As of September 2015
We are happy that you have chosen to try or use Tohu Movies and/or TohuMovies.com, which is a service for use by adults only to facilitate social interaction. Tohu Movies and/or TohuMovies.com is operated by TOHU Entertainment, LLC, (the "Company" ,"TOHU MOVIES" and “Tohumovies.com”). You are referred to herein as “you” (or otherwise “your” as the context requires). The following are the terms that you accept when you use TOHU MOVIES or any of its services, as defined below.
You will be bound by terms of this contract if you use Tohu Movies and/or TohuMovies.com, the TOHU MOVIES Website, App or Service, as defined below. If you do not agree to the terms or do not understand them, do not use Tohu Movies and/or TohuMovies.com, TOHU MOVIES Website, App or the Service or contact an attorney prior to use.
This TOHU MOVIES Website App and/or Tohumovies.com Website App and the Service is offered and available to users who are 18 years of age or older (or otherwise meet the age requirements and other requirements as explained herein). By using this Website, you represent and warrant that you are of legal age to form a binding contract with the Company and that you meet all of the eligibility requirements explained herein. If you do not meet all of these requirements, you must not access or use the Website.
, and the s
, are each incorporated herein by reference and made a part hereof. If you do not accept and agree to be bound by all of the terms of this Agreement, including the ancillary documents above, you may not use the TOHU MOVIES Website and/or Tohumovies.com, App or the Service and should not do so. Please contact us or a lawyer with any questions that you have regarding this Agreement.
I. Your Acceptance of this Agreement.
A. This Agreement is a contract that establishes legally binding terms that you must accept to use the Tohu Movies and/or TohuMovies.com Website, App, the Service and to become a Tohu Movies and/or TohuMovies.com member (a "Member"). As used in this Agreement, the term "Member" means a person who provides information to the Company on the Tohu Movies and/or TohuMovies.com Website App or the Service to participate in the Service in any manner, whether such person uses the Service as for free or for a fee or pays for any additional, optional, add-on or extra services made available to users or Members of the service. This Agreement includes the Company’s (i) Policy the terms and/or fee structures disclosed and agreed to by you if you become a subscriber or if you purchase or accept additional features, products or services we offer on the Tohu Movies and/or TohuMovies.com Website, App or through the Service (e.g. “Shouts”), and (ii) state-specific terms and terms governing features, billing, free trials, discounts and promotions.
B. You accept this Agreement and agree to the terms and conditions contained or referenced herein by any of the following: 1) electronically accepting this agreement by indicating your acceptance on any “click through” or “click to agree” application and/or 2) accessing the Tohu Movies and/or TohuMovies.com Website App or using the Service, 3) becoming a Member. You consent to have this Agreement and all notices provided to you in electronic form. Please print a copy of this Agreement for your records. To receive a non-electronic copy of this Agreement, please Contact Us. This Agreement may be modified by the Company at any time, such modifications to be effective upon posting by the Company on the Tohu Movies and/or TohuMovies.com Website, App and/or the TOHU MOVIESapp.com website. If you do not agree to any modifications or updates so posted, you agree to immediately cease using the Tohu Movies and/or TohuMovies.com Website, App and the Service. In the event that you continue to use the Tohu Movies and/or TohuMovies.com Website, App or the Service after the Company updates or modifies this Agreement, then you agree that you will be bound by the terms of the updated or modified agreement terms, fulfill and honor the terms thereof, and you agree that such agreement is fully enforceable against you.
II. Eligibility Tohu Movies and/or TohuMovies.com Website, App or the Service.
To access or use the Tohu Movies and/or TohuMovies.com Website, App or the Service, you must be at least the older of either: 1) 18 years of age or 2) the age of consent under the laws of the territory for which you reside or are using or accessing the Tohu Movies and/or TohuMovies.com Website, App or the Service. Any use of the Service or the Tohu Movies and/or TohuMovies.com App is void where prohibited. By accessing and using the Tohu Movies and/or TohuMovies.com App or the Service, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. If you use or access the Tohu Movies and/or TohuMovies.com Website, App or the Service or become a Member thereof, you represent and warrant that 1) you have never been convicted of a felony; 2) that you are not required to register as a sex offender with any government entity; 3) that you are legally permitted to use and access the Tohu Movies and/or TohuMovies.com App or the Service under any and all applicable laws; 4) that you will abide by all laws applicable to you; 5) that the Tohu Movies and/or TohuMovies.com Website, App, the Service and your use of either does not violate any applicable laws; and 6) you will not use the Tohu Movies and/or TohuMovies.com Website, App or the Service to commit any crimes or to commit any civil infractions against any person or entity, or to otherwise harass or cause harm to anyone. Using the Service may be prohibited or restricted in certain territories, states, municipalities, or countries. Whether you use the Service in the United States or from outside of the United States, you are responsible for complying with the laws and regulations of the territory from which you access or use the Tohu Movies and/or TohuMovies.com Website, App or Service and you agree to hold the Company harmless from, and indemnify the Company for any breach of any such agreement, warranty or representation hereunder.
III. Membership Registration and Service Add-Ons.
You may register as a Member in accordance with the Company’s then-current registration and/or fee policies, which may change at any time. As a Member, you may use some, but not necessarily all, of the features and services available within the Service. To access or use additional features and services, including the ability to send “SHOUTS” to other Members, you must pay the applicable then-current fees for such service. The fee policies that will apply to you are those that are in effect when you use the Service, or purchase a particular membership or individual feature or service or are a part of this Agreement, and you agree that 1) such fees are reasonable; and 2) to pay all such fees. Your Member profile may remain posted on the Tohu Movies and/or TohuMovies.com Website, App or within the Service even if you are not actively using the Service. You acknowledge that although a Member’s profile may be visible, you may not be able to use the Service to communicate with that Member if that member is not then actively using the Service or has “blocked” you. You agree that if a member blocks you that you will not attempt to communicate with that member by using the Service, e.g. by creating or using a different profile within the Service or otherwise try to contact that person by any means. You acknowledge and agree that Tohu Movies and/or TohuMovies.com cannot control any user’s communications and you accept that people may try to contact you, flirt with you, etc. if you use the Tohu Movies and/or TohuMovies.com Website, App or the Service.
IV. Term and Termination.
A. This Agreement will remain in full force and effect while you use the Tohu Movies and/or TohuMovies.com Website, App or the Service and/or are a Member, except that certain provisions hereunder shall survive this agreement where applicable or as indicted herein. Except as otherwise expressly stated hereunder, after your membership is terminated for any reason, all applicable terms of this Agreement survive such termination, and continue in full force and effect, except for any terms that by their nature expire or are fully satisfied.
B. You may change or cancel your membership or any particular service at any time, for any reason, by following the instructions provided in the Tohu Movies and/or TohuMovies.com Website, App or the Service e.g. by accessing your account settings or similar menu application or function. You may also cancel your membership by sending the Company written notice of cancellation to Tohu Movies and/or TohuMovies.com by email to Customer Care. If you cancel your membership or any extra, individual service or add-on, the Company shall have a reasonable amount of time to process the action. If you cancel any type of subscription service add on or feature that was purchased for s specific amount of time that the Company may offer from time to time, your subscription benefits, add on or feature will continue until the end of your then-current term or the agreed upon time period, following which it will expire. However, in no event will you be eligible for a refund of any portion of the fees paid for such item. If you paid for the item using a multi-payment option, you must make all payments even if you cancel your subscription prior to the end of your then existing commitment period.
C. Canceling an account (paid, free or otherwise) or a feature, add-on, subscription or other individual service does not necessarily automatically cancel your membership depending on the action and functionality of the procedure called upon. If you are a member and you cancel a service, subscription or feature but not specifically your membership, unless you elect to hide your profile, you will continue to be a Member in the Service and others may view your profile. If you hide your profile, other Members will not be able to view your profile until you "unhide" your profile.
D. The Company may terminate or suspend your membership or any individual feature that you purchased or subscribed to (including any subscription feature, add-on, additional or extra feature) at any time without notice for any reason, including but not limited to if the Company believes that you have breached this Agreement or any Tohu Movies and/or TohuMovies.com Polices. Upon such termination or suspension, you will not be entitled to any refund of unused fees for any services, add-ons, features, or subscriptions, and, if applicable, all unpaid subscription amounts and other fees you owe will immediately be due, and the Company may charge such fees to any credit or debit card that you have on file. The Company is not required to disclose, and may be prohibited by law from disclosing, the reason for the termination or suspension of your account.
V. Applicable Use.
The Tohu Movies and/or TohuMovies.com Website, App and Service are for personal, non-commercial use only. Members may not use the Service in connection with any commercial endeavors, such as (i) advertising or soliciting any user to buy or sell any products or services or (ii) soliciting others to attend events or other social functions, or networking, for commercial purposes. Users of the and/or Tohumovies.com Website, App or the Service may not use any information obtained from the Tohu Movies and/or TohuMovies.com Website, App or the Service to contact, advertise to, solicit, or sell to any other user without his or her prior explicit consent, and you agree not to use the Tohu Movies and/or TohuMovies.com Website, App or the Service to seek such consent. Organizations, companies, and/or businesses may not use the Service or the Tohu Movies and/or TohuMovies.com Website or App for any purpose. You agree that you will not frame any Tohu Movies and/or TohuMovies.com Website, App or the Service within your website or use links to any Tohu Movies and/or TohuMovies.com Website, App or the Service in confusing or illegal manner. The Company may investigate and take any available legal action in response to illegal and/or unauthorized uses of the Tohu Movies and/or TohuMovies.com Website, App or the Service, including collecting usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email and unauthorized framing of or linking to the Tohu Movies and/or TohuMovies.com Website, App or the Service.
VI. Account Safety.
You acknowledge that there are inherent dangers and risks in using the internet or any application, software, website, mobile app, or other internet service, and those dangers apply to the Tohu Movies and/or TohuMovies.com Website, App or the Service. You assume the risk of any and all such dangers and risk when using Tohu Movies and/or TohuMovies.com Website, App or the Service. You agree that you are and will remain responsible for maintaining your own safety while using or while the Tohu Movies and/or TohuMovies.com Website, App or the Service or while you are a Member of the Tohu Movies and/or TohuMovies.com Website, App or the Service. You understand and agree that you are responsible for protecting and maintaining the confidentiality of the username and password that you elect to use and provide for use for Tohu Movies and/or TohuMovies.com Website, App or the Service, and that you are solely responsible for all activities that occur on your account, through your account, or under your username and password. You agree to keep your username and password confidential and secure, to not provide it to any third party, or allow anyone else to access your account. You agree to immediately notify the Company of any unauthorized use of your account, your profile, your username or password or any other breach of security, and ensure that you log out from your account at the end of each session.
VII. Interactions with Other Users and Members, Background Checks.
A. YOU ARE SOLELY RESPONSIBLE FOR YOUR COMMUNICATIONS, INTERACTIONS AND MEETINGS WITH OTHER MEMBERS OR USERS. YOU UNDERSTAND AND AGREE THAT THE COMPANY DOES NOT NECESSARILY, AND IS NOT OBLIGATED TO, ASSESS OR REVIEW MEMBER PROFILES FOR ACCURACY, CONDUCT CRIMINAL BACKGROUND CHECKS OR SCREENINGS OR OTHER CHECKS ON ITS MEMBERS; HOWEVER THE COMPANY RESERVES THE RIGHT TO DO SO AND IS PERMITTED TO DO SO FOR ANY OR ALL MEMBERS. THE COMPANY ALSO DOES NOT NECESSARILY, AND IS NOT OBLIGATED TO, INQUIRE INTO THE BACKGROUNDS OF ITS MEMBERS OR ATTEMPT TO VERIFY THE STATEMENTS OF ITS MEMBERS; HOWEVER THE COMPANY RESERVES THE RIGHT TO DO SO AND IS PERMITTED TO DO SO FOR ANY OR ALL MEMBERS. THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OF ANY STATEMENT BY ANY MEMBER, ANY PHOTOGRAPH OR ANY OTHER POSTING OR INFORMATION PROVIDED BY ANY MEMBER. THE COMPANY FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF MEMBERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE MEMBERS. ALTHOUGH NOT REQUIRED, THE COMPANY MAY, AND RESERVES THE RIGHT TO CONDUCT ANY BACKGROUND CHECK INCLUDING ANY CRIMINAL BACKGROUND CHECK OR OTHER BACKGROUND CHECKS OR SCREENINGS (SUCH AS SEX OFFENDER REGISTER SEARCHES), OF YOU AND ANY OTHER MEMBER AT ANY TIME AND USING AVAILABLE RECORDS ACCESSIBLE BY COMPANY INCLUDING PUBLICALLY ACCESSIBLE DATA AND PRIVATE DATABASES. THE COMPANY IS NOT OBLIGATED TO NOTIFY YOU THAT IT WILL OR HAS PERFORMED ANY SUCH CHECK OF YOU OR ANY OTHER MEMBER AND IS NOT OBLIGATED TO PROVIDE YOU ANY RESULTS OF ANY SUCH CHECK. By accepting these terms, you agree to allow the Company to perform any and all background checks on you that it deems advisable in its sole discretion.
B. The Tohu Movies and/or TohuMovies.com Website, App and Service is a meeting facilitator only. It consists of software that helps you identify people that you may wish to communicate with. You agree that the Company is not responsible for who you choose to meet and what happens if you decide to communicate with any other person. You agree to take full responsibility for your own choices with respect to whom you choose to interact. The Company is not responsible for the conduct or actions of any other person, whether a Member or not and whether any action occurred via use of the Services or the Tohu Movies and/or TohuMovies.com Website, App or otherwise. While the Company may choose to maintain certain security procedures and protocols, the Company shall not be obligated to maintain any specific security policy, procedure or protocol, and shall not be liable or responsible to you or anyone for any third-party actions including any unauthorized or criminal or civil action, including cyber-crimes, hacking, security breaches or the unauthorized taking or accessing of your or any Member’s confidential, private or personal information, stalking, harassment, or other conduct. As noted in and without limiting Sections 16 and 18 below, in no event shall the Company or its affiliates, employees, agents, partners, sponsors, members, advertisers, or its partners be liable (directly or indirectly) for any losses or damages to you whatsoever, whether direct, indirect, general, special, compensatory, consequential, and/or incidental, arising out of or relating to the conduct of you or anyone else that is a user of member of the Tohu Movies and/or TohuMovies.com Website, App or Service, that you met using the Tohu Movies and/or TohuMovies.com Website, App or Service or otherwise that occurred in connection with or relating to the use of the Tohu Movies and/or TohuMovies.com Website, App or Service including, without limitation, death, bodily injury, emotional distress, violations of privacy or publicity rights, defamation, and/or any other damages resulting from the actions of any Member or third party including but not limited to those arising out of communications or meetings with other Members or persons you meet through the Tohu Movies and/or TohuMovies.com Website, App or Service or anyone that uses the Tohu Movies and/or TohuMovies.com Website, App or Service. You agree to indemnify and hold the Company harmless from any damages of any third party claimed against the Company as a result of any third party that you met through the Tohu Movies and/or TohuMovies.com Website, App or Service that you connected or introduced to such third party. You agree to take all necessary safety measures and precautions applicable to you and others with respect to your use of the Service and the Tohu Movies and/or TohuMovies.com Website, App, including your posting of information on your profile, and in all interactions with other Members, particularly if you decide to communicate off the Tohu Movies and/or TohuMovies.com Website, App or meet in person, or if you decide to send money or personal information to another Member (again, the Company recommends that you never send money or personal information to anyone that you have met online - See our Safety guidelines). In addition, you agree to review and follow the Company's Safety guidelines, before and when using the Service. You understand that the Company makes no guarantees, either express or implied, regarding your ultimate compatibility with individuals you meet through the Service and thus cannot and does not actually assist in creating connections, helping you make friends, or scheduling meetings for you. Whether or not you actually connect with anyone or meet anyone is solely up to you and is your responsibility. You should use caution when providing, and generally should refrain from providing any personal information, such as your full name, address, telephone number, place of employment, or other information that might allow someone to identify you or family such as children’s school, or places where you will be or frequent. You should not and agree not to post any pictures of you that are also posted on other websites that identify your real name or otherwise may allow someone to identify you, such as Facebook or an employment bio page. You should never supply any of financial information (for example, your credit card or bank account information), provide your social security number, or wire or otherwise send money, to other Members. You should also never disclose any passwords that you use for the Service or for any other service or website. In addition, you should always take precaution to meet for the first time in a public place and provide your own transportation to and from the meeting location. You should never accept a ride with someone that you have just met online. Finally you should always provide a friend or family member information as to, who you are meeting (providing as much information as you have), what time you are meeting, where you are meeting, and when you expect to be finished with the meeting. The Company recommends the use of a set of “Safe Calls” whereby you agree to call or text a friend or family member a secret code word at certain times to indicate that you are safe, and if you do not then they are to check in on you or if necessary contact authorities.
VIII. Intellectual Property, Use of the Tohu Movies and/or TohuMovies.com Website, App and Service; Other Rights.
A. The Company owns and retains all proprietary rights in the Tohu Movies and/or TohuMovies.com Website, App and the Service, and in all content, trademarks, trade names, service marks and other intellectual property rights related thereto. The Tohu Movies and/or TohuMovies.com Website, App and Service contain the copyrighted material, trademarks, and other proprietary information of the Company and its licensors. You agree to not copy, modify, transmit, distribute, create any derivative works from, make use of, or reproduce in any way any copyrighted material, trademarks, trade names, service marks, or other intellectual property or proprietary information accessible on the Tohu Movies and/or TohuMovies.com Website, App or through the Service, without first obtaining the prior written consent of the Company or, if such property is not owned by the Company, the owner of such intellectual property or proprietary rights. You agree to not remove, obscure or otherwise alter any proprietary notices appearing on any content, including copyright, trademark and other intellectual property notices.
B. The Tohu Movies and/or TohuMovies.com Website, App, the Company website(s), all mobile applications and Company Software used for the Service or connected to the Service, and any other applications or software owned, published or made available by Company, the entire contents thereof, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, graphics, images, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
- Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials or to running an application that provides the service such as the Tohu Movies and/or TohuMovies.com Website mobile application.
- You may store files that are automatically cached by your Web browser for display enhancement purposes.
- You may print [or download] one copy of a reasonable number of pages of the Website for your own personal, non-commercial use and not for further reproduction, publication or distribution.
- If we provide desktop, mobile or other applications for download, you may download a single copy to your computer or mobile device solely for your own personal, non-commercial use, provided you agree to be bound by our end user license agreement for such applications.
D. You agree not to:
- Modify copies of any materials provided by the Company or accessible or through or provided by the Service or the Tohu Movies and/or TohuMovies.com Website App.
- Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the Service or the Tohu Movies and/or TohuMovies.com Website App.
- Access or use for any commercial purposes any part of the Website or any services or materials available through the Website.
E. If you print, copy, modify, download or otherwise use or provide any other person with access to any part of the Service or the Tohu Movies and/or TohuMovies.com Website App in breach of this Agreement, your right to use the Service and the Tohu Movies and/or TohuMovies.com Website App will cease immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the Service or the Tohu Movies and/or TohuMovies.com Website App or any content on the Service or the Tohu Movies and/or TohuMovies.com Website App is transferred to you, and all rights not expressly granted are reserved by the Company. Any use of the Service or the Tohu Movies and/or TohuMovies.com Website App not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark and other laws. Notwithstanding the existence of this Agreement or anything hereunder, the parties agree that the Company shall have the right to pursue claims against you for breach of contract, copyright, trademark and other intellectual propriety infringement claims and other claims simultaneously with a breach of contract claim the Company may and collect damages, at Company’s election for any such claims.
F. The Company name, the term “Tohu Movies and/or TohuMovies.com Website” (in standard characters and in all of its stylized forms), and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You agree not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Website are the trademarks of their respective owners.
G. You agree not to post, transmit, or otherwise publish, on or through the Tohu Movies and/or TohuMovies.com Website, App or Service, any photograph, image, likeness, signature, voice, or other personal identifier of any individual, other than yourself, without the individual’s written permission, even if you are the copyright holder of such work, and you agree not to infringe any the right of publicity, privacy, or other individual or personal rights of any third-party. You further agree not to post, transmit, or otherwise publish, on or through the Tohu Movies and/or TohuMovies.com Website, App or Service, any image, writing, photograph, design, logo or other content that is copyrighted or is subject to copyright or trademark protection or otherwise protected by law or that is the exclusive work of a third party (including without limitation works protected by copyright, trade secrets, trademark, right of publicity, and right of privacy). You agree to and shall fully indemnify the Company for any and all damages, including attorney’s fees and the any and all litigations costs and expenses incurred by Company, and to hold the Company harmless for violations or infringements of the warranties and representations herein.
IX. Content Posted by You on the Tohu Movies and/or TohuMovies.com Website App.
A. You are solely responsible for the content and information that you post, upload, publish, link to, transmit, record, display or otherwise make available (hereinafter, "post") on the Service or the Tohu Movies and/or TohuMovies.com Website App or transmit to other Members, including emails, videos (including streaming videos), photographs, voice notes, recordings or profile text, whether publicly posted or privately transmitted (collectively, "Content"). You may not post on the Tohu Movies and/or TohuMovies.com Website App or as part of the Service, or transmit to the Company or any other Member (either on or off the Tohu Movies and/or TohuMovies.com Website App), any offensive, inaccurate, abusive, obscene, profane, sexually oriented, threatening, intimidating, harassing, racially offensive, or illegal material, or any material that infringes or violates another person’s rights (including intellectual property rights, and rights of privacy and publicity). You represent and warrant that all information that you submit upon registration is accurate and truthful and that you will promptly update any information provided by you that subsequently becomes inaccurate, misleading or false.
B. You understand and agree that the Company may, but is not obligated to, monitor or review any Content you post on the Tohu Movies and/or TohuMovies.com Website App or as part of a Service. The Company may delete any Content, in whole or in part, that in the sole judgment of the Company violates this Agreement or may harm the reputation of, or otherwise damage, or create potential liability for, the TOHU MOVIES Website App, the Service, other Members, any third-parties or the Company. The Company may restrict the number of emails which a Member may send to other Members in any 24-hour period to a number which the Company deems appropriate in its sole discretion.
C. By posting Content on the Tohu Movies and/or TohuMovies.com Website App or as part of the Service, you automatically grant to the Company, its affiliates, licensees and successors, an irrevocable, perpetual, non-exclusive, fully paid-up, worldwide right and license to (i) use, copy, store, perform, display, reproduce, record, play, adapt, modify and distribute the Content, (ii) prepare derivative works of the Content or incorporate the Content into other works, and (iii) grant and authorize sublicenses of the foregoing in any media now known or hereafter created. You represent and warrant that any posting and use of your Content by the Company will not infringe or violate the rights of any third party.
D. In addition to the types of Content described above, the following is a partial list of the kind of Content that is prohibited on the Tohu Movies and/or TohuMovies.com Website App or in connection with the service. You agree not to post, upload, use, transmit, publish, display or otherwise make available Content that:
- promotes racism, bigotry, hatred or physical harm of any kind against any group or individual;
- advocates harassment or intimidation of another person, or does harass or intimidate another person;
- requests money from, or is intended to otherwise defraud, users or Members of the Tohu Movies and/or TohuMovies.com Website App or Service or any third party;
- involves the transmission of "junk mail", "chain letters," or unsolicited mass mailing or "spamming" (or "spimming", "phishing", "trolling" or similar activities);
- promotes information that is false or misleading, or promotes illegal activities or conduct that is defamatory, libelous or otherwise objectionable;
- promotes an illegal or unauthorized copy of another person’s copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated images, audio or video, or links to pirated images, audio or video files;
- contains video, audio photographs, or images of another person without his or her permission (or in the case of a minor, the minor’s legal guardian);
- contains restricted or password only access pages, or hidden pages or images (those not linked to or from another accessible page);
- provides material that exploits people in a sexual, violent or illegal manner, or solicits personal information or other information from, or otherwise is an attempt to contact or communicate with anyone who is the lower of under the age of 18 or the age of consent in the territory in which either you or the Member they resides;
- provides instructional information about illegal activities such as making or buying illegal weapons or drugs, violating someone’s privacy, or providing, disseminating or creating computer viruses;
- contains viruses, time bombs, Trojan horses, cancelbots, worms or other harmful, or disruptive codes, components or devices, or any illegal code or that runs any illegal application;
- impersonates, or otherwise misrepresents affiliation, connection or association with, any person or entity;
- provides information or data you do not have a right to make available under law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information);
- disrupts the normal flow of dialogue, causes a screen to "scroll" faster than other users are able to type, or otherwise negatively affects other users’ ability to engage in real time exchanges;
- solicits passwords or personally identifying information for commercial or unlawful purposes from other users or disseminates another person’s personal information without his or her permission; or
- publicizes or promotes commercial activities and/or sales without Company’s prior written consent such as contests, sweepstakes, barter, advertising, and pyramid schemes.
E. The Company reserves the right, in its sole discretion, to investigate and take any or all action, including but not limited to legal action against you or anyone who violates this Agreement, and/or removing the offending communication from the Tohu Movies and/or TohuMovies.com Website App or Service and/or terminating or suspending the membership or right to use the Service or the Tohu Movies and/or TohuMovies.com Website App of such violators or for any other reason at Company’s discretion.
F. Your use of the Tohu Movies and/or TohuMovies.com Website App and Service, including all Content you post or transmit on, within or through the Service or the Tohu Movies and/or TohuMovies.com Website App, must comply with all applicable laws and regulations. You agree that the Company may access, preserve and disclose your account information and Content if required to do so by law or in a good faith belief that such access, preservation or disclosure is reasonably necessary, such as to: (i) comply with legal process; (ii) enforce this Agreement; (iii) respond to claims that any Content violates the rights of third parties; (iv) respond to your requests for customer service or allow you to use the Service or the Tohu Movies and/or TohuMovies.com Website App in the future; or (v) protect the rights, property or personal safety of the Company or any other person or entity.
- Remove or refuse to post any such content for any or no reason in Company’s sole discretion.
- Disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including without limitation their intellectual property rights or their right to privacy.
- Take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Service or the Tohu Movies and/or TohuMovies.com Website App or any other illegal or unauthorized action.
Without limiting the foregoing, Company has the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone transmitting, publishing, or posting any materials on or through the Service or the Tohu Movies and/or TohuMovies.com Website App. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, ATTORNEYS, EMPLOYEES, AGENTS, SHAREHOLDERS, MEMBERS, CONTRACTORS AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY THE COMPANY AND/OR ANY OF THE FOREGOING PARTIES DURING OR AS A RESULT OF ITS INVESTIGATIONS AND FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER THE COMPANY, SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
However, you acknowledge and agree that Company cannot not undertake to review all material before it is posted, published or transmitted on or through the Service or the Tohu Movies and/or TohuMovies.com Website App, and cannot ensure prompt removal of objectionable material after it has been posted, published or transmitted. Accordingly, Company assumes no liability, and you agree that Company shall not be liable, for any action or inaction regarding transmissions, communications or content provided by any user or third party. Company further has no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
The following standards apply to any and all content that you publish, post, send or transmit through or on the Service or the Tohu Movies and/or TohuMovies.com Website App Such Content must in their entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, such content must not:
- Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
- Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
- Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
- Be likely to deceive any person.
- Promote any illegal activity, or advocate, promote or assist any unlawful act.
- Cause annoyance, inconvenience or needless anxiety or be likely to or does upset, embarrass, alarm, harass or annoy any other person.
- Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
- Involve commercial activities or sales, such as contests, sweepstakes and other sales promotions, barter or advertising.
- Give the impression that they emanate from or are endorsed by Company or any other person or entity, if this is not the case.
X. Prohibited Activities.
The Company reserves the right to investigate and/or terminate your membership or right to use the Service or the Tohu Movies and/or TohuMovies.com Website App if you have misused the Service or behaved in a way the Company in its sole discretion regards as inappropriate or unlawful, including but not limited to actions or communications the occur off the Tohu Movies and/or TohuMovies.com Website App but involve or relate to the service or involve Members or users of the Service or individuals that you met through the Service or as a result of your connection to the Service (including any events that you attended or discovered through the Service or that are connected to the Service or its Members. The following is a partial list of the type of actions that you agree not engage in with respect to or while using or accessing the Service or the Tohu Movies and/or TohuMovies.com Website App. You shall not:
A. impersonate any person or entity.
B. solicit money from any Members.
C. post any Content that is prohibited by Section 9.
D. "stalk" or otherwise harass any person.
E. express or imply that any statements you make are endorsed by the Company without Company’s specific prior written consent.
F. ask or use Members to conceal the identity, source, or destination of any illegally gained money or products.
G. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, "data mine", or in any way reproduce or circumvent the navigational structure or presentation of the Tohu Movies and/or TohuMovies.com Website App, Service or its contents.
H. collect usernames and/or email addresses of members by electronic or other means for the purpose of sending unsolicited email or unauthorized framing of or linking to the Tohu Movies and/or TohuMovies.com Website App.
I. interfere with or disrupt the Service or the Tohu Movies and/or TohuMovies.com Website App or the servers or networks connected to the Service or the Tohu Movies and/or TohuMovies.com Website App.
J. email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
K. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted to or through the Tohu Movies and/or TohuMovies.com Website App or Service (either directly or indirectly through use of third party software).
L. "frame" or "mirror" any part of the Service or the Tohu Movies and/or TohuMovies.com Website App, without the Company's prior written authorization.
M. use meta tags or code or other devices containing any reference to the Company, the Tohu Movies and/or TohuMovies.com Website App or the Service (or any trademark, trade name, service mark, logo or slogan of the Company) to direct any person to any other Tohu Movies and/or TohuMovies.com Website App for any purpose.
N. modify, adapt, sublicense, translate, sell, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Service or the Tohu Movies and/or TohuMovies.com Website App or any software used on or for the Service or the Tohu Movies and/or TohuMovies.com Website App, or cause others to do so.
O. post, use, transmit or distribute, directly or indirectly, (e.g. screen scrape) in any manner or media any content or information obtained from the Tohu Movies and/or TohuMovies.com Website App or the Service other than solely in connection with your use of the Service in accordance with this Agreement.
XI. Customer Service.
The Company provides assistance and guidance through its customer care representatives. When communicating with our customer care representatives (whether over the telephone, or via email or letter), you agree to not be abusive, obscene, profane, offensive, sexist, threatening, harassing, racially offensive, or to not otherwise behave inappropriately. Telephone calls between you and our customer care representatives may be recorded for quality assurance purposes. If we feel that your behavior towards any of our customer care representatives or other employees is at any time threatening or offensive, we reserve the right to immediately terminate your membership and you will not be entitled to any refund of unused fees.
XII. Subscriptions; Charges on Your Billing Account.
A. The Company bills you through an online account (your "Billing Account") for use of the Service. Your Billing Account is charged through an intermediary provider such as iTunes, Google Play, or a similar app store (the “AppStore”). You agree to pay the Company via the applicable AppStore all charges at the prices you agreed to for any use of the Service by you or other persons (including your agents) using your Billing Account, and you authorize the Company to charge, or cause the AppStore to charge your chosen payment provider (your "Payment Method") for the Service on file with the AppStore per the AppStore’s terms and conditions. You agree to make payment using that selected Payment Method. All billing errors or mistakes must be corrected by the AppStore, and you understand that the Company cannot cause the AppStore to take action. This Section 12 includes any agreements you made with the Company on the Tohu Movies and/or TohuMovies.com Website App when becoming a Member or subscribing to the Service. The terms of your payment will be based on your Payment Method, any applicable AppStore terms or contracts that you agreed to, and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If you initiate a chargeback or otherwise reverse a payment made with your Payment Method, the Company may in its discretion terminate your account immediately. If the Company or AppStore successfully disputes the reversal, and the reversed funds are returned, you are not entitled to a refund or to have your account or subscription reinstated. You agree to comply with all agreements with and the terms and conditions of the applicable AppStore.
B. Your subscription will continue indefinitely until cancelled by you. After your initial subscription commitment period (where applicable), and again after any subsequent subscription period (where applicable), your subscription will automatically continue for an additional equivalent period, at the price you agreed to when subscribing. You agree that your account will be subject to this automatic renewal feature. If you do not wish your account to renew automatically, or if you want to change or terminate your subscription, please follow your AppStore procedures to cancel, currently as follows for iPhone and Android:
Apple Auto Renewal Cancellation:
To cancel your auto renewal, follow the directions below.
- Go to your iPhone/iPad/iPod settings.
- Scroll down and tap the iTunes and App Store tab.
- Tap your Apple ID tab at the top of the page, tap View Apple ID, and then enter your password.
- Scroll down to see your renewing subscriptions.
- Find Tohu Movies and/or TohuMovies.com, and turn the Auto Renewing toggle button off.
Android Auto Renewal Cancellation:
To cancel auto renewal on your Android device:
- Tap the Play Store icon
- Search for Tohu Movies and/or TohuMovies.com, and then tap the corresponding Tohu Movies and/or TohuMovies.com entry once it appears
- Notice that just below the Tohu Movies and/or TohuMovies.com headline, you will see your renewing subscription information.
- You can just tap Cancel here to cancel your auto renewing subscription.
- If you do not see the information the first time, try following the directions a second time, and make sure you follow them precisely.
- If You are still unsuccessful, please copy and paste the following link into your browser. This is a direct link to Google Support: https://support.google.com/googleplay/answer/2660277?hl=en
C. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you won’t be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize the Company to charge your Payment Method via the AppStore now and again at the beginning of any subsequent subscription period. You also authorize the Company and/or AppStore to charge you via the AppStore for any sales or similar taxes that may be imposed on your subscription payments.
D. You must provide current, complete and accurate information to us for your Billing Account (whether provided to us through the AppStore, directly to us or otherwise). You must promptly update all information to keep your Billing Account current, complete and accurate (such as a change in billing address, card number or expiration date), and you must promptly notify the Company if your Payment Method is canceled (including if you lose your card or it is stolen), or if you become aware of a potential breach of security (such as an unauthorized disclosure or use of your name or password), and such notification must be sent to the AppStore if your card is stored with the AppStore. Changes to such information can be made through the AppStore by following the AppStore Procedures using the AppStore website or otherwise as directed by the AppStore. If you fail to provide the Company (and AppStore as applicable) any of the foregoing information, you agree that you are responsible for fees accrued under your Billing Account as provided herein and as provided pursuant any existing terms agreed upon or in effect with the AppStore.
XIII. Modifications to Service.
The Company reserves the right at any time to modify or discontinue, temporarily or permanently, the Tohu Movies and/or TohuMovies.com Website App or the Service (or any part, feature, add-on, or other part thereof) with or without notice. You agree that the Company shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service. To protect the integrity of the Tohu Movies and/or TohuMovies.com Website App or the Service, the Company reserve shall have the right (but not the obligation) at any time in its sole discretion to block or restrict your or any member’s, members’, user’s or users’ access from using or accessing the Tohu Movies and/or TohuMovies.com Website App or the Service by any means, including but not limited to by blocking an entire IP address from accessing the Tohu Movies and/or TohuMovies.com Website App or Service.
XIV. Copyright Policy; Notice and Procedure for Making Claims of Copyright Infringement.
You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, trade secrets, confidential information, or other proprietary information without obtaining the prior written consent of the owner of such rights. Without limiting the foregoing, if you believe that your work has been copied and posted on the Tohu Movies and/or TohuMovies.com Website App or the Service in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information:
A. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
B. a description of the copyrighted work that you claim has been infringed;
C. a description of where the material that you claim is infringing is located on the Tohu Movies and/or TohuMovies.com Website App or the Service (and such description must be reasonably sufficient to enable the Company to find the alleged infringing material, such as a url);
D. your mailing address, telephone number(s) and email address;
E. a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
F. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Notice of claims of copyright infringement should be provided to the Company’s Copyright Agent at firstname.lastname@example.org
or the following address:
Schwartz Rimberg, LLP
c/o Jeff Neiderman, Esq.
6310 San Vicente Boulevard, Suite 360
Los Angeles, CA 90048
Please send all notices by trackable commercial mail (e.g. Fedex, UPS) or USPS Certified Mail, return receipt requested to the above address in care of Leon Bass, and please also send notice by email to:
with cc to Dschwarcz@srbr-law.com
The Company has the absolute right in its sole discretion to terminate your account or the account(s) of infringers or take any other action, or refrain from taking any action, at its sole discretion.
XV. Communications and Test Profiles.
A. You acknowledge and agree that neither the Company nor its affiliates and third party partners are responsible for and shall not have any liability, directly or indirectly, for any loss or damage, including personal injury or death, as a result of or alleged to be the result of (i) any incorrect or inaccurate Content posted on the Tohu Movies and/or TohuMovies.com Website App or provided in connection with the Service, whether caused by the Company, users or Members, any third party, or any of the equipment or programming associated with or utilized in the Tohu Movies and/or TohuMovies.com Website App or Service; (ii) the timeliness, deletion or removal, incorrect delivery or failure to store any Content, communications or personalization settings; (iii) the conduct, whether online or offline, of any Member or user, or anyone that you met or with whom you became acquainted in whole or part as a result of the Tohu Movies and/or TohuMovies.com Website App or Service or otherwise with whom your connection is related to the Tohu Movies and/or TohuMovies.com Website App or Service; (iv) any error, omission or defect in, interruption, deletion, alteration, delay in operation or transmission, theft or destruction of, or unauthorized access to, any user or Member communications or content or personal information; or (v) any problems, failure or technical malfunction of any telephone network lines, cable lines, satellites or other communications systems or networks, computer online systems, servers or providers, computer equipment, software, failure of email or players on account of technical problems or traffic congestion on the Internet or at any Tohu Movies and/or TohuMovies.com Website App or in connection with the Service or any combination thereof, including injury or damage to Members or to any other person's computer related to or resulting from participating or downloading materials in connection with the Internet and/or in connection with the Tohu Movies and/or TohuMovies.com Website App or Service, including but not limited to any malicious acts of others (e.g. “hacking”, viruses, Trojan applications, etc.). TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, THE COMPANY PROVIDES THE Tohu Movies and/or TohuMovies.com WEBSITE APP AND THE SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS AND GRANTS NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO THE SERVICE OR THE Tohu Movies and/or TohuMovies.com WEBSITE APP (INCLUDING ALL CONTENT CONTAINED THEREIN), INCLUDING (WITHOUT LIMITATION) ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, SECURE OR THAT ANY DEFECTS OR ERRORS ON THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR IN THE SERVICE WILL BE CORRECTED.
B. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR Tohu Movies and/or TohuMovies.com WEBSITE APP IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOU OR YOUR COMPUTER SYSTEM OR OTHER PROPERTY, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OR CORRUPTION OF DATA OR FILES THAT RESULTS OR MAY RESULT FROM THE DOWNLOAD OF ANY SUCH MATERIAL OR ANY USE OF THE SERVICE OR Tohu Movies and/or TohuMovies.com WEBSITE APP. IF YOU DO NOT ACCEPT THIS LIMITATION OF LIABILITY, YOU ARE NOT AUTHORIZED TO DOWNLOAD OR OBTAIN ANY MATERIAL THROUGH THE SERVICE OR TOHU MOVIES WEBSITE APP OR USE THE SERVICE OR THE Tohu Movies and/or TohuMovies.com WEBSITE APP.
C. From time to time, the Company may make third party opinions, advice, statements, offers, or other third party information or content available on the Tohu Movies and/or TohuMovies.com Website App and/or through the Service or otherwise to you by any other means. All third party content is the responsibility of the respective authors thereof and should not necessarily be relied upon. Such third party authors are solely responsible for such content. THE COMPANY DOES NOT: (I) GUARANTEE THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY THIRD PARTY CONTENT ON THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR PROVIDED THROUGH THE SERVICE, OR (II) ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY PARTY THAT APPEARS ON THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR SERVICE OR COMMUNICATED TO YOU BY COMPANY. UNDER NO CIRCUMSTANCES WILL THE COMPANY OR ITS AFFILIATES BE RESPONSIBLE OR LIABLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR USE OR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED ON THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR SERVICE, PROVIDED TO YOU BY COMPANY, OR TRANSMITTED TO OR BY ANY MEMBERS.
D. In addition to the preceding paragraph and other provisions of this Agreement, any advice, information, suggestions, articles, or other content that may be posted on the Tohu Movies and/or TohuMovies.com Website App or through the Service or otherwise provided to you by the Company is for informational and entertainment purposes only and is not intended to replace or substitute for your own sound judgment or any professional financial, medical, legal, or other advice. The Company makes no representations or warranties and expressly disclaims any and all liability concerning any treatment, action by, or effect on any person using, relying on or following the information offered or provided within or through the Tohu Movies and/or TohuMovies.com Website App or Service or otherwise provided by the Company. If you have specific concerns or a situation arises in which you require legal, medical, psychiatric, financial, or other professional advice, including but not limited to safety advice, you should consult with an appropriately trained and qualified specialist.
The Tohu Movies and/or TohuMovies.com Website App may contain, and the Service or third parties may provide, advertisements and promotions offered by third parties and links to other web sites or resources. You acknowledge and agree that the Company is not responsible for the availability of such external website or resources, and does not endorse and is not responsible or liable for any content, information, statements, advertising, goods or services, or other materials on or available from such websites or other third party resources. Your correspondence or business dealings with, and/or participation in promotions of, third parties found on or through the Tohu Movies and/or TohuMovies.com Website App or Service, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. You further acknowledge and agree that the Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of, or reliance upon, any such content, information, statements, advertising, goods or services or other materials available on or through any such website or third-party resource.
XVIII. Limitation on Liability.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL THE COMPANY, ITS AFFILIATES, BUSINESS PARTNERS, LICENSORS, ADVERTISERS, ADVISORS, ATTORNEYS, AGENTS, OFFICERS, DIRECTORS, TRUSTEES, MEMBERS, OWNERS, SHAREHOLDERS, PARTNERS, EMPLOYEES, CONTRACTORS OR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PERSON FOR ANY INDIRECT, RELIANCE, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR PERSONAL INJURY OR INJURY TO PROPERTY OR ANY OTHER CLAIM SOUNDING IN THE NATURE OF TORT, BREACH OF AGREEMENT, BREACH OF INTELLECTUAL PROPERTY RIGHTS, CLAIMS IN THE NATURE OF PRIVACY OR INVASION OF PRIVACY, DEFAMATION, FALSE LIGHT, EMOTIONAL DISTRESS OR PUBLICITY, DAMAGES FOR LOSS OR CORRUPTION OF DATA OR PROGRAMS, SERVICE INTERRUPTIONS AND PROCUREMENT OF SUBSTITUTE SERVICES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO THE COMPANY FOR THE SERVICE DURING THE TERM OF MEMBERSHIP. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE Tohu Movies and/or TohuMovies.com WEBSITE APP OR SERVICE OR THE TERMS OF THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
XIX. Arbitration and Governing Law.
A. The exclusive means of resolving any dispute or claim arising out of or relating to this Agreement (including any alleged breach thereof), the Service, or the Tohu Movies and/or TohuMovies.com Website App shall be BINDING ARBITRATION administered by the Alternative Resolution Centers, Inc. (“ARC”) in Los Angeles, CA. You also warrant, represent and agree that you will not and may not under any circumstances commence or maintain against the Company any class action, class arbitration, or other representative action or proceeding and you acknowledge that the Company is relying on this provision, agreement, warranty and representation in connection with its decision to allow you to use the Tohu Movies and/or TohuMovies.com Website App and/or Service, and you therefore agree to fully indemnify Company for all damages, including attorney’s fees and any and all litigation costs and expenses incurred as a result of a breach hereof.
B. By using the Tohu Movies and/or TohuMovies.com App or the Service in any manner, you agree to the above arbitration agreement. In doing so, YOU GIVE UP YOUR RIGHT TO GO TO COURT
to assert or defend any claims between you and the Company. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION OR OTHER CLASS PROCEEDING
. Your rights will be determined by a NEUTRAL ARBITRATOR, NOT A JUDGE OR JURY
. Both the Company and You are entitled to a fair hearing before the arbitrator. The arbitrator can grant any relief that a court can (subject to the provisions and terms hereof), but you should note that arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings and different rules and procedures may apply. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. In the event of Arbitration, you agree that the following procedures (the “Arbitration Procedures”) will apply:
- Pre-Arbitration Dispute Resolution. Tohu Movies and/or TohuMovies.com Website App and/or the Service is interested in resolving any disputes amicably and efficiently. Therefore, before you file an arbitration proceeding, we suggest that you contact us to explain your complaint, so that we may attempt to resolve it without the need for arbitration. You may Contact Us online or at Tohu Movies and/or TohuMovies.com Website App and/or the Service by email at email@example.com.
- Alternative Resolution Centers, Inc. Administrator. The administrator for the arbitration is the American Arbitration Association (“ARC”), a non-profit organization that is not affiliated with Tohu Movies and/or TohuMovies.com Website App and/or the Service. The ARC facilitates, but does not itself conduct, the arbitration. The arbitrator who will hear and decide your dispute will be chosen from the ARC’s roster of neutral arbitrators. For information on the ARC, please visit its website, http://www.arc4adr.com. Information about the ARC’s rules and fees for consumer disputes can be found at the ARC’s consumer arbitration page, http://www.arc4adr.com .
- Applicable Rules. The arbitration will be governed by the ARC’s Commercial Arbitration Rules and it’s Consumer-Related Disputes Supplementary Procedures (together, the “ARC Rules”), as modified by these Arbitration Procedures. If there is any inconsistency between the ARC Rules and these Arbitration Procedures, the Arbitration Procedures will control. However, if the arbitrator determines by clear and convincing evidence that strict application of the Arbitration Procedures would not result in a fundamentally fair arbitration, the arbitrator may make any order necessary to provide a fundamentally fair arbitration that is consistent with the ARC Rules.
- Commencing Arbitration. To commence arbitration against Tohu Movies and/or TohuMovies.com Website App and/or the Service, you must complete a short form, submit it to the ARC, and send a copy by certified mail with return receipt to the Company at Attention Legal, using the official agent on file in connection with the official business records of company at the California Secretary of State. See the ARC’s claim filing page, http://www.arc4adr.com. Upon receipt of an arbitration claim, the Company may assert any counterclaims and defenses it may have against the complaining party.
- Fees. You are responsible for paying your portion of the fees set forth in the ARC’s fee schedule for consumer disputes. The Company will pay all remaining fees.
- Selection of the Arbitrator. The parties, using the ARC’s standard procedures, will select a single arbitrator from a roster of neutrals prepared by the ARC.
- Discovery. Each party may (a) request relevant, non-privileged documents from the other party; and (b) request that the other party provide the particulars of its claims or defenses. Any such discovery requests must be served on the other party within 10 days after the arbitrator’s appointment. The responding party shall provide the requesting party with all responsive, non-privileged documents, the requested particulars, and/or any objections to the requests within 15 days after receipt of the requests. Any disputes about discovery or requests for extensions shall be submitted promptly to the arbitrator for prompt resolution. In ruling on any discovery dispute or extension request, the arbitrator shall take into consideration the nature, amount, and scope of the underlying arbitration claim, the cost and other effort what would be involved in providing the requested discovery, the case schedule, and whether the requested discovery is necessary for the adequate preparation of a claim or defense. In addition, the Arbitrator shall take make special considerations with respect to the Company’s confidential information, trade secrets, and other non-public information and use all practical efforts to protect such information, including, if necessary, the use of a protective order and the designation of such material as “attorney’s eyes only.”
- Communications with the Arbitrator. Whenever communicating with the arbitrator, the parties must include each other – for example, by including the other party on a telephone conference call and copying the other party on any written submissions, such as letters or emails. To the extent practicable, conferences with the arbitrator will take place by telephone conference call or email. Ex parte communications are not permitted with any arbitrator.
- Confidentiality. Upon either party’s request, the arbitrator will issue an order requiring that confidential information of either party disclosed during the arbitration (whether in documents or orally) may not be used or disclosed except in connection with the arbitration or a proceeding to enforce the arbitration award and that any permitted filing of confidential information must be done under seal.
- Arbitration Award. The arbitrator will render a written decision within 14 days after the hearing or, if no hearing was held, within 30 days after any rebuttal or supplemental statements are due. The decision must clearly specify the relief, if any, awarded and contain a brief statement of the reasons for the award.
C. Any proceeding to enforce this arbitration agreement, including any proceeding to confirm, modify, or vacate an arbitration award, shall be commenced in any court of competent jurisdiction located in Los Angeles County, CA and in the event that this arbitration agreement is for any reason held to be unenforceable, any litigation against the Company must be commenced only in the federal or state courts located in Los Angeles County, CA. You hereby irrevocably consent to the jurisdiction of courts in Los Angeles County, CA for such purposes and waive any claim of forum non-convenes and all other jurisdictional claims or those related to venue.
D. This Agreement, and any dispute between you and the Company, shall be governed by the laws of the state of California without regard to principles of conflicts of law, provided that this arbitration agreement shall be governed by the Federal Arbitration Act.
XX. Indemnity by You.
You agree to indemnify and hold the Company, its subsidiaries, and affiliates, and its and their officers, agents, partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney's fees and all litigation costs and expenses incurred by Company in defense of any claim or demand, made by any third party due to or arising out of your breach of or failure to comply with this Agreement (including any breach of your representations and warranties contained herein), any statement, postings or Content that you make, post, transmit, publish or otherwise send or provide on or through the Tohu Movies and/or TohuMovies.com Website App or Service or as a result of the Service, and the violation of any law or regulation by you. The Company reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with the Company in connection therewith.
The Company may provide you with notices, including those regarding changes to this Agreement, using any reasonable means now known or hereafter developed, including by email, regular mail, SMS, MMS, text message or postings on the Tohu Movies and/or TohuMovies.com Website App or through the Service. Such notices may not be received if you violate this Agreement by accessing the Service in an unauthorized manner. You agree that you are deemed to have received any and all notices that would have been delivered had you accessed the Service in an authorized manner. To be effective, all notices sent to you by Company pursuant to this Agreement shall be in writing and must be sent to firstname.lastname@example.org
XXII. Entire Agreement; Other.
This Agreement is subject to change by the Company at any time. The revised terms will be effective upon posting on the Tohu Movies and/or TohuMovies.com Website App and your use of the Service after such posting will constitute acceptance by you of the revised Agreement.
XXIV. Special State Terms.
The following provisions are added to this Agreement for subscribers residing in states having applicable consumer law provisions, including: Arizona, California, Connecticut, Illinois, Iowa, Minnesota, New York, North Carolina, Ohio and Wisconsin:
You, the buyer, may cancel this agreement, without penalty or obligation, at any time prior to midnight of the third business day following the original date of this contract, excluding Sundays and holidays. To cancel this agreement, mail or deliver a signed and dated notice which states that you, the buyer, are canceling this agreement, or words of similar effect. This notice shall be sent to: Tohu Movies and/or TohuMovies.com, Attn: Cancellations to email@example.com
. Please include your Tohu Movies and/or TohuMovies.com username and email address in any correspondence or your refund may be delayed. If you cancel, Tohu Movies and/or TohuMovies.com will return, within ten days of the date on which you give notice of cancellation, any payments you have made. If you send or deliver the notice to cancel your subscription agreement within such three day period, we will refund the full amount of your subscription.
In the event that you die before the end of your subscription period, your estate shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your death. In the event that you become disabled (such that you are unable to use the services of Tohu Movies and/or TohuMovies.com) before the end of your subscription period, you shall be entitled to a refund of that portion of any payment you had made for your subscription which is allocable to the period after your disability by providing the company notice at the same address as listed above.
Your estate must request refunds through the AppStore and you acknowledge that Company is unable to provide any refunds directly.
Please Contact Us with any questions regarding this agreement.
Tohu Movies ® and TohuMovies.com is a Trademark of TOHU Entertainment, LLC. Apple, iPhone, iPod touch, iPad and iTunes are trademarks of Apple Inc., registered in the U.S. and other countries.
Customer agrees and acknowledges the following "Terms and Conditions" which apply to Customer ("Customer "or "You") for each use of any services available through the MarkMonitor website.
Services/Projects/Titles: MarkMonitor agrees to provide Anti-Piracy, Security and Business Intelligence Services under the terms and conditions of this agreement and as described in any applicable Estimate.
Payment Terms. Payments shall be made within thirty (30) days after Customer’s receipt of invoice.
Term. Unless otherwise agreed in writing, the term of the Services shall be for a one year period and continue on a month-to-month basis thereafter, unless terminated in writing by a party.
Data. MarkMonitor shall maintain back-up copies of the evidence for as long as reasonably requested in writing by Customer as allowed by the applicable laws. Data will be supplied to Customer by email, on DVD or as otherwise requested by Customer. MarkMonitor ensures that the transport of evidence is done in a manner approved by both Parties. MarkMonitor agrees to process and use the Data solely for the purposes set forth in this Agreement.
Intellectual Property Rights
Ownership of Titles and Infringing Copies Thereof: As between Customer and MarkMonitor, all right, title and interest in and to the Titles, and any elements thereof, shall remain with Customer.
Ownership of Technology: Customer acknowledges and agrees that, as between the parties, MarkMonitor holds all right, title and interest in and to any technology and software used by MarkMonitor in providing the Services (subject to any third party rights or restrictions), including all applicable rights to patents, copyrights, trademarks and trade secrets inherent therein and appurtenant thereto.
Ownership of Data: As between Customer and MarkMonitor, Customer shall have the ownership to the Data, including all reports prepared by MarkMonitor pursuant to this Agreement. In relation to all Personal Information made available to MarkMonitor by Customer or which MarkMonitor processes on behalf of Customer under this agreement, MarkMonitor shall comply with the applicable data protection laws and regulations.
Unauthorized Use of Services. Customer is responsible for the use of the Services by any employee of Customer, any person to whom Customer have given access to the Services, and any person who gains access to Customer's data or the Services as a result of Customer's failure to use reasonable security precautions, even if such use was not authorized by Customer. Customer agrees to assume sole responsibility for the security of any and all passwords issued by MarkMonitor for purposes of accessing the data provided under this Agreement, and shall promptly notify MarkMonitor of the loss or theft of any password.
For the purposes hereof, “Confidential Information” is any information disclosed to the other Party whether orally or in writing that is either nonpublic, confidential or proprietary in nature, which may include (i) information relating to the financial marketing, organizational and trading position of the applicable Party including any details of industry, customers, suppliers, advertisers, debtors or creditors, (ii) technical information relating to any product or service supplied by the applicable Party, (iii) information relating to intellectual property rights in respect of the applicable Party, (iv) information relating to the officers, directors or employees of the applicable Party including their terms and conditions of employment or engagement, or (v) any other information which may from time to time be identified by the applicable Party as being of a confidential nature and as being subject to the terms of this Agreement. Confidential Information shall include Data, as well as the prices and terms of this Agreement.
Each of the Parties shall: (i) utilize the other Party’s Confidential Information exclusively for the purpose of this Agreement, and (ii) not disclose the other Party’s Confidential Information to any person other than: (a) the applicable Party’s directors and officers or other employees whose knowledge of such information is appropriate for the said purposes, (b) any professional advisers acting on the applicable Party’s behalf in connection with the said purposes, (c) any representative of any financial institution or investor as part of the "due diligence" in connection with any potential loan, investment, merger or acquisition, or (d) any other person approved in writing by the disclosing Party.
It is accepted by the Parties that nothing contained in this Agreement shall in any way restrict either of the Parties’ right to use, disclose or otherwise deal with any of the Confidential Information which (i) is rightfully obtained by the receiving Party without breach of any obligation to maintain its confidentiality; (ii) is or becomes known to the public through no act or omission of the receiving Party; (iii) the receiving Party develops independently without using the Confidential Information of the other Party; (iv) was in the Recipient's possession prior to its being disclosed; or (v) is disclosed in response to a valid court or governmental order if the receiving Party has complied with the requirements set forth in Section 10.D.
In the event that a Party receives a request or demand, by subpoena or otherwise, from any person or by court or governmental order that appears to call for the disclosure or production of any Confidential Information, such Party shall, in addition to preserving and invoking all applicable privileges, immunities and protections as required by this Agreement, immediately notify, unless prohibited by law, the other Party of such request and shall not voluntarily surrender or disclose any Confidential Information without first providing, to the extent legally permissible, the other Party a reasonable opportunity to protect its interests in an appropriate court, or in such other manner as may be appropriate having regard to the nature and source of the request or demand. Each Party shall take all steps necessary to permit the assertion of all applicable rights and privileges with respect to all Confidential Information and will cooperate fully with the other Party to this Agreement in any judicial proceeding relating to the disclosure of Confidential Information. Nothing in this Agreement shall require any Party or representative thereof to go into contempt of court for violating a court order.
Termination for Cause by Either Party: This Agreement may be terminated by either party if the other party is in breach of any of its material obligations contained herein and such breach is not reasonably cured by the breaching party within thirty (30) days of receipt of written notice of an alleged breach.
By MarkMonitor: MarkMonitor may terminate this Agreement or, at its option, the applicable SOW immediately upon notice to Customer,if it is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the such Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) MarkMonitor is at risk of being sued by a third party as a result of its provision of any of such Services.
By Customer: Customer may immediately terminate this Agreement if Customer is advised by competent outside counsel through a legal opinion of such counsel that (i) the provision of any or all of the Services will be rendered illegal as a result of legislation or a regulation then in effect or (ii) Customer is at risk of being sued by a third party in connection with the Services or the Agreement.
Indemnification. MarkMonitor shall defend, indemnify and hold harmless Customer, its affiliates, and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) MarkMonitor’s intentional or gross negligence or willful misconduct relating to the terms of this Agreement or the Services provided hereunder; or (ii) any claim that the Services infringe any U.S. patents, trade secrets, copyrights, trademarks or any other rights, including privacy rights, of any third party. MarkMonitor’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
Customer shall defend, indemnify and hold harmless MarkMonitor, its affiliates and their respective officers, directors, and employees, from and against any action, suit, claim, damages, liability, costs and expenses (including reasonable attorney’s fees and costs), arising out of (i) Customer’s intentional or grossly negligent misrepresentation of fact or data relating to the terms of this Agreement or the Services provided hereunder; (ii) any claim that the materials or records supplied to MarkMonitor by Customer infringe any U.S. copyright, trademark, patent or trade secret rights of any third party on account of the use or possession of said materials or records by MarkMonitor as contemplated within the course and scope of MarkMonitor Services under this Agreement; or (iii) any claim arising from MarkMonitor undertaking any action contemplated within the course and scope of the Services under this Agreement. Customer’s indemnification obligations, as set forth herein, shall survive the termination of this Agreement.
If either Party receives notice of a claim that is covered by this Section, such notice must be promptly forwarded to the financially responsible Party. The Party against whom the claim is made will be allowed to choose legal counsel to defend it and to make decisions regarding the defense of the claim, provided that these decisions are reasonable and are promptly communicated to the financially responsible Party. The Party against whom the claim is made may not settle the claim without the consent of the financially responsible Party, although such consent may not be unreasonably withheld.
Governing Law. The Agreement is governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America.
Notices. Notices hereunder regarding any non-routine legal matter (such as breach, indemnification, termination or arbitration) shall be in writing and deemed sufficient and received if delivered in person or when sent via pre-paid overnight courier or Certified Mail, to the address of the party set forth in the Estimate or Order.
No Waiver of Breach: Any waiver, express or implied, or any other failure to exercise a right (including any termination right) or insist on a condition, by either Customer or MarkMonitor with respect to any breach of any of the provisions of this Agreement shall not operate as a waiver of such right or as a waiver in respect of any subsequent breach of any of the provisions of this Agreement.
Force Majeure: Neither Party will be responsible for delays or failure to perform its respective duties and obligations hereunder when those delays or failures result from reasons outside its reasonable control (a “Force Majeure”). Each Party shall notify the other as soon as practicable of the occurrence of any such Force Majeure and shall continue to make commercially reasonable efforts to comply with the terms of this Agreement. The time for performance of this Agreement shall be extended for a period equal to the duration of any such Force Majeure.