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March 26, 2021

TOGL-ON BUSINESS MEMBERSHIP AGREEMENT

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING TOGLON.COM, TOGLONPRO.COM or ANY DIGITAL APPLICATION RELATED TO TOGL-ON OR TOGL-ON PRO. (Collectively “TOGL”).

InterMedia Development, Inc. d/b/a Togl-On (“TOGL”) connects consumers (collectively, “Consumers”) with TOGL Businesses and Service Providers (collectively “Members”) that have immediate or Same-Day availability within their specified geographical radius. For the purposes of this agreement, all references to “you” or “your,” as applicable, mean the individual who accesses, uses, and/or participates in TOGL or the TOGL Program in any manner. On behalf, or as a representative of a Business Member or Service Provider (Business), you represent and warrant that you have the authority to join TOGL and be bound by these Terms of Use. Your acceptance of the Agreement will be deemed an acceptance by that Business and “you” or “your” shall herein refer to that Business. As a paid Business Member, you will be able to use toglonpro.com, the Togl-On Pro mobile application and the information contained therein, subject to the Terms of Use contained in this Togl-On Business Membership Agreement.

1. ACCEPTANCE OF TERMS
   Toglon.com, Toglonpro.com and all Togl-On related digital applications (Collectively,” TOGL” or “Program”) are fully owned, controlled and operated by InterMedia Development, Inc. (IMD) By submitting an application and clicking on the box and agreeing to these terms during registration, you acknowledging that you have read, fully understand and agree to be legally bound by the Terms of Use for TOGL. If you do not agree with all of the following Terms of Use, please do not use TOGL.
   You acknowledge these Terms of Use are supported by reasonable and valuable consideration, the receipt and adequacy of which are hereby acknowledged. Without limiting the generality of the foregoing, you acknowledge that such consideration includes your use of TOGL and receipt of data, materials and information available at or through TOGL, the possibility of our use or display of your Solicited Submissions (text and photo content) and the possibility of the publicity and promotion from our use or display of your Solicited Submissions.
2. CHANGE of USE
   TOGL reserves the right, at our sole discretion, to change and/or modify these Terms of Use at any time without notice. Such changes and/or modifications shall become effective immediately upon posting. Please review the Terms of Use periodically. Your continued use of TOGL following the posting of such changes and/or modifications will constitute your acceptance of the revised Terms of Use. TOGL also
   reserves the right to change or remove (temporarily or permanently) TOGL or any part of it without notice and you confirm that TOGL shall not be liable to you for any such change, add or removal.
3. PRIVACY AND SAFETY
   You agree to be bound by TOGL’s Privacy Policy. Please see our full PRIVACY POLICY for details on how we protect your personal information and privacy. TOGL will never sell, trade, rent or share your personal information with any third parties.
   You acknowledge and understand that TOGL will utilize phone numbers, email addresses and mailing addresses submitted to TOGL during registration for the purposes of servicing your membership account, marketing and sales purposes, newsletters, and informing you of changes, updates and new features. By providing a cell phone number to TOGL, you agree that TOGL may also send you text messages as needed for communications on support issues. You acknowledge that your consent to utilize your personal information as described here and in our PRIVACY POLICY, may be withdrawn upon request.
   You should never share your username or password with other people. You are solely responsible for keeping your account information safe and for any activity conducted under your account. You agree to promptly notify TOGL of any unauthorized use of your username, password, account information or any other security breach that you become aware of involving your TOGL account.
4. SECURITY
   The security, integrity and confidentiality of your information are extremely important to TOGL. We have implemented technical, administrative and physical security measures that are designed to protect your information from unauthorized access, disclosure, use and modification.
5. MEMBERSHIP FEES AND POLICIES
   A. Businesses and Service Providers (collectively “Businesses” or “Business”) are required to pay an annual membership fee to access and use TOGL and its related features. TOGL currently offers two membership types; Togl-On Now and Togl-On Same-Day. Pricing, availability and types of membership may vary from time to time in TOGL’s sole discretion.
   B. Businesses have the option to pay the annual membership fee in one lump sum or in twelve (12) equal monthly installments. TOGL may offer incentives for Businesses to pay the annual membership fee up front. Discounts and special membership pricing may vary from time to time and from Business to Business and is at the sole discretion of TOGL.
   Businesses that select monthly installments will provide TOGL a credit or debit card that will be kept on file. Each month, the card on file will be charged on or about the date of the initial payment. If any payment fails to process for any reason, TOGL shall attempt to process the payment for a period up to 90 days. Except as otherwise required by applicable law, you agree that TOGL will not provide you with any notices prior to each monthly charge.
   C. If a Business selects the automatic renewal option, the period of automatic renewal will be the same as the initial membership period.
   D. TOGL reserves the right to decline any member application if TOGL does not currently include a category that is appropriate for the applying Business.
   E. The selection of categories and services offered through TOGL is at the sole discretion of TOGL. TOGL may add, delete and modify categories and services at any time at TOGL’s sole discretion.
   F. TOGL reserves the right to decline any member application that does not comply with TOGL’s rules, operating procedures and policies.
   G. TOGL reserves the right not to accept any member application based on Business content. Businesses with the following types of content do not qualify to participate in the Program, and by submitting the application you represent and warrant that your Business does not include any of the following:
   • any content or other material that promotes violence, violent materials, bullying or discord
   • any content or other material that promotes discrimination based on race, sex, religion, nationality, disability, age or any other protected class
   • any content or other material that promotes illegal, obscene, or otherwise objectionable or questionable activities
   • any content or other materials that violate a third party’s intellectual property rights
   • any content or other materials that are libelous or defamatory
   • any content or other material that is sexually explicit
   This list is provided for example purposes, and does not limit TOGL’s right to reject any member application.
   TOGL will evaluate your application and notify you via email whether it is accepted or rejected. Approval or rejection will be made in TOGL’S sole discretion, and TOGL is not obligated to provide you any information or basis for such approval or rejection. If TOGL rejects your application, you may re-apply at any time. If TOGL approves your application and participation in the Program, TOGL reserves the right to terminate your participation at any time if it determines that your Business is unsuitable for any reason. In such case, TOGL will provide you written notification of such termination.
6. CANCELLATIONS AND REFUNDS
   A. A Business may cancel its membership at any time. The cancellation will be effective upon the annual renewal date.
   B. The annual membership fee is non-refundable unless there are exceptional circumstances. When exceptional circumstances can be shown to exist, the pro rata amount of this year’s membership fee not exceeding six (6) months may be refunded at the discretion of TOGL. Businesses may apply for a refund in the case of financial hardship. Refund considerations
   should be emailed to help@toglon.com.
7. REPRESENTATIONS BY BUSINESSES
   You hereby represent and warrant to TOGL that: (a) you have full power, authority and legal capacity to execute and deliver this Agreement; (b) you are legally and properly licensed to and possess all requisite licenses and permits to provide the services described in your Profile and (c) none of your trademarks, service-marks, logos or other marks used in your Profile or any subsequent availability listings, infringe or violate any other person’s or entity’s intellectual property rights.
8. QUALITY OF SERVICE
   You agree to commence performance of the confirmed service within the time frame agreed to between you and the Consumer.
   All services performed for a Consumer shall be charge at the base rate you posted for the confirmed TOGL, unless additional services or upgrades were mutually agreed upon by you and the Consumer, prior to the services rendered. You agree to, at all times, perform the services requested with to the best of your abilities and consistent with best practices in the relevant industry. You shall be solely and independently responsible for such performance.
9. TIMELINESS
   A. You agree that a confirmed Togl-On (Now) product or service requires immediately availability and you will provide the product or commence the service upon the Consumer’s arrival. Consumers are provided approximately fifteen (15) minute to arrive once you have confirmed the TOGL. If the Consumer arrives significantly later than fifteen (15) minutes, you have the option to commence service or decline the appointment for reasons of late arrival. We strongly encourage you to work with the Consumer to find the best possible outcome.
   B. You agree that a confirmed Same-Day appointment will begin at the agreed upon scheduled time. You also agree to treat TOGL Consumers with the same courtesies you would extend to any other Consumer of your Business.
   You acknowledge and agree that timeliness is essential to your participation in TOGL. Any delay in providing services at the agreed up times, could adversely affect yours and TOGL’s reputation. If you are unable to comply with TOGL’s timing guidelines, TOGL reserves the right to protect its reputation by temporarily suspending or even terminating your membership for excessive timing violations.
   You understand and agree that Consumers will have the option to rate your service after its completion and any delays in service may be reflected in those ratings. Furthermore, you acknowledge that TOGL has no control over a Consumer’s rating and is no way liable for any loss or damages incurred directly or indirectly associated with such a Rating.
10. CONSUMER CELL PHONE NUMBERS
    Once a TOGL appointment has been confirmed by the Business and the Consumer, both parties will be provided contact information. The Consumer’s phone number is to be used solely for the purposes of communicating about the current day’s TOGL appointment. At no time, shall a Business save or store the Consumer’s cell phone number without the explicit consent of the Consumer or utilize the Consumer’s cell phone number for of its own marketing purposes. Any misuse of a Consumer’s phone number is a violation of this Agreement and the TOGL PRIVACY POLICY and will result in immediate membership suspension or membership termination at TOGL’s sole discretion.
11. BUSINESS AND CONSUMER RATINGS
    Businesses may submit a Star Rating on any TOGL Consumer with whom they have had first-hand experience once the service has been completed. Consumers may also submit a Star Rating on any TOGL Business Member with which they have had first-hand experience once the service has been completed.
    TOGL does not endorse and is not responsible or liable for any Business or Consumer Ratings. Ratings are solely the opinion of the Business Member and Consumer submitting such Ratings and do not reflect the opinion of TOGL or any of its affiliates or subsidiaries or any of their respective owners, managers, officers, employees, agents or representatives.
    You acknowledge and understand that TOGL is under no obligation to investigate the accuracy of such Ratings or the quality of the work performed in connection with a given Consumer Rating. By using TOGL, you agree that it is solely your responsibility to evaluate the risks associated with participation in the Program. You further acknowledge and agree that you cannot require TOGL to remove a posted Consumer Rating.
    Under no circumstances, is TOGL is liable for any loss or damage of any kind incurred as a result of a Rating submitted by a Business or a Consumer via TOGL or comments made in other mediums in connection with a TOGL experience.
    You hereby waive any claims, rights or actions that you may have against TOGL or any of its affiliates or subsidiaries with respect to any Business or Consumer Rating and release TOGL and each of its affiliates and subsidiaries from any and all liability for or relating to Ratings.
    You agree to indemnify and hold TOGL and each of its affiliates and subsidiaries and their respective owners, managers, officers, employees, agents or representatives harmless for any damages that may arise, directly or indirectly, from any claim or right it may have against TOGL with respect to any statements made by your Business, a Consumer Rating you posted, a Consumer or Business Rating submitted by a Consumer which is posted or published by TOGL.
12. BIASED RATINGS
    For the integrity of the Program, its Members and TOGL Consumers, it is important that Ratings not be submitted by individuals affiliated with your Business. This includes but is not limited to owners, employees and family members. You agree that if an affiliated individual submits, or is believed to have submitted or posted any Consumer Rating on your Business, TOGL may immediately remove such Consumer Rating without notice or recourse against TOGL.
13. BUSINESS CONTENT AND RIGHTS
    As a TOGL Business Member (Member) you have the sole responsibility of inputting and updating any and all of your information on TOGL including, without limitation, your business description, trademarks, logos, photos and Profile information. (Collectively, “Content”.) No compensation will be paid with respect to TOGL’s use of Content. TOGL is under no obligation to post, use or maintain any Content provided by a Member. TOGL may remove a Member’s Content at any time in TOGL’s sole discretion.
    TOGL does not claim ownership of any Content submitted by a Member to TOGL. That notwithstanding, by providing Content for TOGL or other platforms related to your participation in TOGL, Business automatically grants, and you represent and warrant that the Business has the right to grant to TOGL, an irrevocable, perpetual, non-exclusive, royalty-free, sub-licensable, worldwide license to use, display, copy, reproduce, modify, and distribute such Content and to prepare derivative works of, or incorporate Content into other works, in accordance with this Agreement.
    By providing TOGL with Content, Business automatically grants TOGL all rights necessary to prohibit the subsequent aggregation, display, copying, duplication, reproduction or exploitation of Content on TOGL or in any other medium by any other party.
    You` agree not to use or cause any robot, bot, spider, other automatic device, or computer program routine or manual process to monitor, duplicate, take, obtain, transfer, modify, use, reproduce, aggregate or copy TOGL, any TOGL Business Member or Consumer’s Profile, Ratings, contact information, usage history, or any content related to TOGL Business Members or TOGL Consumers or any other content contained within TOGL or any other publication related to TOGL. You shall not use or cause any device, software, or routine to interfere or attempt to interfere with the proper working of TOGL at any time.
    You hereby represent and warrant to TOGL that you are authorized to submit information to TOGL and that all the information you provide TOGL is true, accurate and complete in all respects. Further, you acknowledge and agree that TOGL can rely upon the truthfulness, accuracy and completeness in order to serve its Consumers.
    If a third party manages your Business’s Profile or information on TOGL, you acknowledge and agree that your Business shall remain fully responsible for any and all Content or information posted or submitted by such third party, including all communication with a Consumer.
    Unless expressly authorized by TOGL, you agree not to access, copy, duplicate use, reproduce, alter, modify, create derivative works, display, sell, re-sell, advertise or market with or otherwise exploit for any commercial or other purpose, any Business Member or Consumer information and Content without limitation.
14. BUSINESS CODE OF CONDUCT
    Member’s Profile and Member’s communications with Consumers shall not contain any unauthorized content. This includes but is not limited to the following:
    A. Content determined by TOGL, in its sole discretion, to be illegal, or to violate any federal, state, or local law or regulation or the rights of any other person or entity;
    B. Content that is encrypted or that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, intercept or appropriate any system, data or personal information;
    C. Impersonation of other people, including other Members and Consumers or using inappropriate or offensive user names;
    D. Offensive, harmful or abusive language including without limitation: profanities, expletives, obscenities, vulgarities, demeaning comments, insults, hate speech, racial slurs, discriminatory and/or sexually explicit language;
    E. Offensive, harmful or abusive photographs and graphics including without limitation: images with profanities, expletives, obscenities, vulgarities, hate speech, racial slurs, discriminatory and/or sexually explicit content;
    F. Content that contains personal attacks on another local business, TOGL Business Member or Consumer;
    G. Language that violates generally accepted online etiquette, as determined by TOGL in its sole discretion.
    You acknowledge and agree that TOGL in its sole discretion may remove without notice any of your Business content or any portion thereof that TOGL believes violates the foregoing.
    TOGL may suspend, restrict or terminate your Business Membership or any portion thereof if you breach or fail to comply with any of the Terms of Use in this Agreement.
15. DISTRIBUTION OF CONTENT
    You understand that TOGL is an interactive electronic distribution platform that connects Businesses and Consumers and that no Business is owned or operated by TOGL. TOGL does not guarantee the accuracy or quality of any content posted on or available through TOGL by its Business Members, Consumers or a third party.
    All content posted by a Business Member is the sole responsibility of the person and Business from whom such content originated. You understand that TOGL is not responsible for inputting any Business or Consumer content of any kind. You also agree, that by using TOGL, you may be exposed to content that is erroneous, misleading, or offensive in nature. You understand that is it solely your responsibility to
    evaluate the desirability of participating in TOGL. You agree and that you bear all risks associated with using TOGL, the Program or any TOGL related content.
    You further acknowledge that TOGL does not, and is not obligated, to write, review, monitor or approve any content published by you, a Consumer, or a third party. However, at TOGL’s sole discretion, TOGL reserves the right to review and delete any content that violates the terms of this Agreement. By using TOGL, you agree that it is your responsibility to evaluate the quality and appropriateness of any content that you submit or convey through TOGL. TOGL is not liable in any way for any content provided by you, a Consumer or a third party. It is solely your responsibility to ensure your content is accurate, error free and complete. You also acknowledge that you are solely responsible for any loss or damage incurred as a result of content submitted or conveyed by you via TOGL. You waive the right to assert any claim against TOGL relating to your content or the content or a Consumer or other third party, and release TOGL from any and all liability for or relating to any such content.
16. LINKS to THIRD PARTY WEBSITES
    TOGL may include hyperlinks to third party websites that are controlled and maintained by others. Any link to other websites is not an endorsement of such websites and you acknowledge and agree that we are not responsible for the content or availability of any such sites. TOGL does not necessarily share the opinions or views expressed by these third party websites. Furthermore, TOGL does not verify, endorse, or take responsibility for the accuracy, currency, completeness or quality of the content contained at these sites. TOGL is not responsible for the quality or delivery of the products or services offered, accessed, obtained by or advertised at such sites. Thus, TOGL nor its subsidiaries and affiliates will be responsible for any errors or omissions or for the results obtained from the use of such information contained in these sites. Finally, TOGL, under no circumstances will be liable for any direct, indirect, incidental or special loss or other damage, whether arising from negligence, breach of contract, defamation, privacy violations, infringement of copyright or other intellectual property rights caused by the exhibition, distribution or exploitation of any information or content contained within these third party hyperlinked sites. It is your sole responsibility to review any third party Privacy Polices before interacting with a third party hyperlinked site. TOGL will not be responsible or liable for any privacy violations related to a third party.
17. MOBILE NETWORKS
    When you access the TOGL apps through a mobile network, your network or roaming provider’s messaging, data and other rates and fees will apply. Downloading, installing or using TOGL apps may be prohibited or restricted by your network provider and not all TOGL apps may work with your network provider or device.
18. INTELLECTUAL PROPERTY
    All software, design, text, images, photographs, illustrations, audio clips, video clips, artwork, graphic material, terminology or other copyrightable elements, and the selection and arrangements thereof, and trademarks, service marks and trade names are the property of TOGL and/or its subsidiaries, affiliates,
    assigns, licensors or other respective owners and are protected, without limitation, pursuant to U.S. and foreign copyright and trademark laws.
    In accessing TOGL, you agree that you will access the content solely for the purposes described in this Terms of Use. None of the content may be downloaded, copied, reproduced, transmitted, broadcast, circulated, displayed, published, stored, sold or distributed without the prior written consent of TOGL. This includes without limitation, the display and distribution of any TOGL material via a third party website without express written consent of TOGL. This excludes the downloading, copying and/or printing of pages of the Site for personal, non-commercial home use only. You further agree that you will not disassemble, decompile, reverse engineer or otherwise modify any TOGL materials including but not limited to marketing material, contracts, agreements, privacy policy, terms & conditions, website content, scripts, programs, and mobile applications. Any unauthorized or prohibited use may subject the offender to civil liability and criminal prosecution under applicable federal and state laws.
    Notwithstanding anything to the contrary in this Agreement, TOGL may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of TOGL’s or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that TOGL’s rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
19. DISCLAIMERS and LIMITATION of LIABILITY
    TOGL is provided on an AS IS and AS AVAILABLE basis without any representation or endorsement made and without warranty of any kind whether express or implied, including but not limited to the implied warranties of satisfactory quality, fitness for a particular purpose, non-infringement, compatibility, security and accuracy. The TOGL websites and the TOGL digital applications are for referral and connection purposes only. To the extent permitted by law, TOGL will not be liable for any indirect or consequential loss or damage whatever (including without limitation loss of business, opportunity, data, profits) arising out of or in connection with the use of TOGL or a third party associated or hyperlinked to TOGL. Notwithstanding the foregoing, in no event shall TOGL’s liability to you for any and all claims, damages, losses, and causes of action, whether in written or verbal form, exceed the amount paid by you, if any, for accessing TOGL in the preceding twelve (12) months.
20. FUNCTIONALITY & DELAYS
    TOGL makes no warranty that the functionality of TOGL will be uninterrupted or error free, that defects will be corrected or that TOGL or the server that makes it available are free of viruses or anything else which may be harmful or destructive. TOGL may also be subject to limitations, delays and other problems related to mobile applications platforms, electronic devices, technology changes and issues inherent to the Internet. TOGL is not responsible for interruptions, delays, failures or other damage resulting from such problems.
21. INDEMNIFICATION BY BUSINESS
    You agree to indemnify, defend and hold TOGL and their employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against TOGL arising out of or relating to, directly or indirectly, any breach by you of these Terms of Use or other liabilities arising out of your use of TOGL, including but not limited to your failure to perform service for a confirmed TOGL Consumer and negligence or willful misconduct by you.
    You agree to indemnify, defend and hold TOGL and their employees and agents harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions of any nature brought against TOGL arising out of, directly or indirectly, relating to the service provided by you.
22. GOVERNING LAW
    These Terms of Use shall be governed by and construed in accordance with the laws of the State of California without regard to principles of conflict of laws, and that such laws will govern these Terms of Use. The parties stipulate that exclusive jurisdiction and venue over any conflict between them shall lie in any branch of the San Diego County Superior Court.
23. RELATIONSHIP BETWEEN THE PARTIES
    No joint venture, partnership or employment relationship exists between Business Members (Members) and TOGL as a result of this Agreement or the use of TOGL’s services. Members are solely responsible for their services offered, when and where they are offered, the manner in which they are performed and pricing and payment collection for their products and services. The duties and responsibilities of the Business shall be performed by the Business as an independent contractor and not as an agent of TOGL. The Business shall have full control of all of its acts, doings and proceedings relating to or requisite in connection with the discharge of its duties and responsibilities under this Agreement.
24. ASSIGNMENT
    You may not assign or otherwise transfer this Agreement or any of its rights and/or obligations relating to this Agreement without the prior written consent of TOGL. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
25. LIMITED LICENSE
    TOGL may, in its sole discretion, provide you data, images, text or other tools (“Tools”) for the purpose of aiding your participation in TOGL. Subject to the terms of this Agreement and solely during the term of this Agreement and solely for the limited purpose of aiding your participation in TOGL, hereby grants you a limited, revocable, non-transferable, non-sub-licensable, non-exclusive, royalty-free license to (a) copy and display the Tools solely on your website or in your business establishment (collectively “Site”) as approved from your application; and (b) use only those trademarks and logos of TOGL that it may make available to you as part of Tools (those trademarks and logos, collectively, “TOGL Marks”) solely on your Site(s) as approved from your application, and in accordance with this Agreement.
    A. The license set forth in this Section 25 will immediately and automatically terminate (i) upon termination of this Agreement by any party and/or for any reason, and/or (ii) if at any time you do not timely comply with any of your obligations under this Agreement. In addition, TOGL may terminate the license set forth in this Section25, in whole or in part, upon written notice to you. Upon termination of the license provided in this Section
    25, you will promptly remove from your site and delete or otherwise destroy all Tools, Content and TOGL Marks with respect to which the license set forth in this Section 25 is terminated, or as TOGL may otherwise request from time to time.
26. COMPLIANCE WITH LAWS
    In connection with your participation in the TOGL, you represent and warrant that you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003). TOGL in no way authorizes, participates in or allows mass unsolicited e-mailing (i.e. SPAM or unsolicited commercial email (UCE)), and by submitting the application and this Agreement, you agree to not send any SPAM or UCE, either on behalf of TOGL or the Site or otherwise. Violation of this policy may result in immediate termination of this Agreement and dismissal from TOGL, including the forfeiting of any Membership Fees in addition to any other rights or remedies available to TOGL or others at law or in equity termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
27. BREACH OF CONTRACT
    If a Business Member (Member) violates any provision of this Agreement, TOGL reserves the right to exercise any rights or remedies which may be available to it against a Member by law. TOGL will notify Member in writing and request the Member rectify and correct such breach. If the Member fails to rectify and correct such breach within ten (10) working days upon the issuance of the written notice by TOGL, TOGL reserves the right to exercise any rights and remedies which may be available to it against the Member by law, including but not limited to membership suspension or membership termination.
    In the event it becomes necessary for TOGL to pursue legal action to enforce the terms of this Agreement, the Member will be liable to pay TOGL the actual damages suffered by TOGL to the extent such actual damages can be reasonably calculated.
    Termination of this Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Agreement prior to termination.
28. DISCLAIMER AND LIMITATION OF LIABILITY
    TOGL IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR ENDORSEMENT MADE AND WITHOUT WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY AND ACCURACY. THE TOGL WEBSITES AND THE TOGL DIGITAL APPLICATIONS ARE FOR REFERRAL AND CONNECTION PURPOSES ONLY. TO THE EXTENT PERMITTED BY LAW, TOGL WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT,
    INCIDENTAL, SPECIAL, COMPENSATORY,CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING ANY LOSS OF BUSINESS OPPORTUNITIES, REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, RESULTING FROM THE PROGRAM, TOGL, THE TOOLS, TOGL CONTENT, BUSINESS MEMBER OR CONSUMER CONTENT, PERFORMANCE, FUNCTIONALITY, THIRD PARTIES ASSOCIATED HYPERLINKED TO TOGL, ANY MATTER RELATING TO THE SERVICES OR SERVICE OFFERINGS, ANY BREACH OF THIS AGREEMENT BY TOGL OR FAILURE TO PROVIDE SERVICES UNDER THIS AGREEMENT, ANY DEALINGS OR INTERACTION WITH MEMBERS OR THEIR REPRESENTATIVE OR AGENTS, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND/OR TOGL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF TOGL AND/OR ANY OF ITS AFFILIATES ARISING FROM ANY AND ALL CLAIMS, DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN WRITTEN OR VERBAL FORM, IN CONNECTION WITH THIS AGREEMENT AND THE ABOVE MENTIONED, WILL NOT EXCEED THE TOTAL MEMBERSHIP FEE PAID BY YOU UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRECEDING THE DATE ON THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. IN SOME JURISDICTIONS, LIMITATIONS OF LIABILITY ARE NOT PERMITTED. IN SUCH JURISDICTIONS, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO THE COMPANY.
29. DISPUTES
    If a dispute arises during the term of this Membership Agreement, to the extent possible, the parties agree that it is their desire to expedite the resolution of such disputes and to minimize the associated costs. Therefore, you and TOGL each waive, and covenant that they will not assert (as plaintiff, defendant or otherwise), the right to a trial by jury in any action, counterclaim, dispute or proceeding based upon or related to the subject matter of this agreement. This waiver is knowingly and voluntarily made by you and by TOGL.
    TOGL may attempt to negotiate any dispute informally before initiating any legal action. Such negotiations will commence upon written notification at the physical address you entered in your TOGL Business Profile. TOGL’s address is 2127 Arnold Way, Alpine California 91901. In any conflict between the parties related to or arising from this Agreement, the parties expressly agree that the prevailing party shall be awarded reasonable attorney’s fees and costs.
30. BINDING ARBITRATION
    If a dispute is not resolved through informal negotiations, you and TOGL agree to resolve any and all disputes (except those disputes expressly excluded below) through final and binding arbitration.
    All disputes arising under this agreement shall be governed by and interpreted in accordance with the laws of California, without regard to principles of conflict of laws. The parties to this agreement will submit all disputes arising under this agreement to arbitration in California before a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall be selected by application of the rules of the AAA, or by mutual agreement of the parties, except that such arbitrator shall be an attorney or retired judge that is admitted to practice law in California. No party to this agreement will challenge the jurisdiction or venue provisions as provided in this section. No party to this agreement will challenge the
    jurisdiction or venue provisions as provided in this section. Nothing contained herein shall prevent either party from obtaining an injunction.
    A. Disputes and Claims excluded from arbitration are the following: (1) any dispute concerning yours or TOGL’s intellectual property rights; (2) individual claims that qualify for small claims court; (3) any claim that an applicable federal statute expressly states cannot be arbitrated; and (4) any claim for injunctive relief.
    B. Both parties agree to bring any dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action.
    WAIVER OF RIGHT TO BE A PLAINTIFF OR CLASS MEMBER IN A CLASS ACTION.
    To fullest extent permitted by applicable law, both parties agree to bring any dispute in arbitration on an individual basis only, and not as a class or collective action. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything else in this Arbitration Agreement and/or the applicable AAA Rules or AAA Consumer Rules, the interpretation, applicability, enforceability or formation of the Class Action Waiver may only be determined by a court and not an arbitrator.
31. ATTORNEY’S FEES
    In any conflict between the parties related to or arising from this Agreement, the parties expressly agree that the prevailing party shall be awarded reasonable attorney’s fees and costs.
32. LIMITATIONS
    Business agrees that regardless of any statute or law to the contrary, any claim or cause of action arising from or related to your use of TOGL or this Agreement shall be filed within one (1) year after such claim or cause of action arose or will forever be barred.
33. CONFIDENTIALITY
    You agree that the terms and conditions of this Agreement, including pricing terms, are Confidential Information and shall be held in strict confidence, for the mutual benefit of both parties. Business shall not disclose any Confidential Information without the prior written consent of TOGL. Notwithstanding the foregoing, Business may disclose Confidential Information only to the extent strictly necessary to comply with any order of a court of competent jurisdiction or as may be otherwise required by applicable law.
34. WAIVER
    Neither party shall be deemed to have waived any of its rights, powers, nor remedies hereunder, except in an express writing signed by an authorized agent or representative of the party to be charged. TOGL’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of TOGL’s right to subsequently enforce this provision or any other provision of this Agreement.
35. SEVERABILITY
    If a provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, that shall not affect: (1) the validity or enforceability in that jurisdiction of any other provision of this Agreement; or (2) the validity or enforceability in other jurisdictions of that or any other provision of this Agreement.
36. MISCELLANEOUS
    A. You acknowledge and agree that TOGL and its affiliates may at any time (directly or indirectly) solicit Business Members on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with your site.
    B. Any determinations or updates that may be made by TOGL, any actions that may be taken by TOGL, and any approvals that may be given by TOGL under this Agreement, may be made, taken, or given in TOGL’s sole discretion.
37. TERM AND TERMINATION
    TOGL may terminate your Business Membership immediately and without notice for any reason whatsoever. Upon such termination, you must immediately cease accessing or using TOGL and agree not access or make use of, or attempt to use, the websites, mobile applications, Tools or Program. Furthermore, you acknowledge that TOGL reserves the right to take whatever action is necessary to block, void or deny your ability to access TOGL, including but not limited to technical and legal means. You understand that TOGL may exercise this right in its sole discretion, and this right shall be in addition to and not in substitution for any other rights and remedies available to TOGL.
    All provisions of these Terms of Use which by their nature should survive termination shall survive the termination of your membership and access to TOGL, the Program, Tools and all TOGL related materials, including, without limitation, provision regarding ownership, warranty disclaimers, indemnity, and limitations of liability.
38. DISCLAIMERS
    TOGL, THE PROGRAM, THE TOOLS, THE CONTENT, ANY MEMBERSHIP(S), ANY PRODUCTS AND SERVICES OFFERED ON TOGL, THE TOGLON.COM DOMAIN NAME, TOGLONPRO.COM DOMAIN NAME, THE TOGLON APP NAME, THE TOGONPRO APP NAME, TOGL’S LOGOS AND TRADEMARKS, TOGL’S AFFILIATES’ DOMAIN NAMES AND ITS AFFILIATES’ TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT
    PROVIDED OR USED BY OR ON BEHALF OF TOGL OR ITS AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” NEITHER TOGL NOR ANY OF ITS AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, TOGL AND ITS AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. TOGL MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME, IN ITS SOLE DISCRETION. NEITHER TOGL NOR ANY OF ITS AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER TOGL NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM TOGL OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, THE TOGL WEBSITES, OR THE TOGL MOBILE APPLICATIONS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER TOGL NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
39. BINDING EFFECT
    The individual agreeing to these Terms of Use on behalf of the Business, hereby represent and warrants that he/she has the power and authority to bind the Business and that this Agreement and Terms of Use constitutes a valid and binding agreement of the Business.
40. ENTIRE AGREEMENT
    This Membership Agreement along with TOGL’s Privacy Policy, represents the entire agreement between you and TOGL. Any prior agreements, promises, negotiations, or representations, whether oral or written, not expressly set forth in this Agreement are of no force and effect.
41. FULL KNOWLEDGE AND UNDERSTANDING UPON SUBMISSION
    BY SUBMITTING YOUR APPLICATION AND CHECKING THE BOX AND SUBMITTING THE INFORMATION BELOW, YOU AGREE AND REPRESENT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND THAT YOU HAVE HAD THE OPPORTUNITY TO SEEK LEGAL COUNSEL TO THE EXTENT YOU DESIRE TO DO SO. YOU UNDERSTAND THAT YOUR APPLICATION AND THIS AGREEMENT WILL BE BINDING ON YOU, AND YOU INTEND TO COMPLY WITH ALL TERMS HEREOF.
    BY CHECKING THE BOX INDICATING THAT YOU AGREE TO THE TERMS OF USE OF THIS MEMBERSHIP AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING POSTING OF A CHANGE NOTICE OR REVISED TERMS OF USE ON THE TOGL SITE, YOU (A) AGREE TO BE BOUND BY THIS
    MEMBERSHIP AND TERMS OF USE AGREEMENT; (B) YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS MEMBERSHIP AGREEMENT AND TERMS OF USE; AND (C) YOU REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS MEMBERSHIP AGREEMENT. IN ADDITION, IF THIS MEMBERSHIP AGREEMENT IS BEING AGREED TO BY A CORPORATION OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS MEMBERSHIP AGREEMENT ON BEHALF OF THAT ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT ENTITY TO THIS MEMBERSHIP AGREEMENT.