Toobla Terms of Service
Welcome to Toobla.com. The following terms and conditions (the "Terms") govern your use of the Toobla.com Web sites, applications, Toobla Tools and Toobla Platform (defined below) (collectively, the “Services.”). Please review the following Terms carefully.
BY USING THE SITE, YOU ARE AGREEING ELECTRONICALLY TO THESE TERMS AND CONSENT TO THE TERMS OF OUR PRIVACY POLICY DESCRIBE BELOW.
If You do not agree to these Terms, You must cease use of the Services.
The terms “Toobla” "us", "we" or "our" refers to Toobla, Inc., the owner of the Services. The term "You" or "Your" refers to the person accessing or using the Services, or the company or organization on whose behalf that person accesses the Services.
1. Our Services
The Services include a widget platform that allows You to create channels, store, utilize and share content in real time on the Toobla site as well as third party sites using our proprietary platform (the "Toobla Platform"). In order for us to provide You with the Services, You understand and agree that You (i) allow Toobla to retrieve, distribute and access Your Content (as defined below) as well as (ii) combine Your Content with our proprietary platform, which may include our sharing, tracking and other capabilities (the "Toobla Tools"). One of the basic functions of the Services is to enable distribution of Your Content, and as such, You authorize us to reference and distribute Your Content on the Services and to other various delivery points.
2. Your Account
You will need to create an account with us if you desire to have access to certain restricted areas of the Services. You can create an account by following the registration instructions provided on the Services. If You choose to register, You agree to provide only accurate, complete registration information about yourself, and You will keep that information up-to-date if it changes. Your registration must be done using Your real name. We may refuse the use of any user name that we determine is unacceptable and we may reject in our sole discretion any request to open an account. You must be at least 13 years old to utilize the Services. Each registration is for Your personal use of the Services. Access and use of the Services are not authorized by any other person or entity using Your registration, and You are responsible for preventing such unauthorized use. You are responsible for all activity occurring under Your account and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Services, including those related to data privacy, international communications and the transmission of technical or personal data.
3. Modifications to Service or Terms
We retain all rights to determine the features and capabilities included as part of the Services. We may include features and capabilities that link to third-party services, content, advertisements, applications, widgets or websites from the Services.
We reserve the right to modify, suspend, or discontinue all or any aspect of the Services from time-to-time, with or without notice to You, and we are not liable to You or any third party should we exercise such right. We may from time-to-time modify the Terms, which will take effective after we post or otherwise notify you about material changes to the Terms. If You object to any such changes to the Services or the Terms, Your sole recourse is to discontinue using the Services. Continued access and/or use of the Services following notice of any such changes shall indicate Your assent to and acceptance of such changes.
4. Termination
You acknowledge and agree that we, at our sole discretion, may terminate Your use of the Services without prior notice (a) if we believe in our discretion that You have violated or acted inconsistently with these Terms or our privacy policy or (b) if we determine in our sole discretion to terminate the Services to You or any other user. You agree that we shall not be liable to You or any third party for termination of Your access to the Services. In the event of any termination, You will immediately cease access to the Servicers and we will no longer provide You the Services. Upon termination, You agree to promptly pay any outstanding fees, if any, owed under these Terms.
5. Third Party Sites
The Toobla Tools may contain links to third party content, websites, advertising, applications or widgets that are not owned or controlled by Toobla. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third party websites, advertising, applications or widgets. In addition, Toobla will not and cannot censor or edit the content of any third-party website, advertisement, application or widget. By using the Services, You expressly relieve Toobla from any and all liability arising from Your use of any third-party content.
6. No Fees for Basic Services; Advertising
We do not charge a fee to access our basic Services. The basic Services are supported by advertising. As consideration for using the Services, you consent to our placement of such advertising. Toobla has the sole discretion in its choice and placement of advertising. All advertising space and corresponding advertising revenue on the Services shall belong to Toobla. You understand and agree that any your correspondence or business dealings with, or participation in promotions of advertisers found on or through the Services, 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 advertiser. You agree that we shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers on the Services. We may make additional premium or advertising-supported Services available to You from time to time and such additional services may be subject to different terms and fees. We will make such additional terms and/or fees known to You before utilizing any additional Services.
7. General Rules of User Conduct
It is our goal to make the use of our Site and Services a good experience for all of our users, so You agree not to do any of the following:
Conduct or promote any illegal activities while using the Services; Upload, post, transmit or otherwise make available on or through Your Your Content any content or information that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, harmful to minors in any way, or racially, ethnically or otherwise objectionable; Attempt to reverse engineer or jeopardize the correct functioning of the Site or Services, or otherwise attempt to derive the source code of the Toobla Platform (including the tools, methods, processes, and infrastructure) that enables or underlies the Services; Modify, change or alter in any way, the proprietary content of a third party using the Toobla Platform; Use the Services in any manner which interferes with the performance or functionality of the Toobla Platform; Attempt to gain access to secured portions of the Site to which You do not possess access rights; Upload or transmit any form of virus, worm, Trojan horse, or other malicious code; Promote or advertise any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) violates the terms of service of any website upon which Your Content is viewed, or (c) Toobla determines, in its sole discretion, is inappropriate to be promoted through the Site or the Services; Use the Site or Services to generate unsolicited email advertisements or spam; or Use any automatic or manual process to search or harvest information from the Site or Services, or to interfere in any way with the proper functioning of the Site and Services.
8. Your Content
Your content may now or in the future include but is not limited to videos, images, audio clips, photos, graphic designs, advertisements, sponsorships and/or other types of content submitted by You or others enabled by You ("Your Content").
You shall be solely responsible for Your Content and the consequences of posting or publishing such content. In connection with Your Content, You affirm, represent, and/or warrant that: (i) You own or have the necessary licenses, rights, consents, and permissions to use and authorize Toobla to use all patent, trademark, trade secret, copyright or other proprietary rights in and to any and all Your Content to enable inclusion and use of the Your Content in the manner contemplated by our Services and these Terms; and (ii) You have the written consent, release, and/or permission of each and every identifiable individual person in Your Content to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of Your Content in the manner contemplated by our Services and these Terms. For clarity, You retain all of Your ownership rights in Your Content. However, by placing the Your Content in the Toobla Tools, You hereby grant Toobla a worldwide, non-exclusive, royalty-free, sub-licenseable and transferable license to use, store, reproduce, reformate, distribute, transmit, prepare derivative works of, display, and perform Your Content in connection with our Services and Toobla (and its parent and successor's) business, including without limitation for promoting and redistributing Your Content (and derivative works thereof) in any media formats and through any media channels. You also hereby grant each user accessing Your Content a non-exclusive license to access Your Content, and to use, reproduce, distribute, display and perform Your Content. The foregoing license granted by You terminates once You block access to, remove or delete Your Content.
In connection with Your Content, You further agree that You will not: (i) 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 Toobla all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Toobla or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) impersonate another person. Toobla does not endorse any of Your Content or any opinion, recommendation, or advice expressed therein, and Toobla expressly disclaims any and all liability in connection with Your Content. Toobla shall have no obligation to monitor content and materials offered via the Services, although Toobla reserves the right to spot check for violations and take such action as Toobla deems necessary in its sole discretion. Toobla does not condone copyright infringing activities and infringement of intellectual property rights throughout its Service, and Toobla will remove Your Content if properly notified that Your Content infringes on another's intellectual property rights. Toobla will also suspend and/or terminate a user's access to our Service, 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 Your Content removed more than twice. Toobla also reserves the right to decide whether Your Content is appropriate and complies with these Terms for violations other than copyright infringement and violations of intellectual property law, such as, but not limited to obscene or defamatory material. Toobla may remove Your Content and/or suspend or terminate a user's access for uploading such material in violation of these Terms at any time, without prior notice and at its sole discretion.
9. DMCA Copyright Claim
If You are a copyright owner or an agent thereof and believe that Your Content or other content infringes upon your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") by providing our Copyright Agent with the following information in the form of a written notification (pursuant to 17 U.S.C., section 512(c)) must be provided to Toobla's designated Copyright Agent:
Identification of the copyrighted work(s) that You claim to have been infringed; Identification of where the infringing material is located (i.e., identification of the content containing the allegedly infringing material); A statement that You have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; A statement that the information in the notification is accurate, and that under penalty of perjury, You are either the owner of the copyright that has allegedly been infringed or that You are authorized to act on behalf of the copyright owner; Your address, telephone number, and e-mail address; and Your physical or electronic signature.
Please note that, pursuant to 17 U.S.C., section 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney's fees incurred by Toobla in connection with the written notification and allegation of copyright infringement.
Toobla's designated Copyright Agent to receive notifications of claimed infringement is:
By mail:
Toobla, Inc.
1275 Kinnear Rd.
Columbus, OH 43212
By Email:
copyright@toobla.comFor clarity, only DMCA notices should go to the Copyright Agent; any other feedback, comments, requests for technical support, and other communications should be directed to Toobla customer service. You acknowledge that if You fail to comply with all of the requirements of this Section, Your DMCA notice may not be valid.
10. Data Rights
In order to provide certain Services, You must allow us to use raw data related to the use and distribution of Your Content ("Data") that will be collected as part of the Services. You hereby grant Toobla a non-exclusive, perpetual, worldwide and irrevocable right and license to utilize the Data to track, extract, compile, synthesize, aggregate, and analyze such Data, including, but not limited to, the creation of anonymous and promotional tracking data ("Tracking Data"). We reserve the right to use, reproduce, distribute and display Tracking Data, in our sole discretion.
11. Code Caching Policy
You are allowed to self host or cache the code for the Toobla Platform on your website in accordance with these Terms and the stated policies on the Services. In order to self host and/or code cache, you will register with us on the Services. We will provide you with a URL from which you may load the code. You will not host the code for the Toobla Platform on a Content Delivery Network. You will not change, alter or modify the code for the Toobla Platform in anyway. You will only host the root javascript - and no other images, style sheets, or subsequent asset load. You will refresh the code on a regular basis (at least once every 24 hours) to allow us to provide updates and bug fixes. You agree that if you self host and/or cache the code for the Toobla Platform you are not acquiring any ownership rights in or to the Toobla Platform or any intellectual property rights associated with the Toobla Platform, the Site or us. If you violate any of the provisions in these Terms or stated policies on the Site regarding self hosting, we may revoke your right to self host and/or cache the code of the Toobla Platform. We may change the rules and terms of this Section or supplement these Terms at any time; therefore, you agree to review periodically these Terms for changes.
12. Non-Confidentiality and Privacy
You understand that information that You submit to us, including, Your Content, is submitted precisely for the purpose of public disclosure in a variety of media and channels, and therefore such information is not subject to any confidentiality obligation. As a condition for using the Services, you agree to the terms of the Toobla Privacy Policy, which may be updated from time to time, as provided in the policy.
13. Trademarks
“TOOBLA”, toobla.com and other Toobla graphics, logos, designs, page headers, button icons, scripts and service names are registered trademarks, trademarks or trade dress of Toobla in the U.S. and/or other countries. Toobla's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Toobla.
14. Disclaimers of Warranty
THE SERVICES ARE PROVIDED ON AN "AS IS, " “WITH ALL FAULTS” AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TOOBLA, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, ACCURACY, QUIET ENJOYMENT, AND SYSTEM INTEGRATION. TOOBLA, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES MAKE NO WARRANTIES ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, OR TIMELINESS OF THE SITE, TOOBLA PLATFORM, OR SERVICES, OR THAT PROBLEMS WITH THE FOREGOING WILL BE CORRECTED, THAT THE SERVICES ARE FREE OF VIRUSES AND OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES WILL MEET YOUR REQUIREMENTS.
15. Limitations of Liability
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. IN NO EVENT WILL TOOBLA, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS OR EMPLOYEES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, INCIDENTAL AND CONSEQUENTIAL DAMAGES, NOR LOST PROFITS, ARISING IN CONNECTION WITH THE SITE, SERVICES OR THESE TERMS, INCLUDING, FOR EXAMPLE, DAMAGES RESULTING FROM LOST DATA, LOST EMPLOYMENT OPPORTUNITIES, OR BUSINESS INTERRUPTIONS, OR RESULTING FROM THE USE OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SERVICE, SITE, OR THE CONTENT. TOOBLA, ITS PARENT, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES WILL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM THE TRANSACTIONS BETWEEN YOU AND THIRD PARTY MERCHANTS OR FOR ANY INFORMATION APPEARING ON MERCHANT SITES OR ANY OTHER SITE LINKED TO OUR SITE.
THESE LIMITATIONS OF LIABILITY APPLY REGARDLESS OF THE NATURE OF ANY CLAIM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT TOOBLA IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
YOU AGREE THAT YOUR SOLE REMEDY FOR ANY CLAIMS ARISING IN CONNECTION WITH THESE TERMS IS TO DISCONTINUE USING THE SITE AND SERVICES. IN THE EVENT THAT A COURT DETERMINES THAT THE PRECEDING SENTENCE IS UNENFORCEABLE, THE AGGREGATE LIABILITY OF TOOBLA TO YOU FOR ALL CLAIMS ARISING IN CONNECTION WITH THESE TERMS WILL NOT EXCEED THE GREATER OF (A) ALL AMOUNTS PAID BY YOU UNDER THESE TERMS WITHIN THE LAST TWELVE (12) MONTHS, AND (B) ONE HUNDRED DOLLARS (U.S. $100.00).
16. Indemnification
You agree to defend, indemnify and hold harmless Toobla, its parent corporation, affiliates, officers, directors, employees, agents, licensors and authorized distributors 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 from: (i) Your use of and access to the Services; (ii) Your violation of any term of these Terms; (iii) Your violation of any third party right, including without limitation any copyright, property, or privacy right; (iv) the distribution of Your Content; or (v) any claim that Your Content or Data caused damage to a third party. This defense and indemnification obligation will survive these Terms and Your use of the Services.
17. Intellectual Property
You acknowledge and agree that we and our licensors retain ownership of all intellectual property rights of any kind related to the Services, including applicable copyrights, trademarks and other proprietary rights. We are not granting any license to You under any of those intellectual property rights by virtue of these Terms. You further acknowledge and agree that Toobla retains ownership and control over the "look and feel" and substance of the Services. We reserve all rights that are not expressly granted to You in these Terms.
As between You and us, You retain any intellectual property rights in any copyrighted materials and trademarks that are contained in Your Content, Data and Tracking Data. You grant us a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Your intellectual property rights related to Your Content and Data, to the extent necessary for us to provide and promote the Services, including, but not limited to the display, promotion and distribution of Your Content. Further, You grant us a non-exclusive, royalty-free, fully-paid, worldwide, irrevocable license to use, reproduce, adapt, modify, publish, translate, create derivative works from, communicate to the public and display the Tracking Data.
18. Electronic Notices
You understand and agree that you are entering into this agreement electronically, which will have the same force and effect as an agreement in writing. You further agree that we may provide you with required notices and terms about the Service electronically, either by (a) posting such notice on the Services or (b) by sending you e-mail to the e-mail address that you provided to us. You may always review the most current version of the Terms by clicking on the “Terms” or “Terms of Service” link on the home page of Toobla.com.
19. General Terms
You and we are independent contracts, and nothing in these Terms creates a partnership, employment relationship or agency. There are no third-party beneficiaries of these Terms. You may not assign these Terms, in whole or in part, to any third party without our prior, written consent, and any attempt by You to do so will be invalid. Should any part of these Terms be held invalid or unenforceable, that portion will be construed consistent with applicable law and the remaining portions will remain in full force and effect. Our failure to enforce any provision of these Terms will not be considered a waiver of the right to enforce such provision. Our rights under these Terms will survive any termination of these Terms. You agree that: (i) the Services shall be deemed solely based in Virginia; and (ii) our Web sites shall be deemed passive websites that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Ohio. These Terms will be governed by the laws of the State of Ohio. You agree that the state and federal courts located within the State of Ohio will have exclusive jurisdiction over any dispute between You and us. However, You agree that we may seek equitable relief in any jurisdiction when appropriate. TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TOOBLA AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, SERVICES OR TOOBLA PLATFORM MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. These Terms constitute the entire and only agreement between You and us, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings that relate to the subject matter of these Terms.
Last Updated: 23 February 2009