Toucan Events Inc.
Terms of Service
Updated as of 2020.12.10
Welcome to Toucan Events, Inc. (“Toucan Events”, “us” or “we”), and to our events platform, Toucan (such platform, as modified from time to time, “Toucan”). The website at https://toucan.events (the “Site”), Toucan, including our Toucan service located at https://app.toucan.events, https://event.app.toucan.events and other related toucan.events subdomains, our mobile applications (collectively, “Apps”) and our various other related services, premium and other features, functions, software, applications and websites (together with the Site, Toucan and the Apps, collectively the “Services”) are provided and operated, and are being made available, by Toucan Events to you and the other users of the Services. All defined terms used herein shall have the meanings prescribed to these terms in these Terms of Service (“Terms”).
We reserve the right to provide separate terms of service for specific activities and programs (e.g., competitions) (collectively, the “Specific Terms”). If so, to the extent that the Specific Terms conflict with these Terms, the Specific Terms shall apply.
THESE TERMS CONTAIN AN ARBITRATION PROVISION WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT DISPUTES YOU HAVE AGAINST TOUCAN EVENTS TO BINDING AND FINAL ARBITRATION. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TOUCAN EVENTS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
1. Basic Terms
To access and use the Services, you must be at least 13 years of age. If you are 13 to 17 years old, your parent or legal guardian must accept these Terms for you, and all references to “you” in these Terms shall mean you and the parent or legal guardian who accepted these Terms for you. By clicking the “I agree” button or by accessing or using the Services, you represent to Toucan Events that: (a) you have not been previously suspended or removed from the Site, Toucan or any of the other Services; (b) you are qualified to form a binding contract with Toucan Events; (c) you will comply with these Terms and all applicable local, state, national and international laws, rules and regulations; and (d) you are not a competitor of Toucan Events and do not intend to use the Services for reasons that are in competition with Toucan Events or otherwise to replicate some or all of the Services for any reason. We retain the right to create limits on use and storage at our sole discretion at any time without prior notice to you.
To access and use certain features of the Services, you must register and create an account and become a registered user (“User”). In registering and creating an account, you agree to (i) provide true, accurate, current, and complete information about yourself as prompted during the registration and account creation process (“Registration Data”), and (ii) maintain and promptly update your Registration Data to keep it true, accurate, current and complete. You are responsible for safeguarding the password or credentials that you use to access the Services and for any activities or actions under your account, whether or not you are aware of such activities. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with any system you use to access your account on the Services. If you provide any information that is untrue, inaccurate, not current, or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and prohibit you from accessing and using the Services. You agree not to create an account using a false identity or information, or on behalf of someone other than yourself. You agree not to create an account or to access and use the Services if you have been previously removed by us or if you have been previously banned from accessing and using the Services. We reserve the right to force forfeiture of any username for any reason. Toucan Events cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
We may also permit you to access and use the Services if you have registered with certain third-party sites, such as Facebook or Google and you authorize Toucan Events to access your registration information with such third-party sites (through OAuth).
Sponsorships and Virtual Item Purchases The Services will not include advertisements, but may include sponsorships and virtual item purchases. The types and extent of sponsorships and virtual item purchases presented or offered by Toucan Events on the Services are subject to change.
3. Using the Services
The Services enable you to organize and participate in virtual parties through group video chats with other Users. When you use the App as a host, you will be able to host a virtual party and invite Users to join your party. When you use the App as either a host or a party attendee you will be able to connect and communicate with other invited Users on the Service (each a “Connection”). If you are the host of a virtual party and wish to limit your virtual party to a select group of Users, you may lock your virtual party. If you do not lock your virtual party, anyone may join that current virtual party, with or without an invite from you and whether or not you know him or her.
You are responsible for any mobile and data charges that you may incur for using the Services. If you are unsure what those charges may be, you should ask your service provider before using any of the Services.
For purposes of these Terms: (a) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (b) “User Content” means any Content that you or other Users provide or import to be made available through the Services. All Content, whether publicly posted or privately transmitted, is the sole responsibility of the person who originated such Content. We may, but are not required to, monitor or control the Content posted via the Services. We do not take responsibility for any Content. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy or reliability of any Content or communications posted via the Services or endorse any opinions expressed via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, Content that has been mislabeled or are otherwise deceptive. Under no circumstances will Toucan Events be liable in any way for any Content, including but not limited to any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere. Any use or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk. If notified by a user of any User Content or other content or materials that allegedly do not conform to these Terms, Toucan Events may investigate the allegation and determine what recourse, if any, it might have. For clarity, Toucan Events does not permit copyright infringing activities on or through any of the Services.
5. Rights in the Services and Content Ownership
Toucan Events does not claim any ownership rights in any User Content. You retain your rights to any User Content you submit, post or display on or through the Services. Subject to your ownership of your User Content, all right, title, and interest in and to the Services and Content are and will remain the exclusive property of Toucan Events and its licensors (including other Users). The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Toucan Events reserves all rights not expressly granted in these Terms.
Rights in Content Granted by You
By uploading, sharing and publishing you User Content to or through the Services, you hereby grant to Toucan Events a worldwide, non-exclusive, perpetual, irrevocable, transferable, sublicensable (through multiple tiers), assignable, fully paid-up, royalty-free, license to use, copy, host, display, reproduce, process, adapt, modify, publish, transmit, distribute and perform such User Content (and any copyrights, publicity, database and other proprietary rights therein) in any and all media or distribution methods, now known or later developed. We reserve the right to record and monitor your virtual party sessions and the User Content that you upload, share and publish, provided that, notwithstanding the foregoing and any other provision in these Terms, the content of your virtual party sessions will only be used by us for the purpose of providing you the Services and for internal business purposes, and for no other purpose. We may modify or adapt your User Content in order to transmit, display or distribute it over computer networks and in various media and make changes to your User Content as are necessary to conform and adapt that User Content to any requirements or limitations of any networks, devices, services or media.
You are solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of your User Content and the consequences of posting your User Content, including the use of your User Content by other Users with whom you participate in a virtual party session. You should only provide User Content that you are comfortable sharing with others under these Terms. Toucan Events will not be responsible or liable for any use of your User Content by Toucan Events or other Users in accordance with these Terms.
By uploading, sharing and publishing your User Content, you affirm, represent, and warrant that: (a) you are the creator and owner of or have the necessary licenses, rights, consents, and permissions to post your User Content; (b) your User Content does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right or (ii) slander, defame, libel, or violate or invade the right of privacy, publicity or other rights of any person or entity; and (c) your User Content does not contain any viruses, adware, spyware, worms, or other malicious code or any content or file that provides a method to access to potentially infringing content outside of any of the Services. Violators of these third-party rights may be subject to criminal and civil liability.
Rights in Content Granted by Toucan Events
Subject to your compliance with these Terms, Toucan Events grants you a limited, non-exclusive, non-transferable license to access and view the Content posted by other Users via the Services solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
The Services are owned and operated by Toucan Events. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, software, services, and all other elements of the Services provided by Toucan Events (the “Materials”) are protected by United States copyright, trade dress, patent, and trademark laws, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. All Materials contained on the Services are the property of Toucan Events or its subsidiaries or affiliated companies, and/or third-party licensors. All trademarks, service marks, and trade names are proprietary to Toucan Events or its affiliates and/or third-party licensors. Except as expressly authorized by Toucan Events, you agree not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials. Toucan Events reserves all rights not expressly granted in these Terms.
Toucan Events and our employees do not accept or consider unsolicited ideas, including ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to Toucan Events or any of our employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Toucan Events’ products or marketing strategies might seem similar to ideas submitted to Toucan Events. If, despite our request that you not send us your ideas, you still submit them, then the following terms shall apply to your submissions.
You agree that (a) your Submissions and their contents will automatically become the property of Toucan Events, without any compensation to you; (b) Toucan Events may use or redistribute the Submissions and their contents for any purpose and in any way; (c) there is no obligation for Toucan Events to review the Submissions; and (d) there is no obligation to keep any Submissions confidential.
You grant to Toucan Events a royalty-free, worldwide, irrevocable, perpetual license to use, publish, edit, translate, distribute, display and incorporate any ratings, comments, suggestions, feedback, improvement requests or other recommendations you provide relating to Services without restriction (“Feedback”). You should not submit any Feedback to us that you do not wish to license to us as stated above. We have no obligation (a) to maintain any Feedback in confidence; (b) to pay any compensation for any Feedback; or (c) to respond to any Feedback. You grant us the right to use the name that you submit in connection with any Feedback.
6. Rights in the Apps
Rights in Apps Granted by Toucan Events Subject to your compliance with these Terms, Toucan Events grants you a limited non-exclusive, non-transferable, non-sublicensable license to download and install a copy of the Apps on any mobile device or computer that you own or control and to run such copy of the Apps solely for your own personal, non-commercial purposes. You may not copy the Apps, except for making a reasonable number of copies for backup or archival purposes. Except as expressly permitted in these Terms, you may not: (a) copy, modify, decompile, disassemble, reverse engineer or create derivative works based on the Apps; (b) distribute, transfer, sublicense, lease, lend or rent the Apps to any third party; (c) reverse engineer, decompile or disassemble the Apps; (d) make the functionality of the Apps available to multiple users through any means; (e) provide any services, directly or indirectly, that are similar to or based on the Services; (f) interfere with, circumvent or disable any security or other technological features or measures of any of the Services or attempt to gain unauthorized access to any of the Services or its related systems or networks; (g) make unsolicited offers, advertisements, or proposals, or send junk mail or spam to other Users (including, but not limited to, unsolicited advertising, promotional materials or other solicitation material, bulk mailing of commercial advertising, chain mail, informational announcements, charity requests, and petitions for signatures); (h) take any action that Toucan Events determines, in its sole discretion, imposes or may impose, an unreasonable or disproportionately large load on its infrastructure; (i) upload invalid data, viruses, worms or other software agents through the Services; (j) impersonate any person or entity, use a fictitious name, or misrepresent your affiliation with a person or entity; or (k) use the Services for any unlawful or inappropriate activities, such as gambling, obscenity, pornography, violence, transmission of deceptive messages, or harassment. Toucan Events reserves all rights in and to the Apps not expressly granted to you under these Terms.
Additional Terms for App Store Apps
If you accessed or downloaded the Apps from the Apple App Store, then you agree to use the Apps only: (a) on an Apple-branded product or device that runs iOS (Apple’s proprietary operating system software); and (b) as permitted by the “Usage Rules” set forth in the Apple Store Terms of Service. If you accessed or downloaded the Apps from any app store or distribution platform (like the Apple App Store or Google Play) (each, an “App Provider”), then you acknowledge and agree that: (i) these Terms are concluded between you and Toucan Events, and not with App Provider, and that, as between Toucan Events and the App Provider, Toucan Events is solely responsible for the Apps; (ii) App Provider has no obligation to furnish any maintenance and support services with respect to the Apps; (iii) in the event of any failure of the Apps to conform to any applicable warranty, you may notify App Provider and App Provider will refund the purchase price for the Apps to you (if applicable) and, to the maximum extent permitted by applicable law, App Provider will have no other warranty obligation whatsoever with respect to the Apps. Any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of an App to conform to any warranty will be the sole responsibility of Toucan Events; (iv) App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Apps or your possession and use of the Apps, including, but not limited to: (A) product liability claims; (B) any claim that the Apps fail to conform to any applicable legal or regulatory requirement; and (C) claims arising under consumer protection or similar legislation; (v) in the event of any third-party claim that the App or your possession and use of the Apps infringes that third party’s intellectual property rights, Toucan Events will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms; (vi) App Provider and its subsidiaries are third-party beneficiaries of these Terms as related to your license of the Apps, and that, upon your acceptance of the terms and conditions of these Terms, App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your license of the Apps against you as a third party beneficiary thereof; (vii) you must also comply with all applicable third-party terms of service when using the Apps; (viii) you agree to comply with all U.S. and foreign export laws and regulations to ensure that neither the Apps nor any technical data related thereto nor any direct product thereof is exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations; and (ix) by using the Apps, you represent and warrant that: (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (B) you are not listed on any U.S. Government list of prohibited or restricted parties.
7. Restrictions on Content and Use of the Services
We reserve the right at all times (but have no obligation) to remove or refuse to distribute any Content on the Services. You may not post Content that: (a) impersonates another person or entity in a manner that does or is intended to mislead, confuse, or deceive others (parodies are acceptable); (b) violates the rights of a third party, including copyright, trademark, privacy, and publicity rights; (c) promotes discrimination, hatred or harm against any individual or group; (d) is a direct and specific threat of violence to others; (e) is furtherance of illegal activities; or (f) is harassing, abusive, or constitutes spam.
You may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, Toucan Events’ computer systems, or the technical delivery systems of Toucan Events providers; (b) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Toucan Events (and only pursuant to those terms and conditions), unless you have been specifically allowed to do so in a separate agreement with Toucan Events (NOTE: scraping the Services without the prior consent of Toucan Events is expressly prohibited); (d) forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information; (e) interfere with, or disrupt, (or attempt to do so), the access of any User, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services; (f) use, display, mirror or frame the Services or any individual element within the Services, Toucan Events’ name, any Toucan Events trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Toucan Events’ express written consent; (g) avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Toucan Events or any of Toucan Events’ providers or any other third party (including another User) to protect the Services or Content; (h) attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Toucan Events or other generally available third-party web browsers; (i) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation; (j) use any meta tags or other hidden text or metadata utilizing an Toucan Events trademark, logo URL or product name without Toucan Events’ express written consent; (k) use the Services or Content, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms; (l) attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services or Content; (m) collect or store any personally identifiable information from the Services from other Users of the Services without their express permission; (n) violate any applicable law or regulation; or (f) encourage or enable any other individual to do any of the foregoing.
While the Services are in public beta, hosts agree to limit the attendance to 150 people and event duration to two hours (“Reasonable Use”). Toucan Events monitors usage and will take action against abuse. Hosts wishing to hold events with more than 150 attendees or longer than two hours should contact us at firstname.lastname@example.org to request a Reasonable Use exemption.
8. Digital Millennium Copyright Act
We are committed to complying with U.S. copyright and related laws, and we require all of our Users who disseminate content through the Services to comply with these laws. Accordingly, all Users (including you) may not disseminate any material or content using the Services in any manner that constitutes an infringement of third-party intellectual property rights, including rights granted by U.S. copyright law. Owners of copyrighted works who believe that their rights under U.S. copyright law have been infringed may take advantage of certain provisions of the Digital Millennium Copyright Act of 1998 (the “DMCA”) to report alleged infringements. It is our policy in accordance with the DMCA and other applicable laws to reserve the right to terminate the rights of any user to access the Services if any such User is either found to infringe third-party copyright or other intellectual property rights, including repeat infringers, or who we believe, in our sole discretion, are infringing these rights. Upon our receipt of a proper notice of claimed infringement under the DMCA, we will respond expeditiously to remove, or disable access to, the material claimed to be infringing and will follow the procedures specified in the DMCA to resolve the claim between the notifying party and the alleged infringer who provided the content in issue.
Our designated agent to whom you should address such notice is email@example.com.
If you believe that content that you or a third party owns has been used via the Services in a way that violates your or someone else’s copyright or other intellectual property rights, please provide us with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest; (b) a description of the copyrighted work or other intellectual property that you claim has been infringed; (c) a description of where the material that you claim is infringing is located; (d) your address, telephone number, email address or other information reasonably sufficient to permit us to contact you; (e) if possible, information sufficient to allow Toucan Events to notify the owner/administrator of the allegedly infringing content; (f) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and (g) a statement by you, made under penalty of perjury, that the information contained in your report is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Please note that you may be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material is infringing your copyrights. Accordingly, if you are not sure whether material available online infringes your copyright, we suggest that you first contact an attorney. If we remove or disable access to allegedly infringing material, we will make a good-faith attempt to contact the person who submitted the affected material or content so that they may make a counter notification in accordance with Sections 512(g)(2) and (3) of the DMCA. Toucan Events accommodates and does not interfere with standard technical measures used by copyright owners to protect their materials.
9. Third Party Sites.
The Services may now or in the future include links or references to other web sites or services (“Third-Party Sites”) solely as a convenience to Users. These links may include payment processing and other sites or services that we think may be of interest to our Users. Toucan Events does not endorse any such Third-Party Sites or the services, information, materials, products, or services contained on or accessible through Third-Party Sites. In addition, your correspondence or business dealings with, or participation in promotions of, advertisers found on or through any of the Services are solely between you and such advertiser. Access and use of Third-Party Sites, including the information, materials, products, and services on or available through Third-Party Sites are solely at your own risk.
You agree that Toucan Events in its sole discretion, for any or no reason, and without penalty, may terminate your access and use of the Services or any account (or any part thereof) that you may have with Toucan Events and remove and discard all or any part of your account and user profile at any time. Toucan Events may also in its sole discretion and at any time prohibit you from accessing and using the Services or discontinue providing access to the Services, or any part thereof, with or without notice. You agree that Toucan Events will not be liable to you or any third party for any such termination. Toucan Events reserves the right to fully cooperate with any law enforcement authorities or court order requesting or directing Toucan Events to disclose the identity of anyone posting any content that are believed to violate these Terms. Any suspected fraudulent, abusive or illegal activity may be referred to appropriate law enforcement authorities. These remedies are in addition to any other remedies that Toucan Events may have at law or in equity. BY ACCEPTING THESE TERMS, YOU WAIVE AND SHALL HOLD TOUCAN EVENTS HARMLESS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY TOUCAN EVENTS DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUENCE OF INVESTIGATIONS BY EITHER TOUCAN EVENTS OR LAW ENFORCEMENT AUTHORITIES.
Your only remedy with respect to any dissatisfaction with (a) the Services, (b) any term of these Terms, (c) any policy or practice of Toucan Events in operating the Services, or (d) any Content viewable through the Services is to terminate your use of the Services and your account. You may terminate your use of the Services and your account at any time. After such termination, you must refrain from use of the Services until authorized by Toucan Events.
Upon termination of these Terms, your use of the Services or your relationship with Toucan Events, any provision which, by its nature or express terms should survive, will survive such termination or expiration, including, but not limited to Sections 4, 5, 7, 8, 10, 11, 12, 13 and 14.
You agree to indemnify, save, and hold harmless Toucan Events its affiliated companies, contractors, employees, agents and its third-party suppliers, licensors, and partners from any third-party claims, losses, damages, or liabilities, including reasonable legal and accounting fees and expenses, arising out of (a) your use or misuse of the Services or any Content, (b) any violation by you of these Terms, (c) your User Content or (d) any breach of the representations, warranties, and covenants made by you herein. Toucan Events reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Toucan Events and you agree to cooperate with Toucan Events’ defense of these claims. Toucan Events will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it
12. Disclaimers and Limitation of Liability
Please read this section carefully since it limits the liability of Toucan Events and its parents, subsidiaries, affiliates, related companies, officers, directors, employees, agents, representatives, partners, and licensors (collectively, the “Toucan Events Entities”). Each of the subsections below only applies up to the maximum extent permitted under applicable law. Some jurisdictions do not allow the disclaimer of implied warranties or the limitation of liability in contracts, and as a result some of the contents of this section may not apply to you. Nothing in this section is intended to limit any rights you may have which may not be lawfully limited.
TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, TOUCAN EVENTS AND ITS AFFILIATES, CONTRACTORS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, THIRD-PARTY PARTNERS, LICENSORS AND SUPPLIERS (COLLECTIVELY, THE “TOUCAN EVENTS PARTIES”) DISCLAIM ALL WARRANTIES, STATUTORY, EXPRESS OR IMPLIED WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, TOUCAN EVENTS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE TOUCAN EVENTS PARTIES OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOU EXPRESSLY AGREE THAT THE SERVICES, ANY DATA, ASSESSMENTS, RESULTS, INFORMATION, THIRD-PARTY SOFTWARE, CONTENT, THIRD-PARTY SITE, SERVICES, OR APPLICATIONS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE”, “WITH ALL FAULTS” BASIS AND WITHOUT WARRANTIES OR REPRESENTATIONS OF ANY KIND EITHER EXPRESS OR IMPLIED.
THE TOUCAN EVENTS PARTIES DO NOT WARRANT THAT THE DATA, RESULTS, CONTENT, FUNCTIONS, OR ANY OTHER INFORMATION OFFERED ON OR THROUGH THE SERVICES, OR ANY THIRD-PARTY SITE WILL BE UNINTERRUPTED, OR FREE OF ERRORS, VIRUSES OR OTHER HARMFUL COMPONENTS AND DO NOT WARRANT THAT ANY OF THE FOREGOING WILL BE CORRECTED.
YOU UNDERSTAND AND AGREE THAT YOU USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN CONTENT, INFORMATION, MATERIALS, ASSESSMENTS, RESULTS OR DATA THROUGH THE SERVICES OR ANY THIRD-PARTY SITE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM) OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
UNDER NO CIRCUMSTANCES, INCLUDING, NEGLIGENCE, WILL THE TOUCAN EVENTS PARTIES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM ANY UNSUCCESSFUL COURT ACTION OR LEGAL DISPUTE, LOST BUSINESS, LOST REVENUES OR LOSS OF ANTICIPATED PROFITS OR ANY OTHER PECUNIARY OR NON-PECUNIARY LOSS OR DAMAGE OF ANY NATURE WHATSOEVER) ARISING OUT OF OR RELATING TO THESE TERMS OR THAT RESULT FROM YOUR USE OR YOUR INABILITY TO USE THE TOUCAN EVENTS CONTENT, THE SERVICES OR ANY THIRD-PARTY SITE, OR ANY OTHER INTERACTIONS WITH TOUCAN EVENTS OR ANY OTHER USER, EVEN IF TOUCAN EVENTS OR A TOUCAN EVENTS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, TOUCAN EVENTS’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT WILL THE TOUCAN EVENTS PARTIES’ TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO YOUR ACCESS AND USE OF THE TOUCAN EVENTS CONTENT, THE SERVICES OR THESE TERMS, OR YOUR INTERACTION WITH OTHER USERS (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE), EXCEED THE GREATER OF (A) $25 AND (B) AN AMOUNT EQUAL TO ANY MEMBERSHIP OR USER FEES PAID BY YOU DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
If you have a dispute with any other Users or other third parties, you hereby release Toucan Events and the other Toucan Events Parties from 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. If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
THESE LIMITATIONS OF LIABILITY ALSO APPLY WITH RESPECT TO DAMAGES INCURRED BY YOU BY REASON OF ANY PRODUCTS OR SERVICES SOLD OR PROVIDED ON ANY THIRD-PARTY SITES OR OTHERWISE BY THIRD PARTIES OTHER THAN TOUCAN EVENTS AND RECEIVED THROUGH OR ADVERTISED ON ANY OF THE SERVICES OR RECEIVED THROUGH ANY THIRD-PARTY SITES.
YOU ACKNOWLEDGE AND AGREE THAT TOUCAN EVENTS HAS OFFERED THE TOUCAN EVENTS CONTENT AND THE SERVICES, AND ENTERED INTO THESE TERMS, IN RELIANCE UPON THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN YOU AND TOUCAN EVENTS, AND THAT THE WARRANTY DISCLAIMERS AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND TOUCAN EVENTS. TOUCAN EVENTS WOULD NOT BE ABLE TO AUTHORIZE YOU TO ACCESS AND USE OF THE TOUCAN EVENTS CONTENT OR THE SERVICES TO YOU ON AN ECONOMICALLY REASONABLE BASIS WITHOUT THESE LIMITATIONS.
13. Dispute Resolution
If a dispute arises between you and Toucan Events, the goal is to provide you with a neutral and cost-effective method of resolving the dispute quickly. Accordingly, you and Toucan Events agree that any dispute, claim or controversy at law or equity that arises out of these Terms or the Services (a “Dispute”) will be resolved in accordance with this Section or as Toucan Events and you otherwise agree in writing. Before resorting to these dispute methods, Toucan Events strongly encourages you to first contact Toucan Events directly to seek a resolution. Toucan Events reserves all rights and remedies against any Users who violate these Terms.
These Terms shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL ACTION, PROCEEDING, CAUSE OF ACTION OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY DISPUTE OR OTHERWISE IN CONNECTION WITH THESE TERMS OR ANY OF THE SERVICES
Agreement to Arbitrate
PLEASE REVIEW AS THIS AFFECTS YOUR LEGAL RIGHTS.
YOU AGREE THAT ALL DISPUTES BETWEEN YOU AND TOUCAN EVENTS (WHETHER OR NOT SUCH DISPUTE INVOLVES A THIRD PARTY) IN CONNECTION WITH THESE TERMS OR ANY OF THE SERVICES, INCLUDING WITHOUT LIMITATION YOUR RIGHTS OF PRIVACY, WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION UNDER THE AMERICAN ARBITRATION ASSOCIATION’S RULES FOR ARBITRATION AND YOU AND TOUCAN EVENTS HEREBY EXPRESSLY WAIVE TRIAL BY JURY. ANY ARBITRATION SHALL BE IN ENGLISH AND THE PLACE OF ARBITRATION SHALL BE NEW YORK CITY, NEW YORK. YOUR ARBITRATION FEES AND YOUR SHARE OF ARBITRATOR COMPENSATION SHALL BE GOVERNED BY SUCH RULES. DISCOVERY AND RIGHTS TO APPEAL IN ARBITRATION ARE GENERALLY MORE LIMITED THAN IN A LAWSUIT, AND OTHER RIGHTS THAT YOU AND TOUCAN EVENTS WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION. YOU MAY BRING DISPUTES ONLY ON YOUR OWN BEHALF.
Neither you nor Toucan Events will participate in a class action or class-wide arbitration for any disputes covered by these Terms to arbitrate. YOU ARE GIVING UP YOUR RIGHT TO PARTICIPATE AS A CLASS REPRESENTATIVE OR CLASS MEMBER ON ANY CLASS CLAIM YOU MAY HAVE AGAINST TOUCAN EVENTS INCLUDING ANY RIGHT TO CLASS ARBITRATION OR ANY CONSOLIDATION OF INDIVIDUAL ARBITRATIONS. You also agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Toucan Events is a party to the proceeding.
This dispute resolution provision will be governed by the Federal Arbitration Act and not by any state law concerning arbitration. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms.
In the event that the agreement to arbitrate above is found not to apply to you or your claim, you and Toucan Events agree that any judicial proceeding (other than small claims actions) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the federal or state courts covering New York City, New York. Both you and Toucan Events irrevocably consent to venue and personal jurisdiction there. Notwithstanding the foregoing, Toucan Events may bring a claim for equitable relief in any court with proper jurisdiction.
You have the right to opt-out and not be bound by the arbitration provisions set forth in this Section by sending written notice of your decision to opt-out to firstname.lastname@example.org. The notice must be sent to Toucan Events within thirty (30) days of your use of any of the Services or agreeing to these Terms; otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
All claims you bring against Toucan Events must be resolved in accordance with this Section. All claims filed or brought contrary to this Section shall be considered improperly filed. Should you file a claim contrary to this Section, Toucan Events may recover attorneys’ fees and costs up to $15,000, provided that Toucan Events has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
14. General Terms
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms. The parties agree that nothing in these Terms shall be construed as creating a joint venture, partnership, franchise, agency, employer/employee, or similar relationship between the parties, or as authorizing either party to act as the agent of the other. The failure of Toucan Events to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. Any waiver of any provision of these Terms will be effective only if in writing and signed by Toucan Events. If any provision of these Terms is held to be invalid or unenforceable for any reason, then that provision will be limited or eliminated to the minimum extent necessary and will not affect the validity and enforceability of the remaining provisions of these Terms. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Toucan Events without restriction. Any assignment attempted to be made in violation of these Terms shall be void. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Toucan Events reserves the right, at its sole discretion, to change, modify, add, or remove portions of these Terms at any time by posting the amended Terms to the Site or any of the Services. If Toucan Events updates these Terms, it will update the “Updated as of” date at the top of the Terms. Please check these Terms periodically for changes. Your continued use of the Services after the posting of changes constitutes your binding acceptance of such changes. In the event of a change to these Terms that materially modifies your rights or obligations (including applicable fees), Toucan Events will use commercially reasonable efforts to notify you of such change. Toucan Events may provide notice through a pop-up or banner within any of the Services, by sending an email to any address you may have used to register for an account, or through other similar mechanisms. Additionally, if the changed Terms materially modify your rights or obligations, Toucan Events may require you to provide consent by accepting the changed Terms. If Toucan Events requires your acceptance of the changed Terms, changes are effective only after your acceptance. For all other changes, except as stated elsewhere by Toucan Events, such amended Terms or fees will automatically be effective, replacing the previously-effective Terms or fees, thirty (30) days after they are initially posted on any of the Services. IF AT ANY TIME YOU DO NOT AGREE TO THESE TERMS, PLEASE IMMEDIATELY TERMINATE YOUR USE OF ALL SERVICES. To the extent that any modifications to the Terms are not allowed under applicable laws, the prior most recent version of the Terms shall continue to apply.
The Services are offered by Toucan Events Inc. reachable via email at email@example.com. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
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