These Terms and Conditions (the “Terms”) govern the relationship, and serve as a legally binding agreement, between you and us, Toggle3D.ai Inc. (“Toggle3D”, “we”, “our” or “us”). These Terms set forth the terms and conditions on which you may access and use Toggle3D, a web-based 3D design studio, provided through our website at www.toggle3d.com and our related websites, services, applications, products, and content, from time to time (collectively, the “Services”). Any reference to the “Services” includes a reference to any part of the Services. For purposes of these Terms, “you” and “your” means you, the individual or entity using the Services (and any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, and all other individuals or entities acting on your behalf, at your direction, under your control, or under the direction or control of the same individual or entity who controls you).
If you are accessing our Services for your own personal non-commercial use and not as an employee, contractor, or agent of a business (a “Personal User”), specific terms and exclusions may apply to your use of the Services. These specific terms and exclusions will be indicated herein by referencing your use as a Personal User. Except as expressly modified by these Personal User provisions, these Terms apply to your use of the Services unchanged.
From time to time, we may enter into an order form with you regarding the provision of certain Services (each, an “Order Form”). Order Forms may be delivered via our website or apps, or by electronic or print copy, as applicable. Each Order Form, once executed by both you and us, forms an essential part of these Terms. In the event of any necessary conflict between these Terms and any Order Form, the terms of the Order Form shall govern.
2. Acceptance of Terms
By accessing or using our Services, you confirm that: (a) you can form a binding contract with us; (b) you accept these Terms; and (c) you agree to comply with these Terms. If you are agreeing to these Terms on behalf of partnership, company, corporation, or other entity, you represent and warrant that you have all necessary authority to agree to these Terms and to bind such entity. If you do not have such authority, you must cease accessing or using the Services.
3. Changes to the Terms
We reserve the right in our sole and absolute discretion to revise and update these Terms from time to time. All changes are effective immediately upon posting and apply to your continued access to and use of the Services. We may post reminders and summary information about material changes to these Terms, including where there are substantial amendments that affect your rights and obligations, but it is your responsibility to review them. You agree to periodically review these Terms in order to be aware of any such changes and your continued access to or use of the Services after the effective date of each update shall mean your acceptance of any such changes, whether given notice or not. If you do not agree to these Terms as applicable from time to time, you must immediately stop accessing or using the Services.
PERSONAL USERS IN QUEBEC: We will send you an email notice of any changes to these Terms at least 30 days before the change becomes effective setting out exclusively the new clause, or the changed clause and the clause as it read before the change, as well as the effective date of the new or changed clause. You will have the opportunity to refuse the change and terminate your account without cost, penalty or cancellation indemnity by notifying us in writing no later than 30 days after the effective date of the change.
Quality. Toggle3D will perform Toggle3D’s obligations under these Terms with promptness and diligence, in a good and proficient manner, in accordance with applicable industry standards and practices, and with no less than the standard of professional skill, care and diligence customarily applied by contractors providing or performing similar work and providing similar services for similar projects in North America, but in any event at all times in accordance with these Terms.
Applicable Laws. Toggle3D will at all times comply with all applicable laws in connection with the performance of the Services. Toggle3D will obtain and at all relevant times maintain all work permits and other licenses, certificates, authorizations, and approvals required under applicable law as are necessary for Toggle3D to perform lawfully all obligations under these Terms.
Subcontracting. Toggle3D may subcontract these Terms, the Services or any portion of them to any third party without your prior written consent, provided that, with respect to each subcontractor: (a) Toggle3D will ensure that any subcontracted Services are provided in compliance with these Terms by individuals qualified and competent to provide them; and (b) any breach, act or omission by any of Toggle3D’s subcontractors in connection with these Terms will be deemed a breach, act or omission by Toggle3D, and Toggle3D will be fully responsible therefor.
Malware. Toggle3D will use industry-standard, diligent, and reasonable efforts to prevent the Services or any work product Toggle3D is obligated to deliver to you under an Order Form (each, a “Deliverable”) from containing, and will not intentionally include in the Services or any Deliverable, any malicious code. Upon notice by you that the Services or a Deliverable as delivered by us to you contains malicious code: (a) to the extent the affected part of the Services or Deliverable consists of Toggle3D’s or its subcontractors’ original work, Toggle3D will promptly, at its own cost or expense, repair or replace the affected part of the Services or Deliverable so that it does not contain the malicious code; and (b) to the extent the affected part of the Services or Deliverable consists of third party materials (including open source software), Toggle3D will work with you to remove or repair the affected part of the Services or Deliverable to mitigate against the malicious code.
Your Responsibilities. In the preparation of each Order Form, Toggle3D and you will work together to determine any materials, items, information, data, resources, tasks, services, and other assistance that you are required to obtain, procure, perform or provide in order for Toggle3D to perform hereunder (each, a “Client Item”) and schedules for the performance thereof. You will perform all Client Items on or prior to the applicable target dates and you will direct your personnel to promptly and efficiently cooperate with any reasonable requests made by Toggle3D in connection with these Client Items. If, you have failed or will fail to perform any Client Items on or prior to the applicable target date provided by Toggle3D, you will promptly notify Toggle3D, and in any event within not more than five business days after you know the same, providing details thereof to Toggle3D so that Toggle3D can determine the actual or reasonably likely effect of the failure or inaccuracy on Toggle3D’s performance of the Services and delivery of Deliverables. Any failure of you under this provision will constitute a valid reason for any subsequent failure to perform by Toggle3D that is related thereto and will exempt Toggle3D from any liability associated with any such resultant failure.
Services in Beta.From time to time, we may offer early access to Services that are currently in their beta version (“Beta Services”). Your access to and use of Beta Services may be subject to additional terms and conditions. We make no representations that any Beta Services will be made available to you or at all, and we reserve all rights to discontinue your access to and the general availability of Beta Services at any time. You understand and agree that all Beta Services are being provided on an “as is” basis and that due to the nature of Beta Services, the Beta Services may contain, bugs, errors and other defects, and that your use of any Beta Services is at your own risk.
Your End Users. Individuals and entities who are authorized by you to access our Services are your “End Users”. You acknowledge and agree that you are solely responsible for your End Users’ use of our Services, including the acts and omissions of your End Users, and that any breach by your End Users of these Terms will be deemed a breach by you of these Terms. In the event that any of your End Users are found to be in breach of these Terms, we may, in our sole discretion, suspend or terminate their or your access to the Services.
5. Your Account and Security
In order to use our Services, you will need to create a “User Account”. In consideration of your use of the Services, you hereby agree to: (a) provide true, accurate, current and complete information about yourself and your business as requested by any registration forms on the Services (“Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. By providing Registration Data to us through the Services, you will provide personal account information. You hereby agree to be fully responsible for: (w) all use of your User Account; (x) any action that takes place using your User Account by any person or automated process; (y) maintaining the confidentiality and security of your User Account and passwords; and (z) immediately notifying us upon any unauthorized use of your password or User Account, or if you know of any other breach of security in relation to the Services. You further agree to provide assistance to us, as requested, to stop or remedy any breach of security related to your User Account. We are not responsible, and will not be liable, for any loss or damage arising from any unauthorized use of your User Account, with or without your knowledge.
You must not: (i) register for a User Account on behalf of any individual other than yourself; or (ii) register for a User Account on behalf of any organization, group or non-individual entity unless you are duly authorized to do so by such organization, group or entity.
We have provided ways for your to contact us about various issues on or website at www.toggle3d.com/contact-us. You acknowledge and understand that these are the only authorized ways to contact us. Third parties may advertise or publish alternative ways to contact us or use other measures to pose as Toggle3D. We cannot verify the authenticity of any such alternative contacts, advertisements, publications or other information, and they pose a risk of fraud and other malfeasance, so we strongly recommend a degree of caution when reviewing such advertisements, publications and other information, and that you do not attempt to contact us using these methods. You agree that we cannot be held liable for unauthorized access to you User Account or other loss resulting from such fraud or other malfeasance by third parties.
6. Fees and Refunds
The following terms and conditions apply to all of our paid Services, including paid Services for which we may offer a free trial from time to time.
The Services may include various offerings and features (for example, basic or premium tiers of service and one time purchases or add-ons), with different benefits, conditions, and limitations. Your level of access to a Service, including with respect to offerings and features is determined by the tier of subscription package or the specific add-ons you may purchase from time to time. You can find the specific details regarding fees and features on the applicable website or application for each Service or in the applicable Order Form. We reserve the right to change the offerings, features and Services, from time to time in accordance with these Terms.
Payment via Online Account: For certain Services, you will be asked to provide payment information, including your credit card number and billing address, during the account registration process. By completing your User Account registration, you agree to pay, and authorize us to charge to your designated payment method, all applicable subscription and one-time fees plus applicable taxes in accordance with the Services you select. Before completing your order, you will be presented with details regarding all associated recurring subscription fees (“Subscription Fees”), the applicable subscription period (“Subscription Period”) and the overall term of the subscription (“Subscription Term”) for those Services being provided on a subscription basis (each, a “Subscription”) and details regarding any one-time Services and all associated fees (“One-Time Fees”). You will be charged immediately upon commencement of the applicable Services and, for your Subscriptions, you will automatically be charged at the beginning of each Subscription Period during the Subscription Term. For example, if the Subscription Period is monthly and the Subscription Term is two years, you will be charged at the start of each month for 24 consecutive months.
Payment via Order Form: For certain Services, we will require the completion of an Order Form. Each Order Form will set out the particular fees and payment schedule for the Services being provided under the Order Form. Services may be charged in various ways, including on a Subscription basis, a one-time set fee basis, or on a time and materials basis. You agree to pay all fees set out in each Order Form in accordance with these Terms and the terms and conditions set out in the Order Form. In the event of any conflict between these Terms and the terms and conditions set out in an Order Form, the terms and conditions set out in the Order Form will prevail to the extent necessary to resolve the conflict.
Subscription Auto-Renewal: In order to ensure that you will not experience any interruption or loss of Services, by default, your Subscription will automatically renew at the end of the Subscription Term, for successive renewal periods equivalent to the original Subscription Term (each, a “Renewal Subscription Term”) and at the same price (subject to any changes to applicable taxes and excluding any discount or other promotional offer provided to you on a limited time basis), unless you disable the auto-renewal option or cancel your Subscription no less that thirty (30) days prior to the expiry of the original Subscription Term or then-current Renewal Subscription Term. Accordingly, unless your Subscription is cancelled by you or terminated by us, we will automatically charge you the applicable Subscription Fees upon or immediately prior to the expiration of the Subscription Term or then-current Renewal Subscription Term. If you wish to avoid such auto-renewal, you can cancel your Subscription (or disable the auto-renewal option), at any time via your User Account or by contacting us at email@example.com. Except as expressly set forth in these Terms, if you cancel your Subscription prior to the expiry of the Subscription Term or then-current Renewal Subscription Term, the Subscription will not renew for a further Renewal Subscription Term, but you will not be entitled to a refund or credit for any unused portion of the Subscription Term or then-current Renewal Subscription Term and we will continue to charge you the applicable Subscription Fees for the duration of the Subscription Term or then-current Renewal Subscription Term. In such case, however, you will continue to be able to access the Services until the end of the Subscription Term or then-current Renewal Subscription Term.
Payment Information: You must provide and at all times must maintain accurate, complete, and current billing information, including your postal/zip code, credit card number, credit card expiration date and billing address. You must promptly update such information if it changes so that we can charge you all applicable fees and contact you as needed. You will be solely liable for any and all loss, damage and additional costs that you, we or any other person may incur as a result of your submission of any false, incorrect or incomplete information or your failure to update your billing information. We may suspend or terminate your User Account or access to the Services if your offered payment method (e.g., credit card) cannot be processed. In addition, orders may not be accepted from certain jurisdictions. By providing a payment method, you: (a) represent and warrant to use that you have the right to use such payment method; and (b) expressly authorize us and our third party payment processors to charge the applicable fees on said payment method, as well as taxes and other charges related thereto, all of which depend on the Services you utilize. You agree that we may charge any unpaid amounts to your provided payment method. If you provide a payment method and our charge results in an overdraft, chargeback, or other fee from your bank, you alone are responsible for that fee. If you become aware of a potential breach of security to your billing information (such as credit card loss or theft), you must notify us immediately. In the event that we are unable to collect any fees owed by you, we may, at our sole discretion attempt to collect at a later time or suspend or terminate your User Account or access to the Services, at any time, without advance notice to you. We reserve the right to request additional information from you to verify your billing information. We may add or remove acceptable forms of payment at our sole and absolute discretion and without notice to you.
Free Trial. If you register for a free trial of our Services, we will make those aspects of our Services which are noted as subject to the free trial on our website available to you free of charge until the earlier of: (a) the end of the free trial period for which you registered to use the applicable Services as noted on our website; or (b) the start date of any purchased Subscription or other Services ordered by you; or (c) the termination of these Terms pursuant to the termination provisions below. Additional trial terms and conditions may appear on the trial registration website. Any such additional terms and conditions are incorporated into these Terms by reference and form an essential part of hereof.
Modifications to Services and Pricing:
We reserve the right at any time and from time to time to change, modify, add, remove, suspend, cancel, or discontinue any aspect of the Services in our sole discretion. If the Services you paid for are materially altered and you are accessing the Services under a Subscription, you will receive notice by email and will have the opportunity to receive a pro rata refund if you do not agree to the changes and elect to cancel your Subscription.
In addition, we may modify our fees from time to time. In the event you are accessing the Services under a Subscription and the Subscription Fees for the Services you are using have been modified such that the Subscription Fees in the next Renewal Subscription Term will be different from your then-current Subscription Fees, you will (a) be notified at the email address we currently have no file for you at least thirty (30) days before the end of the Subscription Term or then-current Renewal Subscription Term, and (b) have the opportunity to cancel your Subscription. If you do not cancel your Subscription before the beginning next Renewal Subscription Term, you will be deemed to have accepted the new Subscription Fees.
REFUNDS: EXCEPT AS EXREPSSLY SET FORTH IN THESE TERMS, AND UNLESS PROHIBITED BY APPLICABLE LAW, ALL PURCHASES, INCLUDING RECURRING SUBSCRIPTION FEES, ARE FINAL AND NON-REFUNDABLE.
Invoiced Services. Unless an Order Form or Subscription provides otherwise, we will invoice monthly for all fees and expenses then due and payable under each Order Form, Net 30 days.
Taxes. All quoted fees are exclusive of, and you will be responsible for paying, any and all applicable goods, services, value added or other applicable taxes, surcharges, regulatory assessments, import fees, duties or levies on any Services and Deliverables you receive under these Terms. You may not, except to the extent required by applicable law, withhold any amounts on payments to be made hereunder. If you believe that you have any obligation to withhold any amount under applicable law, you will notify us thereof and will cooperate in good faith with us in our efforts, to the extent permitted by applicable law, to recover any such amounts from the applicable authorities. The invoiced amount and amounts charged to your offered payment method may therefore fluctuate as applicable taxes, which we do not control, fluctuate and you are solely responsible for and agree to pay any and all such applicable taxes and government levies, duties and fees.
Currency. Unless otherwise stated in an Order Form, we will invoice you in United States dollars.
Late Fees. In the event that you fail to pay an invoice due to us within thirty (30) days of the invoice date (the “Late Payment”), you agree without any prior notice, to pay a late fee at the interest rate of one and a half percent (1.5%) of the outstanding balance per month, compounding monthly, or the maximum rate permitted by law, whichever is highest. In addition, we shall be entitled to recover from you all costs, fees, and expenses actually incurred for the recovery of the outstanding amounts due under these Terms, including all actual legal fees and costs on a solicitor-client basis. Notwithstanding any of the foregoing and in addition thereto, in the event of any Late Payment, we may, in our sole discretion, suspend your User Account or access to the Services or terminate these Terms in whole or in part, without any liability whatsoever and without prejudice to our right to claim all amounts due by you to us.
7. Intellectual Property Rights; Limited Licence
License to the Service. In accordance with your Subscription and the Services utilized by you, we hereby grant you a limited, worldwide, revocable, non-exclusive, non-sublicensable and non-transferrable license to use the Services and any further Deliverables as described in an Order Form, throughout your enterprise in accordance with these Terms. You acknowledge that your use of the Services and Deliverables for any purpose not expressly permitted by these Terms is strictly prohibited. Without limiting the restrictions in Section 17: (a) neither our Services or any Deliverables, nor the design or layout of the Services, nor any part or component of any of the foregoing, may be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without our or, where applicable, our licensors’ prior written consent; and (b) you cannot create any work of authorship or proprietary right based on the Services. You will only use the Services as may be expressly provided in these Terms or to the extent permitted by law or (if applicable) relevant open source licences.
Title to Services. Toggle3D and our third-party licensors retain all rights, title and interests, including intellectual property rights, in and to the Services and all Deliverables, including all materials, content, data, information, software, applications, source code, computer code, tools, patches, updates, processes, technologies, URLs, domain names, images, text, graphics, illustrations, logos, photographs, pictures, audio, sound effects, sound recordings, features, functionality, design, presentation videos, visual effects, music, user accounts, objects, and “look and feel” of the Services. You will not acquire any rights, including without limitation any intellectual property rights and registrations, in the Services or any Deliverables, except as expressly described in these Terms. All rights not expressly granted to you hereunder are expressly reserved by Toggle3D and our licensors, and are protected by copyright, trademark, patent, trade secret, and any other proprietary rights. The Services and all Deliverables are licensed and not sold. You acknowledge and agree that, by operating the Services, benchmark results and usage data may be collected by Toggle3D.
Trademarks. The names and logos of Toggle3D and of the Services, and all related names, logos, product and service names, domain names, graphics designs, images, and slogans (collectively, “Our Marks”) re our trademarks (whether registered or unregistered), or those of our respective affiliates, licensors or suppliers. You must not use Our Marks for any purpose without our prior written permission. Other names, logos, product and service names, domain names, graphics, designs, images and slogans mentioned , or with appear, on the Services are the trademarks are their respective owners. Use of any such property, except as expressly authorized, shall constitute an infringements or violation of the rights of the property owner and may be a violation of applicable laws and could subject to the infringer to legal action. Except as expressly indicated on the Services, no endorsement, sponsorship, affiliation or other authorization is implied by any use of third party trademarks.
Title to Client Materials. Title to any documents, equipment, materials, data, Client Items or intellectual property rights supplied by or on behalf of you to or for the benefit of Toggle3D in relation to the provision of any Services hereunder (collectively, the “Client Materials”) will remain with you and your licensors at all times. At no time will title to the Client Materials pass to Toggle3D.
License to Use. You hereby grant Toggle3D a non-exclusive, royalty-free, worldwide, sublicenseable and transferable license during the Term (as defined below) to use the Client Materials to perform and improve the Services and expressly not for any collateral purpose.
Clarification. For greater certainty, where the Client Materials include materials licensed to you by a third party, Toggle3D’s access to or use thereof may be conditional upon Toggle3D’s execution of a prescribed form of written agreement.
Return. We will return to you all of the Client Materials in our possession or control: (A) at any time upon request by you (on your understanding that, if the Client Material is a Client Item, or is part of or incorporated into ongoing Services being performed by use for you or a Deliverable, we may thereby be prevented from performing hereunder); (ii) after our completion of the work for which the Client Material was provided; and (iii) upon expiration or termination of the relevant Order Form or these Terms.
Links. Our Services may contain links to other sites and resources provided by third parties These links are provided for your convenience and information only. We make no representations about any third-party websites or resources that may be accessed through the Services, nor do we have any control over the contents of those sites or resources. Such links should not be interpreted as approval or endorsement by us of those linked websites or resources, or information you may obtain from them, and we are not responsible for any consequences, losses, or damages that may arise from your access or use of such sites or resources. For clarity, if you choose to access any such sites or resources, you do so at your own risk.
Third party or Open Source IP. You acknowledge and agree that our project methodology includes the use of third party and open source intellectual property rights, and that we may include the same in the Services or a Deliverable without your express prior written consent by concurrently delivering the applicable license agreement therefor and by complying at all times with such license. For greater certainty, this provision applies to “open source” or “free” software or materials, whether or not the license thereto is copyleft, provided that where any Deliverable is commercial off-the-shelf software, it shall be sufficient if the documentation made available to you by us contains a reference to the open source or free software used therein.
8. User Generated Content
User Content. In using our Services, you may be able to create, submit or upload different types of content (“User Content”). User Content includes any communications, messages, posts, comments, chats, images, videos and sounds, that you create using, or submit or upload to, our Services, including all the material, data, text, graphics, photographs, location information, or any other content contained therein.
Ownership of User Content. We do not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. As between you and us, you and your third-party licensors will at all times retain all ownership over your User Content.
Licence to User Content. By submitting, transmitting, posting, uploading, or otherwise providing any User Content in connection with the Services, you are granting us and our affiliates a perpetual and irrevocable, worldwide, fully paid-up and royalty free, non-exclusive, unrestricted, unconditional, unlimited license, including the right to sublicense, transfer and assign to third parties, to copy, print, host, reproduce, fix, adapt, modify, improve, retitle, translate, reformat, archive, store, cache or otherwise exploit in any manner, create derivative works from, manufacture, introduce into circulation, commercialize, publish, distribute, disclose, sell, resell, license, rent, lease, transmit, publicly display, publicly perform, or provide access to electronically, broadcast, communicate to the public by telecommunication, enter into computer memory, and use and practice, in any way now known or in the future discovered, in any media, at any time, your User Content as well as all modified and derivative works thereof in connection with our provision of the Services, including advertising, marketing and promotion thereof. No credit, approval or compensation is due to you for any such use of the User Content you may submit. To the extent permitted by applicable laws, you hereby waive any moral rights you may have in any User Content (like the right to be identified as the author of the User Content or the right to object to a certain use of that User Content).
User Content Specific Terms. In connection with your User Content, you acknowledge and agree that:
by submitting or uploading User Content, you will be deemed to represent and warrant to us that you own or have all necessary rights and permission to provide the User Content and grant us the rights herein;
you are solely responsible for any User Content submitted or upload in connection with the Services by you or your End Users and that you may be held liable for any consequences related to any User Content that you or your End Users upload, post or otherwise transmit via the Services;
you and your End Users will at all times comply with the Code of Conduct set out in Section 17 of these Terms, which applies at all times to the User Content you create using and upload to our Services;
we shall bear no responsibility for any User Content you or your End Users submit or upload and shall assume no responsibility for monitoring the Services for inappropriate or illegal content or conduct;
with respect to any User Content posted by other users, such users are solely responsible for the User Content they post, including, without limitation, the reliability, accuracy, and truthfulness of any such User Content;
we reserve the right (but at no time are obligated to), in our sole discretion, monitor, remove, block, edit, move, disable or permanently delete User Content with or without notice for any reason whatsoever;
to the maximum extent permitted by applicable law, we shall at no time be liable for the removal, modification, blocking, moving or deletion of User Content;
the User Content shall not include any personal information, such as personal names, email addresses, or other indicia identifying any other person, including, without limitation, celebrities or other public or private figures, living or dead, or that is otherwise invasive of a person's privacy;
we reserve the right to limit the storage capacity of User Content that you submit or upload on, through or in connection with the Services; and
we reserve the right to immediately terminate the account of any user who violates the provisions of these Terms related to User Content.
Other User’s User Content. You acknowledge that we are not responsible for any User Content posted in connection with any portion of the Services. We are merely providing access to the Services and User Content as a service to our users to be used in accordance with these Terms. With respect to any User Content posted by other users, such users are solely responsible for the User Content they post, including, without limitation, the reliability, accuracy, and truthfulness of any such User Content. Similarly, we have no control over whether such User Content is of a nature that other users might find offensive, distasteful, or otherwise unacceptable and, accordingly, we expressly disclaim any responsibility for any User Content. Just as when you view content in any other setting, you should exercise appropriate discretion, good judgment, and caution in accessing User Content on the Services and in taking any actions based upon such User Content. Accordingly, you will bear all risks associated with any such User Content that you access or use.
Contact Us. If you are aware of any User Content posted in connection with the Services which violates these Terms please contact us at firstname.lastname@example.org. Please provide as much detail as possible, including a copy of the underlying material, the location where we may find it, and the reason such User Content should be removed. Please note that filing a complaint will not guarantee its removal. We only will remove User Content if we believe the measure is necessary, in our sole discretion. To the extent any notice is based on an alleged copyright violation, please follow the instructions set forth in 10. Although we may attempt to monitor User Content, in no event do we assume any obligation to do so or liability for failing to either monitor the Services or remove specific User Content.
9. Communication Channels
Communication Channels. Some of our Services may provide communication channels such as, but not limited to, fan pages, forums, communities, or chat areas ("Communication Channels") designed to enable you to communicate with other users and post User Content, including your feedback, questions, suggestions, ideas, submissions, observations and comments on designated topics.
Monitoring. We are under no obligation to monitor these Communication Channels but may do so, and reserves the right to review materials posted to the Communication Channels and to remove any materials, at any time, with or without notice for any reason, at our sole discretion. We may also terminate or suspend your access to any Communication Channels at any time, without notice, for any reason.
Communication Channel Specific Terms. You acknowledge and agree that:
You will at all times use the Communication Channels in accordance with the Code of Conduct set out in Section 17 of these Terms;
chats, postings, or materials posted by users on the Communication Channels are neither endorsed nor controlled by us, and these communications should not be considered as reviewed or approved by us;
You will be solely responsible for your and your End Users’ activities within the Communication Channels and under no circumstances will we be liable for any such activity within the Communication Channels;
all your communications within the Communication Channels are public, and you have no expectation of privacy regarding your use of the Communication Channels;
we may use, sell, exploit and disclose the comments, feedback, suggestions, concepts, ideas, know-how or techniques contained in any communications you provide in any manner, for any purpose whatsoever, commercial or otherwise, without restriction, without attribution and without compensation to you, in accordance with these Terms;
we are not responsible for information that you choose to share on the Communication Channels, or for the actions of other users including without limitation, other users’ misuse or misappropriation of any User Content or other information you post in any Communication Channels; and
You are solely responsible for your and your End Users’ interactions with other users of the Services and any other parties with whom you interact through the Services.
We reserve the right, but have no obligation, to become involved in disputes between users of the Services. If you have a dispute with one or more other users, you release and hereby agree to indemnify us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes, including damages for loss of profits, goodwill, use or data.
10. Copyright Notices and Complaints
If you believe that anything on the Services infringes upon any copyright or other intellectual property right that you own or control, or if you otherwise object to any User Content that you find on the Services, you may send a written notification to us via physical mail at Toggle3D.ai Inc, PO Box 64039, RPO Royal Bank Plaza, Toronto, ON M5J 2T6, Canada Attn: COPYRIGHT AGENT; or via email to email@example.com.
The notification must be a written communication that includes the following:
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
if the complaint is about copyright or other intellectual property rights, identification of the copyrighted work or other intellectual property right claimed to have been infringed, or, if multiple infringements are covered by a single notification, a representative list of such infringements;
if the complaint is about objectionable content, the reasons for the objection;
identification of the material that you are objecting to and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
information reasonably sufficient to permit us to contact the complaining party, such as an address, telephone number and, if available, an electronic mail address at which the complaining party may be contacted;
a statement that the information in the notification is accurate; and
if the complaint is about copyright or other intellectual property rights, a statement under penalty of perjury, that (i) the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (ii) the complaining party has a good-faith belief that use of the material in the manner complained of is not authorized by the owner thereof, its agent or the law.
“Confidential Information” means any and all data or information in any form (including all electronic, magnetic, physical, intangible, visual and oral forms) that (i) is, at the time of its delivery to or access by the other party, not generally known to any person without an obligation of confidentiality, (ii) by its nature or the nature of its disclosure, would reasonably be determined to be confidential, or (iii) is marked or indicated as proprietary or confidential (without requiring such marking), and in any event includes Personal Information, trade secrets, know-how, supplier and customer information (whether past, present, future and prospective), specifications, strategic plans, source code and related data, designs, drawings, financial information, marketing information, information as to business opportunities (including strategies and research and development), consultation records and plans, engineering information, and third party data
“Personal Information” means all information about or data associated with an identifiable individual that is protected under any applicable law relating to privacy or personal information, including an individual’s name, phone number, postal address, email address, date of birth, age, gender, race, religion, income, physical description, education or employment details, voice recordings, visual images and financial information (including credit card numbers, expiry dates and security codes).
Confidentiality. In connection with these Terms, we and you (each, in this Section, the “Disclosing Party”) each have furnished or may furnish or have made or will make available to the other (in this Section, the “Receiving Party”) Confidential Information. At all times during and after the Term, the Receiving Party will protect the Disclosing Party’s Confidential Information using the same degree of care as it would use to protect its own similarly confidential information, but in any event never less than a reasonable degree of care, and will take all reasonable steps to safeguard the Disclosing Party’s Confidential Information from unauthorized use or disclosure as set out in these Terms.
Obligations. The Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as strictly necessary in the performance of its obligations under these Terms or in enforcing or defending its rights or obligations under these Terms (collectively, in this Section, the “Purpose”) or as expressly permitted by this Section. Without limiting the generality of the foregoing, the Receiving Party will not directly or indirectly do any of the following:
use any of the Disclosing Party’s Confidential Information for any purpose other than the Purpose;
copy or reproduce any of the Disclosing Party’s Confidential Information, except as strictly necessary to carry out the Purpose;
disassemble or decompile any technology, software or hardware included in the Disclosing Party’s Confidential Information, or otherwise attempt to reverse engineer the design, function or, if applicable, source code of any such Confidential Information, except (i) as strictly necessary in carrying out the Purpose, and (ii) if this prohibition is limited or restricted in any way by any applicable law, it will only apply to the maximum extent permitted by such law; or
disclose any of the Disclosing Party’s Confidential Information except as follows:
limited disclosure strictly to those of the Receiving Party’s directors, officers, consultants, legal representatives, accountants, advisors and personnel and permitted subcontractors (i) to whom disclosure is necessary to carry out the Purpose, and (ii) from whom the Receiving Party is owed legally-binding obligations of confidentiality at least as strict as those set out in these Terms (collectively, in this Section, the “Further Recipients”), provided that, at all times, the Receiving Party will be responsible to the Disclosing Party for the acts and omissions of the Further Recipients as if such acts and omissions were its own; or
disclosure limited strictly to the extent the Receiving Party or any of its Further Recipients is required (including, without restriction, by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or other similar process) by any law to disclose any of the Disclosing Party’s Confidential Information, provided that it (unless prohibited by such applicable law) gives the Disclosing Party advance written notice as soon as practicable in the circumstances so that the Disclosing Party may contest the disclosure or seek an appropriate protective order, and further provided that it cooperates reasonably and in good faith with the Disclosing Party in its efforts to prevent, restrict or contest such required disclosure.
Return or Destruction. Upon termination of these Terms or upon the written instruction of the Disclosing Party, the Receiving Party will return all originals and copies in any form of the Disclosing Party’s Confidential Information in its or its Further Recipients’ possession or control which are capable of being returned and will destroy or cause to be destroyed all originals, copies or other reproductions or extracts of such Confidential Information. For the purposes of this Section, information stored in electronic form will be deemed to be destroyed when the charged party performs a commercially reasonable application or operating system level delete function with respect to such data, provided that it does not thereafter directly or indirectly perform or permit any recovery or restoration of the same by any means (including by way of undeletion, archives, backups or forensics). Receiving Party will provide Disclosing Party with a certificate confirming the deletion of all Confidential Information in its possession pursuant to this Section. Each party will be responsible for ensuring that its Further Recipients fully comply herewith.
Ownership. Except as set out in these Terms, no party grants to the other any right, title or interest in or to its Confidential Information.
Exceptions. The obligations of confidentiality set out in this Section will not apply in respect of uses or disclosures of information where:
the Disclosing Party consents in writing; or
the Receiving Party can establish with documentary evidence that, other than as a result of a breach of these Terms, the information:
is available in the public domain;
was disclosed to it by a third party without violating confidentiality obligations; or
was already independently known by it or was subsequently and independently developed by it;
in each case without any direct or indirect use or access to such Confidential Information whatsoever.
Information Security Management. In addition to any particular requirements set out in any Order Form, Receiving Party will implement and maintain an information security management program with standards that are no less rigorous than accepted industry practices, and will comply with all applicable laws to protect Disclosing Party’s Confidential Information from theft or unauthorized access, destruction, use, modification, or disclosure.
Personal Information. Without limiting any of the foregoing, Receiving Party will use all reasonable efforts to: (a) guard against unauthorized access to, use and disclosure of all Personal Information received by it as part of the Confidential Information; and (b) fully comply with all applicable laws applicable to the Disclosing Party’s Confidential Information or to its Personal Information, including the Personal Information Protection and Electronic Documents Act (Canada), as it may be amended or replaced by successor legislation from time to time, and all regulations promulgated thereunder.
Press Release. Notwithstanding the confidentiality provisions above, the parties may issue a public announcement, issue a press release, conduct media interviews, or conduct other publicity activities announcing the existence of the business relationship between the parties and the general nature of the Services being provided by us to you. As such, the parties hereby grant one another a reciprocal and limited license to use each other’s name and trademarks in any such publicity activities provided that such use is at all times in compliance with any brand guidelines provided for such brand assets.
12. Representations and Warranties
Corporate Authorization and Status. Each party represents and warrants as follows:
it has full power and authority to enter into and perform its obligations under these Terms;
it is in good standing in its jurisdiction of incorporation and that all of its constating and organizational documents are complete, fully executed and in order; and
such party’s execution and performance of these Terms will not conflict with, or result in the breach of, any express or implied obligation or duty (contractual or otherwise) that such party now or in the future owes to any other person.
Your Representations and Warranties. You represent, warrant, and covenant as follows:
that you own or otherwise control any and all rights in and to the User Content and that public posting of the User Content by us will not infringe or violate the rights of any third party in any manner or violate any applicable laws;
you are the sole owner or have a valid license to all intellectual property rights in and to the Client Materials necessary to grant the rights provided under these Terms;
your Client Materials do not violate any applicable laws including without limitation any applicable intellectual property, deceptive trade practices, fair competition, or consumer protection laws;
you are solely responsible for the conduct of your End Users and their compliance with these Terms; and
nothing in your Client Materials advocates for any illegal activity, is defamatory, or otherwise violates the legal rights of any third-party, howsoever arising.
Our Representations and Warranties. We represent, warrant, and covenant as follows:
we are the sole owner or have a valid license to all intellectual property rights in and to the Services necessary to deliver them in accordance with the provisions of these Terms;
the Services will be performed by persons who have the qualifications, knowledge, skill and ability to perform these services.
13. Exclusion and Disclaimer of Warranties
PERSONAL USERS IN QUEBEC, CANADA: QUEBEC’S CONSUMER PROTECTION ACT (CQLR C P-40.1) PROVIDES YOU WITH CERTAIN RIGHTS, INCLUDING WARRANTIES AS TO ACCEPTABLE QUALITY, SAFETY, DURABILITY, ACCURATE DESCRIPTION AND AGAINST HIDDEN DEFECTS. NOTHING IN THIS SECTION IS INTENDED TO LIMIT OR REPLACE ANY OF YOUR RIGHTS UNDER THE CONSUMER PROTECTION ACT (CQLR C P-40.1), AND TO THE EXTENT THAT IT IS PROHIBITED BY LAW, THE EXCLUSION HEREUNDER DOES NOT APPLY TO PERSONAL USERS IN QUEBEC.
IN ADDITION TO THE LIMITATIONS IN QUEBEC, CERTAIN OTHER JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. NOTHING IN THESE TERMS WILL AFFECT ANY STATUTORY RIGHTS THAT YOU, AS A PERSONAL USER, CANNOT CONTRACTUALLY AGREE TO ALTER OR WAIVE AND ARE LEGALLY ALWAYS ENTITLED TO PURSUANT TO ANY APPLICABLE CONSUMER PROTECTION LAWS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE AND AGREE THAT: (I) THE SERVICES, INCLUDING WITHOUT LIMITATION ALL BETA SERVICES AND DELIVERABLES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS FOR YOUR USE; AND (II) WE EXPRESSLY DISCLAIM AND EXCLUDE ALL WARRANTIES, INCLUDING ALL CONDITIONS, WARRANTIES, OR OTHER TERMS, WHETHER STATUTORY, EXPRESS, OR IMPLIED (INCLUDING ANY IMPLIED WARRANTIES AS TO MERCHANTABILITY, NON-INFRINGEMENT, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR CONFORMANCE WITH DESCRIPTION), EXCEPT TO THE EXTENT THAT THEY ARE EXPRESSLY SET OUT IN THESE TERMS.
IN PARTICULAR WE DO NOT REPRESENT OR WARRANT TO YOU THAT:
YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS;
YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR;
THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;
ANY INFORMATION OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE;
DEFECTS IN THE OPERATION OR FUNCTIONALITY OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED; OR
THE CONTENT OBTAINED THROUGH THE SERVICES IS ACCURATE, COMPLETE, OR RELIABLE.
WE MAY CHANGE, SUSPEND, WITHDRAW, OR RESTRICT THE AVAILABILITY OF ALL OR ANY PART OF THE SERVICES FOR BUSINESS AND OPERATIONAL REASONS AT ANY TIME WITHOUT NOTICE. YOU ARE RESPONSIBLE FOR VERIFYING ANY INFORMATION OBTAINED THROUGH THE SERVICES BEFORE RELYING ON IT. YOU FREELY ACCEPT AND VOLUNTARILY AGREE TO ASSUME ALL RISKS, INCLUDING OF PERSONAL INJURY, DEATH, AND PROPERTY DAMAGE OR LOSS, CONNECTED WITH YOUR USE OF THE SERVICES HOWSOEVER ARISING.
YOUR USE OF THE SERVICES MAY DEPEND ON THE INTERNET, INCLUDING NETWORKS, CABLING, FACILITIES, AND EQUIPMENT THAT IS NOT IN OUR CONTROL. ACCORDINGLY: (I) WE CANNOT GUARANTEE ANY MINIMUM LEVEL REGARDING SUCH PERFORMANCE, SPEED, RELIABILITY, AVAILABILITY, USE, OR CONSISTENCY; AND (II) YOU ACKNOWLEDGE AND AGREE THAT DATA, MESSAGES, INFORMATION, OR MATERIALS SENT OVER THE INTERNET MAY NOT BE COMPLETELY PRIVATE, AND YOUR ANONYMITY IS NOT GUARANTEED.
While we are continually working to develop and evaluate our own product ideas and features, we also pay attention to the interests, feedback, comments, and suggestions we receive from our user community. If you choose to contribute by sending us any ideas for products, services, features, modifications, enhancements, content, refinements, technologies, content offerings (such as audio, visual or other types of content), promotions, strategies, or product/feature names, or any related documentation, artwork, computer code, diagrams, or other materials (collectively, “Feedback”), then regardless of what your accompanying communication may say, in order to avoid any misunderstandings the following terms will apply to the Feedback. Accordingly, by sending Feedback to us, you agree that:
we have no obligation to review, consider, or implement your Feedback, or to return to you all or part of any Feedback for any reason;
Feedback is provided on a non-confidential and non-proprietary basis, and we are not under any obligation to keep any Feedback you send confidential or to refrain from using or disclosing it in any way;
you irrevocably grant us an irrevocable, non-exclusive, worldwide, perpetual, royalty-free, sub-licensable (including via multiple tiers of sublicensing), transferrable licence to reproduce, distribute, create derivative works of, modify, publicly perform (including on a through-to-the-audience basis), communicate to the public, make available, publicly display, and otherwise use and exploit the Feedback and derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services that incorporate or embody Feedback, whether in whole or in part, and whether as provided or as modified;
you have been deemed to have warranted to us that you have or own all the necessary legal rights to upload, post, or submit such Feedback and grant us (and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns) the licence to the Feedback, and that the Feedback does not and will not violate any law or the intellectual property, privacy, publicity, or other rights of any person;
you understand and agree that you are fully responsible for any Feedback you submit or contribute, and you are fully responsible and legally liable, including to any third party, for such content, its accuracy, and your rights to use it; and
you waive any moral rights or other rights of authorship in and to any Feedback in favour of us, including any rights you may have in the altered or changed Feedback even if it is no longer agreeable to you.
15. Equipment Requirement
To use the Services, you may need certain hardware, software, capabilities and other resources (including a suitable connection to the Internet). You are solely responsible for procuring and maintaining such resources at your own cost.
16. Updates, Interruption, and Termination
Updates: From time to time, we have the right (but not obligation) to provide updates (patches, new features, etc.) to the Services for free or for a fee. You understand that your access to certain features of the Services might be affected by such updates. You also understand that such updates may affect the necessary system specifications required to use the Services. In such case, you are responsible for any necessary equipment to continue to access the Services.
Interruption: You acknowledge that the Services or any part thereof may be interrupted for maintenance or reasons beyond our control, and we cannot guarantee that the Services will be uninterrupted. We will not be liable for any interruption of the Services, delay, or failure to perform resulting from any causes whatsoever. Additionally, the Services may be unavailable depending on geographic location. To the maximum extent permitted by applicable law, we reserve the right to discontinue the Services at any time in our sole discretion, for any reason, or for no reason, with or without notice.
Suspension or Termination: To the extent allowable by applicable law, we reserve the right to suspend or terminate your User Account or access to the Services at any time for any reason, including if you have failed to comply with any of the provisions of these Terms, or if activities occur on your User Account which would or might (i) cause damage to or impair the Services or infringe or violate any third party rights (including intellectual property rights), or (ii) violate any applicable laws or regulations. Termination or suspension of your User Account also entails the termination or suspension of your licence to use the Services, or any part thereof. If we suspend or terminate your User Account, we will notify you by email. If we terminate your User Account for a reason other than your breach of these Terms or applicable law and you purchased a Subscription, we will refund you the prorated portion of your prepayment of Subscription Fees for the period remaining in your Subscription Term or then-current Renewal Subscription Term following the date of such termination. You agree and understand that your continued use of the Services is at our sole and absolute discretion and that you will not seek to hold us liable for any suspension, restriction, or termination of your use of the Services.
17. Code of Conduct
As a condition of your access to and use of the Services, you agree that you will use the Services only for lawful purposes in accordance with these Terms and all applicable laws and regulations. You further agree that you will not, and will not permit any of your End Users, to:
access or use the Services if you or they do not have all necessary authority required to agree to these Terms;
use the Services, in any way, to violate, or promote the violation of, any applicable federal, provincial, local, foreign, or international law or regulation, including any laws regarding the export of data or software, patent, trademark, trade secret, copyright, or other intellectual property or legal rights (including the rights of publicity and privacy of others);
except as expressly permitted by these Terms or applicable law, directly or indirectly make unauthorized copies, modify, adapt, translate, reverse engineer, disassemble, decompile, publicly display, republish, download, store, transmit or create any derivative works of the Services or any content included therein, including any software (except that your computer and browser may temporarily store or cache copies of materials being accessed and viewed), or determine or attempt to determine any source code, algorithms, methods, or techniques embodied by the Services or any derivative works thereof;
distribute, license, transfer, or sell, in whole or in part, any of the Services or any derivative works thereof;
create or use fraudulent links to our Services including but not limited to pingbacks or off-topic or automated postings;
modify copies of any materials from the Services nor delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from the Services;
market, rent, or lease the Services for a fee or charge, or use the Services to advertise or perform any commercial solicitation; use the Services or any part thereof, without our express written consent, for any commercial, political, or unauthorized purpose, including communicating or facilitating any commercial advertisement or solicitation or spamming;
interfere with or attempt to interfere with the proper working of the Services, disrupt our website (if any), or any networks connected to the Services, or bypass any measures we may use to prevent or restrict access to the Services including but not
limited to "denial of service" attacks against our Services, any third party services, or any individual customer or user;
harass, abuse, bully or otherwise mistreat our employees, contractors, and personnel;
use the Services to harm, or attempt to harm, minors in any way;
incorporate the Services or any portion thereof into any other program or product or use the Services in order to build (i) a competitive products or service, or (ii) copy any ideas, features, functionality or content of the Services;
use automated scripts, software, code, or systems to collect information from or otherwise interact with the Services;
impersonate any person or entity, or falsely state or otherwise misrepresent you or your affiliation with any person or entity, including giving the impression that any content you upload, post, transmit, distribute, or otherwise make available emanates from the Services;
use the Services in any manner that could damage, disable, disrupt, interfere with, overburden or impair the Services or interfere with any other person’s use of the Services;
encourage any conduct that restricts or inhibits anyone's use or enjoyment of the Services, or which, as determined by us, may harm us or users of the Services or expose us or them to liability;
create, provide, or contribute any false, inaccurate, or misleading information to us;
impersonate or attempt to impersonate us, one of our employees, another user, or any other person or entity (including by using email addresses, or screen names associated with any of the foregoing);
use the Services to stalk, or attempt to exploit or harm any individual (including minors) in any way, including without limitation, by exposing them to inappropriate content;
use the Services to collect, attempt to collect, or ask for personal information from third parties without their knowledge or consent or otherwise as prohibited under applicable laws, regulations, or code;
use the Services to promote sexually explicit material, violence, or discrimination based on race, sex, gender, religion, nationality, ethnicity, disability, sexual orientation, or age;
use or attempt to use another user’s account, service, or system without authorization from us;
use the Services in a manner that may create a conflict of interest or undermine the purposes of the Services;
use or exploit any bots, hacks, bugs, errors, or design flaws to obtain unauthorized access to the Services including but not limited to any software or scripts which create a listening socket on our network;
use any proxies which use our network connection to forward requests to another server, including but not limited to HTTP proxies;
use the Services to upload, transmit, distribute, store, or otherwise make available in any way:
files that contain viruses, trojans, worms, logic bombs, or other material that is malicious or technologically harmful; any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other prohibited form of solicitation; any private information of any third party, including addresses, phone numbers, email addresses, number and feature in the personal identity document (e.g., social security numbers, passport numbers, etc.), or credit card numbers; any material which does or may infringe any copyright, trade mark, or other intellectual property or privacy rights of any other person; any material which is defamatory of any person, obscene, violent, sexually explicit, offensive, pornographic, hateful, or inflammatory; any material that would constitute, encourage, or provide instructions for a criminal offence, dangerous activities, or self-harm; any material that is deliberately designed to provoke or antagonize people, especially trolling and bullying, or is intended to harass, harm, intimidate, hurt, scare, distress, embarrass, or upset people; any material that contains a threat of any kind, including threats of physical violence; any material that is racist or discriminatory, including discrimination on the basis of someone’s race, ethnicity, nationality, religion, age, sex, gender, disability, or sexuality;
material that restricts or inhibits any other person from using the Services, or which may expose Toggle3D, the Services, or its users to any harm or liability of any type.
If you believe that there has been a violation of this Code of Conduct, you will immediately report any such violation to us by emailing firstname.lastname@example.org.
18. Exports and Location
You agree that you will not export or re-export, directly or indirectly the Services or other information or materials provided by Toggle3D hereunder, to any country for which Canada, the United States, or any other relevant jurisdiction requires any export licence or other governmental approval at the time of export without first obtaining such licence or approval. In particular, but without limitation, the Services may not be exported or re-exported: (a) into any comprehensively embargoed countries or any country that your jurisdiction’s government has included on any official terrorism or terrorism-related lists; (b) to any governments of such countries; or (c) to anyone listed on your jurisdiction’s list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals, the U.S. Department of Commerce Denied Person’s List or Entity List, or Public Safety Canada’s terrorist entities list.
We administer and operate the Services from Canada. Although the Services are accessible in many territories throughout the world, not all features, products or Services discussed, referenced, provided or offered are available to all persons or in all geographic locations, or appropriate or available for use outside Canada. We reserve the right to limit, in our sole discretion, the provision and quantity of any feature, product or Service to any person or geographic area. Any offer for any feature, product or Service made is void where prohibited. If you choose to access the Services from outside Canada, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
To the maximum extent permitted by applicable law, you agree to, at your sole cost, defend, indemnify, and hold harmless Toggle3D, its parents, subsidiaries, and affiliates, and each of their respective officers, directors, employees, contractors, agents, representatives, service providers, licensors, licensees, suppliers, advisors and successors, from and against any and all claims, actions, causes of action, proceedings, liabilities, demands, debts, damages, judgments, awards, losses, charges, costs, fines, penalties, and expenses (including legal fees and expenses) of any kind and character whatsoever, including any amount paid to settle any such action or to satisfy a judgment, arising out of or in any way connected with: (i) any of your or you End Users’, or any user of your User Account’s, acts or omissions, including any breach or non-performance of any applicable obligation, representation, or warranty under these Terms; (ii) your User Content or Feedback; (iii) your access to or use of, or activities in connection with, the Services or your User Account; (iv) your violation of any applicable laws, rules, regulations, or contracts (including violation or any third party’s rights); or (v) any misrepresentation made by you (all of the foregoing, “Claimsand Losses”). You will cooperate as fully required by us in the defense of any Claims and Losses. Notwithstanding the foregoing, we retain the exclusive right to settle, compromise, and pay any and all Claims and Losses. We reserve the right to assume the exclusive defense and control of any Claims and Losses at our own cost. You will not settle any Claims and Losses without, in each instance, our prior written consent or the consent of an individual whom we authorize, in writing, to approve such settlement.
20. LIMITATION OF LIABILITY
PERSONAL USERS IN QUEBEC: NOTHING IN THIS SECTION SHALL LIMIT TOGGLE3D’S LIABILITY WITH RESPECT TO THE CONSEQUENCES OF ITS OWN ACTS OR THE ACTS OF ITS REPRESENTATIVES, WHICH IS PROHIBITED UNDER QUEBEC’S CONSUMER PROTECTION ACT (CLQR C P-40.1).TO THE EXTENT THAT IT IS PROHIBITED BY LAW, THE LIMITATION AND EXCLUSION HEREUNDER DOES NOT APPLY TO PERSONAL USERS IN QUEBEC.
NOTHING IN THESE TERMS WILL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SUBJECT TO THE FOREGOING, IN NO EVENT WILL WE, OUR AFFILIATES AND OUR AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, ADVERTISERS, SUPPLIERS, CONTENT PROVIDERS AND LICENSORS ("TOGGLE3D PARTIES") BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY OTHER PERSON FOR DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS (WHETHER INCURRED DIRECTLY OR INDIRECTLY), LOST SAVINGS, LOST REVENUES, LOST GOODWILL, LOST DATA OR LOST OPPORTUNITY (COLLECTIVELY, THE "EXCLUDED DAMAGES"). THESE LIMITATIONS APPLY WHETHER THE ALLEGED LIABILITY IS BASED ON TORT (INCLUDING NEGLIGENCE), CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE TOGGLE3D PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY, AND YOU HEREBY WAIVE, RELEASE, AND FOREVER DISCHARGE THE TOGGLE3D PARTIES FROM AND AGAINST ALL OF THE EXCLUDED DAMAGES. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE TOGGLE3D PARTIES' LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE EXCLUDED DAMAGES INCLUDE ANY LOSSES OR DAMAGES WHICH MAY BE INCURRED BY YOU AS A RESULT OF:
ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY, OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE SERVICES;
ANY CHANGES WHICH WE MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SERVICES (OR ANY FEATURES WITHIN THE SERVICES);
THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE ANY CONTENT OR OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH YOUR USE OF THE SERVICES;
YOUR FAILURE TO PROVIDE US WITH ACCURATE ACCOUNT INFORMATION; OR
YOUR FAILURE TO KEEP YOUR PASSWORD OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
YOU ARE RESPONSIBLE FOR ANY INTERNET OR MOBILE CHARGES THAT MAY APPLY TO YOUR USE OF OUR SERVICES, INCLUDING TEXT-MESSAGING AND DATA CHARGES. IF YOU’RE UNSURE WHAT THOSE CHARGES MAY BE, YOU SHOULD ASK YOUR SERVICE PROVIDER BEFORE USING THE SERVICE.
TO THE FULLEST EXTENT PERMITTED BY LAW, ANY DISPUTE YOU HAVE WITH ANY THIRD PARTY ARISING OUT OF YOUR USE OF THE SERVICES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, ANY CARRIER, COPYRIGHT OWNER, OR OTHER USER, IS DIRECTLY BETWEEN YOU AND SUCH THIRD PARTY, AND YOU IRREVOCABLY RELEASE US AND OUR AFFILIATES FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL TOGGLE3D PARTIES’ TOTAL, AGGREGATE LIABILITY EXCEED, WITH RESPECT TO THE SERVICES, THE TOTAL AMOUNT PAID BY YOU TO TOGGLE3D IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
22. Term and Termination
Term. These Terms will be effective as of the earlier of (a) the date you began using the Services; and (b) the date you consented to these Terms through our website, apps, an Order Form or otherwise, and will continue until terminated in accordance with the terms hereof (the “Term”). For greater certainty, the completion, expiration, or termination of any or all work hereunder will not, by itself, terminate these Terms.
Termination. These Terms or any Order Form may be terminated as follows:
Convenience. Unless an Order Form expressly states that it may not be so terminated, by us for our sole convenience upon delivery of thirty (30) calendar days prior written notice of termination to you;
Default. By either party upon written notice if the other party (or a person for which such other party is responsible) is in default of or breaches any provision of the particular Order Form or these Terms and such breach or default (i) is incapable of cure within a fifteen (15) calendar day period from the day that the terminating party delivers notice to the breaching party specifying the particulars of such breach, or (ii) continues for such fifteen (15) calendar day period without cure by the other party, and in each case “cure” means the full rectification, which shall be determined in the reasonable discretion of the affected party, of such breach or default in compliance;
Non-Payment. By us upon written notice if you do not pay any invoices when due and payable and you fail to cure such breach within seven (7) calendar days from the day that we deliver notice of such breach to you; and
Insolvency or Cessation. By either party upon written notice if the other party (i) is bankrupt, insolvent, or unable to discharge its liabilities as they become due; (ii) commences, maintains or is subject to any proceedings for the benefit of insolvent debtors or for protection from its creditors or relating to its liquidation, dissolution or winding-up or insolvency or the appointment of a receiver, receiver-manager or similar officer or custodian for such party or all or any material part of its assets or business; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) suspends or ceases, or threatens to suspend or cease, to carry on its business in the normal course; or (v) is subject to any liquidation, winding-up or dissolution.
Obligations upon Expiration or Termination. The parties will remain responsible and liable for all of their respective obligations and liabilities accrued before the expiration or termination of any Order Form or these Terms. Upon the expiration or termination of any Order Form or these Terms for any reason whatsoever, and without limiting any remedies available to the parties:
you will pay to us all fees for Services properly performed and other Deliverables delivered to you prior to the effective date of termination, provided that, with respect to any fees that are “fixed price”, the amount payable to us will be a portion of the total amount payable, as determined by the parties acting reasonably having regard to the Services performed and Deliverables completed;
you will immediately cease accessing and using the Services; and
we will deliver to you all originals and copies, in whatever form or medium, of all completed Deliverables then existing and all work-in-progress regarding those Deliverables for which you have paid the relevant payments hereunder.
Survival. Notwithstanding any other provision of these Terms, those provisions of these Terms that by their nature ought to survive any expiration or termination of these Terms, and all other provisions necessary to their interpretation or enforcement, will so survive and will remain in full force and effect and be binding upon the parties as applicable.
23. Other Terms
Relationship. The parties are non-exclusive, independent contracting parties, and nothing in these Terms or done pursuant to these Terms will create or be construed to create a partnership, joint venture, agency, employment or other similar relationship between you and us. At all times we will conduct our business and affairs in a manner consistent with maintaining our independent contractor status. Nothing in these Terms or done under these Terms in any way limits, prohibits or restricts either party from engaging in discussions or entering into agreements with any other person at any time regarding similar services, deliverables and other work product as those performed, delivered or provided under these Terms.
Non-Solicit. You will not, without prior written consent from us, directly or indirectly (whether individually, jointly or in conjunction with any person) in any manner (including any individual, firm, association, syndicate, company, corporation, or other business enterprise, as principal agent, shareholder, officer, independent contractor, or in any other manner whatsoever), during the Term and for a period of twelve (12) months thereafter seek in any way to persuade or entice any person to terminate an employment, advisory or consulting position with us, or hire or retain the services of any such person, provided that nothing in this provision shall prevent you from directly or indirectly hiring or retaining any person pursuant to general, public job advertisements that are not specifically targeted to our personnel. If you only access the Services as a Personal User, this Section (Non-Solicit) does not apply to you.
Applicable Law and Jurisdiction. These Terms, their subject matter and their formation, are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provisions or rules. You and we agree that the UN Convention on Contracts for the International Sale of Goods (Vienna, 1980) will not apply to these Terms, the Services, or to any dispute or transaction arising out of these Terms or the use of the Services. PERSONAL USERS IN
QUEBEC: This Section regarding governing law and jurisdiction is prohibited by Quebec’s Consumer Protection Act (CQLR C P-40.1) and, therefore, if you are a Personal User in Quebec, this Section does not apply to you.
Dispute Resolution. Most customer concerns regarding the Services can be resolved quickly and to a customer’s satisfaction by emailing us at email@example.com. However, with respect to any dispute arising out of or in connection with these Terms that cannot be resolved by email, including any question regarding existence, validity or termination of these Terms, the parties agree that such unresolved disputes will be resolved by arbitration at Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration. Any party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be conducted by a single arbitrator. The arbitration shall be held in Vancouver, British Columbia. The arbitration shall proceed in accordance with the provisions of the Arbitration Act (British Columbia). The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties. Notwithstanding the foregoing, each party may seek injunctive relief in any court of competent and appropriate jurisdiction. Notwithstanding the foregoing, Personal Users may pursue any unresolved disputes through any “small claims” or substantively similar court system which is available in such Personal User’s jurisdiction of residence.
Interpretation. In these Terms, (a) the captions and headings are for convenience only and do not constitute substantive matter and are not to be construed as interpreting the contents of these Terms, (b) the word “including”, the word “includes” the phrase “such as”, and similar words and phrases, when following a general statement or term (whether or not non-limiting language such as “without limitation” or “but not limited to” or other words of similar import are used with reference thereto), is not to be construed as limiting, and the word “or” between two or more listed matters does not imply an exclusive relationship between the matters being connected, and (c) all references to Services will also include all deliverables and any successor or replacement applications, websites, content, or services containing substantially similar information as the referenced Service(s).
Assignment. We may at any time assign our rights and obligations under these Terms, in whole or in part, without notice to you. You may not assign these Terms without our prior, written consent. These Terms will inure to the benefit of and bind you and us and our respective personal and legal representatives, successors and permitted assigns.
No Waiver. Our failure to insist upon or enforce any provision of these Terms will not be construed as a waiver of any provision or right.
Security. The transmission of information via the internet is inherently not completely secure and we do not guarantee that our Services will be secure or free from defects or viruses. You are responsible for configuring your information technology and computer programs to access our Services.
Severability. If any court of law, having jurisdiction to decide on this matter, rules that any provision of these Terms is invalid, then that provision will be removed from the Terms without affecting the rest of the Terms, and the remaining provisions of the Terms will continue to be valid and enforceable.
Further Assurances. Each of the parties agrees to execute and deliver at the request of the other party all such further documents, deeds and instruments, and will do and perform all such further acts as may be reasonably necessary to give full effect to the intent and meaning of these Terms.
Force Majeure. We will not be liable for delays, failures in performance, or interruptions of the Services that result directly or indirectly from any cause or condition beyond our reasonable control, including significant market volatility, any delay or failure due to any act of God, act of civil or military authorities, act of terrorism, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or internet services or network provider services, failure of equipment and/or software, pandemic, outbreak of illness or disease, declaration of public health emergency, other catastrophe or any other occurrence which is beyond our reasonable control.
Remedies Cumulative. The remedies of the parties set out in these Terms are cumulative and not exclusive of any other rights or remedies that may be available to the parties, whether provided by law, equity, statute, these Terms, any other agreement between the parties or otherwise.
Notices. Whenever in these Terms it is required or permitted that notice or demand be given or served by either party to or on the other, such notice or demand will be in writing and will be deemed delivered upon the earlier of (a) actual receipt by the intended recipient or (b) delivery in person or by reputable overnight courier.
Independent Legal Advice. Each party agrees that it has read and understands these Terms and the obligations imposed in it, and that it has been provided with a reasonable chance to seek independent legal advice.