TERMS AND CONDITIONS
Last updated 8/15/2016
By accessing Vesta Technology, Inc. d/b/a Torch (hereinafter referred to as “ Torch ”, “ we ”, “ our(s) ”, “ us ”)’s website located at http://www.mytorch.com/ (the “ Site ”) and purchasing Products or Services (as such terms are defined herein) from us, you agree to be bound by these terms and conditions (the “ Terms ”) and affirm your acceptance of the most recent version of the terms and conditions found in various application stores, including, but not limited to, the iTunes Store as provided by Apple Inc. which in no way are superseded or replaced by these Terms. These Terms govern your use of our Site and our mobile application (the “ App ”), and the purchase and use of our products and services available on our Site or App (the “ Products ”). To make these Terms easier to read, the Site, the Products and the App are collectively called the “ Services ”. By using our Services, you agree to be bound by these Terms. If you do not agree to be bound by these Terms, do not use any of our Services.
We may modify the Terms at any time, in our sole discretion. If we do so, we will let you know either by posting the modified Terms on the Site or through other communications. It is important that you review the Terms whenever we modify them because if you continue to use the Services or if you purchase our Products after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you do not agree to be bound by the modified Terms, then you may not use the Services or purchase any Products anymore. Because our Products are still being developed and our Services are evolving over time, we may change or discontinue all or any part of the Services (including our Products), at any time and without notice, at our sole discretion.
THIS IS A LEGAL AGREEMENT. BY ACKNOWLEDGING THE AGREEMENT OR BY ACCESSING AND USING THE SERVICES (INCLUDING OUR SITE), YOU ARE ACCEPTING AND AGREEING TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT IN CONNECTION WITH THE ACCESS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ACCEPT AND AGREE TO THESE TERMS ON BEHALF OF YOURSELF OR THE ENTITY YOU REPRESENT. YOU REPRESENT THAT YOU ARE OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION OR RESIDENCE TO USE OR ACCESS THE SERVICES AND TO ENTER INTO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ANY OF THE PROVISIONS OF THESE TERMS, YOU SHOULD DISCONNECT YOUR PRODUCTS FROM YOUR ACCOUNT (AS DESCRIBED BELOW) AND CEASE ACCESSING OR USING THE SERVICES.
AS DESCRIBED BELOW, THERE ARE IMPORTANT LIMITATIONS OF THE SERVICES. PLEASE READ THESE DISCLOSURES CAREFULLY, AS YOU ARE ACKNOWLEDGING THEM AND ACCEPTING THEM.
You may order Products and use the Services only if you are 18 years or older and capable of forming a binding contract with Torch and are not barred from using the Services under applicable law. You represent and warrant that you are over the age of 13, and in the event you are between the age of 13 and the age of majority in the jurisdiction where you reside, that you will only use the Services under the supervision of a parent or legal guardian who agrees to be bound by these Terms. Any use or access to the Services by individuals under the age of 13 is strictly prohibited and is a violation of these Terms.
If you want to purchase the Products and use certain features of the Services you must create an account (“ Account ”). You can do this via the Site, the App or through your Account with certain thirdparty social networking services such as Facebook or Twitter (each, an “ SNS Account ”). If you choose the SNS Account option we will create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access. It is important that you provide us with accurate, complete and uptodate information for your Account and you are responsible for updating such information, as needed, to keep it accurate, complete and uptodate.
You are responsible for all activities that occur under your Account, whether or not you know about them. You are the sole authorized user of your Account. You are solely and fully responsible for maintaining the confidentiality of your Account information, including your Account password. Therefore, you must take steps to ensure that others do not gain access to your password and Account. You are also responsible for all activities that occur in connection with your Account. If you suspect that any unauthorized party is using your Account, you agree to notify us immediately. Also, you may not transfer or share your Account with anyone, and we reserve the right to immediately terminate your Account if you do transfer or share your Account. However, we understand that you may share your Account information with a family member or caretaker so that s/he can monitor your child’s web browsing activities.
You can purchase our Products via our Site. We provide a link in the payment section of our Site (“ Payment Page ”) to a third party vendor, which will process your payment under separate terms and conditions with respect to your online payment transaction. You understand that if the purchase is towards a preorder, then you are paying the entire purchase price towards the Product upfront, authorizing our payment processing partner to charge you for the full purchase price of the Product.
We reserve the right, at our sole discretion, to refuse or cancel any order for any reason. You will be charged at the time you place your order, not when your order is shipped. Some situations that may result in your order being canceled include limitations on quantities available for purchase, inaccuracies or errors in our Products or pricing information, or problems identified by our credit and fraud avoidance department. We will contact you if all or any portion of your order is canceled. If your order is canceled after your credit card (or other payment account) has been charged, we will issue a credit to your credit card (or other applicable payment account) in the amount of the charge.
DELIVERY OF PRODUCTS
By placing an order for our Products, you are acknowledging and agreeing to support a new product. You understand that the Products are under development, and various technical, financial, and practical obstacles may interfere with their delivery to you. We will use reasonable commercial efforts to deliver the Products within the timelines estimated in the order form. You understand that all scheduled shipment dates and estimated shipment dates are estimates only. We will make reasonable efforts to meet the scheduled shipment dates, but in no event will we be liable for any loss, damage, or penalty resulting from any delay in shipment or delivery.
In case of any unforeseen delay, Torch will keep you updated and communicate progress using the email address associated with your Account. In the event of inconvenience due to any unforeseen delay in the timeline, please inform us at firstname.lastname@example.org and we will make reasonable efforts to resolve your issue.
We offer different subscription plans for use with our Products (“ Subscription Services ”). For
more information about these plans, please visit www.mytorch.com/page/plans .
When you purchase any of our Subscription Services, you expressly acknowledge and agree that (1) Torch is authorized to charge you a monthly or annual subscription service fee depending on the billing cycle you choose (in addition to any applicable taxes) for as long as your subscription continues, and (2) your subscription is continuous until you cancel it or such Subscription Service is suspended, discontinued or terminated in accordance with these Terms.
We automatically bill the payment method associated with your Account on a monthly or annual basis (depending on the billing cycle you choose). Day one of your billing cycle is tied to the date you activate your Subscription Services by pairing them to Product(s). In the event you later decide to purchase additional Subscription Services (each, an “ AddOn Service ”), your payment for such AddOn Service will be prorated to the renewal date of your initial Subscription Service and the full amount of the AddOn Service will be charged on your subscription renewal date. You acknowledge that the amount billed may vary due to promotional offers, changes in your
Subscription Services plan and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts.
Cancellations and Refunds
You may cancel your Subscription Services at any time by contacting Torch at email@example.com. Note that merely unpairing a Product from a Subscription Service will not trigger cancellation of the Subscription Service. In the event you cancel a Subscription Service, we will provide a prorated refund for the period of time starting the day after cancellation of the Subscription Service through the remainder of your billing cycle.
AVAILABILITY AND PRICING
All Products offered on our Site are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order and to discontinue offering certain Products and/or Subscription Services without prior notice. Prices for the Products and Subscription Services are subject to change at any time, but changes will not affect any order for Products you have already placed. In the event we change the pricing for any Subscription Service you have purchased, we will give you advance notice of this change via email. After receiving this notice, you will be deemed to have accepted the change in pricing, unless you cancel your Subscription Service in accordance with these Terms.
REFUND AND CANCELLATION POLICY
You can cancel your order anytime before your router ships. A purchase of your Torch Router cannot be cancelled once your order has shipped.
Subject to the terms in this return and cancellation policy, if you buy a Torch Router you can return it within 30 days after delivery. We’ll cover the cost of return shipping and refund you the full product purchase price, less any discounts used at the time of purchase, and less any fee for missing component parts.
To be eligible for a return, you must contact us within 30 days of your Torch Router being delivered, your Torch Router must be in new or like new condition, you must return all components and the original packaging.
To initiate a return, please contact us at firstname.lastname@example.org. Please include your order number, email address associated with your order, and reason for return in your email. Our team will review your request and issue a Return Authorization if approved. To be eligible for a full refund, your Torch Router must be returned within 20 days of receiving notice of your Return Authorization.
Once our team approves your return, we will email you a return label. Any routers returned prior to receiving approval are not eligible for a refund. Once you receive your return label, place your Torch Router, all components, and all packaging in the original box, apply the label, and we’ll coordinate a pickup.
Once your Torch Router is returned to us, we’ll ensure that your Torch Router is still in new or like new condition and all of the original components are in the box. If you do not have the original packaging, or are missing some components (ethernet cable, power supply, quick start guide, etc.), we will deduct a $15 replacement and handling fee from the amount you are refunded.
Once confirmed, we will issue a refund to the credit card you used to purchase the Torch Router for the full purchase price, less any discounts used at the time of purchase, and less any deductions for missing components. We will process your refund within thirty days of receiving your returned Torch Router.
Your Torch Router is not eligible for return and a refund outside of the 30-days following your receipt of the Torch Router.
OWNERSHIP OF THE SERVICES
All content of the Services, including without limitation, the text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available on or through the Services are collectively referred to as “ Content ”. The Services and Content, and all associated intellectual property rights are the sole and exclusive property of Torch and/or its licensors, and may not be copied, distributed, modified, reproduced, published or used, in whole or in part, except for purposes authorized or approved in writing by Torch. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
In connection with providing the Services, we may elect to update the App or Services at any time. These updates may include bug fixes, feature enhancements or improvements, or entirely new versions of the App. You agree that Torch may automatically deliver such updates to you as part of the Services and you shall receive and install them as required, and you acknowledge and
agree that the App, Services, or portions thereof may not properly operate should you fail to do so. You further agree that all updates will be deemed part of the App and will be subject to these Terms. Furthermore, the Services may be suspended temporarily without notice for security reasons, system failure, maintenance and repair, or other circumstances. Torch does not offer any specific uptime guarantee for the Services.
Rights in App Granted by Torch
Subject to your compliance with these Terms, Torch grants you a limited nonexclusive, nontransferable, nonsublicenseable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal noncommercial purposes. You may not copy the App, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App; or (iv) make the functionality of the App available to multiple users through any means. Torch reserves all rights in and to the App not expressly granted to you under these Terms.
Rights in Content Granted by Torch
Subject to your compliance with these Terms, Torch grants you a limited, nonexclusive, nontransferable, nonsublicensable license to download, view, copy, display and print the Content solely in connection with your permitted use of the Services and solely for your personal and noncommercial purposes.
You agree not to do any of the following:
Use, display, mirror or frame the Services or any individual element within the Services, Torch’s name, any Torch trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Torch’s express written consent;
Access, tamper with, or use nonpublic areas of the Services, Torch’s computer systems, or the technical delivery systems of Torch’s providers;
Attempt to probe, scan or test the vulnerability of any Torch system or network or breach any security or authentication measures;
Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Torch or any of Torch’s providers or any other third party (including another user) to protect the Services or Content;
Attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Torch or other generally available thirdparty web browsers;
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;
Use the Services (including our Products) or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content;
Violate any applicable law or regulation; or
Encourage or enable any other individual to do any of the foregoing. LINKS TO THIRD PARTY WEBSITES OR RESOURCES
The Services may contain links to thirdparty websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any thirdparty websites or resources.
Certain items of independent, third party code may be included in the App and/or Site that are subject to the GNU General Public License (“ GPL ”) or other open source licenses (“ Open Source Software ”). The Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such Open Source Software. In particular, nothing in these Terms restricts your right to copy, modify, and distribute such Open Source Software that is subject to the terms of the GPL.
The Torch WiFi Router from Vesta Technology, Inc d/b/a Torch contains the open source software detailed below. Please refer to the indicated open source licenses for the terms and conditions of their use.
The source code for the above may be obtained free of charge here. Torch will also provide open source code to you via CD-ROM or electronic file for a charge covering the cost of performing such distribution (such as the cost of media, shipping and handling) upon email request to email@example.com. This offer is valid for three (3) years from the date on which you purchased the product.
We welcome feedback, comments and suggestions for improvements to our Products and Services (“ Feedback ”). You can submit Feedback by emailing us at firstname.lastname@example.org . You grant to us a nonexclusive, worldwide, perpetual, irrevocable, fullypaid, royaltyfree,
sublicensable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Torch may offer certain discounts, promotions and free introductory services (such as initial subscription services) (collectively, “ Deals ”) to its customers from time to time. Please note that regardless of any offers of Deals, Torch reserves the right to change the offer bundle over time without any prior notice. In addition, you acknowledge and understand that Torch does not provide any warranty or refund/cancellation assurances on any of the Deals. Torch also reserves the right to amend the service or other policies around any components offered as a free or additional item along with the Product. The Deals are not interchangeable and cannot be traded off for monetary remuneration or in any other way.
EXPORT POLICY AND RESTRICTIONS
You acknowledge that the products and Content which are sold or licensed on the Site, which may include technology and software, are subject to the customs and export control laws and regulations of the United States of America and may also be subject to the customs and export laws and regulations of the country in which the products are manufactured and/or received. By purchasing, downloading or using technology or software from our Services, you agree to abide by the applicable laws, rules and regulations including, but not limited to the Export Administration Act and the Arms Export Control Act, and you represent and warrant that you will not transfer, by electronic transmission or otherwise, the software or technology to a foreign national or a foreign destination in violation of the law. By purchasing any products, you agree that you will not use any products, or provide products to any person, who is forbidden from receiving the product under the Export Administration Regulations or any economic sanctions maintained by the U.S. Department of Treasury. U.S. antiboycott regulations, or U.S. economic sanctions, including the export and antiboycott restrictions found in the Export Administration Regulations or the sanctions regulations administered by the U.S. Office of Foreign Assets Control. You agree to defend, indemnify and hold Torch and its officers, directors, employees, agents and affiliates harmless from all claims, demands, damages, costs, fines, penalties, attorneys’ fees and all other expenses arising from your failure to comply with this provision and/or applicable export control, antiboycott, or economic sanctions laws and regulations.
ACCESS OUTSIDE CERTAIN COUNTRIES
Although the Site is accessible worldwide, the Products and Services provided or accessed through or on the Site are not available to all persons or in all countries. If you choose to access the Site from outside a country in which Torch supports the Product and Services listed here (“ Target Country ”), you do so on your own initiative and you are solely responsible for complying with applicable local laws in your country. You understand and accept that the Site is not designed for use in a nonTarget Country and some or all of the features of the Site may not work or be appropriate for use in such a country. To the extent permissible by law, Torch accepts no responsibility or liability for any damage or loss caused by your accessing or use of the Site or
Torch Products in a nonTarget Country. You will be bound by these Terms wherever you access or use the Site or use the Services.
We may terminate your access to and use of the Services (unless you have purchased a Product, in which case we will ship your Product or refund you the purchase price as indicated above), at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com .
Torch warrants that for a period of one (1) year from shipment, the Product will be free from defects in materials and workmanship under normal use in accordance with the documentation provided with the Product. In the event of a defect, contact Torch firstname.lastname@example.org for return instructions. Torch’s sole obligation under this warranty will be at its option to repair or replace the Product and the replaced product will have warranty for the remaining period of the original warranty. This warranty does not apply to Products damaged by misuse, accident, or normal wear and tear. The Product is not designed for or warranted against damage from use in areas subject to extreme temperature, excessive moisture, or other inherently hazardous environments. ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE LIMITED TO THE DURATION OF THIS WARRANTY. EXCEPT FOR THE LIMITED EXPRESS WARRANTIES SET FORTH ABOVE, TORCH DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS. Some jurisdictions do not allow limitations on how long an implied warranty lasts so the above limitations may not apply to you. This warranty gives you specific legal rights, and you may also have other rights which vary by jurisdiction.
LIMITATION OF LIABILITY
NEITHER TORCH NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES, PRODUCTS OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, PRODUCTS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TORCH HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL TORCH’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE
THE SERVICES OR PRODUCTS EXCEED THE AMOUNTS YOU HAVE PAID TO TORCH FOR USE OF THE SERVICES OR PRODUCTS GIVING RISE TO THE LIABILITY.
Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitations may not apply to you.
GOVERNING LAW AND VENUE
These Terms and any action related thereto will be governed by the laws of the State of Tennessee without regard to its conflict of laws provisions. At Torch’s sole discretion, it may require you to submit any disputes arising from the use of these Services, including disputes arising from or concerning their interpretation, violation, invalidity, nonperformance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Tennessee law. Otherwise, any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Tennessee in each case located in the City of Chattanooga, Hamilton County, Tennessee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
These Terms constitute the entire and exclusive understanding and agreement between Torch and you regarding the Services (including Deals and Content), and these Terms supersede and replace any and all prior oral or written understandings or agreements between Torch and you regarding the Services. If any provision of these Terms is held invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Torch’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Torch may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Torch under these Terms, including those regarding modifications to these Terms, will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
Torch’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Torch. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Torch at email@example.com .
©. All Rights Reserved.