Updated as of February 20, 2024
This Old House Terms of Service
READ THE DISPUTE RESOLUTION TERMS IN SECTION 20 BELOW CAREFULLY, THEY SUPERSEDE AND REPLACE ALL PRIOR TERMS FOR RESOLVING DISPUTES BETWEEN YOU AND TOH, REQUIRE YOU AND TOH TO ARBITRATE CERTAIN CLAIMS, AND LIMIT HOW YOU AND TOH CAN SEEK RELIEF FROM EACH OTHER. WITH LIMITED EXCEPTIONS, THESE TERMS PRECLUDE YOU AND TOH FROM SUING IN COURT OR PARTICIPATING IN A CLASS ACTION AND YOU AND TOH AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER REPRESENTATIVE PROCEEDING. YOU AND TOH ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY. FOLLOW THE INSTRUCTIONS BELOW IN SECTION 20(L) IF YOU WISH TO OPT OUT OF THE REQUIREMENT TO ARBITRATE.
Each time you access the Services, you signify that you have read and understand, and agree to be bound by these Terms as they exist at the time you access the Services. You represent and warrant you are an individual of legal age to form a binding contract.
1. Use of the Services
You shall only use the Services in accordance with these Terms and Applicable Laws (defined below). You will need to register to access and use certain features of the Services, including our “Insider” subscription program (“Insider”) and magazine products. To the extent you provide any information in connection with your Insider or other account on the Services (“Account”), you agree to: (a) provide true, accurate, current, and complete information; and (b) maintain and update such information to keep it true, accurate, current, and complete. If any information you provide is or becomes inaccurate or incomplete, we have the right to suspend or terminate your access to the Services. You are responsible for obtaining and maintaining all equipment and services needed for access to and use of the Services at your own cost.
We do not make any claims that the Services or any content is accessible or appropriate outside of the United States. Access to the Services may not be legal by certain persons or in certain countries. If you access the Services from outside the United States, you do so on your own initiative and are responsible for compliance with local laws and regulations.
The Services are not intended for children. If you are under 18, do not use the Services and do not provide us with any personal information (as defined by Applicable Laws).
2. Content Disclaimer
All content made available on or through the Services is intended for general information, general discussion, education, and entertainment purposes only and are provided “as is”. TOH does not represent or endorse the accuracy or reliability of any advice, opinion, statement, or other information displayed or distributed through the Services. You acknowledge and agree that any reliance upon any such opinion, advice, statement, or information shall be at your sole risk. You agree that TOH, its parents, affiliates, and subsidiaries shall not be held responsible or liable, directly or indirectly, for any loss or damage caused or allegedly caused in any way whatsoever related to any advice, opinions, statements or other information published, displayed, or distributed through the Sites or the Services. The information, advice, statements, and opinions provided are not a substitute for professional advice.
3. Modifications to the Services
We may change, suspend, or discontinue, temporarily or permanently, any aspect of the Services at any time in our sole discretion, including the availability of any Service feature, database, or content. We may also impose limits on certain features and functionality or restrict your access to parts or all of the Services without notice or liability.
4. Modification to these Terms
We may change these Terms at any time by notifying you of the change in writing (including by email or by updating the “Updated” date above). The changes will be effective immediately upon posting the changes. If any of the Terms or any future changes are unacceptable to you, you must not use the Services. Your continued use of the Services shall mean you agree to and accept such Terms or changes. We encourage you to review our Terms regularly; it is your responsibility to review these Terms prior to each use of the Services.
5. Use of Personal Information
6. Prohibited Uses of the Services
You shall not, and shall not permit or encourage third parties to, use the Services to:
- violate any applicable local, state, federal, or international laws or regulations (“Applicable Laws”);
- circumvent, reverse engineer, decrypt, or alter the Services, or any content thereof, or make any unauthorized use thereof;
- publish or promote any content or material that is abusive, harassing, tortious, defamatory, vulgar, pornographic, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
- transmit any unsolicited or unauthorized advertising or promotional material, junk mail, spam, chain letters, or any other similar solicitation;
- display or distribute any content that infringes any patent, trademark, trade secret, copyright, right of publicity, or other proprietary rights;
- introduce adware, malware, spyware, viruses, trojan horses, worms, logic bombs, or any other malicious code designed to interfere with our systems;
- stalk, harass, or harm another individual or attempt to exploit or impersonate any person or entity, or misrepresent your affiliation with a person or entity;
- harm minors in any way by exposing them to inappropriate content;
- use any “robot,” “spider,” “rover,” “scraper” or any other data-mining technology or automatic or manual process to scape, monitor, cache, frame, mask, extract data from, copy or distribute any data from the Services, our network or databases;
- do anything that could disable, damage, or change the functioning or appearance of the Services, including the presentation of advertising or content or use any features of the Services for anything other than their intended purpose; or
- attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Services or Sites, including the server on which the Services are stored, or any server, computer or database connected to the Services.
7. Intellectual Property
The Services and the content made available through the Services (“Content”), including without limitation all text, software, photographs, graphics, illustrations, artwork, video, music, audio, names, logos, trademarks and service marks, are protected by copyrights, trademarks, patents, trade secrets, database rights and other intellectual property and proprietary rights, are owned by TOH or our affiliates and licensors. Content may only be used for your personal, non-commercial use. You shall not to modify, publish, perform, reproduce, retransmit, distribute, transfer, disseminate, broadcast, sell or create derivative works of any Content or the Services (including software embodied therein), in whole or in part, without the prior written consent of TOH. TOH grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license to use the Sites and any Content on the site solely for non-commercial purposes subject to these Terms. You shall abide by all additional copyright notices, information, or restrictions contained in any Content accessed through the Services.
8. Trademarks and Logos
The terms This Old House, www.thisoldhouse.com, and other This Old House trademarks and service marks, and all related names, logos, product and service names, designs, slogans, and other commercial branding are trademarks (“TOH Marks”) of TOH and its affiliates. You are not authorized to use any TOH Marks without the prior written consent of TOH in each instance. The TOH Marks are the sole property of TOH, and all goodwill associated therewith remains with and will inure to the benefit of TOH and its affiliates and permitted assigns.
9. Content You Provide
To the extent you upload, post, or submit any content on or to the Services, you represent to us that you have all the necessary legal rights to upload, post, or submit such content and it will not violate any law or the intellectual property, publicity, privacy, or other rights of any person. You shall not upload to or distribute or otherwise publish on to the Services any libelous, defamatory, obscene, pornographic, abusive, or otherwise illegal material. You agree not to provide material and misleading information and with intent to defraud.
You acknowledge any submissions you make to the Services (including but not limited to, comments, messages, reviews, text, video, audio and photographs (each, a “User Submission“) may be edited, removed, modified, published, transmitted, and displayed by TOH and you waive any rights you may have in having the material altered or changed in a manner not agreeable to you. User Submissions may be public and posted in public areas. TOH and affiliates will not be responsible for the action of any visitors or third parties with respect to any information, materials or content posted through the Sites or Services.
You hereby grant TOH and its affiliates, representatives, sublicensees, and assigns an irrevocable, perpetual, non-exclusive, sub-licensable, royalty-free and fully-paid, license throughout the world to use, copy, transmit, excerpt, publish, distribute, display, publicly perform, create derivative works of, host, index, cache, tag, encode, modify and adapt, in any form or media now known or hereinafter developed, any User Submission posted by you on or to the Services or any Sites, including through a third party. You hereby irrevocably waive any claims and assertions of moral rights or attributions with respect to your User Submissions. You acknowledge and agree that you are solely responsible for the content of all your Submissions. Any Submission you post to the Sites or Services will be considered non-confidential.
We are not required to backup, host, display, or distribute any Submissions, and may remove at any time or refuse any Submissions. We are not responsible for any loss, theft or damage of any kind to any User Submissions. You represent and warrant that your User Submissions and our authorized use of such submissions do not and will not infringe the rights of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal or moral rights). You may not represent or imply to others that your User Submissions are in any way provided, sponsored or endorsed by TOH. You, and not we, are responsible for any consequences of sharing private information about yourself on public areas of the Services, such as your home address or the home address of others.
TOH reserves the right to refuse, remove, or edit User Submissions that it deems abusive, defamatory, obscene, in violation of Applicable Laws, in violation of these Terms, or otherwise offensive, unacceptable, or unsuitable in its sole discretion.
Without limiting the foregoing, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information related to anyone posting any materials on or through the Services.
10. Fees and Payments
We reserve the right at any time to charge fees for access to the Services or to any specific feature or content that we may introduce from time to time, including without limitation the Insider program. You will not be charged for access to any part of the Services unless we obtain your prior agreement to pay such fees. If you do not consent to the payment of such fees, however, you may not have access to some portion of the Services. All new fees and any additional related terms, if any, will be posted prominently on the Site and in other appropriate locations on the Service. You shall pay all fees and charges incurred through your Account at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any products or services offered for sale through the Services by us or by any other vendor or service provider. All fees and charges shall be billed to and paid for by you. You shall pay all applicable taxes relating to use of the Services through your Account. Where applicable, any payment obligations you incur under these Terms shall survive any termination of these Terms or your access to the Services.
11. Registration and Security
If you register for the Insider membership program, you will need to create a username and password. You are responsible for maintaining the confidentiality and security of your Account username and password or other information associated with your Account, and you are solely responsible for all activities that occur under your Account. You agree to immediately change your password and notify us if you suspect or become aware of any unauthorized use of your password or any other breach of security related to the Services. We reserve the right to require you to alter your password if we believe that your password is no longer secure. You agree that TOH will not be liable for any loss or damage arising from your failure to adequately safeguard your password or use of your Account(s).
12. Third Party Links and Services
The Sites may contain links to third party websites, content, and advertisers. Such links do not signify or imply TOH’s endorsement of any third parties. TOH does not control, endorse, sponsor, recommend or otherwise accept responsibility for any of this third-party material. You use those links at your own risk and should apply a reasonable level of caution and discretion in doing so. We do not review or monitor any websites, content, advertisements, or other media linked to or available through the Sites and are not responsible for the content of any such third-party advertisements or linked websites.
Prior to purchasing any third-party products or services described on the Sites, you are advised to verify pricing, product quality and other information necessary to make an informed purchase. Neither TOH nor its affiliates shall have any liability arising from your purchases of third-party products or services based upon the information provided on the Sites, and we shall not receive or review complaints regarding such purchases.
We may also make our Content available on third-party websites, applications, or online services, including without limitation YouTube and other social media platforms. Your access and use of our Content and accounts and channels on these third-party websites, applications, and online services is subject to the third party’s terms of service. We are not responsible for the actions, content, or practices of any third party you use to access the Services. Accordingly, we recommend that you review their terms of service.
13. Termination and Suspension
You can cancel your Insider Account at any time for any reason by emailing us here with the subject “Close My Account”. You may need to provide certain information in order for us to validate your Account. You may also terminate your Insider Account by adjusting your settings in the “Cancel My Account” section.
We reserve the right to terminate or suspend your access to all or part of the Sites or Services for any or no reason, without notice, including without limitation, if you violate these Terms or Applicable Law, or engage in any conduct we, in our sole discretion, believe is otherwise harmful to our interests or any third party (including other users of the Services). You agree TOH and its affiliates shall not be liable to you or any third party for suspending or terminating your access to the Services (or any portion thereof). You may discontinue your participation in and access to the Services at any time. We reserve the right to investigate your use of the Services if we, in our sole discretion, believe you have violated these Terms. These Terms shall survive any termination of your Account or access to the Services.
14. Confidential Information
Any non-public information obtained by you via your Account or disclosed directly to you by us (“Confidential Information”) shall be kept confidential by you, and used only for the purpose of interacting with and transacting on the Services, and shall not be disclosed by you in whole or in part, directly or indirectly to any third party, provided that: (a) you may disclose such information to your employees, representatives and other professional advisors who have a need to know such information and are bound by a duty of confidentiality. Confidential Information excludes information that: (i) was in your lawful possession before it was disclosed, without confidentiality restrictions; (ii) you obtain from a third party on an unrestricted basis other than through breach of these Terms or breach of any other obligation of confidentiality on you or the third party; (iii) is developed by you independently of us and any information received by you from us; or (iv) is disclosed in connection with any legal, governmental or administrative proceeding, provided that prior written notice of such disclosure is furnished to TOH in order to afford TOH a reasonable opportunity to seek a protective order.
15. Representations and Warranties
You represent, warrant and covenant (a) that you will comply with all Applicable Laws in your use of the Sites and Services execution, delivery and performance of any aspect(s) of these terms will not violate any Applicable Laws, or any other agreement by which you are bound; (b) that no materials of any kind submitted through the Services or your Account will (i) violate, plagiarize, or infringe upon the rights of any third party, including copyright, trademark, privacy or other personal or proprietary rights; or (ii) contain or promote libelous, obscene, unlawful material or any other content prohibited under these Terms; and (c) that you are at least 18 years old.
16. Indemnification and Defense
17. Disclaimer of Warranties
YOU ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES AND CONTENT IS AT YOUR SOLE RISK. WE PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. TOH MAKES NO WARRANTY THE SERVICES WILL MEET YOUR REQUIREMENTS OR AS TO THE ACCURACY OF ANY INFORMATION OR MATERIALS PROVIDED VIA THE SERVICES OR THEIR SUITABILITY FOR ANY PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ALWAYS AVAILABLE, UNINTERRUPTED, SECURE, WITHOUT VIRUSES OR OTHER HARMFUL COMPONENTS, OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. THERE MAY BE DELAYS, OMISSIONS, INTERRUPTIONS, AND INACCURACIES IN THE CONTENT OR OTHER MATERIAL MADE AVAILABLE THROUGH THE SERVICES.
YOU ACKNOWLEDGE AND AGREE THAT ACCESS TO INFORMATION AND MATERIALS YOU SUBMIT THROUGH THE SERVICES IS NOT GUARANTEED, AND THAT WE SHALL NOT BE RESPONSIBLE TO YOU FOR ANY LOSS OF INFORMATION OR MATERIALS CAUSED BY THE SERVICES. YOU AGREE THAT ANY MATERIAL AND/OR INFORMATION OBTAINED THROUGH USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE, OPINION, STATEMENT, OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOH OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
TOH AND ITS AFFILIATES WILL NOT BE RESPONSIBLE IN ANY WAY FOR ANY LOSS OR DAMAGE THAT YOU INCUR IN THE EVENT OF: (I) ANY FAILURE OR INTERRUPTION OF THE SERVICES; (II) ANY ACT OR OMISSION OF ANY THIRD PARTY INVOLVED IN MAKING THE SERVICES OR THE DATA CONTAINED HEREIN AVAILABLE TO YOU; (III) ANY OTHER CAUSE RELATING TO YOUR ACCESS OR USE, OR INABILITY TO ACCESS OR USE, ANY PORTION OF TTHE SERVICES OR MATERIALS ON THE SERVICES; (IV) YOUR INTERACTION OR USER SUBMISSIONS ON THE SERVICES; OR (V) FROM YOUR FAILURE TO COMPLY WITH THIS AGREEMENT.
THE SERVICES MAY INTEGRATE WITH OR LINK TO WEBSITES, APPLICATIONS, CONTENT, TOOLS, OR SERVICES PROVIDED BY THIRD PARTIES. YOU AGREE THAT YOUR USE OF SUCH THIRD-PARTY SITE, CONTENT, AND TOOLS, IS AT YOUR OWN RISK, IS SUBJECT TO THE THIRD PARTY’S TERMS, AND YOU AGREE TO COMPLY WITH SUCH THIRD-PARTY TERMS. TOH WILL NOT BE RESPONSIBLE OR LIABLE FOR THE CONTENT, ACTIVITIES, OR PRACTICES OF ANY THIRD-PARTY WEBSITES, APPLICATIONS, CONTENT, TOOLS, OR SERVICES.
18. Limitations of Liability
IN NO EVENT WILL TOH OR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, SUPPLIERS, ADVERTISERS, OR CONTENT PROVIDERS (“TOH PARTIES”), BE LIABLE (JOINTLY OR SEVERALLY) TO YOU OR ANY THIRD PARTY UNDER THESE TERMS FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OR ANY OTHER LOSS OR DAMAGES, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUES, OR LOSS OF GOODWILL, EVEN IF TOH, THEIR AFFILIATES OR ANY OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF WHETHER THE ALLEGED LIABILITY IS BASED ON NEGLIGENCE, TORT, CONTRACT, OR ANY OTHER THEORY OF LIABILITY, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IF ANY PORTION OF THIS SECTION IS DEEMED UNENFORCEABLE, THEN THE TOH PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. NOTHING IN THESE TERMS EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR DAMAGES OR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.
19. Copyright & Content Takedown
If you believe in good faith that certain content appearing on our website or through our products and services infringes upon your copyright, other proprietary rights, or contains prohibited or illegal content, send us a takedown notice. Please follow the procedures below to request a takedown of any infringing or prohibited content appearing on our website or through our products and services. Failure to provide the required information may make your claim ineffective and/or action may be delayed until your submission is complete.
All claims should be sent to our designated Copyright Agent at firstname.lastname@example.org, or by registered mail to TOH Intermediate Holdings, LLC, Attn: Copyright Agent, 262 Harbor Drive, Stamford CT 06902 USA.
For international legal process requirements, the acceptance of a claim by email or mail is merely for convenience and does not waive any rights or objections, such as lack of jurisdiction or proper service.
Upon receipt of a proper notice of a claim, we will either
- Remove or disable access to the content that is alleged to be infringing or prohibited (if the content is under our control); or
- Forward the claim to the content provider who is providing the allegedly infringing or prohibited content, along with your contact information, for their resolution; or
- Notify the content provider that we will remove or disable access to the allegedly infringing or prohibited content, unless the channel and/or content provider promptly removes the content or responds with a counternotice.
Notice of Alleged Copyright Infringement
If you believe that your copyrighted work has been copied or appears in content provided through Services in a way that constitutes copyright infringement, please provide us with the following information:
- An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- A description of the copyrighted work that you claim has been infringed;
- A copy of the registration of your copyrighted work (and/or the date when the claimed copyrighted work was first published);
- A description specifying the date and location (such as URL) of the material that you claim is infringing;
- Your name, address, telephone number, and e-mail address;
- A written statement from you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Notice of Alleged Infringement of Other Rights or Prohibited Content
If you believe in good faith that any content appearing on our website or through our products or services infringes other proprietary rights or contains prohibited or illegal content, please provide us with the following information:
- A detailed description of the infringing or prohibited material or activity including why it is infringing or prohibited;
- A detailed description specifying the date, time, and location (such as URL) of the material that you claim is infringing or prohibited (as applicable); and
- Your name, address, telephone number and e-mail address.
Counternotices to Alleged Claims
If you believe that a claim has been improperly submitted against you, you may submit a counternotice, and provide us with the following information:
- Your physical or electronic signature;
- Identification of the content (that has or will be) removed or to which access has been (or will be) disabled;
- A statement under penalty of perjury that you have a good faith belief that removal or disablement of the content was (or would be) a mistake or that the content was misidentified; and
- Your name and telephone number, and (unless prohibited by applicable laws) a statement that you consent to the jurisdiction of the Federal District court (1) in the judicial district where your address is located, if the address is in the United States, or (2) in Santa Clara County, California, if your address is located outside the United States and that you will accept service of process from the complainant submitting the notice.
Upon receipt of a proper notice of a counternotice, we will provide the complainant with a copy of your counternotice and will remove the content or cease enabling access to it, unless, within 10 business days, the complainant provides notice to our copyright agent that the complainant has filed an action seeking a court order to restrain the channel and/or content provider from engaging in such infringing activity.
20. Dispute Resolution; Binding Individual Arbitration; Class-Action Waiver
A. Claims Subject to These Dispute Resolution Terms. These Dispute Resolution Terms apply to all Claims between you and TOH, including those that arose before and after you accepted any version of these terms containing an arbitration provision. A “Claim” is any dispute, claim, cause of action, or controversy between you and TOH, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that arises from or relates to your TOH account, any of our products, software, or services, any advertising or promotions conducted by or for TOH, or any use or disclosure of your information or information about you, or claims related to the arbitrability, validity, enforceability or scope of any TOH consumer terms and conditions between you and TOH (including these Dispute Resolution Terms) or any portion of them.
B. Customer Service Resolution. Our customer support team is available to address concerns you may have regarding our products, software, and services. You may contact them by visiting https://www.thisoldhouse.com/pages/contact-us. Most matters can be quickly resolved in this manner to our customers’ satisfaction.
C. Required Informal Dispute Resolution. Except for IP Claims (defined in Section 20(D)) and Claims requiring a temporary restraining order, if either of us has a Claim against the other, both of us must first attempt to resolve the Claim informally before the Claim may be brought in arbitration. You and TOH will make a good-faith effort to negotiate for 45 days towards the resolution of any Claim, or for a longer period as mutually agreed in writing by you and TOH, (“Informal Resolution Period”) from the day you or TOH receive a written notice of a Claim from the other party (a “Claimant Notice”) meeting the requirements described below.
You will send any Claimant Notice to TOH by certified mail addressed to General Counsel, TOH Intermediate Holdings, LLC, 262 Harbor Drive, Stamford CT 06902, or to TOH’s registered agent for service of process. TOH will send any Claimant Notice to you by certified mail using the current postal address you provided in your TOH account. If you did not provide your postal address to us, TOH will send any Claimant Notice to the email address associated with your TOH account, which you have provided to us. The Claimant Notice sent by either party must provide factual information sufficient for the receiving party to evaluate the individual Claim and must (i) include the claimant’s name, address, email address, and any relevant purchase information and product information; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief requested, including a good-faith explanation of how the specific relief requested was determined.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of resolution if it chooses to do so. During the Informal Resolution Period, you and TOH will participate in an individual meet-and-confer (“Meet-and-Confer”) in person or via teleconference or videoconference. The Meet-and-Confer will address only the Claims between you and TOH. If you are represented by counsel, your counsel may participate in the Meet-and-Confer, but you will still need to be present for the Meet-and-Confer. TOH will participate through one of its representatives, and its counsel may also be present. You or TOH can file a Claim in arbitration only upon completion of the Meet-and-Confer for your Claim and only after the end of the Informal Resolution Period.
If you or TOH file a Claim in arbitration without complying with the requirements in these Dispute Resolution Terms, including waiting until the conclusion of the Informal Resolution Period and completion of the Meet-and-Confer, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party who has not followed the requirements, including to reimburse that party for any reasonable costs and fees—including arbitration fees, attorney fees, and expert fees.
The statute of limitations and any filing-fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that you and TOH can engage in this informal dispute-resolution process.
D. Claims Subject to Binding Arbitration; Exceptions. Except for “IP Claims,” which are disputes that exclusively relate to infringement of your or TOH’s intellectual-property rights (such as patent, copyright, trademark, tradename, trade dress, trade secret, or moral rights, but excluding any privacy or publicity rights), both parties agree that all Claims meeting the requirements of Section 20(C) that are not resolved during the Informal Resolution Period, including Claims that are unrelated to IP Claims but are jointly filed with IP Claims, will only be resolved by a neutral arbitrator through final and binding arbitration instead of in a court.
E. Binding Individual Arbitration. Subject to the terms of Sections 20(C) and 20(F), a Claim not excluded under Section 20(D) may be resolved only by binding individual arbitration conducted by American Arbitration Association (the “AAA”), https://adr.org/, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”). For Claims arbitrated by AAA, if you are a “Consumer,” meaning that you only use our products, software, or services for personal, family, or household purposes, the rules applicable to Claims between you and TOH (the “Applicable Rules”) are the then-current version of the AAA’s Consumer Arbitration Rules, as modified by these Dispute Resolution Terms.
If the AAA notifies the parties in writing that it is not available to arbitrate any such Claim, that Claim may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), www.namadr.com, according to the FAA. For Claims arbitrated by NAM, the Applicable Rules are the then-current version of NAM’s Comprehensive Dispute Resolution Rules and Procedures, as modified by these Dispute Resolution Terms.
The enforceability of these Dispute Resolution Terms will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, these Dispute Resolution Terms, and the Applicable Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim in arbitration and to grant any remedy or relief that would be available in a court under law or in equity.
To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or TOH to satisfy one of the Individual Claims. The arbitrator’s award shall be binding on both you and TOH and may be entered as a judgment in any court of competent jurisdiction. You and TOH understand that absent these Dispute Resolution Terms, each would have the right to sue in court and have a jury trial. You and TOH further understand that the right to discovery may be more limited in arbitration than in court.
You or TOH may initiate arbitration of any Claim meeting the requirements of Section 20(C) that are not resolved during the Informal Resolution Period by filing a demand for arbitration with the AAA in accordance with the Applicable Rules (or with NAM in accordance with the Applicable Rules if applicable pursuant to this Section 20(E)). Instructions for filing a demand for arbitration with the AAA are available on the AAA website or by calling the AAA at 800-778-7879, and instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550.
You will send a copy of any demand for arbitration to TOH by certified mail addressed to General Counsel, TOH Intermediate Holdings, LLC, 262 Harbor Drive, Stamford CT 06902 or to TOH’s registered agent for service of process. TOH will send any demand for arbitration to you by certified mail using the current postal address you provided in your TOH account. If you did not provide your postal address to us, TOH will send any arbitration demand to the email address associated with your TOH account, which you have provided to us.
Any such arbitration shall be conducted by you and TOH in our respective individual capacities only and not as a class action or other representative action, and we each waive the right to file a class action or seek relief on a class basis, unless otherwise stated in these terms. If any court or arbitrator determines that the class-action waiver set forth in the preceding sentence is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth in these Dispute Resolution Terms shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims. Any such Claims so released from arbitration (that the parties do not settle) must be resolved by bench trial in court in accordance with Section 23 of these Terms.
F. Small Claims. You or TOH may pursue any Claim, except IP Claims, in a small-claims court instead of through arbitration if (i) the Claim meets the jurisdictional requirements of the small claims court and (ii) the small claims court does not permit class or similar representative actions or relief.
G. Arbitration Fees. Except for the circumstances outlined in Sections 20(H) and 20(I) and for Mass Arbitrations (as defined in Section 20(K)), to the extent the initial-filing fee for the arbitration exceeds the initial filing fee for a lawsuit, TOH will pay the difference in fees
H. Frivolous or Improper Claims. To the extent permitted by law, a claimant must pay all reasonable costs and fees incurred by the responding party—including arbitration fees, attorney fees, and expert fees—related to a Claim if an arbitrator or court determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, including to harass the responding party, cause unnecessary delay, or increase the cost of dispute resolution.
I. Offers of Settlement. Either party may, but is not obligated to, make a written settlement offer for a Claim. If an arbitration decision or award is later issued that is less favorable than the last written offer of settlement that a party did not accept, then that party must pay all reasonable costs and fees—including arbitration fees—incurred by the offering party after the written settlement offer was made.
J. Confidentiality. If you or TOH serve a Claimant Notice, you and TOH agree to cooperate to seek protection for any confidential, proprietary, trade-secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of any discovery. You and TOH agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery.
K. Mass Arbitrations. If 25 or more Claimant Notices are received by a party within 180 days of the first Claimant Notice that the party received, and all such Claimant Notices raise similar Claims and have the same or coordinated counsel, then these claims will be considered “Mass Arbitrations.” You or TOH may advise the other if you or TOH believe that the Claims at issue are Mass Arbitrations, and disputes over whether a Claim meets the definition of “Mass Arbitrations” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.
Mass Arbitrations may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in a Mass Arbitration from the time a compliant Claimant Notice has been received by a party until these Dispute Resolution Terms permit such Mass Arbitration to be filed in arbitration or court.
Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Mass Arbitrations has advised the other party in writing that all or substantially all the Claimant Notices for the Mass Arbitrations have been submitted.
After that point, counsel for the parties will select 20 Mass Arbitrations to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 10 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. You and TOH acknowledge that resolution of some Mass Arbitrations will be delayed by this bellwether process. Any remaining Mass Arbitrations shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 20(K).
A single arbitrator will preside over each Mass Arbitration chosen for a bellwether proceeding, and only one Mass Arbitration may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Mass Arbitrations, with the mediator’s fee paid by TOH, Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Remaining Claims: If the mediation does not yield a resolution of all remaining Mass Arbitrations, the requirement to arbitrate in these Dispute Resolution Terms will no longer apply to Mass Arbitrations for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether proceedings. Such Mass Arbitrations released from the requirement to arbitrate must be resolved by bench trial in accordance with Section 23 of these terms.
If Mass Arbitrations released from the requirement to arbitrate are brought in court, they are subject to a waiver to jury trial by both parties. Claimants may seek class treatment, but to the fullest extent allowed by applicable law, the class sought may comprise only the claimants in Mass Arbitrations for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
Courts will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with these processes.
L. 30-Day Right to Opt Out. You have the right to opt out of arbitration by sending written notice of your decision to opt out to the following address by mail: General Counsel, TOH Intermediate Holdings, LLC, 262 Harbor Drive, Stamford CT 06902 within 30 days of you first becoming subject to these Dispute Resolution Terms. Such notice must include the name of each person opting out and contact information for each such person, the specific software or services used that are at issue, the e-mail address that you used to set up your TOH account (if you have one), and, if applicable, a copy of your purchase receipt. For clarity, opt-out notices submitted via any method other than mail (including email) will not be effective. If you send timely written notice containing the required information in accordance with this Section 20(L), then neither party will be required to arbitration the Claims between them.
22. Electronic Notices
Your affirmative act of using, registering, or logging into the Services constitutes your acceptance of these Terms. We may provide notices to you electronically (1) via email if you have provided us with a valid email address or (2) by posting the notice on a website designated by us for this purpose. The delivery of any notice is effective when sent or posted by us, regardless of whether you read the notice or receive delivery.
23. Governing Law All Claims shall be subject to, governed by, construed, and interpreted in accordance with the laws of the State of Delaware, USA, except for its conflict of law rules.
All Claims not subject to arbitration pursuant to these Terms and that cannot be heard in small claims court will be resolved exclusively and have jurisdiction in the courts located in New Castle County, Delaware.
25. Miscellaneous Terms
These Terms, together with any additional terms and conditions incorporated by reference or to which you agree when using specific parts of the Services, if any, constitute the sole and entire agreement between you and us with respect to the subject matter of these Terms and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Services and Sites.
In the event of any conflict between these Terms and terms of a specific site within the Services, these Terms shall govern.
You may not assign or transfer your rights or obligations under these Terms to any person or entity without our prior written consent.
We will not be liable or responsible for any failure to perform, or any delay in the performance of, any of our obligations under these Terms that is caused by any event or circumstances beyond our reasonable control, including any natural disaster, war, or pandemic, failure or disruption of public or private telecommunications networks, delays or latency due to your physical location, or your wireless data service provider’s network.
Sections 2, 7-9, and Sections 14-25, as well as any limitations on liability explicitly set forth herein and other terms or conditions which by their nature are reasonably intended to survive termination of these Terms, shall survive any termination and remain in full force and effect notwithstanding any termination of these Terms or your use of the Services.
The section headings in these Terms are for convenience only and have no legal effect.
Neither party shall be deemed an employee, agent, partner, joint venture or legal representative of the other for any purpose, and neither shall have any right, power or authority to create any obligation or responsibility on behalf of the other with respect to these Terms. In no event shall you be deemed one of our employees or entitled to any of our employee benefits. No third party shall have any rights to enforce any of the provisions contained in these Terms.
If you wish to contact us in writing, have questions or a complaint, or are required to give us notice in writing, please contact us at email@example.com or by mail to TOH Intermediate Holdings LLC, 262 Harbor Drive, Stamford CT 06902 USA. For other inquiries, you may also contact us as described here.