Terms of Service

Last updated at: Tue Oct 06 2020

These Terms of Service (“Terms”) govern your access to and use of Tonit Media Solutions Inc.’s (“Tonit”, “we”, “our” or “us”) website, https://www.tonit.com, its subdomains and mobile applications (the “Site”), the services available thereon, including, without limitation, the services that enable you to receive information and maps about motorcycle routes and meetups in various regions (the “Services”), and any information, data, text, graphics, photos, videos or other materials uploaded, downloaded or available on or through the Services (collectively, the “Content”). By accessing or using the Site, Services or Content, or by creating an Account (as defined below), clicking “sign up” or any similar mechanism, you agree to be legally bound by these Terms. If, at any time, you do not agree to these Terms, you must not access or use the Site, Services or Content.

VIOLATIONS OF THESE TERMS AND TERMINATION

GENERAL

31. International Use

32. Waiver and Severability

ASSUMPTION OF RISKS, WAIVER OF CLAIMS AND RELEASE OF LIABILITY

1. BY ACCESSING OR USING THE SITE, SERVICES OR CONTENT YOU WILL GIVE UP CERTAIN LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.

YOU UNDERSTAND AND ACKNOWLEDGE THAT THE SITE, SERVICES OR CONTENT IS NOT INTENDED FOR ACCESS OR USE WHILE OPERATING A MOTORCYCLE, THAT SUCH ACCESS OR USE IS DANGEROUS, UNLAWFUL, AND MAY LEAD TO BODILY INJURY (INCLUDING PARALYSIS OR DEATH), PROPERTY DAMAGE, OR BOTH. YOU UNDERSTAND AND AGREE, ON BEHALF OF YOURSELF, YOUR HEIRS, ASSIGNS, PERSONAL REPRESENTATIVES AND NEXT OF KIN, THAT ACCESSING AND USING THE SITE, SERVICES OR CONTENT CONSTITUTES AN UNQUALIFIED ASSUMPTION BY YOU OF ALL RISKS ASSOCIATED WITH YOUR USE OF THE SITE, SERVICES AND CONTENT EVEN IF ARISING FROM ANY ONE OR MORE OF TONIT AND ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RELEASEES”) NEGLIGENCE, GROSS NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR COMMON LAW DUTY OF CARE. YOU HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE THE RELEASEES FROM AND AGAINST ALL CLAIMS YOU NOW HAVE OR IN THE FUTURE MAY HAVE AGAINST THE RELEASEES WHETHER SUCH CLAIMS ARISE BY CONTRACT, TORT, STRICT LIABILITY, MISREPRESENTATION, EQUITY OR ANY OTHER LEGAL THEORY WHATSOEVER, AND ANY LOSSES OR DAMAGES YOU MAY SUFFER OR SUSTAIN, INCLUDING BUT NOT LIMITED TO ANY CLAIMS FOR BODILY INJURY (INCLUDING PARALYSIS OR DEATH) OR PERSONAL PROPERTY DAMAGE, THAT ARISE FROM OR IN CONNECTION WITH YOUR ACCESS TO, USE, FAILURE TO USE OR MISUSE OF THE SITE, SERVICES OR CONTENT. YOU FURTHER ACKNOWLEDGE AND AGREE THAT THIS RELEASE IS BINDING ON YOUR HEIRS AND SUCCESSORS

2. Privacy

Any information that you provide to Tonit is subject to our privacy policy, as it may be amended from time to time (the “Privacy Policy”), which is incorporated by reference into and forms a part of these Terms. To learn more about and understand the personal information that Tonit collects about you and what we do with it see our Privacy Policy at: https://www.tonit.com/privacy-policy/.

3. Changes and Revisions

Tonit reserves the right, acting in its sole discretion and with or without prior notice to you, to do any of the following: (a). modify, suspend or terminate operation of, or access to, any portion, features or functions of the Site, Services or Content including, but not limited to, hours of availability, geographical availability and applicable policies or terms; (b). remove links or references to any Linked Site (as defined below) from the Site, Services or Content; (c). make changes to the equipment, hardware or software required to use and access the Site, Services or Content; (d). interrupt the Site, Services or Content, or any portion thereof, as necessary to perform routine or non-routine maintenance, error correction or other modifications; and (e). revise these Terms, including the Privacy Policy. We will give you notice of any revisions to these Terms by posting the revisions to the Site. It is your responsibility to ensure that you are aware of the current Terms when you access or use the Site, Services or Content. If you continue to access or use any of the Site, Services or Content after any revisions to these Terms are posted you will be deemed to have accepted those revisions.

4. Contests and Promotions

The Site and Services may contain or offer contests or promotions, which may be governed by a separate set of terms and conditions and have eligibility requirements, such as certain age or geographic area restrictions. It is your responsibility to read the applicable rules to determine whether your participation, registration or entry will be valid or restricted and to determine Tonit’s requirements of you in connection with the applicable contest or promotion.

5. Laws and Regulations

Your access to and use of the Site, Services and Content is subject to all applicable international, federal, provincial, state and local laws and regulations.

MEMBERSHIP AND ACCOUNTS

6. Your Account and Security

In order to access and use certain features of the Site, Services or Content you may be required to register an account (the “Account”) through the Site. Unless you use a social sign-in such as Facebook when registering or updating an Account, you will be required to provide us with certain personal information, which may include your email address, selected user name and password (the “Login Information”). This Login Information will be retained and used by Tonit in accordance with our Privacy Policy. You agree that all Login Information provided by you will be accurate and complete and that you will promptly update such Login Information if and when it changes. You further represent and warrant that your use of any user names attached to your account will not violate or infringe upon the trade-mark, trade dress or other proprietary, privacy, publicity or personal rights of any third party. Without limiting any other rights and remedies of Tonit, Tonit reserves the right to suspend or terminate your Account and your ability to use the Site, Services or Content or a portion thereof for failure to comply with these Terms or any special terms related to a particular service, including where Tonit determines, acting reasonably but in its sole and absolute discretion, that the continued use of a user name will infringe on the proprietary or privacy, publicity or personal rights of any third party. You are responsible for protecting the confidentiality of your Login Information and for restricting access to your computer or device. You are not permitted to share your Account(s) or Login Information or to allow any other person to access to your Account(s). You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Login Information or your Account(s), or any other security breach involving your Account(s) or the Site or Services at support@tonit.com. We are not responsible for any unauthorized access of your Account(s) or Login Information even if you have advised us of such. You are responsible for all activities that occur under your Account(s) whether or not such activities have been authorized by you. Tonit strives to ensure the security of users’ data, UGC (as defined below) and Accounts, however, we cannot guarantee that unauthorized third parties will not circumvent our security measures.

7. "Champion" Accounts

You acknowledge that we may, but are not obligated to, offer certain accounts (“Champion Accounts”) to users who wish to be an ambassador for Tonit (a “Champion”). As a Champion, Tonit may grant you access to additional privileges on the Site, provide additional Services or provide access to additional Content. You further acknowledge and agree that we may limit the number and usage of such Champion Accounts in our sole and absolute discretion. When registering or updating a Champion Account, you will be required to provide us with personal information in addition to the Login Information, which may include your first name, last name, address, city, province or state (as applicable), and zip or postal code (as applicable) and which shall form part of your Login Information. If you have acquired a Champion Account, you agree that we may solicit your feedback concerning your use of the Site, Services or Content and your user experience.

8. Mobile Services and Electronic Communications

The Services are available through certain third party application (“App”) stores on mobile devices. Currently, the Tonit App is available to be downloaded onto mobile devices with iOS and Android operating systems from the Apple App Store and Google Play (each of Apple and Google, an “App Provider”). You acknowledge and agree that Tonit is not responsible for ensuring that your mobile device’s software is compatible with the Services or that you can use or access the Services or Content through your mobile device. If you are accessing our Services through Apps, you should check with your carrier to understand what data and messaging rates will apply as all such costs shall be borne by you. You consent to receive electronic communications from Tonit either in the form of email, push notification or in-App notification to your mobile device or other forms of electronic messages sent to you at the addresses listed on your Account or by communications posted on or notifications through the Site (collectively, “Electronic Communications”). You acknowledge and agree that any Electronic Communication shall satisfy any legal requirement that such communication or notification be in writing.

PAYMENT TERMS – FULL THROTTLE EDITION

9.

Tonit offers a premium version of the Services named “Full Throttle” (“Full Throttle”), which provides you access to certain enhanced services, features, functionality, and content (including, for example, additional profile features, the ability to create and join unlimited events and the ability to share unlimited UGC). By subscribing to Full Throttle, you accept our Terms of Use, which includes the following payment and billing terms.

10. Payment, Renewal and Cancellation

You can subscribe to Full Throttle through an App store on your mobile device, where the applicable App Provider will process your payment subject to its own privacy policy and terms of use. We do not collect or receive your credit or debit card data or any payment information (“Payment Information”). You are solely responsible for keeping your Payment Information up to date on your Account. We may share information with the applicable App Provider about your purchase and download of the Tonit App for the purposes of confirming your purchase and successful download or resolving your questions or complaints. We offer Full Throttle subscriptions on a monthly or annual basis and all fees or charges due will be billed automatically at the start of the monthly or annual period, as applicable. We reserve the right to disable or terminate your access to Full Throttle with or without notice to you if you fail to pay the fees or charges for your use of Full Throttle when due. You can change your subscription from a monthly to an annual subscription, or vice versa, at any time through your Account settings and the applicable App store. Your subscription to Full Throttle auto-renews and you are automatically billed. You may cancel your subscription to Full Throttle through your Account settings and the applicable App store. The cancellation of Full Throttle will go into effect at the end of your current billing cycle, and you will have the same level of access to Full Throttle through the remainder of such billing cycle. For example, if you purchase an annual subscription and you cancel during a given month of that year, you will maintain access to Full Throttle through the end of that year. Tonit does not provide any refunds. Any questions regarding refunds should be directed to the applicable App Provider.

11. Fee Changes

Tonit may change the fee charged for Full Throttle at any time. We will give you reasonable notice of any pricing changes either by posting such changes on the Site or by sending you an email. The new fee will begin to apply on your next billing cycle. If you do not wish to pay the new fee, you can cancel Full Throttle prior to the change going into effect.

12. Trials

You acknowledge that we may, but are not obligated to, offer Full Throttle to users on a no fees or reduced fees, trial or promotional basis (a “Trial”). Trials may have limited access to the Site or Full Throttle. In order to register for a Trial, you will be required to select a type of Full Throttle subscription and provide your Payment Information. At the end of the Trial period, you will be automatically subscribed to the type of Full Throttle subscription that you have selected and your Payment Information will be charged all associated fees until you cancel your subscription. If you do not wish to incur such charges, you must cancel your subscription through your Account settings and the applicable App store before the end of the Trial Period. You acknowledge and agree that we may limit the number and usage of Trials in our sole and absolute discretion. If you have acquired a Trial, you agree that we may solicit your Feedback concerning your use of the Site and Full Throttle and your user experience.

CONTENT OWNERSHIP, USE AND INTELLECTUAL PROPERTY RIGHTS

13. Limited End User License

Subject to your strict compliance with these Terms, Tonit grants you a limited, revocable, non-exclusive, personal, non-transferable license, without the right to sublicense, to access and use the (i) Site, (ii) Services and (iii) Content which you have downloaded, installed or subscribed for, as applicable, on a single computer, mobile device or media platform, including applications downloaded directly from a legitimate marketplace (the “License”). You shall not acquire any ownership rights in any of the Site, Services or Content, with the exception of any User Generated Content (as defined below). The term of your License commences on the date of your acceptance of these Terms and shall end on the earlier date of your or Tonit’s suspension or termination of your Account. Your License shall terminate immediately, automatically and without notice if you attempt to circumvent any technical protection measures used in connection with the Site, Services or Content or you otherwise breach these Terms.

14. Data Collection and Ownership

Tonit may collect data which is anonymous and associated with your computer, mobile device, and/or media system platform and which includes, but is not limited to, your city, actions you take within and outside the Site and Services, your hardware/software/firmware, the browser you use, the identity of other apps, programs or software included on your device or platform, the date and time of your use of the Site and Services, your in-media time, activities, tracked rides and events, and the URLs you visited and/or apps you used before and after using the Site and/or Services (“Usage Data”). You agree that your Usage Data will be owned by Tonit without providing compensation to you or any other person and without any liability whatsoever.

15. User Generated Content

Similar to other internet content platforms, you grant Tonit a perpetual, unrestricted, unlimited, non-exclusive, irrevocable license to fully exploit all Content that you generate in connection with your use of the Site or Services (“User Generated Content” or “UGC”), without notice or compensation to you of any kind. You hereby waive all moral rights in your UGC in favour of Tonit and its successors and assigns. The license granted to Tonit and the above waiver of moral rights will survive any termination of these Terms.

16. Suggestions and Feedback

All creative ideas, recommendations, enhancement requests, notes, drawings, suggestions or other feedback on the features or functionality of the Site or Services that you may provide to Tonit, whether solicited or unsolicited, as a user or otherwise (“Feedback”), is the property of Tonit or our content partners and third party licensors, including all intellectual property rights therein, without providing any compensation to you or any other person and without any liability whatsoever. You hereby irrevocably assign all intellectual property rights throughout the world and in perpetuity in and to the Feedback to Tonit and irrevocably waive all moral rights you may have therein. You may submit Feedback by emailing us at: support@tonit.com.

17. Trademarks, Logos and Tonit Branding

The trademarks, logos, signs, symbols, images and brands (“Marks”) displayed on the Site are the property of Tonit or our third party licensors. You are prohibited from using any Marks for any purpose including, but not limited to, use as metatags on other pages or sites on the Internet without the written permission of Tonit or such third party which may own the Marks, which permission may be withheld in the sole discretion of the owner of the relevant Marks. All Content available on or through the Site or Services is protected by intellectual property laws. You are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content for commercial purposes.

18. Violation of Third Party Rights

You represent and warrant that all Content of any kind that is uploaded to or transmitted through the Site or Services will not violate or infringe upon the rights of any third party including, but not limited to, any trade secret, copyright, trade-mark, trade dress, patent, privacy, publicity, confidentiality or other personal or proprietary rights of any such third parties. Tonit may terminate the privileges of any user who utilizes the Site, Services or Content to unlawfully publish, transmit, link or otherwise provide access to copyrighted material without a valid license, the express consent of the copyright owner or a fair dealing or fair use exemption (or equivalent under applicable law) and the user shall have the burden of establishing the same to the satisfaction of Tonit, acting in its sole discretion.

COPYRIGHT POLICY

19.

Tonit respects the intellectual property rights of others and expects users of the Site or Services to do the same. We will respond to notices of alleged copyright infringement that are properly provided to us and comply with applicable law. If you believe that anything on our Site or Services infringes any copyright that you own or control, please provide us with the following information: (a) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (b) identification of the copyrighted work claimed to have been infringed; (c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (d) your contact information, including your address, telephone number, and an email address; (e) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (f) a statement that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner. We reserve the right to remove Content alleged to be infringing and/or terminate a user’s Account without prior notice and at our sole discretion. If you knowingly misrepresent that any Content on our Site or Services is infringing, you may be liable to Tonit for certain costs and damages. Please submit all notices of alleged copyright infringement appearing on the Site or Services to support@tonit.com.

USER CONDUCT

20. Community Guidelines

See our Community Guidelines posted at https://www.tonit.com/community-guidelines/, which are incorporated into and form a part of these Terms of Service.

21. Interactive Areas

Some of the Services we provide include areas or features as part of the Site that offer the opportunity for users to submit UGC for public viewing, including without limitation a message board, chat feature, forum, social community environment or blog (the “Interactive Areas”). You acknowledge that the Interactive Areas are for public and not private communications, and you have no expectation of privacy with regard to any UGC submitted to an Interactive Area. We may, but do not always, monitor these Interactive Areas and take no responsibility for the UGC in the Interactive Areas, another member’s failure to comply with the Community Guidelines, or for any loss or damage as a result of interaction with other community members. We provide you with the ability to block another member and to delete comments as an event organizer in the Interactive Areas. However, we recommend that you be careful and exercise common sense and good judgment when using any Interactive Areas.

THIRD PARTY LINKS, ACTIVITIES AND TERMS

22. Third Party Links

The Site, Services or Content may contain links to websites, products and other resources operated by third parties other than Tonit (“Linked Sites”). Such links are provided solely as a convenience to you. Tonit does not control such Linked Sites, and is not responsible for the content, products, services or information offered by any third parties. The inclusion of links to the Linked Sites on the Site or Services does not imply any endorsement or any website or the content, products or services offered, advertised, endorsed or promoted by any third party, or of any company or person.

23. Third Party Activities

If you hold an Account, our Services include the ability to discover, access or participate in certain services, activities, or events offered, organized, run and controlled by third parties (“Third-Party Activities”). When you interact with, or participate in, any such Third Party Activities, you acknowledge that you are contracting directly with such third party and not with Tonit. If you choose to attend or participate in these Third-Party Activities, you do so of you own free will and accord, with full knowledge of and voluntarily assuming any and all risks associated with the Third Party Activities.

24. Third Party Terms

When you access any third party products or services or interact with any third parties through the Site or Services, including but not limited to any Linked Sites and Third Party Activities, you do so entirely at your own risk and you may be subject to the terms and conditions and the privacy policies imposed by such third parties.

NO WARRANTIES

25.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, THE SITE, SERVICES AND ALL CONTENT ON THE SITE INCLUDING LINKED SITES ARE PROVIDED TO YOU “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY, SUITABILITY OR ACCURACY. TONIT DOES NOT WARRANT THAT THE SITE, SERVICES OR CONTENT ARE SUITABLE FOR OR WILL MEET YOUR REQUIREMENTS, ARE FREE OF DEFECTS, THAT THE OPERATION OF THE SITE OR SERVICES WILL BE FREE FROM INTERRUPTION OR ERROR-FREE, AND TONIT DOES NOT WARRANT THAT ERRORS OR DEFECTS IN THE SITE, SERVICES OR CONTENT WILL BE CORRECTED. FURTHER, TONIT DOES NOT WARRANT, ENDORSE, GUARANTEE, PROVIDE ANY CONDITIONS OR REPRESENTATIONS, OR ASSUME ANY RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY ANY THIRD PARTY THROUGH THE SITE OR ANY LINKED SITE, INCLUDING ANY THIRD-PARTY ACTIVITIES, AND TONIT SHALL NOT BE A PARTY TO ANY TRANSACTION THAT YOU MAY ENTER INTO WITH ANY SUCH THIRD PARTY THROUGH THE SITE, ANY LINKED SITE OR OTHERWISE.

LIMITATION OF LIABILITY

26. Limitation of Liability for the Use of the Site, Services, Content and Linked Sites

YOU AGREE THAT TONIT WILL NOT BE LIABLE FOR ANY BODILY INJURY (INCLUDING PARALYSIS OR DEATH), PERSONAL PROPERTY DAMAGE OR ANY LOSS OR DAMAGES OF ANY TYPE INCLUDING DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION, THE REPLACEMENT COST OF PERSONAL PROPERTY, THE COST OF PROCURING SUBSTITUTE SERVICE, LOST OPPORTUNITY OR REPUTATIONAL LOSS OR DATA CORRUPTION OR DATA LOSS) ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SITE, SERVICES, CONTENT OR A LINKED SITE, EVEN IF TONIT IS MADE AWARE OF THE POSSIBILITY OF SUCH BODILY INJURY, PERSONAL PROPERTY DAMAGE OR ANY OTHER DAMAGES WHATSOEVER. IF HOWEVER TONIT IS FOUND LEGALLY RESPONSIBLE TO YOU FOR ANY DAMAGES YOU MAY HAVE SUFFERED ARISING IN CONNECTION WITH YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE THE SITE, SERVICES, CONTENT OR A LINKED SITE, THEN TONIT’S LIABILITY TO YOU SHALL BE NO MORE THAN CANADIAN FIFTY DOLLARS (CAD$50.00). THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

27. Limitation of Liability for Third Party Goods, Services and Activities Arranged Through the Site

YOU AGREE THAT TONIT IS A MERE CONDUIT FOR THE SERVICE PROVIDERS, SUPPLIERS AND ADVERTISERS OF THIRD PARTY GOODS AND SERVICES ADVERTISED ON OR AVAILABLE THROUGH THE SITE, A LINKED SITE AND/OR THE SERVICES, INCLUDING THIRD PARTY ACTIVITIES, AND TONIT DOES NOT ENDORSE OR CONTROL ANY SUCH SERVICE PROVIDERS, THIRD PARTY SUPPLIERS, ADVERTISERS, THIRD PARTY ACTIVITIES OR THIRD PARTY GOODS OR SERVICES. ANY AND ALL CLAIMS REGARDING THE FAILURE, BREACH, LOSS OR BODILY INJURY ARISING FROM OR IN CONNECTION WITH THIRD PARTY ACTIVITIES OR THIRD PARTY GOODS AND SERVICES OFFERED THROUGH THE SITE ARE LIMITED TO CLAIMS AGAINST ANY AND ALL SUCH SERVICE PROVIDERS, THIRD PARTY SUPPLIERS, ADVERTISERS AND THIRD PARTY ACTIVITY ORGANIZERS OR PARTICIPANTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS, TONIT HEREBY DISCLAIMS ANY LIABILITY, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, EQUITY OR ANY OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY DIRECT, INDIRECT, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, IN CONNECTION WITH THE THIRD PARTY ACTIVITIES AND GOODS OR SERVICES PROVIDED BY YOU OR ANY OTHER SERVICE PROVIDER, SUPPLIER, ADVERTISER OR THIRD PARTY ACTIVITY ORGANIZER THROUGH THE SITE, A LINKED SITE AND/OR THE SERVICES, INCLUDING WITHOUT LIMITATION LIABILITY FOR ANY ACT, ERROR, OMISSION, BODILY INJURY, LOSS, ACCIDENT, DELAY OR IRREGULARITY WHICH MAY BE INCURRED THROUGH THE FAULT, NEGLIGENT OR OTHERWISE, OF SUCH SERVICE PROVIDER, SUPPLIER OR ORGANIZING ADVERTISER OR PARTICIPANT, AND YOU HEREBY IRREVOCABLY WAIVE, RELEASE, AGREE NOT TO SUE, AND FOREVER DISCHARGE TONIT FROM ANY LIABILITY WITH RESPECT TO THE SAME. IF HOWEVER TONIT IS FOUND LEGALLY RESPONSIBLE TO YOU FOR ANY DAMAGES YOU MAY HAVE SUFFERED ARISING IN CONNECTION WITH THE GOODS OR SERVICES PROVIDED BY YOU OR ANY OTHER SERVICE PROVIDER, SUPPLIER, ADVERTISER OR THIRD PARTY ACTIVITY ORGANIZER OR PARTICIPANT THROUGH THE SITE, A LINKED SITE AND/OR THE SERVICES, THEN TONIT’S LIABILITY TO YOU SHALL BE NO MORE THAN CANADIAN FIFTY DOLLARS (CAD$50.00). THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

INDEMNITY

28.

YOU HEREBY AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS TONIT AND ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (THE “INDEMNIFIED PARTIES”) FROM AND AGAINST ALL CLAIMS, LIABILITIES, ACTIONS AND CAUSES OF ACTION BROUGHT AGAINST AND ALL COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES ON A FULL INDEMNITY BASIS AND ANY OTHER FEES AND EXPENSES INCURRED FOR INVESTIGATING OR DEFENDING ANY ACTION OR THREATENED ACTION, AS WELL AS SETTLEMENT COSTS) WHICH ANY OF THE INDEMNIFIED PARTIES MAY SUFFER OR INCUR ARISING FROM OR IN CONNECTION WITH: (I) YOUR USE OF THE SITE, SERVICES, CONTENT, ANY LINKED SITES OR THIRD PARTY ACTIVITIES; (II) YOUR BREACH OR ALLEGED BREACH OF ANY OF THESE TERMS; (III) YOUR VIOLATION OR ALLEGED VIOLATION OF ANY FEDERAL, PROVINCIAL, STATE, MUNICIPAL OR LOCAL LAW OR ANY REGULATIONS, RULES, ORDINANCES OR BYLAWS; (IV) YOUR NEGLIGENCE OR WILFUL MISCONDUCT; (V) YOUR INFRINGEMENT OR VIOLATION OF ANY INTELLECTUAL PROPERTY, RIGHT OF PRIVACY, PUBLICITY OR ANY OTHER LEGAL RIGHT OF ANY PERSON OR ENTITY; (VI) YOUR ADVERTISING, MARKETING, PROMOTION, SALE OR DISTRIBUTION OF ANY GOODS OR SERVICES; AND (VII) YOUR ATTENDANCE OR PARTICIPATION IN ANY THIRD PARTY ACTIVITIES. WITHOUT DEROGATING FROM OR EXCUSING YOUR OBLIGATIONS UNDER THIS SECTION WE RESERVE THE RIGHT (AT YOUR EXPENSE), BUT ARE NOT UNDER ANY OBLIGATION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER WHICH IS SUBJECT TO AN INDEMNIFICATION BY YOU EVEN IF YOU CHOOSE TO DEFEND OR SETTLE IT. YOU AGREE NOT TO SETTLE ANY MATTER THAT IS SUBJECT TO AN INDEMNIFICATION BY YOU WITHOUT FIRST OBTAINING OUR EXPRESS APPROVAL.

DISPUTE RESOLUTION

29.

You and Tonit agree that any dispute, claim or controversy arising out of or relating to these Terms, any policy or guarantee referred to herein, or the breach, termination, enforcement, interpretation or the validity thereof, or the use of the Site, Services or Content (collectively, the “Disputes”) will be settled by final and binding arbitration, except that each party retains the right to (i) bring an individual action in the British Columbia Provincial Court (Small Claims Division) if the action is within the jurisdiction of that court and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, confidential information or other intellectual property, proprietary, publicity or privacy rights. You acknowledge and agree that you and Tonit are each irrevocably waiving the right to participate as a plaintiff or a class member in any purported class action or similar representative proceeding. Further, unless you and Tonit expressly agree in writing, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of class or representative proceeding. Except where otherwise expressly provided in these Terms, all remedies of Tonit hereunder shall be cumulative. This “Dispute Resolution” section shall survive any termination of these Terms of Use. Any arbitration to be conducted pursuant to this “Dispute Resolution” section shall be conducted before a single arbitrator in accordance with the rules of the British Columbia International Commercial Arbitration Centre for Domestic Disputes. The seat of the arbitration shall be in Vancouver, British Columbia. You and Tonit hereby irrevocably submit to the jurisdiction of the arbitrator in Vancouver, British Columbia and waive any defense in an arbitration based upon any claim that such party is not subject personally to the jurisdiction of such arbitrator, that such arbitration is brought in an inconvenient forum or that such venue is improper. The arbitral award shall be in writing and shall be final and binding on each of you and Tonit. The award may include an award of costs, including reasonable attorneys’ fees and disbursements. Judgment upon the award may be entered by any court having jurisdiction thereof or having jurisdiction over the parties or their assets. You acknowledge and agree that by agreeing to these Terms you are waiving any right that you may have to a jury trial with respect to the resolution of any dispute under these Terms.

VIOLATIONS OF THESE TERMS AND TERMINATION

30.

Tonit may monitor, terminate or suspend your Account or our Services at any time. You acknowledge and agree that Tonit may, acting in its sole and absolute discretion and without prior notice to you, terminate or suspend your ability to access each or all of the Site or Services or any portions thereof, and cancel your Account for any reason including, without limitation: (i) if you violate or otherwise fail to strictly comply with any term or provision of these Terms or Community Guidelines if posted elsewhere; (ii) if we have determined that your use has created or potentially created risk or legal exposure for Tonit; or (iii) in response to requests by law enforcement or any other government agencies. In addition to the foregoing, Tonit reserves the right to pursue all remedies available at law and in equity for violations of these Terms or Community Guidelines if posted elsewhere, including but not limited to the right to block access from a particular Internet address to the Site. You acknowledge and agree that monetary damages may not be an adequate remedy for any violation of these Terms by you and, without limiting any of Tonit’s other remedies, you hereby consent to, and authorize Tonit to obtain, an injunction or other equitable relief from any court of competent jurisdiction without the necessity of having to post any bond or other form of security. You further authorize Tonit to disclose your personally identifiable information where reasonably necessary in connection with the foregoing. These Terms, as amended from time to time by Tonit, shall remain effective until terminated by you or Tonit. Upon termination of these Terms for any reason, you must cease use of your Account(s), cease accessing the Site, Services and Content, delete the Tonit mobile application and promptly delete, purge and destroy all electronic and other copies of any Content.

GENERAL

31. International Use

This Site is operated from and Tonit is located in the Province of British Columbia, Canada. By electing to access the Site or Services from any jurisdiction outside of Canada, you accept full responsibility for ensuring that your use of the Site or Services is in compliance with all laws applicable within that other jurisdiction. Tonit makes no representation that materials, products and services available on or through the Site or Services are appropriate or available for use in jurisdictions outside of Canada. You are not permitted to access the Site or Services from any jurisdiction in which the Content is illegal or accessing the Site or Services is illegal. You may not use, export or re-export any materials, including any Content, from the Site or Services in violation of any applicable laws or regulations.

32. Waiver and Severability

In the event that any provision of the Terms shall, in whole or in part, be determined to be invalid, unenforceable or void by a court of competent jurisdiction, such determination shall affect only the portion of such provision determined to be invalid, unenforceable or void, and shall not affect in anyway the remainder of such provision or any other provision of the Terms.

33. Notices

Any notices or other communications permitted or required hereunder, including but not limited to modifications to these Terms or any policy or guarantee referred to herein, will be in writing and given by Tonit (i) via email (in each case to the email address provided by you for your Account(s)) or (ii) by posting to the Site. Notice delivered by email will be deemed to have been received on the date on which such notice is transmitted.

34. Governing Law

These Terms of Use and your legal relationship with Tonit shall be governed by and construed in accordance with the laws of the Province of British Columbia, together with the federal laws of Canada applicable therein, without regard to its conflicts of laws principles. These Terms of Use shall not be governed by the United Nations Convention on Contracts for the Sale of Goods. The controlling language of these Terms of Use is English.

35. Assignment

You may not assign any of your rights or obligations hereunder, whether voluntarily or by operation of law except with the prior express written consent of Tonit, which consent may be withheld in Tonit’s sole discretion, and any attempted assignment in violation of the foregoing is void. Tonit may assign any or all of its rights and obligations hereunder to an affiliate, subsidiary or a successor in title to the Site or the business and undertaking of Tonit.

36. Enurement

These Terms shall enure to the benefit of and be binding upon the parties and their respective heirs, executors, administrators, successors and permitted assigns.

37. Force Majeure

Tonit will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of events beyond the reasonable control of Tonit, including without limiting the foregoing where the delay or failure is due to fires or fire related hazards, explosions, power outages or interruptions, brownouts, internet service provider failure or delay, cyberattacks, earthquakes, floods, spills, epidemics, acts of God, war or acts of war, acts of terrorism, riots, strikes, lockouts or other labour or contractor actions, acts of public authorities, or delays or defaults caused by common carriers, or other similar events which cannot reasonably be foreseen or provided against.

38. Entire Agreement

These Terms, together with the Privacy Policy, constitute the entire agreement between the parties concerning the subject-matter hereof and supersede and replace any and all prior oral or written understandings or agreements between you and Tonit regarding the Site and Services.

39. Survival

The provisions of these Terms which require or contemplate performance after the expiration or termination of these Terms shall remain enforceable notwithstanding such expiration or termination.

40. Relationship

The relationship between the parties is that of independent contractors and neither party shall have the authority to bind the other in any way.

41. Support

Support is available by contacting Tonit’s dedicated support team at support@tonit.com, to receive feedback and to support you with any issues with the Terms, Privacy Policy, Site or Services. Tonit generally responds to inquiries within 7 – 10 business days after the inquiry has been delivered.