1.1 TOOBER is a subscription streaming service providing subscribers with access to audio-visual or audio content (the “Content”) on a streaming basis made available by us and our content suppliers that choose to make their content available through our TOOBER-branded service (the “Service”). The Service is provided by or on behalf of TOOBER INC., a corporation incorporated under the laws of Canada (“us”, “we”, “our” or the “Company”). The Service is available to you from time to time on any software application that you have downloaded to use the Service. “You” and “your” means, as applicable, you and every person who uses the Service through your account. Please read these terms of service (“Terms”) carefully before you use the Service.
1.2 BY USING THE SERVICE OR CLICKING TO ACCEPT THESE TERMS YOU AGREE TO ABIDE BY THESE TERMS, WHICH INCLUDES OUR PRIVACY POLICY INCORPORATED INTO THESE TERMS BY REFERENCE. IF YOU DO NOT AGREE TO COMPLY WITH THESE TERMS, THEN YOU MAY NOT USE THE SERVICE.
2.1 The Service is available in specified territories (the “Territories”), to users who have subscribed to the Service. Even if you have subscribed to the Service, you will not be able to view Content on the Service when you are outside the Territories. Availability of Content may vary between Territories.
2.2 Not all aspects of the Service, including, without limitation, certain Content, will be available to you unless the applicable device you use to access the Service (each a “Digital Device”) and your Internet connection satisfy the Service’s technical requirements. We may change these requirements from time to time in our sole discretion. Unless we specify otherwise, you are solely responsible for updating or maintaining your Digital Device and Internet connection as necessary to meet these requirements. You are responsible for any data usage, data storage or any other charges you incur to access the Service and to use the Service with your Digital Device.
2.3 Number of Devices. The number of devices on which you may simultaneously access the Service is currently limited to two. The number of devices and the simultaneous streams may change from time to time at our discretion.
3.1 We offer paid subscriptions to the Service, which may include access to all Content on the Service, or to selected Content only, depending on the offer. The availability of offers and Content included in the offers may vary from time to time, in our sole discretion, including during the currency of your subscription. We do not guarantee the continued provision of any particular Content in any offer to which you may subscribe.
3.2 You must pay all fees (plus any applicable taxes) during your subscription period and any renewal periods. If any applicable fees change, such change will take effect on the next regularly scheduled billing period, for your subscription.
3.3 To the extent permitted by applicable law, your subscription to the Service will automatically renew and continue on a month-to-month basis until you cancel your subscription or we terminate it. You must provide us with a current, valid, accepted method of payment (as such may be updated from time to time, the “Payment Method”) to use the Service. You authorize us and acknowledge that we will charge the applicable subscription fee to your Payment Method. You must cancel your subscription before it renews each month (as explained below) to avoid billing of the next month’s fee to your Payment Method.
3.4 We may change pricing for the Service or any components thereof in any manner and at any time as we may determine in our sole discretion, subject to applicable law. Except as otherwise expressly provided for in these Terms, any price changes to your service will take effect following notice of such price changes to you, which may be by e-mail, through the Service’s functionality, or by other means of communications, electronic or otherwise.
3.5 You can cancel your subscription anytime by visiting your profile on our website or using the Service’s functionality (if available). No refund will be issued for any time remaining in your current subscription period. However, you will be able to access your plan to the end of your subscription period.
3.6 At any time, and for any reason, we may provide a refund, discount or other consideration to some or all of our members (“Credits”). The amount and form of such Credits, and the decision to provide them, is at our sole discretion. The provision of Credit in one instance does not entitle you to credits in the future for similar instances, nor does it obligate us to provide Credits in the future, under any circumstance.
3.7 If a payment is not successfully settled due to expiration, insufficient funds or otherwise and you do not edit your Payment Method information or cancel your account, you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. For certain Payment Methods, the issuer of your Payment Method may charge you other charges. Check with your Payment Method service provider for details.
4.1 You must be the age of majority where you reside and the lawful user of the Payment Method to subscribe to the Service.
4.2 In cases where you have authorized a minor to use the Service, you recognize that you are fully responsible for: (a) the online conduct of such minor; (b) controlling the minor’s access to and use of the Service; and (c) the consequences of any use or misuse of the Service by the minor. You acknowledge that Content displayed or accessed through the Service may contain mature content that may be inappropriate for minors.
5.1 We grant you a limited license to access and make personal use of the Service and to view the Content using Digital Device, but not to download (other than page caching) or modify it, or any portion of it. This includes the right to use related functionality that we may provide. No other right or interest is granted to you. This license is for your personal and non-commercial use only and may not be shared with individuals beyond your household. This license does not permit any resale or commercial use of the Service or the Content.
5.2 Without limiting the generality of section 5.1, you may not reproduce, duplicate, copy, download, translate, broadcast, publicly display, sell, transmit, retransmit, license, sub-license, publish or modify any of the Service or the Content without the prior written consent of us and the copyright owner, as applicable. You may not view the Service or the Content in circumstances where members of the public can view them simultaneously or authorize, enable, or procure any other person to do so. You acknowledge that any use of the Service by you must be in accordance with these Terms. Failure to adhere to these Terms may result in the termination of your account and your ability to access the Service or its Content.
6.1 You agree to comply with all applicable laws and regulations (including laws relating to copyright) as well as these Terms when using the Service.
6.2 You acknowledge and agree that you may not:
Use the Service for anything other than your own personal, non-commercial and entertainment purposes;
Use the Service to share or distribute any Content, including via wireless streaming between devices, second-screen video playback, over-the-air streaming or any similar processes, except directly in connection with your own personal, non-commercial use of the Service for entertainment purposes;
Use the Service to engage in any activities that infringe intellectual property rights (e.g., peer-to-peer (P2P) file-sharing, posting, unauthorized streaming, making available, uploading, downloading, or any other distribution of content protected by intellectual property laws) or facilitate any such activities (e.g., use of eDonkey directory servers, BitTorrent trackers and/or websites that index and link to content served at a separate host);
Interfere or attempt to interfere with the operation of the Service, the Content, or the servers or networks connected to the Service, including through denial of service attacks, overloading a service, improperly seizing or abusing operator privileges ("hacking"), or attempting to "crash" a host;
Circumvent, remove, alter, deactivate, or degrade any of the Content protections in the Service and, without limiting the generality of the foregoing, you will not copy, reproduce, distribute, adapt, translate, modify, decompile, disassemble, or reverse engineer any software, applications or programs used in connection with the Service or the Content;
Copy, modify, alter, remove, or deface any trademarks, service marks, or other intellectual property displayed or made available through the Service, or use any of the foregoing for any purpose other than the purpose for which such intellectual property is made available to users of the Service;
Use or attempt to use the Service in a manner to avoid incurring charges for usage;
Use any data mining, robots, or similar data gathering and extraction tools on the Service, the Content or on any portion thereof, or frame any portion of the Service or Content, it being agreed that should we become aware that your device has been jailbroken or rooted or has undergone any other similar process you will not be permitted to access the Service;
Use the Service to access any computer, software, data or any confidential, copyright-protected or patent-protected material of any other person, without the knowledge and consent of that person, or use any tools designed to facilitate access such as 'packet sniffers';
Use the Service to post, upload, email, transmit, link to, or otherwise distribute any materials, information or content constituting, advocating or encouraging conduct that would constitute a criminal offense or give rise to civil liability, or otherwise use the Service in a manner that is contrary to law or would serve to restrict or inhibit any other user from using or enjoying the Service or the Internet;
Use the Service to defame, abuse, stalk, harass, threaten or otherwise violate the legal rights of others, including rights relating to privacy and publicity; or
Use the Service to invade another person's privacy, or to collect or store personal data about other users.
7.1 During the registration process, you will be asked to provide billing information (including your address and an e-mail address), choose a password, and provide and certain other information. You certify that any information that you provide during the registration process will be complete and accurate and that you will not register under the name of, nor attempt to use the Service under the name of, another person. You agree to promptly update any information as necessary to ensure that your account is kept complete and accurate, including any credit card information that you designate for the periodic payment of your subscription. If you do not update that information when necessary, you may not be able to access the Service.
7.2 You will be responsible for preserving the confidentiality of your password and will notify us immediately of any known or suspected unauthorized use of your account and agree to take reasonable steps to prevent any reoccurrence. If you have forgotten your password and we are otherwise unable to verify your identity, then we may take any action that we deem appropriate, including, without limitation, deleting your account. You may be held liable for any loss or damage incurred by us or any other user of the Service due to another person using your account or password.
8.1 As a result of the regularly changing nature of our business, these Terms and our Privacy Policy are subject to change. We may e-mail periodic reminders of our notices and conditions, but it is recommended that you check the Service website frequently to see recent changes. Unless stated otherwise, our current Terms and Privacy Policy apply.
8.2 We may modify, suspend or remove the Content made available on the Service at any time in our sole discretion without prior notice to you. We may also modify these Terms or change any aspect of the Service at any time in our sole discretion. If you do not accept any modification to these Terms or changes to the Service, then your sole remedy is to terminate these Terms by no longer using the Service by cancelling your subscription.
8.3 Subject to our right to make modifications, no other statements, written or verbal, will change these Terms. You may not make any changes to these Terms.
9.1 Personally identifying information is subject to our Privacy Policy available at the following link: https://www.toober.com/privacy-policy. The Privacy Policy and its terms are incorporated into these Terms. Please review our Privacy Policy to understand our practices.
10.1 By using the Service, you consent to receiving electronic communications from us relating to your account. These communications may involve sending emails to your e-mail address provided during registration, or posting communications on the Service, or on the page relating to your account and will include notices about your account (e.g. payment authorizations, changes to your password or payment method, confirmation emails and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you will satisfy any legal communication requirements, including that such communications be in writing.
10.2 You also consent to receiving certain other communications from us, such as newsletters about Service features and content, special offers, promotional announcements and customer surveys via e-mail or other methods. In order to change your e-mail address for communications, or if you no longer wish to receive certain non-transactional communications follow the instructions in the applicable communications or modify your account settings. Please review our Privacy Policy for further detail on our marketing communications.
You acknowledge and agree that our content suppliers are third party beneficiaries of these Terms. This means that, upon your acceptance of these Terms, such suppliers will have the right (and will be deemed to have accepted the right) to enforce these Terms directly against you.
There are software programs and technology contained within, or available through, the Service, that have been licensed to us by third parties (collectively “Third Party Software”). Any Third Party Software is subject to the proprietary rights of its respective owner. You acknowledge and agree that the owners of Third Party Software will not be held liable for the removal or other unavailability of such Third Party Software in the Service. In addition, the same terms and conditions, including all limitations and restrictions, set forth in these Terms apply to the Third Party Software contained in the Service. The Company does not assume any responsibility or liability for your use of such Third Party Software.
Your use of the Service and/or access to the Content may be provided to you through third party websites, platforms and portals, including social networking sites and digital storefronts (collectively, “Third Party Platforms”). Additional terms and conditions may apply to you with respect to your use of those Third Party Platforms. The Company does not assume any responsibility or liability for your use of such Third Party Platforms.
14.1 Content displayed or accessed by, through or in the Service may contain mature content, which may not be appropriate for all users. Adult and mature Content is only intended for users who are the age of majority in the Canadian province on territory in which they reside, or users who have received consent from a parent or guardian.
14.2 You agree that access to and use of the Service and the Content is at your sole risk, and that we have no liability to you or anyone who uses the Service for the type of Content accessed.
15.1 The Service and all Content included on in the Service, such as video clips, video streams, text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of the Company or its content suppliers and protected by Canadian and international copyright laws and other laws governing intellectual property. The compilation of all content on the Service is also the exclusive property of the Company or its content suppliers and protected by Canadian and international copyright laws and other laws governing intellectual property. All software used on this site is the property of the Company or its software suppliers and protected by Canadian and international copyright laws and other laws governing intellectual property.
15.2 “TOOBER” and the names and identifiers used by our content suppliers and related names, logos, images, page headers, button icons, scripts, and service names, as well as some of the characters, logos or other images included in the Service and/or the Content are protected by registered or unregistered trademarks or trade names owned by or licensed to the Company or our content suppliers (collectively, the “Trademarks”). The Trademarks and all other trademarks included in or accessible through the Service or Content are the property of their respective owners and use of them is not authorized in any manner other than as required for you to use the Service and view the Content in accordance with these Terms.
15.3 Except as expressly provided, nothing in these Terms or within the Service, including any Content, will be construed as conferring any license or other right or entitlement under any intellectual property right, whether by estoppel, implication, waiver or otherwise.
16.1 For software that you have downloaded from us related to the use of the Service, the Company grants to you a limited, non-exclusive, non-transferrable, no-fee, revocable license to install and use one copy of the executable code of such software on each Digital Device that is connected to the Service. All other rights are reserved to the Company, its licensors and/or suppliers.
16.2 You acknowledge and agree that you have been granted a license and not a transfer of ownership in the software. You may not:
Rent, lease, sell, sublicense, assign, distribute or otherwise transfer any portion of the software or use it for any purpose other than in association with the Service;
Reverse engineer, decompile or disassemble any portion of the software, except and only to the extent that this limitation is expressly allowed by applicable law;
Copy, modify, alter or tamper with the software (including without limitation removal of any copyright or other proprietary notices from the software) or create any derivative works of the software; or
Attempt to defeat, avoid, by-pass, remove, deactivate or otherwise circumvent any software protection mechanisms.
16.3 The Company may elect to provide you with customer support and/or software upgrades, enhancements or modifications (collectively “Support”), in its sole discretion, and may terminate this Support at any time without notice to you. The Company may, without notice or liability, collect non-personal information regarding your Digital Device(s), hardware and software during the installation and/or use of the software.
The Company may, at any time, without notice to you, restrict, block suspend or cancel any or all of your use of the Service or your account if you fail to comply in full with any of these Terms or any other terms, agreements or policies that apply to the Service and the use of it. Any cancellation by us will not relieve you of any obligation to pay fees accrued to your account prior to cancellation.
18.1 You will defend, indemnify and hold harmless the Company from and against all claims, liability, losses, actions, proceeding, suits, damages, settlements, penalties, fines, costs and expenses, including all reasonable legal fees and other litigation expenses, arising out of: (a) your breach of any provision of these Terms; (b) your use or misuse of the Service or the Content; (c) your use of or inability to use any Third Party Software; or (d) any violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party.
18.2 The Company may, in its sole discretion and at its own expense, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. You will cooperate as fully as reasonably required in the defense of any claim. Your indemnification shall survive any termination of your right to use the Service.
19.2 The Service and all Content, material, or information found on or accessed through the Service are provided on an “as is” basis. To the maximum extent permitted by applicable law, the Company expressly disclaims any and all representations, warranties and conditions, express or implied, including without limitation, any and all representation and warranties of title and non-infringement, and all implied warranties and conditions or merchantable quality, fitness for any particular purposes, suitability for any particular purpose and any representations, warranties or conditions arising from any course of dealing or usage of trade, for the Service or the Content. The Company makes no representations or warranties as to the performance, availability, accuracy, timeliness, reliability, secure operation, truthfulness or completeness of the Service or the Content, including without limitation, the contents, transmission or delivery of any Content, material or information found on the Service, any services provided through the Service, or, for Third Party Software, the operation of the Third Party Software or any feature of the Third Party Software. The Company makes no representations or warranties that the Service or access to and use of the Service will be continuous, accurate, uninterrupted, error-free or free from defects, viruses or other harmful codes or components.
19.2 You expressly agree that your use of the Service is at your sole risk. Information provided on a Service may contain references to products and services offered by distributors that are not available in your area, and the Company makes no representations or warranties as to the availability of such products and services in your area, and such references do not imply that those distributors intend to provide such products or service in your area.
20.1 EXCEPT WHERE SUCH EXCLUSIONS ARE PROHIBITED BY LAW, UNDER NO CIRCUMSTANCE WILL COMPANY OR ITS SUBSIDIARIES, AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, CONTRACTORS, LICENSORS, LICENSEES, SUPPLIERS, SUCCESSORS OR ASSIGNS, BE LIABLE FOR NEGLIGENCE, GROSS NEGLIGENCE, NEGLIGENT MISREPRESENTATION, FUNDAMENTAL BREACH, DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, 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, BREACH OF PRIVACY OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, OR RELIANCE ON, THE SERVICE, NOR ANY CONTENT AVAILABLE THROUGH THE SERVICE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW OF SUCH HARM OR LOSSES. WITHOUT LIMITATION, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION IN THE EVENT OF ANY SUCH LOSS OR DAMAGE. IN NO CIRCUMSTANCES SHALL COMPANY'S TOTAL LIABILITY TO YOU EXCEED THE AMOUNTS PAID BY YOU TO COMPANY OVER THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM(S) OR ONE HUNDRED DOLLARS (CAD $100), WHICHEVER IS GREATER.
20.2 You expressly acknowledge that we make the Service and Content available to you in reliance upon the limitations and exclusions of liability and the disclaimers set forth in these Terms and that these form an essential basis of the bargain between you and us. You expressly agree that the limitations and exclusions of liability and the disclaimers set forth herein will survive, and, subject to applicable laws, continue to apply in the case of, a fundamental breach or breaches, the failure of essential purpose of contract, the failure of any exclusive remedy or termination of these Terms.
21.1 If you reside in the Province of Ontario or another jurisdiction in which mandatory arbitration is not permitted in consumer agreements in the nature of these Terms, then you and the Company may agree, after a dispute or other question touching on these Terms arises or as to any act, deed or omission or the rights, duties or liabilities of any of the parties under these Terms (a “Dispute”) to refer the Dispute to arbitration.
21.2 If you live in a jurisdiction in which mandatory arbitration is permitted in consumer agreements in the nature of these Terms under the laws of such jurisdiction (“Local Law”), then any Dispute will be referred to arbitration.
21.3 Except as may be provided in applicable Local Law, the arbitration of any Dispute will take place before a single arbitrator in accordance with and subject to the provisions of the Arbitration Act (Ontario) and amendments or replacements thereto. The place of arbitration shall be the City of Toronto, Province of Ontario.
22.1 These Terms shall in all respects be governed and construed in accordance with the laws of the Province of Ontario, Canada without regard to the conflicts of law. Notwithstanding the foregoing, if Local Law permits mandatory arbitration, Local Law will apply for the purposes of Section 21 of these Terms and the laws of Ontario will otherwise apply as the substantive law of these Terms. Subject to Section 21 of these Terms, only the Ontario courts shall have jurisdiction over controversies regarding these Terms or otherwise in connection with your use of the Service and you consent to the same. Any proceeding involving such a controversy shall be brought in those courts, in the City of Toronto.
22.2 These Terms, as amended from time to time, any subscription terms, any other documents referred to in these Terms and any rules, policies, guidelines or other agreements posted on a by the Company, constitute the entire agreement between us and you for your use of the Service.
22.3 Either party’s failure to insist upon or enforce strict performance of any provision of these Terms does not mean that party has waived any provision or right in these Terms. No waiver by either the Company or you of any breach or default under these Terms shall be deemed to be a waiver of any preceding or subsequent breach or default.
22.4 If any provision of these Terms is determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, that determination shall not affect the remaining provisions. If any provision of these Terms is unenforceable, the unenforceable provision shall be construed in accordance with applicable law as nearly as possible to give effect to the Company’s original intentions and the remainder of the provisions shall remain in full force and effect.
22.5 These Terms endure to the benefit of and are binding on you, your heirs and your legal personal representatives and on the Company’s respective successors and assigns.
22.6 You may not assign or transfer these Terms without our prior consent. We may assign or transfer these Terms or any of our rights or obligations under these Terms without your consent.
22.7 If you are dissatisfied with the Service or these Terms, then your sole remedy is to stop using the Service.
22.8 Any notice of a claim or other legal correspondence must be sent to: Privacy Officer TOOBER INC 120 Amber Street. Markham Ontario M3R 3AR and/or by e-mail to:
privacy@toober.com
Any notice will be deemed to have been given on the date on which it was received by the Company’s legal representatives.
Version 1.0-Updated July 15/2021
