Provided you purchased it within the last 14 days, in the worst case you can exchange it and pay $40 and get an iPhone.
If you can justify the problems and they agree, you may be able to get a store credit and not pay the restocking fee. That's what they offered me, but I rather like the Touch and picked up another.
Shortly afterwards, I started thinking about an iPhone instead, then 1.1.1 came out and I decided I made the correct choice for the time being.