Terms of Use

Last updated on March 1, 2016

Welcome to tonkean.com(the “Website”). These Terms and Conditions (“Terms”) constitute a legally binding agreement between you and Tonkean, Inc., a company incorporated under the laws of Delaware (the "Company", "we" or "us"); and govern your use of the Website and Tonkean’s services which are available via the Website and Tonkean's software platforms (the “Service”). 

Your use of the Service signifies your understanding and agreement to be bound to these Terms and to comply with the applicable law, rules and regulations. If you do not agree to these Terms, please do not register and use the Service. You may not accept these Terms and use the Service if you are under the age of 13, if you are not qualified to create a binding legal agreement, or if the use of the Service is prohibited by the laws applicable to you. If you are accepting these Terms on behalf of your employer or another organization or entity, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable organization or entity, to these Terms; and (ii) you agree, on behalf of the party that you represent, to this Agreement. In such case, any reference these Terms shall be binding on your employer or the applicable organization or entity, and any reference to "you" shall refer to your employer or the applicable organization or entity. If you don't have the legal authority to bind your employer or the applicable entity, you may not accept these Terms and your employer, or the applicable entity, may not use the Service. In such case, we shall not have any liability towards any person or entity related to your employer or the applicable organization or entity, but only towards your organization.

We take the protection of your personal information seriously. Please carefully review ourPrivacy Policywhich explains how we collect your personal information and how we use it. Our Privacy Policy is hereby incorporated into these Terms by reference and forms an integral part hereof.

 

The Service  

The Service is currently in beta. We may change, suspend or discontinue any aspect of the Service, at any time, including the availability of any Service. We may also modify, limit, deny or impose limits on certain features and services or restrict access to parts or all of the Service. We may terminate your access for any or no reason at any time by ceasing to provide the Service to you. We will not have any liability whatsoever to you for any such termination.

We reserve the right at any time to charge fees for access to any part of the Service that are now free. All new fees, if any, will be posted prominently on the Service website and in other appropriate locations.  

You agree to use the Service solely for your own use. In any event, however, you agree not to transfer or resell the Service, in whole or in part, to any third party, or allow unauthorized access to the Service, by any third party. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the Service for any purpose.

You agree not to access (or attempt to access) the Service by any means other than through the interface provided by us. Without derogating from any other term of these Terms, you agree to use the Service solely for lawful purposes. You agree that you will not (i) engage in any activity that interferes with or disrupts the Service (or the servers and networks which are related to the Service); (ii) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or its third party providers’) infrastructure; (iii) bypass any measures we may use to prevent or restrict access to the Service; or (iv) provide any information, including but not limited to email addresses or telephone numbers of friends, if you do not own or have permission to use such information.

 

Administration of the Services 

If you represent your employer, or an applicable organization or entity, you may specify one or more administrators who will have the rights to access all accounts under a certain domain ("Administrator"). You are responsible for: (a) maintaining the confidentiality of the password and Administrator accounts; (b) designating those individuals who are authorized to access the Administrator accounts.

You agree that we are not responsible to the internal management or administration of the Service. You agree and acknowledge that Administrators may have the ability to access, monitor, use, or disclose data available to users within the domain. If you are accepting these Terms on behalf of your employer or another organization or entity, you represent and warrant that such organization shall be solely responsible and liable for the users privacy and for compliance with any privacy related laws. You are solely responsible for any monitoring performed by you and for compliance with applicable law.

 

Payments

You agree to pay for all paid plans you purchase. All orders are final. Billing for our payment programs is ongoing, until terminated by you at least 14 days before the next billing cycle. Upon such termination, the services purchased will be available to you until the end of the current cycle. Amounts paid to us are not refundable, unless required by mandatory law. If we are unable to charge our fees through your approved payment means, we may, in addition to other remedies, suspend or terminate the services granted to you.

Credit card details are needed to complete an order, and the service will be available to you following successful completion of billing. You will be notified accordingly. You authorize us to continue to charge your credit card or any replacement card upon the beginning of each billing period for the agreed amount of such period, but failure to charge your card does not limit your payment obligation.  

After your subscription is canceled, you won't be able to access the subscription features, or any content, data and information stored in your account. 

All fees charged hereunder are, except where otherwise explicitly stated, exclusive of all taxes. You acknowledge and agree that you will bear and be responsible for all applicable taxes and other governmental charges imposed on it with respect to this Agreement, if any. Your payment obligation is not subject to any lien, withholding or set off. Failure to timely pay any fees due is grounds for termination or suspension of the services provided, without prejudice to other remedies. Prices are subject to change with respect to new billing periods, provided that notice is given at least 30 days in advance. No refund or protection is given in case of price decrease or promotional offering. In case of a service becomes permanently unavailable during a billing period, you will be entitled to a pro-rata refund. In all other cases, claims for refund are excluded.

Delinquent payments may bear compounded interest at the rate of one-and-one-half percent per month (or the highest rate permitted by law, if less) from the payment due date until paid in full. You will be responsible for all reasonable expenses (including attorneys' fees) incurred by us in collecting such delinquent amounts. 

Payments are being processed by a third party in its exclusive responsibility. We will not be liable for the actions and omissions of such third party provider. Your use of payment processing service may be subject to terms and conditions posted within, adjacent to or linked to the payment process. You hereby authorize the payment processor to provide data and information to us. We are free to replace the payment processor service from time to time or process payments ourselves.

 

Changes In the Terms 

We may change these Terms from time to time, without actual notice to you. The revised Terms shall become effective upon posting in the Website. It is your responsibility to review these Terms occasionally. You agree that your continued use of the Service shall constitute your consent to the new or revised set of Terms. If we have your e-mail address on record (subject to our privacy policy), we may use this to inform you of changes to these Terms in advance. 

 

Limitation of Liability

The Service provides certain ideas, suggestions, analyses and other data, which are all provided for information purpose only, and not as an advice. We accept no responsibility or liability in contract, tort, negligence, breach of statutory duty or otherwise for any inconvenience, loss, damage, costs or expenses whatsoever incurred or suffered by anyone as a result of any information contained in or provided by the Service (unless such liability may not be excluded or limited as a matter of law, and in such case, our liability will be limited to the maximum extent permitted by law). 

YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR OWN RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AS TO THE OPERATION OF THE SERVICE, OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED IN THE SERVICE. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THE TERMS. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR ELECTRONIC DEVICE OR LOSS OF DATA, OR ANY OTHER LOSS OR DAMAGE THAT RESULTS FROM YOUR USE OF THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES. 

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY AND ITS AFFILIATES, OFFICERS, AGENTS, MEMBERS AND EMPLOYEES BE LIABLE FOR ANY INDIRECT, DIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLES, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES WERE FORESEEABLE. YOU SPECIFICALLY AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE TO YOU OR ANYONE ELSE FOR ANY UNLAWFUL, EXPLICIT OR OTHERWISE OBJECTIONABLE CONDUCT OF ANY OTHER PARTY ON OR THROUGH THE SERVICE, OR FOR ANY INFRINGEMENT OR VIOLATION OF YOUR RIGHTS BY ANY OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, INTELLECTUAL PROPERTY RIGHTS, RIGHTS OF PUBLICITY, OR RIGHTS OF PRIVACY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, IN SUCH JURISDICTIONS OUR LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY FOR ALL CLAIMS, DAMAGES AND LOSSES (WHETHER IN CONTRACT, TORT OR OTHERWISE), INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICE IN THE LAST SIX MONTHS. 

You hereby represent and warrant to us, that any users of your services are and will be bound by a limitation of liability toward us at the same scope as provided herein.

If you are dissatisfied with any portion of the Service, or with any of these terms of use, your sole and exclusive remedy is to discontinue using the Service.

 

Content and Proprietary Rights

You understand that all information, such as data files, written text, computer software, music, audio files or other sounds, photographs, illustrations, videos or other images (together, the "Content") which you may have access to as part of, or through your use of, the Service are protected by copyright, patents, trademarks, trade secrets or other proprietary rights, and owned or controlled by the Company or its licensors. You acknowledge and agree that the Company (or its licensors) own all right, title and interest in and to the Service. You may not use any of the Company’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.

You may not modify, rent, lease, loan, sell, distribute or create derivative works based on the Company's Content (either in whole or in part). You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, duplicate, create new works from, distribute, perform, display or provide others with any portion of the Content or the Service, in whole or in part. You may not reverse engineer, decompile, disassemble, alter, duplicate, modify, prepare derivative works from, make copies of, distribute, provide others with or otherwise attempt to derive the source code from any application of the Service. Violation of these provisions may constitute breach of applicable law (in addition to breach of these Terms) and may expose you to criminal liability. 

Copying, sending, sharing or storing of any Content for other than personal use is expressly prohibited without prior written permission from the Company or the copyright holder.

If you provide us with feedback or suggestions regarding the Service, such feedback and suggestions shall become our property and we may use them at our sole discretion, without any obligation to compensate you in any manner.

 

Third Party Content and Services 

The Website offers links to web sites, resources, and advertisers. Although some of these websites are operated by our affiliates or business partners, we have no control over these outside resources, and we accept no responsibility or liability for such resources or for their accuracy, performance or reliability.

The Service may contain software or other materials provided by third parties (including "open source" software) ("Third Party Materials"). The license terms, copyright notices and available source code with respect to Third Party Materials can be found here. Use of such Third Party Materials shall be governed by the license agreements specific to each such Third Party Material, provided, however, that in addition to any terms and conditions of any third party software license as set forth in the abovementioned webpage, and without derogating from such terms, the disclaimer of warranty and limitation of liability set forth herein shall apply to all software. If the Service contains any software provided by third parties not noted in the abovementioned webpage, the restrictions contained in this Agreement shall apply to all such third party software providers and third party software. By using the Service you agree to the licenses that apply to any Third Party Materials. 

Prior to installing any part of the Software, you may be required to install additional third party software, if such third party software is not already installed on your hardware or devices. This third party software is separate and independent of the Service. The use of such software is not governed by this Agreement, and shall be governed only by the license agreements specific to such software, to which the Company is not a party. No legal relationship shall be formed between Company and you with respect to such third party software.

IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY DAMAGE CAUSED BY SUCH SEPARATE AND INDEPENDENT THIRD PARTY SOFTWARE. SUCH SOFTWARE IS PROVIDED "AS IS", WITHOUT ANY WARRANTY BY COMPANY.

 

User Content

User Content” means any content and/or data you upload, transmit or otherwise make available via the Services, including but not limited to messages you send, files you upload and comments you make on files. You are solely responsible for the User Content and for any damage or loss to any third party resulting therefrom, and you assume all risk in connection therewith. 

You represent and warrant to us that: (i) you own all of your User Content or have obtained permissions, releases, rights or licenses to such User Content; and (ii) your User Content does not and will not violate or infringe any third party’s copyright, trademark, or right of privacy or other personal or proprietary right. 

Further, you agree not to: (i) upload, post, transmit or otherwise make available any User Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, pornographic, incites violence, contains nudity or graphic or gratuitous violence, hate speech, hateful or racially, ethnically, or otherwise objectionable; (ii) upload, post, transmit or otherwise make available any User Content that you do not have a right to make available; (iii) upload, post, transmit or otherwise make available any User Content (a) which contains any confidential information or trade secret, or (b) in a manner that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (iv) upload, post, transmit or otherwise make available any software viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware; and (v) disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users’ ability to engage in real-time exchanges using the Service. 

You hereby grant us an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to use, copy, download and store the User Content. Further, you acknowledge that we have the right to remove any of your User Content that violates these Terms or is otherwise objectionable. 

You understand that when using the Service, you may be exposed to User Content from a variety of sources, and that you are solely responsible for your interactions with other Users and third parties via the Services. We take no responsibility and assume no liability for, and make no guarantees or warranties with respect to, the accuracy, validity, legal status, usefulness, safety, or intellectual property rights of, any User Content that you or any other User or third party post or transfer over the Service. You understand and acknowledge that you may be exposed to User Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against us with respect thereto. 

 

Indemnification

Your use of the Service constitutes your agreement to defend, indemnify, and hold harmless the Company and its affiliated entities, and their employees, contractors, officers, directors, agents and representatives, from any claim or demand, including reasonable attorneys' fees, arising out of (i) your use or misuse of the Service; (ii) or the use or misuse of contents of the Service by a third party even if using your password; (iii) if you are accepting these Terms on behalf of your employer or another organization or entity – (a) the use or misuse of the Service by any person or entity related to your employer or the applicable organization or entity, or (b) any claim of by any person or entity related to your employer or the applicable organization or entity. This Indemnification section of the Terms survives termination of your account with the Service or of your use of the Service.

 

Confidentiality

Each party (“Receiving Party”) shall keep confidential and shall not disclose to any third party any Confidential Information (as such term is defined below) which it has received from the other party (“Disclosing Party”) and shall only use such Confidential Information for purposes in connection with these Terms. You acknowledge that the Service contains confidential and proprietary information and trade secrets of the Company and agree to keep the Service confidential. You further acknowledge that any unauthorized disclosure, use, or copying of the Software may cause us serious financial loss. "Confidential Information" means any know-how, any trade or business secrets, any commercial, financial, business, technical or other confidential information of whatever nature relating to the business of a Party (whether written, oral or in electronic or other form), which is clearly designated by the Disclosing Party as being confidential (whether or not it is marked as confidential) or of clear confidential nature. Confidential Information shall not include information that: (i) is or becomes publicly known other than through any act or omission of the Receiving Party; (ii) was in the Receiving Party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; (iv) is independently developed by the Receiving Party without use of Confidential Information of the Disclosing Party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

 

Advertisement

You agree that we may use your name and logo for our marketing efforts. 

 

Applicable Laws and Jurisdiction

You agree that the laws of the State of Israel, excluding its conflicts-of-law rules, shall govern these Terms. The Convention on International Sale of Goods will not apply. Please note that your use of the Service may be subject to other local, state, national, and international laws. You expressly agree that exclusive jurisdiction for any claim or dispute with the Company or relating in any way to your use of the Service resides solely in the competent courts in Israel. Where these laws prevent the application of any part of these Terms, such laws will prevail to the extent mandated by them.

 

No Class Actions

Neither you nor the Company can bring a claim each other as a plaintiff or class member in a class action, consolidated action or representative action.

 

Miscellaneous

Correspondence should be sent to support@tonkean.com.

You agree to report any copyright violations to the Company as soon as you become aware of them. In the event you have a claim of copyright infringement with respect to material that is contained in the Service, please notify us as soon as possible at: support@tonkean.com. 

If any provision of these Terms shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions. We may assign these Terms, in whole or in part, at any time with or without notice to you. You may not assign, transfer or sublicense these Terms or any or all of your rights or obligations under these Terms without our express prior written consent. 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. This is the entire agreement between you and the Company relating to the subject matter herein. You may not modify these Terms. These Terms of Use will inure to the benefit of our successors, assigns and licensees. Without limitation, you agree that a printed version of these Terms and of any notice recorded in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.