Vendor Terms of Service
Vendor Terms of Service
Vendor Terms of Service
Last Updated: August __ 2022
These terms and conditions (“Agreement”) constitute a binding contract between the entity identified in the registration page (“Vendor”) and TOJA T.J. LTD. (“TOJA”, “we”, “us” and “our”). If you are entering into this Agreement on behalf of an entity, you represent that you have the right, authority and capacity to bind such entity to this Agreement. By clicking “I agree” below, or by otherwise access or using the TOJA App (as defined below), you acknowledge that you have read, understood and agree to be bound by the following (the date of such occurrence being the “Effective Date”):
this Agreement, and
other supplemental terms and policies referenced herein, which are hereby incorporated into, and made a part of, this Agreement by reference.
If you do not agree with any of the terms and conditions of this Agreement, you may not access or use the TOJA App.
This Agreement represents the entire agreement between TOJA and Vendor with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral and/or written agreements, understandings and statements between Vendor and TOJA with respect to such subject matter. Vendor acknowledges and agrees that in entering into this Agreement it has not relied on any statement or representation (whether negligently or innocently made) not expressly set out in this Agreement.
TOJA reserves the right to modify this Agreement at any time by posting the modified Agreement at mytoja.com. Such modifications will be effective ten days after such posting, and Vendor’s continued use of the TOJA App shall constitute Vendor’s agreement to such modifications. In such cases, we will also update the “Last Updated” date set forth above. Please check the above webpage regularly for any modifications.
At TOJA’s sole discretion, any TOJA obligation hereunder may be performed (in whole or in part), and any TOJA right or remedy may be exercised (in whole or in part), by a TOJA Affiliate (defined below).
Definitions and Interpretation
In this Agreement:
“Applicable Laws” means all laws, regulations, regulatory requirements and codes of practice applicable to either party or to the existence or operation of this Agreement from time to time.
“Content” means any text, data, information, images, graphics, sounds, videos, audio clips, links, and/or other similar materials.
“Discount” means the Minimum Discount provided by Vendor together with any Additional Discount provided with respect to each Product.
“Documentation” means any electronic manuals, specifications, and similar documentation made available by TOJA for use of the TOJA App (such as data format and data feed specifications).
“Feature” means any module, tool, and/or feature of the TOJA App (such as those providing for language translations, currency conversions, tax calculations).
“Intellectual Property” means any and all inventions, discoveries, improvements, works of authorship, technical information, data, technology, know-how, show-how, designs, drawings, utility models, topography and semiconductor mask works, specifications, formulas, methods, techniques, processes, databases, computer software and programs (including object code, source code, APIs, and non-literal aspects), algorithms, architecture, records, documentation, and other similar intellectual property, in any form and embodied in any media.
“Intellectual Property Rights” means any and all rights, titles, and interests in and to Intellectual Property (under any jurisdiction or treaty, whether protectable or not, and whether registered or unregistered), and includes without limitation patents, copyright and similar authorship rights, personal rights (such as Moral Rights, rights of privacy, and publicity rights), architectural, building and location (and similar geography-based) rights, mask work rights, trade secret and similar confidentiality rights, design rights, industrial property rights, trademark, trade name, trade dress and similar branding rights, as well as:
all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisions or reissues of the foregoing rights; and
all goodwill associated with the foregoing rights.
“Losses” means claims, demands, actions, awards, judgments, settlements, costs, expenses, liabilities, damages and losses (including all interest, fines, penalties, management time and legal and other professional costs and expenses).
“Malpractice” means failing to comply with money laundering legislation as set out in Part 7 of the Proceeds of Crime Act 2002 and Regulations enacted since the coming into force of that Act, the commission of fraud under the Fraud Act 2006, giving or receiving any financial or other advantage that may be construed as a bribe under the Bribery Act 2010 or any other Applicable Law enacted in relation to fraud or bribery and/or the facilitation of tax evasion under Part 3 of the Criminal Finances Act 2017 or any other Applicable Law enacted in relation to tax evasion.
“Moral Rights” means any rights of paternity or integrity, or any right to claim authorship of a work, to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, any work, whether or not such would be prejudicial to the honour or reputation of the creator of the work, and any similar right, existing under judicial or statutory law of any jurisdiction, or under any treaty.
“Order” means an order for the purchase of one or more Product(s), which is issued by Subscriber to Vendor via the TOJA App.
“Product” means a product or a service listed by Vendor for sale on the TOJA App.
“Privacy Policy” means TOJA’s then-current privacy policy available.
“Subscriber” means a person who created an account with the TOJA App in order to facilitate buying Products from Vendors and/or who purchase a Product through the TOJA App.
“TOJA Affiliate” means, with respect to TOJA, any person, organisation or entity controlling, controlled by, or under common control with, TOJA, where “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, organisation or entity, whether through the ownership of voting securities, by contract, or otherwise.
“TOJA App” means TOJA’s proprietary online marketplace platform, called TOJA™. For the purposes of this Agreement, references herein to “TOJA App” shall also be deemed to include all related APIs and other technology made available by TOJA to enable Vendor to sell Products on the TOJA App.
“Update” means an upgrade, update (such as a fix or patch), or other modification, improvement, enhancement or customisation to or of the TOJA App.
“Vendor Content” means Content (whether or not proprietary to Vendor) inputted by Vendor to, or otherwise generated by, its Vendor Account, and/or that is otherwise provided or made available by Vendor to Subscribers of the TOJA App (such as Product descriptions and images, Discount(s) offered, Product pricing and shipping information, Vendor’s trademarks, service marks, brand names, and logos etc).
The Clause headings in this Agreement are for convenience of reading only, and may not to be used or relied upon for interpretive purposes.
Vendor Account
In order to sell Products on the TOJA App, Vendor must create an account by submitting the information requested on the TOJA App (a “Vendor Account”). As part of the registration, Vendor must input the minimum discount that it shall offer to Subscribers on the TOJA App with respect to all of its Products offered via the TOJA App (“Minimum Discount”). In addition to the Minimum Discount, Vendor may add additional discounts for any or all Products per its sole discretion (“Additional Discount”). Vendor represents and warrants that all information submitted during the registration process is, and will thereafter remain, complete and accurate. As between Vendor and TOJA, Vendor alone shall be responsible and liable for maintaining the confidentiality and security of its Vendor Account credentials, as well as for all activities that occur under or in the Vendor Account. Vendor shall immediately notify TOJA in writing of any unauthorised access to, or use of, the Vendor Account, or any other suspected or actual breach of security; but Vendor also acknowledges that TOJA may be unable to remedy the damage or loss (or otherwise assist) in such scenarios. Personally identifiable information received during the Vendor Account registration process will be stored and used by TOJA in accordance with the Privacy Policy.
Access
Subject to the terms and conditions of this Agreement, TOJA grants Vendor a limited, non-exclusive, non-assignable, non-sublicensable, revocable right, during the Term (defined below), to access and use the TOJA App solely for Vendor’s own business purposes of selling its Products (collectively, the “Licence”).
Usage Restrictions
Vendor shall not (and shall not permit or encourage any third party to) do any of the following:
reproduce the TOJA App;
sell, assign, lease, lend, rent, distribute, or make available the TOJA App to any third party, or otherwise offer or use the TOJA App in a time-sharing, outsourcing, or service bureau environment;
modify, alter, adapt, arrange, translate, decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying ideas, algorithms, structure, sequence, organisation, and interfaces) of, the TOJA App;
remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the TOJA App;
circumvent, disable or otherwise interfere with security-related or technical features or protocols of the TOJA App;
make a derivative work of the TOJA App, or use the TOJA App to develop any service or product that is the same as (or substantially similar to or competitive with) the TOJA App;
publish or transmit any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the TOJA App;
take any action that imposes or may impose (at TOJA’s sole discretion) an unreasonable or disproportionately large load on the TOJA App infrastructure, or otherwise interfere (or attempt to interfere) with the integrity or proper working of the TOJA App; and/or
use the TOJA App to infringe, misappropriate or violate any third party’s Intellectual Property Rights, or any Applicable Laws.
Vendor’s full compliance with the above restrictions is a condition to the Licence; provided however, that such limitations shall not apply to the extent expressly permitted otherwise in this Agreement. Vendor acknowledges that the TOJA App contains information and materials that are confidential and proprietary to TOJA (and may even constitute TOJA’s, or a TOJA Affiliate’s, trade secrets), and therefore Vendor agrees that a breach or threatened breach of this Clause 4 (Usage Restrictions ) may cause TOJA and/or a TOJA Affiliate to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if TOJA or a TOJA Affiliate seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Clause, TOJA or the TOJA Affiliate (as the case may be) shall not be required to post a bond or to prove the likelihood of irreparable harm.
Data Use & Privacy
Please do not submit any personal information or data without first reading TOJA’s Privacy Policy [insert hyperlink to TOJA Privacy Policy] which explains TOJA’s data use and privacy practices in detail.
It is a continuing condition of Vendor’s use of the TOJA App that Vendor agrees and consents to the terms of TOJA’s Privacy Policy, the terms of which are also incorporated into this Agreement by reference and apply to Vendor’s use of the TOJA App.
Third Parties
Third Party Software
The TOJA App may include third party software components that are subject to open source and/or pass-through commercial licences and/or notices (“Third Party Software” and “Third Party Software Terms and Notices”, respectively). TOJA current list of such Third Party Software and Third Party Software Terms and Notices is available in the Documentation. TOJA will reasonably comply with any valid written request submitted by Vendor to TOJA for exercising TOJA’s rights under such Third Party Software Terms and Notices. Vendor acknowledges that Vendor’s use of the TOJA App is also governed by such Third Party Software Terms and Notices, and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any undertakings, representations, warranties, guarantees, conditions, indemnities or other commitments made by TOJA in this Agreement concerning the TOJA App (if any), are made by TOJA and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, TOJA does not make any representation, warranty, guarantee, or condition, and does not undertake any defence or indemnification, with respect to any Third Party Software.
Third Party Sources
The TOJA App may enable you to view, access, post to, link to, and use content from Third Party Sources (as defined below) that are not owned or controlled by us (“Third Party Content”). The TOJA App may also enable you to communicate and interact with Third Party Sources. “Third Party Source(s)” means:
third party websites and services; and/or
our partners and customers.
Third Party Sources may include an Online Payment Service (as defined below) including but not limited to Stripe (for more information, please visit: https://www.stripe.com). We are not affiliated with and have no control over any Third Party Sources. We do not assume any responsibility for the content, terms of use, privacy policies, actions or practices of, any Third Party Sources. Please read the terms of use and privacy policy of any Third Party Source that you interact with before you engage in any such activity. We are not responsible for, and we expressly disclaim all warranties regarding the accuracy, appropriateness, usefulness, safety, or Intellectual Property Rights of, or relating to, any Third Party Content. We do not endorse any advertising, promotions, campaigns, products, services or other materials that is included in any Third Party Content or that is communicated to you from a Third Party Source. By using the TOJA App you may be exposed to Third Party Content that is inaccurate, offensive, indecent, or objectionable. Your interaction with a Third Party Source and your use of, and reliance upon, any Third Party Content is at your sole discretion and risk. You are solely responsible and liable for your interaction with a Third Party Source, including to any content that you may send or post to such Third Party Source. You agree to waive, and hereby do waive, any legal or equitable rights or remedies you may have against TOJA, and release TOJA from any and all liability, arising from your use of and interaction on any Third Party Content and from your interaction with any Third Party Source, including any outcome or output resulting from such interaction. If you have any query or complaint regarding a Third Party Source or any Third Party Content, you agree to contact the Third Party Source directly.
Vendor Content
Responsibility
As between Vendor and TOJA, Vendor is solely responsible and liable for its Vendor Content, for the consequences of publishing it (including, but not limited to, for obtaining any consents from individuals appearing therein), and for the way in which it is used by others, and Vendor agrees to hold TOJA harmless, and expressly releases TOJA, from any and all liability arising from such Vendor Content. Vendor hereby represents and warrants that:
its Vendor Content does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, or any Applicable Laws;
its Vendor Content is not, and will not be, disparaging, libellous, threatening, offensive, harassing, deceptive, abusive, promoting of violence, illegal drugs, illegal arms trafficking, or illegal gambling, and does not, and will not, contain obscenity or pornography, create any risk to a person’s safety or health, impersonate another person, compromise national security, or interfere with an investigation by law enforcement;
its Vendor Content does not, and will not, contain any robot, virus, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the TOJA App;
its Vendor Content is correct, complete, accurate, and up to date; and
Vendor has obtained, and will maintain during and (to the extent applicable) after any termination of this Agreement, any and all licences, permissions, consents, approvals, and authorisations required to enter into this Agreement, to contract with and deliver to Subscribers and to grant the TOJA Licence (defined below).
No Obligation by TOJA
TOJA has no obligation to accept, display, review or maintain any of Vendor Content. TOJA may, without notice, edit, replace and/or delete Vendor’s Vendor Content, including, but not limited to, if TOJA:
determines that Vendor is in breach of any provision of this Agreement or has violated (or are suspected by TOJA of violating) any Applicable Laws; and/or
deems it helpful or reasonably necessary to comply with any Applicable Laws, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of TOJA, its users, or the public.
No Endorsement
Vendor agrees not to represent or suggest, directly or indirectly, the endorsement of any Vendor Content by TOJA or any other user of the TOJA App.
Messages
Without limiting the generality of the foregoing, the TOJA App may permit you to send messages or similar Content to TOJA or third parties (“Messages”). You are solely responsible and liable for the Content of your Messages, for the manner in which you send them, for the timing of sending them, and generally for the consequences of sending them. You agree to hold us harmless, and expressly release us, from any and all responsibility or liability arising from Messages you send or receive.
Products
Products
In respect of each Product listed on the TOJA App, Vendor hereby represents and warrants that:
Vendor is an authorised seller of the Product (and has obtained any and all licences, permissions, consents, approvals, and authorisations required to sell the Product and to perform all its obligations under this Agreement), and that its listing does not, and will not, infringe, misappropriate, or violate any third party’s Intellectual Property Rights, or any Applicable Laws (including, but not limited to, the Consumer Rights Act 2015 and the regulations enacted thereunder);
the Product is authentic, authorised for sale, and not stolen, a counterfeit, or illegal;
the Product matches the corresponding Product description (and other Vendor Content) associated with such Product;
the Product will be offered and sold at a price reflecting the Discount presented on the TOJA App (the “Purchase Price”); and
the Product will be of satisfactory quality and fit for purpose, and free from defects in design, material and workmanship.
Upon request by TOJA, Vendor will promptly furnish TOJA with appropriate information and documentation demonstrating Vendor’s compliance with the foregoing representations and warranties.
No Obligation by TOJA
TOJA has no obligation to accept, display, review or maintain any of Vendor’s Products. TOJA may, without notice, edit, replace and/or delete Vendor’s Product listings, including, but not limited to, if TOJA:
determines that Vendor is in breach of any provision of this Agreement or has violated (or are suspected by TOJA of violating) any Applicable Laws; and/or
deems it helpful or reasonably necessary to comply with any Applicable Laws, legal process, or governmental request, to enforce the Agreement (including investigations of potential violations thereof), to detect, prevent, or otherwise address fraud, security issues, and/or to protect against harm to the rights, property or safety of TOJA, its users, or the public. Additionally, TOJA may use mechanisms that rate or review or allow Subscribers to rate or review Vendor’s Products and TOJA may make these ratings and reviews publically available. TOJA will have no liability to Vendor for the content or accuracy of any rating or review.
Orders and Payment
Orders and Payment
As between Vendor and TOJA, Vendor shall be the “merchant of record” for Orders, and shall be solely responsible for charging any applicable taxes under an Order. Vendor shall offer its Products on the TOJA App with the applicable Discount.
Payment Method and Processing
Payments, invoice issuance and proceed collection (including any shipping and handling charges, gift wrap charges, admin fee (as defined hereunder), and any taxes) paid by Subscriber under an Order, through the TOJA App are processed via certain online payment Third Party Sources, such as Stripe (“Online Payment Services”). Vendor shall be entitled to receive, through the applicable payment processor, the applicable Purchase Price. TOJA may add or change such Third Party Sources at TOJA’s sole discretion. The Online Payment Services enable you to send or receive payments securely online using a credit card, debit card or bank account. TOJA does not control and are not affiliated with the providers of such Online Payment Services, as each is an independent contractor, neither is the agent or employee of the other, and neither is responsible in any way for the actions or performance (or lack thereof) of the other. The use of the Online Payment Services is at your sole discretion and liability. It is your responsibility to abide by all the terms specified by the Online Payment Services’ providers in their terms of use and privacy policies. You acknowledge that you are fully assuming the risks of conducting any transactions via the Online Payment Services in connection with our services. Any conflict between Online Payment Services and Vendor shall not include TOJA and shall be resolved solely between Vendor and the relevant Online Payment Services provider. For the avoidance of doubt, TOJA is not a “Payment Service Provider” as defined under the Payment Services Regulations 2017 (SI 2017/752) (“Payment Services Law”), and shall not be responsible for any liability arising out of the Payment Services Law.
Fulfilment
Following Order transmittance, Vendor shall be solely responsible and liable for fulfilment of the Order (including, but not limited to, organising all shipment, freight forwarded, and customs brokerage services), and shall fulfil the Order within the delivery time specified therein. Vendor shall comply with all Applicable Laws regarding the packaging of Products. Immediately following actual shipment of the Order, Vendor shall notify TOJA.
Cancellations, Returns and Refunds
Vendor will maintain a policy on Order cancellations, returns, and refunds (collectively, the “Returns and Refunds Policy”) in accordance with Applicable Laws (including, but not limited to, the Consumer Rights Act 2015 and the regulations enacted thereunder). Vendor shall, upon request from TOJA, furnish TOJA with a copy of the Returns and Refunds Policy, and shall in good faith consider any suggested changes thereto provided by TOJA. Vendor shall not make any modifications to its then-current Returns and Refunds Policy without giving TOJA at least 14 days’ prior written notice. Vendor shall be solely responsible and liable for implementing its Returns and Refunds Policy, and for determining if a Subscriber is entitled to a refund. Thereafter, Vendor will provide the refund to the Subscriber via the Subscriber’s original payment method.
For the avoidance of doubt, you explicitly acknowledge and agree that TOJA does not offer, and is not responsible nor liable for, any refunds of any amounts paid to Vendor by Subscribers over the TOJA App.
Features
General
All references herein to the “TOJA App” shall be deemed to include its Features as well. TOJA reserves the right to remove, modify, and/or add Features at any time, without any notice or obligation to Vendor, and for any reason whatsoever. Some Features may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by TOJA in its sole discretion. Moreover, if TOJA determines that Vendor is in breach of any provision of this Agreement, TOJA reserves the right to block Vendor from certain Features. TOJA makes Features available because it believes it enhances the user experience of the TOJA App; but Vendor acknowledges and agrees that just because TOJA makes a Feature available, it does not mean TOJA endorses, or can otherwise control, every manner in which such Feature is used. A new or modified Feature may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. TOJA may in its sole discretion charge for new Features.
Updates
All references herein to the “TOJA App” shall be deemed to include any Updates made available as well. TOJA may from time to time provide Updates, but shall not be under any obligation to do so. Such Updates will be supplied according to whatever then-current policies TOJA may have in place, and some Updates may in any event be limited, suspended or restricted by geography, volume, duration or any other criteria decided by TOJA in its sole discretion. Some Updates may include automatic updating or upgrading without any notice or obligation to Vendor, and Vendor consents to any such automatic updating or upgrading of the TOJA App. In some cases, Vendor may be required to install the Update manually. An Update may be accompanied by separate or additional terms and conditions, in which case such terms will (as determined in such terms and conditions) apply instead of, or in addition to, this Agreement. TOJA may in its sole discretion charge for Updates. TOJA is under no obligation to provide any technical support for the TOJA App.
Ownership and Content Licence
TOJA App
Vendor hereby acknowledges that the TOJA App is or may be protected by Intellectual Property Rights. Any rights not expressly granted herein are hereby reserved by TOJA and its licensors. As between Vendor and TOJA (and except for the Licence), TOJA is the sole and exclusive owner of all Intellectual Property Rights in and to the TOJA App, the Documentation, and all Content generated or otherwise provided or appearing on or in the TOJA App (except to the extent such Content constitutes Vendor’s Vendor Content). All trademarks appearing within the TOJA App or Documentation are the trademarks of their respective owners.
Vendor Content Ownership and Licences
As between Vendor and TOJA, Vendor is the sole and exclusive owner of its Vendor Content. Notwithstanding such ownership:
Vendor hereby grants TOJA and all TOJA Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable and perpetual licence, in any media format and through any media channels (now known or hereafter developed):
to access and use Vendor Content to perform under this Agreement, including without limitation to provide Vendor with the functionality of the TOJA App and any technical support; and
to access and use Vendor Content on an aggregated or otherwise anonymous basis for improving the TOJA App, marketing and promoting the TOJA App, analytics, and generally research and development,
((i) and (ii) collectively, the “TOJA Licence”). The TOJA Licence shall survive any termination of this Agreement.
To the extent Vendor has any Moral Rights in or to any of its Vendor Content, Vendor hereby unconditionally and irrevocably waives (and agrees never to assert) against TOJA, a TOJA Affiliate, TOJA’s licensors and suppliers, and/or any other TOJA App user, any such Moral Rights.
Feedback
If Vendor provides TOJA with any ideas, suggestions, or similar feedback about performance of the TOJA App and/or for improving the TOJA App (“Feedback”), Vendor hereby grants TOJA and all TOJA Affiliates a worldwide, assignable, non-exclusive, royalty-free, fully paid-up, sublicensable (through multiple tiers of sublicensees), irrevocable, and perpetual licence, in any media format and through any media channels (now known or hereafter developed), to access, use, reproduce, distribute, publish, broadcast, make available to the public, modify, adapt, edit, create derivative works of, publicly display, publically perform, and otherwise commercially exploit such Feedback (the “Feedback Licence”). Vendor hereby represents and warrants that:
its Feedback does not, and will not, infringe, misappropriate or violate any third party’s Intellectual Property Rights, or any Applicable Laws; and
it has obtained, and will maintain during and after any termination of this Agreement, all licences, permissions, consents, approvals, and authorisations required to grant the Feedback Licence.
The Feedback Licence shall survive any termination of this Agreement.
Disclaimers
The TOJA App, documentation, and any content whatsoever are provided and made available to Vendor on an “as is” and “as available” basis, with all faults, and without any representation, warranty, guarantee or condition of any kind whatsoever, whether express, implied or statutory, including without limitation any implied warranties of merchantability, fitness for a particular purpose, satisfactory quality, quiet possession, title, quality of service, non-infringement, or that otherwise arise from a course of performance or dealing, or usage of trade, all of which are hereby disclaimed by TOJA and its licensors and suppliers.
To the maximum extent permitted by applicable laws, neither TOJA nor its licensors or suppliers make any representation, warranty, guarantee or condition:
regarding the effectiveness, usefulness, reliability, availability, timeliness, accuracy, or completeness of the TOJA App, documentation, or such content;
that Vendor’s use of, or reliance upon, the marketplace, documentation, or such content will meet Vendor’s requirements or expectations;
that the TOJA App, documentation, or such content will be uninterrupted, secure, error-free or virus-free, or that defects in the TOJA App will be corrected; or
regarding the satisfaction of, or compliance with, any government regulations or standards.
Where Applicable Laws do not permit the disclaimer of certain implied warranties or conditions, and to the extent applicable to Vendor, TOJA limits the duration of such warranties and conditions to the duration of 90 days from the Effective Date.
Vendor acknowledges and agrees that this Clause 14 (Disclaimers ) is an essential basis of the bargain between Vendor and TOJA.
Limitation of Liability
Subject to Clause 15.2 and Clause 15.3, the combined aggregate liability of TOJA and all TOJA Affiliates under, or otherwise in connection with, this Agreement shall not exceed £5.
Subject to Clause 15.3, in no event shall TOJA, any TOJA Affiliate, or any of its licensors or suppliers be liable under, or otherwise in connection with, this Agreement, for:
any consequential, indirect or special losses;
any loss of profits, loss of business opportunity, loss of revenue, loss of anticipated savings or wasted costs;
any loss of, or damage to, data, reputation, or goodwill; and/or
the cost of procuring any substitute goods or services.
The exclusions and limitation of liability set out in this Clause 15 (Limitation of Liability ) do not apply to:
liability arising from death or injury to persons caused by negligence;
either party’s liability arising as a result of fraud or Malpractice; and
anything else which cannot be excluded or limited by Applicable Law,
to which no limit applies.
Vendor acknowledges and agrees that this Clause 15 (Limitation of Liability ) is an essential basis of the bargain between vendor and TOJA.
Indemnification
Vendor shall on demand indemnify TOJA from and against all Losses incurred by TOJA, a TOJA Affiliate and/or any of their respective directors, officers, employees, agents and representatives arising out of or in connection with:
Vendor’s use of the TOJA App;
any Products listed by Vendor on the TOJA App; and/or
Vendor’s breach of any provision of this Agreement (including, but not limited to, any inaccuracy of any of Vendor’s representations and warranties herein),
(each of the foregoing, an “Indemnity Claim”).
TOJA shall notify Vendor promptly of any Indemnity Claim of which it is aware and shall at its sole discretion and option, give Vendor express authority to conduct all negotiations and litigation arising from the Indemnity Claim; provided, however, that:
TOJA reserves the right, at any time thereafter, to take over full or partial control of the defence and/or settlement of the Indemnity Claim, and in such cases Vendor agrees to reasonably cooperate with TOJA’s defence activities at Vendor’s own cost and expense; and
Vendor shall not settle any Indemnity Claim or admit to any liability thereunder, without the express prior written consent of TOJA.
Term and Termination
Term
This Agreement commences on the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the “Term”).
Termination for Convenience by TOJA
TOJA reserves the right to immediately terminate this Agreement, or otherwise modify, suspend or discontinue Vendor’s access to and use of the TOJA App (or any part thereof), for any reason whatsoever, at any time, upon notice to Vendor, and Vendor agrees that TOJA shall have no liability to Vendor for any such termination, modification, suspension, or discontinuance.
Termination for Convenience by Vendor
Vendor may terminate this Agreement at any time and for any reason, but only by giving TOJA 30 days’ prior written notice, at help@toja.co.il. or such other email address notified by TOJA to Vendor from time to time. If Vendor objects to any term or condition of this Agreement or any subsequent changes thereto, or becomes dissatisfied with the TOJA App in any way, Vendor’s sole remedy is to terminate this Agreement.
Termination for Breach
Each party may terminate this Agreement immediately upon written notice to the other party:
if the other party commits a material breach under this Agreement and fails to cure that breach within 30 days after receipt of written notice specifying the material breach; and/or
if the other party becomes unable, admits its inability or is declared unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (as amended) or suspends or threatens to suspend making payments on any of its debts; ceases or threatens to cease to carry on the whole or a substantial part of its business; has levied upon its property or assets any distress or execution (or analogous process); proposes or enters into any voluntary arrangement, compromise, or composition or scheme of arrangement with, or for the benefit of, its creditors; has passed any resolution to wind up such other party (other than for the purpose of a bona fide reconstruction or amalgamation without insolvency), has presented against it any petition to wind up and such petition is not withdrawn or dismissed within 14 days or has an order for its winding up made against it; is the subject of a notice of intention to appoint an administrator, is the subject of a notice of appointment of an administrator, is the subject of an administration application, becomes subject to an administration order, or has an administrator appointed over it; has a receiver or administrative receiver appointed over all or any of its undertaking, property or assets; applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986; is dissolved or otherwise ceases to exist; or the equivalent of any of the events, proceedings or steps described in above in relation to such other party under the laws of any jurisdiction.
Consequences of Termination; Survival
Upon termination of this Agreement, the Licence will automatically terminate and be deemed revoked, and Vendor shall immediately cease use of the TOJA App, except to the extent strictly necessary for Vendor to fulfil any Orders issued before the termination effective date. Clause 13 (Ownership and Content Licence ) through Clause 20 (Miscellaneous ) shall survive termination of this Agreement, as shall any right, obligation or provision that is expressly stated to so survive, or that by its nature ought to survive. Termination shall not affect any rights and obligations accrued as of the effective date of termination.
Governing Law
This Agreement, and any non-contractual obligations arising out of or in connection with it, shall be governed by the laws of England and Wales and each party agrees to submit any dispute which may arise out of, under, or in connection with this Agreement to the exclusive jurisdiction of the courts of England.
Miscellaneous
Assignment
TOJA may assign this Agreement (or any of its rights and/or obligations hereunder) without Vendor’s consent, and without notice or obligation to Vendor. This Agreement is personal to Vendor, and Vendor shall not assign (or in any other way transfer) this Agreement (or any of its obligations or rights hereunder) without TOJA’s express prior written consent. Any prohibited assignment shall be null and void. Subject to the foregoing, this Agreement binds and benefits each party and its respective successors and assigns.
Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then:
the remaining provisions of this Agreement shall remain in full force and effect; and
such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
Remedies
Except as may be expressly stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
Waiver
No failure or delay on the part of any party in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Vendor, emails will be acceptable; for waivers by TOJA, the writing must be duly signed by an authorised representative of TOJA), and shall be valid only in the specific instance in which given.
Relationship
The relationship of the parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the parties.
No Storage
The TOJA App is not intended to, and will not, operate as a data storage product or service, and Vendor agrees not to rely on the TOJA App for the storage of any Vendor Account Content whatsoever. Vendor is solely responsible and liable for the maintenance and backup of all Vendor Account Content. Notwithstanding the foregoing, TOJA reserves the right to automatically download Vendor Account Content to TOJA’s cloud-based database(s).
Notices
Vendor agrees that TOJA may send Vendor notices by email, via Vendor’s Vendor Account, by regular mail and/or email. Except as stated otherwise in this Agreement, Vendor agrees to send all notices to TOJA, to help@toja.co.il. or such other email address notified by TOJA to Vendor from time to time.
No Third Party Beneficiaries
Except as otherwise expressly provided in this Agreement, the parties do not intend any third party to have the right to enforce any provisions of this Agreement under the Contracts (Rights of Third Parties) Act 1999 or otherwise, except where such third party is an assignee of rights under the Agreement and such assignment is in accordance with Clause 20.1 (Assignment ). The parties may rescind, terminate or vary the Agreement without the consent of any third party.
Force Majeure
TOJA shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any:
act of God;
war, riot or civil commotion;
governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages; and/or
other similar cause beyond TOJA’s reasonable control.
For the avoidance of doubt, any problems relating to the hosting of the TOJA App shall not be deemed within TOJA’s reasonable control.
Counterparts
This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument.
Distributor Requirements and Usage Rules
Apple. If you download the TOJA App from the Apple, Inc. (“Apple”) App Store (or in any event if you download an Apple iOS App) then, without derogating from the warranty disclaimers and limitation of liability as set forth in the Agreement:
you acknowledge and agree that:
this Agreement is concluded between TOJA and you only, and not with Apple, and TOJA and its licensors, and not Apple, are solely responsible for the TOJA App and the content thereof.
your use of the TOJA App is also subject to the Usage Rules established by Apple, including those set forth in the Apple App Store Terms of Service, effective as of the date that you enter into this Agreement.
the Licence granted herein is limited to a non-transferable right to use the TOJA App on an Apple iPhone, iPod Touch, iPad, or other Apple-branded product that you own or control and that runs the iOS;
TOJA is solely responsible for providing any maintenance and support services with respect to the TOJA App, as specified in this Agreement, or as required under Applicable Law. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the TOJA App;
TOJA is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the TOJA App to conform to any applicable warranty, you may notify Apple, and Apple will, to the extent applicable, refund any purchase price paid (if any) by you for the TOJA App to you. To the maximum extent permitted by Applicable Laws, Apple will have no other warranty obligation whatsoever with respect to the TOJA App, and, any other Losses attributable to any failure to conform to any warranty will be TOJA’s sole responsibility;
TOJA, and not Apple, is responsible for addressing any product claims you, or any third party, may have relating to the TOJA App or your possession and/or use of the TOJA App, including, but not limited to:
product liability claims;
any claim that the TOJA App fails to conform to any applicable legal or regulatory requirement; and
claims arising under consumer protection or similar legislation, including in connection with the TOJA App’s use of HealthKit and HomeKit frameworks;
in the event of any third party claim that the TOJA App or your possession and use of the TOJA App infringes that third party’s Intellectual Property Rights, Apple shall not be responsible for the investigation, defence, settlement and discharge of any such Intellectual Property infringement claim;
Apple, and its subsidiaries, are third party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof.
You represent and warrant that you are not sanctioned, restricted or designated under any sanctions, restrictions or designations imposed by the European Union, the United States or the United Kingdom or any other country with jurisdiction over you.
If you have any questions, complaints, or claims regarding the TOJA App, please contact TOJA at:
Email: help@toja.co.il
By entering into this Agreement you, to the extent legally permitted, hereby waive any Applicable Law requiring that this Agreement be localised to meet your language and other local requirements. To the extent that the foregoing is not permitted, you agree to be bound by the standard Apple Licensed Application End User Licence Agreement which is part of the Apple App Store Terms of Service, at www.apple.com/legal/itunes/us/terms.html#SERVICE (as amended from time to time).
Last updated: August 2022