Toucann.com Terms of Use

Welcome to Toucann! Toucann, LLC (“Toucann”), together with its subsidiaries, provide a data-driven college readiness platform to empower students and families in their journey to college and beyond.

Please read these Terms of Use (“TOUs”) carefully. By accessing, browsing, and/or using the Toucann platform, or the features, content or applications thereof, in any way (the “Toucann Services”), you represent and warrant that you have the right, authority, and capacity to enter into these TOUs. If you do not wish to be bound by these TOUs, you may not access or use Toucann Services.

THESE TOUs INCLUDE A CLASS ACTION WAIVER AND A WAIVER OF JURY TRIALS AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES.

Please note that these TOUs may be updated at any time in TOUCANN's sole discretion. If you do not agree to any change(s), you shall stop using the Toucann Services; otherwise, your continued use of the Toucann Services constitutes your acceptance of such change(s). Please regularly refer the most current version of these TOUs on TOUCANN's website.

1. Toucann Services

The Toucann Services and the information and content available on the Toucann platform (collectively, the “TOUCANN Properties”) are protected by copyright laws throughout the world. Subject to these TOUs, TOUCANN grants you a limited license to reproduce portions of the TOUCANN Properties for the sole purpose of using the Toucann Services for your personal or internal business purposes. Unless otherwise specified by TOUCANN in a separate license, your right to use any TOUCANN Properties is subject to these TOUs.

You understand that TOUCANN Properties are evolving. As a result, TOUCANN may require you to accept updates to TOUCANN Properties. You acknowledge and agree that TOUCANN may update TOUCANN Properties with or without notifying you. You may need to update third-party software from time to time in order to receive the Toucann Services or use TOUCANN Properties.

The rights granted to you in these TOUs are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit TOUCANN Properties or any portion of TOUCANN Properties, including the Toucann platform; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other TOUCANN Properties (including images, text, page layout or form) of TOUCANN; (c) you shall not use any metatags or other “hidden text” using TOUCANN's name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile, or reverse engineer any part of TOUCANN Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access TOUCANN Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of TOUCANN Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in TOUCANN Properties. Any future release, update or other addition to TOUCANN Properties shall be subject to these TOUs. TOUCANN, its suppliers and service providers reserve all rights not granted in these TOUs. Any unauthorized use of TOUCANN Properties terminates the licenses granted by TOUCANN pursuant to these TOUs.

2. Eligibility

You hereby represent and warrant that (i) you are 13 years of age or older; (ii) your use of the TOUCANN Properties does not violate any applicable law or regulation, including the Children's Online Privacy Protection Act (“COPPA”); (iii) if you are a parent or legal guardian of a user under the age of 18, by allowing your child to use the TOUCANN Properties, you are subject to these TOUs and responsible for your child's activity on the TOUCANN Properties; and (iv) if you are using the TOUCANN Properties on behalf of a company or organization, you have the authority to act on behalf of that entity, and that such entity accepts these TOUs.

3. Privacy Obligations

By using the Toucann Services, you acknowledge receipt of, and agree to the terms of the TOUCANN Privacy Policy describing TOUCANN's personal information collection, use and disclosure practices, available at https://toucann.com/privacy-policy.

4. Your Content

You acknowledge that all content, including TOUCANN Properties, is the sole responsibility of the party from whom such content originated. This means that you, and not TOUCANN, are entirely responsible for all content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through TOUCANN Properties (“Your Content”), and that you and other users of TOUCANN Properties, and not TOUCANN, are similarly responsible for all content they Make Available through TOUCANN Properties (“User Content”).

You acknowledge that TOUCANN has no obligation to pre-screen any content (including, but not limited to, User Content), although TOUCANN reserves the right in its sole discretion to pre-screen, refuse or remove any content. By entering into these TOUs, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation reviews, chat, text, or voice communications. In the event that TOUCANN pre-screens, refuses or removes any content, you acknowledge that TOUCANN will do so for TOUCANN's benefit, not yours. Without limiting the foregoing, TOUCANN shall have the right to remove any content that violates these TOUs or is otherwise objectionable.

5. Ownership

Except with respect to Your Content and User Content, you agree that TOUCANN owns all rights, title and interest in TOUCANN Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Toucann Services or TOUCANN Properties.

TOUCANN's stylized name and other related graphics, logos, service marks and trade names used on or in connection with TOUCANN Properties are the trademarks of TOUCANN and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in TOUCANN Properties are the property of their respective owners.

Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in TOUCANN Properties.

TOUCANN does not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in TOUCANN Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content.

Subject to any applicable account settings that you select, you grant TOUCANN a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing TOUCANN Properties to you and to our other users. Please remember that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of TOUCANN Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not TOUCANN, are responsible for all of Your Content that you Make Available on or in TOUCANN Properties.

We encourage you to download and print a reasonable number of copies of content for noncommercial personal or internal business use only; provided that (i) any permitted copies of content contain, in an unmodified form, any copyright or other proprietary rights notices contained in the content and an original source attribution to TOUCANN and the applicable URL, and (ii) no modifications of any of the content are made except as may be expressly provided by TOUCANN or the third-party provider on the platform containing the applicable content. You acknowledge that TOUCANN and/or third-party providers remain the owners of the content and that you do not acquire any intellectual property rights in such content by downloading or printing the content.

You agree that submission of any ideas, suggestions, documents, and/or proposals to TOUCANN through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that TOUCANN has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to TOUCANN a fully paid, royalty-free, perpetual, irrevocable, worldwide, non- exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of TOUCANN Properties.

6. User Conduct

As a condition of use, you agree not to use TOUCANN Properties for any purpose that is prohibited by these TOUs, the General Posting and Acceptable Use Terms or by applicable law. You shall not (and shall not permit any third-party) either (a) to take any action or (b) Make Available any content on or through TOUCANN Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, bullying, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without TOUCANN's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of TOUCANN; (vi) interferes with or attempts to interfere with the proper functioning of TOUCANN Properties or uses TOUCANN Properties in any way not expressly permitted by these TOUs; or (vii) to attempt or engage in, any potentially harmful acts that are directed against TOUCANN Properties, including but not limited to violating or attempting to violate any security features of TOUCANN Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in TOUCANN Properties, introducing viruses, worms, or similar harmful code into TOUCANN Properties, or interfering or attempting to interfere with use of TOUCANN Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” TOUCANN Properties. WE RESERVE THE RIGHT TO SUSPEND OR TERMINATE ANY USER'S ACCOUNT AND/OR ACCESS TO THE TOUCANN PROPERTIES, AT IT SOLE DISCRETION, IF ANY USER VIOLATES THIS SECTION 6 OR IF WE REASONABLY SUSPECT THAT A USER HAS OR WILL VIOLATE THIS SECTION 6.

7. Investigations

TOUCANN may, but is not obligated to, monitor or review TOUCANN Properties and content at any time. Without limiting the foregoing, TOUCANN shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such content violates these TOUs, the General Posting and Acceptable Use Terms or any applicable law. Although TOUCANN does not generally monitor user activity occurring in connection with TOUCANN Properties, if TOUCANN becomes aware of any possible violations by you of any provision of the TOUs, TOUCANN reserves the right to investigate such violations, and TOUCANN may, at its sole discretion, immediately terminate your license to use TOUCANN Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.

8. Product Research

You agree that TOUCANN may reach out to you to collect feedback on the Toucann Services.

9. Third Party Services

Some links provided in accordance with the Toucann Services lead to sites posted by third parties. Because TOUCANN has no control over these sites, TOUCANN is not responsible for such sites' accessibility via the Internet and does not endorse products, services, or information provided by such sites. As such, TOUCANN shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with, use or reliance on any user or other content, goods, or services available on or through any other site. Further, the inclusion of these links does not imply that the other sites have given permission for inclusion of these links, or that there is any relationship between TOUCANN and the linked sites. TOUCANN is an independent operating company and reference to other companies does not imply any partnership, joint venture, or other legal connection where TOUCANN would be responsible for the actions of its partners. You should review applicable terms and policies, including privacy and data gathering practices, of any third party sites, and should investigate as you feel necessary or appropriate before proceeding with any transaction with any such third party.

10. Indemnification

You agree to indemnify and hold TOUCANN, and its affiliates, officers, agents, partners, and employees (the “TOUCANN Parties”) harmless from any losses, costs, liabilities and expenses, including reasonable attorney's fees, relating to or arising out of: (a) Your Content, (b) your use of, or inability to use, the TOUCANN Properties, (c) your breach of the TOUs, (d) your violation of any rights of another party, including any user, and (e) your violation of any applicable laws, rules or regulations. TOUCANN reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with TOUCANN in asserting any available defense. You agree that the provisions in this section will survive any termination of your Account, these TOUs, or your access to the TOUCANN Properties.

11. Disclaimer of Warranties

YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF TOUCANN PROPERTIES IS AT YOUR SOLE RISK, AND TOUCANN PROPERTIES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS, WITH ALL FAULTS. TOUCANN PARTIES EXPRESSLY DISCLAIMS WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AUDIENCE, AND NON-INFRINGEMENT.

TOUCANN IS NOT RESPONSIBLE FOR ANY INFORMATION OR CONTENT CONTAINED WITHIN THE TOUCANN PROPERTIES AND MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE TOUCANN PROPERTIES FOR ANY PURPOSE OR AUDIENCE OR ABOUT ITS LEGITIMACY, LEGALITY, VALIDITY, ACCURACY, CORRECTNESS, RELIABILITY, QUALITY, STABILITY, COMPLETENESS, OR CURRENTNESS. ALL SUCH INFORMATION IS SOLELY PROVIDED BY THIRD PARTIES OR OTHER USERS OF THE TOUCANN PROPERTIES.

THE TOUCANN PARTIES DO NOT WARRANT THAT THE TOUCANN SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE TOUCANN PROPERTIES OR AS TO THE ACCURACY, RELIABILITY, SUITABILITY OR CONTENT OF THE TOUCANN PROPERTIES.

YOU ACKNOWLEDGE AND AGREE THAT TOUCANN PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD TOUCANN PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES AND THE MANUFACTURERS AND DEVELOPERS OF HARDWARE, SOFTWARE AND CONTENT FOR THE VR SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.

YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF TOUCANN PROPERTIES. YOU UNDERSTAND THAT TOUCANN DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF TOUCANN PROPERTIES.

12. Limitation of Liability

YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL TOUCANN PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF TOUCANN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF YOUR USE OF OR INABILITY TO ACCESS OR USE THE TOUCANN SERVICES, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOSS OF GOODWILL, LOST BUSINESS, LOST DATA, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION, OR UNAUTHORIZED ACCESS TO TOUCANN'S RECORDS, PROGRAMS, OR SERVICES OR ANY ASSOCIATED COLLEGE'S RECORD OF STUDENT INFORMATION, INCLUDING, BUT NOT LIMITED TO ITS STUDENT INFORMATION SYSTEM OR LEARNING MANAGEMENT SYSTEM. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES TOUCANN'S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

IN ADDITION, TOUCANN PARTIES WILL NOT BE LIABLE IN RESPECT OF THE FOLLOWING: (A) ANY DECISIONS MADE BY YOU AS A RESULT OF YOUR USE OF THE TOUCANN SERVICES OR AS A RESULT OF ANY TRANSACTIONS MADE USING THE TOUCANN SERVICES BY YOU, (B) ANY TOUCANN SERVICE INACCURACIES OR (C) YOUR MISUSE OF THE TOUCANN SERVICES.

NOTHING IN THESE TOUs SHALL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER OR EXCLUDE OR RESTRICT ANY LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE NEGLIGENCE OR FRAUD OF TOUCANN PARTIES.

13. Notice of Copyright Infringement

If you believe content posted on the TOUCANN Properties infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Toucann Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: TOUCANN, c/o Ramin Naharoff, 9673 CAMINO CAPISTRANO LANE, LAS VEGAS, NV 89147.

14. Term and Termination

These TOUs commence on the date when you accept them and remain in full force and effect while you use TOUCANN Properties, unless terminated earlier in accordance with the TOUs. Notwithstanding the foregoing, if you used TOUCANN Properties prior to the date you accepted the TOUs, you hereby acknowledge and agree that the TOUs commenced on the date you first used TOUCANN Properties (whichever is earlier) and will remain in full force and effect while you use TOUCANN Properties, unless earlier terminated in accordance with the TOUs.

You may discontinue your participation in and access to the TOUCANN Properties at any time.

Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes all related information, files and content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. TOUCANN will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the TOUs which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.

15. Arbitration Agreement

All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the TOUs or the use of any product or service provided by TOUCANN that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and TOUCANN, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the TOUs.

Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to TOUCANN should be sent to: Ramin Naharoff, 9673 CAMINO CAPISTRANO LANE, LAS VEGAS, NV 89147.

After the Notice is received, you and TOUCANN may attempt to resolve the claim or dispute informally. If you and TOUCANN do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the TOUs. The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that TOUCANN made to you prior to the initiation of arbitration, TOUCANN will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney's fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.

If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.

If you or TOUCANN pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and TOUCANN, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the TOUs. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and TOUCANN.

THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and TOUCANN in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TOUCANN WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.

ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.

All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.

If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.

Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.

This Arbitration Agreement will survive the termination of your relationship with TOUCANN.

Notwithstanding the foregoing, either you or TOUCANN may bring an individual action in small claims court.

Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party's patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.

In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to the laws of the District of Columbia and to submit to the personal jurisdiction of the courts located within the District of Columbia for such purpose.

16. General Provisions

The communications between you and TOUCANN use electronic means, whether you visit TOUCANN Properties or send TOUCANN e-mails, or whether TOUCANN posts notices on TOUCANN Properties or communicates with you via e- mail. For contractual purposes, you (1) consent to receive communications from TOUCANN in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that TOUCANN provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.

If you have any questions, complaints or claims with respect to the Toucann Services, please contact our customer service department using the contact information available on the Toucann Services. We will do our best to address your concerns.

You hereby release TOUCANN Parties and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of the TOUs or your use of TOUCANN Properties. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”

The TOUs, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred by you without TOUCANN's prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.

TOUCANN shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

Any waiver or failure to enforce any provision of these TOUs on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

If any provision of these TOUs is, for any reason, held to be invalid or unenforceable, the other provisions will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

You may not use, export, import, or transfer TOUCANN Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained TOUCANN Properties, and any other applicable laws. In particular, but without limitation, TOUCANN Properties may not be exported or re-exported (a) into any United States embargoed countries; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By using TOUCANN Properties, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use TOUCANN Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by TOUCANN are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer TOUCANN products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

Where TOUCANN requires that you provide an e-mail address, you are responsible for providing TOUCANN with your most current e-mail address. In the event that the last e-mail address you provided to TOUCANN is not valid, or for any reason is not capable of delivering to you any notices required/permitted by the TOUs, TOUCANN's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to TOUCANN at the following address: Ramin Naharoff, 9673 CAMINO CAPISTRANO LANE, LAS VEGAS, NV 89147.

In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

These TOUs are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.