Toonly Terms of Use & Sale

Last Update: April 24, 2019

IMPORTANT – PLEASE CAREFULLY READ AND UNDERSTAND THESE TERMS OF USE & SALE BEFORE ACCESSING, USING, OR SUBSCRIBING OR PLACING AN ORDER OVER WWW.TOONLY.COM. THESE TERMS CONTAIN DISCLAIMERS OF WARRANTIES AND LIMITATIONS OF LIABILITIES (see Sections 11, 15, and 16). THESE TERMS FORM AN ESSENTIAL BASIS OF OUR AGREEMENT. PLEASE PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORDS.

The use of www.toonly.com (hereafter “Website”), which is owned and maintained by Bryxen, Inc. d/b/a Toonly (“Toonly,” “we,” “our,” “us”), is governed by the terms and conditions set forth below. We offer the Website, including all information, tools, and services available from the Website to you, the user, conditioned upon your acceptance of all terms and conditions stated here. By accessing, using, subscribing, or placing an order over the Website, you and your business (as applicable) agree to the terms set forth herein. If you do not agree to these terms and conditions in their entirety, you are not authorized to use the Website in any manner or form whatsoever.

THIS IS A BINDING AGREEMENT. THESE TERMS OF USE & SALE (“TERMS”) TOGETHER WITH OUR PRIVACY POLICY AND END USER LICENSE AGREEMENT FORM A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN YOU AND YOUR BUSINESS (AS APPLICABLE) (“YOU”) AND Toonly. THIS AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE WEBSITE, ANY ORDER YOU PLACE THROUGH THE WEBSITE, BY TELEPHONE, OR OTHER ACCEPTED METHOD OF PURCHASE AND, AS APPLICABLE, YOUR USE OR ATTEMPTED USE OF THE PRODUCTS OR SERVICES OFFERED ON OR AVAILABLE THROUGH THE WEBSITE.

THIS AGREEMENT CONTAINS ARBITRATION AND CLASS ACTION WAIVER PROVISIONS THAT WAIVE YOUR RIGHT TO A COURT HEARING, RIGHT TO A JURY TRIAL, AND RIGHT TO PARTICIPATE IN A CLASS ACTION. ARBITRATION IS MANDATORY AND IS THE EXCLUSIVE REMEDY FOR ANY AND ALL DISPUTES UNLESS SPECIFIED BELOW IN SECTION 16.

Toonly reserves the right to update and change, from time to time, these Terms and all documents incorporated by reference by posting updates and/or changes to our Website. It is your responsibility to check this page periodically for changes. You can find the most recent version of these Terms at https://www.toonly.com/terms/tos/. Use of the Website after such changes constitutes acceptance of such changes. Any new features or tools which are added to the current Website shall also be subject to the Terms.

Table of Contents

  1. Website Use
  2. Website User Conduct and Restrictions-License Terms
  3. Our Privacy Policy and Your Personal Information
  4. Information You Provide; Registration; Passwords; Prohibition Against Hosting Third-Party Agency Accounts
  5. Order Placement and Acceptance
  6. 30 Day Refund Policy
  7. MEMBERSHIP TERMS AND AUTOMATIC PAYMENT
  8. Shipping Fees
  9. Products, Services, and Prices Available on the Website
  10. Interactive Features
  11. DISCLAIMER - YOUR BUSINESS’ INDIVIDUAL SUCCESS WILL VARY
  12. Your Responsibilities in Running Your Business
  13. Toonly Affiliate Program
  14. Testimonials, Reviews, and Pictures/Videos
  15. DISCLAIMERS OF OTHER WARRANTIES
  16. LIMITATIONS OF LIABILITIES
  17. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER
  18. Toonly’s Additional Remedies
  19. Indemnification
  20. Notice and Takedown Procedures; Copyright Agent
  21. Third-Party Links
  22. Termination
  23. No Waiver
  24. Governing Law and Venue
  25. Force Majeure
  26. Assignment
  27. Electronic Signature
  28. Changes to the Agreement
  29. Your Additional Representations and Warranties
  30. Severability
  31. Entire Agreement
  32. Contacting Us

SECTION 1 – WEBSITE USE

The Website is intended for use by adults or by minors who are supervised by an adult at all times. If you use the Website, you are affirming that you are at least 18 years old or the legal age of majority in your state or province of residence (whichever is greater), have the legal capacity to enter into a binding contract with us, and have read this Agreement and understand and agree to its terms.

SECTION 2 – WEBSITE USER CONDUCT AND RESTRICTIONS-LICENSE TERMS

All aspects of our Website are protected by U.S. and international copyright, trademark, and other intellectual property laws, including all content, information, design elements, text material, logos, taglines, metatags, hashtags, photographic images, testimonials, personal stories, icons, video and audio clips, and downloads. No material on the Website may be copied, reproduced, distributed, republished, uploaded, displayed, posted, or transmitted in any way whatsoever. The Toonly trademark and logo are proprietary marks of Toonly, and the use of those marks is strictly prohibited. Nothing herein gives you the right to use, copy, register as a domain name, reproduce, or otherwise display any logo, tagline, copyrighted material, trademark, trade name, patent, trade dress, trade secret, or confidential information owned by Toonly.

Subject to your continued strict compliance with all Terms, Toonly provides to you a revocable, limited, non-exclusive, royalty-free, non-sublicenseable, non-transferrable license to use the Website. You acknowledge and agree that you do not acquire any ownership rights in any material protected by intellectual property laws.

If you are purchasing one of Toonly’s software products, you agree to our End User License Agreement (“EULA”), which explains in detail your rights in connection with the software. To view the EULA, click here. The EULA is incorporated into this Agreement by reference.

You agree not to use or attempt to use the Website in any unlawful manner or a manner harmful to Toonly. You further agree not to commit any harmful or unlawful act or attempt to commit any harmful or unlawful act on or through the Website.

By posting or submitting any material (including, without limitation, comments, blog entries, Facebook postings, photos and videos) to us via the Website, internet groups, social media venues, or to any of our staff via email, text or otherwise, you are representing: (i) that you are the owner of the material, or are making your posting or submission with the express consent of the owner of the material; and (ii) that you are thirteen years of age or older. In addition, when you submit, email, text or deliver or post any material, you are granting us, and anyone authorized by us, a royalty-free, perpetual, irrevocable, non-exclusive, unrestricted, worldwide license to use, copy, modify, transmit, sell, exploit, create derivative works from, distribute, and/or publicly perform or display such material, in whole or in part, in any manner or medium, now known or hereafter developed, for any purpose. The foregoing grant shall include the right to exploit any proprietary rights in such posting or submission, including, but not limited to, rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Also, in connection with the exercise of such rights, you grant us, and anyone authorized by us, the right to identify you as the author of any of your postings or submissions by name, email address or screen name, as we deem appropriate.

You acknowledge and agree that any contributions originally created by you for us shall be deemed a “work made for hire” when the work performed is within the scope of the definition of a work made for hire in Section 101 of the United States Copyright Act, as amended. As such, the copyrights in those works shall belong to Toonly from their creation. Thus, Toonly shall be deemed the author and exclusive owner thereof and shall have the right to exploit any or all of the results and proceeds in any and all media, now known or hereafter devised, throughout the universe, in perpetuity, in all languages, as Toonly determines. In the event that any of the results and proceeds of your submissions hereunder are not deemed a “work made for hire” under Section 101 of the Copyright Act, as amended, you hereby, without additional compensation, irrevocably assign, convey and transfer to Toonly all proprietary rights, including without limitation, all copyrights and trademarks throughout the universe, in perpetuity in every medium, whether now known or hereafter devised, to such material and any and all right, title and interest in and to all such proprietary rights in every medium, whether now known or hereafter devised, throughout the universe, in perpetuity. Any posted material which are reproductions of prior works by you shall be co-owned by us.

You acknowledge that Toonly has the right but not the obligation to use and display any postings or contributions of any kind and that Toonly may elect to cease the use and display of any such materials (or any portion thereof), at any time for any reason whatsoever.

You may establish a hypertext link to the Website so long as the link does not state or imply any sponsorship of your site by us or by the Website. However, you may not, without our prior written permission, frame or inline link any of the content of the Website, or incorporate into another website or other service any of our material, content or intellectual property.

SECTION 3 – OUR PRIVACY POLICY AND YOUR PERSONAL INFORMATION

We respect your privacy and the use and protection of your non-public, personal information. Your submission of personal information through the Website is governed by our Privacy Policy. Our Privacy Policy may be viewed at https://www.toonly.com/terms/privacy/. Toonly reserves the right to modify its Privacy Policy in its reasonable discretion from time-to-time. Our Privacy Policy is incorporated into this Agreement by reference.

SECTION 4 – INFORMATION YOU PROVIDE; REGISTRATION; PASSWORDS; PROHIBITION AGAINST HOSTING THIRD-PARTY AGENCY ACCOUNTS

To access certain features of the Website, we may ask you to provide certain demographic information including your gender, year of birth, zip code, and country. In addition, if you elect to sign up for a particular feature of the Website, such as chat rooms, web logs, or bulletin boards, you may also be asked to register with us on the form provided and such registration may require you to provide personally identifiable information such as your name and email address. You warrant that the information you provide us is truthful and accurate, and that you are not impersonating another person. In addition, to use certain features of the Website, you will need a username and password, which you will receive through the Website’s registration process. You are responsible for maintaining the confidentiality of any password you may use to access your Toonly user account, and you agree not to transfer your password or username, or lend or otherwise transfer your use of or access to your user account, to any third party. So called “agency accounts,” or accounts in which you host funnels for third parties, are prohibited. Should your usage data indicate, in Toonly’s sole and exclusive discretion, that you are operating an agency account, you will be subject to cancellation of your Toonly user account or enhanced pricing for your Toonly user account, at Toonly’s sole and exclusive discretion. You are fully responsible for all transactions with, and information conveyed to, Toonly under your user account. You agree to immediately notify Toonly of any unauthorized use of your password or user name or any other breach of security related to your user account. You agree that Toonly is not liable, and you will hold Toonly harmless, for any loss or damage arising from your failure to comply with any of the foregoing obligations. Please see Section 19 below for additional information.

SECTION 5 – ORDER PLACEMENT AND ACCEPTANCE

If you order a service or product, payment must be received by us before your order is accepted. We may require additional information regarding your order if any required information was missing or inaccurate, and may cancel or limit an order any time after it has been placed. Your electronic order confirmation, or any form of confirmation, does not signify our acceptance of your order. You must contact us immediately at [email protected] in order to modify or cancel your pending order. We cannot guarantee that we will be able to amend your order in accordance with your instructions.

All items are subject to availability. We will notify you if any item is not available, the expected availability date, and may offer you an alternative product or service. If the availability of any product or service is delayed and you do not wish to substitute the product or service, upon your request, we will cancel your order and if previously charged, your payment card will be fully refunded for that specific order. We reserve the right to limit the sales of our products and services to any person, geographic region, or jurisdiction. We may exercise this right on a case-by-case basis at our sole and exclusive discretion.

Your purchase order of products and other services is conditioned on you re-affirming your acceptance of this Agreement.

All advertised prices are in, and all payments shall be in, U.S. Dollars.

SECTION 6 – 30-DAY REFUND POLICY

Toonly has a 30-day refund policy if you are not happy with your purchase.

1. You must request a refund in writing by contacting [email protected];

2. Your request for a refund must be made within thirty (30) days of your purchase;

3. We do not offer refunds after the 30 day refund period has passed.

SECTION 7 – SUBSCRIPTION TERMS AND AUTOMATIC PAYMENT

A Toonly user is responsible for paying all sums due to Toonly in connection with their monthly subscription in accordance with these Terms. The first fee payable in accordance with these Terms is due when the user account is set up and payment of the monthly fee is a condition of access. Every calendar month, your account will be charged the subscription fee plus applicable tax for the following month’s subscription, together with any other fees for the following month’s subscription plus any accumulated charges for the past period (collectively, “Fees”). Failure by the Toonly user to use any of the services available through the service provided by Toonly does not relieve the Toonly user of their payment obligations under these Terms.

Potential users can pay by credit card or PayPal. Payment details shall be collected by us through our secure financial data collection mechanism. You acknowledge and agree that we hold data relating to the transaction, including the last four digits and the expiration date of the card used to purchase the products or services together with details on when payment is due. The Toonly user further acknowledges and agrees that payments are due on a recurring basis in accordance with the payment terms for the specific service purchased (unless the subscription is cancelled or terminated in accordance with these Terms or the EULA) and therefore authorizes the automatic payment collection terms applicable to that specific service (e.g., on a monthly basis and for a specific amount).

IF YOU ARE A TOONLY USER WITH A MONTHLY SUBSCRIPTION AND YOU HAVE PROVIDED US WITH A VALID CREDIT CARD NUMBER OR PAYPAL INFORMATION, EACH PAYMENT WILL BE AUTOMATICALLY PROCESSED AT THE TIME OF YOUR DESIGNATED PAYMENT DATE (MONTHLY) AND WILL BE BILLED TO THE PAYMENT METHOD YOU PROVIDED TO US AT THE TIME OF YOUR ENROLLMENT. IF YOU WISH TO CANCEL YOUR SUBSCRIPTION TO TOONLY, YOU MAY DO SO BY E-MAILING [email protected] BEFORE THE FIRST DAY OF YOUR NEXT SUBSCRIPTION MONTH AND YOUR ACCOUNT WILL BE CLOSED AT THE END OF YOUR BILLING PERIOD.

Toonly reserves the right to immediately terminate a user’s account and/or service for any unpaid (in whole or part) period of the subscription (with or without notice). Termination of service in no way relieves or excuses the user from any obligation to pay outstanding charges or expenses. In the event Toonly starts collection processes of any type, you will be liable for all collection costs, including legal fees and expenses, as provided in Section 19 below.

In addition to any Fees, Toonly may also charge applicable value added or other tax.

SECTION 8 – SHIPPING FEES

Unless otherwise stated on the Website at the time of purchase, if we ship you a physical product, we reserve the right to add applicable shipping and handling fees to your order. Unless otherwise stated, we will use commercially reasonable efforts to fulfill your order within a reasonable time after receipt of your properly completed and verified order. Accurate shipping address and phone number information is required. Although we may provide delivery or shipment timeframes or dates, such dates are good-faith estimates and are subject to change. If your order will be delayed, we will contact you at the e-mail address you provided when placing your order. If we are unable to contact you or you would like to cancel your order, we will cancel the order and refund the full amount charged. We shall not be liable for any loss, damage, cost, or expense related to any delay in shipment or delivery caused by any third party carrier or other delivery service not owned or controlled by us. The risk of loss and title for such items pass to you upon our delivery to any third party carrier.

SECTION 9 – PRODUCTS, SERVICES, AND PRICES AVAILABLE ON THE WEBSITE

Products, services, and prices are generally posted at the following URL, but are subject to change: www.toonly.com/pricing. Toonly reserves the right, without notice, to discontinue products or services or modify specifications and prices on products and services without incurring any obligation to you. Except as otherwise expressly provided for in these Terms, any price changes to your subscription or purchase of product(s) or services will take effect following email notice to you.

Price changes are effective on the first day of the month after the price change is posted. By accessing, using, subscribing or placing an order over the Website, you authorize Toonly to charge your account in the amount indicated for the value of the services you select, including any future price changes. If you request a downgrade in services, the downgrade (and corresponding price reduction) will become effective on the first day of the month following your requested downgrade. By your continued use of Toonly services, and unless you terminate your subscription as provided herein, you agree that Toonly may charge your credit card monthly for the products and services you have selected, and you consent to any price changes for such services after e-mail notice has been provided to you.

Toonly takes reasonable steps in an effort to insure that the prices set forth on the Website are correct, and to accurately describe and display the items available on the Website. If the correct price of our product is higher than its stated price, we will, at our discretion, either contact you for instructions or cancel your order and notify you of such cancellation.

When ordering products or services, please note that Toonly does not warrant that product or service descriptions are accurate, complete, current, or error-free, or that packaging will match the actual product that you receive. All sales are deemed final except as provided in Section 6 of these Terms. Toonly’s descriptions of, or references to, products or services not owned by Toonly are not intended to imply endorsement of that product or service, or constitute a warranty by Toonly.

SECTION 10 – INTERACTIVE FEATURES

This Website may include a variety of features, such as bulletin boards, web logs, chat rooms, and email services, which allow feedback to us and real-time interaction between users, and other features which allow users to communicate with others. Responsibility for what is posted on bulletin boards, web logs, chat rooms, and other public posting areas on the Website, or sent via any email services on the Website, lies with each user - you alone are responsible for the material you post or send. We do not control the messages, information or files that you or others may provide through the Website. It is a condition of your use of the Website that you do not:

  • Restrict or inhibit any other user from using and enjoying the Website;
  • Use the Website to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
  • Interfere with or disrupt any servers or networks used to provide the Website or its features, or disobey any requirements, procedures, policies or regulations of the networks we use to provide the Website;
  • Use the Website to instigate or encourage others to commit illegal activities or cause injury or property damage to any person;
  • Gain unauthorized access to the Website, or any account, computer system, or network connected to this Website, by means such as hacking, password mining or other illicit means;
  • Obtain or attempt to obtain any materials or information through any means not intentionally made available through this Website;
  • Use the Website to post or transmit any unlawful, threatening, abusive, libelous, defamatory, obscene, vulgar, pornographic, profane or indecent information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, national or international law;
  • Use the Website to post or transmit any information, software or other material that violates or infringes upon the rights of others, including material that is an invasion of privacy or publicity rights or that is protected by copyright, trademark or other proprietary right, or derivative works with respect thereto, without first obtaining permission from the owner or rights holder;
  • Use the Website to post or transmit any information, software or other material that contains a virus or other harmful component;
  • Use the Website to post, transmit or in any way exploit any information, software or other material for commercial purposes, or that contains advertising;
  • Use the Website to advertise or solicit to anyone to buy or sell products or services, or to make donations of any kind, without our express written approval; and/or
  • Gather for marketing purposes any email addresses or other personal information that has been posted by other users of the Website.

Any user failing to comply with the terms and conditions of this Agreement may be expelled from and refused continued access to, the message boards, chats or other public forums in the future. Toonly or its designated agents may remove or alter any user-created content at any time for any reason. Message boards, chats and other public forums are intended to serve as discussion centers for users and subscribers. Information and content posted within these public forums may be provided by Toonly’s staff, Toonly’s outside contributors, or by users not connected with Toonly, some of whom may employ anonymous user names. Toonly expressly disclaims all responsibility and endorsement and makes no representation as to the validity of any opinion, advice, information or statement made or displayed in these forums by third parties, nor are we responsible for any errors or omissions in such postings, or for hyperlinks embedded in any messages. Under no circumstances will we, our affiliates, suppliers or agents be liable for any loss or damage caused by your reliance on information obtained through these forums. The opinions expressed in these forums are solely the opinions of the participants, and do not reflect the opinions of Toonly or any of its subsidiaries or affiliates.

Toonly has no obligation whatsoever to monitor any of the content or postings on the message boards, chat rooms or other public forums on the Websites. However, you acknowledge and agree that we have the absolute right to monitor the same at our sole discretion. In addition, we reserve the right to alter, edit, refuse to post or remove any postings or content, in whole or in part, for any reason and to disclose such materials and the circumstances surrounding their transmission to any third party in order to satisfy any applicable law, regulation, legal process or governmental request and to protect ourselves, our clients, sponsors, users and visitors.

SECTION 11 – DISCLAIMER - YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY

Every online business is different, employing different strategic approaches and organizational structures, and offering different products and services. Therefore, individual results will vary from user to user. YOUR BUSINESS’ INDIVIDUAL RESULTS WILL VARY DEPENDING UPON A VARIETY OF FACTORS UNIQUE TO YOUR BUSINESS, INCLUDING BUT NOT LIMITED TO YOUR CONTENT, BUSINESS MODEL, AND PRODUCT AND SERVICE OFFERINGS.

Toonly does not promise, guarantee, or warrant your business’ success, income, or sales. You understand and acknowledge that Toonly will not at any time provide sales leads or referrals to you or your business. We do not guarantee your business’ success and based upon many market factors that we cannot control, the tools we provide may or may not be applicable to your specific business. Further, we do not make earnings claims, efforts claims, return on investment claims, or claims that our software, tools, or other offerings will make your business any specific amount of money, and it is possible that you will not earn your investment back. We do not sell a business opportunity, “get rich quick” program, guaranteed system, franchise system, or a business in a box. You should not purchase our products or services if that is your expectation.

SECTION 12 – YOUR RESPONSIBILITES IN RUNNING YOUR BUSINESS

You are solely and exclusively responsible for complying with any and all applicable laws and regulations in running your business, including, but not limited to, all laws governing advertising and marketing claims, subscriptions, refunds, premium offers, tax laws, and all additional laws applicable to your business. Toonly shall have no liability for your violation of any laws. You agree to indemnify Toonly as set out in Section 19 below in the event that you and/or your business violates any law and a claim is threatened or asserted against Toonly as a result.

SECTION 13 –TOONLY AFFILIATE PROGRAM

Toonly may offer you an opportunity to become an independent Toonly Affiliate (“Affiliate”), wherein you have the opportunity to earn money from (i) commissions for Toonly accounts that you sell to other users, and (ii) bonuses when the people you sell to sell to others. Toonly reserves the sole and exclusive right to determine the amount of remuneration each Affiliate will receive in exchange for the Affiliate’s efforts.

COMPLIANCE WITH LAWS. Affiliates must comply with all laws, both U.S. and foreign, including, but not limited to, laws prohibiting deceptive and misleading advertising and marketing, e-mail marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), telemarketing laws (including the federal Telephone Consumer Protection Act (47 U.S.C. § 227) and the Federal Trade Commission’s Telemarketing Sales Rule (16 C.F.R. § 310)), laws governing testimonials (including the Federal Trade Commission’s Revised Endorsements and Testimonials Guides (16 CFR Part 255)), and/or any similar laws, laws relating to intellectual property, privacy, security, terrorism, corruption, child protection, or import/export laws. Affiliates are solely responsible for ensuring their compliance with all applicable laws, rules, regulations, and court orders of any kind of any jurisdiction applicable to you and your business, and any recipient to whom you or they send digital messages. You have the responsibility to be aware of, understand, and comply with all applicable laws and ensure that you and all users of your account comply with such applicable laws at all times.

PROMOTIONAL OBLIGATIONS. You may only promote and market Toonly programs using promotional materials supplied or approved by Toonly. Promotional material must be consistent with Toonly’s branding and shall not be false or misleading. Affiliates shall direct potential purchasers of Toonly programs to the dedicated links provided by Toonly.

COMMITMENT AGAINST HARASSMENT AND INTERFERENCE WITH OTHERS. You must not use our services to: (i) store, distribute, or transmit any malware or other material that you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive, or abusive; or (ii) commit, promote, aid, or abet any behavior, which you know, or have reasonable grounds to believe, is or may be tortious, libelous, offensive, infringing, harassing, harmful, disruptive, or abusive. Examples may include e-mails or other digital messages that promote racism, homophobia, or other hate or offensive speech.

SENSITIVE INFORMATION. You will not import, or incorporate into, any contact lists or other content you upload to any website, software, or other electronic service hosted or provided by Toonly, any of the following information: social security numbers, national insurance numbers, credit card data, passwords, security credentials, bank account numbers, or sensitive personal, health or financial information of any kind.

In addition to the foregoing, Toonly requires you to follow these best practices when sending electronic communications:

  • Use only permission-based marketing electronic communications lists (i.e., lists in which each recipient affirmatively opted-in to receiving those electronic communications);
  • Always include a working “unsubscribe” mechanism in each marketing electronic communication that allows the recipient to opt out from your mailing list (receipt/transactional messages that are exempt from “unsubscribe” requirements of applicable law are exempt from this requirement);
  • Comply with all requests from recipients to be removed from your mailing list within the earlier of ten (10) days of receipt of the request, or the deadline under applicable law;
  • Maintain, publish, and comply with a privacy policy that meets all applicable legal requirements, whether or not you control the sending of the electronic communications, and include a link to such privacy policy in your electronic communications;
  • Include in each electronic communication a link to your then-current privacy policy applicable to that electronic communication;
  • Include in each electronic communication your valid physical mailing address or a link to that information;
  • Do not send electronic communications to addresses obtained from purchased or rented lists;
  • Do not use third party electronic addresses, domain names, or mail servers without proper permission from the third party;
  • Do not routinely send electronic communications to non-specific addresses (e.g., [email protected] or [email protected]);
  • Do not engage in spamming;
  • Do not disguise the origin, or subject matter of, any electronic communications or falsify or manipulate the originating message address, subject line, header, or transmission path information for any electronic communication;
  • Do not send offers to obtain or attempt to obtain personal information, or generate leads, for third parties;
  • Do not send “chain letters,” “pyramid schemes,” or other types of electronic messages that encourage the recipient to forward the content to strangers;
  • Do not send to lists of addresses that are programmatically generated or scraped from the Internet;
  • Do not employ sending practices, or have overall message delivery rates, which may cause harm to our services or other users of our services; and
  • Do not use our services to send messages that may be considered junk mail. Some examples of this type of messages include, but are not limited to, messaging related to penny stocks, gambling, multi-level marketing, direct to consumer pharmaceutical sales, and payday loans.

Affiliates are independent contractors and are not employees or agents of Toonly. Affiliates have no authority to act on behalf of or bind Toonly. Affiliates shall be solely and exclusively responsible for all costs and other expenses incurred. Sections 17 and 19 below – in their entirety (as well as all other terms in this Agreement) – apply to Affiliates, and further govern the relationship between Toonly and each Affiliate.

To find out more information about the Affiliate program and the additional terms that apply, please click here

SECTION 14 – TESTIMONIALS, REVIEWS, AND PICTURES/VIDEOS

Toonly is pleased to hear from users and customers and welcomes your comments regarding our services and products. Toonly may use testimonials and/or product reviews in whole or in part together with the name, city, and state of the person submitting it. Testimonials may be used for any form of activity relating to Toonly’s services or products, in printed and online media, as Toonly determines in its sole and exclusive discretion. Testimonials represent the unique experience of the participants and customers submitting the testimonial, and do not necessarily reflect the experience that you and your business may have using our services or products. As set forth above in Section 11, your business’ results will vary depending upon a variety of factors unique to your business and market forces beyond Toonly’s control.

Anything that you submit or post to the Website, provide us, and/or post in any social media, including without limitation, photographs, testimonials, ideas, know-how, techniques, questions, reviews, comments, and suggestions is and will be treated as non-confidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable, and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, and create derivative works from such submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such submissions.

Additionally, Toonly reserves the right to correct grammatical and typing errors, to shorten testimonials prior to publication or use, and to review all testimonials prior to publication or use. Toonly shall be under no obligation to use any, or any part of, any testimonial or product review submitted.

SECTION 15 – DISCLAIMERS OF OTHER WARRANTIES

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW:

THE WEBSITE AND ALL CONTENT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, REPRESENTATIONS AND WARRANTIES AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, AND/OR COMPLETENESS OF ANY INFORMATION ON THIS WEBSITE. WE DO NOT REPRESENT OR WARRANT, AND EXPRESSLY DISCLAIM THAT: (A) THE USE OF THE WEBSITE OR ANY SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE WEBSITE , SOFTWARE, OR SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, SOFTWARE, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE WEBSITE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS IN THE WEBSITE WILL BE CORRECTED, OR (F) THE WEBSITE OR THE SERVER(S) THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

SECTION 16 – LIMITATIONS OF LIABILITIES

EXCEPT WHERE OTHERWISE INAPPLICABLE OR PROHIBITED BY LAW, IN NO EVENT SHALL Toonly OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, INDEPENDENT CONTRACTORS, TELECOMMUNICATIONS PROVIDERS, AND/OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE, OR ANY OTHER DAMAGES, FEES, COSTS OR CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PRIVACY POLICY, THE END USER LICENSE AGREEMENT, THE SERVICES OR PRODUCTS, AND/OR YOUR OR A THIRD PARTY’S USE OR ATTEMPTED USE OF THE WEBSITE OR ANY SOFTWARE, SERVICE, OR PRODUCT, REGARDLESS OF WHETHER Toonly HAS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, FEES, COSTS, OR CLAIMS. THIS INCLUDES, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS, OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR OTHER DAMAGES. THIS APPLIES REGARDLESS OF THE MANNER IN WHICH DAMAGES ARE ALLEGEDLY CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, OR OTHERWISE.

IN NO EVENT SHALL Toonly’S LIABILITY TO YOU OR YOUR BUSINESS EXCEED THE AMOUNT OF THREE (3) TIMES THE PAYMENTS PAID BY YOU TO Toonly FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS GIVING RISE TO A CLAIM AGAINST Toonly OCCURRED OR ONE-THOUSAND DOLLARS ($1,000), WHICHEVER IS GREATER.

SECTION 17 – DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION AND CLASS ACTION WAIVER

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS AND, AS APPLICABLE, YOUR BUSINESS’S RIGHTS. EXCEPT WHERE PROHIBITED BY LAW, YOU AGREE THAT ANY CLAIM THAT YOU OR YOUR BUSINESS MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH FINAL AND BINDING CONFIDENTIAL ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU AND YOUR BUSINESS ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU AND YOUR BUSINESS WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST. YOU AGREE THAT YOU AND YOUR BUSINESS MAY ONLY BRING A CLAIM IN AN INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. HOWEVER, AN ARBITRATOR CAN AWARD ON AN INDIVIDUAL BASIS THE SAME DAMAGES AND RELIEF AS A COURT (INCLUDING INJUNCTIVE AND DECLARATORY RELIEF OR STATUTORY DAMAGES), AND MUST FOLLOW THESE TERMS AS A COURT WOULD.

If you have a complaint, dispute, or controversy, you agree to first contact us at [email protected] to attempt to resolve the dispute or controversy informally. Any controversy or claim arising out of or related to the use of the Website, any product, service, or software, the End User License Agreement, these Terms of Use & Sale, the Privacy Policy, or your relationship with us that cannot be resolved through such informal process or through negotiation within 120 days shall be resolved by binding, confidential arbitration administered by the American Arbitration Association (“AAA”), and judgment on the award rendered may be entered in any court having jurisdiction thereof. We agree that any claim we may have against you or your business will also be subject to this arbitration provision, except as provided in Sections 18 and 19 below. The arbitration will be conducted by a single neutral arbitrator in the English language in Columbus, Ohio, unless we both agree to conduct the arbitration by telephone or written submissions. The arbitrator shall be selected by agreement of the parties or, if the parties cannot agree, chosen in accordance with Rules of the AAA. The arbitration will be conducted in accordance with the provisions of the AAA’s Commercial Arbitration Rules and Procedures, in effect at the time of submission of the demand for arbitration. The AAA’s Rules are available at www.adr.org or by calling 1-800-778-7879. The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms of Use & Sale, the Privacy Policy, the End User License Agreement, this arbitration provision, and any other terms incorporated by reference into these Terms of Use & Sale. The arbitrator shall have the exclusive and sole authority to determine whether any dispute is arbitrable. The arbitrator shall have the exclusive and sole authority to determine whether this arbitration agreement can be enforced against a non-signatory to this agreement and whether a non-signatory to this agreement can enforce this provision against you or Toonly.

Payment of all filing, administration, and arbitrator fees will be governed by the AAA’s Rules. In all other respects, the parties shall each pay their own additional fees, costs, and expenses, including, but not limited to, those for any attorneys, experts, documents, and witnesses.

The arbitrator shall follow the substantive law of the State of Ohio without regard to its conflicts of laws principles. Any award rendered shall include a confidential written opinion and shall be final, subject to appeal under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended. Judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

You and Toonly agree that disputes will only be arbitrated on an individual basis and shall not be consolidated, on a class wide, representative basis, or with any other arbitration(s) or other proceedings that involve any claim or controversy of any other party. You and Toonly expressly waive any right to pursue any class or other representative action against each other.

Failure or any delay in enforcing this arbitration provision in connection with any particular claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other claims except that all claims must be brought within 1 year after the claim arises (the 1 year period includes the 120-day informal resolution procedures described above).

This arbitration provision sets forth the terms and conditions of our agreement to final and binding confidential arbitration and is governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1-16, as amended.

This provision survives termination of your account or relationship with Toonly, bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (i.e., unenforceability would allow arbitration to proceed as a class or representative action), then this entire arbitration provision shall be rendered null and void and shall not apply. If a portion of this arbitration provision (other than the class action waiver) is deemed unenforceable, the remaining portions of this arbitration provision shall remain in full force and effect.

YOU UNDERSTAND THAT YOU AND YOUR BUSINESS WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE YOUR CASE, AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, YOU UNDERSTAND AND AGREE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY AND ONLY THROUGH BINDING, FINAL, AND CONFIDENTIAL ARBITRATION IN ACCORDANCE WITH THIS ARBITRATION PROVISION.

SECTION 18 – TOONLY’S ADDITIONAL REMEDIES

In order to prevent or limit irreparable injury to Toonly, in the event of any breach or threatened breach by you of the provisions of this Agreement, the End User License Agreement, or any infringement or threatened infringement by you of the intellectual property of Toonly or a third-party, Toonly shall be entitled to seek a temporary restraining order and preliminary and permanent injunctions or other equitable relief from a court of competent jurisdiction located in Columbus, Ohio restraining such breach, threatened breach, infringement, or threatened infringement. Nothing in this Agreement shall be construed as prohibiting Toonly from pursuing in court any other remedies available to it for such breach, threatened breach, infringement, or threatened infringement, including the recovery of monetary damages from you and your business. You and your business hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, the courts of Columbus, Ohio for all such claims, and forever waive any challenge to said courts’ exclusive jurisdiction or venue.

SECTION 19 – INDEMNIFICATION

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless Toonly, its directors, officers, employees, shareholders, licensors, independent contractors, subcontractors, suppliers, affiliates, parent companies, subsidiaries, and agents from and against any and all claims, actions, loss, liabilities, damages, expenses, demands, and costs of any kind, including, but not limited to attorneys’ fees and costs of any litigation or other dispute resolution, arising out of, resulting from, or in any way connected with or related to (1) your use, misuse, or attempt to use the Website, software, products, or services, (2) information you submit or transmit through the Website, (3) your breach of these Terms, the End User License Agreement, the Privacy Policy, or the representations and warranties provided by you in this Agreement, or (4) your violation of any law or the rights of a third-party, negligence, willful misconduct, and/or any infringement or misappropriation of any intellectual property of a third-party.

SECTION 20 – NOTICE AND TAKEDOWN PROCEDURES; COPYRIGHT ACT

If you believe that materials or content available on the Website infringes any copyright you own, you or your agent may send Toonly a notice requesting that Toonly remove the materials or content from the Website. If you believe that someone has wrongly filed a notice of copyright infringement against you, you may send Toonly a counter-notice. Notices and counter-notices should be sent by e-mail to Toonly’s Copyright Agent at [email protected] with the subject line “DMCA Notice” or “DMCA Counter-Notice”, and the e-mail must include all information and affirmations required by the Digital Millennium Copyright Act.

SECTION 21 – THIRD-PARTY LINKS

The Website may contain links to other websites. This may include the opportunity to purchase many different types of products and services online that are provided by third parties. Toonly assumes no responsibility for the content or functionality of any non-Toonly website to which we provide a link. If you make a purchase from a merchant on the Website or on a site linked to by the Website, the information obtained during your visit to that merchant’s online store or site, and the information that you give as part of the transaction, such as your credit card number and contact information, may be collected by both the merchant and us. Furthermore, a merchant may have privacy and data collection policies and procedures that are different from ours. Please see our Privacy Policy for more details. For more information regarding a merchant, its online store, its privacy policies, and/or any additional terms and conditions that may apply, visit that merchant’s website and click on its information links or contact the merchant directly.

Your participation, correspondence or business dealings with any third party found on or through the Website, regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, are solely between you and such third party. You agree that Toonly shall not be responsible or liable for any loss, damage, or other matters of any sort incurred as the result of such dealings.

You agree to be financially responsible for all purchases made by you or someone acting on your behalf through the Website. You agree to use the Website and to purchase services or products through the Website for legitimate purposes only. You also agree not to make any purchases for speculative, false or fraudulent purposes or for the purpose of anticipating demand for a particular product or service. You agree to only purchase goods or services for yourself or for another person for whom you are legally permitted to do so.

SECTION 22 – TERMINATION

This Agreement will take effect (or shall re-take effect) at the time you click “BUY NOW!,” “I ACCEPT”, “I AGREE” or similar links or buttons, otherwise submit information through the Website, respond to a request for information, begin installing, accessing, or using the Website, complete a purchase, select a method of payment, and/or enter in payment method information, whichever is earliest. If, in our sole discretion, you fail, or we suspect that you have failed, to comply with any term or provision of the Agreement, we may terminate the Agreement or suspend your access to the Website at any time without notice to you. Sections 11, 12, 14 through 19, and 23 through 31 of this Agreement, as well as any representations, warranties, and other obligations made or undertaken by you, shall survive the termination of this Agreement and/or your account or relationship with Toonly.

Upon termination, you remain responsible for any outstanding payments to Toonly.

SECTION 23 – NO WAIVER

No failure or delay on the part of Toonly in exercising any right, power or remedy under this Agreement may operate as a waiver, nor may any single or partial exercise of any such right, power, or remedy preclude any other or further exercise of such right, power, or remedy, or the exercise of any other rights, power, or remedy under this Agreement. A waiver of any right or obligation under this Agreement shall only be effective if in writing and signed by Toonly.

SECTION 24 – GOVERNING LAW AND VENUE

This Agreement and any issue or dispute arising out of or otherwise related to this Agreement or your access to or use of the Website, our Privacy Policy , the End User License Agreement, or any matter concerning Toonly, including your purchase and use or attempted use of any service or product, shall be governed exclusively by the laws of State of Ohio without regard to its conflicts of laws principles. To the extent that any claim or dispute is found by the arbitrator or (if proper) a court of competent jurisdiction to be excluded from the arbitration agreement in Section 17 above, the parties agree that any such claim or dispute shall be exclusively brought in and decided by the state or federal courts located in Columbus, Ohio, and you and Toonly hereby irrevocably consent to the exclusive personal jurisdiction of, and exclusive venue in, such courts, and forever waive any challenge to said courts’ exclusive jurisdiction or venue. All such claims must be brought on an individual and non-class, non-representative basis, and the parties forever waive any right to bring such claims on a class wide or representative basis.

SECTION 25 – FORCE MAJEURE

Toonly will not be responsible to you for any delay, damage, or failure caused or occasioned by any act of nature or other causes beyond our reasonable control.

SECTION 26 – ASSIGNMENT

Toonly may assign its rights under this Agreement at any time, without notice to you. Your rights arising under this Agreement cannot be assigned without Toonly’s (or its assigns’) express written consent.

SECTION 27 – ELECTRONIC SIGNATURE

All information communicated on the Website is considered an electronic communication. When you communicate with Toonly through or on the Website or via other forms of electronic media, such as e-mail, you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreements, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.

SECTION 28 – CHANGES TO THE AGREEMENT

You can review the most current version of the Terms at any time at https://www.toonly.com/terms/tos/ . We reserve the right, at our sole discretion, to update, change or replace any part of the Agreement, including the Privacy Policy and End User License Agreement , by posting updates and changes to our Website. It is your responsibility to check our Website periodically for changes. Your continued use of or access to our Website following the posting of any changes to the Agreement constitutes acceptance of those changes.

SECTION 29 – YOUR ADDITIONAL REPRESENTATIONS AND WARRANTIES

You hereby further represent and warrant: (1) that you are at least eighteen (18) years of age, or the legal age of majority in your jurisdiction, whichever is greater; (2) that you have read this Agreement and thoroughly understand and agree to the terms contained in this Agreement; and (3) that you will not re-sell, re-distribute, or export any product or service that you order from the Website. You further represent that Toonly has the right to rely upon all information provided to Toonly by you, and Toonly may contact you and your business by email, telephone, or postal mail for any purpose, including but not limited to (i) follow-up calls, (ii) satisfaction surveys, and (iii) inquiries about any orders you placed, or considered placing, on or through the Website.

SECTION 30 – SEVERABILITY

If any provision of this Agreement is found by the arbitrator or (if proper) a court of competent jurisdiction to be invalid or unenforceable, the remaining provisions shall not be affected thereby and shall continue in full force and effect and such provision may be modified or severed from this Agreement to the extent necessary to make such provision enforceable and consistent with the remainder of the Agreement.

SECTION 31 – ENTIRE AGREEMENT

These Terms, the Agreement, the End User License Agreement, and any policies or operating rules posted by us on the Website or in respect to the Website constitutes the entire agreement and understanding between you and your business and Toonly and governs your access and use of the Website and your ordering, purchasing, and use and/or attempted use of any service or product, and supersedes and replaces any prior or contemporaneous agreements, representations, communications, and proposals, whether oral or written, between you and Toonly. We may also, in the future, offer new services and/or features through the Website. Such new features and/or services shall also be subject to these Terms, the Agreement, the End User License Agreement and any policies or operating rules posted by us on the Website. Any ambiguities in the interpretation of these Terms, the Agreement, or the End User License Agreement shall not be construed against the drafting party.

SECTION 32 – CONTACTING US

We encourage our customers to contact us with questions or comments about our products and services. Please feel free to do so by sending an e-mail to [email protected]

If you have any questions or inquiries concerning any of the Terms, you may contact Toonly by e-mail at [email protected].

You may also find the answer to many of your questions in our online FAQ site at http://support.toonly.com.

Notices to you may be made by posting a notice (or a link to a notice) on https://www.toonly.com/terms/tos/ , by e-mail, or by regular mail, at Toonly’s discretion.

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