Touchtown Terms and Conditions

Version Effective June 2021

The following Terms and Conditions apply to all agreements with Touchtown, Inc and Sagely Inc. Please review carefully as our partnership is subject to this agreement.

 1) Site Preparation and Installation

  1. If you purchased TV+: All installations of Touchtown TV+ will be supported by Touchtown on a remote (telephone) basis. Pricing shown in the Deliverables assumes that your cable or satellite television company will provide an insertion point. We will, upon your request, provide specifications to guide the cable or satellite provider for this work, and we will provide technical support for this work at no additional charge. You are responsible for all charges, if any, from the cable or satellite provider. If your cable or satellite provider requires additional equipment, such as a special or non-standard channel elimination filter, you are responsible for the additional cost if any. You are also responsible for supplying a reliable broadband Internet connection to the broadcaster(s), running coaxial cable between our equipment and the insertion point, supplying a clean HVAC-controlled space for our equipment, running electrical and data connections to the broadcaster location, and providing reliable power to our equipment.
  2. If onsite installation is purchased, we will install your TV+ system for you on-site; however, you are responsible for travel costs and labor and/or components required, and you agree to pay our then-current labor rate for such work. This installation assumes you have a common TV configuration, and includes up to one full day onsite. If your situation is unusual or if any changes are required to the standard components of the Deliverables, additional labor and/or components may be required, and in such cases, you agree to pay our then-current labor rate for such work, plus the actual cost of any additional components.
  3. TV+ Insertion. Digital and Analog insertion, which is the process by which our television signal is encoded and inserted into a digital channel, is your responsibility and is typically performed by your cable TV provider. You may purchase insertion equipment from Touchtown however we are not responsible for the cost or performance of any digital insertion work performed by you or a third party. Touchtown does not provide any warranty for third-party insertion work or hardware. We are not responsible for any loss of picture quality or functionality in the event that your cable company provides your end users with set-top boxes that are incompatible with your TV+ systems or changes its software such that set top boxes are no longer compatible with your TV+ systems.
  4. If you purchased Touchtown Digital Signs: Unless agreed to in writing by Touchtown, all installations of Touchtown Digital Signs will be supported by Touchtown on a remote (telephone) basis. You are responsible for supplying a reliable broadband Internet connection to the broadcaster(s); providing one television per broadcaster; supplying a clean HVAC-controlled space for our equipment, running electrical and data connections to the broadcaster location, any structural changes required for installation of digital signage such as drilling holes in walls, mounting televisions or other equipment, and installing outlets and wall jacks, and providing reliable power to our equipment.
  5. If onsite installation is purchased we will install your Digital Sign system for you on-site; however, you are responsible for travel costs and labor and/or components required, and you agree to pay our then-current labor rate for such work. If your situation is unusual or if any changes are required to the standard components of the Deliverables, additional labor and/or components may be required, and in such cases, you agree to pay our then-current labor rate for such work, plus the actual cost of any additional components.
  6. If you purchased Touchtown Community Apps: You are responsible for supplying a reliable internet connection to all devices running the Touchtown Community Apps. Visit our Learning Center for the current list of supported devices: learn.touchtown.com
  7. If you purchased Video Concierge: You are responsible for supplying an operator station (desktop or laptop computer) complete with compatible browser and webcam. The Video Concierge product requires a 6 month minimum for all initial operator licenses but you will be billed along with other Touchtown services monthly.

 

2) Usage Restrictions

Customer shall not, nor permit anyone to: (i) copy or republish the SaaS Services, the Software or the Documentation, (ii) make the SaaS Services available to any person other than its authorized employees and registered Residents, (iii) use or access the Software or SaaS Services to provide service bureau, time-sharing or other computer hosting services to third parties, (iv) modify or create derivative works based upon the SaaS Services, the Software or the Documentation, (v) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software, the Documentation or associated with the SaaS Services , (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software , or (vii) access the SaaS Services or use the Documentation or the Software in order to build a similar product or competitive product.

  1. Touchtown TV+ output may only be displayed inside of resident rooms within a single senior living community. For purpose of clarification, no display of TV+ generated images and output shall be permitted in common areas of your community. For such common area applications, you should utilize Touchtown Digital Signs.
  2. Under the terms of this Agreement, you are responsible for understanding and complying with all laws pertaining to showing movies shown on your Touchtown TV+ in-house television channel. Under United States copyright law it is illegal to show a movie to a group of people through a transmission system such as an in-house television channel unless you have a public performance license. For more information on US copyright law, see http://www.copyright.gov/title17/92chap1.html#110.
    Touchtown offers several options for showing movies in compliance with copyright law, including the Motion Picture Licensing Corporation (MPLC) “Umbrella License” which allows you to show an unlimited number of movies from participating major studios on your in-house television channel.
  3. Touchtown Digital Sign broadcasters may only be connected to a single television, and may not be connected to a splitter to feed multiple televisions, or connected into a system (such as cable TV) that is utilized for in-room service.
  4. Community Apps Licenses. A license allows one user to log into the specific product that was purchased (i.e. Resident, Staff, Family, Prospect) on as many devices as they choose.

 

3) Customer’s Responsibilities.

  1. Any servers and broadcaster computer Deliverables (collectively, the “Server Deliverables”) are provided for the sole purpose of preparing and delivering our services to you. You agree that the Server Deliverables are to be located in a secure and environmentally controlled area, connected to the internet via a wired broadband connection or stable wireless connection, and will not be used for any purpose other than delivering our service. You further understand and agree that the warranty and support agreement set forth in this Agreement does not cover repairs, replacements, consulting services or travel expenses required as a result of problems caused by the unauthorized use or modification of the Server Deliverables, including but not limited to: (i) moving the Server Deliverables; (ii) unauthorized installation, removal or modification of Server Deliverables including cables, (iii) installation or downloading of unauthorized software to the Server Deliverables, (iv) unauthorized running of any web browsers, email programs, games, or other software on the Server Deliverables, (v) damaging environmental conditions including temperatures and humidity levels outside the rated capacity of our equipment, (vi) damage from liquids or moisture, (vii) damage from excessive dirt or dust, (viii) interruption in internet connection, (ix) use of a dialup or wireless internet connection to the Server Deliverables, or (x) interruption, spikes or poor quality of electrical power delivered to the Server Deliverables. In the event of such failure, you agree to pay for any labor, materials and/or travel expenses required to resolve such problems, which will be billed at our normal labor and equipment rates.
  2. Authorized Use: Users; Customer Input. Customer is solely responsible for obtaining authorization from the respective Resident for family and friends of the Resident or other third parties who are granted access to the Customer Content for the respective Resident using the SaaS Services. Customer shall be responsible for all the acts and omission of all of its Residents or other Users. Customer shall be responsible for collecting, inputting and updating all Customer Content stored, and for ensuring that the Customer Content does not (a) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, confidentiality, trademark or other intellectual property right of any third party, or (b) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Touchtown immediately of any unauthorized use of any user credential or any other known or suspected breach of security, (ii) report to Touchtown immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any Resident, and (iii) not provide false identity information to gain access to or use the Service.
  3. HIPAA. Some Touchtown/Sagely products require an executed Business Associate Agreement. If needed, one will be provided to the Customer and attached as part of the License Agreement. Customer shall grant to Touchtown a non-exclusive and non-transferable license, to copy, store, configure, analyze, aggregate, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer and its Residents. Customer confirms that Customer is solely responsible for any personal data that may be contained in the Customer Content, including any information which Customer, User, or Resident, provides or shares with third parties.

 

4) Changes to Order

Any proposed changes to the Deliverables will be set forth in a Touchtown License Modification which we will provide to you. If such changes result in additional cost, then you must approve them in writing prior to delivery and installation. If the changes result in a lower total cost, we will, at your option, either refund you or issue you a credit.

 

5) Payment Terms

Unless other arrangements are specified elsewhere in this Agreement, payment terms are:

  • 100% of the initial purchase price will be invoiced immediately upon signature of this agreement and due within 30 days. Payment is requested before the start of any development or delivery.
  • Recurring Fees shall commence on the 1st day of the month proceeding the execution date of this agreement.
  • Travel and shipping expenses are net 30 days
  • At the three year anniversary of the effective date of this agreement, Touchtown reserves the right to increase the monthly fees by up to 10% without further notice
  • If a payment plan option is selected you will be billed in accordance with the terms of the plan. If you cancel any services with-in the payment plan term you will be invoiced for the remaining balance of the payment plan, including any associated fees, directly upon termination with payment due within 30 days of cancellation.

You have 30 days after delivery to perform acceptance testing on the Deliverables, but this does not affect your obligation to pay for them. If during this period you determine that any of the Deliverables are not satisfactory because they do not conform to our description of them in our product literature and/or specifications, you may notify us of your non-acceptance. We then will, at our sole option, cancel the nonconforming Deliverables and release you from your obligation to pay for them, or remedy the problem. This is the only condition under which we will accept returns of Deliverables.

For any Deliverables that have a recurring fee associated with it, then you must continue to pay that recurring fee in order to use that Deliverable as well as all options and/or accessories that pertain to that Deliverable. We will, at our option, bill you for recurring fees on a monthly, quarterly or annual basis. Recurring fees are net 30 days unless specified otherwise on your invoice.

The following policies apply to past due invoices:

  • If any invoice is not paid in full within 30 days of the invoice date, we reserve the right to assess a late fee of 2% per month on the unpaid balance.
  • If any invoice is not paid in full within 60 days of the invoice date, we will notify you that your service will be discontinued if any invoice remains unpaid 90 days after invoice date.
  • If any invoice is not paid in full within 90 days of the invoice date, we reserve the right to discontinue your service without any further notice. Service will be restored when we receive payment in full for all invoices due, including all late fees, plus a Service Restoration Charge of $200 or 25% of all past due invoices, whichever is greater.

Additional payment terms may be set forth elsewhere in this Agreement, and if so, they supersede the terms set forth in this section.

 

6) Software and Touchtown Community Apps (“TTCA”) Licenses

  • We grant you a license to create user accounts and to use each user account on as many mobile and web devices as you wish (excluding kiosk licenses).
  • Touchtown intends to review the number of user accounts on a quarterly basis, and to bill for any increases in the next billing cycle following the quarterly review. If more user licenses have been used than the total number that was purchased, Touchtown will increase your monthly license fee in increments of 25 user licenses to reflect the number of user accounts you have granted. Touchtown reserves the right to modify, from time to time, its approach to billing for excess user accounts.
  • If you purchase Guest access, your license includes unlimited access to the guest version of TTCA by anyone over the internet.
  • If you purchase Interactive Display access, also known as Kiosk, your license includes unlimited access to the Interactive Display version of TTCA by anyone physically located in your community, on the number of Interactive Displays for which you have purchased licenses. Interactive Display Licenses are strictly limited to one device per license.
  • If you purchase Touchtown Live, your license includes the ability to stream to the allotted products with the cumulative time purchased per month. Touchtown intends to review the number of streamed hours on a monthly basis, and to bill for any increases in the next billing cycle following the review. If more ingest hours have been used than the total number that was purchased, Touchtown will increase your monthly license fee in increments of 100 SD Hours / 20 HD Hours to reflect the number streamed hours used. Touchtown reserves the right to modify, from time to time, its approach to billing for excess Touchtown Live Streaming.
  • We grant you a license to use the Software for the sole purpose in utilizing the products and services under this Agreement. You may use the Software but we retain title to it. The Software contains copyrighted material, trade secrets, and other proprietary information, and in order to protect them you may not decompile, reverse engineer, disassemble, or otherwise reduce it to a human-perceivable form. You may not modify or create derivative works based upon the Software, in whole or in part, without our written permission, except that you may create related documentation and marketing materials for use solely in promoting the Deliverables’ use and educating users and staff within your communities.

 

7) Taxes, Shipping and Travel Expenses

You agree to pay all applicable sales taxes on this transaction, and to pay applicable use taxes directly to the appropriate taxing authorities in cases where we do not collect sales tax. You agree to pay reasonable costs for shipping the Deliverables to you, and to pay the difference, if any, between the estimated shipping cost on the pricing worksheet on the first page, and the actual shipping cost. You also agree to pay our reasonable travel expenses for installation and on-site training if any. For purposes of this Agreement, travel expenses shall include without limitation, airfare, hotel, rental vehicles, mileage, tolls, dining, parking fees, taxi fare, and incidental expenses, as well as any additional travel and labor expenses that may be incurred as a result of unforeseen circumstances including but not limited to: last-minute cancellation of travel to your facilities, bad weather, cancelled flights, and failure of cable companies or other 3rd parties to perform as scheduled. We will make every reasonable effort to minimize travel expenses, including lodging our employees at your locations if you wish, using any discounts you have for nearby hotels, and sharing the cost of airfare among multiple customers if a trip to your locations can be combined with trips to other nearby customer locations.

 

8) Customer Support

Touchtown’s objective is to provide an uncompromised level of support. To provide the customer with the highest quality service, Touchtown uses this agreement to define the roles of both Touchtown and the customer, manage the expectations that the customer has for Touchtown, explain how Touchtown handles and executes requests for service, and enable clear communication between the customer and Touchtown.

We will provide you with unlimited access to our regularly scheduled training classes, Touchtown Learning Center, and our other customer support services. Customized, private, and/or onsite training is available but is not included in the price of the Deliverables unless otherwise stated.

Contact us to obtain customer support by any of the following methods:

  • Online support tools including the Touchtown Learning Center
  • Telephone support
  • Email support
  • Remote assistance using Remote Desktop and a Virtual Private Network where available
  • Periodic system health check

Contact information for Touchtown support:

Touchtown provides regular telephone and email support 8:30am to 5:00pm ET, Monday through Friday, except holidays.

Touchtown responds to service requests according to their level of urgency. Urgency is determined solely by the Touchtown customer care representative responsible for the request and will be clearly communicated to the customer.

  • Level One (High Urgency) – Content Manager Outages
  • Level Two (Medium Urgency) – Campus level outages
  • Level Three (Low Urgency) – General requests/troubleshooting

After hours phone calls will be operated by our 24/7 support center but in rare instances may be recorded in voice mail, and we use our best efforts to take action the beginning of the following day. Calls received outside our normal regular support hours defined above may be collected with follow-up action to come the next business day. After hours emails are collected, but no action can be guaranteed until the next business day.

Touchtown strives to provide our customers with the highest level of system uptime as possible. Occasionally, it is necessary to perform regular routine and emergency maintenance on our servers, networks and fielded hardware. To make these downtimes as convenient as possible for customers, Touchtown generally performs normal maintenance during a Normal System Maintenance Period (NSMP). This period is scheduled for off hours and Touchtown is dedicated to performing these tasks during late evenings or on weekends when it is less likely to disrupt the customer.

Emergency changes that require service outages are not scheduled and are implemented at the discretion of Touchtown. In the event of an emergency service outage, Touchtown will attempt to notify customers as soon as possible. If a change is critical or urgent, advanced notification may not be sent.

 

9) Warranty

We provide a 36 month warranty that is limited to free repair or replacement (at our option) of any Deliverable manufactured by or for Touchtown including the Broadcaster components of your TV+ and/or Digital Sign Deliverables if any. Other hardware deliverables, including but not limited to interactive display hardware and insertion equipment sold by Touchtown, are covered by their respective manufacturers’ warranties if any. Device failures resulting from physical impact or misuse, are not covered by this or any other warranty. Touchtown reserves the right to determine and classify the cause of a device failure. We will ship you replacement devices via standard overnight courier service if your system is down and you are under warranty, otherwise via ground or 2nd day air at our option. We will pay shipping charges for devices covered under warranty. You are responsible for physically replacing the replacement devices that we ship to you, with guidance from us over the phone and internet if necessary. You may request onsite service, which we will provide at our currently prevailing labor rates plus reasonable travel costs.

You own the Deliverables that we provide to you except for any software components of the Deliverables (“Software”) which we license to you. If we replace any Deliverables under this Agreement and ask you to return the defective items, your ownership immediately transfers to the new items we provide to you, and ownership of the old returned items transfers to us.

The warranty period begins on the date we ship the product to you or 120 days after the date of this Agreement, whichever is sooner. At the expiration of this initial warranty, we will offer you a Hardware Upgrade, including new hardware and new 36 month warranty at our then-current price and under our then-current terms and conditions.

We represent and warrant that our services, if any, will be performed in a professional manner. There is nothing in the Deliverables that requires any payment, royalty or permissions from any third party unless specified and agreed upon in advance by you. Other than the above, we make no warranties, express or implied, including without limitation the implied warranties of merchantability and fitness for a particular purpose, regarding the Deliverables. We do not warrant, guarantee, or make any representations regarding the use of the results of the use of the Deliverables in terms of its correctness, accuracy, reliability, or otherwise. You assume the entire risk as to the results and performance of the Deliverables. The exclusion of implied warranties is not permitted by some jurisdictions, and if so, the above exclusions may not apply to you.

 

10) Indemnification

We shall indemnify, defend and hold harmless, at our sole expense, you and your subsidiaries and affiliates, and their respective directors, officers, employees, agents, shareholders, partners, members and other owners from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) that are based in whole or in part on a breach of the warranties set forth herein, or otherwise arise from any act or omission by us in the performance of this Agreement.

 

11) Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE THE DELIVERABLES EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO CASE SHALL WE OR OUR LICENSORS’ LIABILITY EXCEED IN THE AGGREGATE THE PURCHASE PRICE FOR THE DELIVERABLES.

 

12) Term and Termination

This Agreement will become effective on the Effective Date and will continue thereafter on a month-to-month basis until terminated by either party. Either party may terminate this Agreement at any time by giving at least 30-days advance written notice. Upon termination, you shall pay us for all products delivered and/or services performed to the termination date and any products and services which you have committed to purchase, and you shall receive such products and/or services to the termination date. Termination of this Agreement does not affect your obligation to pay the initial purchase price for the Deliverables.

To terminate Touchtown services, please complete the form at touchtown.com/cancel.

 

13) Copyright and Privacy Issues

You are solely responsible for understanding and complying with all laws pertaining to your inclusion and/or delivery of content on the Deliverables, other than content that we provide in the Deliverables. Such content includes, but is not necessary limited to: DVDs, videotapes, digital video files, CDs, audio tapes, internet radio content, broadcast radio content, artwork, photographs, videos, and documents. You shall indemnify, defend and hold harmless, at your sole expense, Touchtown, its subsidiaries and affiliates and their respective directors, officers, employees, agents, shareholders, partners, members and other owners from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) that are based in whole or in part on your breach of laws pertaining to your use of content on the Deliverables.

 

14) Publicity

The parties reserve the right to publish or otherwise make public the existence of this Agreement, the Deliverables thereof, and samples of content published through those Deliverables provided such content does not violate the privacy of any individual. However, the parties shall not make public any specific terms and conditions of this Agreement such as price and payment terms without the express permission of the other party.

 

15) General Provisions

  1. Complete Understanding; Modification. This Agreement constitutes the complete and exclusive understanding and agreement of the Parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter hereof. Touchtown reserves the right to make modifications to this agreement at any time.
  2. Customer acknowledges that the SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Touchtown’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Customer, to other parties.
  3. Force Majeure. Each party will be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, acts of God, strikes, lockouts, riots, acts of terrorism or war, epidemics, communication line failures, and power failures.
  4. Binding Effect. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their permitted successors and assigns.
  5. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, USA, without giving effect to principles of conflicts of law. The parties agree that the state and federal courts sitting in Pittsburgh, Pennsylvania USA shall have proper and exclusive jurisdiction and venue for any proceedings arising from this Agreement.
  6. Notices. Any notices to be given hereunder by either party to the other may be effected either by personal delivery in writing or by mail, registered or certified, postage prepaid with return receipt requested. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of three business days after mailing.
  7. Invalidity of Agreement Provision. In the event that any one or more of the provisions of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the invalidity, illegality, or unenforceability shall not affect any other provision, and the Agreement shall be construed as though it has not contained the invalid, illegal, or unenforceable provision.
  8. Waiver. Any failure by either party at any time to enforce or require the strict performance of any of the terms or conditions hereof shall not constitute a waiver of its rights and shall not affect or impair either party’s right to avail itself of the remedies available for subsequent breach of such terms or conditions.
  9. Section Headings. Section headings are added solely to aid in the review of this Agreement and are not to be construed to affect the interpretation of this Agreement.