Last Modified: 27 August 2021
Please Read Carefully
MANDATORY ARBITRATION: IF YOU ACCESS tomtA SERVICES FROM THE UNITED STATES, PLEASE REVIEW THE ARBITRATION SECTION BELOW CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH tomtA ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.
Accessing the tomtA Services and Account Security
You are responsible for making all arrangements necessary for you to have access to the tomtA Services and maintaining the accuracy of any information you submit to tomtA in relation to your access and use of the tomtA Services.
Intellectual and other Property Rights
The tomtA Services and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) are owned by tomtA, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
The tomtA name and all related names, logos, product and service names, designs, and slogans are trademarks of tomtA or its affiliates or licensors. You must not use such marks without the prior written permission of tomtA. All other names, logos, product and service names, designs, and slogans on the tomtA Services are the trademarks of their respective owners.
Use of Our Products.
Prohibited Use of Our Products
You will not: (a) modify copies of any materials from the tomtA Services; (b) use any illustrations, photographs, video or audio sequences, or any graphics separately from the accompanying text; or (c) delete or alter any copyright, trademark, or other proprietary rights notices from copies of materials from this site.
You will not: (a) monitor, copy, reproduce, modify, adapt or create derivative works of the tomtA Services; (b) conduct any systematic retrieval of data or other content from the tomtA Services, like creating a deep-link to the tomtA Services or accessing the tomtA Services with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of the tomtA Services or any content on the tomtA Services; (c) share, transfer, distribute, sell, or sublicense the tomtA Services to a third party; (d) incorporate or use the tomtA Services into a product or service that you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the tomtA Services intended to limit use or attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the tomtA Services, the server on which the tomtA Services are stored, or any server, computer, or database connected to the tomtA Services; (f) attack the tomtA Services via a denial-of-service attack or a distributed denial-of-service attack; (g) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to the tomtA Services; (h) remove or alter any proprietary or other notices contained in the tomtA Services; (i) use the tomtA Services for competitive analysis or to build competitive products; (j) use the tomtA Services in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the tomtA Services, including their ability to engage in real time activities through the tomtA Services; (k) use the tomtA Services in any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries), or (l) encourage or assist any third party to do any of the foregoing.
You will not: (a) use the tomtA Services for unlawful, obscene, immoral, unethical, offensive or fraudulent purposes, (b) input in the tomtA Services any information that contains any personal information of minors or that is unlawful, obscene, offensive or violates third party rights; (c) use the tomtA Services to exploit or harm individuals; or (d) use the tomtA Services to interfere with or violate the integrity or security of a network or system, evading filters, sending unsolicited, abusive or deceptive messages, or viruses or harmful code.
tomtA Websites and Social Media Features
You may link to our Website homepages, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval, or endorsement on our part.
The tomtA Services may provide certain social media features that enable you to: (a) link from your own or certain third-party websites to certain content on the tomtA Services; (b) send emails or other communications with certain content, or links to certain content, on the tomtA Services; or (c) cause limited portions of content on the tomtA Services to be displayed or appear to be displayed on your own or certain third-party websites.
You may use these features solely as they are provided by us. You will not: (a) establish a link from any website that is not owned by you; (b) cause the tomtA Services or portions of it to be displayed on, or appear to be displayed by, any other site, for example, framing, deep linking, or in-line linking; or (c) link to any part of the Websites other than the homepages.
You agree to cooperate with us in causing any unauthorized framing or linking immediately to stop. We reserve the right to withdraw linking permission without notice.
We may disable all or any social media features and any links at any time without notice in our discretion.
The owner of the tomtA Services is based in the United States. We provide the tomtA Services for use only by persons located in the United States and Canada. We make no claims that the tomtA Services or any of their conteThe owner of the tomtA Services is based in the United States. We provide the tomtA Services for use only by persons located in the United States and Canada. We make no claims that the tomtA Services or any of their content is accessible or appropriate outside of the United States or Canada. Access to the tomtA Services may not be legal by certain persons or in certain countries. If you access the tomtA Services from outside the United States or Canada, you do so on your own initiative and are responsible for compliance with local laws.
Disclaimer of Warranties
YOUR USE OF THE tomtA SERVICES AND THEIR CONTENT IS AT YOUR OWN RISK. THE tomtA SERVICES AND THEIR CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. tomtA DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
NEITHER tomtA NOR ANY PERSON ASSOCIATED WITH tomtA MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE tomtA SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER tomtA NOR ANYONE ASSOCIATED WITH tomtA REPRESENTS OR WARRANTS THAT THE tomtA SERVICES AND THEIR CONTENT WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITES OR THE SERVERS THAT MAKE THE tomtA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE tomtA SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation on Liability
IN NO EVENT WILL tomtA, ITS AFFILIATES, OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE tomtA SERVICES, ANY WEBSITES LINKED TO THEM, ANY CONTENT ON THE tomtA SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT IN THE AGGREGATE (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID tomtA IN THE PRIOR SIX (6) MONTHS, IF ANY. tomtA’S SERVICE PROVIDERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Governing Law and Jurisdiction
Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY – IT AFFECTS YOUR LEGAL RIGHTS AND GOVERNS HOW YOU AND tomtA CAN BRING CLAIMS AGAINST EACH OTHER. THIS SECTION WILL, WITH LIMITED EXCEPTION, REQUIRE YOU AND tomtA TO SUBMIT CLAIMS AGAINST EACH OTHER TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS. THIS MEANS THAT YOU WILL NOT BE ABLE TO BRING A CLASS, COLLECTIVE, OR REPRESENTATIVE LAWSUIT IN A COURT OF LAW BEFORE A JUDGE OR JURY CONCERNING ANY DISPUTE THAT MAY ARISE WHICH IS COVERED BY THE ARBITRATION AGREEMENT AND ARE INSTEAD AGREEING TO SUBMIT ANY SUCH DISPUTE SOLELY ON YOUR OWN BEHALF TO AN IMPARTIAL ARBITRATOR.
Claims Not Covered by Arbitration, Jurisdiction, and Venue. The Covered Claims do not include (and thus shall not require arbitration of) the following types of claims that will hereafter be referred to as “Excluded Claims”: (a) any claims that cannot be required to be arbitrated as a matter of law (including but not limited to claims by California residents under the California Private Attorney General Act of 2004 (“PAGA”), to the extent exclusion from arbitration is required by California law, and claims or charges that must be filed with a governmental administrative agency); (b) applications for provisional remedies, preliminary injunctions, and temporary restraining orders, including but not limited to those relating to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (c) small claims actions demanding $10,000 or less brought on an individual basis and within a small claims court’s jurisdiction.
In the event you or tomtA chooses to pursue arbitration of both Covered Claims and Excluded Claims and the other party objects, the Covered Claims must be arbitrated. In no event will Covered Claims be joined with Excluded Claims and litigated in court unless both parties agree to waive arbitration.
Arbitrability Determinations. If a party violates the agreement to arbitrate by commencing an action asserting a Covered Claim in a court of law, then the court (and not an arbitrator) shall have the authority to resolve any disputes about the interpretation, formation, existence, enforceability, validity, and scope of the this Arbitration and Class Action Waiver Section. If a party complies with the agreement to arbitrate and files for arbitration without filing a complaint in a court of law, then the arbitrator shall have the authority to resolve any disputes about the interpretation of this Arbitration and Class Action Waiver Section for purposes of discovery or the merits of the underlying claim, but shall have no authority to resolve any disputes about the formation, existence, enforceability, or validity of this Arbitration and Class Action Waiver Section, including the Class Action Waiver.
Arbitration Rules, Procedures, and Costs. To initiate arbitration, the party desiring to pursue a legal dispute must prepare a written demand setting forth the claim(s) and deliver the written demand within the applicable statute of limitations period by hand or first class mail to the representatives of the other party. You and tomtA agree that the arbitration shall be administered by JAMS before a single arbitrator mutually agreed upon by the parties, and if the parties cannot agree within thirty (30) days after names of potential arbitrators have been proposed, then by a single arbitrator who is chosen by JAMS. Except to the extent that they are modified by the rules below, if you are an individual person, the JAMS Streamlined Arbitration Rules & Procedures that are in effect at the time of the filing of the demand (and that are available at https://www.jamsadr.com/rules-streamlined-arbitration/) will apply. Except to the extent that they are modified by the rules below, if you are not an individual person, but are an entity or company, the JAMS Streamlined Arbitration Rules & Procedures that are in effect at the time of the filing of the demand (and that are available at https://www.jamsadr.com/rules-streamlined-arbitration/) will apply.
The parties agree that the applicable JAMS rules are modified as follows:
(a) Any arbitrator must be neutral as to all parties. Standards for the recusal of an arbitrator shall be the same standards under which trial judges are recused under California law;
(b) No party is entitled to its attorneys’ fees, except as may be awarded in a matter authorized by and consistent with applicable law;
(c) All discovery shall be subject to any and all objections available under FRCP 26(b). Each party shall avoid broad or widespread collection, search, and production of documents, including electronically stored information (“ESI”). If a compelling need is demonstrated by the requesting party, the production shall: (i) be narrowly tailored in scope; (ii) only come from sources that are reasonably accessible without undue burden or cost; and (iii) be produced in a searchable format, if possible without undue burden or cost, and which is usable by the receiving party and convenient and economical for the producing party. Where the costs and burdens of the requested discovery outweigh its likely benefit, considering the needs of the case, the amount in controversy, and the importance of the discovery in resolving the issues, the arbitrator shall deny such requests or order production on condition that the requesting party advance to the producing party the reasonable costs involved in making the production, subject to the allocation of costs in the final award;
(d) The arbitrator shall have the authority to award the same damages and other relief that would have been available in court pursuant to the law governing the Covered Claim(s);
(e) Either party shall have the right to file motions to dismiss and motions for summary judgment/adjudication;
(f) The arbitrator shall have the authority to issue an award or partial award without conducting a hearing on the grounds that there is no claim on which relief can be granted or that there is no genuine issue of material fact to resolve at a hearing;
(g) The Federal Rules of Evidence shall apply to all arbitration proceedings;
(h) For discovery purposes only, an arbitrator may consolidate claims filed by multiple individuals, each on their own behalf, in a single arbitration proceeding, or may conduct a joint hearing for efficiency purposes, so long as the arbitrator does not (i) certify (conditionally or otherwise) a collective, class, or representative action that includes individuals who have not themselves already submitted their own individual claims, or (ii) authorize the issuance of notice of the arbitration to individuals on the grounds that the arbitrator or any party believes there are other individuals who are similarly situated to or share commonality with a party to the arbitration.
(i) The arbitrator must issue a decision in writing, setting forth in summary form the reasons for the arbitrator’s determination and the legal basis therefor.
(j) The arbitrator’s authority shall be limited to deciding the case submitted by the parties to the arbitration. Therefore, no decision by any arbitrator shall serve as precedent in other arbitrations except to preclude the same claim from being re-arbitrated between the same parties.
(k) The parties may settle any dispute on a mutual basis without involvement of the arbitrator.
(l) If you initiate arbitration, you will pay the first $250, and tomtA will pay all other filing, administrative, or hearing fees. If you are an individual person and tomtA initiates arbitration, tomtA will pay all filing, administrative, and hearing fees. Regardless of which party initiates arbitration, you will remain responsible for your attorneys’ fees and costs unless the law governing the Covered Claim provides for an award of attorneys’ fees and costs and the arbitrator determines as part of the arbitration award that you may recover a certain amount of attorneys’ fees and costs.
If any term or condition in this Arbitration and Class Action Waiver Section is determined to be unenforceable or in conflict with a mandatory provision of applicable law, it shall be construed to incorporate any mandatory provision, or the unenforceable or conflicting term or condition shall be automatically severed and the remainder of this Arbitration and Class Action Waiver Section shall not be affected. Provided, however, that if the Class Action Waiver is found to be unenforceable, then any claim brought on a class, collective, or representative action basis shall be adjudicated exclusively in the state and federal courts located in the City of Santa Clara and County of Santa Clara, California, which shall be the exclusive forum for such claims. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.