1. Background. The Site is intended to provide you with information about our services and/or products as well as provide your with access to our platform ("Platform").
2. Modification. We reserve the right, at our discretion, to change these Terms at any time. Such change will be effective ten (10) days following posting of the revised Terms on the Site, and your continued use of the Site thereafter means that you accept those changes.
3. Ability to Accept Terms. The Site is only intended for individuals over the age of eighteen (18) years. If you are under eighteen (18) years of age please do not visit or use the Site.
4. Subscription Fees. In consideration for the license granted hereunder, Customer shall pay Tolstoy the fees set forth in the applicable Order ("Fees"). "Order" means Tolstoy's online form completed by the Customer, which lists the services ordered, subscription plan, term and the associated fees. The Order will automatically renew for the same subscription period unless either Tolstoy or you terminate the subscription before the end of the current subscription period. Tolstoy reserves the right to change its fees at any time, and Customer shall be informed of such changes via email thirty (30) days prior to such changes (“Notification”). Should Customer not agree to the price changes, Customer's sole remedy is to terminate the applicable Order, which it may do within the Platform. In the event that Company increases the Fees and Customer terminates the applicable Order in accordance with the preceding sentence, Tolstoy will refund Customer the prorata portion of any unused Fees pre-paid by Customer for the remaining period of the subscription term. Customer agrees to provide Tolstoy with updated, accurate and complete billing information, and Customer authorizes Tolstoy (either directly or through our affiliates, subsidiaries or other third parties) to charge, request and collect payment (or otherwise charge, refund or take any other billing actions) from Customer’s payment method, and to make any inquiries that we may consider necessary to validate Customer’s designated payment account or financial information, in order to ensure prompt payment, including for the purpose of receiving updated payment details from Customer’s credit card company or banking account (e.g., updated expiry date or card number as may be provided to us by Customer’s credit card company). Unless otherwise specified herein or in the Order: (i) the Fees are stated in U.S. Dollars, and (ii) all fees and other amounts paid hereunder are non-refundable. All amounts payable under these Terms are exclusive of all sales, use, value-added, withholding, and other direct or indirect taxes, charges, levies and duties.
5. Account. In order to use the Platform, Customer may have to create or use an account (an "Account"). Customer shall provide accurate and complete Account information and shall be solely responsible for the activity that occurs in its Account. Customer hereby agrees to keep its Account password secure and to notify Tolstoy immediately of any unauthorized use its Account.
6. Permitted Users. The Platform may be accessed solely by Customer's employees or service providers who are explicitly authorized by Customer to use the Platform (each, a “Permitted User”). Customer will ensure that the Permitted Users comply with the terms of this Agreement at all times; and shall be fully responsible for any breach of this Agreement by a Permitted User. Unauthorized access or use of the Platform must be immediately reported to the Tolstoy.
7. Restrictions. Except as specifically permitted herein, without the prior written consent of Tolstoy, Customer must not, and shall not allow any Permitted User or any third party to, directly or indirectly: (i) copy, modify, create derivative works of or distribute any part of the Site (including by incorporation into its products); (ii) sell, license (or sub-license), lease, assign, transfer, pledge, or share Customer's rights under these Terms with any third party; (iii) use any “open source” or “copyleft software” in a manner that would require Tolstoy to disclose the source code of the Site to any third party; (iv) disclose the results of any testing or benchmarking of the Site to any third party; (v) disassemble, decompile, reverse engineer or attempt to discover the Site’s source code or underlying algorithms; (vi) use the Site in a manner that violates or infringes any rights of any third party, including but not limited to, privacy rights, publicity rights or intellectual property rights; (vii) remove or alter any trademarks or other proprietary notices related to the Site; (viii) circumvent, disable or otherwise interfere with security-related features of the Site or features that enforce use limitations; (ix) export, make available or use the Site in any manner prohibited by applicable laws (including without limitation export control laws); and/or (x) transmit any malicious code (i.e., software viruses, Trojan horses, worms, malware or other computer instructions, devices, or techniques that erase data or programming, infect, disrupt, damage, disable, or shut down a computer system or any component of such computer system) or other unlawful material in connection with the Site; You shall not: (i) copy, distribute or modify any part of the Site without our prior written authorization; (ii) use, modify, create derivative works of, transfer (by sale, resale, license, sublicense, download or otherwise), reproduce, distribute, display or disclose Content (defined below), except as expressly authorized herein; (iii) disrupt servers or networks connected to the Site; (xiiv) use or launch any automated system (including without limitation, "robots" and "spiders") to access the Site; and/or (xiiv) circumvent, disable or otherwise interfere with security-related features of the Site or features that prevent or restrict use or copying of any Content (defined below) or that enforce limitations on use of the Site.
8. Intellectual Property Rights.
8.1. Content and Marks. The (i) content on the Site, including without limitation, the text, documents, articles, brochures, descriptions, products, software, graphics, photos, sounds, videos, interactive features, and services (collectively, the "Materials"), and (ii) the trademarks, service marks and logos contained therein ("Marks" and together with the "Materials" , the "Content"), are the property of Tolstoy and/or its licensors and may be protected by applicable copyright or other intellectual property laws and treaties. "Tolstoy", the "Tolstoy" logo, and other marks are Marks of Tolstoy or its affiliates. All other trademarks, service marks, and logos used on the Site are the trademarks, service marks, or logos of their respective owners. We reserve all rights not expressly granted in and to the Site and the Content.
8.2. Use of Content. Content on the Site is provided to you for your information and personal use only and may not be used, modified, copied, distributed, transmitted, broadcast, displayed, sold, licensed, de-compiled, or otherwise exploited for any other purposes whatsoever without our prior written consent. If you download or print a copy of the Content you must retain all copyright and other proprietary notices contained therein.
8.3. Platform. All right, title, and interest, including any intellectual property rights evidenced by or embodied in and/or related to the Platform (and any and all improvements and derivative works thereof) and any other products, deliverables or services provided by Tolstoy are and shall remain owned solely by Tolstoy or its licensors. These Terms do not convey to Customer any interest in or to the Platform other than a limited right to use the Platform in accordance with the applicable Order. Nothing herein constitutes a waiver of Tolstoy's intellectual property rights under any law.
8.4. Feedback. If Tolstoy receives any feedback, questions, comments and/or suggestions regarding any of its services or products (collectively, “Feedback”), all rights, including intellectual property rights in such Feedback shall belong exclusively to Tolstoy and that such shall be considered Tolstoy's Confidential Information and Customer hereby irrevocably and unconditionally transfers and assigns to Tolstoy all intellectual property rights it has in such Feedback and waives any and all moral rights that Customer may have in respect thereto. It is further understood that use of Feedback, if any, may be made by Tolstoy at its sole discretion, and that Tolstoy in no way shall be obliged to make use of any kind of the Feedback or part thereof.
8.5. Analytics. Any anonymous information which is derived from the use of the Site (i.e., metadata, aggregated and/or analytics information) which is not personally identifiable information (“Analytics Information”) may be used by Tolstoy in connection with providing services under these Terms, and for development and/or for statistical purposes. Such Analytics Information is Tolstoy's exclusive property.
9. Third Party Sources and Content.
9.1. The Site enables you to view, access, link to, and use content from Third Party Sources (defined below) that are not owned or controlled by us ("Third Party Content"). The Site may also enable you to communicate and interact with Third Party Sources. "Third Party Source(s)" means: (i) third party websites and services; and (ii) our partners and customers.
9.3. We are not responsible for, and we expressly disclaim all warranties regarding, the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights (defined below) of, or relating to, any Third Party Content.
9.4. We do not endorse any advertising, promotions, campaigns, products, services or other materials that is included in any Third Party Content or that is communicated to you from a Third Party Source.
9.5. By using the Site you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. You always have the choice of deciding whether or not to interact with a Third Party Source or to view and use Third Party Content. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk.
9.6. You are solely responsible and liable for your interaction with a Third Party Source. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against Tolstoy and release Tolstoy from any and all liability, arising from your use of and interaction on any Third Party Content and from your interaction with any Third Party Source. If you have any query or complaint regarding a Third Party Source or any Third Party Content, you agree to contact the Third Party Source directly.
10. User Submissions.
10.1. Responsibility. The Site may permit the submission, hosting, sharing and publishing of Content by you and other users ("User Submissions"). You understand that whether or not such User Submissions are published, we do not guarantee any confidentiality with respect to any User Submissions. You shall be solely responsible for your User Submissions and the consequences of posting, publishing or uploading them. We have complete discretion whether to publish your User Submissions and we reserve the right in our sole discretion and without further notice to you, to monitor, censor, edit, remove, delete, and/or remove any and all Content posted on the Site (including User Submissions) at any time and for any reason.
10.2. Ownership. You represent and warrant that you own or have the necessary rights and permissions to use and authorize Tolstoy to use all Intellectual Property Rights (defined below) in and to your User Submissions, and to enable inclusion and use thereof as contemplated by the Site and these Terms. Unless the User Submissions are separately referred to, all references herein to Content shall include references to User Submissions. "Intellectual Property Rights" means any and all rights, titles and interests, whether foreign or domestic, in and to any and all trade secrets, patents, copyrights, service marks, trademarks, know-how, or similar intellectual property rights, as well as any and all moral rights, rights of privacy, publicity and similar rights of any type under the laws or regulations of any governmental, regulatory, or judicial authority, foreign or domestic. You retain all of your ownership rights in and to your User Submissions.
10.3. License to User Submissions. By submitting the User Submissions to Tolstoy, you hereby grant Tolstoy a worldwide, irrevocable, non-exclusive, royalty-free, perpetual, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the User Submissions in connection with the Site and Tolstoy's business, including without limitation to share you User Submissions with third parties and/or for redistributing part or all of your User Submissions (and derivative works thereof) in any media formats and through any media channels and, and you hereby waive any moral rights in your User Submissions, to the extent permitted by law. You also hereby grant each user of the Site or other viewer or user of the User Submission a non-exclusive right to use, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, all in accordance with these Terms.
10.4. Prohibited Content. You agree that you will not display, post, submit, publish, upload or transmit a User Submission that: (i) is unfair or deceptive under the consumer protection laws of any jurisdiction; (ii) is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights; (iii) creates a risk to a person’s safety or health, creates a risk to public safety or health, compromises national security, or interferes with an investigation by law enforcement; (iv) impersonates another person; (v) promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; (vi) is unlawful, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is inappropriate; (vii) involves theft or terrorism; or (viii) is otherwise malicious or fraudulent.
10.5. Exposure. You understand and acknowledge that when accessing and using the Site: (i) you will be exposed to User Submissions from a variety of sources, and that Tolstoy is not responsible for the accuracy, usefulness, safety, or Intellectual Property Rights of, or relating to, such User Submissions; and (ii) you may be exposed to User Submissions that are inaccurate, offensive, indecent, or objectionable. You hereby agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against Tolstoy with respect to (i) and (ii) herein.
10.6. Spam. You agree not to, and will not, use the communications systems provided by the Site to send unauthorized commercial communications and you shall be solely responsible and liable for any such unauthorized communications.
11. Information Description. We attempt to be as accurate as possible. However, we cannot and do not warrant that the Content available on the Site is accurate, complete, reliable, current, or error-free. We reserve the right to make changes in or to the Content, or any part thereof, in our sole judgment, without the requirement of giving any notice prior to or after making such changes to the Content. Your use of the Content, or any part thereof, is made solely at your own risk and responsibility.
12. Disclosure. We reserve the right to access, read, preserve, and disclose any information that we obtain in connection with the Site, and your use thereof, as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process, subpoena or governmental request, (ii) enforce the Site Terms, including to investigate potential violations of them, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Tolstoy, its users or the public.
14. Copyright and Content Policy. It is Tolstoy's policy to respect the legitimate rights of copyright and other intellectual property owners, and we will respond to clear notices of alleged copyright infringement in accordance with our Copyright and Content Policy which may be viewed at: https://www.gotolstoy.com/copyright.
15. Warranty Disclaimers.
15.1. This section applies whether or not the services provided under the Site are for payment. Applicable law may not allow the exclusion of certain warranties, so to that extent certain exclusions set forth herein may not apply.
15.2. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TOLSTOY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING BY STATUTE OR FROM A COURSE OF DEALING OR USAGE OF TRADE. TOLSTOY DOES NOT GUARANTEE THAT THE SITE WILL BE FREE OF BUGS, SECURITY BREACHES, OR VIRUS ATTACKS. THE SITE MAY OCCASIONALLY BE UNAVAILABLE FOR ROUTINE MAINTENANCE, UPGRADING, OR OTHER REASONS. YOU AGREE THAT TOLSTOY WILL NOT BE HELD RESPONSIBLE FOR ANY CONSEQUENCES TO YOU OR ANY THIRD PARTY THAT MAY RESULT FROM TECHNICAL PROBLEMS OF THE INTERNET, SLOW CONNECTIONS, TRAFFIC CONGESTION OR OVERLOAD OF OUR OR OTHER SERVERS.
16. Limitation of Liability.
16.1. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, TOLSTOY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, OR FOR ANY LOSS OF DATA, REVENUE, PROFITS OR REPUTATION, ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF TOLSTOY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitations may not apply to you.
16.2. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF TOLSTOY FOR ANY DAMAGES ARISING UNDER THESE TERMS OR OUT OF YOUR USE OF, OR INABILITY TO USE, THE SITE EXCEED THE TOTAL AMOUNT OF FEES, IF ANY, PAID BY YOU TO TOLSTOY FOR USING THE SITE DURING THE THREE (3) MONTHS PRIOR TO BRINGING THE CLAIM.
17. Indemnity. You agree to defend, indemnify and hold harmless Tolstoy and our affiliates, and our respective officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including but not limited to attorney's fees) arising from: (i) your use of, or inability to use, the Site; (ii) your User Submissions; or (iii) your violation of these Terms.
18. Confidentiality. In connection with these Terms, each party may have access to certain non-public and/or proprietary information of the other party, in any form or media, including without limitation trade secrets and other information related to the products, software, technology, know-how, or business of the other Party, and any other information that a reasonable person should have reason to believe is proprietary, confidential, or competitively sensitive (the “Confidential Information”). For the avoidance of doubt, the Site and its underlying technology is regarded as our Confidential Information Each Party shall take reasonable measures, at least as protective as those taken to protect its own confidential information, but in no event less than reasonable care, to protect the other party's Confidential Information from disclosure to a third party. The receiving party’s obligations under this Section with respect to any Confidential Information of the disclosing party, shall not apply to and/or shall terminate if such information: (a) was already lawfully known to the receiving party at the time of disclosure by the disclosing party; (b) was disclosed to the receiving party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the receiving party has become, generally available to the public; or (d) was independently developed by the receiving party without access to, or use of, the disclosing party’s Confidential Information. Neither Party shall use or disclose the Confidential Information of the other Party except for performance of its obligations under this Agreement (“Permitted Use”). The receiving party shall only permit access to the disclosing party's Confidential Information to its respective employees, consultants, affiliates, agents and subcontractors having a need to know such information in connection with the Permitted Use, who either bound by a duty of confidentiality to the receiving party at least as restrictive as the terms set forth herein. The receiving party will be allowed to disclose Confidential Information to the extent that such disclosure is required by law or by the order or a court of similar judicial or administrative body, provided that it notifies the disclosing Party of such required disclosure to enable disclosing party to seek a protective order or otherwise prevent or restrict such disclosure. All right, title and interest in and to Confidential Information are and shall remain the sole and exclusive property of the disclosing Party.
19. Term and Termination. These Terms are effective until terminated by Tolstoy or you in accordance with this Section 20. Tolstoy, in its sole discretion, has the right to terminate these Terms and/or your access to the Site, or any part thereof, immediately at any time and with or without cause (including, without any limitation, for a breach of these Terms). Either you or Tolstoy may terminate this Agreement with immediate effect if the other party materially breaches this Agreement and such breach remains uncured fifteen (15) days after having received written notice thereof. Tolstoy shall not be liable to you or any third party for termination of the Site, or any part thereof. If you object to any term or condition of these Terms, or any subsequent modifications thereto, or become dissatisfied with the Site in any way, your only recourse is to immediately discontinue use of the Site. Upon termination of these Terms, you shall cease all use of the Site. This Section 2015 and Sections 7 (Restrictions), 58 (Intellectual Property Rights), 1013 (Privacy), 1215 (Warranty Disclaimers), 1316 (Limitation of Liability), 1417 (Indemnity), and 1620 (Independent Contractors) through to 1923 (General) shall survive termination of these Terms as shall any provision which ought by its nature to survive.
20. Independent Contractors. You and Tolstoy are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, or employment relationship between you and Tolstoy. You must not under any circumstances make, or undertake, any warranties, representations, commitments or obligations on behalf of Tolstoy.
21. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you but may be assigned by Tolstoy without restriction or notification to you. Any prohibited assignment shall be null and void.
22. Governing Law. Tolstoy reserves the right to discontinue or modify any aspect of the Site at any time. These Terms and the relationship between you and Tolstoy shall be governed by and construed in accordance with the laws of the State of Israel, without regard to its principles of conflict of laws. You agree to submit to the personal and exclusive jurisdiction of the courts located in Tel Aviv, Israel, and waive any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, Tolstoy may seek injunctive relief in any court of competent jurisdiction.
23. General. These Terms shall constitute the entire agreement between you and Tolstoy concerning the Site. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and a party's failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. YOU AGREE THAT ANY CAUSE OF ACTION THAT YOU MAY HAVE ARISING OUT OF OR RELATED TO THE SITE MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.