Last updated as of: 22 Sep, 2021
Welcome to Tomi.ai! We are a predictive marketing platform and our goal is to help you optimize your advertising activities.
When you register on the Platform in order to receive our Services as defined herein, you accept and agree to be bound by the Data Processing Addendum that is an integral part of the Terms and outlines the terms of data processing on your behalf. We strongly recommend printing a copy of the Data Processing Addendum for your records.
“Platform” shall mean the online service Tomi.ai located on the website https://tomi.ai/, including its subdomains (“Site”) through which you may obtain Services on the terms hereof.
“Visitor” shall mean a person who simply surfs the Platform without creating an Account.
“Customer” shall mean a person who signs up to the Platform in order to receive our Services.
“Account” shall mean a personal account of the Customer on the Site using which the Customer can access and use our Services.
“Payment System” shall mean a funds transfer system that provides the ability to make payments, in particular, for the Platform’s Services.
1.2. Who We Are
Tomi.ai (“Platform”, “we”, “us”, “our”) is a company registered and acting under the laws of the USA, located at 244 5th Avenue, Suite K260, New York, NY, 10001, the USA, represented by CEO Konstantin Bayandin.
1.3. Parties to These Terms
These Terms govern the relationship between us and you (“you”, “your”) whether you merely look through our Platform as the Visitor or sign up as the Customer.
1.4. Change and Revisions
We reserve the right, at our sole discretion, to modify, amend or replace these Terms at any time by posting a revised version on the Site or by sending a notice to the email address associated with you.
We will inform you of any essential changes prior. In other cases continued use of the Platform and Services after changes have been posted will indicate your acknowledgment and agreement to be bound by the revised Terms. We will make a reasonable effort to inform you of such changes, but it is your responsibility to review these Terms periodically for changes
To access or use the Platform and Services, you represent and warrant that you have the right, authority, and capacity to enter into these Terms and to abide by all of the terms and conditions hereof.
You must reach at least the age of majority in the country where you live to use the Platform and Services. Please do not use the Platform if you are under 16 years of age unless your parent or guardian consents to your use of the Platform.
If you are using the Platform on behalf of a legal entity, you represent and warrant that you have the right and authority to enter into these Terms on that entity’s behalf and bind it to the terms and conditions hereof.
2. Our Services
2.1. We offer you access to the following functionality of the Platform (“Services”):
When you visit the Platform as the Visitor, you may:
- get acquainted with the Platform’s content that is available without signing up;
- contact us via means of communication available on the Platform.
When you use the Platform as the Customer, in addition to functionalities available for the Visitor, you may:
- get access to the cloud platform Tomi.ai which includes, among others: analytical services for the optimization of online campaigns, analysis of visitors on conversion propensity, uploading audiences in the Customer’s advertising accounts;
- get access to other Services which may be available on the Site on the condition the Account is registered.
2.2. We provide access to the cloud platform Tomi.ai under subscription terms, which means that access to all the functional features of the cloud platform (Tomi.ai) is given for a certain period of time provided that the Customer has registered an Account on the Site and has prepaid for the respective Services provision period (“Subscription”).
2.3. We may offer all or some of the Services on promotional terms, for example, at a discount, at our discretion, at any time, and during any period (“promotions”). We may also provide seasonal, temporary, and any other types of marketing offers (e.g. provide bonuses or promo codes) in relation to certain Services or the entire list of the Services within a particular Plan at our sole discretion. We have the right to change the terms and conditions of such promotions and marketing offers at any time at our sole discretion. Information on promotions and marketing offers is posted on our Platform and we do not make any guarantees that we will inform you about them by any other means.
3. How Can You Access and Use Our Platform and Services?
3.1. Account Registration
Access to most functionalities of the Platform and our Services will require you to register with us and create an Account on our Platform. Account registration is free of charge.
You shall provide reliable, complete, and accurate information during registration and keep your data up to date and complete. You are obliged to make appropriate changes to the Account information within a reasonable period of time from the moment your data changes (e.g., email address). We reserve the right to change the registration form and add a new field, accordingly to require you to provide additional information to us.
3.2. Access to Your Account
You are responsible for maintaining the secrecy of the login credentials to your Account. You are also responsible for all activities that occur in connection with your Account. We are not liable for any loss or damages arising from your failure to maintain the confidentiality of your Account. You agree to notify us immediately of any unauthorized access to or use of your Account.
3.3. Closing Your Account
You may request to close your Account at any time by contacting our support service available at firstname.lastname@example.org. Upon Account closure, we will delete all your personal data unless otherwise is legally prohibited or required. You may not close your Account to evade an investigation. You will remain liable for all obligations related to your Account even after the Account is closed.
We may delete or block your Account at our sole discretion if we believe that you violate these Terms, our Reasonable Use Policy, or any applicable laws and regulations.
4. Cost of the Services and Payment Procedure
4.1. Information regarding the cost of the Services is provided on the Site at: https://tomi.ai/#plans. Please make sure to familiarize yourself with the cost of the Services prior to subscribing to our Services.
4.2. The cost of the Services depends on the Plan and other specifications of the Services (such as period of Services provision, additional features) chosen by the Customer. The cost of the Plan is indicated based on the cost of the initial period of one month. By using our Platform, you confirm that you are familiar with the cost of the Services.
4.3. The Customer shall pay for the Services in the form of advance payment for the respective Services in accordance with the Plan chosen by such Customer.
4.4. The Customer shall pay for the Services using one of the following options:
4.4.1. By transferring funds for the respective Services in full to our bank account. In this case, you shall pay for the Services using bank wires or Stripe Payment System. You may familiarize yourself with the terms and conditions of the Stripe Payment System via the following link: https://stripe.com/en-mx/privacy.
4.4.2. Invoicing. In this case, we provide the Customer with the invoice for the appropriate Services on a monthly basis. The Customer shall make a payment within 15 days from the moment of its receipt.
4.4.3. ACH Payment. In this case, by choosing to use a bank account as your payment method, you will be able to pay the cost of the Services by using any valid automated clearing house (“ACH“) enabled bank account at a United States-based financial institution. If you choose to pay by ACH, you are authorizing us (or our agent) to debit your bank account for the total amount of the costs due and also you authorize the financial institution that holds your bank account to deduct such payments, in the amounts and frequency designated in your then-current payment plan agreed between you and us. We, at our sole discretion, may refuse this payment option service to any Customer without notice for any reason at any time. You should contact your bank for more information about the policies and procedures that apply to your account and any unauthorized transactions, including any limits on your liability.
4.5. The Customer pays for the Services in US dollars.
4.6. Any payment under this Agreement shall be deemed to have been made from the moment it is credited in full to our bank account.
To activate the Subscription you shall submit a request to us and proceed with the payment for the respective Services provision period. By activating the Subscription, you agree to the following:
- on the day following the last day of the Subscription term, it will be automatically renewing for the same period for which it was activated, without restrictions on the number of such automatic renewals;
- on the day when the Subscription renewal occurs, the cost of the chosen Subscription automatically transfers from the bank account specified in your Account to our bank account.
If the payment has not proceeded due to expiry of the Customer’s bank card, shortage of funds or for other reasons and the Customer has not cancelled the Subscription, we may suspend your access to the Services until we succeed in transferring the necessary amount from the Customer’s payment account specified in the Customer’s Account.
If the Customer has not used all functional features available within his/her Subscription plan during the respective Subscription term paid by the Customer, they are not transferred to the next period, and such Customer shall go through the Subscription activation process again in order to be able to use the remaining amount of Services.
4.8. We may amend the Plan options, the scope of the Services provided under a particular Plan option, the cost and terms of the Services provision at our own discretion. We make the relevant amendments available for the public on the Site at https://tomi.ai/#plans, and you may familiarize yourself with such changes at any time. At the same time, we undertake our best efforts to inform you of such changes timely by sending a notice to the email address associated with you. If you do not agree to such amendments, you may refuse to receive our Services by providing notice to us at email@example.com[email address].
4.9. For the Customer who has activated the Subscription, any amendments to the terms of the Subscription chosen by such Customer shall enter into force after the first Subscription renewal following the amendments. If the Customer does not cancel the Subscription before such renewal occurs, it constitutes his/her full consent to such changes.
4.10. Change of Plan
The Customer may choose to receive the Services under another Plan at any time (including during the period already paid by such Customer) by sending a respective request to the Platform at firstname.lastname@example.org.
If the Customer chooses another Plan during the period of Services provision already paid by such Customer, and the cost of the chosen Plan is higher than the cost of the previous Plan, the Customer must pay the difference between the cost of the chosen and the previous Plan during the transition period. Consequently, from the next billing period the Customer pays the cost of the new chosen Plan.
5. Intellectual Property
5.1. Our Content
All rights to the Site and to any intellectual property objects on the Site including without limitation all content, information, design, text, graphics, visual interfaces, interactive features, logos, compilations, source and object code and other objects (“Our Content”) belong to us or third parties who are our licensors and are protected under applicable copyrights, trademarks and/or other proprietary rights (including intellectual property rights).
The modifying, reproducing, distribution, sell, licensing, reverse engineer, decompilation, copying, redistribution, use or publication of any part of the Site or Our Content, unless expressly permitted in these Terms or otherwise, is strictly prohibited. Use of the Platform does not give you ownership to any intellectual property rights to Our Content. The posting of information or materials on the Site does not constitute a waiver of any right in such information and materials.
5.2. Deliverables and Platform’s intellectual property
In the course of Services’ provision you receive certain deliverables (“Deliverables”). The Customer shall own the exclusive intellectual property rights to the Deliverables from the moment of their creation provided that the Customer has paid for the respective Services in full.
Herewith, the Platform does not transfer any rights, including intellectual property rights on how the Deliverables are created by the Platform, including without limitation rights to any instruments, tools, software, prior acquired knowledge, skills, and expertise and other proprietary information and prior developed intellectual property of the Platform (“Platform’s intellectual property”). The Platform shall continue to own and have an unrestricted right to use Platform’s intellectual property for other purposes.
To the extent that such Platform’s prior developed intellectual property included in the Deliverables, upon full payment for the provided Services by the Customer, such Customer shall have a perpetual, non-exclusive, non-transferable and non-sublicensable license, to use Platform’s intellectual property as part of the Deliverables.
The license described above grants the Customer with the right to use Platform’s intellectual property solely as a part of the Deliverables in any legal form such as reproduction, public performance and public announcement, public demonstration and public displaying, republication, translation, processing, adaptation, arrangement and other similar changing, distribution, alienation by other means or by way of lease or rent, and through another transfer, submission to the general public, the alienation by other means or importing the copies. The Customer is prohibited from any use of Platform’s intellectual property that is not necessary for use of the Deliverables to which it is included. Such license grants the Customer with the right to use Platform’s intellectual property for an unlimited period of time and without restriction on the territory.
6. Warranty Disclaimers
YOU USE THE PLATFORM AT YOUR OWN DISCRETION AND RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR SITE AND SERVICES ARE PROVIDED ON “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO COMMITMENTS OR WARRANTIES ABOUT: THE CONTENT, COMPLETENESS, RELIABILITY, OR AVAILABILITY OF THE SERVICES; CORRESPONDENCE OF THE SERVICES TO YOUR EXPECTATIONS INCLUDING WITHOUT LIMITATION EXPECTATIONS REGARDING THE IMPACT OF THE SERVICES ON THE CUSTOMER’S SUCCESS IN BUSINESS ACTIVITIES AND HIS/HER COMMERCIAL OUTCOMES.
WE DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ACCURACY.
WE DO NOT REPRESENT OR GUARANTEE THAT THE PLATFORM WILL BE FREE FROM LOSS, CORRUPTION, CYBER ATTACK, VIRUSES, INTERFERENCE, HACKING, MALWARE, OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO. WE MAKE NO CLAIMS OR PROMISES ABOUT THE QUALITY, COMPLETENESS, ACCURACY, OR RELIABILITY OF THE PLATFORM.
WE SHALL NOT BE RESPONSIBLE FOR ANY PROBLEMS WITH THE SITE, INCLUDING WITHOUT LIMITATION SYSTEM ERRORS AND OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTING, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE ARE NOT LIABLE WHATSOEVER FOR YOUR USE OF THE SITE, THE SERVICES AND THE DELIVERABLES. YOU UNDERSTAND AND AGREE THAT WE ARE NOT AND SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL OR OTHER LOSS OR DAMAGES, AS WELL AS LOSS OF PROFITS, LOSS OF BUSINESS, LITIGATION COSTS, OR ANY OTHER LOSSES ARISING OUT OF OR CAUSED BY YOUR USE OF OR INABILITY TO USE THE SITE THE SERVICES AND THE DELIVERABLES, WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF WE KNOW OR HAS BEEN ADVISED ON THE POSSIBILITY OF SUCH DAMAGE OR LOSS. WE ARE NOT LIABLE FOR ANY THIRD PARTIES’ CLAIMS OF ANY NATURE. NONE OF THE SERVICES WOULD BE PROVIDED WITHOUT SUCH LIMITATIONS.
NO INFORMATION YOU OBTAIN FROM US OR THROUGH OUR SITE SHALL CREATE ANY WARRANTY, REPRESENTATION NOT EXPRESSLY STATED IN THESE TERMS. WE HAVE NO LIABILITY FOR ANY FAILURE OR DELAY RESULTING FROM ANY REASON BEYOND OUR REASONABLE CONTROL.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OUR TOTAL LIABILITY TO YOU IN CONNECTION WITH THE USE OF THE SITE AND THE SERVICES EXCEED THE AMOUNT OF THE COST OF THE SERVICES PAID BY THE CUSTOMER FOR THE PREVIOUS MONTH. THIS LIMITATION IS CUMULATIVE AND DOES NOT DEPEND ON THE NUMBER OF CLAIMS.
LIMITATIONS OF LIABILITY DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
8. Disputes Resolution
8.1. Disputes Between Users
You are solely responsible for your interactions with other users of the Platform.
8.2. Disputes with Tomi.ai
If a dispute arises between you and us, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. In the event of a dispute, we encourage you first to contact us at email@example.com to try resolving your problem directly with us.
Any dispute or claim relating in any way to your access and use of the Platform or Services, or otherwise arising out of or relating to these Terms that cannot be resolved directly between you and us shall be resolved by the respective court of the State of Delaware.
You and Tomi.ai agree that any litigation shall be limited to the dispute between us and you individually. To the fullest extent permitted by law, (i) no litigation shall be joined with any other; (ii) there is no right or authority for any dispute to be resolved on a class-action basis or to utilize class action procedures; and (iii) there is no right or authority for any dispute to be brought in a purported representative capacity on behalf of the general public or any other persons.
You and Tomi.ai agree that the following disputes are not subject to the above provisions concerning informal negotiations and mandatory litigation: (i) any disputes seeking to enforce or protect, or concerning the validity of, any of your or our intellectual property rights; and (ii) any claim for injunctive relief.
9. Miscellaneous Provisions
9.1. Entire Agreement and Severability
These Terms supersede and replace all prior terms, agreements, discussions and proposals regarding the Platform and constitute the entire agreement between you and us with respect to access and use the Platform and Services, unless otherwise expressly stated in these Terms.
Failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision. If any part of these Terms is found to be unenforceable, then that part will not affect the enforceability of the remaining parts of the Agreement, which will remain in full force and effect.
You may not assign or transfer these Terms and any associated rights or obligations, or remedy hereunder without our prior consent. We may freely assign these Terms or subcontract its obligations without restriction.
9.3. Applicable Law
All matters relating to the Platform and Services or these Terms, shall be governed by all applicable laws of the State of Delaware, without regard to its conflict of law provisions.
You use the Platform and Services at your own risk and for your sole responsibility. You agree to fully indemnify, defend and hold us and our affiliates, partners, officers, directors, agents, contractors, licensors, service providers, and employees harmless from any claim, demand or liability, including reasonable attorneys’ fees, related to your use of the Platform and Services or any violation of these Terms or applicable law.
9.5. Other agreements
The Platform and the Customer may agree on the conclusion of other agreements in relation to Services including the parties may agree on another scope of the Services and payment conditions. In the event of a conflict of provisions between such agreement and these Terms, the terms of such separate agreement shall prevail. Termination or modification of these Terms will not affect, or result in the termination or modification of any such other agreements between the Platform and the Customer.
If you believe your personal data has been disclosed or otherwise used unlawfully and you did not consent to such disclosure, please contact us at firstname.lastname@example.org. If we confirm the infringement, we will delete your personal data immediately.
11. Your Use of the Site and Services
11.1. Lawful Use
You agree to use the Site and/or Services in compliance with these Terms and applicable local, national, and international laws, and regulations. You warrant that your use of the Site and/or Services does not infringe any third party intellectual, privacy or other rights.
You are responsible for all of your activity on the Site and in connection with the Services. We are not and shall not be held responsible for your use of the Site and/or Services in a way that violates the law. Any fraudulent, abusive, or otherwise illegal activity may be grounds for closure of your Account or suspending your access to the Services.
11.2. Prohibited Use
We have to impose some restrictions upon use of our Services and by using the Services, you shall agree not to carry out certain actions. Such restrictions are described in our Reasonable Use Policy that constitutes an integral part of the Terms and applies to the Customers.
12. Term and Termination
These Terms will remain in full force and effect as long as you continue to access or use the Platform and Services. You may terminate your use of the Platform and Services at any time by providing a request to us at email@example.com.
We reserve the right to suspend or terminate your access to the Services at any time without prior notice, in the case if we determine that you violate or fail to comply with these Terms or applicable law or for any other reason at our own discretion. All provisions of these Terms which, by their nature, should survive termination, shall survive termination, including, without limitation, warranty disclaimers and limitations of liability.
13. Contact Us
Should you have any questions concerning these Terms, please contact us at firstname.lastname@example.org or other means of communication available on the Site.