Terms & Conditions of Use
TOOT 'N TOTUM TERMS &
CONDITIONS OF USE
Last Update: June 15, 2022
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THE SITES (DEFINED BELOW). YOUR CONTINUED USE OF THE SITES WILL BE DEEMED AN ACCEPTANCE OF THESE TERMS. THESE TERMS INCLUDE AN BINDING ARBITRATION PROVISION THAT GOVERNS ANY DISPUTES BETWEEN YOU AND TOOT'N TOTUM FOOD STORES, LLC AND ELIMINATES YOUR RIGHT TO TRIAL BY JURY AND PREVENTS YOU FROM BRINGING, JOINING, OR PARTICIPATING IN A CLASS ACTION LAWSUIT.
These Terms & Conditions of Use ("Terms") set forth a legally binding agreement between you and Toot 'n Totum Food Stores, LLC (the "Company," "we," "our," or "us"), and govern your use of and access to Toot 'n Totum's website, mobile application, rewards program, and any other websites, mobile and other applications, or services that post a link to these Terms (collectively, the "Sites") and the information, features, content, and services that we own, control, or make available through the Sites.
The Sites are offered and available to individuals who are 14 years of age or older. By using the Sites, you represent and warrant that you are 14 years of age or older. If you do not meet this requirement, you must not access or use the Sites and should not send any information about yourself to us through the Sites. If you are between the ages of 14 and 17, you may only use the Sites with the consent and under the supervision of a parent or legal guardian who agrees to be bound by these Terms. THIS APP MAY NOT BE USED BY RESIDENTS OF CALIFORNIA OR THE EUROPEAN UNION, OR ANY USER LISTED ON ANY U.S. GOVERNMENT LIST OF PROHIBITED OR RESTRICTED PARTIES.
OWNERSHIP OF OUR INFORMATION
You acknowledge and agree that the Sites and information and materials concerning the Company and its products and services on the Sites, including, but not limited to text, graphics, button icons, layout, databases, articles, posts, text, data, files, images, scripts, designs, instructions, illustrations, photographs, sounds, pictures, advertising copy, URLs, technology, software, interactive features, the "look and feel" of the Sites, audio and video clips, digital downloads, data compilations (collectively, the "Company Information") is the property of the Company, or our licensors or certain other third parties, and is protected by U.S. and international copyright, trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible. The Company owns all copyrights, trademarks, service marks, and trade names related to our Company Information and the Sites. All Company Information is proprietary to the Company.
Subject to your strict compliance with these Terms, the Company grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to use the Sites for your personal, non-commercial use only.
All rights not expressly granted to you are reserved by the Company and its licensors and other third parties. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. Any unauthorized use of any Company Information or the Sites expressly is prohibited.
ACCESSING THE SITES
We reserve the right to withdraw or amend the Sites, and any Company Information we provide on the Sites , in our sole discretion without notice. We will not be liable if for any reason all or any part of the Sites is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Sites, or the entire Sites, to you. Similarly, our Site relies on some third-parties' technology and services, and those third-parties may modify their technology and/or services, and you agree that we will have no liability for such modifications made by the third-parties.
You are responsible for:
- Make all arrangements necessary for you to have access to the Sites.
- Ensuring that all persons who access the Sites through your internet connection are aware of these Terms and comply with them.
- Complying with all applicable laws, including ensuring that using our Sites on mobile devices does not distract you or prevent you from obeying traffic or safety laws.
We may immediately suspend or terminate the availability of the Sites and Company Information, in whole or in part, to any individual, group, or everyone, for any reason, in the Company's sole discretion, and without advance notice or liability. Upon suspension or termination of your access to the Sites, or upon notice from the Company, all rights granted to you under these Terms will cease immediately, and you agree that you will immediately discontinue use of the Sites. The provisions of these Terms, which by their nature should survive your suspension or termination, will survive.
You acknowledge and agree that the Company and its service providers are not liable for information that is inaccurate due to technical defects in software used on the Sites or service providers' websites, whether induced by their respective systems or by software provided by third parties.
Reward Program Terms & Conditions
TOOT'N TOTUM REWARD TERMS & CONDITIONS
Last Updated: June 15, 2022
PARTICIPATION IN OUR REWARDS PROGRAM
These Reward Program Terms and Conditions supplement the Site Terms , and collectively, govern the terms on which you may participate in our rewards program (the "Rewards Program"), which is operated by Company, or its third party providers. In other words, by using the Rewards Program, you agree to these Terms and Conditions and our Site Terms. By using, enrolling, or participating in the Rewards Program, you agree to these additional terms and conditions. Reward Program members are eligible to earn rewards from participating retail or gas/service stations (the "Participating Locations") which may include, but not limited to, free products or services, or cents off fuel(collectively "Rewards").
To join our Rewards Program, go to our Sites or the mobile application (the "App") and follow the prompts to create an account ("Account"). By creating an Account, you are automatically enrolled in the Rewards Program until your Account is cancelled, suspended, deleted, or as otherwise set forth herein. You cannot join or participate in our Rewards Program without creating an Account and you cannot cancel or opt out of our Rewards Program without canceling your Account. There is no fee to join or participate in the Rewards Program. You are only allowed one Account that is personal to you, and you are prohibited from using another account holder's Rewards.
EARNING AND REDEEMING REWARDS
You earn Rewards by making qualified purchases of certain products or services in the App, at the pump, or in store at Participating Locations. How your Rewards are credited to your Account, depends on how you pay for the qualified products or services.
If you make any payments in the App, any Rewards you earn in connection with such transaction should be automatically credited to your Account. In order to enable in App purchases, you must either register your TnT Gas Discount Card to your Rewards Account or enroll in mobile pay ("Mobile Pay"). Mobile Pay is a program that allows you to link your bank account to the App to enable ACH debit transactions. Mobile Pay payments are enabled and processed by a third party provider, National Payment Card Association d/b/a Zipline ("Zipline") and are subject to Zipline's terms and conditions found here and may be presented to you upon your enrollment in Mobile Pay. Payments will be authorized using a secured User ID (PIN) that you select when enroll in Mobile Pay. You assume sole and exclusive responsibility and liability for remembering and securing your PIN and in no event will we be liable for any issues arising out of or related thereto. You further agree to hold us harmless from and against all liability associated with your interaction and/or use of Zipline's services.
For any payments outside of the App, we will ask you for your Alt ID, either at the pump or inside Participating Locations, in order to credit your Account with any Rewards in connection with such transaction. Your Alt ID is the number and bar code that is assigned to your Rewards Account when it is created, which may be found in the App in the top right corner of the home screen. Notwithstanding the forgoing, in certain cases, you may link your Rewards Account to an eligible MasterCard, Visa, or American Express credit card, in which case, when you use such card to pay at the pump or in store purchases at Participating Locations, any Rewards you earn in connection with such transaction will automatically be credited to your Account. If paying using multiple forms of tender (i.e., gift card and credit card or cash, multiple credit cards), you must pay in store at a Participating Location and present your Alt ID in order to receive the full value of the Reward in connection with such transaction.
Rewards cannot be combined with rewards earned through separate loyalty programs, including those with any of a non-participating retail locations. Check the promotion materials on the Site, App, or in store at Participating Locations for specific offers, terms and conditions, restrictions, and expiration details for products and services qualified for Rewards. We will not accept returns on any qualified products and services purchased in connection with a Reward and all sales for such products and services are final.
Your Rewards will appear in your Account until they are used or they expire. We do not assume any liability for the failure of Rewards to post to your Account in a timely manner, or for the unauthorized use of your Rewards by any third-parties. Rewards for fuel must be redeemed during the current month they are earned, plus one (1) month, and for all other products and services, Rewards must be redeemed within one (1) year of the date they are earned. All unredeemed Rewards will be forfeited upon their applicable expiration. Further, upon the termination or expiration of your Rewards Account, you acknowledge and agree that any earned, but unused Rewards, will be forfeited and lost. You acknowledge that Company has no liability to you for failure to redeem your Rewards or if your Rewards otherwise expire or are lost for any reason.
You are solely responsible for checking your Account regularly to ensure that your Rewards are properly credited. If you believe that proper credit does not appear on your Account, you should contact us at 1-833-616-1968 no later than thirty (30) days after you believe the Rewards should have been credited to your Account and then provide any requested documentation to verify your purchase. We reserve the right to determine, in our sole and absolute discretion, how to interpret and apply our Rewards program, including but not limited to whether Rewards should have been posted to your Account and to adjust your Account accordingly. You acknowledge that any determinations by us will be final and binding. IF YOU DISAGREE WITH ANY SUCH DETERMINATION, OR OTHERWISE DISPUTE THAT REWARDS HAVE BEEN PROPERLY CREDITED TO YOUR ACCOUNT, YOUR SOLE REMEDY IS TO WITHDRAW FROM THE REWARDS PROGRAM AND DISCONTINUE USE OF OUR SERVICES.
MODIFICATION OR TERMINATION OF REWARDS PROGRAM
Company may change, suspend, discontinue or cancel any aspect of the Rewards Program, Mobile Pay, your Rewards Account, or your Rewards balance at any time, for any and no reason, at its sole discretion and without notice to you. In addition, Company may convert the Rewards Program into a different rewards program at any time. Company may also impose limits on membership eligibility, certain features and services, or restrict your access to parts or all of the Rewards Program, without notice or liability. Company reserves the right, in its sole discretion, to refuse service or suspend or terminate your Rewards Account or participation in the Rewards Program at any time and without notice to you.
If any time you desire to cancel your participation in the Rewards Program, you may terminate your Account on the Sites or in the App, or by contacting us at 1-833-616-1968.
By creating an Account, you agree to receive emails from us from time to time regarding the Rewards Program. If you wish to unsubscribe, you may click on the unsubscribe link provided in the email or notify us. If you provide us your phone number when creating your Account, we consider that your affirmative opt-in consent to receive text message notifications from us regarding the Rewards Program. You acknowledge message and data rates may apply. If you wish to opt-out of receiving text messages at any time, you may text the words "STOP", "QUIT," "UNSUBSCRIBE" "OPT-OUT" or "CANCEL."
THIRD PARTY PROVIDERS
You acknowledge and agree that certain functionality of the Rewards Program is owned and operated by third party providers, including, but not limited to the App, and Mobile Pay, and that the terms of such third party providers will govern those products and services. You acknowledge and agree that in no event will we be liable to you for any breach of these Rewards terms and conditions, or your operation or access to the Rewards Program, Account, Rewards, or any other feature of the Rewards Program, which is caused by or arises out of or is related to any functionality that is owned and operated by our third party providers and such third party providers shall be solely and exclusively liable.
REWARD PROGRAM DISCLAIMERS
You acknowledge and agree that the Rewards have no cash, monetary, or other value, nor may the Rewards be converted into any currency or cash equivalent. If and only if applicable law mandates a value be assigned to Rewards, the Rewards shall have the lowest value per point as applicable law allows. The descriptions, pictures, representations of products, promotions and/or other information available through the Rewards Program may contain inaccuracies and/or errors. Company does not make any warranty or representation with respect to the accuracy or completeness of any such information and reserves the right to correct the same without penalty. THE APP, REWARDS PROGRAM, ACCOUNT, REWARDS, MOBILE PAY, AND ANY OTHER INFORMATION, DESCRIPTION, SERVICE, OR FUNCTIONALITY AVAILABLE ON OR THROUGH THE REWARDS PROGRAM ARE PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER THE COMPANY OR ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER REGARDING THE APP, REWARDS PROGRAM, ACCOUNT, REWARDS, MOBILE PAY, OR ANY INFORMATION, DESCRIPTION, SERVICE, OR FUNCTIONALITY AVAILABLE ON OR THROUGH THE REWARDS PROGRAM, INCLUDING, BUT NOT LIMITED TO THE AVAILABILITY, RELIABILITY, OR ACCURACY THEREOF, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL.
Certain products and services may be unavailable to receive Rewards, including but not limited to alcohol, tobacco, gift cards, taxes, and any items that are prohibited by law.
VOID WHERE PROHBIITED
The Rewards Program is void where prohibited. Your Rewards cannot be used for commercial purposes, gifted, sold, copied, shared, or otherwise transferred to any third party.
RESTRICTIONS AND PROHIBITED ACTIVITIES
You agree that you will not:
- copy, display, distribute, download, license, modify, publish, re-post, reproduce, reuse, sell, transmit, or use the Sites or Company Information to create a derivative work;
- use the Sites or Company Information for any political purpose;
- engage in any activity in connection with the Sites or Company Information that is libelous, slanderous, defamatory, fraudulent, unlawful, false or misleading, harmful, tortious, vulgar, invasive of another's privacy, sexually explicit, offensive, obscene, profane, violent, threatening, harassing, abusive, hateful, or otherwise inappropriate with respect to race, gender, sexuality, ethnicity, or other intrinsic characteristic;
- harvest any information from the Sites;
- copy, derive, edit, translate, decompile, reverse engineer, modify, use, or reproduce any code or source relating to the Sites including without limitation, any service or product the Company offers;
- modify, re-render, frame, mirror, truncate, add to, inject, filter or change the order of the information contained on any page of the Sites, including, without limitation, by any way of reproducing any web pages or Company Information on any other website without our express written permission;
- interfere with the proper operation of or any security measure used by the Sites;
- infringe any intellectual property or other right of any third party;
- use the Company Information in a manner that suggests an unauthorized association or is beyond the scope of the limited license granted to you;
- use a false email address or other identifying information, impersonate or misrepresent any person or entity, or your affiliation with any person or entity, or misrepresent, mislead, or omit as to the origin or source of any material;
- use the Sites or any Company Information to make any speculative, fraudulent, or false reservation or any reservation in anticipation of demand;
- cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners advertisement, or anything else which minimizes, covers, or otherwise inhibits the full display of the Sites;
- use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, or monitor any portion of the Sites or Company information;
- use the Sites in any way which depletes web infrastructural resources, slows the transferring or loading of any web page, or interferes with the normal operation of the Sites;
- upload or transmit to the Sites any device, software, program, or file that may damage the operation of any computer or the Sites, including without limitation, viruses or corrupt files;
- disguise the origin of information transmitted to, from, or through the Sites;
- circumvent any measures implemented by the Company aimed at preventing violations of the Terms. You may not violate the restrictions in any robot exclusion header; or
- otherwise violate these Terms.
You also agree you will not use the Sites for or in connection with offering any third party product or service not authorized or approved by the Company. When you use the Sites or Company Information for an authorized purpose, you must include all proprietary notices without changing, hiding or deleting them.
You may not engage in any conduct that is, or that the Company deems to be, in violation of the Terms.
You may submit content to us on the Sites, including, but not limited to may invite you to chat, contribute to, or participate in blogs, message boards, online forums, and other functionality, and may provide you with the opportunity to create, submit, post, display, transmit, perform, publish, distribute, or broadcast content and materials to us or on the Sites, including but not limited to feedback, ideas, postings, feedback, biographic information, digital files, text, writings, video, audio, photographs, graphics, comments, suggestions, personal information or other material (collectively, "Contributions"). Contributions may be viewable by other users of the Sites and through third-party websites. As such, any Contributions you transmit may be treated as non-confidential and non-proprietary. When you create or make available any Contributions, you thereby represent and warrant that:
- the creation, distribution, transmission, public display, or performance, and the accessing, downloading, or copying of your Contributions do not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret, or moral rights of any third party;
- you are the creator and owner of or have the necessary licenses, rights, consents, releases, and permissions to use and to authorize us, the Sites, and other users of the Sites to use your Contributions in any manner contemplated by the Sites and these Terms:
- you have the written consent, release, and/or permission of each and every identifiable individual person in your Contributions to use the name or likeness of each and every such identifiable individual person to enable inclusion and use of your Contributions in any manner contemplated by the Sites and these Terms;
- your Contributions are not false, inaccurate, or misleading;
- your Contributions are not unsolicited or unauthorized advertising, promotional materials, pyramid schemes, chain letters, spam, mass mailings, or other forms of solicitation;
- your Contributions are not obscene, lewd, lascivious, filthy, violent, harassing, libelous, slanderous, or otherwise objectionable (as determined by us);
- your Contributions do not ridicule, mock, disparage, intimidate, or abuse anyone;
- your Contributions do not advocate the violent overthrow of any government or incite, encourage, or threaten physical harm against another;
- your Contributions do not violate any applicable law, regulation, or rule;
- your Contributions do not violate the privacy or publicity rights of any third party;
- your Contributions do not contain any material that solicits personal information from anyone under the age of 18 or exploits people under the age of 18 in a sexual or violent manner;
- your Contributions do not violate any federal or state law concerning child pornography, or otherwise intended to protect the health or well-being of minors;
- your Contributions do not include any offensive comments that are connected to race, national origin, gender, sexual preference, or physical handicap; and
- your Contributions do not otherwise violate, or link to material that violates, any provision of these Terms, or any applicable law or regulation.
Company reserves the right, with or without notice, to terminate or suspend your use of the Sites for your violation of these Terms, in addition to all other rights and remedies available to Company.
LICENSE TO YOUR CONTRIBUTIONS
You grant the Company and its affiliates, subsidiaries, agents, licensees, successors, and assigns a nonexclusive, unrestricted, unconditional, unlimited, worldwide, royalty-free, assignable, fully paid-up, perpetual, transferable, irrevocable and fully sublicensable right to (a) use, host, store, copy, record, reproduce, sell, sublicense, edit, enhance, improve, modify, adapt, translate, create derivative works of the Contributions, in whole or in part, alone or in any manner and matter or in combination with any other material, in any format or media, whether now existing or hereafter devised, including, but not limited to, text, data, images, photographs, illustrations, animation and graphics, video, audio, and all formats of computer readable electronic, magnetic, digital, laser, or optical based media, and to advertise, market, and promote the Contributions, (b) publicly display, publicly perform, distribute (directly or indirectly), disclose, transmit, publish, or broadcast the Contributions throughout the world in any media, now known or hereafter devised, and with any technology or devices now known or hereafter developed; and (c) use the screen name, your name, voice, likeness, and biographic information, whether in original or modified form, that you submit in connection with a Contribution. You also irrevocably consent to our use and association of your name in connection with your Contributions, and derivatives thereof. You agree to waive any moral rights that you may have in any Contributions, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights in a manner that interferes with any exercise of the granted rights. You understand that you will not receive any fees, sums, consideration, or remuneration for any of the rights granted to us in this Section. Our receipt of your Contributions is not an admission of their novelty, priority, or originality, and it does not impair our right to contest existing or future intellectual property rights relating to your Contributions.
You further grant the Company the right to pursue at law any person or entity that violates your or the Company's rights in the Contributions by a breach of these Terms. You acknowledge and agree that Contributions are not confidential.
You are fully responsible for the content of your Contributions. We take no responsibility and assume no liability for any Contributions posted or submitted. We further reserve the right to remove, screen, or edit any Contributions on the Sites at any time and for any reason without notice. You are solely responsible for your use of the Sites and agree to use the interactive areas at your own risk.
VIOLATION OF INTELLECTUAL PROPERTY RIGHTS
The Company respects the intellectual property of others, and expects those who use the Sites to do the same. It is our policy, in appropriate circumstances and in our sole discretion, to disable and/or terminate your access to the Sites if we believe you have infringed on the copyrights or other intellectual property rights of the Company and/or others.
Without limiting the foregoing, we have the right to 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 the Sites. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
THIRD-PARTY CONTENT AND
The Sites may contain or may interact with third party content that is not owned, controlled or operated by the Company (collectively, "Third-Party Services"). We may also host our content on Third-Party Services. The Company neither endorses nor controls such Third-Party Services, AND YOU ACKNOWLEDGE AND AGREE THAT WE ARE NOT RESPONSIBLE OR LIABLE FOR THE INFORMATION, CONTENT, PRODUCTS, OR SERVICES ON OR AVAILABLE FROM SUCH THIRD-PARTY SERVICES OR FOR THE RESULTS TO BE OBTAINED FROM USING THEM. If you choose to access any such Third Party Services, you do so at your own risk. If you navigate away from the Sites by clicking on an unaffiliated website link, you do so at your own risk and you should be aware that these Terms no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Sites or relating to any applications you use or install from another website.
DEALINGS WITH THIRD PARTIES
Any interactions, transactions, and other dealings that you have with any third parties found on or through the Sites are solely between you and the third party. YOU HEREBY AGREE TO INDEMNIFY THE COMPANY AGAINST ALL CLAIMS, INJURY AND/OR DAMAGES INCLUDING ATTORNEYS' FEES THAT ARISE OUT OF YOUR USE OF ANY THIRD-PARTY SERVICE, INCLUDING, BUT NOT LIMITED TO ANY MATERIAL THAT YOU POST ON ANY FORUM OR SOCIAL NETWORKING WEBSITE IN CONNECTION WITH US AND/OR ANY OTHER CLAIM RELATED TO YOUR USE OF SOCIAL MEDIA.
In no event shall you: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Sites ; (2) make any modification, adaptation, improvement, enhancement, translation, or derivative work from the Sites ; (3) violate any applicable laws, rules, or regulations in connection with your access or use of the Sites; (4) remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors on the Sites; (5) use the Sites for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; (6) make the Sites available over a network or other environment permitting access or use by multiple devices or users at the same time; (7) use the Sites for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the Sites ; (8) use the Sites to send automated queries to any website or to send any unsolicited commercial e-mail; (9) use the Sites to harasses, abuses, stalks, threatens, defames, or otherwise infringes or violates the rights of any other party (including but not limited to rights of publicity or other proprietary rights); (10) use the Sites in a way that is unlawful, fraudulent, or deceptive; (11) use the Sites in any manner includes spam or any unsolicited advertising; (12) use or launch any automated system, including without limitation, "robots," "spiders," or "offline readers," to access the Sites or Company Information; (13) attempt to introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software, hardware, or telecommunications equipment of Company; (14) attempt to gain unauthorized access to Company's computer network or user accounts; (15) violate these Terms; or (16) attempt to damage, disable, overburden, or impair Company's servers or networks.
WIRELESS FEATURES AND COMMUNICATIONS; DATA USAGE
The App may offer features that are available to you via your wireless device including, but not limited to, the ability to access the App's features, upload content to the App, and receive messages from the App (including email notifications) (collectively, "Wireless Features"). By using the App, you agree that the Company may change, alter, or modify the settings or configurations on your wireless device in order to allow for or optimize your use of the App. You agree that as to the Wireless Features for which you are registered, we may send communications via such features or apps to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the App for Wireless Features, then you agree to notify the Company of any changes to your wireless contact information (including phone number) and update your Rewards Account to reflect the changes. You may have the ability, and it is your responsibility, to control the notifications you do, or do not, receive via your wireless device through your wireless device settings. Standard message, data and other fees may be charged by your carrier in connection with your use of the App, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. Contact your carrier with questions regarding these issues.
GOVERNING LAW; DISPUTE RESOLUTION
These Terms and the relationship between you and the Company shall be governed by the laws of the State of Texas without regard to any conflict of law provisions. If any dispute arises out of these Terms, the parties shall first engage in a one-hour, good faith mediation at the Company's expense in an attempt to resolve the dispute. The parties shall agree in good faith on a mediator to hear the mediation, and the mediation may, but is not required to be, conducted virtually. If the matter is not resolved by mediation, then it will proceed to arbitration as set forth below. If the arbitration requirement is deemed unenforceable or void, then your irrevocable consent to the exclusive jurisdiction of the federal and state courts located in Potter County, in the State of Texas. This provision specifically applies to any and all claims under local, state or federal law, and specifically includes claims related to the American with Disabilities Act (ADA).
ALL DISPUTES ARISING OUT OF OR RELATED TO THESE TERMS OR ANY ASPECT OF THE RELATIONSHIP BETWEEN YOU AND THE COMPANY, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, SHALL BE RESOLVED THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. YOU ALSO AGREE THAT THE COMPANY AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY TO THE MAXIMUM EXTENT ALLOWED BY LAW. YOU AGREE THAT ANY ARBITRATION UNDER THESE TERMS AND CONDITIONS WILL TAKE PLACE ON AN INDIVIDUAL BASIS. CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED AND YOU ARE AGREEING TO GIVE UP AND WAIVE THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. The arbitration shall be conducted by a single arbitrator who shall be a former judge. Judgment on the award may be entered in any court having jurisdiction. The arbitration shall be held in the following location closest to where you reside: Overland Park, Kansas, Dallas, Texas, Oklahoma City, Oklahoma, Albuquerque, New Mexico, and Denver, Colorado. The prevailing party in any arbitration shall be entitled to recover all costs incurred by such party in connection with the proceeding, including reasonable attorneys' fees. Any arbitration shall be confidential, and neither you nor we may disclose the existence, content, or results of any arbitration, except as may be required by law or for purposes of enforcement of the arbitration award. Failure to abide by the agreement to arbitration shall be deemed a material breach of these Terms, and shall entitle the other party to all damages (including reasonable attorneys' fees) related to the breach.
THE SITES IS PROVIDED TO YOU ON AN "AS IS," "AS AVAILABLE," AND "WITH ALL FAULTS" BASIS. NEITHER THE COMPANY OR ITS AFFILIATES NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES OR AGENTS (COLLECTIVELY, THE "COMPANY PARTIES") MAKE ANY REPRESENTATIONS, WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER FOR THE SITES, INCLUDING, BUT NOT LIMITED TO ANY COMPANY INFORMATION, PRODUCTS OR OTHER SERVICES MADE AVAILABLE ON THE SITES, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND FREEDOM FROM COMPUTER VIRUS OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL. BY ACCESSING OR USING THE SITES YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SITES. THE COMPANY DOES NOT MAKE ANY REPRESENTATIONS WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITES. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES, WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
LIMITATIONS OF OUR LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE TO YOU FOR ANY LOSS, DAMAGE OR INJURY OF ANY KIND INCLUDING ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSSES OR DAMAGES, OR DAMAGES FOR SYSTEM FAILURE OR MALFUNCTION OR LOSS OF PROFITS, DATA, USE, BUSINESS OR GOOD-WILL, ARISING OUT OF OR IN CONNECTION WITH (A) THE SITES, (B) THESE TERMS , (C) YOUR USE OF, OR INABILITY TO ACCESS OR USE, THE SITES OR ANY CONTENT AVAILABLE ON OR THROUGH THE SITES, OR (D) A THIRD PARTY'S UNAUTHORIZED ACCESS TO YOUR INFORMATION, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER TO MAXIMIUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES' TOTAL AGGREGATE LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF THE SITES, EXCEED THE LESSER OF (A) THE AMOUNTS, IF ANY, PAID BY YOU TO THE COMPANY IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR (B) ONE HUNDRED UNITED STATES DOLLARS ($100.00). THE LIMITATIONS SET FORTH IN THIS SECTION SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT, INDEMNIFICATION, TORT, STRICT LIABILITY, STATUTE OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
WAIVER OF INJUNCTIVE OR OTHER RELIEF
YOU AGREE THAT YOU WILL NOT BE PERMITTED TO OBTAIN AN INJUNCTION OR OTHER EQUITABLE RELIEF OF ANY KIND, SUCH AS ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY SITES, COMPANY INFORMATION, CONTRIBUTIONS, PRODUCT, SERVICE, OR ANY INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY THE COMPANY OR A LICENSOR OF THE COMPANY. YOU AGREE THAT WE REMAIN ENTITLED TO INJUNCTIVE RELIEF USING A COURT OF COMPETENT JURISDICTION RELATED TO ANY IRREPARABLE HARM THAT EXIST RELATED TO YOUR CONDUCT AND/OR BREACH OF THESE TERMS.
LIMITED TIME TO BRING YOUR CLAIM
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Sites must be filed within one (1) year after such claim or cause of action arose or otherwise is permanently barred and shall be deemed released and waived by you.
BUSINESS USES OF OUR SITES
IF YOU ARE USING THE SITES ON BEHALF OF A BUSINESS, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS AND THAT BUSINESS ACCEPTS AND SHALL BE BOUND TO THESE TERMS. THE BUSINESS WILL DEFEND, HOLD THE COMPANY PARTIES HARMLESS AND INDEMNIFY THE COMPANY PARTIES FROM ANY CLAIM, SUIT OR ACTION ARISING FROM OR RELATED TO YOUR USE OF THE SITES OR VIOLATION OF THESE TERMS, INCLUDING ANY LIABILITY OR EXPENSE ARISING FROM CLAIMS, LOSSES, DAMAGES, SUITS, JUDGMENTS, LITIGATION COSTS AND ATTORNEYS' FEES.
CONSENT AND APPROVAL
No consent or approval may be deemed to have been granted by us without being in writing and signed by an officer of the Company.
You agree to defend, indemnify and hold harmless the Company Parties from and against any and all claims, liabilities, damages, losses, costs and expenses (including, reasonable attorneys' fees and costs) arising out of or in connection with any of the following: (i) your breach or alleged breach of these Terms; (ii) your Contributions; (iii) your use or misuse of the Sites, or any portion thereof, including, but not limited to the Rewards Program; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental or quasi-governmental authorities; (v) your violation of the rights of any third party, including any intellectual property right, publicity, confidentiality, property or privacy right; or (vi) any misrepresentation made by you. The Company reserves the right to assume, at your expense, the exclusive defense and control of any matter subject to indemnification by you. You agree to cooperate with the Company's defense of any claim. You will not in any event settle any claim without our prior written consent, which shall not be unreasonably withheld.
Notices that you send to us must be delivered via first class mail to the following address:
Toot 'n Totum Food Stores, LLC
1201 South Taylor Amarillo, Texas 79101
Attn: Legal Contact
SEVERABILITY; INTERPRETATION; ASSIGNMENT
If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms, which shall remain in full force and effect. You hereby waive any applicable statutory and common law that may permit a contract to be construed against its drafter. The summaries of provisions and section headings are provided for convenience only and shall not limit the full Terms. The Company may assign its rights and obligations under these Terms, in whole or in part, to any party at any time without any notice. These Terms may not be assigned by you, and you may not delegate your duties under them, without the prior written consent of an officer of the Company. These Terms shall be binding upon and inure to the benefit of each parties successors, assigns, heirs, executors and administrators.
Except as expressly set forth in these Terms, (i) no failure or delay by you or the Company in exercising any of rights, powers, or remedies will operate as a waiver of that or any other right, power, or remedy, and (ii) no waiver or modification of any term of these Terms will be effective unless in writing and signed by the party against whom the waiver or modification is sought to be enforced.