Terms and Conditions of Use
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION5 TO RESOLVE ANY DISPUTES WITH TOVUTI.
1. Services and Use
1.2 Use Restrictions. You will not, and will not permit any third party to: (i) copy, distribute, or disclose any part of the SubscriptionService in any medium, including, without limitation, by any automated or non-automated “scraping”; (ii) use any automated system, including, without limitation, robots, spiders, etc., to access the Subscription Service in a manner that sends more request messages to Tovuti’s servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code for the Subscription Service; (iv) modify, or create derivative works based on, the Subscription Service; (v) rent, lease, distribute, sell, resell, assign, or otherwise transfer any rights to use theSubscription Service, or any portion thereof; (vi) remove any proprietary notices from the Subscription Service; (vii) submit to or through theSubscription Service any content that infringes the Intellectual PropertyRights of any third party or is otherwise unlawful, or that contains malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code;(viii) bypass any measures Tovuti may use to prevent or restrict access to theSubscription Service, including without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of theSubscription Service this Platform, or the Software; or (ix) except to the extent permitted under applicable law, access or use the Subscription Service for the purpose of developing a competing product or service, building a product or service using similar functions, features, or graphics, or conducting benchmarking tests or competitive analysis.
1.3 Login Credentials. In order to access some features of the Tovuti Platform, you may have to create an account. You may never use another’s account without the Company’s permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure.You must notify the Company immediately of any breach of security or unauthorized use of your account. Although the Company will not be liable for your losses caused by any unauthorized use of your account, you may be liable for the losses of the Company or others due to such unauthorized use. Each set of login credentials for the Subscription Service may be used only by a single, individual Administrator. You agree to promptly notify Tovuti of any unauthorized access or use of which You become aware. You will be responsible for all use and misuse of the Subscription Service that occurs under any User’s login credentials, and for any breach of these Terms by any Users.
1.4 Administrators. You will designate one or moreAdministrators. Administrators will have access to view User content and personal information submitted by Users.
1.5 Unilateral Termination. Tovuti retains the right to terminate your account, and any related service to you under its Subscription Services, if you are found in violation of these Terms or any other Tovuti policy. Tovuti may, under its sole discretion, delete, pause, or otherwise terminate your access to the Platform and itsSubscription Services for any reason and with or without notice.
1.6 Updates. Tovuti may, from time to time, update or make changes to the features or functions of the Subscription Service. Tovuti will make reasonable efforts to provide You with advance notice before removing any material feature or functionality of the Subscription Service, unless security, legal, or system performance considerations require an expedited change, in which case Tovuti will provide You with notice as soon as reasonably possible.
1.7 Error Correction. Tovuti shall use commercially reasonable efforts to correct all Errors or to provide a reasonable workaround as soon as is possible using its reasonable efforts during Tovuti’s normal business hours.You will provide such access, information, and support as Tovuti may reasonably require in the process of resolving any error. This paragraph is Your sole and exclusive remedy for Errors. “Error” as used in this Section means any reproducible material failure of the Subscription Service to function in accordance with the Documentation.
1.8 Support Exclusions. Tovuti has no obligation to correct anyErrors or provide any other support to the extent such Errors or need for support was created in whole or in part by: (a) Your acts, omissions, negligence or willful misconduct, including any unauthorized modifications of the Subscription Service or its operating environment; (b) any failure or defect of Your or a third party’s equipment, software, facilities, third-party applications, or internet connectivity; (c) Your use of the SubscriptionService other than in accordance with applicable Documentation provided; or (d)a Force Majeure Event described in Article 6 below.
1.9 Browser Compatibility. To view or access all the features of the Tovuti Platform, your web browser may require additional third-party software, also known as plug-ins, add-ons, extensions, etc. The Company makes no warranties that this third-party software will be compatible with your computer and specifically disclaims any liability for direct or consequential damages that arise when you download, install, or use third-party software to access the content or features of the Tovuti Platform.
1.10 Required Third Party Services. YOUMAY BE ASKED TO ENTER INTO CONTRACTS WITH THOSE THIRD-PARTY SITES OR THEIR OWNERS OR OPERATORS BY VIRTUE OF YOUR CLICKING ON A LINK ON THIS SITE AND BEING TRANSPORTED TO THE EXTERNAL THIRD-PARTY SITE(S). YOU UNDERSTAND AND ACCEPT THE RISK OF PERHAPS BEING REQUIRED TO ENTER INTO SUCH THIRD-PARTY CONTRACTS AS A CONDITION OF YOUR RECEIVING THE SERVICES PROVIDED BY THE Tovuti PLATFORM AND THE LINKED THIRD-PARTY SITES AND THAT THE COMPANY IS NOT RESPONSIBLE FOR YOUR ACTIONS OR INACTIONS IN CONNECTION WITH ANY THIRD-PARTY SITE.
2. Billing and Cancellation
2.1 Payment Methods. To use Tovuti service, you must provide one or more Payment Methods. You authorize us to charge any Payment Method associated with your account in case your primary Payment Method is declined or no longer available for payment of your fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, Tovuti may suspend your access to the service until Tovuti has successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you certain fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details. Please keep your Payment Methods up-to-date.
2.2 Cancellation.You can cancel Tovuti services at any time according to the terms in the Software as a Service Agreement found here: https://www.tovutilms.com/msa
2.3 Payments Nonrefundable. Payments are nonrefundable and there are no refunds or credits for partially used periods. Following any cancellation, however, you will continue to have access to the service through the end of your current billing period.
3. Tovuti Service
3.1. Proprietary Information. All content of our Platform and services is the copyrighted material of Tovuti, or the appropriate contributor, as applicable, and is protected by United States and international copyright, trademark, and other applicable laws. The Platform and service include content, appearances, and design, as well as trademarks, product names, graphics, logos, slogans, colors and designs that are the property of Tovuti, or other third parties, as applicable. Except as set forth in the relevant license agreements, nothing contained in our Platform or services grants any license or other right to any of Tovuti’s intellectual property or any third parties’ intellectual property. The appropriate party reserves complete title and interest to its intellectual property on or associated with the Platform and/or services. You may not copy, modify, distribute, alter, display, reproduce, transfer or republish any of the data of our Platform and/or services without obtaining the written permission of the Platform and/or services, as applicable.
3.2. Limited Grant. Tovuti service and any content viewed through the service are for your personal and non-commercial use only and may not be shared with other individuals. During your Tovuti services, you are granted a limited, non-exclusive, non-transferable right to access the service and view Tovuti content through the service for your own personal use. No right, title, or interest will be transferred to you. You agree not to use the service for personal gain. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data. Notwithstanding the foregoing, the term "Your Data" does not include any analytical or statistical information regarding devices or operating systems used to access or utilize the Services; syncing, wait or down times; aggregated user or transaction data; errors encountered by Users; or the identifiers of where within the Services any technical problems arose. Tovuti (or a third party on Our behalf) may track, collect, and utilize such information to test, evaluate, support, market, or otherwise improve the quality of the Services. Tovuti (or a third party on Our behalf) will never access or use Your Data for support purposes without first obtaining your explicit permission.
3.4 DMCA Notice. If you are a holder (or agent thereof)of copyright or other proprietary rights and you believe that any services infringe upon such proprietary rights, you may submit a notice to Tovuti pursuant to the Digital Millennium Copyright Act by submitting the following information in writing to our copyright agent: (1) The signature (physical or electronic) of the holder (or agent thereof) of a proprietary right that is allegedly infringed; (2) Identification of the work or multiple works alleged to have been infringed; (3) Identification of the material that allegedly infringes or is the subject of infringing activity that is requested to be removed or otherwise modified with information reasonably sufficient to permit Tovuti to locate the material; (4) Contact information for Tovuti to contact you, including an address, telephone number and/or e-mail address; (5) Your statement that you have a good faith belief that use of the material in question is not authorized by the holder of the proprietary rights, its agent or otherwise under law; and (6) Your statement that the information in the notice to Tovuti is accurate and, under penalty of perjury, that you are authorized to act on behalf of the allegedly infringed work. You acknowledge that your failure to comply fully with these requirements may result in an invalid notice under the Digital Millennium Copyright Act.
3.5 Quality of Streaming. The quality of the display of Tovuti content may vary from device to device, and may be affected by a variety of factors, such as your location, the bandwidth available through and/or speed of your Internet connection, and the functionality of the device you are using. You are responsible for all Internet access charges. Please check with your Internet provider for information on possible Internet data usage charges. Tovuti makes no representations or warranties about the quality of your viewing experience on your display.
3.6 Protecting Personal Information. Never give out personal information or access to your documents on Tovuti. Protecting your personal information and safeguarding Tovuti links is your responsibility.
3.7 Discounts and Coupons. Promotions and discounts are not transferable and are limited one (1) per user. There is no cash value and promotion, and discounts may not be combined or applied to past orders.
3.8 Implementation of the Platform. You or, if applicable, your employer or independent contractor, may request or authorize the Company to access your computer or mobile device on your behalf in order to implement the Tovuti Platform or upload or store your information thereon and, in such event, you agree and acknowledge that the Company is authorized and directed to accept these Terms and Conditions on your behalf (including, without limitation, by affirmatively clicking through any prompts relating to these Terms andConditions or the Tovuti Platform). You agree that these Terms and Conditions are binding on you, and you shall comply fully with them, even if the Company accepts these Terms and Conditions, accesses your computer or mobile device on your behalf in order to implement the Tovuti Platform or upload or store your information thereon, or affirmatively clicks-through any prompts relating to these Terms and Conditions or the Tovuti Platform on your behalf.
4. Disclaimers of Warranties andLimitations on Liability
4.1 TOVUTI SERVICE AND ALL CONTENT ASSOCIATED THEREWITH, OR ANY OTHER FEATURES OR FUNCTIONALITIES ASSOCIATED WITH Tovuti SERVICE, ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. TOVUTI DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. TOVUTI DOES NOT GUARANTEE ANY SPECIFIC LEARNING OUTCOMES FROM VIEWING THE VIDEOS.
4.2 TOTHE EXTENT PERMISSIBLE UNDER APPLICABLE LAWS, IN NO EVENT WILL TOVUTI, ITS EMPLOYEES, OR ANY OF ITS AFFILIATES BE LIABLE (JOINTLY OR SEVERALLY) TO YOU FOR PERSONAL INJURY OR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER.
4.3 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE,SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
4.4 INNO EVENT WILL THE AGGREGATE LIABILITY OF TOVUTI ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER IN THE TWELVE (12)MONTHS PRECEDING THE FIRST INCIDENT FROM WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS. TOVUTI IS NOT RESPONSIBLE FOR ANY INTERRUPTION OF SERVICE OR PLATFORM DOWNTIME.
4.7 User Content.You are solely responsible for all User content and personal information, including, without limitation, the accuracy, quality, integrity, reliability, appropriateness, and legality of the content and information. Certain types of information within the content may be subject to specific regulations (e.g.,regulations regarding personally identifiable information, protected health information, etc.). You, not Tovuti, is responsible for compliance with all such regulations. Without limiting the foregoing, You represent and warrant that, if applicable, You will provide any required notice to, and obtain any required consent from, individuals, including Users, related to the collection, use, or viewing of User’s content and personal information. Tovuti may, but has no obligation to, screen for objectionable User content and personal information, and may provide You with analytics or summaries of responses made by Users or other content. However, you bear the responsibility for determining the legal and human resource-related implications of any responses. For example, if a User raises the issue that he or she has a disability, You will be responsible for taking any action required in response.
Tovuti may disclose this content as required by applicable law or by proper legal or governmental authority. Tovuti will give You prompt notice of any such legal or governmental demand and reasonably cooperate with You in any effort to seek a protective order or otherwise to contest such required disclosure, at Your expense.
In order to avoid any misunderstandings or disputes relating to the Tovuti Platform and the ownership of all related intellectual property rights, please do not send the Company any unsolicited ideas, including but not limited to ideas for features, product improvements, promotions, products, processes, code, marketing plans, or product names. However, the Company welcomes your feedback regarding the Services and its business. If you want to send feed back to the Company, please use the “Support” page at http://www.tovutilms.com/contact
5. Dispute Resolution
5.2 Procedure on Dispute. If you elect to seek arbitration or file a small claim court action, you must first send to Tovuti, by certified mail, a written Notice of your claim (Notice). The Notice to Tovuti must be addressed to: Tovuti, 775 S. Rivershore Lane, Suite 200, Eagle, Idaho 83616,USA (Notice Address). If Tovuti initiates arbitration, it will send a writtenNotice to the email address used for your account. A Notice, whether sent by you or by Tovuti, must: (1) Describe the nature and basis of the claim or dispute; and (2) Set forth the specific relief sought (Demand). If Tovuti and you do not reach an agreement to resolve the claim within 60 days after theNotice is received, you or Tovuti may commence an arbitration proceeding or file a claim in small claims court.
5.3 Governing Rules. The arbitration will be governed by theCommercial Arbitration Rules (AAA Rules) of the American ArbitrationAssociation (AAA), as modified by this Agreement, and will be administered by the AAA. Unless Tovuti and you agree otherwise, any arbitration hearings will take place in Ada County in the state of Idaho, U.S.A. The arbitrator’s award will be final and binding on all parties, except: (1) For judicial review expressly permitted by law; or (2) If the arbitrator’s award includes an award of injunctive relief against a party, in which case that party will have the right to seek judicial review of the injunctive relief in a court of competent jurisdiction that will not be bound by the arbitrator’s application or conclusions of law. Arbitration will occur before one (1) arbitrator selected under the AAA rules. THIS PROVISION DOES NOT APPLY TO INJUNCIVE RELIEF SOUGHT BY TOVUTI.
5.4.YOUAND TOVUTI AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR ORITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tovuti agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void.
6.2 Unsolicited Materials. Tovuti does not accept, open, view, or otherwise interact with unsolicited materials or ideas for Tovuti content and is not responsible for the similarity of any of its content to materials or ideas transmitted to Tovuti. Should you send any unsolicited materials or ideas, you do so with the understanding that no additional consideration of any sort will be provided to you, and you are waiving any claim against Tovuti and its affiliates regarding the use of such materials and ideas, even if material or an idea is used that is substantially similar to the material or idea you sent.
6.3 Termination. You agree that Tovuti may, in our sole discretion, terminate or suspend your access to all or any part of the services with or without notice and for any reason. Any suspected fraudulent, abusive or illegal activity may constitute grounds for terminating your relationship and may be referred to appropriate law enforcement authorities.
6.4 Feedback. Tovuti is free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (Feedback), without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving Tovuti service. In addition, you agree not to enforce any “moral rights” in and to the Feedback, to the extent permitted by applicable law.
6.7 Communication Preference.Tovuti will send you information relating to your account (e.g., payment authorizations, invoices, changes in password or Payment Method, confirmation messages, notices) in electronic form only, via email to your email address provided during registration. You agree that any notices, agreements, disclosures or other communications that Tovuti send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
6.8 Force Majeure Event. “Force Majeure Event” means any act or event that (a) prevents a Party (the “Nonperforming Party”) from performing its obligations or satisfying a condition to the other Party’s (the “PerformingParty”) obligations under these Terms, (b) is beyond the reasonable control of and not the fault of the Nonperforming Party, and (c) the Nonperforming Party has not, through commercially reasonable efforts, been able to avoid or overcome. “Force Majeure Event” does not include economic hardship, changes in market conditions, and insufficiency of funds; including without limitation, strikes, work stoppages, epidemics, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer(software and hardware) services.
6.9 U.S. Government Restricted Rights;Export. Any software provided hereunder is a “commercial item,” as defined at 48 C.F.R. § 2.101 (OCT 1995),and more specifically is “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. § 12.212(SEPT 1995). Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1through 227.7202-4 (JUNE 1995), such software is provided to U.S. GovernmentEnd Users only as a commercial end item and with only those rights as are granted to all other end users pursuant to the terms and conditions herein. IfCustomer exports any of the software, it must comply fully with all relevant export laws and regulations to ensure that the software is not exported, directly or indirectly, in violation of applicable export control laws.Customer shall not knowingly, directly or indirectly, without prior written consent, general or specific license, if required, of the Office of ExportAdministration of the U.S. Department of Commerce, export or transmit any of the software to any country to which such transmission is restricted by applicable regulations or statutes.
6.10 Relationship; Third Party Beneficiaries. These Terms do not create any partnership, franchise, joint venture, agency, or fiduciary or employment relationship. Neither Party may bind the other Party or act in a manner which expresses or implies a relationship other than that of independent contractor.
6.11 NoAssignment.These Terms and Conditions, and any rights and licenses granted hereunder, may not be transferred or assigned by You, but may be assigned by the Company without restriction.
7. Contact Us
775S. Rivershore Lane, Suite 200