Last Updated: February 26, 2021
The Services are only available to individuals either above the age of majority in your nation, state, province, territory, or city or the age of eighteen (18) and older, whichever is greater. Individuals under the age of 18 are expressly prohibited from creating a user account or otherwise using the Services. If you are located in the European Union, you warrant and agree that you are of the age a majority under the laws of your country and that you are authorized by law or parental consent to create an account or otherwise use the Services. If you are under the age of 13, you are expressly prohibited from using the Services.
You warrant that you are of sound mind, have the capacity to contract, and agree to the terms and conditions contained within this Agreement. If you are using the Services on behalf of a business entity or third party, you warrant that you have actual authority to act as an agent of that business entity and third party and have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
2.1 The "Content" refers to the content on the Services, including, but not limited to, the text, software, scripts, graphics, photos, mobile applications, sounds, music, pictures, interactive features and the like. The "Content" does not include User Engagement, which is defined below.
2.2 "User" means a visitor of the Services, a Services account holder or a user of the Services.
2.3 "User Submissions" refer to content (e.g., images, photographs, graphics, audio and video files, text, files, information, sounds, musical works, works of authorship, applications, links, and other communications, content, or materials, along with any text associated with the content) submitted, posted, or displayed by Users.
2.4 "User Comments" refer to comments submitted, posted, or displayed by Users.
2.5 "User Engagement" collectively refers to User Submissions and User Comments.
3. The Services
3.1 Toad&Co may provide Users with the ability to upload or transmit content to or through the Services, including, but not limited to, User Engagement. When you submit User Engagement to the Services, you grant Toad&Co a non-exclusive, irrevocable, worldwide, and perpetual license to use your User Engagement for the customary and intended purposes of the Services. These purposes may include providing you or third parties with the Services, backing up or archiving the Services, and selling or transferring the Services to a third party. In submitting User Engagement to the Services, you agree to waive all moral rights in or to your User Engagement across the world, whether you have or have not asserted moral rights. You also agree to waive all rights of publicity or privacy in or to your User Engagement.
3.3 You agree that you are responsible for all data or roaming charges you incur through use of the Services.
3.4 Toad&Co prohibits crawling, scraping, caching or otherwise accessing any Content or User Engagement on the Toad&Co Service via automated means, except as may be the result of standard search engine protocols or technologies used by a search engine with Toad&Co's express consent.
3.5 You are solely responsible for your interactions with other Users of the Services, whether online or offline. You agree that Toad&Co is not responsible or liable for the conduct of any User. Toad&Co reserves the right, but has no obligation, to monitor or become involved in disputes between you and other Users.
3.6 There will be occasions when the Services may be interrupted, including, without limitation, for scheduled maintenance or upgrades, for emergency repairs, or due to failure of telecommunications links and/or equipment. Toad&Co will not be held responsible for any such interruptions.
3.7 Toad&Co reserves the right to remove any Content and/or User Engagement from the Services for any reason, without prior notice. Content and/or User Engagement removed from the Services may continue to be stored by Toad&Co, including, without limitation, in order to comply with certain legal obligations, but may not be retrievable without a valid court order. Toad&Co is not a backup service and you agree that you will not rely on the Services for the purposes of content backup or storage. Toad&Co will not be liable to you for any modification, suspension, or discontinuation of the Toad&Co Services or the loss of any Content or User Engagement. You also acknowledge that the Internet may be subject to breaches of security and that the submission of User Engagement or other information may not be secure. You are expressly and solely responsible for your own security when using the Services.
4. Access to the Toad&Co Services
4.1 Toad&Co provides you with a limited, non-exclusive, non-sublicensable, non-assignable, and revocable license to use the Services for their customary and intended purposes. Use of the Services for a use outside of their customary and intended purposes or in violation of the terms of this Agreement will result in the immediate termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to Toad&Co.
4.2 In order to access some features of the Services, you will have to create an account. You may never use another User's account without permission or solicit, collect, or use the login credentials of other Users. When creating your account, you must provide accurate and complete information. You are responsible for keeping your password secure and you are solely responsible for the activity that occurs on your account. Although Toad&Co will not be liable for any losses caused by any unauthorized use of your account, you may be liable for the losses of Toad&Co or others due to such unauthorized use. If you become aware of any breach of security or unauthorized use of your password or of your account, you must notify Toad&Co immediately at firstname.lastname@example.org.
4.3 You agree you will not sell, transfer, license or assign your account, username, or any account rights. Toad&Co prohibits the creation of, and you agree that you will not create, an account for anyone other than yourself.
4.4 You also agree that all information you provide or have provided to Toad&Co upon registration and at all other times will be true, accurate, current, and complete, and you agree to update your information as necessary to maintain its truth and accuracy.
5. Use of the Services--Permissions and Restrictions on Your Use
5.1 You agree to use the Services only for purposes that are permitted by this Agreement. Toad&Co hereby grants you permission to access and use the Services as set forth in this Agreement, provided that:
5.1.1 You agree that you have the legal right and capacity to enter into this Agreement in your jurisdiction.
5.1.2 You must not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (e.g., federal, state, local and provincial) applicable to your use of the Services and your User Engagement, including, but not limited to, copyright laws and export laws.
5.1.3 You must not post abusive, obscene, threatening, harassing, defamatory, libelous, offensive, violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic, or sexually suggestive User Engagement via the Services, or User Engagement that encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate. You must not post spam. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities. You must not intentionally make false or misleading statements.
5.1.4 You must not post private, confidential, or sensitive information, or information that is otherwise in breach of the law via the Website, including, without limitation, your or any other person's credit card information, social security, or national identity numbers, non-public phone numbers, addresses, or email addresses. You must not submit material that is copyrighted, protected by trade secret, or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant to Toad&Co all of the licensed rights granted herein.
5.1.5 You must not distribute in any medium any part of the Services without prior written authorization from Toad&Co. You agree not to circumvent, disable or otherwise interfere with security related features of the Services or features that prevent or restrict use or copying of any Content and User Engagement or enforce limitations on use of the Services and the Content and User Engagement therein.
5.1.6 You must not engage in any activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services), including by transmitting any worms, viruses, spyware, malware, or any other code of a destructive or disruptive nature. You may not inject content or code or otherwise alter or interfere with the way any part of the Services is rendered or displayed in a User's browser or device.
5.1.7 You must not change, alter, or modify any part of the Services for any reason.
5.1.8 You agree not to use or launch any type of automated system, including but not limited to, "robots," "spiders," or "offline readers," that accesses the Services in a manner that sends more request messages to Toad&Co's servers in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser. You agree not to access (or attempt to access) any of the Services, including Content and User Engagement, by any means other than through the interfaces that are provided by Toad&Co.
5.1.9 You agree not to use the Services for any commercial purpose or use, either direct or indirect, without the prior written authorization of Toad&Co. You may access User Engagement solely for your information and non-commercial, personal use or as otherwise intended through the normal functionality of the Toad&Co Services.
5.1.10 You must not solicit, for commercial purposes, spam, or send harassing communications to any Users. Additionally, you must not collect or harvest any personal information from the Services. You must not offer to sell or buy any product or service, and you must not post advertisements or solicitations of business.
5.1.11 You must not attempt to restrict another User from using or enjoying the Services and you must not encourage or facilitate violations of this Agreement or any other Toad&Co terms.
5.1.12 The Content and Toad&Co intellectual property, including, but not limited to, the Toad&Co trademarks, trade names, and logos, on the Services are owned by or licensed to Toad&Co, subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Content on the Services may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners. Toad&Co reserves all rights that are not expressly granted in and to the Services and the Content. You agree not to use, copy, or distribute, either directly or indirectly, any of the Content other than that which is expressly permitted herein, including any use, copying, or distribution of User Engagement of third parties obtained through the Services for any commercial purposes. If you download or print a copy of the Content and/or User Engagement for personal use, you must retain all copyright and other proprietary notices contained therein. You agree that Toad&Co holds no responsibility for content posted within the service, including, but not limited to, User Engagement. Toad&Co is not obligated to monitor or edit any content posted on Toad&Co, including, but not limited to, User Engagement. If your content violates this Agreement, you may bear legal responsibility for that content.
5.1.13 Toad&Co reserves the right to discontinue any aspect of the Services, either specifically to you or generally, at any time.
5.1.14 Toad&Co may terminate a User's access to the Services at any time, for any reason. If Toad&Co suspects that you have violated any provision of this Agreement, Toad&Co may also seek any other available legal remedy. Your rights under this Agreement will terminate automatically if you breach any part of this Agreement. Further, Toad&Co reserves the right to refuse access to the Services to anyone for any reason at any time.
6. User Engagement
6.1 You shall be solely responsible for your own User Engagement and the consequences of posting or publishing User Engagement.
6.1.1 In addition to the general restrictions above, the following restrictions and conditions apply specifically to your User Comments:
22.214.171.124 You may be given the opportunity to review and post User Comments on the Services. Your User Comments must adhere to this Agreement, any additional applicable terms of the mobile application store or marketplace where you have downloaded such Services, and, to the extent applicable, foreign, national, state, or local laws. If a comment is made using your identity, it will be deemed to have been posted by you. Toad&Co will not accept responsibility for User Comments and other information posted in the comments. If Toad&Co receives notice that any User Comments are not in compliance with this Agreement or the intended use of the User Comments, Toad&Co may remove such User Comments. Additionally, engaging in such conduct may result in you and/or your account being banned from the Services.
126.96.36.199 User Comments are made available to you for your information and personal use solely as intended through the normal functionality of the Services. User Comments are made available AS IS and may not be used, copied, reproduced, displayed, sold, licensed, downloaded, distributed, transmitted, broadcast, or otherwise exploited in any manner not intended by the normal functionality of the Services or otherwise as expressly authorized under this Agreement.
6.1.2 In addition to the general restrictions above, the following restrictions and conditions apply specifically to your User Submissions--you affirm, represent, and/or warrant that:
188.8.131.52 You own or have the necessary licenses, rights, consents, and permissions to use and authorize us to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all User Submissions to enable inclusion and use of the User Submissions in the manner contemplated by the Services and this Agreement.
184.108.40.206 You have the written consent, release, and/or permission of each and every identifiable individual person in the User Submission to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of the User Submissions in the manner contemplated by the Services and this Agreement.
220.127.116.11 The Services may now or in the future permit User Submissions and the hosting, sharing, and/or publishing of such User Submissions. You understand that whether or not such User Submissions are published, Toad&Co does not guarantee any confidentiality with respect to any submissions.
6.1.3 You additionally affirm, represent, and warrant that the posting and use of your User Engagement on or through the Toad&Co Services does not violate, misappropriate or infringe on the rights of any third party, including, without limitation, privacy rights, publicity rights, copyrights, trademark and/or other intellectual property rights.
6.1.4 You agree to pay for all royalties, fees, and any other monies owed by reason of your User Engagement that you post on or through the Services.
6.2 Toad&Co does not endorse any User Engagement or any opinion, recommendation, or advice expressed therein, and Toad&Co expressly disclaims any and all liability in connection with User Engagement. Toad&Co does not permit copyright infringing activities and infringement of intellectual property rights on its Services, and Toad&Co will remove all Content and User Engagement if properly notified that such Content or User Engagement infringes on another's intellectual property rights. Toad&Co may, but has no obligation to, remove, edit, block, and/or monitor User Engagement or accounts containing User Engagement that Toad&Co determines in its sole discretion violates this Agreement. Toad&Co will also terminate a User's access to the Services, if they are determined to be a repeat infringer. A repeat infringer is a User who has been notified of infringing activity more than twice and/or has had User Engagement removed from the Services more than twice.
6.3 Toad&Co reserves the right to determine in its sole discretion whether Content or User Engagement is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law, including, but not limited to, pornography, obscene or defamatory material, hate speech, or excessive length. Toad&Co may, at any time, without prior notice and in its sole discretion remove such User Engagement and/or terminate a User's access for submitting such material in violation of this Agreement.
6.4 You understand that when using the Services, you will be exposed to User Engagement from a variety of sources. Toad&Co is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such User Engagement. You understand and agree that Toad&Co cannot and will not be responsible for the User Engagement posted on the Services and you use the Services at your own risk. You further understand and acknowledge that you may be exposed to User Engagement that are inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Toad&Co with respect thereto to the fullest extent permitted by law.
6.5 Toad&Co may provide you with the ability to receive text messages, emails, or other communications from Toad&Co when using the Services. Toad&Co provides you with the opportunity to opt-in and opt-out from text messages, emails, and other communications when you use the Services.
The frequency of text messages from Toad&Co may vary. Toad&Co does not charge for providing its text message services, but your mobile telephone carrier may charge message and data rates. By consenting to receive text messages from Toad&Co, you approve of any charges applied by your mobile telephone carrier. Toad&Co reserves the right to terminate text message services at any time and within its sole and absolute discretion.
If you are ever unable to de-active the text messages, emails, or communication through your registered profile, you may email email@example.com.
7. Toad&Co Guarantee.
7.1 Toad&Co offers a guarantee: “If you don’t get a compliment within three wearings or if find something wrong with your Toad&Co garment, we’ll take it back and make it right.” This guarantee governs our returns policy. This standard is at the discretion of the purchasing client. A purchasing customer may make a returns request at any time. To exchange or return purchased items, please see the returns page.
7.2 Toad&Co’s returns policy only governs items purchased through the Website or Toad&Co directly. Third party vendors’ items may not be returned to Toad&Co. Instead, individuals with concerns about products purchased from third-party vendors should contact the third-party vendors.
- Copyright Policy
8.1 Reporting Instances of Copyright Infringement
If you are a copyright owner or an agent thereof and believe that any User Engagement or other content infringes upon your copyrights, you may submit a notification pursuant by providing Toad&Co's Copyright Agent with the following information in writing:
8.1.1 A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
8.1.2 Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
8.1.3 Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit the service provider to locate the material;
8.1.4 Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
8.1.5 A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
8.1.6 A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Toad&Co's Copyright Agent to receive notifications of claimed infringement is: Foley & Lardner LLP, 321 North Clark Street, Chicago, IL 60654, United States of America with an email address of firstname.lastname@example.org. You acknowledge that if you fail to comply with all of the requirements of this Section, your notice may not be valid.
8.2 Submitting a Counter-Notice
If you believe that your User Engagement that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to post and use the material in your User Engagement, you may send a counter-notice containing the following information to Toad&Co's Copyright Agent:
8.2.1 Your physical or electronic signature;
8.2.2 Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
8.2.3 The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material to be removed or disabled"; and
8.2.4 Your name, address, telephone number, and e-mail address, a statement that you consent to the jurisdiction the Federal District Court for the juridical district in which the User is located or, if the User is outside of the United States, for any judicial district in which Toad&Co may be found, and a statement that you will accept service of process from the person who provided the original DMCA notification of the alleged infringement or an agent of such person.
If a counter-notice is received by Toad&Co's Copyright Agent, Toad&Co may send a copy of the counter- notice to the original complaining party informing that person that it may replace the removed User Engagement or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the User who provided the User Engagement, the removed User Engagement may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at Toad&Co's sole discretion.
9. Accessibility Policy
- Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT, TO THE EXTENT ALLOWED UNDER APPLICABLE LAW:
10.1 YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WEBSITES, CONTENT, IN-APP PURCHASES, USER ENGAGEMENT, ANY PRODUCTS OR SERVICES AVAILABLE ON THE SERVICES AND ALL THE MATERIALS, INFORMATION, SOFTWARE, AND FACILITIES, AND OTHER CONTENT THEREIN, IS PROVIDED ON AN "AS IS", "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TOAD&CO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. TOAD&CO AND ITS SUBSIDIARIES, AFFILIATES, "SISTER ENTITIES", OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS (COLLECTIVELY, the "TOAD&CO PARTIES") MAKE NO WARRANTIES OR REPRESENTATIONS THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE SERVICES OR THE SERVER THAT MAKES THE SERVICES AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES; (iv) THE RESULTS THAT MAY BE OBTAINED FROM YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (v) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; AND (vi) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
10.2 TOAD&CO DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONTENT, USER ENGAGEMENT, OR PRODUCTS OR SERVICES ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR FEATURED IN ANY BANNER OR OTHER ADVERTISING AND SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM THE FOREGOING. TOAD&CO WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
10.3 TOAD&CO DOES NOT WARRANT THAT YOUR USE OF THE TOAD&CO SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND TOAD&CO SPECIFICALLY DISCLAIMS SUCH WARRANTIES. BY ACCESSING OR USING THE TOAD&CO SERVICES, YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE TOAD&CO SERVICES.
11. Limitation of Liability
11.1 TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL THE TOAD&CO PARTIES BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO ANY: (i) THE SERVICES; (ii) THE CONTENT; (iii) USER ENGAGEMENT; (iv) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE TOAD&CO SERVICES; (v) ANY ACTION OF ANY USER OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, AND PERSONAL INJURY, DAMAGE, OR DEATH CAUSED BY ANY USER OF THE SERVICES; (vi) ANY ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE TOAD&CO PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USE OF THE TOAD&CO SERVICES; (vii) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (viii) ANY ERRORS OR OMISSIONS IN THE OPERATION OF THE TOAD&CO SERVICES; OR (ix) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE TOAD&CO PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, PERSONAL INJURY, OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICE). IN NO EVENT WILL THE TOAD&CO PARTIES BE LIABLE TO YOU OR ANYONE ELSE FOR LOSS, DAMAGE OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH, OR PERSONAL INJURY. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE MAXIMUM TOTAL LIABILITY OF THE TOAD&CO PARTIES TO YOU FOR ANY CLAIM UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS $100.
11.2 EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.3 YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF TOAD&CO'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE TOAD&CO PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY, PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE TOAD&CO PARTIES.
11.4 YOU SPECIFICALLY ACKNOWLEDGE THAT TOAD&CO SHALL NOT BE LIABLE FOR CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU.
11.5 BY ACCESSING THE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
11.6 TOAD&CO IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.
You agree to defend, indemnify and hold harmless the Toad&Co Parties from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including, but not limited to, attorney's fees) arising out of or in any way connected with: (i) your User Engagement or your use of and access to the Toad&Co Services; (ii) your breach or alleged breach of this Agreement; (iii) your violation or alleged violation of any third party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; (iv) your violation or alleged violation of any laws, rules, regulations, codes, statutes, ordinances or orders; (v) any claim that your User Engagement caused damage to a third party; or (vi) any misrepresentation made by you. You will cooperate as fully required by Toad&Co in the defense of any claim. Toad&Co reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Toad&Co. This defense and indemnification obligation will survive this Agreement and your use of Toad&Co Services.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Toad&Co without restriction.
14. Governing Law and Arbitration
You agree any and all claims arising out of or related to your use of the Website shall be exclusively brought in Delaware. You specifically agree to the exclusive jurisdiction in Delaware. This agreement is to be governed exclusively by Delaware law. No other forum or choice of law is acceptable. In the event Toad&Co prevails in any action arising out of or related to this Agreement, Toad&Co shall be entitled to its reasonable attorney's fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief it may be entitled.
You and Toad&Co agree that any dispute, claim, or controversy arising out of or in relation to this Agreement or the applicability, breach, termination, validity, enforcement, or interpretation thereof, or to the purchase of or use of In-App Purchases purchased through the Services, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between You and Toad&Co, You and Toad&Co agree that the arbitrator will decide that issue. Notwithstanding the foregoing, You and Toad&Co each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration.
You and Toad&Co acknowledge and agree that each are waiving the right to a trial by jury as to all arbitrable disputes.
You and Toad&Co acknowledge and agree that, to the fullest extent permitted under the law, each are waiving the right to participate as a plaintiff or class member in any class action lawsuit, class arbitration, or private attorney general action. If this class action waiver is held unenforceable with respect to the dispute between the Parties, the Parties agree that the entirety of the arbitration clause will be deemed void with respect to such dispute and the dispute must proceed in court.
15.1 This Agreement, together with the Privacy Notice at https://www.toadandco.com/privacy-policy, which is incorporated by reference, and any other legal notices published by Toad&Co on the Toad&Co Services, shall constitute the entire agreement between you and Toad&Co concerning the Toad&Co Services.
15.2 If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
15.3 No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Toad&Co's failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
15.4 Toad&Co reserves the right to amend this Agreement at any time and without notice, and it is your responsibility to review this Agreement for any changes. Your use of the Toad&Co Services following any amendment of this Agreement will signify your assent to and acceptance of its revised terms.
15.5 YOU AND TOAD&CO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE TOAD&CO SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.