Terms and conditions

These Terms has been updated on Sep 23, 2021

These Terms of Use (hereinafter - “Terms” also referred to as this “Agreement”) are entered into by and between TobiBots OÜ (hereinafter - “we”, “us”, “TobiBots”) and Customer (the “Customer” or “You”) and is effective as of the date that you subscribe for the Tobi app (hereinafter - “Tobi”, “Services”).

If you are registering for a customer account in order to use the Services on behalf of an organization, then you are agreeing to these Terms for that organization and promising to TobiBots that you have the authority to bind that organization to these Terms (and, in which case, the terms “you” and “your” and “Client” or “Customer” will refer to that organization). You must be 18 years or older to use the Services.

These Terms of Use create a legally binding agreement between TobiBots and the Customer. If you do not accept these Terms of Use, you shall refrain from using the Tobi.

1. DEFINITIONS

For the purposes of the Terms, the following definitions shall be used:

• Customer Data means the data created, input or submitted by you or your End Users in connection with your using the Services or facilitating your use of the Services.
• Platform means the software program supplied by TobiBots to you, including when obtained via tobibots.com, Shopify, or another platform.
• Services mean the Tobi’s services which include using software to send messages to End Users through SMS messages.
• Communication means any type of communication that might be sent by you to any End User.
• End User means an individual who interacts with you or your affiliates or agents through the Services.
• End User Communications means the End User emails, SMS and MMS messages, and information submitted through the Services.
• Subscription Fees are the fees that you pay to use the Services.

2. ACCEPTABLE USE OF SERVICES

2.1. You may use our Services to contact the End User who expects your messages.

2.2. You may only contact the End User whose contact details you have lawfully gathered.

2.3. You may use our Services for transactional purposes, to notify End User of the status of their order or information about its shipping, packing, and payment.

2.4. You may use our Services for marketing purposes, following local requirements and best practices, including obtaining consent from End User that they agree to receive your messages, including your business or brand name, a brief offer, and links for End User to find out more.

2.5. You may only use our Services if you include a way for End Users to opt-out and unsubscribe if they no longer wish to receive messages from you.

2.6. You may not, and may not permit any third party to, use the Platform or Services in violation of

• any applicable Laws, rules, and regulations, including, but not limited to, the Telephone Consumer Protection Act and those Laws, rules, and regulations applicable to data privacy and use and consumer protection;
• the CTIA Messaging Principles and Best Practices Guidelines; or
• the CTIA Short Code Monitoring Handbook.

2.7. You shall be responsible for ensuring that all End Users who are engaged by you through the Platform are required to agree to your terms of service (the “End User Terms of Service”) and that you at all times have in effect enforceable End User Terms of Service related to the sending of SMS messages. In its guidance on www.tobibots.com and elsewhere, TobiBots may make available model clauses and terms provided by Tobi as a starting point for the development of your own End User Terms of Service. These model clauses are provided as a courtesy and TobiBots makes no representation or warranty regarding any model language it provides. TobiBots is not providing legal advice and no attorney-client relationship is created by the use of the model language. You agree that you accept full legal responsibility for the End User Terms of Service and have been advised to obtain independent legal counsel before implementing the model End User Terms of Service or any variation thereof.

2.8. You are solely responsible and liable for ensuring that your use of the Platform or the Services comply with the TCPA, 47 U.S.C. § 227 et seq., and all implementing rules, orders, and regulations of the Federal Communications Commission, 47 C.F.R. § 64.1200 et seq., and the Federal Trade Commission, 16 C.F.R. § 310, including, without limitation, ensuring that all phone numbers and other personal information used in connection with the Platform or the Services have been collected in accordance with the TCPA, ensuring that sufficient notice and consent have been received and maintained by you in connection with your use of the Platform or the Services under the Agreement, and for the preparation and distribution of all messages, content, and other materials delivered to your End Users and other recipients by and through the Platform or the Services.

2.9. You are solely responsible and liable for ensuring that your use of the Platform or the Services comply with the CAN-SPAM Act, 15 U.S.C. §§7701-7713.

3. ACCOUNT

3.1. You must be eighteen (18) years or older to use Tobi.

3.2. You acknowledge and agree that you are not under the age of eighteen (18) years and you are of adult age in your jurisdiction and is permitted by that jurisdiction’s applicable law to use the Platform and the Services.

3.3. You also agree that you will not knowingly permit an End User under the age of eighteen (18) years to use the Platform without parental consent.

3.4. In order to access and use Tobi Services, you must create an account. The account is created on the basis of your Shopify store and the data that you specified during registration and the Shopify store.

3.5. TobiBots may cancel your account or reject your registration at our discretion.

4. SUBSCRIPTION FEES AND PAYMENTS

4.1. Free Services may be provided to the Customer free of charge for a specified period.

4.2. Subscription Fees are payable by the Customer as indicated on the App listing page in the Platform. Subscription Fees will be due and payable in full, including any applicable taxes.

4.3. The Subscription Fees listed in US Dollars. The Сustomer is responsible for paying all taxes associated with the Subscription Fee, including provincial, municipal, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, use or withholding taxes and others.

4.4. Payments are processed by Shopify Payment Processor.

4.5. If you sign up for any of our Subscription Fees or activate the auto-recharge option, you will be charged for our services on a recurring basis. Any Subscription Fees you purchase from us will automatically renew unless you cancel your plan.

4.6. In the event you would like to dispute any bill you received from TobiBots, you acknowledge and agree to provide TobiBots with written notice within fourteen (14) calendar days of delivery of the billing statement.

5. CANCELLATION

5.1. TobiBots may immediately cancel your Subscription Term without notification to you under the following circumstances:

• your credit card expires, is canceled or is otherwise terminated, and TobiBots is not immediately provided with another valid credit card or alternative form of payment by you;
• you violate and/or fail to comply with any of the terms and conditions set forth in this Terms.

5.2. Upon TobiBots canceling your subscription to the Platform and the Services without cause, you may be entitled to a pro-rata refund of any pre-paid and unused Subscription Fees advanced to TobiBots.

5.3. You may cancel your subscription at any time through the Platform or by providing written notice to TobiBots at least five (5) business days prior to the expiration of the then-current Subscription Term. You will continue to have access to the Tobi subscription service through the end of your billing period.

6. PROPRIETARY RIGHTS AND LICENSES

6.1. Subject to these Terms, during the Subscription Term, you may access and use the Platform solely for the purposes of accessing and using the Services. TobiBots reserves all rights not expressly granted and no such additional rights may be implied.

6.2. You acknowledge that (a) all right, title, and interest in and to the Platform and the Services, and all patents, copyrights, trade secrets, trademarks, trade names, service marks, slogans, logos, other trade-identifying symbols, and other proprietary and intellectual property rights embodied therein or associated therewith, are and shall remain with TobiBots or its third-party licensors; (b) no right or interest in the Platform or the Services is conveyed other than the limited license granted hereunder; and (c) the Platform and the Services are protected by copyright and other intellectual property laws.

6.3. Subject to the limited rights expressly granted hereunder, TobiBots reserves all of the right, title, and interest in and to the Platform and Services including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

6.4. Customer grants to TobiBots worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of Platform and Services.

7. TERM AND TERMINATION

7.1. TobiBots shall be entitled, without liability to you, to immediately suspend, terminate or limit your access to the Platform and/or the Services at any time in the event

• that TobiBots determines, in its sole discretion, that the Platform or the Services are being used in violation of applicable Laws including federal, state or local law or ordinances, this Agreement, the Tobi Privacy Policy, or any agreement applicable to the Platform or the Services;
• you are using the Platform or Services in connection with purchased, leased, transferred, rented, or stolen database(s) of phone numbers or otherwise do not have the consent of the End Users to receive a Communication;
• that TobiBots, in its sole discretion, determines that the Platform and/or the Services are being used in an unauthorized, inappropriate, or fraudulent manner that TobiBots determines that the use of the Platform and/or the Services adversely affect TobiBots’s equipment or service to others;
• of a denial of service attack or any other event which TobiBots determines, in its sole discretion, may create a risk to the Platform and/or the Services or to any other customers if your access to the Platform and/or the Services were not suspended; or
• of a security incident or other disaster that impacts the Platform and/or the Services or the security of Customer Data.

7.2. In addition, TobiBots shall have the right to immediately deny or suspend access to the Platform or the Services in the event

• TobiBots is not paid any amount due in connection with the Services; or
• your breach or alleged breach of this Agreement.

7.3. We reserve the right to terminate your use of the Platform and/or the Services for violating any of the prohibited uses. You must not transmit any spam, worms, Trojan horses, viruses, time bombs, cancelbots, corrupted files or data or any code of a destructive nature using our Platform and/or the Services.

7.4. TobiBots shall have no liability for any damages, liabilities, or losses as a result of any suspension, limitation, or termination of your right to use the Platform and/or the Services in accordance with this Terms, and any suspension, limitation, or termination of your right to use the Platform and/or the Services shall be in addition to and not in lieu of any equitable remedies available to TobiBots.

7.5. TobiBots reserves the right to refuse service to any person or entity for any reason which TobiBots, in its sole discretion, deems to be appropriate.

7.6. TobiBots reserves the right to determine any violation at its sole discretion.

8. WARRANTIES

8.1. Each party represents and warrants that:

• it has the legal power to enter into the Agreement
• when executed, the Agreement will constitute the legal, valid, and binding obligation of each party, enforceable in accordance with the terms listed hereto.

8.2 You represent and warrant that:

• the Customer Data does not and will not infringe on any copyright, patent, trade secret, or other proprietary right held by any third party and was not and will not be gathered or used by you in a manner that violates applicable Laws;
• the you are solely responsible for Customer Data, including, without limitation, the security of such Customer Data;
• you have the necessary rights and licenses, consents, permissions, waivers, and releases to use the Customer Data and to enable TobiBots to use and disclose to you the Customer Data as intended by the parties under this Agreement, the Tobi Privacy Policy, and the terms of any applicable Order Forms;
• without limiting the generality of the foregoing, you will send Communications only to individuals from whom you have obtained the legally required consent to do so; and
• you will not use the Platform in a manner that violates applicable Laws, including, but not limited to, the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws.

9. DISCLAIMER

9.1. EACH APPLICATION, ACCESS THERETO, THE DOCUMENTATION, AND ANY SERVICES PROVIDED HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, AND TOBIBOTS, ITS AFFILIATES AND ITS AGENTS: (A) DO NOT MAKE, AND HEREBY EXPRESSLY DISCLAIM, ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, ACCURACY, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE; (B) DO NOT WARRANT THAT ACCESS TO ANY APPLICATION WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE, OR THAT ANY INFORMATION, SOFTWARE, OR OTHER MATERIAL ACCESSIBLE OR PROVIDED THROUGH ANY APPLICATION IS ACCURATE, COMPLETE, OR FREE OF VIRUSES OR OTHER HARMFUL CONTENTS OR COMPONENTS; AND (C) SHALL IN NO EVENT BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INACCURACY, ERROR, OR OMISSION IN, OR LOSS, INJURY, OR DAMAGE (INCLUDING LOSS OF DATA) CAUSED IN WHOLE OR IN PART BY, OR FAILURES, DELAYS, OR INTERRUPTIONS OF ANY APPLICATION, DOCUMENTATION, OR SERVICES. IF ANY WARRANTY DISCLAIMER IN THIS SECTION IS INVALID, ILLEGAL, OR UNENFORCEABLE IN ANY JURISDICTION, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY SHALL NOT AFFECT ANY OTHER WARRANTY DISCLAIMER OR PROVISION OF THIS SECTION OR INVALIDATE OR RENDER UNENFORCEABLE SUCH WARRANTY DISCLAIMER IN ANY OTHER JURISDICTION.

10. INDEMNIFICATION

10.1. You shall indemnify, hold harmless, and defend TobiBots and any of its officers, directors, employees, or affiliates against any and all losses, liabilities, claims, causes of action, demands, or damages of every kind brought by a third party, including all judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including expenses of litigation or arbitration, court or arbitration costs and attorneys' fees and other professional fees that TobiBots may incur as a result of such third-party claims, demands, or causes of action (collectively, “Losses”) that relate to or arise out of (a) your use of the Platform or Services in alleged violation of this Terms or applicable Law; (b) any of your acts or omissions related to this Agreement, or (c) any claim that Customer Data infringes or misappropriate the intellectual property rights of a third party.

10.2. Your indemnification obligations shall apply regardless of who may be at fault or otherwise responsible under any statute, rule, or theory of law, including but not limited to theories of strict liability, including but not limited to claims relating to the Telephone Consumer Protection Act, the Children’s Online Privacy Protection Act, or similar state and federal laws, and even though the subject loss, damage, or injury may have been caused in whole or in part by the concurrent, active, or passive negligence of TobiBots or a defect in the Platform or the Services.

10.3. Your obligations in this Section are subject to receiving (a) prompt written notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of TobiBots, at your expense for reasonable out-of-pocket costs. You may not settle any claim without TobiBots’s prior written consent if the settlement would require TobiBots to admit fault or take or refrain from taking any.

11. LIMITATION OF LIABILITY

11.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TobiBots WILL NOT HAVE ANY LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM YOUR USE OF THE PLATFORM AND/OR SERVICES THAT TobiBots PROVIDES TO YOU, WHETHER THE CAUSE OF ACTION BE BASED ON TORT, BREACH OF CONTRACT, OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, PUNITIVE, ACTUAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR DUE TO ANY CAUSE OF ANY NATURE. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE AND AGREE TO HOLD TobiBots HARMLESS FROM ANY LOSS OR HARM OF ANY NATURE DUE TO YOUR USAGE OF THE PLATFORM AND/OR SERVICES THAT TobiBots PROVIDES TO YOU, WHETHER DIRECTLY OR INDIRECTLY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

12. FINAL PROVISIONS

12.1 In the event that one or more provisions of the Terms are for any reason invalid, unenforceable, such invalidity does not affect the validity of any other provision of the Terms, which remains in force.

12.2. In all other respects that are not provided for by the provisions of the Terms, TobiBots and the Customer are guided by the current legislation of the United Kingdom, applicable international law, and the established fair business practice.

12.3. If there is a dispute, You and we are obligated to settle it through peaceful negotiations within 60 (sixty) days.

12.4. Dispute (s) regarding a breach of obligations are sent in writing with the attachment of documents confirming the claim. It shall be sent to our e-mail address indicated above.

12.5. If such dispute(s) is/are not resolved by negotiations, any dispute(s) arising out of or in connection with the Terms shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (LCIA) Rules.

12.6. The number of arbitrators shall be one.

12.7. The seat or legal place of arbitration shall be London, The United Kingdom of Great Britain, and Northern Ireland.

12.8. The language to be used in the arbitral proceedings shall be English.

13. CONTACT US

If you have any questions, the practices of Platform or/and Services, please contact us at [email protected]

TobiBots OÜ
Sepapaja 6, Tallinn 15551
Estonia