Terms of Use and End User License Agreement

TIMBY Productions Inc. (“TIMBY” or the “Company”) respects your journalistic, activist and creative endeavours. This page explains the terms by which you may use our online and/or mobile services, web site, and software provided on or in connection with the service (collectively the “Service”). This Agreement applies to all visitors, users, and others who access the Service (“Users”). The following terms are designed to protect the Service, while preserving your underlying rights. Accordingly, this is a “living document,” and may change from time to time. By using the software, service, or any applications (including the TIMBY website and mobile applications), you agree to be bound by the terms of these Terms of Use and End User License Agreement (the “Agreement”) and to the collection and use of your information as set forth in the TIMBY Privacy Policy available at timby.org/privacy. We welcome your comments, and you are welcome to direct any feedback regarding these terms to [email protected] Please put “EULA” in the subject heading.

PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION OF DISPUTES PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

Eligibility: You must be at least 16 years old to use the Service. By using the TIMBY application or otherwise accessing the technology, you represent that you are legally allowed to do so, that you have provided honest and accurate registration information, that you will only have one user account, and that you will keep your user information up-to-date.

Identity & Security: You are responsible for all activity conducted through your user account, and agree not to provide access to any other person. You agree to safeguard your access information; and take reasonable action to prevent access to the site by unauthorized individuals. In the event we believe your account has been compromised, we may temporarily or permanently disable it and/or restrict your future access. If you have questions or require special accommodation, please contact [email protected] Please put “Identity & Security” in the subject heading.

Community Ethic: TIMBY seeks to provide a “safe space” for everyone to share content. You will not use the technology to stalk, bully, defame, abuse, harass, abuse, threaten, intimidate or impersonate others; nor use the technology for any illegal purpose; nor to promote any such behavior. Likewise, you may not post obscene, libelous, hateful, racist, defamatory or otherwise objectionable content. You may not take any action to intentionally interfere with other users’ enjoyment of the technology, nor seek to circumvent it.

Limits on Commercial Use: You will not use the technology nor post any content primarily advertising or soliciting commercial services, however you may create stories showcasing your business or services provided they contain original content and narrative. You may not use the technology to send unsolicited commercial messages (“spam”). You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the TIMBY servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.

We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement. You are solely responsible for your interactions with other TIMBY Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. TIMBY shall have no liability for your interactions with other Users, or for any User’s action or inaction.

Content: In the interest of protecting Users, we may remove or edit any content or user account which in our sole judgment interferes with the goals of the website, including references in the technology to syndicated content located elsewhere. You are solely responsible for any and all material that you create, submit, post, or display using the technology, including all words, music, images, logos, and names appearing in such material. Some areas of the Service allow Users to post content such as profile information, comments, questions, and other content or information (any such materials a User submits, posts, displays, or otherwise makes available on the Service “User Content”). We claim no ownership rights over User Content created by you. The User Content you create remains yours; however, by sharing User Content through the Service, you agree to allow others to view, edit, and/or share your User Content in accordance with your settings and this Agreement. TIMBY has the right (but not the obligation) in its sole discretion to remove any User Content that is shared via the Service.

You agree not to post or transmit User Content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; (ix) violates any school or other applicable policy, including those related to cheating or ethics; (x) interferes with other Users of the Service including, without limitation, disrupting the normal flow of dialogue in an interactive area of the Service and deleting or revising any content posted by another person or entity; (xi) except where expressly permitted, post or transmit charity requests, petitions for signatures, franchise arrangements, distributorship arrangements, sales representative agency arrangements or other business opportunities (including offers of employment or contracting arrangements), club memberships, chain letters or letters relating to pyramid schemes, any advertising or promotional materials or any other solicitation of other users to use goods or services except in those areas (e.g., a classified bulletin board) that are designated for such purpose. You agree that any employment or other relationship you form or attempt to form with an employer, employee, or contractor whom you contact through areas of the Service that may be designated for that purpose is between you and that employer, employee, or contractor alone, and not with us. You may not copy or use personal identifying or business contact information about other Users without their permission. You agree that any User Content that you post does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights (as defined below) or rights of privacy. TIMBY reserves the right, but is not obligated, to reject and/or remove any User Content that TIMBY believes, in its sole discretion, violates these provisions.

For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.

In connection with your User Content, you affirm, represent and warrant the following:

A. You have the consent of each and every identifiable natural person in the User Content to use such person’s name or likeness in the manner contemplated by the Service and this Agreement, and each such person has released you from any liability that may arise in relation to such use.

B. Your User Content and TIMBY’s use thereof as contemplated by this Agreement and the Service will not violate any law or infringe any rights of any third party, including but not limited to any Intellectual Property Rights and privacy rights.
TIMBY takes no responsibility and assumes no liability for any User Content that you or any other User or third party posts or sends over the Service. You shall be solely responsible for your User Content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User Content. You understand and agree that you may be exposed to User Content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that TIMBY shall not be liable for any damages you allege to incur as a result of User Content.

Your Copyright & License: By posting any User Content on the Service, you expressly grant, and you represent and warrant that you have all rights necessary to grant, to Company a royalty-free, sublicensable, transferable, perpetual, irrevocable, non-exclusive, worldwide license to use, reproduce, modify, publish, list information regarding, edit, translate, distribute, syndicate, publicly perform, publicly display, and make derivative works of all such User Content and your name, voice, and/or likeness as contained in your User Content, in whole or in part, and in any form, media or technology, whether now known or hereafter developed, for use in connection with the Service. You acknowledge that TIMBY Productions Inc. may insert advertising in conjunction with User Content made publicly available by Users without notice. Notwithstanding the foregoing, the Service allows Users to set User Content to “private” or “public”. You expressly acknowledge and agree that, once a User sets User Content to “public”, such User Content shall be accessible by anyone who has access to the Service, including TIMBY. You further agree that, in the event you require technical support or other support from TIMBY, you may be required to grant access to TIMBY to “private” User Content, solely for the purposes of reviewing and correcting such technical issue. The only other instance in which “private” User Content shall be divulged is if TIMBY is compelled under law to review and disclose such “private” User Content.

Our Copyright: Copyright in the technology is reserved 2016 (or the current year, if later) by TIMBY Productions, Inc. All worldwide rights are reserved. Portions of the technology may be licensed under the GPLv3, which use and policy is described at http://www.gnu.org/licenses/gpl.html. To the extent such technology is governed by the GPLv3, those provisions shall control and are incorporated herein by reference.

Disclaimers: The technology allows you to create, modify, and edit original content. You will use the technology only to create, produce, or edit works when you have the legal right to do so. You are solely responsible for any issues of copyright, publicity, privacy, or personality which may arise in your content. By using the technology, you warrant that any content submitted does not violate the rights of any third person and agree to pay for all royalties, fees, damages, and associated attorney’s fees related to any such claim. TIMBY and TIMBY Productions Inc. do not endorse the content created, shared, or displayed using the technology, and have no obligation to screen, monitor, edit or delete any content.

DMCA: If you believe your work has been infringed on the site, please remit the following information: a) letter demonstrating your authority to act; b) description of infringing material; c) description of where material can be found; d) your complete contact information; e) a statement that you have a good faith belief the use is impermissible and f) a statement that the above information is accurate and you are submitting it on behalf of the copyright holder. Such documents may be sent to [email protected] with “DCMA” in the subject line.

Marks: You acknowledge the term “TIMBY” is a trade and service mark of TIMBY Productions Inc. Your use of the Service grants you no right whatsoever to use it in any context which may create confusion as to the source of the services provided; on this or any other website; or in any other context.

No Warranty: This service is provided as-is, with all faults, and without any warranty. By utilizing the technology you indemnify and hold harmless TIMBY Productions Inc. for any loss of data or other damage and agree that you will maintain your own backup versions of any and all submitted content. While we will make our best efforts to ensure quality service, there may be times when the technology is unavailable.

Third-Party Indemnity: You acknowledge that TIMBY may not be able to control the actions and/or speech of other users on this site and hereby indemnify, hold harmless and waive any claim or cause of action against us arising out of third-party communications.

Closing Your Account: You may cancel your TIMBY account at any time. To cancel your account, email [email protected] Include your name, the email address you registered with, and a phone number where you can be reached. Your account will be canceled within 48 hours of your cancelation request.

No Professional Advice: If the Service provides professional information (e.g. medical or legal), such information is for informational purposes only and should not be construed as professional advice. No action should be taken based upon any information contained in the Service. You should seek independent professional advice from a person who is licensed and/or qualified in the applicable area.

Third Party Links: The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by TIMBY. TIMBY does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website from the Service, you do so at your own risk, and you understand that this Agreement and TIMBY’s Privacy Policy do not apply to your use of such sites. You expressly relieve TIMBY from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that TIMBY shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.

Limitation of Liability: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL TIMBY PRODUCTIONS INC., ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.

THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

The Service is controlled and operated from facilities in Canada. TIMBY makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable Canadian and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the Canada, or are a foreign person or entity blocked or denied by the Canadian government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in Canada.

Time Limit: You agree to waive any dispute not brought within one year from the date of the occurrence at issue.

Severability: In the event any provision of this Agreement shall be held invalid, the same shall not invalidate or otherwise affect in any respect any other term or terms of this Agreement, which term or terms shall remain in full force and effect.

Entire Agreement: This document, including those portions incorporated by reference, constitutes the complete agreement between the parties.

Governing Law: You agree that: (i) the Service shall be deemed solely based in Ontario, Canada; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over TIMBY, either specific or general, in jurisdictions other than Ontario. This Agreement shall be governed by the internal substantive laws of the Province of Ontario, without respect to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and provincial courts located in Ontario for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.

Arbitration: For any dispute with TIMBY, you agree to first contact us at [email protected] and attempt to resolve the dispute with us informally. In the unlikely event that TIMBY has not been able to resolve a dispute it has with you after attempting to do so informally, any dispute, controversy or claim arising out of or relating to this Agreement including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of the arbitration shall be in Toronto, Ontario. There shall be one (1) arbitrator to be mutually approved by the parties. The language of the arbitration shall be English. There will be no appeal from the decision of the Arbitral Tribunal on questions of fact, law, or mixed fact and law. Should any party hereto institute any action or proceeding at law or in equity, or in connection with an arbitration, related to our engagement herein, including an action for declaratory relief, or for damages by reason of any alleged breach related to our engagement herein, or otherwise related to our engagement herein, or any provision thereof, the prevailing party shall be entitled to recover its outside attorneys’ fees and costs, as well as all other costs that it incurred in connection with the action, in addition to any other relief to which the prevailing party may be entitled, from the losing party in such action or proceeding or in connection with the collection of any judgment thereby obtained. The “prevailing party” means the party determined by the arbitrator(s) to have most nearly prevailed, even if such party did not prevail in all matters, not necessarily the one in whose favor a judgment or award is rendered.