End User Terms of Use

These End User Terms of Use (“User Terms”) govern the manner in which you may use and access Tonkean’s Services (as defined below) which are available via Tonkean’s website (www.tonkean.com), platform and applications.

By clicking the “I Agree” button or otherwise signifying your acceptance, you accept the User Terms and agree to be bound by their provisions towards Tonkean Inc., a company incorporated under the laws of the state of Delaware (“Tonkean” or “we”). In these User Terms “you” means you, the person who will be using Tonkean’s Services as an end-user. You and other users of the Services may also be referred to hereunder individually as a “User” and collectively as the “Users”.

Tonkean reserves the right, in its sole discretion, to modify these User Terms at any time by posting the modified provisions at https://tonkean.com/user-terms/ and you shall be responsible for reviewing and becoming familiar with any such modifications. Please note that any such modifications shall become effective immediately upon posting. IF YOU DO NOT AGREE TO ALL OF THESE USER TERMS, DO NOT ACCESS AND USE ANY PART OF THE SERVICES.

  1. The Services

Tonkean provides a business management platform, which enables real time and automated data monitoring and analysis, and communication within organizations and team members (collectively, the “Service” or “Services”). Users who register for the Services using the organizational email address allocated to them by their organization and/or place of employment (“Organization”) will become members of their Organization’s group on Tonkean. Users may then communicate with other users within their Organization, and use their Organization's dedicated dashboard within the Service.

The Services may be used only by individuals who (i) can form legally binding contracts under applicable law, and (ii) are authorized to use the Services pursuant to their Organization’s procedures and policies (if any). You hereby warrant that you have the authority to enter into these User Terms, and that your use of the Service is authorized and compatible with your Organization’s procedures and policies.

Please note that in the event that you are the first User of the Services within your Organization, you hereby also accept Tonkean's General Terms of Service, available at https://tonkean.com/terms/ on behalf of your Organization. Furthermore, you will automatically be considered your Organization’s administrator (the "Administrator"), unless and until such time as such role is transferred to another User within your Organization. As your Organization's Administrator (whether being the Customer's first User, or being granted with Administrator privileges), you may specify additional Users who will gain Administrator privileges, which will allow them to access and monitor all accounts under their Organization's account, and who will be responsible for the internal management and administration of the Service within your Organization. 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; (c) for for any monitoring performed by you, for protecting your Organization's Users' privacy, and for compliance with any applicable law.

Tonkean may (i) change, suspend or discontinue the Services (or any part thereof) at any time, including the availability of any feature, content or database, without notice or liability; (ii) offer alternative and/or additional Services to certain Users, that may not be offered to general Users. In addition, Tonkean may impose limits on certain features and services or restrict your access to the Services (or any part thereof) without notice or liability.

  1. Your Organization

Please note that your Organization has administrative control over your account, and members of your Organization (such as Administrators) have the ability to (i) access information about your activities, (ii) monitor your account and (iii) manage your account. Your Organization, and any party acting on its behalf, are solely responsible for any such activity and for compliance with applicable laws, and Tonkean shall not have any responsibility or liability in that respect.

  1. Registration to the Services

As part of the registration process, you may be required to provide Tonkean certain personal information (including, name, phone number, organizational or personal e-mail address, etc.) and to select a password. You shall provide Tonkean with accurate, complete, and updated registration information.

Tonkean reserves the right to refuse User’s registration or to block User’s access to the Services, at its sole discretion. The User is solely responsible for the activity that occurs on the User's account, and must keep the account credentials secured. The User must notify Tonkean immediately of any breach of security or unauthorized use of his/her account.

  1. Intellectual Property and License

Subject to these User Terms and to Tonkean's agreement with your Organization, Tonkean grants you a limited, non-transferable, non-exclusive, non-assignable, non-sub-licensable personal license to access and use the Service for internal, non-commercial use, for as long as your account is active and Tonkean's agreement with your Organization is in effect, provided that you are in full compliance with these User Terms. Except as expressly provided herein, no other rights or licenses, expressed or implied, are granted to you by Tonkean with respect to the Services, including any proprietary information, patent, copyright, trademark, trade secret, or other intellectual property right, whether registered or not.

All right, title and interest in the Services and any materials provided by Tonkean to you, and any development or derivative thereof, including without limitation, all copyrights, trade secrets, and other intellectual property rights pertaining thereto shall remain vested in Tonkean and its licensors and these User Terms do not convey to you any interest in or to the Services, except for a limited right of use as set forth herein, terminable in accordance with these User Terms.

All photos, texts, scripts, designs, graphics, logos, audios, videos, songs, interactive features, trademarks, service marks, trade names and other content (“Content”) used, displayed, included, incorporated, uploaded, posted or published by Tonkean or other third parties, as part of the Services (other than User Content (as such term is defined below)), are the sole property of Tonkean and/or its licensors (“Tonkean’s Content”), subject to copyright and other intellectual property rights under applicable laws, and you may not use, download, distribute and/or copy them, in whole or in part, without the prior written permission of Tonkean or any relevant third party. For the sake of clarity, you may not copy, reproduce, modify, publicly display, publicly perform, publish, distribute sell, license, rent, transfer, reproduce, emulate, create derivative works based on, or exploit in any way, Tonkean’s Content or any part thereof.

If you send Tonkean feedback or suggestions regarding the Services, such feedback and suggestions shall become Tonkean’s property and you acknowledge that Tonkean may use them at its sole discretion, without any obligation to compensate or credit you in any manner for such feedback or suggestions.

It is hereby clarified, that the Services (including the messages submitted by other Users through the Services) may contain links to other third parties’ websites, applications or features, or referrals to certain third parties’ products or services that are not owned or controlled by Tonkean and Tonkean has no control over them. If you choose to visit such third party’s websites, applications or features, or use their products or services, please be aware that such third party’s own terms of use and privacy policy will apply and govern your activities and any information you disclose while interacting with such third parties. Tonkean does not make any representation or warranty whatsoever regarding such third party’s websites, applications, features, services, products or Content. Tonkean also does not endorse and cannot ensure that you will be satisfied with any content, products or services that you accessed, purchased or download from such User or other third parties, and is not responsible or liable in any manner for your interaction with such User or third parties.

  1. Third Party Materials

The Services 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 at https://tonkean.com/terms/thirdParty/. 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 User Terms 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 Software contains any software provided by third parties not noted in the abovementioned webpage, the restrictions contained in these User Terms shall apply to all such third party software providers and third party software as if they were Tonkean and the Software, respectively. By using the Services you agree to the licenses that apply to any Third Party Materials.

  1. Reporting of Intellectual Property Infringements

Tonkean does not permit copyright infringing activities and infringement of intellectual property rights via its Service. To file a copyright infringement notification, please send a written communication to copyrights@tonkean.com and we will follow with additional instructions.

  1. User Content

While using the Services, you may upload, publish, display and transfer data, information, files, documents and other Content to third parties, as well as submitting and publishing profile photos and information (“User Content”). Users must follow their Organization’s policies, guidelines and procedures concerning any use and transferring of the User Content via the Services.

You hereby represent and warrant that you own or have all the necessary licenses, rights, consents, approvals and permissions to, and authorize Tonkean and other third parties to, exploit, copy, download, store and transfer the User Content, without infringing or violating any copyrights, privacy rights, publicity rights, trademarks or any other contractual, intellectual property or proprietary of any third party, including your Organization.

The User hereby grants to: (i) Tonkean an irrevocable, perpetual, non-exclusive, worldwide, royalty-free, fully paid, sub-licensable right and license to use, copy, download and store the User Content, and share, publish, reproduce, distribute and display your profile pictures in the manner contemplated hereunder, and to allow others to do so, all in order to provide, enable or enhance the Services; and (ii) other Users a non-exclusive license to view your profile, including profile pictures through the Service. User acknowledges that Tonkean is not obligated to maintain or backup any User Content, and that Tonkean has the right to remove any User Content at its sole discretion.

It is hereby clarified that you are solely responsible for your interactions with other Users and third parties via the Services. Tonkean is not directly involved in any communication between Users. Tonkean takes no responsibility and assumes no liability for any communication between Users. You understand that when using the Services you will 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. Tonkean takes no responsibility and assumes no liability for, and makes no guarantees or warranties 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 Tonkean with respect thereto. You further warrant and undertake that you are solely responsible for any User Content that you publish, send, transfer or share via the Services and for any damage or loss to any other third party resulting therefrom and that you assume all risk in connection therewith. You will indemnify and hold harmless Tonkean or anyone acting on its behalf from any liability, cost, damage and expense (including reasonable legal fees) caused due to and/or by the User Content.

  1. Prohibited Use

You may not, and may not permit or aid others to: (i) use the Services for any purpose other than the purpose explicitly set forth herein; (ii) copy, alter, translate, emulate, create derivative works based on, or reproduce the Services; (iii) modify, publish, sell, distribute, assign, pledge or transfer (by any means), display, sublicense, rent, lease or otherwise share the rights granted under these User Terms; (iv) reverse engineer, de-compile, modify, revise or disassemble the Services or any part thereof, or extract source code from the object code of the Services, or access the Services in order to build a competing product or service; (v) bypass any measures we may use to prevent or restrict access to the Services, and/or take any action intended to circumvent or disable the operation of any security feature or measure of the Services; (vi) access the Services or Tonkean’s facilities via any means other than through the interface provided by us, or via automated means, including by crawling, scraping, caching or otherwise (except as may be the result of standard search engine protocols or technologies used by a search engine with our express consent); (vii) use the Services in any manner that is illegal or not authorized by these User Terms; (viii) 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 our service providers') infrastructure; (ix) infringe your Organization’s internal policies, guidelines, and procedures; (x) provide any information, including any e-mail addresses or telephone number of friends or team members, if you do not own or have permission to provide us with such information; or (xi) upload, display, post, send, incorporate and/or contribute any Content that (a) infringes, violates, misuses or otherwise interferes with any copyright, patent, trademark, trade secret or other right of any third party; (b) is defamatory, abusive, harassing, threatening, racist, or constitutes an invasion of a right of privacy of another person, or is otherwise offensive, violent, vulgar, obscene, or otherwise harms or can reasonably be expected to harm any person or entity; (c) is illegal or encourages or advocates illegal activity; (d) posts or transmits any communication or solicitation designed or intended to obtain password, account, or private information from any third party; (e) contains viruses, trojan horses, worms, or any other computer programs designed to interrupt, destroy, or limit the functionality of the Services or any system, computer software, hardware or telecommunications equipment; (f) creates a false identity or impersonates another person; (g) “stalks” or otherwise harasses another or is antisocial, disruptive, or destructive, including “flaming”, “spamming”, “flooding”, “trolling”, and “griefing” as such terms are commonly understood and used on the Internet; or (h) violates any applicable local, state, national or international law or regulation.

  1. Termination

Tonkean may terminate or suspend your license, account and access to the Services (or any part thereof) immediately, without prior notice or liability, if you breach, or fail to comply with, any of the provisions contained in these User Terms. All the provisions of these User Terms which by their nature should survive termination (including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability) shall remain in full force and effect following termination thereof, for any reason whatsoever. Termination of these User Terms shall not relieve you from any obligation arising or accruing prior to such termination or limit any liability which you otherwise may have to Tonkean.

  1. Privacy Policy

Tonkean is committed to protecting your privacy and to the security of your personal information. In this regard, please see our Privacy Policy, which explains how Tonkean collects, uses, protects, and discloses your Personal Information (as such term is defined therein). Our Privacy Policy is available at https://tonkean.com/privacy/.

  1. Warranty and Disclaimer

YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND RESULTS IS SOLELY WITH YOU. THE SERVICES ARE SUPPLIED “AS IS”, AND WITHOUT WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE. TONKEAN DOES NOT WARRANT THAT THE USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET YOUR SPECIFIC REQUIREMENTS OR EXPECTATIONS, OR THAT ANY INFORMATION OR ADVICE OBTAINED BY YOU AS A RESULT OF YOUR USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH OR FROM THE SERVICES SHALL CREATE ANY WARRANTY OR IMPOSE ANY LIABILITY NOT EXPRESSLY STATED IN THESE USER TERMS. TONKEAN MAKES NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING THE SERVICES, THE CONTENT AND YOUR USE THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, AVAILABILITY, SECURITY, COMPATIBILITY, NON-INFRINGEMENT OR COMPLETENESS OF RESPONSES, RESULTS AND LACK OF NEGLIGENCE.

  1. Limitation of Liability

The Service provides certain ideas, suggestions, analyses and other data, which are all provided for informational purposes 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). 

TONKEAN'S SOLE LIABILITY IS TOWARDS YOUR ORGANIZATION, AND SUCH LIABILITY IS LIMITED UNDER TONKEAN'S AGREEMENT WITH SUCH ORGANIZATION. IN NO EVENT SHALL TONKEAN, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, AFFILIATES, AGENTS, MEMBERS OR EMPLOYEES BE LIABLE TOWARDS YOU, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY DIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES, INCLUDING LABOUR COSTS, LOSS OR CORRUPTION OF DATA OR INFORMATION, LOSS OF GOODWILL, LOSS OF PROFITS, LOSS OF SAVINGS, LOSS OF BUSINESS INFORMATION, PURE ECONOMIC LOSS, OR LOSS OF USE OR OTHER PECUNIARY LOSS, IN CONNECTION WITH OR ARISING OUT OF THESE USER TERMS, THE SERVICES OR YOUR USE OF OR INABILITY TO USE THE SERVICES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY (WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, NEGLIGENCE, EQUITY, PRODUCT LIABILITY, OR OTHERWISE), AND REGARDLESS OF WHETHER TONKEAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES WERE REASONABLY 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.

WITHOUT DEROGATING FROM THE FOREGOING, TONKEAN ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, LOSS OR LEAK OF DATA OR OTHER COMMUNICATIONS (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, INCLUDING VIRUSES AND TROJAN HORSES WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE THROUGH THE ACTIONS OF ANY THIRD PARTY, AND/OR (V) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES. THIS SECTION DOES NOT LIMIT OUR LIABILITY FOR DEATH OR BODILY INJURY OF A PERSON CAUSED BY OUR NEGLIGENCE IN JURISDICTIONS IN WHICH SUCH LIABILITY MAY NOT BE EXCLUDED BY APPLICABLE LAW.

  1. Use of the Services by Children

The Services are intended for the general audience and is not directed to children under the age of 18. By accessing or using our Services, you certify you are at least 18 years old. Children under the age of 18 may NOT access or use our Services.

  1. Miscellaneous

These User Terms and its performance shall be governed by the laws of the State of California, without regard to conflict of laws provisions that would result in the application of the laws of any other jurisdiction. The parties hereto submit the exclusive jurisdiction to the courts of San Francisco County, CA.

These User Terms and the Privacy Policy constitute the entire agreement between you and Tonkean with respect to your use of the Services (alongside the General Terms of Service and PO between your Organization and Tonkean), and supersede all prior or contemporaneous understandings regarding such subject matter.

Tonkean may assign at any time any of its rights and/or obligations hereunder to any third party without User’s consent. Users may not assign any of their rights or delegate any obligations hereunder, in whole or in part without the prior written consent of Tonkean, and any attempt by a User to do so shall be deemed null and void.

We may change these User Terms from time to time, without actual notice to you. The revised User Terms shall become effective upon posting on Tonkean's website or within the Services. It is your responsibility to review these User Terms occasionally. You agree that your continued use of the Service shall constitute your consent to the new or revised set of User Terms. If we make a material change to the User Terms, we will provide you with reasonable notice prior to the change taking effect either by e-mailing the email address associated with your account or by messaging you through the Services.

These User Terms will also govern any future upgrades or updates or new releases provided by Tonkean in connection with the Services, unless any such upgrades or updates are accompanied by a separate license, in which case the terms of that separate license will govern.

In the event that a court of competent jurisdiction finds any provision of these User Terms to be illegal, invalid or unenforceable, the remaining provisions will remain in full force and effect, and such provision shall be reformed only to the extent necessary to make it valid, enforceable and legal.

The failure of Tonkean to enforce any right or provision in these User Terms will not constitute a waiver of such right or provision unless acknowledged and agreed by Tonkean in writing.

If you have any questions or queries about these User Terms or our Services in general, please do not hesitate to contact us via e-mail (at: support@Tonkean.com) or postal mail (to the following address: 650 California Street, San Francisco, CA 94108, USA).

Last Updated: September 18, 2017