Last Revised: May 8th, 2019
SITE AND/OR SERVICE IN ANY MANNER. By logging-in, connecting to
or using the Site or Service, you acknowledge that the Terms constitute a binding and enforceable legal contract between Toonimo and you and that you possess the legal authority to enter into these Terms and to use the Site and Service in accordance with these Terms, and to fully perform your obligations hereunder. 2. The Site and the Service The Site: The Site offers information about us, our products and services, and allows you to register to our Service. The general use of our Site is currently free of charge. If you wish to subscribe to our Service, you will be required to pay the fees specified in our Service order, proposal or
statement of work (collectively, the "Order Form"). The Service: Toonimo's Service is a user experience platform that assists our Customers to intelligently guide their users while using the Customer's online services or any other third party online service. The Service works in the following manner:
Customers register to our Service.
Customers install our code-line in order to enable the Service or install a plugin locally.
Customers (or Toonimo, upon request), add to the Customer's online services certain scripts, graphics, texts and audio tracks that may simplify the Customer's end-users' experience.
Once an end-user of the Customer presses the "WalkThrough" button or initiates any other trigger which activates the Toonimo Service ("WT Trigger"), such he/she will be provided with a personalized step-by-step guidance, which will assist him/her with using the Customer's or third party's online services.
The Customer's manage this guide and receive analytics and statistics related to end-user's interaction with it.
Additional paid services which are specified in the Order Form may apply.
Please note: (i) The Site and/or Service are provided on an "AS-IS" basis. Although the Service is intended to increase engagement in Customer's online services, reduce service costs and increase conversion rates, we cannot guarantee that these goals will be achieved on your online services.
(ii) These Terms and the applicable Order Form govern your use of the Service, unless you have executed a separate agreement with us which expressly supersedes these Terms. (iii) Toonimo makes its best efforts not
to collect personally identifiable information of the end-users of its Customers. As Customers are in direct contact with their end-users, Customers are solely responsible for obtaining end-user's consent for the collection and use of their personally identifiable information, and to comply with the requirements of applicable privacy laws. We will not be responsible in any way for infringing end-user's privacy as a result of Toonimo Customer's failure to comply with these Terms.
Consideration Customers shall pay Toonimo certain consideration from
time to time as set forth in the Order Form, which will constitute an integral part hereof. All amounts payable under these Terms are exclusive of sales, use, value-added, withholding, and other taxes and duties. Customer will pay all taxes, VAT and duties assessed in connection with these Terms by any authority, except for taxes payable on Toonimo's net income.
Toonimo's consideration will be based on Toonimo's records. CUSTOMER DISCLAIMS AND FORFEITS ANY CLAIMS REGARDING THE ACCURACY OF
TOONIMO'S COUNT, AND AGREES TO ACCEPT TOONIMO'S COUNT AS
all matters which are confidential in nature including know-how, trade secrets, experimentation, research and developments relating to existing and future products and services marketed or used or manufactured in whole or in part by either Party (whether or not such products or services are actually realized or pursued by that Party), and also any information which gives either Party competitive advantages including, without limitation, know-how, trade secrets and data relating to the general business operations of that Party ("Confidential Information").
Both Parties agree to hold such Confidential Information as strictly confidential and not to disclose any such Confidential Information to any third party whatsoever. If either Party is required to disclose any Confidential Information pursuant to the provisions of any relevant law then that Party shall not disclose such information without first notifying the other Party of such requirement and cooperating with the other Party regarding such disclosure.
Neither Party shall use, directly or indirectly, the Confidential Information, except to the extent required for the performance of the Service.
Confidentiality obligations shall remain in effect upon the termination of these Terms for any reason, until such Confidential Information becomes generally available to the public through legitimate means.
Upon termination of these Terms, both Parties shall return all data in any and all forms (without retaining copies) which pertain to Confidential Information. In case that any copies of such Confidential Information cannot be physically returned, these copies must be promptly destroyed.
User Representations and Undertakings As a condition for your use of the Site and/or Service, you hereby represent and warrant that:
You will not infringe or violate any of the terms and conditions of the Terms;
You possess the legal authority to enter into these Terms, either as an individual or as representative of the organization or business you work for, and to form a binding agreement under any applicable law, to use the Service in accordance with these Terms and to fully perform your obligations hereunder;
The execution of these Terms does not and will not violate any other agreement to which you are bound or any law, rule, regulation, order or judgment to which you are subject.
You, not us, are solely responsible to respond to any questions or requests of your end-users.
Use Restrictions There are certain conducts which are strictly prohibited on the Site. Please read the following restrictions carefully. Your failure to comply with the provisions set forth herein (as judged by us in our sole discretion), may result in the termination of your access to the Site and/or Service and may also expose you to civil and/or criminal liability. You may not, whether by yourself or anyone on your behalf:
Infringe or violate any of the Terms.
Use the Site and/or Service and/or any interactions therein for any illegal, unlawful or unauthorized purposes.
Use the Site and/or Service in any form of spam, unsolicited mail or similar conduct.
Use the Site and/or Service for non-personal or commercial purposes without Toonimo's express prior written consent. Interfere with or violate other Users' rights to privacy and other rights, or harvest or collect data and information about other Users without their express consent, whether manually or automatically with the use of any robot, spider, crawler, any
search or retrieval application, or use other automatic device, process or method to access the Site and retrieve, index and/or data-mine any information.
Interfere with or disrupt the operation of the Site and/or Service or the servers or networks that host them, or disobey any laws or regulations or requirements, procedures, policies, or regulations of such servers or networks.
Post, publish, or otherwise make available through the Site any content, text or information that is abusive, harassing, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable or offensive. Impersonate any person or entity or provide false information on the Site, whether directly or indirectly.
Falsely state or otherwise misrepresent your affiliation with any person or entity, or express or imply that Toonimo or any third party endorses you, your website, your business, or any statement you make, or present false or inaccurate information about the Site and/or Service.
Transmit, distribute, display or otherwise make available through or in connection with the Site any content, which may infringe third party rights, including Intellectual Property rights and privacy rights, or which may contain any unlawful content.
Bypass any measures we may use to prevent or restrict access to the Site and/or Service.
Copy, modify, alter, adapt, make available, translate, port, reverse engineer, decompile, or disassemble any portion of the Site and/or Service including the Characters in any way, unless permitted hereunder.
Create a browser, frame, border environment or GUI around
the Site and/or Service.
Link, including in-line linking, to elements on the Site, such as images, posters and videos, unless permitted hereunder.
for commercial use whatsoever. To the extent we receive from you or from your end-users any feedback, comments or suggestions (“Feedback”), we will have an exclusive, royalty-free, fully paid up, worldwide, perpetual and irrevocable license to incorporate the Feedback into any of our current or future products, technologies or services and use same for any purpose, without compensation or your approval. Such Feedback shall be deemed to be non-confidential. You are hereby prohibited from removing or deleting any and all copyright notices, restrictions and signs indicating proprietary rights of Toonimo, including copyright mark [©] or trademark [® or ™] contained in or accompanying the content included on the Site or Service, and you represent and warrant that you will abide by all applicable laws in this respect. You are further prohibited from using, diluting or staining any name, mark or logo that is identical, or confusingly similar to any of Toonimo's marks and logos, whether registered or not. By entering into this Agreement, you hereby grant Toonimo a world-wide, royalty free, license to use your logo and/or trademarks and/or application names on Toonimo's website and/or marketing material only for the purpose of promoting Toonimo's services. 12. Trademarks and Trade names "TOONIMO", and all logos and other proprietary identifiers used by Toonimo in connection with the Site ("Toonimo Trademarks") are all trademarks and/or trade names of Toonimo, whether or not registered. All other trademarks, service marks, trade names and logos which may appear on the Site belong to their respective owners ("Third Party Marks"). No right, license, or interest to Toonimo Trademarks and/or to the Third Party Marks is granted hereunder, and you agree that no such right, license, or interest shall be asserted by you with respect to Toonimo Trademarks or the Third Party Marks and therefore you will avoid using any of those marks, unless expressly permitted herein. 13. Links to Third Party Websites The Site may contain links to third party websites ("Third Party Sites"), whether such links have been suggested by Toonimo or shared by others. You hereby acknowledge
Components. Toonimo removes responsibility and liability of any kind, express or implied, for the quality, capacity, operation, performance or suitability of any Third Party Component. In no event will the Service (except Third Party Components contained therein) shall be deemed “open source” or ”publicly available”. 17. Disclaimer and Warranties TOONIMO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE, THE INABILITY TO USE OR OPERATE, OR THE RESULTS OF THE USE OR OPERATION OF THE SERVICE FEATURED ON THE SITE, INCLUDING IN CONNECTION WITH ANY TAX OR LAWS AND REGULATIONS IN YOUR STATE OF RESIDENCE, OR ANY OTHER APPLICABLE LAWS AND REGULATIONS. THE SITE AND/OR SERVICE, INCLUDING WITHOUT LIMITATION ANY CONTENT, DATA, PRODUCTS, MARKETING MATERIALS AND ANY INFORMATION RELATED THERETO, ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR NON-INFRINGEMENT OR IMPLIED WARRANTIES OF USE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE,. TOONIMO AND THE TOONIMO AFFILIATES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, QUALITY, AVAILABILITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF ANY CONTENT, REPORTS, DATA, RESULTS, OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SITE AND/OR SERVICE. TOONIMO DOES NOT ENDORSE ANY ENTITY, PRODUCT OR SERVICE MENTIONED ON THE SITE. THE USE OF THE SITE AND/OR SERVICE IS ENTIRELY AT YOUR OWN RISK AND NEITHER TOONIMO NOR THE TOONIMO AFFILIATES SHALL HAVE ANY LIABILITY RELATING TO SUCH USE. TOONIMO DOES NOT WARRANT THAT THE OPERATION OF THE SITE AND/OR SERVICE IS OR WILL BE SECURE, ACCURATE,
COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; TOONIMO MAY CORRECT, MODIFY, AMEND, ENHANCE, IMPROVE AND MAKE ANY OTHER CHANGES TO THE SITE AT ANY TIME OR TO DISCONTINUE DISPLAYING OR PROVIDING ANY CONTENT OR FEATURES WITHOUT ANY NOTICE TO YOU. YOU AGREE AND ACKNOWLEDGE THAT THE USE OF THE SITE AND/OR SERVICE IS ENTIRELY, OR TO THE MAXIMUM PERMITTED BY THE APPLICABLE
LAW, AT YOUR OWN RISK. 18. Limitation of Liability IN NO EVENT SHALL TOONIMO, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, SUB-CONTRACTORS, AGENTS, PARENT COMPANIES, SISTER COMPANIES, SUBSIDIARIES AND OTHER AFFILIATES (TOGETHER "TOONIMO' AFFILIATES") BE LIABLE FOR ANY DAMAGES WHATSOEVER INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTIONS RESULTING FROM OR ARISING OUT OF THE SITE, USE OR INABILITY TO USE THE SERVICE, FAILURE OF THE SERVICE TO PERFORM AS REPRESENTED OR EXPECTED, LOSS OF GOODWILL OR PROFITS, THE PERFORMANCE OR FAILURE OF TOONIMO TO PERFORM UNDER THESE TERMS, ANY OTHER ACT OR OMISSION OF TOONIMO BY ANY OTHER CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM THE COLLECTION AND USE OF PERSONALLY IDENTIFIABLE INFORMATION RELATED TO END USER WITHOUT END USER'S CONSENT; OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, REGARDLESS OF WHETHER ANY OF TOONIMO'S AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NO ACTION MAY BE BROUGHT BY USER FOR ANY BREACH OF THESE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH
CAUSE OF ACTION. THESE LIMITATIONS, EXCLUSIONS, AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND TO THE MAXIMUM EXTENT LEGALLY PERMISSIBLE, TOONIMO AND TOONIMO'S AFFILIATES TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES OR LOSSES WHATSOEVER ARISING HEREUNDER OR IN CONNECTION WITH YOUR USE OR INABILITY TO USE THE SITE AND/OR SERVICE SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU, IF ANY, TO US FOR THE USE OF THE SITE OR SERVICE OR
$US1.00, WHICHEVER IS GREATER. YOU HEREBY WAIVE ANY RIGHT TO
SEEK TO RECOVER ANY CONSEQUENTIAL DAMAGES, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES FROM US AND FROM
TOONIMO'S AFFILIATES. 19. Indemnification You agree to defend, indemnify and hold harmless Toonimo and Toonimo's Affiliates from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney's fees) arising from: (i) your use of the Site and/or Service; (ii) your violation of any term of these Terms; (iii) your violation of any third party rights, including without limitation any intellectual property rights or privacy rights in connection with your use of the Site and/or Service; and (iv) any damage of any sort, whether direct, indirect, special or consequential, you may cause to any third party with relation to the Site and/or Service. It is hereby clarified that this defense and indemnification obligation will survive these Terms.
Without derogating from the foregoing, we reserve the right to assume the
exclusive defense and control of any matter which is subject to indemnification by you, which will not excuse your indemnity obligations hereunder and in which event you will fully cooperate with us in asserting any available defense. You agree not to settle any matter subject to an indemnification by you without first obtaining our prior express written
(a) These Terms constitute the entire terms and conditions between you
and Toonimo relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements or understandings between you and Toonimo, (b) any claim relating to the Site and/or Service will be governed by and interpreted in accordance with the laws of the State of New York, U.S.A without reference to its conflict-of-laws principles and the United Nations Convention Relating to a Uniform Law on the International Sale of Goods may not be applied, (c) any dispute arising out of or related to the Site and/or Services will be brought in, and you hereby consent to exclusive jurisdiction and venue in, the competent courts of the State of New York. You agree to waive all defenses of lack of personal jurisdiction and forum non-convenience and agree that process may be served in a manner authorized by applicable law or court rule.
Notwithstanding the foregoing, Toonimo may seek injunctive relief in any
court of competent jurisdiction, (d) these Terms do not, and shall not be
construed to create any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship between the parties hereto, (e) no waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any heading, caption or section title contained herein is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof, (f) if any provision hereof is adjudged by any court of competent jurisdiction to be unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect while most nearly adhering to the intent expressed herein, (g) you may not assign or transfer these Terms (including all rights and obligations hereunder) without our prior written consent and any attempt to do so in violation of the foregoing shall be void. We may assign or transfer these Terms without restriction or notification, and (h) no amendment hereof will be binding unless in writing and signed by Toonimo. 22. For information, questions or notification of errors, please contact: If you have any questions (or comments) concerning the Terms, you are most welcomed to send us an email or otherwise contact us to the following address and we will make an effort to reply within a reasonable timeframe: E-Mail:email@example.com USA: +1-888-319-6572 Israel: +972-3-5595040