Touchstone IQ for Buildings
Terms and Conditions

Full-Service
Membership Details

  1. Background
    1. The Customer is of the opinion that Touchstone IQ, LLC has the necessary qualifications, experience, and abilities to provide the services (the “Services”) outlined in this Agreement to the Customer.
    2. Touchstone is agreeable to providing such Services to the Customer on the terms and conditions outlined in this Agreement.
    3. The Customer hereby agrees to engage Touchstone to provide the Customer with the following Services for their Full-Service membership. These Services are not delivered on behalf of Core or Premier memberships.
  2. Energy Benchmarking.
    1. Touchstone will generate a benchmarking report for each contracted building within the Touchstone Platform. In accordance with this process, Touchstone will conduct the following Services as required by the ENERGY STAR® Portfolio Manager® benchmarking process and U.S. and Canada state, province, and/or local municipality benchmarking ordinance requirements (the “Programs”).
      1. Prior to the commencement of Services, Touchstone will provide the Customer with an estimated completion time based on the Customer’s building(s), individual Program requirements, and the Customer’s respective Utility Providers. Touchstone IQ will also support the Customer in filing exemption or extension requests, where needed and/or available.
      2. Create or sync ENERGY STAR® Portfolio Manager accounts
        1. If a Customer has an existing ENERGY STAR® Portfolio Manager account, the Customer will share account login information with Touchstone to enable all available building and utility data from ENERGY STAR® to be synced with the Touchstone IQ for Buildings software.
        2. If a Customer does not have an existing ENERGY STAR® Portfolio Manager account, Touchstone will create a new account and share account details with the Customer.
      3. Touchstone will aggregate all building use details and Utility Provider data commensurate with the benchmarking process.
        1. The Customer is responsible for providing Touchstone with complete and accurate building use and property details. These will be outlined by Touchstone at the commencement of the Services.
        2. The Customer is responsible for securing tenant data consent as required by Utility Providers, when necessary. These requirements will be outlined by Touchstone at the commencement of the Services.
        3. If a Utility Provider has data auto-upload capabilities, Touchstone will work with the Customer to establish connections that will enable data to be automatically and regularly synced within the Touchstone Platform.
        4. If a Utility Provider does not have data auto-upload capabilities, Touchstone will manually load the past 12 months of utility data to the Touchstone Platform.
      4. The Touchstone Platform will sync benchmarking report(s) with ENERGY STAR® Portfolio Manager.
      5. As required, Touchstone will submit benchmarking reports to the required Programs.
        1. Touchstone will provide the Customer with the opportunity to review benchmarking report(s) prior to report submission. The Customer may provide Touchstone with written consent to submit a report without a formal review of the benchmarking data. If there is no benchmarking data review, and Touchstone has not received written consent for submission, Touchstone will abstain from submitting the report(s) until given clear direction from Customer.
        2. Touchstone must receive payment prior to submitting a Customer’s benchmarking report.
        3. If a Program rejects a Customer’s benchmarking report due to property or data quality issues, Touchstone will make all necessary revisions and resubmit on the Customer’s behalf. If a Program requires third-party data verification, Touchstone will inform the Customer about the necessary requirements; However, it is the Customer’s responsibility to solicit third-party verifier services and cover any associated costs. Touchstone may be able to recommend third-party verifiers dependent on the Program’s location.
        4. The Customer is responsible for:
          1. Providing Touchstone with complete and accurate building data as required by the benchmarking process.
          2. Confirmation that each benchmarking report is officially accepted by the respective Program(s). However, Touchstone will provide support to the Customer in this process by reaching out to respective Program help desks for confirmation, where available.
          3. Paying all fees associated with a Program. However, Touchstone and the Customer may negotiate terms whereby Touchstone submits payment on behalf of the Customer during the benchmarking process.
          4. Paying all fines associated with non-compliance or late reporting. Touchstone will make all reasonable attempts to submit benchmarking reports prior to program deadlines, however, there are many factors outside of Touchstone’s control that prevent a compliance guarantee. This includes but is not limited to when a Customer engages Touchstone relative to Program deadlines, Utility Provider responsiveness, and how quickly the Customer is able to provide Touchstone with necessary information including building details, tenant consent, and benchmarking report approval.
      6. Unless clearly defined in a multi-year contract, Touchstone is not responsible for prior year benchmarking. If a Customer requires benchmarking for previous years in addition to the current benchmarking year, the Customer and Touchstone can agree upon a fee not to exceed the annual price per building defined in this Agreement.
  3. Virtual Energy Assessment
    1. After completing the benchmarking report(s), Touchstone will collaborate with the Customer to complete the virtual energy assessment within the Touchstone Platform.
    2. Touchstone IQ will help the Customer analyze the results and set up subsequent goals and projects.
  4. Ongoing Support
    1. Touchstone will provide the Customer with Touchstone Platform onboarding and training.
    2. During the contract period, Touchstone will provide the Customer with ongoing technical support.
    3. Services not outlined in the above Agreement can be negotiated as supplemental contractual agreements.
  5. Additional Services
    1. The Customer may contract Touchstone for the implementation of additional energy management services. Where relevant, these will be outlined in an Addendum to this Agreement.

Terms and Conditions
for Services

THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU OR YOUR ORGANIZATION. PLEASE READ IT CAREFULLY.

BY PLACING AN ORDER FOR SERVICES FROM THIS WEBSITE, YOU ACCEPT ON YOUR BEHALF AND WITH AUTHORITY FOR YOUR ORGANIZATION AND ARE BOUND BY THESE TERMS AND CONDITIONS.

YOU MAY NOT ORDER OR OBTAIN SERVICES FROM THIS WEBSITE IF YOU (A) DO NOT AGREE TO THESE TERMS, (B) ARE NOT THE OLDER OF (i) AT LEAST 18 YEARS OF AGE OR (ii) LEGAL AGE TO FORM A BINDING CONTRACT WITH TOUCHSTONE IQ, LLC, OR (C) ARE PROHIBITED FROM ACCESSING OR USING THIS WEBSITE OR ANY OF THIS WEBSITE’S CONTENTS, GOODS OR SERVICES BY APPLICABLE LAW.

These terms and conditions (these “Terms”) apply to the purchase and sale of services through Touchstone IQ, LLC’s website (the “Site”) by you, whether purchased individually or on behalf of your organization (“Customer”). These Terms are subject to change by Touchstone IQ, LLC (referred to as “Touchstone” “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of these Terms will be posted on this Site, and you should review these Terms before purchasing any services that are available through this Site. Your continued use of this Site after a posted change in these Terms will constitute your acceptance of and agreement to such changes.

These Terms are an integral part of the Website Terms of Use that apply generally to the use of our Site. You should also carefully review our Privacy Policy before placing an order for services through this Site.

  1. Term and Termination.
    1. Term. The Term of this Agreement is for 365 days from the subscription initiation date. This Agreement will automatically renew for another year on the subscription initiation date anniversary.
    2. Termination. You can cancel or terminate this Agreement at any time upon written notice to Touchstone as designated on the Site. There are no refunds or credits upon any termination regardless of reason for termination. Touchstone may suspend, cancel or terminate this Agreement at any time upon breach or reasonable belief of a breach of this Agreement by you or there is a threat, attack or security risk of any data or intellectual property rights of Touchstone or Customer.
  2. Services.
    1. Services. Subject to the terms of this Agreement, during the Term, Touchstone shall provide to Customer and its Authorized Users the services selected by the Customer on the Site and this Agreement including to host, manage, operate and maintain the Software on Touchstone’s Platform for remote electronic access and use by Customer and its Authorized Users (collectively, the “Services”), in accordance with the terms of this Agreement. “Authorized User” means each of the individuals authorized to use the Services pursuant to the terms and conditions of this Agreement. “Touchstone Platform” means the software, Touchstone’s systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, that are directly provided or used by Touchstone or any subcontractor in providing the Services.
    2. Provision of Access. Subject to and conditioned on Customer’s payment of fees and compliance with all the terms and conditions of this Agreement, Touchstone hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users for a commercial purpose in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Touchstone shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. The total number of Authorized Users are unlimited so long as Customer does not abuse or breach this Agreement. Touchstone has a right to restrict the number of Authorized Users upon breach of this Section.
  3. Reservation of Rights and Customer Restrictions.
    1. Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services or Touchstone Platform, whether expressly, by implication, estoppel or otherwise. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. All right, title and interest in and to the Services and the Touchstone Platform are and will remain with Touchstone or the applicable third- party rights holder. Except for the limited licensed expressly provided in this Agreement grants Touchstone any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, Customer Data, whether expressly, by implication, estoppel or otherwise. “Customer Data” means information, data and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services. All right, title and interest in and to the Customer Data are and will remain with Customer or the applicable third-party rights holder.
    2. Authorization Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or Touchstone Platform except as expressly permitted by this Agreement. Further, Customer shall not, except as this Agreement expressly permits:
      1. copy, modify, or create derivative works or improvements of the Services or Touchstone Platform;
      2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Touchstone Platform to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
      3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the object source code of the Services or Touchstone Platform, in whole or in part;
      4. access or use the Services or Touchstone Platform other than by an Authorized User through the use of his or her own then-valid access credentials, including through bypass or breach or any security device or protection used by the Services or Touchstone Platform;
      5. input, upload, transmit or otherwise provide to or through the Services or Touchstone Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
      6. damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Touchstone Systems or Touchstone’s provision of services to any third party, in whole or in part;
      7. remove, delete, alter or obscure any trademarks, documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services or Touchstone Platform, including any copy thereof;
      8. access or use the Services or Touchstone Platform for purposes of competitive analysis of the Services or Touchstone Platform, the development, provision or use of a competing software service or product or any other purpose that is to Touchstone’s detriment or commercial disadvantage; or
      9. upload or transmit any Personal Information to or through the Touchstone Platform. “Personal Information” means (i) government-issued identification numbers of individuals; (ii) financial account number, credit card number, debit card number, or credit report information, with or without any required security code, access code, personal identification number, or password that would permit access to a natural person’s financial account; or (iii) biometric, genetic, health, medical, or medical insurance data pertaining to a natural person.
    3. Responsibility for Users. Customer shall be responsible for any unauthorized creation, collection, receipt, transmission, access, storage, disposal, use, or disclosure of Personal Information uploaded to or transmitted through the Touchstone Platform.
  4. Fees; Payment Terms.
    1. Fees. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time the order is placed and upon renewal, unless a previous renewal price was previously agreed upon per this Agreement. Price increases will only apply to orders placed after such changes or upon renewal. Posted prices do not include taxes or charges.
    2. Payment and Automatic Payment Upon Renewal. Terms of payment are within our sole discretion and payment must be received by us before our acceptance of an order. We accept major credit cards, bank account electronic funds transfers, or invoiced payments for all purchases. Invoice payments are net 10 days from issuance of the invoice. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any. This Agreement shall automatically renew for successive year terms upon which you shall pay the posted price for the Services at the time of renewal and you authorize us to use the credit card information provided to us for payment unless we are notified in writing of a different form of payment prior to the date of renewal.
    3. The Customer may add buildings to the existing account or upgrade their membership plan at any time if the agreement has not expired and the Customer’s account is not past due in the amount that is above the total of the added building(s). The Customer may do so directly through the Touchstone Platform. The per building fee will be consistent with the individual unit cost specified in this agreement. A pro-rated fee will be available for Core and Premier memberships and determined by the Touchstone Platform. The per building fee will be pro-rated on the basis of the 365-day plan, from the date of the Subscription Agreement. For Full-Service memberships, additional buildings will be billed at the full amount regardless of when they are added, furthermore, no pro-rated fees are agreed upon unless by the written terms and approval of Touchstone IQ, LLC. The Customer may request for their Touchstone account representative to add buildings to their account or upgrade their membership plan, at which time permission must in writing with a valid form of payment. All buildings within a Customer’s account will be pursuant to the payment and renewal details specified in this agreement.
  5. Service Levels and Credits; Support Services. Subject to the terms and conditions of this Agreement, Touchstone will ensure the Services reasonably available. The Services include Touchstone’s Customer support services.
  6. Data Security and Network Security/Loss of Service.
    1. Data Protection. Touchstone will, at all times, comply with its obligations under applicable law related to its processing of Customer Data and will implement and maintain all appropriate technical, administrative, physical, and organizational measures required to ensure a level of confidentiality and security appropriate to the risks represented by the processing and the nature of Customer Data. Without limiting the foregoing, Customer acknowledges that the Services are not designed with security and access management for processing Personal Information. Customer shall not, and shall not permit any Authorized User or other Person to, provide any Personal Information to, or Process any Personal Information through, the Services.
    2. Data Backup and Disaster Recovery. Touchstone shall, in accordance with the provisions of this Section 6, maintain or cause to be maintained disaster avoidance procedures designed to safeguard the Customer Data and Customer’s other Confidential Information, Touchstone’s data processing capability, and the availability of the Services, in each case throughout the Term and at all times in connection with its actual or required performance of the Services hereunder.
  7. Intellectual Property Rights.
    1. Services and Touchstone Platform. All right, title and interest in and to the Services and Touchstone Platform, including all Intellectual Property Rights therein, are and will remain with Touchstone and the respective rights holders in any third-party materials.
    2. Customer Data. As between Customer and Touchstone, Customer is and will remain the sole and exclusive owner of all Customer Data.
    3. Limited Consent to Use Customer Data. Any and all data provided by Customer under this Section, shall be treated as Confidential Information by the receiving party, pursuant to the provisions of this Agreement. Except as expressly set forth in this Agreement, Touchstone, will only use, collect, store, process, transmit, and access Customer’s Confidential Information to provide the Services solely for the benefit of Customer.
      1. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach;
      2. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
      3. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Touchstone may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. “Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Touchstone in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. As between Touchstone and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Touchstone.

        Customer acknowledges that Touchstone may compile Aggregated Statistics based on Customer Data and Customer information input into the Touchstone Platform. Customer agrees that Touchstone may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

      4. Feedback. If Customer or any of its employees or contractors or Authorized Users sends or transmits any communications or materials to Touchstone by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Touchstone is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to Touchstone on Customer’s behalf, and on behalf of its employees, contractors and/or Authorized Users, all right, title, and interest in, and Touchstone is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other Intellectual Property Rights contained in the Feedback, for any purpose whatsoever, although Touchstone is not required to use any Feedback.
    4. Effect of Expiration or Termination. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:
      1. Subject to the continuing rights under this Agreement, all rights, licenses, consents and authorizations granted by either party to the other hereunder will immediately terminate other than as required by Customer for the sole purpose of transitioning Customer Data to Customer;
      2. Touchstone shall cease all use of any Customer Data or Customer’s Confidential Information other than as requested by Customer for the purpose of transitioning Customer Data to Customer;
      3. Touchstone shall promptly return or destroy Customer Data provided that Touchstone shall not destroy data before such time as Customer or Touchstone has exported necessary data, and upon Customer request, return or destroy Customer’s Confidential Information;
      4. Customer shall immediately cease all use of any Services or Touchstone Platform other than as necessary for the purpose of transitioning Customer Data and promptly return or destroy Touchstone’s Confidential Information;
      5. Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: Touchstone may only retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course. All information and materials described in this Agreement will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
    5. Surviving Terms. Any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
  8. Confidentiality.
    1. Customer acknowledges that the Services, Touchstone Platform and the attributes of the Touchstone Platform including, without limitation, the design, functionalities, and performance characteristics, and any other non-public verbal or written information that may be supplied by Touchstone to Customer during the term of this Agreement, or obtained through Customer’s use of the Touchstone Platform, are confidential and proprietary property information of Touchstone (“Confidential Information”).
    2. Customer will maintain the confidentiality of all Confidential Information during the term of this Agreement and thereafter, in the same manner that it maintains its own confidential information (but with no less than a reasonable degree of care).
    3. Customer will:
      1. not disclose any Confidential Information or the existence or terms of this Agreement to any third party without the prior written consent of Touchstone;
      2. limit internal access to any Confidential Information only to Customer’s employees who have a need to access the Touchstone Platform or any Confidential Information; and
      3. not use any Confidential Information for any purpose other than for evaluating the performance of the Touchstone Platform in Customer’s business environment.
    4. The obligations set forth in this Section will not apply to Confidential Information that Customer can document: is generally available to the public other than through a breach of this Agreement; was independently developed by Customer without reference to Touchstone’s Confidential Information; or was already lawfully in Customer’s possession at the time of receipt of the Confidential Information from Touchstone.
  9. Representations and Warranties.
    1. Representations and Warranties. Customer represents and warrants to Touchstone that:
      1. it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
      2. it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement;
      3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
      4. when executed, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    2. Additional Customer Representations and Warranties. Customer represents and warrants to Touchstone that Customer owns or otherwise has and will have the necessary rights to the Customer Data or Third Party Data to permit Touchstone to conduct the Services. “Third Party Data” means information, data and other content, in any form or medium that is collected, downloaded or otherwise received, directly or indirectly from a third party for, by or through the Services.
    3. DISCLAIMER OF WARRANTIES. ALL SERVICES AND THE TOUCHSTONE PLATFORM ARE PROVIDED “AS-IS” AND TOUCHSTONE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TOUCHSTONE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TOUCHSTONE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR TOUCHSTONE PLATFORM, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS-IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. IN NO EVENT WILL TOUCHSTONE HAVE ANY LIABILITY FOR THE COMPLETENESS, ACCURACY, TIMELINESS OR RELIABILITY OF ANY THIRD-PARTY DATA.
  10. Indemnification.
    1. Touchstone Indemnification. Touchstone shall defend Customer and its affiliates and their respective officers, directors, and employees and, agents, successors and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by such Customer Indemnitee arising out of or relating to (i) any claim, suit, action or proceeding (each, an “Action”) by a third party (other than an Affiliate of a Customer Indemnitee) to the extent that such Losses arise from any allegation in such Action that the use of the Service (excluding, for avoidance of doubt, Customer Data and Third Party Data) infringes an Intellectual Property Right; (ii) gross negligence or willful misconduct by Touchstone or any of its Representatives on behalf of Touchstone in connection with this Agreement. The foregoing obligation does not apply to any Action or Losses arising out of or relating to Losses arising from any modification of the Services or Touchstone Platform by any party other than authorized representatives of Touchstone. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance Touchstones.
    2. Customer Indemnification. Customer shall indemnify, defend and hold harmless Touchstone and its affiliates, and their respective officers, directors, employees, agents, successors and assigns (each, a “Touchstone Indemnitee”) from and against any and all Losses incurred by such Touchstone Indemnitee in connection with any Action by a third party (other than an Affiliate of a Touchstone Indemnitee) to the extent that such Losses arise out of or relate to (i) any claim that Customer Data is unlawful or actually does or threatens to infringes or misappropriate any intellectual property rights of any third party, provided, however, that Customer shall have no liability or obligation with respect to any Action or Losses to the extent that such Action or Losses arise out of or result from any unauthorized access to or use, disclosure, or other processing of Customer Data by or on behalf of Touchstone, or through or enabled by the Touchstone Systems due to a security breach, or otherwise; (ii) any use of the Services by Customer or any Authorized User that is beyond the scope of or otherwise fails to conform to the express requirements or restrictions of this Agreement or any authorization or approval given in writing by Touchstone to Customer or such Authorized User; or (iii) gross negligence or willful misconduct by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.
  11. Limitations of Liability.
    1. EXCLUSION OF DAMAGES. IN NO EVENT WILL TOUCHSTONE BE LIABLE IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TOUCHSTONE IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO TOUCHSTONE IN THE PRIOR TWELVE (12) MONTHS. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
  12. Force Majeure.
    1. No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any payment obligation), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.
    2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
  13. Miscellaneous.
    1. Further Assurances. Upon a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
    2. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    3. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed, provided, however, that Touchstone may include Customer’s name in its lists of Touchstone’s current or former customers of Touchstone in promotional and marketing materials.
    4. Assignment. Customer may not assign this Agreement without the prior written consent of Touchstone, except to an entity that acquires all or substantially all of its business or assets related to the subject matter of this Agreement, whether through merger, reorganization or otherwise. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    5. No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
    6. Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    7. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Colorado. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Colorado in each case located in the County of Denver, and each party unconditionally and irrevocably submits to the exclusive jurisdiction of, and waives all objections to the laying of venue (including any objection of forum non conveniens) in, such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
    8. WAIVER OF JURY TRIAL. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    9. Equitable Relief. Customer acknowledges and agrees that a breach or threatened breach by Customer of any of its obligations would cause Touchstone irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Touchstone will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. Touchstone shall be awarded attorney fees and costs for any enforcement of this Agreement against Customer.
    10. Entire Agreement. This Agreement, together with any other documents or terms included on the Site, including the Site’s Terms of Use and Privacy Policy incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event that any provision of this Agreement is held void or unenforceable, the entire balance of this Agreement shall remain in full force and effect. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving.