Last updated: October 7, 2024
1. Introduction
1.1. By virtue of accessing, navigating, or otherwise interacting with the digital platform located at www.tobybartlett.ca (hereinafter referred to as the “Website”), the individual or entity engaging in such access (hereinafter referred to as the “User”) irrevocably and unconditionally consents to be legally bound by these Terms and Conditions (hereinafter referred to as the “Terms”), which shall henceforth be deemed a legally enforceable contract between said User and Toby Bartlett (hereinafter referred to as the “Company”), without any further action required on the part of either party.
1.2. The User’s use of the Website shall be subject to their full and irrevocable acceptance of these Terms, which constitute the complete and exclusive understanding between the User and the Company with respect to the Website. Any failure to adhere to these Terms, whether willfully or unintentionally, shall result in the User’s forfeiture of any rights, entitlements, or claims associated with the use of the Website. The User expressly waives the right to assert any claim based on a lack of explicit, written agreement.
1.3. The Company, in its sole and unfettered discretion, reserves the exclusive, unconditional, and non-appealable right to amend, modify, revise, or otherwise update these Terms at any time and without prior notice or consent from the User. Such amendments shall be binding and enforceable immediately upon their posting on the Website, regardless of whether the User has actual or constructive knowledge of such changes. The User expressly waives any right to contest the enforceability of any future modifications, including but not limited to arguments predicated on lack of awareness or failure to review the updated Terms.
2. User Submissions
2.1. The User expressly acknowledges and agrees that any ideas, suggestions, feedback, improvements, recommendations, or other submissions (collectively, “Submissions”) provided to the Company in connection with the User’s use of the Website, whether solicited or unsolicited, shall be deemed the exclusive property of the Company.
2.2. The User hereby irrevocably assigns, transfers, and conveys to the Company all rights, title, and interest in such Submissions, including, but not limited to, any and all intellectual property rights, without any obligation to provide compensation or attribution to the User.
2.3. The Company shall have the unrestricted right to use, disclose, reproduce, license, distribute, and otherwise exploit the Submissions for any purpose, whether commercial or otherwise, without any liability or obligation to the User.
2.4. The User hereby waives any and all moral rights to the Submissions and agrees to indemnify and hold the Company harmless from any third-party claims relating to the use of such Submissions.
3. Prohibited Activities
3.1. Users are strictly prohibited from engaging in the following activities while accessing or using the Website:
3.1.1. Systematically retrieve data or other content from the Website to create or compile, directly or indirectly, a collection, compilation, database, or directory without written permission from the Company.
3.1.2. Trick, defraud, or mislead the Company and other users, especially in any attempt to learn sensitive account information such as user passwords.
3.1.3. Circumvent, disable, or otherwise interfere with security-related features of the Website, including features that prevent or restrict the use or copying of any content or enforce limitations on the use of the Website and/or the content contained therein.
3.1.4. Disparage, tarnish, or otherwise harm, in our opinion, the Company and/or the Website.
3.1.5. Use any information obtained from the Website in order to harass, abuse, or harm another person.
3.1.6. Make improper use of our support services or submit false reports of abuse or misconduct.
3.1.7. Use the Website in a manner inconsistent with any applicable laws or regulations.
3.1.8. Engage in unauthorized framing of or linking to the Website.
3.1.9. Upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Website or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Website.
3.1.10. Engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools.
3.1.11. Delete the copyright or other proprietary rights notice from any content.
3.1.12. Attempt to impersonate another user or person or use the username of another user.
3.1.13. Upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”).
3.1.14. Interfere with, disrupt, or create an undue burden on the Website or the networks or services connected to the Website.
3.1.15. Harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Website to you.
3.1.16. Attempt to bypass any measures of the Website designed to prevent or restrict access to the Website, or any portion of the Website.
3.1.17. Copy or adapt the Website’s software, including but not limited to Flash, PHP, HTML, JavaScript, or other code.
3.1.18. Except as permitted by applicable law, decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Website.
3.1.19. Except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Website, or use or launch any unauthorized script or other software.
3.1.20. Make any unauthorized use of the Website, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses.
3.1.21. Use the Website as part of any effort to compete with the Company or otherwise use the Website and/or the content for any revenue-generating endeavor or commercial enterprise.
3.1.22. Sell or otherwise transfer your profile.
4. Electronic Signatures
4.1. The User agrees that electronic signatures, contracts, orders, and other records, and electronic delivery of notices, policies, and records of transactions, are legally binding and satisfy any legal requirement that such communication be in writing.
4.2. The User hereby waives any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means.
5. Arbitration
5.1. Any and all disputes, claims, controversies, or causes of action, whether in law or equity, arising out of or relating to these Terms, the User’s access to or use of the Website, or any services provided by the Company (hereinafter referred to as “Disputes”) shall be exclusively resolved through final, binding, and confidential arbitration conducted in accordance with the rules and procedures determined by the Company. Such arbitration shall be the User’s sole and exclusive remedy for any Dispute, and the User expressly waives any and all rights to pursue litigation in any court of law or equity, including any entitlement to trial by jury.
5.2. The User acknowledges and agrees that any arbitration must be initiated within one (1) year of the occurrence of the event giving rise to the Dispute, otherwise such Dispute shall be permanently barred, and the User’s right to assert any such claim shall be forfeited. The Company shall not be liable for any claims initiated after the expiration of this one-year period.
5.3. The Company reserves the exclusive right, in its sole and unfettered discretion, to petition a court of competent jurisdiction for the purpose of confirming, modifying, or vacating any arbitration award rendered pursuant to this Section, and the User waives any right to contest such petition.
5.4. By accepting these Terms, the User expressly waives any right to participate in, initiate, or join any class action, collective proceeding, or representative action of any kind. All arbitration proceedings shall be conducted on an individual basis, and claims of multiple users may not be consolidated under any circumstances. The User further waives any right to claim or recover punitive, exemplary, or consequential damages in any arbitration proceeding.
5.5. The arbitration shall be conducted by a single arbitrator selected exclusively by the Company. The arbitration shall be conducted in a venue chosen by the Company, and the User shall be solely responsible for bearing their own costs, expenses, and attorneys’ fees associated with the arbitration. The Company shall have no obligation to reimburse or otherwise compensate the User for any such expenses. The arbitrator shall have no authority to award any relief not specifically authorized under these Terms.
6. Refund and Cancellation Policy
6.1. Unless explicitly provided otherwise by the Company in a separate written agreement, all payments, fees, and charges incurred by the User through the use of the Website or any services offered by the Company are final, non-refundable, and non-cancelable, without exception.
6.2. The User acknowledges and agrees that the Company shall have no obligation to provide refunds, credits, or any form of compensation in the event of the User’s dissatisfaction, service interruptions, or cancellations, except as may be required by applicable law.
6.3. The Company reserves the absolute right, in its sole discretion, to review and approve refund requests in extraordinary circumstances, and any such refunds, if granted, may be subject to processing fees, deductions, or other terms and conditions as determined by the Company at its sole discretion.
6.4. Any requests for refunds or cancellations must be submitted in writing to the Company within the period specified by the Company’s refund policy, if applicable.
7. Data Retention
7.1. The Company retains full discretion over the retention of User Data, including but not limited to Personal Data, Submissions, and any other information provided by the User. User Data may be retained indefinitely, even after the User has ceased using the Website, and may be processed for purposes beyond those originally disclosed at the time of collection.
7.2. The User acknowledges that data retention may include information collected through direct submissions, telephonic communications, video communications, and any automated data collection technologies.
7.3. The Company may also anonymize or pseudonymize User Data at its discretion, but reserves the right to de-anonymize or re-identify data as necessary for operational, business, or legal purposes.
8. Data Sharing
8.1. The Company reserves the right to share User Data with its affiliates, subsidiaries, parent companies, and other corporate entities directly or indirectly associated with the Company.
8.2. User Data may be shared with third-party service providers, advertisers, or partners to facilitate the provision of services, perform analytics, or optimize advertising strategies.
8.3. The User acknowledges and agrees that the Company may also share User Data with law enforcement or regulatory agencies if required by applicable law or to protect the Company’s rights.
8.4. The Company may engage in commercial transactions involving User Data, including the sale, licensing, or transfer of anonymized, pseudonymized, or identifiable data to third parties for research, marketing, or business purposes.
9. Data Anonymization and Pseudonymization
9.1. The Company reserves the right to anonymize or pseudonymize User Data at its sole discretion. This may involve removing personally identifiable information while retaining essential characteristics for analytical, commercial, or research purposes.
9.2. The Company does not guarantee that anonymization will be effective in all instances, and the User acknowledges that residual risks may remain regarding the re-identifiability of anonymized data.
9.3. The Company may de-anonymize or re-identify previously anonymized data if it deems necessary for business purposes, compliance with legal obligations, or service enhancements.
10. Biometric Data
10.1. The Company may collect biometric data, including facial recognition, fingerprints, and other identifiers, in accordance with applicable law.
10.2. The collection and use of such biometric data may be carried out through automated systems and may be shared with third-party entities or law enforcement agencies as deemed necessary by the Company.
11. AI and Automated Decision-Making
11.1. The Company may use AI-powered systems for customer support, automated decision-making, or behavioral analysis. Such systems may collect, process, and analyze User Data to enhance user experiences, determine service eligibility, or optimize advertising strategies.
11.2. The User consents to the use of AI and automated systems to make decisions that may impact them, including those related to credit scoring, risk assessments, or fraud detection.
11.3. The Company reserves the right to profile users based on behavioral data, transaction history, or engagement with the Website for business, marketing, or security purposes.
12. User Opt-Out Options
12.1. The User acknowledges that they have no right to opt out of data collection practices employed by the Company.
12.2. Any attempts to disable or circumvent data collection mechanisms may result in limited functionality or termination of the User’s access to the Website.
13. Data Security
13.1. While the Company employs industry-standard encryption technologies, the User acknowledges that no system is completely secure. The Company disclaims any liability for unauthorized access, breaches, or security incidents.
13.2. In the event of a data breach, the Company may notify affected Users within a reasonable timeframe, subject to ongoing investigations or external factors.
13.3. The User agrees that their use of the Website is at their own risk and that the Company shall not be liable for any damages or losses arising from data security incidents.
14. Indemnification
14.1. The User hereby agrees to fully indemnify, defend, and hold harmless the Company, its affiliates, officers, directors, employees, agents, licensors, contractors, service providers, and any other associated entities (collectively, the “Indemnified Parties”) from and against any and all claims, damages, liabilities, judgments, penalties, fines, costs, and expenses, including without limitation, reasonable attorneys’ fees, court costs, and any other costs incurred by the Indemnified Parties, arising out of or relating to:
14.1.1. The User’s access to or use of the Website, including but not limited to any claims or actions based on personal injury, property damage, loss of data, or any other tortious acts or omissions attributable to the User;
14.1.2. The User’s breach or violation of these Terms, including any failure to comply with the representations, warranties, and covenants made by the User herein;
14.1.3. The User’s infringement, misappropriation, or violation of any intellectual property or proprietary rights of the Company, any other user, or any third party;
14.1.4. The User’s violation of any applicable laws, regulations, rules, statutes, or ordinances, whether local, state, national, or international, in connection with their use of the Website; and
14.1.5. Any actions or claims arising from the User’s misconduct, fraud, misrepresentation, or negligence in connection with the Website.
14.2. The Company reserves the right, at its sole and absolute discretion and at the User’s sole expense, to assume the exclusive defense and control of any matter subject to indemnification by the User. The User agrees to fully cooperate with the Company in asserting any available defenses, and the User shall not, under any circumstances, settle or otherwise resolve any claim, lawsuit, or legal proceeding without the prior express written consent of the Company, which may be granted or withheld at the Company’s sole and absolute discretion.
14.3. The User acknowledges that their indemnification obligations herein shall survive the termination or expiration of these Terms and shall continue to apply indefinitely with respect to any claims, actions, or liabilities arising from events or actions occurring prior to such termination or expiration.
15. Limitation of Liability
15.1. To the fullest extent permitted by applicable law, the Company, its affiliates, officers, directors, employees, agents, contractors, licensors, and suppliers (collectively, the “Company Parties”) shall not be liable for any direct, indirect, incidental, consequential, punitive, exemplary, or special damages of any kind, whether arising in contract, tort, equity, statute, or otherwise, including but not limited to loss of profits, revenue, business, goodwill, data, or any other tangible or intangible losses, arising out of or in connection with:
15.1.1. The User’s access to or use of, or inability to access or use, the Website or any services provided by the Company;
15.1.2. Any errors, omissions, inaccuracies, delays, or interruptions in the content, information, materials, or services provided on or through the Website, whether caused by the Company, its affiliates, or any third parties;
15.1.3. Unauthorized access to, or alteration, theft, or destruction of, any User data, transmissions, or communications;
15.1.4. Any conduct or actions by third parties, including third-party websites, service providers, or partners linked to or accessible from the Website; and
15.1.5. Any reliance by the User on any advice, information, or representations made by the Company or its representatives, whether such reliance was reasonable or not.
15.2. The Company Parties shall not, under any circumstances, be held liable for any indirect, consequential, incidental, punitive, or special damages, even if the User has been advised of the possibility of such damages, and regardless of whether such damages were foreseeable or unforeseeable.
15.3. In the event that any exclusion or limitation of liability provided herein is deemed unenforceable by a court of competent jurisdiction, the total aggregate liability of the Company Parties, if any, for all claims arising out of or related to these Terms, the Website, or the services provided therein, shall not exceed the greater of the total amount of fees paid by the User to the Company for access to the Website during the twelve (12) months preceding the event giving rise to the claim, or one hundred US dollars (USD $100).
15.4. The limitations and exclusions of liability set forth herein shall apply to the maximum extent permitted by law, and shall survive the termination or expiration of these Terms.
16. Termination of Use
16.1. The Company reserves the unilateral and absolute right, at its sole discretion and without prior notice, to suspend, restrict, or terminate the User’s access to the Website at any time, for any reason, including, but not limited to, violations of these Terms, illegal activity, or any conduct that may disrupt or harm the Website or the Company’s reputation.
16.2. Upon termination, the User agrees to immediately cease all access to and use of the Website, and to destroy any materials, content, or data obtained from the Website.
16.3. The User acknowledges and agrees that the Company shall not be liable for any damages, losses, or claims arising from the suspension or termination of access to the Website.
16.4. All provisions of these Terms that, by their nature, should survive termination, including but not limited to intellectual property rights, confidentiality obligations, indemnification, and limitations of liability, shall remain in full force and effect following termination.
17. Compliance with Export Regulations
17.1. The User agrees to comply with all applicable local, national, and international export laws, rules, and regulations governing the transmission of technical data or software, including, but not limited to, the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) of the United States.
17.2. The User further agrees that they will not, directly or indirectly, export, re-export, or transfer any content or software accessed or obtained through the Website to any destination or entity that is prohibited under applicable export control laws without obtaining the necessary licenses, approvals, or authorizations from the relevant regulatory authorities.
17.3. The User acknowledges and accepts full responsibility for compliance with any export control regulations and agrees to indemnify and hold the Company harmless for any violations or liabilities arising from their failure to comply with such laws.
18. Force Majeure
18.1. The Company shall not be held liable for any failure to perform, or delay in the performance of, any of its obligations under these Terms, where such failure or delay arises from or is attributable to any events or circumstances beyond the Company’s reasonable control, including, but not limited to, acts of God, war, civil unrest, terrorist activities, government actions, strikes, lockouts, pandemics, natural disasters, power outages, telecommunications failures, or any other force majeure events.
18.2. In the event of a Force Majeure Event, the obligations of the Company under these Terms shall be suspended for the duration of the Force Majeure Event, and the Company shall not be held liable for any damages or losses resulting from such suspension or delay in performance.
18.3. If a Force Majeure Event continues for a period of thirty (30) days or more, either party may terminate these Terms without incurring any liability upon providing written notice to the other party.
19. Governing Law and Jurisdiction
19.1. These Terms, and any dispute, claim, or controversy arising out of or relating to their interpretation, enforcement, or alleged breach, shall be governed by and construed in accordance with the laws of the jurisdiction in which the Company is headquartered, without regard to any conflict of laws principles.
19.2. The User expressly agrees that any and all legal actions, suits, or proceedings arising out of or related to these Terms, the Website, or the services provided therein shall be brought exclusively in the courts of competent jurisdiction within said jurisdiction, and the User hereby irrevocably submits to the personal jurisdiction and venue of such courts.
19.3. The User further agrees to waive any objections to the venue, including, but not limited to, claims of inconvenient forum, and consents to the service of process by any means reasonably calculated to provide actual notice.
20. Miscellaneous Provisions
20.1. The section headings used in these Terms are for convenience only and shall have no legal or contractual effect.
20.2. These Terms are personal to the User, and the User may not assign, transfer, or delegate any of their rights or obligations under these Terms without the prior express written consent of the Company. Any attempted assignment, transfer, or delegation in violation of this provision shall be null and void.
20.3. These Terms shall be binding upon and shall inure to the benefit of the Company, its successors, assigns, and legal representatives, as well as the User’s permitted successors and assigns.
21. Contact Information for Legal Inquiries
21.1. Any and all legal notices, inquiries, or communications regarding these Terms and Conditions shall be directed exclusively to the Company via electronic mail at legal@tobybartlett.ca. The User acknowledges and agrees that this email address is the sole and exclusive point of contact for any legal matters relating to these Terms.
21.2. Any notices or communications sent through other means, including but not limited to physical mail, telephone, or non-designated email addresses, shall not be deemed received or acknowledged by the Company.
21.3. The Company expressly reserves the right, at its sole discretion, to review, acknowledge, or respond to any communications received at the designated email address. The Company makes no express or implied representations, warranties, or guarantees concerning the timeliness, efficacy, or likelihood of any response to legal inquiries submitted.
21.4. The User further acknowledges that the Company is under no obligation to provide detailed explanations, disclosures, or information regarding its legal practices, policies, or decisions in response to such communications. Any information shared in response to legal inquiries shall be provided at the sole discretion of the Company and shall not be construed as a waiver or modification of any rights or provisions outlined in these Terms and Conditions.