Last Updated: February 13, 2023
These Terms of Service ("Terms") apply to your access to and use of (i) the website located at https://totofoods.co/ (or any successor links) and all associated web pages, websites, and social media pages (the "Website") provided by Toto Foods, Inc. ("Toto," "we," "our," or "us"), (ii) any online services ((i) and (ii), collectively, our "Services"), and (iii) Products (as defined below).
By using our Services or purchasing our Products, you expressly agree to these Terms. Please carefully review these Terms before using our Services or purchasing our Products, including, without limitation, the warranty disclaimers and releases set forth in Sections 2 and 15, which limit our liability and your ability to bring certain claims against us.
BY AGREEING TO THESE TERMS, EXCEPT FOR (I) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17 (II) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 17, OR (III) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND TOTO WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services or purchase our Products.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services or Products ("Supplemental Terms"). Any Supplemental Terms become part of your agreement with us if you use the applicable Services or purchase the applicable Products, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The "Last Updated" date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services or purchase of our Products after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services and may not purchase any of our Products. Any changes to these Terms will not apply to any dispute between you and us arising prior to the date on which we posted the updated Terms incorporating such changes or otherwise notified you of such changes.
Toto offers cookies and cookie dough intended to combine delicious taste and whole food ingredients. As used in these Terms, "Products" means the Toto cookies, cookie dough, and any other products that we may offer for purchase from time to time (including, without limitation, via the Website).
2. Certain Product Disclaimers
By using our Products, you expressly acknowledge and agree to the following:
- The nutritional information for Products at the time of their sale is reflected on their labels. Nutritional information for Products in your possession may not match the nutritional information with respect to such Products that is displayed on our Website or otherwise via our Services.
- You agree to check the ingredients associated with any Products that you receive from us to avoid potential allergic reactions. Products may be raw, contain raw ingredients and/or may contain or may have been manufactured in a facility that also processes dairy, eggs, fish, shellfish, soy, and/or tree nuts. If you have (or anyone under your guardianship has) an allergic reaction, food-borne illness, or other adverse health event, promptly contact your health care provider. CERTAIN PRODUCTS MAY, DUE THEIR NATURE (E.G., IF THEY ARE RAW OR CONTAIN RAW INGREDIENTS) OR STORAGE, EXPOSE YOU TO AN ALLERGIC REACTION, FOOD-BORNE ILLNESS, OR OTHER ADVERSE HEALTH EVENT.
- You agree to consult with your healthcare professional before adopting any dietary advice or program. You acknowledge and agree that (a) Toto is not a healthcare provider and does not provide any form of medical care, opinion, diagnosis, treatment, or advice and (b) the information on our Services and our Products is for informational purposes only and is not intended as a substitute for professional medical care, opinion, diagnosis, treatment or advice. You should not use our Services or purchase our Products for treating a health program or disease or for weight loss purposes. You expressly acknowledge and agree that you are not entering into a doctor-patient or other healthcare provider-patient relationship with Toto.
- TO THE FULLEST EXTENT PERMITTED BY LAW, WE WILL NOT BE RESPONSIBLE OR LIABLE FOR (A) ANY LOSS OR DAMAGE RESULTING FROM (A) YOUR RELIANCE ON NUTRITIONAL INFORMATION, (B) ENSURING THAT WHATEVER PRODUCTS PURCHASED OR CONSUMED ARE IN ACCORDANCE WITH YOUR DIETARY NEEDS, RESTRICTIONS, OR PREFERENCES, OR (C) ANY ALLERGIC REACTION, FOOD-BORNE ILLNESS, OR OTHER ADVERSE HEALTH EVENT ATTRIBUTABLE TO THE NATURE OF THE PRODUCTS CONSUMED OR THEIR STORAGE.
- Eligibility and Use Restrictions. Users under 18 years of age (or the age of legal majority where the user lives) may only use our Services or purchase our Products under the supervision of a parent or legal guardian who agrees to be bound by these Terms. The parent or legal guardian of a user under the age of 18 (or the age of legal majority) is fully responsible for the acts or omissions of such user in relation to our Services or Products. If you are a parent or legal guardian and you believe that your child under the age of 18 is using our Services or purchasing our Products without your consent, please contact us at [email]. In using our Services or purchasing our Products, you represent and warrant that you meet the eligibility requirements to use our Services or purchase our Products, as applicable, and have the authority to be bound by these Terms, including, without limitation, if you use our Services or purchase our Products on behalf of another person or entity (in which case "you" will include that person or entity and that person or entity agrees to be responsible to us).
- Accounts. You may create an account with us in order to use some or all of our Services. You will promptly update any information contained in your account if it changes. You must maintain the security of your account, as applicable, and promptly notify us if you discover or suspect that someone has accessed your account without your permission. We reserve the right to reject, require that you change, or reclaim usernames, including on behalf of businesses or individuals that hold legal claim, including trademark rights, in those usernames.
4. Your Information
You may provide certain information to Toto in connection with your use of our Services or purchase of our Products, or we may otherwise collect certain information about you when you use our Services or purchase our Products. You agree to receive emails, SMS or text messages, and other types of communication from Toto via our Services using the email address or other contact information you provide in connection with use of our Services or purchase of our Products and, with respect to SMS and text messages, agree to our Messaging Terms at https://terms.pscr.pt/legal/shop/toto-cookie-dough/terms_of_service (or any successor link). You represent and warrant that any information that you provide to Toto is accurate.
- Pricing. Before purchasing our Products, you will have an opportunity to review our fees and other charges therefor. All fees and charges are subject to change at any time without notice, except as expressly set forth in connection with a Recurring Subscription (as defined below). If you wish to make a purchase, you may be asked to supply certain relevant information, such as your payment card number and its expiration date and your billing address, to us or our payment processors. You represent and warrant that you have the right to use any payment card that you submit in connection with a purchase. We may receive updated information from your issuing bank or our payment service provider about any payment method you have stored with us. You authorize us to charge your payment method, including any updated payment method information we receive, for any charges you are responsible for under these Terms. Verification of information may be required prior to the acknowledgment or completion of any purchase. You will pay all charges incurred by you or on your behalf, at the prices in effect when such charges are incurred, including all other charges applicable to your purchase. In the event legal action is necessary to collect on balances due, you will reimburse us and our vendors or agents for all expenses incurred to recover sums due, including attorneys' fees and other legal expenses.
- Recurring Subscriptions. In using our Services or purchasing our Products, you may enroll in a payment plan involving automatic renewal (a "Recurring Subscription"). If you enroll in a Recurring Subscription, you authorize Toto to maintain your account information and charge that account automatically upon the renewal with no further action required by you. The length of your Recurring Subscription will be provided when you make your purchase. Your Recurring Subscription will automatically renew unless you cancel it, meaning that we will automatically charge fees to you for the length of your Recurring Subscription. In the event that Toto is unable to charge your account as authorized by you when you enrolled in a Recurring Subscription, Toto may in its sole discretion (i) bill you for our Services or Products and suspend your access to such Services or Products until payment is received or (ii) seek to update your account information through third-party sources (i.e., your bank or a payment processor) to continue charging your account as authorized by you. You may cancel your Recurring Subscription through your account. You may cancel a Recurring Subscription at any time, but if you cancel your Recurring Subscription before the end of the current subscription period, we will not refund any subscription fees already paid to us. Following any cancellation, however, you will continue to have access to the applicable Services or may purchase the applicable Products through the end of your current subscription period. Toto may change the prices charged for Recurring Subscriptions at any time by posting updated pricing through our Services; provided, however, that the prices for your Recurring Subscription will remain in force for the duration of the subscription period for which you have paid. After that period ends, your use of the applicable Services or purchase of the applicable Products will be charged at the then-current subscription price. If you do not agree to these price changes, you must cancel your Recurring Subscription prior to the billing date in which the changes take effect. If you do not cancel, your Recurring Subscription will automatically renew at the then-current price at the time of renewal and for the same duration as the initial subscription term, and Toto will charge your on-file payment card or method on the first day of the renewal of the subscription term.
- Purchase and Related Terms.
- Product Listings. We may make available listings, descriptions, and images of Products, as well as references and links to Products and coupons or discounts for Products ("Listings"). Such Listings may be made available for any purpose, including general information purposes. We attempt to ensure that any such Listings are complete, accurate, and current, but despite our efforts, the Listings may occasionally be inaccurate, incomplete, or out of date. We make no representations as to the completeness, accuracy, reliability, validity, or timeliness of such Listings (including any features, specifications, and prices contained therein). Such Listings and the availability of any Product (including the validity of any coupon or discount) are subject to change at any time without notice. Certain weights, measures, and similar descriptions are approximate and are for convenience only.
- Order Confirmation and Acceptance. You will have the opportunity to review and confirm your order for Products, including, as applicable, delivery address, payment method, and other details of your order. We will display or send a notice when we ultimately accept your order, and our acceptance will be complete at the time we display or send the formal acceptance notice. Payment must be received by us before our acceptance of an order.
- Shipping and Delivery. If applicable, Products will be shipped to an address designated by you, so long as such address is complete and complies with the shipping restrictions set forth in these Terms or otherwise contained on the Website or separately communicated to you. You will pay all shipping and handling charges specified during the ordering process. All purchases of shipped Products are made pursuant to a shipment contract and, as a result, risk of loss and title for Products pass to you upon delivery of the Products to the carrier. You are responsible for filing any claims with carriers for damaged and/or lost shipments. Any shipping dates provided are approximate and not guaranteed. We are not liable for any delays in shipments.
- Order Delays and Cancellations. We reserve the right to delay, refuse, or cancel any order prior to delivery, if applicable. For example, if there are errors on the Website or made in connection with your order or inaccuracies in Product or pricing information or Product availability, we reserve the right to correct the error and charge you the correct price or cancel your order. We will contact you if any portion of your order is canceled or if additional information is required to accept your order. Occasionally, the manufacture or distribution of a certain Product may be delayed. In such event, we will make reasonable efforts to notify you of the delay and keep you informed of the revised delivery schedule.
- Returns, Refunds and Exchanges. We may provide refunds for, and/or accept returns or exchanges of, Products. Please see our returns and refunds policy found at [Insert Link] (or any successor link) (our "Return Policy"), for the terms and conditions applicable to refunds for, and returns and exchanges of, Products. Our Return Policy is incorporated by reference into these Terms.
- Reservation of Rights. We reserve the right, including without prior notice, in whole or in part, to (i) limit the available quantity of or discontinue making available any Product, (ii) impose conditions on the honoring of any coupon, discount, or similar promotion, (iii) bar any user from purchasing any Products, (iv) alter the payment option for any Products and (v) refuse to provide any user with any Products.
User Content and Publicity
- Sharing User Content. Our Services may allow you and other users to post or share content, including reviews, messages, text, photos, videos and other materials (collectively, "User Content"). If you post or share any User Content, you grant Toto a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, voice, image, personality, or other likeness provided in connection with your User Content in all media formats and channels now known or later developed, without compensation to you or any third party. You hereby irrevocably waive any "moral rights" or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory. Except for the foregoing license, you retain all rights (including ownership) in and to your User Content.
Restrictions. You may not create, share or display any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any third-party rights, or cause injury to any person or entity. You may not create, share or display any User Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
- Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any applicable law;
- May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content;
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose Toto or others to any harm or liability of any type; or
- Otherwise violates these Terms.
- Enforcement. Enforcement of this Section 6 is solely at Toto's discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This section does not create any private right of action on the part of any third party or any reasonable expectation that our Services or Products will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
- Review. We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
- Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
- Terminate or suspend your access to all or part of our Services if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
- Take any action with respect to your User Content that is necessary or appropriate, in Toto’s sole discretion, to ensure compliance with applicable law and these Terms or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
- Cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through our Services. To learn more about parental control protections (such as computer hardware, software, or filtering services) that may assist you in limiting your minor’s access to certain content, visit https://www.fbi.gov/resources/parents.
- General. You will not use our Services or purchase our Products if you are not eligible to use our Services or purchase our Products in accordance with these Terms and will not use our Services or Products other than for their intended purpose. Without limiting the foregoing, you must always be respectful of other users during your use of our Services.
- Specific. Further, you will not:
- Use our Services or purchase our Products for any purpose other than your personal, non-commercial purpose;
- Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
- Engage in any harassing, threatening, intimidating, predatory, stalking, discriminatory, or other objectionable conduct or disturb or solicit others;
- Use any cameras, video, or other devices designed to or enabled to capture recordings in connection with our Services without our prior written consent;
- Use or attempt to use another user's account or information without authorization from that user and Toto;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell or resell our Services;
- Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services or Products, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services or Products;
- Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results;
- Develop or use any applications that interact with our Services without our prior written consent;
- Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Link to any online portion of our Services; or
- Use our Services or Products for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
- Enforcement. Enforcement of this Section 7 is solely at Toto’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
Ownership; Limited License
Toto or our licensors own all right title and interest (including intellectual property rights) in and to our Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein. Toto or our licensors own all intellectual property rights in and to our Products. Except as explicitly stated in these Terms, all rights in and to our Services and Products, including all intellectual property rights therein and thereto, are reserved by us or our licensors. Subject to your compliance with these Terms, you are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable, revocable license to access and use our Services for your own personal, noncommercial use (and, solely with respect to any downloadable technology included within our Services, to install and use such downloadable technology on a mobile or personal device that you own or control). Any use of our Services or Products other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein and violate our intellectual property rights. Any downloadable technology included within our Services is licensed (not sold), and if you fail to comply with any of the terms or conditions of these Terms, you must immediately cease using the applicable downloadable technology and remove (that is, uninstall and delete) the applicable downloadable technology from your mobile or personal device.
The "Toto" name and our logos, product or service names, slogans, and the look and feel of our Services are trademarks of Toto and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with our Services or Products are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about Toto or our Services or Products (collectively, "Feedback"). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or our Services or Products, or to improve or develop new products, services, or our Services or Products in Toto’s sole discretion. Toto will exclusively own all improvements to, or new, Toto products or services based on any Feedback. You understand that Toto may treat Feedback as nonconfidential.
Repeat Infringer Policy; Copyright Complaints
- Our Policy. In accordance with the Digital Millennium Copyright Act ("DMCA") and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our "DMCA Policy").
- Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringes any copyright that you own or control, you may notify Toto’s designated agent (your notification, a "DMCA Notice") as follows:
Designated Agent: Sydney Webb
Address: 1014 Broadway STE 255
Santa Monica CA 90401
Telephone Number: 310-357-0227
Email Address: firstname.lastname@example.org
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to Toto for certain costs and damages.
- Our Response to DMCA Notices. Upon receipt of a DMCA Notice meeting the requirements of Section 512(c)(3) of the DMCA, we may (i) remove or disable access to the allegedly infringing content (the "Allegedly Infringing Content"), (ii) take reasonable steps to notify the user who provided the Allegedly Infringing Content (the "Allegedly Infringing User") that access to the Allegedly Infringing Content has been disabled or the Allegedly Infringing Content has been removed, (iii) notify the party who provided the DMCA Notice with respect to the Allegedly Infringing Content (the "Original Complaining User") of any counter notifications that we receive in accordance with Section 12(d) from the Allegedly Infringing User, and (iv) replace or restore the Allegedly Infringing Content in accordance with Section 12(e). In accordance with our DMCA Policy, if we determine that the Allegedly Infringing User has provided allegedly infringing content numerous times on or through our Services, we may also terminate the account of such user or terminate the ability of such user to add content to our Services.
- Counter Notices. If you believe that your content was removed or disabled in accordance with this Section 12 by mistake or misidentification, you may send a counter notice to our designated agent as specified above (your counter notice, a “DMCA Counter Notice”). Please see Section 512(g)(3) of the DMCA for the requirements of a proper counter notification. If you knowingly materially misrepresent that any content on our Services was removed or disabled by mistake or misidentification, you may be liable to Toto for certain costs and damages.
- Our Response to DMCA Counter Notices. When Toto receives a DMCA Counter Notice meeting the requirements of Section 512(g)(3) of the DMCA with respect to any Allegedly Infringing Content, Toto may send a copy of the DMCA Counter Notice to the Original Complaining User informing that user that we will replace or restore the Allegedly Infringing Content. Unless our designated agent described in Section 12(b) receives notice that the Original Complaining User files an action seeking a court order against the Allegedly Infringing User within fourteen (14) business days of receiving the copy of the Allegedly Infringing User’s DMCA Counter Notice, we may restore the removed or disabled content.
- Our Services may rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, and internet and mobile operators (collectively, "Third-Party Materials"). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that (i) the use and availability of our Services is dependent on third-party product vendors and service providers and (ii) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
- We may further (i) sell our Products via third-party retailers or vendors ("Third-Party Retailers"), (ii) provide information about or links to Third-Party Retailers or other third-party products, services, activities, or events, or (iii) allow Third-Party Retailers or other third parties to make their content and information available on or through our Services or Products (such information, links and content, "Third-Party Content"). We provide Third-Party Content as a service to those interested in it. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Retailers or Third-Party Content are solely between you and the third party.
- We have no obligation to monitor Third-Party Materials, Third-Party Retailers, or Third-Party Content, and we may block or disable access to any Third-Party Materials, Third-Party Retailers, or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Materials, Third-Party Retailers, or Third-Party Content may be subject to additional terms, conditions, and policies (including terms of service or privacy policies of the applicable third party). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to use our Services and purchase our Products.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless Toto and our subsidiaries and affiliates, and each of our respective officers, directors, employees, partners and agents (individually and collectively, the "Toto Parties") from and against any losses, liabilities, claims, demands, damages, expenses or costs ("Claims") arising out of or related to: (a) your access to or use of our Services or your purchase or use of our Products (including any acts and/or omissions); (b) your User Content or Feedback; (c) your violation of these Terms; or (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights). You will cooperate with the Toto Parties in defending third-party Claims and pay all fees, costs, and expenses associated with defending such third-party Claims (including attorneys' fees). The Toto Parties will have control of the defense or settlement, at Toto's sole option, of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Toto or the other Toto Parties.
General Disclaimer and Release
- General Disclaimer. YOUR USE OF OUR SERVICES AND PRODUCTS AND ANY SERVICES, CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) IS AT YOUR SOLE RISK. EXCEPT AS OTHERWISE PROVIDED IN A WRITING BY US AND TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, OUR SERVICES, PRODUCTS, AND ANY SERVICES, CONTENT OR MATERIALS PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) ARE PROVIDED "AS IS" AND "AS AVAILABLE" WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND TOTO DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE FOREGOING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, TOTO DOES NOT REPRESENT OR WARRANT THAT OUR SERVICES OR PRODUCTS OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) ARE ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE OR THAT ACCESS TO OUR SERVICES OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) WILL BE UNINTERRUPTED. WHILE TOTO ATTEMPTS TO MAKE YOUR USE OF OUR SERVICES AND PRODUCTS AND ANY SERVICES AND CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) SAFE, WE CANNOT AND DO NOT REPRESENT OR WARRANT THAT OUR SERVICES OR PRODUCTS OR ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT) OR OUR SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR CONTENT OR MATERIALS. YOU ASSUME THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF OUR SERVICES AND PRODUCTS AND ANY SERVICES OR CONTENT PROVIDED THEREIN OR THEREWITH (INCLUDING THE THIRD-PARTY MATERIALS, THIRD-PARTY RETAILERS AND THIRD-PARTY CONTENT).
- Release. YOU HEREBY SPECIFICALLY, FULLY AND FOREVER RELEASE, COVENANT NOT TO SUE, DISCHARGE, AND INDEMNIFY AND HOLD HARMLESS THE TOTO PARTIES FROM AND AGAINST ANY AND ALL CLAIMS (AS DEFINED IN SECTION 14) RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF ANY THIRD PARTIES. YOU UNDERSTAND THAT THIS WAIVER MEANS YOU GIVE UP YOUR RIGHT TO BRING ANY CLAIMS, INCLUDING, WITHOUT LIMITATION, FOR PHYSICAL OR EMOTIONAL INJURIES, DEATH, DISEASE OR PROPERTY LOSSES, OR ANY OTHER LOSS, INCLUDING, WITHOUT LIMITATION, CLAIMS FOR NEGLIGENCE, AND YOU GIVE UP ANY CLAIM YOU MAY HAVE TO SEEK DAMAGES, WHETHER KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN.
If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: "A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
- Beneficiaries. ALL DISCLAIMERS AND RELEASES OF ANY KIND (INCLUDING IN THIS SECTION 15 AND ELSEWHERE IN THESE TERMS) ARE MADE FOR THE BENEFIT OF TOTO, THE OTHER TOTO PARTIES, AND THE TOTO PARTIES' RESPECTIVE SHAREHOLDERS, AGENTS, REPRESENTATIVES, LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS, AS WELL AS THEIR RESPECTIVE SUCCESSORS AND ASSIGNS.
Limitation of Liability
Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND TOTO TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND TOTO FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND TOTO AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. TOTO AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
- Arbitrable Claims. For any dispute or claim that you have against Toto, that Toto has against you or that you have, or Toto has, in each case arising from, relating to, or stemming from these Terms, our Services, our Products, or any aspect of the relationship between you and Toto as relates to these Terms or our Services, including any privacy or data security claims (collectively, "Arbitrable Claims," and each an "Arbitrable Claim"), you and Toto agree to attempt to first resolve the Arbitrable Claim informally via the following process. If you assert an Arbitrable Claim against Toto, you will first contact Toto by sending a written notice of your Arbitrable Claim ("Claimant Notice") to Toto by certified mail addressed to 1014 Broadway STE 255, Santa Monica CA 90401 or by email to email@example.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Arbitrable Claim; and (iii) set forth the specific relief sought. If Toto asserts an Arbitrable Claim against you, Toto will first contact you by sending a written notice of Toto’s Arbitrable Claim ("Toto Notice"), and each of a Claimant Notice and Toto Notice, a "Notice") to you via email to the primary email address associated with your account. The Toto Notice must (A) include the name of a Toto contact and the contact’s email address and telephone number; (B) describe the nature and basis of the Arbitrable Claim; and (C) set forth the specific relief sought. If you and Toto cannot reach an agreement to resolve the Arbitrable Claim within thirty (30) days after you or Toto receives such a Notice, then either party may submit the Arbitrable Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or Toto first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
- Binding Arbitration. Except for (i) individual disputes that qualify for small claims court or (ii) any disputes exclusively related to the intellectual property or intellectual property rights of you or Toto, including any disputes in which you or Toto seek injunctive or other equitable relief for the alleged unlawful use of your or Toto's intellectual property rights or other infringement of your or Toto’s intellectual property rights ("IP Claims"), all Arbitrable Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including, with respect to Arbitrable Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 17(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Arbitrable Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
- Governance. These Terms affect interstate commerce, and the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law.
- Submission. All Arbitrable Claims must be submitted to the American Arbitration Association ("AAA") and will be resolved through binding arbitration before one arbitrator. If you are a consumer, the then-current version of the AAA’s Consumer Arbitration Rules will apply, which are available on the AAA’s website (adr.org), as amended by these Terms as follows:
- YOU AND TOTO AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND TOTO ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against Toto or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
- For any arbitration you initiate, you will pay the consumer filing fee, and Toto will pay the remaining AAA fees and costs. For any arbitration initiated by Toto, Toto will pay all AAA fees and costs.
- For all arbitrations where the claims asserted are $25,000 or less, the arbitration shall be resolved according to the AAA’s Procedures for the Resolution of Disputes through Document Submission, and for all other arbitrations the following procedure will apply: (a) the arbitrator will conduct hearings, if any, by teleconference or videoconference rather than by personal appearances, unless the arbitrator determines upon request by you or by us that an in-person hearing is appropriate; (b) any in-person appearances will be held at a location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; and (c) if the parties are unable to agree on a location, such determination should be made by the AAA or by the arbitrator.
- If you or Toto submits a dispute to arbitration and the arbitrator orders any exchange of information, you and Toto agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and Toto agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
- The arbitrator's decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state, or local agencies and, if the law allows, they can seek relief against us for you.
- The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against Toto or against you by the same or coordinated counsel or are otherwise coordinated. In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and Toto understand and agree that when twenty-five (25) or more similar claims are asserted against Toto or you by the same or coordinated counsel or are otherwise resolved, your or Toto’s Arbitrable Claim might be delayed. For such coordinated actions, you and Toto also agree to the following coordinated bellwether process. Counsel for the claimants and counsel for Toto shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings as part of a bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process. The remaining cases shall not be filed or deemed filed in arbitration nor shall any AAA fees be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. This staged process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved. The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this staged process from the time the first cases are selected for a bellwether process until the time your case is selected for a bellwether process, withdrawn, or otherwise resolved. A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against Toto or you.
- One Year to Assert Claims. To the extent permitted by law, any Arbitrable Claim by you or Toto relating in any way to these Terms, our Services, or any aspect of the relationship between you and Toto as relates to these Terms or our Services, must be filed within one year after such Arbitrable Claim arises; otherwise, the Arbitrable Claim is permanently barred, which means that you and Toto will not have the right to assert the Arbitrable Claim.
- Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at firstname.lastname@example.org or by certified mail addressed to Toto Foods Inc, 1014 Broadways STE 255, Santa Monica CA 90401. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.
- Severability. If any portion of this Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 17 or the parties' ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 17; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 17 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 17 will be enforceable.
- Other Jurisdictions. Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 17 or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
These Terms and any claims made hereunder (including Arbitrable Claims) will be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Arbitrable Claim is not subject to arbitration pursuant to Section 17, then the state and federal courts located in Los Angeles, California will have exclusive jurisdiction. You and Toto irrevocably waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
Modifying and Terminating Our Services or Products
We may: (a) modify our Services or Products or to suspend or terminate providing all or part of our Services or Products at any time; (b) charge, modify, or waive any fees required to use our Services or Products; or (c) offer opportunities to some or all end users of our Services or purchasers of our Products. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to our Services or Products will be governed by these Terms or Supplemental Terms, unless otherwise expressly stated by Toto in writing. You also have the right to stop using our Services or purchasing our Products at any time, and you may terminate these Terms by ceasing use of our Services or purchase of our Products. We are not responsible for any loss or harm related to your inability to access or use our Services or purchase our Products.
If any portion of these Terms other than Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a "terrorist supporting" country; or (b) on any of the U.S. government lists of restricted end users.
- General. Toto's failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word "including" will be interpreted to mean "including without limitation." Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
- Questions. If you have a question or complaint regarding our Services or Products, please send an email to email@example.com. You may also contact us by writing to 1014 Broadway STE 255, Santa Monica CA 90401, or by calling us at 310-357-0227. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.