1. APPLICABILITY AND ACCEPTANCE OF THESE TERMS
This Terms of Service Agreement (“Agreement” or “Terms”) is a legal agreement between you and Tohla.com (“Tohla”, “we”, or “us”). By accessing or using the Tohla website, currently located at tohla.com (the “Site”), or any apps or other services offered or operated by Tohla (collectively, the “Services”), or by checking a box or clicking a button signifying your acceptance of these Terms, you acknowledge that you have read, understood and agree to be bound by these Terms. If you do not agree to these Terms, do not access or use any of the Services.
When using the Services, you will be subject to Tohla’s Guidelines found here, and any additional guidelines, policies or rules posted on the Services or otherwise made available or disclosed to you (collectively, the “Rules”). All such guidelines, policies and rules are incorporated into these Terms by this reference.
2. USE OF THE SERVICES BY MINORS AND BANNED PERSONS
The Services are not available to, and shall not be accessed or used by, persons under the age of 18. If you are between the ages of 18 and the age of legal majority in your jurisdiction of residence, you may only use the Services with the permission and under the supervision of a parent or legal guardian who agrees to be bound by these Terms. BY ACCESSING OR USING THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND THAT YOUR PARENT OR LEGAL GUARDIAN AGREES TO BE BOUND BY THESE TERMS IF YOU ARE BETWEEN 18 AND THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION OF RESIDENCE.
The Services are also not available to, and shall not be accessed or used by, any users previously blocked or otherwise banned from accessing or using the Services.
3. LIMITED LICENSE TO USE THE SERVICES
Subject to your compliance with these Terms and all other applicable Rules including but not limited to the Tohla Guidelines, you are granted a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to access and use the Services solely for your personal and non-commercial use. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Tohla or its licensors, except for licenses and rights expressly granted in these Terms. Tohla can terminate this license as provided in Section 9 below.
You are solely responsible for compliance with any and all laws, rules, and regulations that may apply to your use of the Services. You agree that you will comply with these Terms and the Guidelines and will not, and will not assist or enable others to:
Neither the above restrictions, nor the Guidelines, the Rules, or anything else in the Terms, shall be construed to create any rights enforceable by users, whether as third-party beneficiaries or otherwise. Tohla has the right, but not the obligation, to enforce any of the foregoing.
4. USER CONTENT AND CONDUCT; USER DISPUTES
The Services provide communication channels designed to enable users to communicate with other users. Tohla does not exert any control over the individuals you interact with. Tohla has no obligation to monitor these communication channels but may, in its discretion, do so in connection with providing the Services. Tohla may also terminate, suspend or ban your access to and use of the Services at any time, without notice, for any reason in its sole discretion. You acknowledge and agree that any user content, including without limitation text chats and video chats, is not created, endorsed or controlled by Tohla. Tohla will not under any circumstances be liable for any user content or activity within the Services. Tohla is not responsible for information or content that you choose to share within or through the Services nor is Tohla responsible for the content or actions of other users of the Services. Tohla is not responsible for maintaining copies of any information or communications you choose to submit to or through the Services.
You are solely responsible for your interaction with other users of the Services and other parties that you come in contact with through the Services. To the fullest extent permitted by applicable law, Tohla hereby disclaims any and all liability to you or any third party relating to your use of the Services. You acknowledge and agree that Tohla does not have any special relationship with you as an end user, and as such, Tohla does not owe you any duty to protect you from the acts of other users or other third parties.
Parental control protections (such as computer hardware, software, or filtering services) are commercially available and may assist you in limiting minors’ access to materials that may be harmful to or inappropriate for minors. There are a number of websites that provide information about such parental control protections, including but not limited to https://www.connectsafely.org/controls/.
5. ASSUMPTION OF RISK AND DISCLAIMER OF WARRANTIES
Assumption of Risk. You acknowledge and agree that use of the Services, including your interactions with other users, may carry inherent risk and by accessing and using the Services, you choose to assume those risks voluntarily. To the fullest extent permitted by applicable law, you assume full responsibility for your use of the Services, including your interactions with other users.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU KNOWINGLY, VOLUNTARILY AND FREELY ASSUME ALL RISKS, BOTH KNOWN AND UNKNOWN, OF ACCESSING OR USING THE SERVICES, EVEN IF THOSE RISKS ARISE FROM THE NEGLIGENCE OR CARELESSNESS OF TOHLA, THIRD-PARTIES INCLUDING OTHER USERS OF THE SERVICES, OR DEFECTS IN THE SERVICES.
No Warranties. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, TOHLA PROVIDES THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOHLA AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF TOHLA IS ADVISED OF SUCH PURPOSE), AND IMPLIED WARRANTIES ARISING FROM A PARTICULAR COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, NEITHER TOHLA NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR ANY OF ITS OR THEIR OFFICERS, DIRECTORS, LICENSORS, EMPLOYEES OR REPRESENTATIVES REPRESENT OR WARRANT (I) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, TRUTHFUL, COMPLETE, RELIABLE, OR ERROR FREE, (II) THAT THE SERVICES WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE, OR SECURE, (III) THAT ANY ERRORS OR DEFECTS WILL BE CORRECTED, OR THAT THE SERVICES WILL BE FREE FROM VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL PROPERTIES, (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES, (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR (VI) THAT ANY CONTENT PROVIDED VIA THE SERVICES IS NON-INFRINGING. NO INFORMATION OR ADVICE PROVIDED THROUGH THE SERVICES BY TOHLA OR BY TOHLA’S EMPLOYEES OR AGENTS SHALL CREATE ANY WARRANTY. some jurisdictions do not allow the exclusion of certain warranties, so some of the above limitations and exclusions may not apply to you.
Other Users of the Services. TOHLA HAS NO CONTROL OVER AND DOES NOT MAKE, AND HEREBY EXPRESSLY DISCLAIMS, ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE CONDUCT, ACTS OR OMISSIONS OF OTHER USERS OF THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT YOU SHALL LOOK SOLELY TO THE OTHER USERS, AND NOT TOHLA, WITH RESPECT TO ANY CLAIMS OR CAUSES OF ACTION ARISING FROM OR RELATING TO THE ACTIONS OR CONDUCT OF OTHER USERS OF THE SERVICES. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL TOHLA BE RESPONSIBLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM ANY ACTION, CONDUCT OR OMISSION OF ANY OTHER USER OF THE SERVICES.
6. LIMITATION OF LIABILITY
Limitations on Tohla’s Liability. YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICES REMAINS WITH YOU. NEITHER TOHLA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (I) THESE TERMS, (II) THE USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, THE SERVICES, WHETHER PROVIDED BY TOHLA OR BY THIRD PARTIES, (III) THE USE OF OR INABILITY TO USE THE SERVICES FOR ANY REASON, OR (IV) YOUR COMMUNICATIONS, INTERACTIONS OR DEALINGS WITH, OR THE CONDUCT OF, OTHER USERS OF THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TOHLA 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.
The limitations of damages set forth above are fundamental elements of the basis of the bargain between Tohla and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the above limitations and exclusions may not apply to you.
No Liability for Non-Tohla Actions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TOHLA BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT, ACTS OR OMISSIONS OF YOU OR ANY OTHER THIRD PARTY, INCLUDING OTHER USERS OF THE SERVICES, IN CONNECTION WITH THE USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION, BODILY INJURY, EMOTIONAL DISTRESS, AND/OR ANY OTHER DAMAGES. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so some of the above limitations and exclusions may not apply to you.
7. INDEMNIFICATION
To the maximum extent permitted by applicable law, you agree to release, defend (at Tohla’s option), indemnify, and hold Tohla and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation, reasonable attorney and accounting fees, arising out of or in any way connected with (i) your breach or alleged breach of these Terms or any other applicable policies of Tohla (including but not limited to the Guidelines or Rules), (ii) your use of the Services other than as authorized by these Terms, the Guidelines or Rules, (iii) your interactions with other users of the Services, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your interactions, (iv) any information or materials you submit through the Services, or (v) your violation, or alleged violation, of any laws, regulations or third-party rights (all of the foregoing, “Claims”). Tohla may assume exclusive control of any defense of any Claims (which shall not excuse your obligation to indemnify Tohla), and you agree to fully cooperate with Tohla in such event. You shall not settle any Claims without prior written consent from Tohla.
8. DISPUTE RESOLUTION: AGREEMENT TO ARBITRARY
Please read the following Section 8 carefully, as they affect your rights.
8.1 Agreement to Arbitrate and Timing of Claims
YOU AND TOHLA MUTUALLY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THESE TERMS OR THE APPLICABILITY, BREACH, TERMINATION, VALIDITY, ENFORCEMENT OR INTERPRETATION THEREOF OR TO THE ACCESS TO AND USE OF THE SERVICES, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (COLLECTIVELY, “DISPUTE”) WILL BE SETTLED BY BINDING INDIVIDUAL ARBITRATION (THE “ARBITRATION AGREEMENT”). ARBITRATION MEANS THAT THE DISPUTE WILL BE RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. THE ARBITRATOR WILL DECIDE ALL THRESHOLD QUESTIONS, INCLUDING BUT NOT LIMITED TO ISSUES RELATING TO THE ENFORCEABILITY, REVOCABILITY, OR VALIDITY OF THIS ARBITRATION AGREEMENT AND WHETHER EITHER PARTY LACKS STANDING TO ASSERT HIS/HER/ITS CLAIM(S).
YOU ACKNOWLEDGE AND AGREE THAT, REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
8.2 Exceptions to the Arbitration Agreement
Notwithstanding the Arbitration Agreement, you and Tohla each agree that (i) any dispute that may be brought in small claims court may be instituted in a small claims court of competent jurisdiction, (ii) either you or Tohla may seek injunctive relief in any court of competent jurisdiction to enjoin infringement or other misuse of either party’s intellectual property rights (including without limitation, violation of any data use restrictions contained in these Terms or other misuse of the Services) or based on other exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
8.3 Pre-Arbitration Notification and Good Faith Negotiation
Prior to initiating an arbitration, you agree to provide Tohla with notice of the dispute, which notice shall include a brief, written description of the dispute, the relief requested and your contact information. You must send any such notice to Tohla by email at [email protected]. The parties agree to use their best efforts to resolve any Dispute that is subject to the notification required under this section through informal negotiation, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration in accordance with these Terms. If, after a good faith effort to negotiate, one of us feels the Dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.
8.4 No Class Actions or Representative Proceedings
YOU AND TOHLA ACKNOWLEDGE AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY LAW, WE ARE EACH WAIVING THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION LAWSUIT, CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING AS TO ALL DISPUTES. YOU AND TOHLA AGREE THAT THERE WILL BE NO CLASS ARBITRATION OR ARBITRATION IN WHICH AN INDIVIDUAL ATTEMPTS TO RESOLVE A DISPUTE AS A REPRESENTATIVE OF ANOTHER INDIVIDUAL OR GROUP OF INDIVIDUALS. FURTHER, YOU AND TOHLA AGREE THAT A DISPUTE CANNOT BE BROUGHT AS A CLASS OR OTHER TYPE OF REPRESENTATIVE ACTION, WHETHER WITHIN OR OUTSIDE OF ARBITRATION, OR ON BEHALF OF ANY OTHER INDIVIDUAL OR GROUP OF INDIVIDUALS.
9. TERM, TERMINATION, AND SURVIVAL
This Agreement will remain in full force and effect while you use the Services in accordance with these Terms and any additional applicable Rules. Tohla may terminate this Agreement at any time without notice if we believe that you have breached this Agreement or the Guidelines, including but not limited to, by using the Services for non-personal use, engaging in prohibited activities, and any breach of your representations and warranties. All provisions of this Agreement which by their nature should survive termination shall survive termination, including without limitation, ownership provisions, warranty disclaimers, assumption of risk agreement, release of claims, indemnity, limitations of liability, and dispute resolution.
10. GENERAL
11.1 Privacy Notice and Law Enforcement Inquiries
Tohla maintains a Privacy Policy describing the collection, retention, and use of information related to your use of the Services. You can find the Privacy Policy, which is incorporated by reference into this Agreement, here.
Tohla’s obligations are subject to existing laws and legal process. Therefore, Tohla complies with valid legal process (e.g., court order, search warrant, subpoena or similar legal process) issued in compliance with applicable law from law enforcement agencies. Law enforcement may submit requests for information and legal process to Tohla’s official email address:
11.2 Feedback
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Services (collectively, “Feedback”). You may submit Feedback by emailing us at [email protected] in the subject line. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
11.3 Third-Party Links and Services
The Services may contain links to other websites, businesses, resources and advertisers, and other sites may link to the Services. Clicking on a link will redirect you away from the Services to a third-party site or service. Tohla is not responsible for examining or evaluating, and does not warrant the goods, services or offerings of any third party or the content of their websites or advertisements. Consequently, Tohla does not assume any liability or responsibility for the accuracy, actions, products, services, practices, availability or content of such third parties. You should direct any concerns regarding other sites and services to their operators.
11.4 Assignment
You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Tohla’s prior written consent. Tohla may, without restriction, assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion.
11.5 Changes to the Services or the Terms
Tohla reserves the right, at any time and in our sole discretion, to amend, modify, suspend, or terminate, temporarily or permanently, the Services, and any part thereof, without notice to you. Tohla shall have no liability to you or any other person or entity for any modification, suspension, or termination of the Services or any part thereof.
Tohla reserves the right to modify these Terms (effective on a prospective basis) at any time in accordance with this provision. Therefore, you should review these Terms regularly. If we make changes to these Terms, we will post the revised Terms on the Services and update the “Last Updated” date at the top of these Terms. If you do not terminate this Agreement before the date the revised Terms become effective, your continued access to or use of the Services will constitute acceptance of the revised Terms.
Special terms or rules may apply to some Services. Any such terms are in addition to these Terms. In the event of any conflict or inconsistency between these Terms, our Privacy Notice, and any rules, restrictions, limitations, terms and/or conditions that may be communicated to users of the Services, Tohla shall determine which rules, restrictions, limitations, terms and/or conditions shall control and prevail, in our sole discretion, and you specifically waive any right to challenge or dispute such determination.
11.6 No Third-Party Beneficiaries
This Agreement does not, and is not intended to, confer any rights or remedies upon any person other than the parties hereto.
11.7 No Waiver and Severability
Tohla’s failure to enforce a provision of this Agreement is not a waiver of its right to do so later or to enforce any other provision. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise permitted under law.
Except as explicitly provided herein, if any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
11.8 Entire Agreement
Except as it may be supplemented by additional terms and conditions, policies, guidelines or standards as provided herein, this Agreement constitutes the entire agreement between Tohla and you pertaining to the subject matter hereof, and supersedes any and all prior oral or written understandings or agreements between Tohla and you in relation to the access to and use of the Services.