Terms

Welcome

TOD provides you with a service to make home repair and other projects easy and convenient. This Agreement explains the terms by which you may use TOD’s website and/or mobile services, and any software provided or in connection with TOD and/or todpros.com, including any services provided by TOD (“TOD,” “we” or “us”), as well as our handyman or trades professional services (the “Site”). By accessing or using this Site and/or using our TOD Services (see Definitions below), you signify that you have read, understood and agree to be bound by the terms of this Use Agreement (“Agreement”) and to the collection, use, and disclosure of your information as set forth in the TOD’s Privacy Policy, regardless of whether or not you are a registered user of our Site. This Agreement applies to any and all visitors, users, and others who access this Site and/or use the TOD Services (“User,” “you” or “your”). If you do not agree to the terms (including any amendments thereto) of this Use Agreement or Privacy Policy (see separate page), you must exit this Site.

PLEASE READ THIS AGREEMENT. THIS AGREEMENT CONTAINS A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES RATHER THAN JURY TRIALS OR CLASS ACTIONS.

DEFINITIONS:
In this Agreement:
A. “Requested Service” means any service order submitted by you or an agent for you. 

  1. “TOD Service(s)” means the trade professional or handyman services provided by or on behalf of TOD as described below.

 

 

 

THE USER

  1. Eligibility

You may use this site only if you can form a binding contract with TOD, and in compliance with all applicable local, state, national, and international laws, rules and regulations. By registering to use this site and TOD Services, you represent and warrant that you are over the age of 18 years and any use by or access to the site or TOD Services by anyone under the age of 18 years is strictly prohibited and in violation of the terms of this Agreement. In addition, the Site and TOD Services are not available to any prior or former Users subsequently removed from this Site by TOD.

  1. TOD Site and Your Account

 

Through your TOD account, you will have access to these services and functionality, which we may amend from time to time. Subject to the terms and conditions of this Agreement, you are here by granted a non-exclusive, limited, non-transferable license to use this Site only for your personal or commercial use and as permitted by the features of the Site. TOD reserves all rights not expressly granted herein in the Site and the TOD Content (as defined below). TOD reserves the right to terminate your license at any time for any reason or no reason.

When creating your account, you must provide complete and accurate information. You are solely responsible for the activity that occurs on your account. We encourage you to use strong passwords with your account –include a combination of upper and lower case letters, numbers and symbols) and you should keep your account password secure. You must notify TOD immediately of any breach of security or unauthorized use of your account. TOD will not be liable for any losses caused by any unauthorized use of your account. You may never use another User’s account without permission.
If you open a TOD account on behalf of a company, organization, or other entity, then:

(a) “you” includes you and that company, organization or other entity, and
(b) you represent and warrant that you have the authority to bind the entity to this Agreement,
(c) you give TOD permission to access and use your information from that service as permitted;
(d) you allow TOD to store your log in credentials for that service; and
(e) you agree to be bound by this Agreement on the entity’s behalf.

You may amend your User Profile and account settings by online or by emailing us at www.todpros.com or emailing us at todpros.com. Please note that by providing TOD with your email address, you consent to TOD’s use of your email address to send Site and Service related notices, including any notices required by law in lieu of U.S. Postal Service communication. If you do not want to receive such email messages, you may opt or change your preferences by emailing TOD at www.todpros.com. By opting out, you will not receive email messages regarding amendments, updates, improvements, or offers.

  1. Site rules

 

You acknowledge and agree not to engage in any of the following prohibited activities: (1) reproducing, copying, distributing, or disclosing any part of the Site in any format or means; (2) using any automated system (i.e., robots, spiders, off-line readers, etc.), to access the Site in a manner that sends more requests messages to the TOD servers then a human can possibly produce in the same period of time by using a conventional on-line web browser; (3) transmitting spam, chain letters, or other unsolicited email; (4) attempting to interfere with, compromise the system integrity or security, or decipher any transmissions to or from servers running the Site; (5) taking any action that imposes, or may impose an unreasonably or disproportionately large load on TOD’s infrastructure; (6) uploading invalid data, viruses, worms, or other software agents through this Site; (7) collecting or harvesting any personally identifiable information(i.e., account names, etc.) from the Site; (8) using the Site for any commercial solicited from and purposes; (9) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (10) interfering with the proper working of the Site; (11) accessing any content on the Site through any technology or unauthorized means; or (12) bypassing the measures TOD may use to prevent or restrict access to the Site, including features that prevent or restrict use or copying of any content or in force limitations on use of the Site or the content therein.

 

THE SERVICE

  1. TOD

Subject to the terms and conditions of this Agreement, including without limitation the payment of all fees under this Agreement, TOD shall, upon request: (1) arrive at the address you designate as the service address (the “Service Address”); (2) perform tasks and repairs; (3) purchase materials as necessary to complete tasks and repairs (4) prepare a project financial total for review; (5) clean work area and submit for payment. The foregoing TOD Services shall be referred to under this Agreement as “TOD Services.”

TOD will not perform services to an address that is not in an active service Zone listed on our current service Zone list (a “Service Zone”) unless TOD has agreed to do so in writing. 

TOD will make a good-faith effort to adhere to the scheduled service times; however, times given for service are approximate times. TOD may cancel, postpone, or otherwise reschedule any service for any reason or no reason, including but not limited to, TOD believes, in its sole discretion, that the service may endanger a TOD employee, agent, contractor or other individual due to issues such as severe weather conditions or TOD having limited access to the service Address.

TOD may use subcontractors and/or third parties to help perform any TOD obligations or services under this Agreement (or any other agreements that incorporate this Agreement), including for pick-ups, deliveries, and other logistics with respect to TOD’s Services.

You acknowledge and agree that TOD will not be responsible for previous work, site conditions, material availability, inability to service. 

  1. Job Fees for Services and Additional Services; Excluded Services
  2. Job Fee 

 Customers shall be charged pursuant to the rates quoted via the TOD Platform at the time the Service is scheduled which shall be based on the current market stated booking fees and rates as per the TOD website. If applicable, the Job Fee shall include a variable fee for additional mileage traveled beyond a minimum set distance to complete delivery, courier, and moving-related Services. To determine such mileage fee, we use the Google Maps service to pre-calculate the distance between the Customer-provided addresses for pick-up and delivery, which may differ from the actual mileage driven by a Provider to complete a Service. TOD has the authority and reserves the right to determine and modify pricing by posting revised applicable Job Fees to your market though the App or by applying advertised sales or promotional discounts to the posted Job Fees, which will be disclosed to you prior to your submission as a Customer or acceptance as a Provider of a Service request. You are responsible for reviewing the applicable Job Fee prior to the submission or acceptance of a Service. As a Customer, you shall be responsible for all incurred Job Fees charged under your User account regardless of your awareness of such Job Fees or the amounts thereof. 

  1. Additional Services

 After a Service is scheduled, the Users may agree to the performance of one or more additional Services before a TOD pro departs the Customer’s location. Users may only schedule and accept an Additional Service if (i) the performance and completion thereof does not conflict with a TOD pro’s existing appointments; (ii) it is not an Excluded Service (as defined below); and (iii) the Service does not violate these Terms of Use. The Job Fee for Additional Services shall be the rate agreed to by the Users as confirmed by both parties through the TOD Platform. Additional Services that are not confirmed and paid for through the TOD Platform will not be covered by the TOD Guarantee and violate the terms of this Agreement, which may result in the suspension or deactivation of the User’s account(s).

  1. Payments

 Users of the TOD Platform contract for the Services directly with TOD. The TOD Platform facilitates these contracts by supplying a medium through which Customers can connect with trade professionals, schedule the Services, and make payments for the Services directly from the Customer to TOD. Notwithstanding the foregoing, Customers may not circumvent the TOD Platform by using the TOD Platform to connect with trade professionals and then engage those trade professionals for Services outside of the TOD Platform.

  1. Payment Processing Service 

 To facilitate payment for the Services, each User is required to register a credit, debit or prepaid card. You authorize TOD and the payment processing service retained by us (currently, Stripe) to facilitate the transaction of the Services and the payment remittance of all applicable charges and fees between you and other Users and between you and us. All payments transacted through Stripe shall be subject to the Stripe Connected Account Agreement, located at https://stripe.com/connect/account-terms, which includes the Stripe Terms of Service, located at https://stripe.com/us/terms (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement, you agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of TOD facilitating payment processing services through Stripe, you agree to provide TOD accurate and complete information about you and, if applicable, your business, and you authorize TOD to share it and transaction information related to your use of the payment processing services provided by Stripe.

  1. Customer Payments  

As a Customer, we will charge your credit, debit or prepaid card according to the amount of all Services and Additional Services, if any, you scheduled through the TOD Platform, which amount will include: (i) the Booking Fee applicable to the Services or Additional Services that were provided to you; (ii) any out of pocket expenses that were published in connection with the Services (e.g. disposal fees); (iii) any out of pocket expenses for materials, if any, agreed to by and between you and your trade professional through the TOD Platform; (iv) any tip or gratuity you elect to give to your trade professional; and (v) a platform fee (a/k/a Service Fee) of up to nine percent (9%), which is used, in part, to offset the expense of providing you the TOD Guarantee. You hereby authorize us to charge the payment method on file in your account for such amounts upon the earlier of your verification of the completion of the scheduled Services or as soon as two (2) hours after a Service is completed, if there is no filed complaint with respect to such Service or if such complaint has been otherwise resolved as determined by TOD in its sole discretion. We retain the right, in our sole discretion, to seek authorization of your selected payment method to verify the payment method, ensure that all fees related to your order will be covered, and protect against unauthorized behavior. The authorization is not a charge, however, it may reduce your available credit by the authorization amount until your bank’s next processing cycle. Should the amount of our authorization exceed the total funds on deposit in your account, you may be subject to overdraft of NSF charges by the bank issuing your debit or prepaid card. We cannot be held responsible for these charges and are unable to assist you in recovering them from your issuing bank.

 

Except for the TOD Guarantee, no refunds or credits will be provided once the Customer’s selected payment method has been charged or Voucher has been used. While we will use commercially reasonable efforts to protect all payment method information and all other personal information, we expressly disclaim any liability for any damage that may result should any information be released to any third parties, and you agree to hold us harmless for any damages that may result therefrom. The Job Fee quoted is exclusive of taxes. TOD is not responsible or liable for any taxes incurred in connection with the Service excluding taxes on TOD’s income. Customers will be liable for all transaction taxes on the Service(s) provided (other than taxes based on TOD’s income).

  1. Promotions

TOD, at its sole discretion, may make available promotions with different features to any of our Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with TOD. You are not required to participate in promotions. BY PARTICIPATING IN ANY PROMOTIONAL ACTIVITY VIA THE TOD PLATFORM, YOU ARE AGREEING TO ANY ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO THE PROMOTIONAL ACTIVITY, including the following:

  1. TOD Promo Codes.  From time to time, TOD will distribute unique alphanumeric codes or preloaded credits (“Promo Codes”) that can be redeemed by Users for a set percentage or value off a Service (such percentage and value amount may be changed by TOD without notice prior to redemption), but unless otherwise indicated, the Promo Code does not apply to Service Fees, disposal fees, tips or other fees and charges. Promo Codes are only redeemable for use on the TOD Platform to be applied towards Services and are non-transferable or redeemable for cash value. Promo Codes must be applied prior to the submission of a request for a Service and cannot be applied to previously completed Services. Only one Promo Code can be used per Service, and each unique Promo Code is limited to one (1) per User, per household, per service address; and any balance remaining on the Promo Code will be forfeited, unless otherwise agreed to by TOD in its sole discretion. Promo Codes and other discounts cannot be combined with any other offers or promotions and may be limited in quantity. Promo Codes are subject to expiration and must be used within the amount of time stated by TOD at the time the Promo Code is provided to you, but in no event, later than thirty (30) days from the date thereof; provided, however, TOD reserves the right in its sole discretion to extend the validity of a Promo Code beyond the stated expiration date. TOD further reserves the right to withhold payment or deduct credits or other features or benefits obtained using a Promo Code by a User if TOD determines or believes that the use or redemption of a Promo Code was in error, fraudulent, illegal or in violation of the applicable Promo Code terms or these Terms of Use. Unless preloaded to a User account by TOD in its sole discretion, Users must enter each Promo Code into their account for its appropriate value before a User can use that value on the TOD Platform. TOD owns all rights in and to any Promo Codes whether provided to you or created by you, and you acknowledge and agree that TOD may reclaim, deactivate, invalidate or terminate your Promo Code at any time at its discretion.  

 

  1. Vouchers.  From time to time, TOD may issue voucher codes (“Vouchers”) to charitable organizations or other businesses for use by such organizations’ designated recipients that are Users of the TOD Platform. Vouchers can be used for all Services and fees approved by the issuing organization and in accordance these Terms of Use and TOD’s agreement(s) with the issuing organization.
  2. Payments made by credit card cannot be disputed. If you have a claim or any issue with services provided, you must use the Tod Pros claims process. You can start a claim by contacting customer service during normal business hours or by emailing help@todpros.com . Any credit card payments that are disputed by the customer will be considered theft of services and a criminal complaint will be filed with local authorities and prosecuted as a criminal charge. Any fees or business injury costs as a direct result of any credit card dispute will immediately be charged to the customer’s account. Any open balances from a credit card dispute will immediately be turned to collections and reported to all three major credit reporting agencies. The credit card dispute terms above apply to any and all services provided by Tod Pros.
  3. Cancellations and Termination

 

You may terminate this Agreement at any time by requesting the cancellation of a scheduled service and by paying any outstanding fees due to TOD. We may, without prior notice, change the Site or TOD Services; stop providing the Site or TOD Services or features of the Site or TOD Services, to you or to users generally; or create usage limits for the Site or TOD Services. We may permanently or temporarily terminate or suspend your access to the Site or TOD Services without notice and liability for any reason, or for no reason. Upon termination by you or by TOD, regardless of the reason or no reason, you understand and agree that you will continue to be bound by any outstanding commitments and payments due in accordance with this Agreement.

 

TOD’s cancellation policy for specific Services is as follows:

 

  1. Cancellation by Customer. As a Customer, you may cancel your scheduled Service appointments through the platform at any time, subject to the following:

 

  1. Services Booked 48 Hours in Advance

 

  • If you cancel more than 48 hours before a scheduled Service appointment, there is no cancellation fee beyond the loss of your Booking Fee.
  • If you cancel between 2-48 hours before a scheduled Service appointment, you may be charged a $100.00 cancellation fee.
  • If you cancel less than 2 hours before a Service appointment, you may be charged a cancellation fee equal to the allotted time slot for your project not to exceed $650.00.

 

  1. Services Booked Less 24 Hours in Advance

 

  • For Services that were booked between two to twenty-four (2-24) hours before the scheduled Service appointment, you may be charged a $100 cancellation fee if you cancel less than two (2) hours before a Service appointment.

 

  1. TOD Guarantee

 

Our TOD Guarantee is that the Service you order and pay for will be performed as described in the description of the Service when you ordered it. If you have ordered and paid for a Service but you believe the Service was not performed in accordance with the TOD Guarantee you must report the issue within twenty-four (24) hours of the Service appointment’s completion to our Support Center at info@TOD.com and respond to all follow up questions requested of you from the Support Center, at which point you may be eligible for the TOD Guarantee Remedies. The “TOD Guarantee Remedies” are as follows: if we determine that a Service does not meet the TOD Guarantee we will, in our sole discretion, either refund (in part or in full) the payment you actually made for such Service, or have the applicable Service re-performed. If the Service is re-performed but we determine the re-performance still does not meet the TOD Guarantee, we will refund the payment actually made by the Customer for such Service. The amount of the TOD Guarantee is limited to any payment you made for the Service. The TOD Guarantee does not apply to any other cost, liability, damage, injury, or claim arising from or in connection with the Services. To be clear, the TOD Guarantee does not apply to any payments made for Services not scheduled and paid for through the TOD Platform. THIS SECTION STATES TOD’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES.

 

TOD reserves the right in its sole discretion to eliminate the TOD Guarantee altogether or to modify its terms at any time, effective with or without notice and without any liability to TOD, although TOD will endeavor to post notification of any material changes. 

 

  1.   Communications

 

By becoming a User, you expressly consent and agree to accept and receive electronic and other communications from us, including via email, text message, calls, and push notifications to the telephone number or email address you provided to us, as further described in our Privacy Policy. If you wish to unsubscribe from promotional emails, text messages, or other communications, you may Opt-Out by following the unsubscribe options provided to you in such promotional communications. TOD does not discriminate against Users whom elect to Opt-Out of promotional and other communications. You may Opt-Out of receiving non-promotional communications from us at any time by deactivating your account. You may continue to receive messages for a period of time while we work to deactivate your account, and you may also receive text messages confirming the deactivation of your account. You consent to receive live, autodialed, or pre-recorded calls from us at the telephone number that you have provided to us to: (a) facilitate communications among Users; or (b) otherwise provide our services or enforce these Terms of Use. You are not required to provide your consent to these calls as a condition of purchase on the TOD Platform. Standard telephone minute charges may apply.

 

We may, without further notice or warning and in our discretion, monitor or record telephone conversations that we have with you or anyone acting on your behalf for quality control and training purposes or to protect our rights.  You agree to TOD’s use of a service provider to mask your telephone number with a number provided by TOD when you call or exchange text (SMS) messages with another User. TOD and its service provider reserve the right to access, store, use, and disclose the messages, call transcripts, and data about the calls/messages between and among Users that occur through the TOD Platform for our business purposes, including to provide and improve customer service and the TOD Platform, fraud prevention, and to identify violations of this Agreement. You agree to the use of masked numbers described above as well as TOD’s use and disclosure of the related data for legitimate business purposes.

 

  1. Accessing the TOD Platform and Account Security

 

We reserve the right to withdraw or amend the TOD Platform, and any service we provide on the TOD Platform in our sole discretion without notice. We will not be liable if for any reason that all or any part of the TOD Platform is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the TOD Platform, or the entire TOD Platform, to Users for any reason or no reason.

 

You are responsible for:

 

  • Making all arrangements necessary for you to have access to the TOD Platform.
  • Ensuring that all persons who access the TOD Platform through your account are aware of this Agreement and comply with the terms set forth herein.

 

To access the TOD Platform or some of the resources it offers, you may be asked to provide certain registration details or other information. You may register to use the TOD Platform by using your existing Facebook or Google account and log-in credentials (your “Third-Party Site Password”). It is a condition of your use of the TOD Platform that all the information you provide on the TOD Platform is correct, current and complete. You agree that all information you provide to register with the TOD Platform or otherwise, including but not limited to through the use of any interactive features on the TOD Platform, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

 

If you choose, or are provided with, a User name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the TOD Platform or portions of it using your User name, password or other security information, including Third-Party Site Password(s). You agree to notify us immediately of any suspected unauthorized access to or use of your User name or password or any other breach of security. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

 

We have the right to disable any User name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement. TOD may, from time to time, access your account to make certain changes that you request or remove prohibited information from the Platform.

 

  1. Limited License; Intellectual Property Rights

 

The TOD Platform is licensed, not sold, to you for use only under these Terms of Use. Subject to your complete and ongoing compliance with the terms and conditions of these Terms of Use, TOD hereby grants you a personal, limited, revocable, non-transferable, non-exclusive, non-commercial, non-sublicensable license to: (a) use the App on compatible, authorized devices that you own or control; and (b) access and use the Website and Internet Services-in each case solely for your own use or for the entity on whose behalf you are authorized to act.

 

You may not modify, alter, reproduce, or distribute the TOD Platform in part or entirety. You may not directly rent, lease, lend, sell, redistribute, or sublicense the TOD Platform. You must not decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of any portion of the TOD Platform, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or the terms of any Third-Party Service), nor attempt to disable or circumvent any security or other technological measure designed to protect the TOD Platform or any content available through the TOD Platform.

 

The TOD Platform and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by TOD, its licensors or other providers of such material, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

 

You must not:

  • Modify copies of any materials from the TOD Platform.
  •   Use any illustrations, photographs, video or audio sequences or any graphics separately from the accompanying text.
  • Delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from the TOD Platform.

 

Except as permitted herein, you must not access or use for any commercial purposes any part of the TOD Platform or any services or materials available through the TOD Platform.

 

If you breach these license restrictions or otherwise exceed the scope of the licenses granted in these Terms of Use, then you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights; your right to use the TOD Platform will cease immediately; and you must, at our option, return or destroy any copies of the materials you have made. No right, title or interest in or to the TOD Platform or any content on the TOD Platform is transferred to you, and TOD reserves all rights not expressly granted. Any use of the TOD Platform not expressly permitted by this Agreement is a breach of this Agreement and may violate copyright, trademark and other laws.

 

 

  1. Disclaimer of Warranties

 

You understand that we cannot and do not guarantee or warrant that files available for downloading from the Internet or the TOD Platform will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT (INCLUDING MOBILE DEVICES), COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE TOD PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY TOD PLATFORM LINKED TO IT.

 

YOUR USE OF THE TOD PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM IS AT YOUR OWN RISK. THE TOD PLATFORM, ITS CONTENT AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER TOD NOR ANY PERSON ASSOCIATED WITH TOD MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE TOD PLATFORM. WITHOUT LIMITING THE FOREGOING, NEITHER TOD NOR ANYONE ASSOCIATED WITH TOD REPRESENTS OR WARRANTS THAT THE TOD PLATFORM, ITS CONTENT OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE TOD PLATFORM OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

 

TOD HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

 

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

 

  1. No Liability

 

IN NO EVENT WILL TOD, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS, DIRECTORS, OR CORPORATE PARTNERS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE TOD PLATFORM, ANY TOD PLATFORMS LINKED TO IT, ANY CONTENT ON THE TOD PLATFORM OR SUCH OTHER TOD PLATFORMS OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE TOD PLATFORM OR SUCH OTHER TOD PLATFORMS, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

 

THE AGGREGATE LIABILITY OF TOD, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE TOD PLATFORM OR OTHERWISE UNDER THESE TERMS OF USE, WHETHER IN CONTRACT, TORT, OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU PAID TO TOD FOR ACCESS TO AND USE OF TOD PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENT(S) GIVING RISE TO CLAIM; OR (B) $100.

 

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.  EACH PROVISION OF THESE TERMS OF USE THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS OF USE. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS OF USE. THE LIMITATIONS IN THIS SECTION 29 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

 

  1. Indemnification

 

You agree to defend, indemnify and hold harmless TOD, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys’ fees) arising out of or relating to your violation of this Agreement or your use of the TOD Platform, including, but not limited to, any use of the TOD Platform’s content, Services and products other than as expressly authorized in this Agreement or your use of any information obtained from the TOD Platform.

 

  1. Dispute Resolution; Arbitration of Claims

 

Generally, in the interest of resolving disputes between you and TOD in the most expedient and cost-effective manner, YOU AND TOD MUTUALLY AGREE THAT EVERY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND TOD ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.

 

  1. Exceptions

Nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

 

  1. Arbitrator

Any arbitration between you and TOD will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting info@TOD.com.

 

  1. Notice; Process

A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). TOD’s address for Notice is: TOD LABS, Inc., 751 Lively Blvd Elk Grove Il 60007. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within thirty (30) days after the Notice is received, you or TOD may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or TOD must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, TOD will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by TOD in settlement of the dispute prior to the arbitrator’s award; or (iii) one thousand US dollars ($1,000).

 

  1. Fees

If you commence arbitration in accordance with this Agreement, TOD will reimburse you for your payment of the filing fee, unless your claim is for more than ten thousand US dollars ($10,000), in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Williamson County Tennessee, but if the claim is for ten thousand US dollars ($10,000) or less, you may choose whether the arbitration will be conducted: (i) solely based on documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse TOD for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.

 

  1. No Class Actions

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND TOD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and TOD agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding, to the fullest extent permitted under applicable law.

 

  1. Modifications to this Arbitration Provision

If TOD makes any future change to this arbitration provision, other than a change to TOD’s address for Notice, you may reject the change by sending us written notice within thirty (30) days of the change to TOD’s address for Notice, in which case your account with TOD will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

 

  1. Enforceability

If any part of this section is found to be unenforceable, then the entirety of this section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in this Agreement will govern any action arising out of or related to this Agreement. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement. If you do not want to be subject to this Dispute Resolution provision with respect to Provider Claims, you may opt out by notifying the Company in writing of your decision, either by sending, within thirty (30) days of the date you receive this Agreement, (i) an electronic mail to legal@TOD.com, stating clearly your name and intent to opt out of this Dispute Resolution provision or (ii) by sending a letter by U.S. Mail, or by any nationally recognized delivery service (e.g., UPS, Federal Express, etc.), or by hand delivery to: Legal Department, TOD LABS  Inc., 751 Lively Blvd Elk Grove Il 60007. To be effective, the letter under option (ii) must clearly indicate your intent to opt out of this Dispute Resolution Provision, and must be dated and signed. If hand-delivered, the signed letter must be received within thirty (30) days of your receipt of this Agreement. If sent by mail, the letter must be post-marked with a date less than thirty (30) days from the date you receive this Agreement. Should you choose not to opt out of this Dispute Resolution Provision within the thirty (30)-day period, you and TOD will be bound by the terms of this Dispute Resolution Provision. You have the right to consult with counsel of your choice concerning this Dispute Resolution Provision. You understand that you will not be subject to retaliation if you exercise your right to opt out of coverage under this Dispute Resolution Provision.

 

Last Updated July 15th, 2020

 

 

 

 

 

 

 

 

 

 

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