By using Tobi and our Services, represent, understand and agree: (1) to accept, comply with, and be bound by these Terms, (2) that you have the right, authority and capacity to abide by these Terms, and (3) that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any applicable jurisdiction in which Tobi conducts business.
We reserve the right to update, modify or otherwise alter these Terms and notices under which our Services are offered, including, but not limited to, any charges associated with the use of the Tobi services and such updates, modifications or alterations shall be deemed retroactive unless otherwise noted as of your original date of agreement to these Terms. You are responsible for regularly reviewing these terms and conditions. Any access or use of the Services after the changes go into effect shall constitute your agreement to the revised Terms.
The Services are solely for your personal and noncommercial use, unless otherwise authorized by Tobi in writing. You may not use the Services for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of Tobi or others. Notwithstanding any other rights or restrictions in these Terms, you may not use the Services to: (a) transmit via or through the Services any information, data, text, images, files, links, or software except in connection with your authorized use of the Services or otherwise in response to specific requests for information by us; (b) introduce to our websites or mobile applications or otherwise in connection with the Services any computer or website viruses, worms, Trojan horses and/or harmful code; (c) obtain unauthorized access to any computer system; (d) impersonate any other person, including but not limited to, a registered user of the Services or an employee of Tobi; (e) invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity; (f) misrepresent the identity of a user or use a false e-mail address; (g) tamper with or obtain access to our websites or mobile applications or any component of any of them; (h) conduct fraudulent activities; or (i) collect or harvest information regarding other users of the Services for any reason whatsoever, including, without limitation, for sending such users unsolicited commercial e-mail.
You are responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us in the event of any unauthorized use of your account or other breach of security.
3. Additional Terms and Conditions. Additional terms and conditions may apply to specific portions of the Services or products or services we offer or your membership, which terms are made part of these Terms. You agree to abide by such other terms and conditions. If there is a conflict between these Terms and the terms posted or emailed for, or applicable to, a specific portion of the Services or products or services we offer or your membership, the latter terms shall control with respect to your use of that specific portion, those specific products or specific services or your membership.
The following terms and conditions apply to the applicable features in connection with the Services:
(a) Member Postings. We may provide Members with the ability to post messages on our websites or mobile applications or otherwise in connection with the Services. You are solely responsible for your account, password, profile, messages, notes, text, information, opinions, ideas and any other content you post, upload, submit, publish, or display (hereinafter "post") or transmit to or share with other Members (collectively, the "Member Content"). Any Member Content that is posted will not be treated as confidential. Tobi has the right, but not the obligation, to monitor and decline, edit, or remove (without notice) all or any portion of any Member Content for any reason or no reason. If Tobi chooses at any time, in its sole discretion, to monitor Member Content, it still has no responsibility for the Member Content or for the conduct of the Member posting Member Content or to edit or remove any Member Content, except in compliance with Section 12 below. If you are involved in a dispute with one or more Members of Tobi, you release Tobi (including its officers, directors, affiliates, and employees) from claims, demands, and damages (actual and consequential) of every kind arising out of or in any way connected to any dispute.
When you post or otherwise make available any Member Content for inclusion on any part of our websites or mobile applications or otherwise in connection with the Services, you are hereby granting Tobi an irrevocable, perpetual, non-exclusive, transferable, royalty-free, worldwide license (with the right to sublicense) to use, copy, transmit, reproduce, adapt, modify, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part), create collective works and distribute such Member Content for any purpose, commercial, advertising, or otherwise, on or in connection with the Services or the promotion thereof, or for Tobi's (and its successors' and affiliates') business including without limitation for promoting and redistributing part or all of our websites, mobile applications or the Services (and derivative works thereof) in any media or distribution method (now known or later developed), to prepare derivative works of, or incorporate into other works, such Member Content, and to grant and authorize sublicenses of the foregoing. You represent and warrant that you will not provide any Member Content to which you do not have the full right to grant the license. You waive all moral rights in the Member Content which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant to Tobi that Tobi is free to exercise its rights to and/or implement your Member Content if it so desires, without obtaining permission or license from any third party and without reference to you or any other person.
All Member Content is the responsibility of the Member, not Tobi. In addition to the restrictions set forth in Section 1, you agree not to use the Services to post content or other communications that contain (i) political, libelous or otherwise unlawful, abusive, or obscene material; (ii) advertisements of any kind; (iii) personal information (such as social security numbers, addresses, phone numbers, etc.); (iv) confidential information of Tobi, its parent, subsidiaries, or affiliates; (v) any chain letters, pyramid schemes, spam, contests, or promotional material; (vi) messages that offer unauthorized downloads of any copyrighted or private information; and (vii) information similar or related to the foregoing.
UNDER NO CIRCUMSTANCE SHALL ANY DISCLOSURE OF ANY MEMBER CONTENT TO Tobi BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING ANY MEMBER CONTENT TO OR THROUGH Tobi, YOU REPRESENT AND WARRANT THAT ALL YOUR MEMBER CONTENT WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT, TRADEMARK, PRIVACY, OR OTHER PERSONAL OR PROPRIETARY RIGHTS. YOU REPRESENT AND WARRANT THAT NO MEMBER CONTENT WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE, OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLELY RESPONSIBLE FOR YOUR MEMBER CONTENT. YOU REPRESENT AND WARRANT TO Tobi THAT Tobi IS FREE TO USE THE MEMBER CONTENT, AND IMPLEMENT ANY SUGGESTIONS CONTAINED THEREIN, IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY Tobi, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY AND WITHOUT ANY COMPENSATION TO YOU.
4. Accuracy of Content; Limitations on Quantity. Excluding Member Content, the information we provide in connection with the Services is believed to be complete and reliable; however, the information may contain typographical errors, pricing errors, and other errors or inaccuracies. We will use reasonable efforts to correct errors as soon as practicable. We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies, or omission; and (iii) make changes to prices, content, promotion offers, product descriptions or specifications, or other information without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped, or received, except as prohibited by law ). We also reserve the right to limit quantities (including after an order has been submitted and/or acknowledged) and to revise, suspend, or terminate an event, or promotion at any time without notice (including after an order has been submitted and/or acknowledged). The offer of any products, services and/or experiences at a particular time does not guarantee that the products, services and/or experiences will be available. If a product, service and/or experience offered and sold by us is not as described, except as limited by applicable law in your jurisdiction, including, but not limited to, jurisdictions such as the State of New Jersey, your sole remedy is to return it subject to the terms set forth herein.
5. Proprietary Rights. Excluding Member Content, you acknowledge and agree that the content, software, materials and other components (including but not limited to our logos, graphics, videos, music, button icons, and page headers) used in connection with the Services are the property of Tobi.com LLC. and/or its affiliates, subsidiaries, or licensors and are protected by copyrights, trademarks, service marks, or other proprietary rights and laws. You agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, or create derivative works from content or materials available on our websites or mobile applications or otherwise in connection with the Services. Reference to any products, services or other information by trade name, trademark, manufacturer, or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by Tobi. All trademarks not owned by Tobi that appear on or in connection with the Services are the property of their respective owners. Use of the content and materials for any purpose not expressly permitted in these Terms is prohibited.
6. Links to Third-Party Websites; No Implied Endorsements. Our websites and mobile applications may contain links to other websites on the Internet. You acknowledge that we have no control over such websites and that we are not responsible for the accuracy, content, legality, or any other aspect of any linked website. In no event shall any reference to any third party, third party website, or third party product or service be construed as an approval or endorsement by us of that third party, third party website, or of any product or service provided by a third party.
7. Indemnification. By using the Services, except as limited by applicable law in your jurisdiction, including, but not limited to, jurisdictions such as the State of New Jersey, you agree to indemnify, defend and hold harmless Tobi, its third party vendors, manufacturers, agents, distributors, corporate affiliates, officers, directors and employees form and against any and al claims, actions, demands, liabilities, costs and expenses, including without limitation, reasonable attorney’s fees, (a) made by any third party due to or arising out of any Member Content posted or otherwise provided by you to the Services, Tobi and/or its third party licensors, licensees or advertisers; (b) a dispute with a Member; (c) your violation of nay applicable law or the rights of a third party; and/or (d) resulting from your breach of any provision of these Terms, any warranty you provide herein, or otherwise arising in any way out of your use of the Services or purchase of the products or services therefrom. Tobi reserves the right to take exclusive control and defense of any such claim otherwise subject to indemnification by you, in which case you will fully cooperate with Tobi in asserting any available defenses.
8. Disclaimers. Except as may be limited by applicable law in your jurisdiction, including, but not limited to, jurisdictions such as the State of New Jersey, Tobi assumes no liability or responsibility for any (a) errors, mistakes or inaccuracies of the content, products, information, services and materials set forth on or made available through the services, (b) personal injury or property damage, of any nature whatsoever, resulting from your access to and use of the services, products or any third party website(s) or products, (c) any unauthorized access to or use of secure servers and/or any and all personal information stored therein, (d) any interruption or cessation of transmission to or from the services or third party website(s), (e) any bugs, viruses, Trojan horses, or the like, which may be transmitted to or through the services or any their party website(s) by Tobi or any third party, and/or (f) any errors or omissions in the services or any content, Member Content or other communications, information and materials, including by not limited to third party website(s), or for any loss or damage of any kind incurred as a result of the use of any of the foregoing.
EXCEPT AS MAY BE LIMITED BY APPLICABLE LAWS IN YOUR APPLICABLE JURISDICTION, INCLUDING, BUT NOT LIMITED TO, JURISDICTIONS SUCH AS THE STATE OF NEW JERSEY, YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF AND RELIANCE UPON ANY AND ALL OF THE SERVICES, PRODUCTS, TEXT, MERCHANDISE, SERVICES AND/OR CONTENT IS AT YOUR SOLE RISK AND IS MADE AVAILABLE ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
ALL PRODUCTS SOLD BY Tobi ARE SUBJECT TO ANY APPLICABLE WARRANTIES AND REPRESENTATIONS OF THEIR RESPECTIVE MANUFACTURERS. ACCORDINGLY, TOBI MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY PRODUCT SOLD, EXCEPT AS MAY EXPRESSLY BE STATED HEREIN OR AS LIMITED BY APPLICABLE LAWS IN YOUR JURISDICTION, INCLUDING, BUT NOT LIMITED TO, JURISDICTIONS SUCH AS THE STATE OF NEW JERSEY.
9. Limitation of Liability. IN NO EVENT SHALL Tobi, ITS PARENT, SUBSIDIARIES, DIVISIONS, OR AFFILIATES BE LIABLE TO ANY USER OF THE SERVICES OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR LOSS OF USE) ARISING OUT OR CONNECTED IN ANY WAY WITH THE SERVICES CONTRIBUTIONS, MATERIALS, CONTENT, MEMBER CONTENT, PRODUCTS, SERVICES, SOFTWARE, OR PROVISION OF OR FAILURE TO PROVIDE SERVICES, MADE AVAILABLE OR OBTAINED THROUGH THE SERVICES OR ANY INFORMATION CONTAINED THEREON OR STORED OR MAINTAINED BY Tobi OR ANY THIRD PARTY WEBSITE(S), WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF Tobi HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THE TOTAL LIABILITY OF Tobi, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON OR IN CONNECTION WITH THE SERVICES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, EXCEED $80.00 USD IN THE AGGREGATE IN CONNECTION WITH THE APPLICABLE EVENT, OR PROMOTION GIVING RISE TO SUCH LIABILITY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL Tobi, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON OR IN CONNECTION WITH THE SERVICES HAVE ANY LIABILITY FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR OTHERWISE INCURRED IN CONNECTION WITH THE LOSS OF ANY DATA OR INFORMATION CONTAINED IN YOUR ACCOUNT OR OTHERWISE STORED BY OR ON BEHALF OF Tobi.
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise, products, services and experiences available through the Services. Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages, in such states some or all of the above disclaimers or exclusions may not apply and liability will be limited to the fullest extent permitted by applicable law, including, but not limited to, the laws in the State of New Jersey.
10. Risk of Loss. The items purchased through the Services are shipped by a third party carrier pursuant to a shipment contract. As a result, risk of loss and title for such items pass to you upon our delivery to the carrier.
11. Unavailability of Services; Termination; Fraud. We may alter, suspend, or discontinue these Services in whole or in part, at any time and for any reason, without notice or cost. In addition, the Services may be temporarily unavailable from time to time for maintenance or other reasons. We may, in our sole discretion, terminate or suspend your use or access to all or part of the Services or your account or membership, for any reason, including without limitation, breach of these Terms. If at any time, we notify you that your access to and/or use of the Services or your account is terminated, you must cease and desist from all such access and/or use immediately. We reserve the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud is suspected. In the event these Terms or your membership or account are terminated, the restrictions regarding intellectual property matters, the representations and warranties, indemnities, and limitations of liabilities set forth herein (as well as any other of your obligations which by their nature should survive termination) will survive termination.
12. Copyright Infringement; Notice and Take Down Procedures. All materials on the Services, as well as the organization and layout of the Services, are owned and copyrighted or otherwise licensed by Tobi or its third party vendors. No reproduction, distribution or transmission of the copyrighted materials on the Services is permitted without the written authorization of Tobi. Any rights not expressly granted herein are reserved.
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that any materials on our websites or mobile applications infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative, and must: (a) identify the allegedly infringing materials; (b) indicate where on the websites or mobile applications the infringing materials are located; (c) provide your name and contact information; (d) state that you have a good faith belief that the materials are infringing; (e) state that the information in your claim is accurate; and (f) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. If you believe that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for further information. Our contact for copyright issues relating to the Services (including the notices and counter-notices) is: Legal@Tobi. Please note that there are penalties for false claims under the DMCA.
13. Governing Law and Venue. Your use of the Services shall be governed in all respects by the laws of the state of California, U.S.A., without regard to conflicts of law principles, and not by the 1980 U.N. Convention on contracts for the international sale of goods, as if this Agreement were a contract wholly entered into and performed within the State of California. You hereby consent to the exclusive jurisdiction and venue of any legal proceeding directly or indirectly arising out of or relating to the Services (including but not limited to the purchase of Tobi products) the state or federal courts located in the County of San Francisco, California, U.S.A.. Access to or use of the Services is unauthorized in any jurisdiction that does not give effect to all of the provisions of these Terms, including, without limitation, this paragraph. Except as may be limited by applicable laws in your jurisdiction, including, but not limited to, jurisdictions such as the State of New Jersey, any cause of action or claim you may have with respect to the Services (including but not limited to the purchase of Tobi products) must be commenced within one (1) year after the claim or cause of action arises.
Tobi’s failure to insist upon or enforce strict performance of any provision of these terms and conditions shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any of these terms and conditions. Tobi may assign its rights and duties under this Agreement to any party at any time without notice to you.
Last Updated: May 25, 2018
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