchFi, please contact TorchFi at support@torchfi.com.

Entire Agreement; Miscellaneous.

This Agreement contains the entire agreement between you and TorchFi regarding the use of the Services. If any provision of this Agreement is held invalid, the remainder shall continue in full force and effect. The failure of TorchFi to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. You agree that your online account is non-transferable and all of your rights to your profile or Content related to your account terminate upon your death. No agency, partnership, joint venture or employment is created as a result of this Agreement and you may not make any representations or bind TorchFi in any manner.