Terms of Use

Timby SUBSCRIPTION AGREEMENT

Last updated 2024-08-09

These Timby Subscription Terms (“Terms”) describe your rights and responsibilities when using our Services and Free Services, and any other services these Terms are referenced from. These Terms are between you and Timby Productions Inc. (“Timby”, “we”, “us”). If you are a Customer or Authorized User, these Terms govern your access and use of our Services. You will be referred to in these Terms as either “you” or “Customer.” If you sign up for a Service using an email address from your employer or another entity, then: (a) you will be deemed to have the authority to represent such party, (b) your acceptance will bind that entity to these Terms, and (c) the word “you” or “customer” in these Terms will also refer to your employer or that entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and must not use the Services. These Terms are entered into on the earlier of you: (a) clicking "I Agree", "Create Account", “Register” or similar acceptance to these Terms to gain access to, or use of, the Services; (b) you are given access to or use of the Services (including following notice that these Terms apply to such use), or (c) you place an Order ("Effective Date").

Terms

Services.

These Terms govern our Services and related Support Services (if applicable). These Terms include any linked terms or policies, the Service-Specific Terms, and your Orders. These Terms do not govern any Timby consulting, training, implementation or other professional services which are subject to additional agreements with Timby.

Service-Specific Terms.

Some Services may be subject to additional terms specific to that Service as set forth in the Service-Specific Terms. By accessing or using a Service covered by the Service-Specific Terms, you also agree to the Service-Specific Terms.

Provision Of Services

Access to Services

Subject to these Terms, during the Subscription Term, Timby grants you a limited, non-exclusive, non-transferable, and non-sublicensable right to access and use the Services available to you for your internal business use in accordance with these Terms, the applicable Order and the Documentation. You agree that the license and use of the Services is not contingent on any future functionality or features, or dependent on any oral or written statements made by Timby or any of its Affiliates regarding future functionality or features.

Evolving Timby Technology.

Timby may issue Updates for the Services and/or Documentation during the Subscription Term.

Protection of Customer Data.

Timby will maintain administrative, technical, and physical safeguards designed to protect the security, confidentiality, and integrity of Customer Data. Where your use of the Services includes the processing of “personal data” subject to applicable data protection laws, such use will be governed by the data processing addendum located at Timby.org/legal/dpa (“DPA”) that is incorporated into these Terms by reference. You will only provide to Timby the minimum amount of personal data necessary to enable your use of the Services in accordance with these Terms.

Free Services.

Timby may offer certain services to you at no charge, including free accounts, free functionality, non-production services, evaluations, trial use and pre-release, pilot, design partnership, limited release, educational license, developer preview and/or beta services (or similar designation by Timby) (“Free Services”). Your use of Free Services may be subject to additional terms that Timby specifies and is only permitted during the Subscription Term Timby designates (or, if not designated, until terminated in accordance with these Terms). Free Services are not “Services” under these Terms. Except as otherwise set forth in this section, the terms governing the use rights and restrictions of Services herein fully apply to Free Services, as well as any Service-Specific Terms for those Free Services. Timby may modify or terminate your right to use Free Services at any time and for any reason in Timby's sole discretion, without liability to you. You understand that any pre-release, pilot, limited release, developer preview and beta services, and any pre-release and beta features within generally available Services that Timby makes available are still under development, may be inoperable or incomplete and may contain more errors and bugs than generally available Services. If you opt into a beta service, then you agree to participate in usage and testing of, and provide Feedback about such beta service, as reasonably requested by Timby. Timby makes no promises that any beta service will ever be made generally available. Timby may charge a fee in order to allow you to access beta services, but the beta services will remain subject to this section. All information regarding the characteristics, features or performance of any beta service is Timby Confidential Information. To the maximum extent permitted by applicable law, Timby disclaims all obligations or liabilities with respect to Free Services, including any Support Services, warranty and indemnity obligations.

Free Services are provided “as is,” without express or implied warranty, and without indemnity. Timby and its Affiliates will have no liability for, and you fully and irrevocably release Timby and its Affiliates from, any liability or damage arising out of or in connection with any Free Service. Notwithstanding anything else in these Terms, Timby's maximum aggregate liability to you with respect to Free Services will be US$100.

USE OF SERVICES

Administrators.

Through the Services, you may be able to specify certain Authorized Users as “Administrators” who have rights and controls over your use of the Services and Authorized User accounts. This may include making Orders for Services (which may incur Fees); creating, de-provisioning, monitoring Authorized User accounts, setting Authorized User permissions and managing access to Customer Data by Authorized Users and others.

Your Responsibilities.

Only Authorized Users are permitted to access and use the Services. You acknowledge that Timby may contact you and Authorized Users in connection with Timby’s and its Affiliates’ services. You will be solely responsible for (a) who you allow to become Administrators, as well as any of their actions or omissions, (b) Authorized Users’ compliance with these Terms, any Order(s) issued hereunder, the Documentation and the User Terms of Service (“User Terms”); (c) the accuracy and quality of Customer Data, the means by which you acquired Customer Data, and obtaining appropriate usage rights with respect to Customer Data; (d) maintaining the confidentiality of usernames, passwords, and other account information or access credentials (as applicable); (e) all activities that occur under its Authorized Users’ usernames, passwords, accounts or access credentials as a result of Authorized Users’ access to the Services; and (f) ensuring Authorized Users’ use the Services only in accordance with the Documentation. You will provide written notice to Authorized Users and/or Data Subjects that Customer Personal Data (as defined in the DPA) is subject to your own privacy policy and other terms regarding the use or handling of Customer Personal Data in accordance with applicable Data Protection Law. You will provide disclosures to and obtain consents from Authorized Users as required under applicable Data Protection Law in order to share Customer Data. You will notify Timby immediately of any unauthorized use of, or access to, the Services.

Restrictions.

You will not and will not permit others to (a) make any Services available to any third party other than you or Authorized Users; (b) sell, resell, license, sublicense, distribute, rent, or lease any Services, or include any Services in a service bureau or outsourcing offering; (c) use the Services to store or transmit infringing, tortious, libelous, or otherwise unlawful material, Harmful Code, or material that otherwise violates the rights of any third-party; (d) interfere with or disrupt the integrity or performance of the Services or any third-party data contained therein; (e) use, or permit direct or indirect access to, the Services in a way that seeks to circumvent Service use limitations, (f) use the Services to exploit any Timby Intellectual Property Rights except as otherwise expressly permitted under these Terms, an Order, or the Documentation; (g) frame or mirror any part of the Services, except as permitted by and in accordance with the Documentation; (h) access the Services in order to develop a competitive product or service or benchmark with a non-Timby product or service, or to otherwise exploit for competitive purposes; (i) subject to applicable law, reverse engineer, copy, or modify any software included as part of the Services; (j) use the Services for any improper, fraudulent, or other non-legitimate business purpose; (k) use the Services in a way that could be considered harmful, malicious, threatening, offensive, pornographic, defamatory, bigoted, hateful, indecent, or otherwise objectionable in Timby’s reasonable discretion; (l) use the Services to send unsolicited communications, promotions, or advertisements in violation of the CAN-SPAM Act or any other applicable anti-spam or e-privacy law, rule, or regulation; (m) use any automated device or process, such as a robot, spider, datamining, web-scraping, or other means to circumvent, access, use, or integrate with the Services or its contents, including but not limited to other user account information; (n) damage, interfere, disable, or impair the Services in any way; or (o) use the Services in violation of applicable law.

Age Requirements.

The Services are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all Authorized Users are at least 16 years old.

THIRD-PARTY APPLICATIONS

Products or services offered by third parties may be available to you and your Authorized Users, including via Timby’s API, for use with the Services (“Third-Party Applications”). By using Third-Party Applications, you permit Timby to grant such Third-Party Application providers access to Customer Data or other data as required for the use and support of such Third-Party Applications together with the Services which may include transmitting, transferring, modifying or deleting Customer Data, or storing Customer Data on systems belonging to the third-party providers or other third parties. Third-Party Applications are not Services under these Terms, may be subject to the third-party provider’s additional terms, and may require additional fees to such providers. The Services may contain features designed to interoperate with Third-Party Applications. Such features are not Services under these Terms. Timby may cease providing such features for any reason, including if the Third-Party Application provider ceases to make the Third-Party Application available for interoperation with the Services, without entitling you to any refund, credit, or compensation. Notwithstanding any obligations Timby may have under an applicable DPA, Timby is not responsible for the use, access or protection of Customer Data in any Third-Party Applications. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use Customer Data.

TIMBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY APPLICATIONS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

FEES AND PAYMENT

Subscriptions.

Except for Free Services, all Services are offered on a subscription basis.

Subscription Term.

Unless earlier terminated per these Terms, the initial Subscription Term and applicable renewal(s) will begin and end on the start date and end date in each Order. If no start date is included in an Order, the start date is the day the Order is placed. If no end date is included in an Order, then the end date will be one year from the start date. Unless otherwise specified in an Order, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term or if none included for one year, unless either party gives the other party notice (email is sufficient) of non-renewal at least ten (10) days before the end of the relevant Subscription Term. Notice of non-renewal to Timby must be sent to legal@Timby.org. Except as expressly set out in an Order, one-time or other promotional pricing will renew at Timby’s then-current rates. Any new Service subsequently added to an existing subscription will be coterminous with the current Subscription Term.

Fees.

You will pay Timby all fees described in each applicable Order, and all applicable Taxes (“Fees”). Except for Timby’s material breach of its limited warranties below, all payment obligations are non-cancelable and Fees paid are non-refundable. Fees may be subject to foreign exchange fees or differences in prices based on location (e.g., exchange rates). Timby may change Fees at any time (excluding Fees for a then current Subscription Term under an Order), including changing from a Free Service to a paid Service provided that Timby will first provide you with notice and an opportunity to terminate your Free Service subscription per these Terms. Timby will not charge you for a previously Free Service unless you have been previously notified of such Fees.

Payment Terms.

All Fees will be billed in advance of the Subscription Term. You will pay all Fees, Taxes, and Overages within the time frame and in the currency in each applicable Order, without deduction or setoff. You are responsible for providing Timby with complete and accurate billing and contact information and updating Timby of any changes. If you fail to pay any undisputed portion of an invoice, then: (a) interest on unpaid amounts will accrue from the due date at the higher of 1.5% per month and the highest rate allowed by applicable law; and (b) within ten (10) business days from notice of late payment, Timby may, without limiting its rights and remedies, suspend the Services until Fees are paid in full. Timby is not obligated to provide Services without payment of applicable Fees.

Payment Cards.

If you pay by credit or debit card, you: (a) will provide Timby or its third-party payment processor with valid payment card information; and (b) authorize Timby or its third-party payment processor to charge such payment card for all Fees in the applicable Order and invoice(s) in accordance with these Terms. You hereby authorize Timby and its payment processor to store and continue billing the payment method you have on file with us, to avoid interruptions in Services purchased and to pay other Services you may buy. If you purchase a subscription, you authorize Timby and its payment processor to automatically charge your payment method on file at the start of each Subscription Term for the applicable Fees and Taxes. Your authorization will remain in full force and effect until Timby receives written notice of your revocation of such authorization or upon termination of the subscription provided that all of your payment obligations are satisfied.

Purchase Orders.

The terms of any purchase order, other form or agreement you provide will not modify or supplement these Terms and will have no force or effect, regardless of Timby’s failure to object to such terms.

Taxes.

Fees and Overages (defined below) do not include any taxes, tariffs, levies, duties, or similar governmental charges or assessments of any nature, including, value-added, sales, use, or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”) excluding taxes on Timby’s income, property, and employees. You are responsible for paying all Taxes associated with your purchases under these Terms. If Timby is legally required to pay or collect Taxes that you are responsible for paying under these Terms, Timby will invoice you and you will pay such amounts, unless you provide Timby with a valid tax exemption certificate. Unless prohibited by the applicable taxing jurisdiction, the tax situs will be your ship-to address as set forth in the applicable Order or contained in Timby records. You will pay all Fees net of any applicable withholding taxes. The parties will cooperate to avoid withholding tax if exemptions, or a reduced treaty withholding rate are available. If Timby qualifies for a tax exemption or reduced withholding rate, Timby will provide you with reasonable documentary proof and you will provide reasonable evidence that you paid the relevant authority for the sum withheld or deducted.

Use Verification & Subscription Review.

You acknowledge that Timby or its Affiliates may review your use of the Services for the purpose of verifying your compliance with these Terms. You will reasonably cooperate with and assist Timby or its Affiliates, as applicable, in such review and verification. In addition, but no more than once annually, Timby may initiate a subscription review by requesting copies of records evidencing your use of the Services and other reasonable substantiation. You will provide such records within fifteen (15) business days, or such other mutually agreeable time frame, of Timby’s written request.

PROPRIETARY RIGHTS AND LICENSES

Ownership; Reservation of Rights.

All Timby Intellectual Property Rights, including Intellectual Property Rights in the Services, Free Services, beta Services, Documentation, Statistical Usage Data, and Timby’s Confidential Information, are and will remain owned exclusively by Timby and its Affiliates, as applicable. Ownership in all Updates, derivatives, modifications, new functionalities, enhancements, and customization related to the Services created by or on behalf of Timby will immediately vest in Timby upon creation. Nothing in these Terms will preclude or limit Timby from using or exploiting any concepts, ideas, techniques, or know-how of or related to the Services. Other than as expressly set forth in these Terms, no license or other rights in or to the Services or other Timby Intellectual Property Rights are granted to you, and all such rights are expressly reserved to Timby and its Affiliates.

Use of Timby Logos.

Use of Timby’s logos, and all other Timby trademarks, service marks, product names, and trade names of Timby must be pre-approved in writing by Timby, for approval email legal@Timby.org.

Customer Data.

Customer Data and Customer’s Confidential Information are and will remain owned exclusively by Customer or its Authorized Users, as applicable. Customer hereby grants Timby, its Affiliates, and its sub processors a worldwide right and license to access, host, display, process, analyze, transmit, reproduce, and otherwise utilize Customer Data for the purposes of providing and improving the Services in accordance with this Agreement.

Statistical Usage Data.

Timby and its Affiliates may collect, use, and otherwise process Statistical Usage Data for their own analysis, analytics, marketing, and other internal business purposes, including, without limitation, improving Timby’s products and services. Except where Customer has expressly provided its written consent, Timby will only disclose Statistical Usage Data if such data is (a) aggregated or anonymized; and (b) does not disclose the identity of Customer or its Authorized Users or any Customer Confidential Information.

Feedback.

If you or your Authorized Users provide any recommendations, suggestions, proposals, ideas, improvements, or other feedback regarding the Services or Documentation (“Feedback”), you grant Timby an irrevocable, perpetual, royalty-free license to freely use, reproduce, distribute, modify, incorporate, commercially exploit, and further develop such Feedback without any restrictions or attribution.

CONFIDENTIALITY

Definition of Confidential Information.

“Confidential Information” means all information or data disclosed by a party or any of its Affiliates (as applicable, the “Disclosing Party”) that is confidential, proprietary, or otherwise not publicly available, or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure whether oral or in writing, and disclosed during the Term in connection with the Services. Confidential Information includes, (a) with respect to you, Customer Data; (b) with respect to Timby, the Services, pricing, and the Free Services, including any discussions or information related to Free Services; and (c) with respect to a party, any technical, financial, economic, marketing, strategic, business, product, design, operational, including the terms of these Terms and all Orders, of such party. Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of these Terms or any other agreement by the party receiving information or any of its Affiliates (as applicable, the “Receiving Party”); (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without restriction on disclosure and without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to any Confidential Information.

Protection of Confidential Information.

The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information for any purpose outside the scope of these Terms; and (c) except as otherwise expressly consented to by an authorized representative of the Disclosing Party, limit access to Confidential Information to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with these Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less restrictive than those herein. Neither party will disclose the terms of these Terms or any Order to any third party other than its Affiliates, legal counsel, and accountants without the other party’s prior written consent, on condition that a party that makes any such disclosure to its Affiliate, legal counsel, or accountants will remain responsible for such Affiliate’s, legal counsel’s, and accountants’ compliance with this “Confidentiality” Section.

Compelled Disclosure.

The Receiving Party may disclose Confidential Information to the extent compelled by law or legal process to do so, on condition that the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the compelled disclosure. If the Receiving Party is compelled by law to disclose Confidential Information as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES, DISCLAIMERS

General Warranty.

Each party represents and warrants that it has the necessary rights to enter into these Terms and has the legal power to do so.

Timby Limited Warranties.

Timby warrants that (a) the Services will perform materially in accordance with the applicable Documentation; (b) Timby will not materially reduce the core functionality of the Services during the current Subscription Term; and (c) Timby will use industry standard measures to deliver the Services free of Harmful Code. Your exclusive remedy and Timby’s entire liability for a breach of the above warranties will be, at Timby’s option, (x) the correction of the deficient Service that caused the breach of warranty, or (y) provision of comparable functionality. If Timby cannot accomplish (x) or (y) in a commercially reasonable manner, as determined in its reasonable discretion, Timby may terminate the deficient Service and refund you any prepaid Fees for the terminated Service, prorated to cover the remaining portion of the Subscription Term following notice of the breach of warranty.

Disclaimers.

Except as expressly provided herein, neither party or its licensors makes any warranty of any kind, whether express, implied, statutory, or otherwise, and each Party and its licensors specifically disclaim all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose, title, or non-infringement, to the maximum extent permitted by applicable law. Notwithstanding Timby’s obligations under the DPA, Timby does not warrant that Services will be error-free or uninterrupted, will meet your requirements or expectations, or that its security measures will be sufficient to prevent third-party access to Customer Data.

DMCA Notice and Takedown Policy

If you believe that any content accessible on the Timby platform infringes your copyright, you may submit a notice under the Digital Millennium Copyright Act (DMCA) to request its removal. Timby respects the intellectual property rights of others and will respond promptly to proper DMCA notices in accordance with U.S. copyright law.

Filing a DMCA Notice

To submit a DMCA notice, please send a written communication to our designated DMCA agent at legal@timby.org. Your notification must include the following information:

• Identification of the copyrighted work that you believe has been infringed, or, if multiple works are involved, a representative list of such works.
• Identification of the material that you claim is infringing, including its location on the platform, in a way that is reasonably sufficient to allow us to locate the content (such as a URL or other specific location).
• Your contact information, including your full name, email address, and a physical address or phone number at which you can be reached.
• A statement by you, under penalty of perjury, that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in your notice is accurate, and that, under penalty of perjury, you are the copyright owner or are authorized to act on behalf of the copyright owner.
• Your electronic or physical signature (typing your full legal name is sufficient if submitting electronically).

Please be aware that any person who knowingly misrepresents material or activity as infringing may be subject to liability under Section 512(f) of the DMCA. Therefore, we advise consulting legal counsel before submitting a notice, particularly if you are unsure whether the content in question infringes your rights.

Counter Notice

If you believe that content you posted to the Timby platform was wrongfully removed in response to a DMCA notice, you may submit a counter-notice by emailing legal@timby.org. Your counter-notice must include:

• Identification of the material that was removed and the location where it previously appeared before removal.
• A statement under penalty of perjury that you have a good-faith belief that the material was removed as a result of a mistake or misidentification.
• Your contact information, including full name, address, phone number, and email address.
• A statement consenting to the jurisdiction of the federal court in the judicial district where your address is located, or, if your address is outside the United States, for any judicial district in which Timby may be found, and that you will accept service of process from the person who submitted the original DMCA notice or an agent of such person.
• Your electronic or physical signature (typing your full legal name is sufficient if submitting electronically).

Upon receipt of a valid counter-notice, we will forward it to the original complaining party. Unless the original party files a court action seeking a restraining order against the allegedly infringing content, Timby may restore the removed content within ten business days after receipt of the counter-notice.

Repeat Infringers

Timby may terminate, at its discretion, any Customer account or user privileges if the user is determined to be a repeat infringer.

INDEMNIFICATION

Your Indemnification.

You will defend, indemnify and hold Timby, its Affiliates, contractors, employees, agents, third party suppliers, licensors, and partners harmless against any claim, suit, proceeding, losses, damages, liabilities, including legal fees and expenses arising out of or related to (a) Customer Data or your violation of any third party intellectual property right; (b) your breach of these Terms (including any Service-Specific Terms); (c) your (including your Authorized User’s) use or misuse of the Services or Free Services; and/or (d) your violation of any applicable law or regulation. Timby reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Timby, and you agree to cooperate with Timby in defense of these claims. Timby will use reasonable efforts to notify you of any such claim upon becoming aware of it.

LIMITATION OF LIABILITY

Exclusion of Damages.

Neither party nor its respective Affiliates will be liable for any loss of profits, revenues, goodwill, anticipated savings, or use, costs of substitute goods or services, or business interruption, or work stoppage, or any indirect, special, incidental, exemplary, punitive, or consequential damages, however caused, and based on any theory of liability, whether for breach of contract, breach of warranty, tort (including negligence), product liability, or otherwise, even if such party is advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.

Limitation of Liability and Remedies.

As your sole remedy, if Timby has materially breached or terminated this Agreement, you may Terminate this Agreement and all Orders and receive a refund of the prorated portion of prepaid Fees for unused Services based on the date of termination. The existence of more than one claim will not expand this limit. Nothing in these Terms excludes or limits any liability that cannot be excluded or limited under applicable law.

TERM AND TERMINATION

Term.

This Agreement will begin on the Effective Date and continue until terminated as permitted herein (the “Term”). If there are no active Orders, these Terms may be terminated by either Party upon five (5) days’ prior notice.

Suspension.

In the event of your or an Authorized User’s breach of these Terms, including without limitation for your non-payment of Fees, Timby may, in its reasonable discretion, suspend your or an Authorized User’s access to or use of the Services. Timby will use good-faith, reasonable efforts, unless the circumstances dictate otherwise, to reasonably notify you or an Authorized User before taking the foregoing actions.

Termination.

Termination for Cause:

You may terminate these Terms and/or any Order upon notice if Timby is in material breach of these Terms, where such material breach is not cured (to the extent capable of being cured) within thirty (30) days after receipt of notice from you, or with immediate effect where such material breach cannot be cured. This Agreement may be terminated by you with immediate effect if Timby becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, and such petition or proceeding is not dismissed within forty-five (45) days.

Termination without Cause:

You may terminate Free Services immediately without cause. Timby may terminate this Agreement without cause, for any reason, at any time on notice to you.

4. Effect of Termination.

Upon the termination of these Terms for any reason (a) unless otherwise agreed by the parties in writing, all outstanding Orders and access to the Services, Free Services and/or Beta Services will automatically terminate; (b) you and your Authorized Users will immediately cease access and use of the Services, other than for retrieval purposes provided in (d); (c) all outstanding payment obligations by you will become due and payable immediately; (d) for thirty (30) days following the termination of these Terms Timby will make Customer Data available to you, at your request, via read-only access to the Service, solely for purpose of allowing you to retrieve Customer Data and (e) your sole remedy will be as described above in this Agreement. After thirty (30) days, Timby will have no obligation to maintain or provide any Customer Data, and thereafter may delete or destroy all copies of Customer Data. If Timby is required to retain a copy of Customer Data for legal purposes, such copy remains subject to the confidentiality provisions of these Terms.

Refund or Payment upon Termination.

If you terminate these Terms due to Timby’s material breach, Timby will refund you the prorated portion of prepaid Fees for unused Services; however, if a discount was given for an annual plan, the prorated portion of prepaid fees will be based on the monthly price of the same Services at the time the Order was made. If Timby terminates these Terms due to your material breach, you will pay any unpaid Fees. Termination will not relieve you of your obligation to pay any Fees for the period prior to the effective date of termination.

Surviving Provisions.

The Sections titled “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Representation, Warranties, Exclusive Remedies, Disclaimers,” “Term and Termination,” “Indemnification,” “Limitation of Liability,” and “General Provisions” will survive any termination of these Terms.

GENERAL PROVISIONS

Publicity & Searchability Options.

Timby may identify you as a Timby customer in our promotional materials. You may revoke this grant at any time, in part or in whole, by sending an email to legal@Timby.com.

Export Control.

Each party will comply with all applicable laws and regulations controlling or regulating the export, re-export, or (in-country) transfer of goods, technology, software, or services, or those that impose other trade or financial sanctions against targeted countries, territories, individuals, or entities (“Export Laws”) in connection with providing and using the Services. Without limiting the foregoing, (a) each party represents that it is not listed on any list of entities or individuals who are restricted from receiving U.S. services or items subject to jurisdiction of U.S. Export Controls (including but not limited to the Specially Designated Nationals and Blocked Persons List and the Entity List) nor is it owned or controlled by any such listed entity; (b) you will not, and will ensure that Authorized Users do not, violate any Export Laws, or cause any such violation to occur; and (c) you will not use or cause any person to use the Services to store, retrieve, or transmit technical data controlled under the U.S. International Traffic in Arms Regulations unless authorized to do so in an Order or written addendum.

Anti-Corruption.

Neither party has promised, made, or received any bribe, kickback, or other similar payment or transfer of value from or to any director, officer, employee, agent, or other representative of the other party in connection with these Terms. Reasonable gifts, entertainment, sponsorships, and donations do not violate the above restriction.

U.S. Government Rights.

If you, or any Authorized User, is a branch, agency, or instrumentality of the United States Government, the following provision applies: The Services and Documentation comprise “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and are provided to the Government (a) for acquisition by or on behalf of civilian agencies, consistent with the policy in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies in 48 C.F.R. 227.7202-1 and 22.7202-3. The rights of the U.S. Government to use, commercial computer software, commercial computer software documentation, and technical data furnished in connection with these Terms are solely as provided in these Terms. No additional rights are provided to the Government unless set forth in a separate written addendum.

Contracting Entity, Governing Law & Venue.

The Timby contracting entity is Timby Productions Inc. The law that will apply to a dispute arising out of or relating to these Terms is Montreal Law without reference to conflict of law rules and the Venue will be located in Montreal, Canada.

The provisions of the United Nations Convention of Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Acts will not apply to these Terms in any manner whatsoever.

Dispute Resolution.

The parties will attempt in good faith to promptly resolve any disputes arising out of or relating to these Terms by negotiation between representatives of each party with the authority to resolve such dispute. If the parties are unsuccessful, such dispute will be submitted to final and binding arbitration. Notwithstanding the foregoing, neither party is required to arbitrate claims (a) where all named parties seek monetary relief which, in the aggregate, qualifies as a claim that meets the requirements of an applicable small claims court; or (b) seeking injunctive relief. However, if a small claim is transferred, removed, or appealed to a different court, either party may require that the claim be submitted to final binding arbitration. Any arbitration will take place on an individual basis. The parties waive the right to participate in a class, consolidated, or representative action or arbitration (“class action waiver”). If this class action waiver is deemed unenforceable, the class, consolidated, or representative action will be brought in a court of competent jurisdiction. To increase the efficiency of resolution, if 25 or more similar arbitration demands, presented by or with the assistance of the same law firm(s) or organization(s) are submitted to an arbitration provider against Timby within reasonably close proximity ("Mass Filing"), the parties agree (i) to administer the Mass Filing in batches of no more than 25 demands per batch (if there are less than 25 arbitration demands left over after the above batching, a final batch of the remaining demands) with only one batch filed and adjudicated at a time; (ii) to designate one arbitrator per batch; (iii)to provide for resolution of each batch as a single arbitration with one set of filing and administrative fees per batch; (iv) that no other arbitration demands that are part of the Mass Filing may be filed or adjudicated until the prior batch is adjudicated; (v) that arbitrations fees for a demand in a Mass Filing, including fees owed by Timby and claimants, will only be due after your arbitration demand is included in a batch that is properly filed and adjudicated; and (vi) that this staged batch process will continue until each demand (including yours) is adjudicated or otherwise resolved. Arbitrator selection for each batch will be conducted to the extent possible under the arbitration provider’s rules, and the arbitrator will determine the location of the proceedings. You agree to cooperate in good faith with Timby and the arbitration provider to implement such a batch approach to resolution and fees. An arbitrator appointed by the arbitration provider will resolve any disagreement between the parties as to whether this provision applies or to the batch process. Unless Timby consents in writing, Timby does not agree or consent to class arbitration, private attorney general arbitration, or arbitration involving joint or consolidated claims under any circumstances.

Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by ICDR Canada in accordance with its Canadian Arbitration Rules. Except as required by law, neither party nor its representatives may disclose the existence, content, or results of any arbitration without the other party’s prior written consent.

The arbitrator is not empowered to award damages in excess of compensatory damages, is bound by the damage limitation provisions in this Agreement, and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration. The decision of the arbitrator will be in accordance with these Terms and will be binding upon the parties. Each party hereby waives any right it may otherwise have under the laws of any jurisdiction to any form of appeal. Judgment upon the award rendered may be entered in and enforced by any court of competent jurisdiction having jurisdiction over both parties. This Agreement governs if there is a conflict with the International Arbitration Rules of the International Centre for Dispute Resolution.

Notices.

Notices to you will be delivered via email or overnight delivery at the address associated with the Order. Notices to Timby will be delivered via email to legal@Timby.com. All notices must be in writing and will be effective when received.

Force Majeure.

Neither party will be responsible or liable for any failure or delay in its performance under these Terms (except for payment of Fees) to the extent due to any cause beyond its reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event will use reasonable efforts to mitigate against the effects of such Force Majeure Event.

Assignment.

You will not assign these Terms, in whole or part, or any right or interest herein, whether by operation of law or otherwise, without the Timby’s prior written consent, not to be unreasonably withheld, and any purported assignment will be void. Timby may assign these Terms without consent to an Affiliate, or in connection with a merger, consolidation, or corporate reorganization, sale of all or substantially all of its assets or business, or other change of control transaction. Subject to the foregoing, these Terms will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

Relationship of the Parties.

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

Entire Agreement; Order of Precedence.

These Terms (together with any Orders and linked terms) contains the entire understanding and agreement of the parties concerning the subject matter hereof and supersedes all prior or contemporaneous communications, representations, agreements, and understandings, either oral or written, between the Parties with respect to its subject matter. These Terms may only be amended or waived by a writing signed by both parties; however, Timby may update and modify these Terms as necessary to comply with applicable law and regulations. In the event of any conflict or inconsistency between or among the following documents, the order of precedence will be: (1) the DPA, (2) the Order, (3) these Terms, and (4) any linked terms provided herein. Any amendment will take precedence over the document it amends.

Modifications.

Timby may modify these Terms (including any terms or policies referenced herein) from time to time, with notice to you in accordance with the Notice section or by posting the modified Terms on Timby’s Orders, websites or via the Services. Together with notice, Timby will specify the effective date of the modifications. You can review the most current version of these Terms at any time by visiting Timby.org. The materially revised Terms will become effective on the date set forth in the notice, and all other changes will become effective upon posting of the change. If you (or any Authorized User) accesses or uses the Services after the effective date, that use will constitute your acceptance of any revised terms and conditions. You must accept the modifications to continue using any Free Services. If you object to the modifications, your exclusive remedy is to cease using the Free Services.

Miscellaneous.

If a provision of these Terms is unenforceable or invalid, the provision will be revised so as to best accomplish the objectives of the parties as evidenced by these Terms, and the remainder of these Terms will continue in full force. The English language version of these Terms will be the version used when interpreting or construing these Terms. Any notices in connection with these Terms must be provided in English. Either party’s failure to enforce any right under these Terms will not waive that right. There are no third-party beneficiaries to these Terms, and you acknowledge that Timby will have no obligations or liability whatsoever to any third parties with which you do business.

DEFINITIONS

“Affiliate” means an entity that controls, is controlled by, or is under common control of a party, where “control” means ownership or control, directly or indirectly, of more than fifty percent (50%) of the voting interest of such entity or party (but only for so long as such control exists) or the right to otherwise control the decision making of the subject entity.

“Authorized User” means any individual or agent that accesses or uses the Services, including if they are anonymous, not from your organization or domain and those people using WhatsApp, Viber, or another similar service.

“Customer” means the person or entity that has signed an agreement with Timby that made the instance of the Timby you are using available.

“Customer Data” means any content, data, information, personal data and other materials submitted by you or an Authorized User to the Services. Customer Data excludes Statistical Usage Data, any content from publicly available sources, and any suggestion, enhancement request, recommendation, correction, or other Feedback relating to the operation of the Services.

“Documentation” means the official Timby-provided instructions, user guides, help and training manuals, descriptions of support, and other descriptive product information applicable to the Services, whether in electronic, paper, or equivalent form, as updated from time to time, accessible at Timby.org or other websites designated by Timby.

“Harmful Code” means code, files, scripts, agents, malware, or programs intended to do harm, including but not limited to viruses, worms, time bombs, and Trojan horses.

“Intellectual Property Rights” means all rights, title, and interest in all intellectual property, including patents, copyrights, trade secrets, mask works, trademarks, and other intellectual property rights of any sort throughout the universe.

“Order” means Timby’s applicable online registration pages, order pages, flows, in-product screens or other Timby approved ordering document or process describing the products and services you are ordering from Timby, and their permitted scope. Orders may identify the Services, scope, quantity, use limits, charges, and other information relevant to a specific transaction between you and Timby. Orders may also include Free Services.

“Statistical Usage Data” means usage information or data related to the access or use of the Services, Free Services. Examples of Statistical Usage Data include information or data on user visits, user activity, project activity, and numbers and types of clicks or impressions, as well as statistical, functional, behavioral, or other information or data based on or derived from such access or use.

“Services” means the Timby products including applications, mobile, software, websites or other properties owned by Timby, and all associated Updates, offered under an Order governed by or subject to these Terms.

“Subscription Term” means your permitted subscription period (or specific project or transaction, as applicable) for a Service, as described in the Order, including the initial term and any applicable renewal terms.

“Support Services” means Timby’s then-current customer support applicable to the Services, if any, as may be specified or purchased in an Order.

“Updates” means all updates, enhancements, and other modifications that Timby makes generally available, at no additional charge, to its customers of the Services identified in an Order.