Toot 'n
Totum Food Stores, LLC Terms of Service
Last
Updated: May
31, 2023
Acceptance of Terms of Service and Privacy Policy
In consideration for
accessing and using www.tootntotum.com (the "Site") and the
Site's services (including the sale of goods), you accept and agree to be bound
by the terms and provisions of these Terms of Service (these "TOS") and the
Privacy Policy located at: tootntotum.com/privacy-policy (the "Privacy Policy"). The terms of these
TOS and the Privacy Policy apply to, and govern, your use of all webpages and
content contained within the Site and your relationship with Toot 'n Totum Food
Stores, LLC ("Toot 'n Totum," "us," "we," or "our").
Modifications to Terms of Service and Privacy Policy
You understand that the
terms of these TOS and the Privacy Policy may change without notice and that
you accept any such modifications with your continued use of the Site or Site
services. Any
such revision or change will be binding upon you after ten (10) days of posting
of the updated TOS and/or Privacy Policy on the Site, or e-mail or other
written notification to you, whichever comes first.
If you disagree with any modification to the TOS or Privacy Policy, you
must notify Toot 'n Totum in writing within the ten-day (10) time period
described above and immediately discontinue use of any Site services.
Adult Usage Only
This Site is
intended for those who are of the age of majority and able to legally enter
binding contracts without any right of rescission. Accordingly, in using the Site, you
represent, warrant, and agree that you are at least eighteen (18) years or
older. If you are not at least eighteen
(18) years old, you represent and warrant that your legal parent or guardian
has consented to your use of the Site.
Rewards
Toot 'n Totum is solely responsible for interpreting the rules, values,
eligibility requirements, and all other aspects of its rewards programs. Such rewards programs may be suspended or
discontinued at any time with or without notice. To the maximum extent of the law, any rewards
shall not have any cash equivalent value and shall only be redeemable for the
item(s) explicitly stated. The terms and
conditions related to rewards programs may change at any time by Toot 'n Totum
within its sole discretion. Rewards are
not guaranteed and may expire.
You agree that information related to your rewards account are not
confidential and may be shared by us with our partners and other third-parties.
When you sign up for a rewards program, you agree that we may contact you using
any reasonable means, including but not limited to email, text messages to your
cell phone (if you provide such a phone number), and application prompts and
pop-ups. Additional terms may apply to
rewards programs.
Payment of Fees
Toot 'n Totum may
charge you for services in conjunction with using the Site, including but not
limited to car wash subscriptions and fleet cards. We may assess and collect from you fees,
surcharges, or other supplemental payment required of or imposed on Toot 'n
Totum by any governmental, regulatory, or financial institution or entity. You may make payments for purchases made
through the Site to Toot 'n Totum by various methods, which may include bank wire, ACH (electronic bank) transfer, electronic fund
transfer, or valid debit or credit card.
Toot 'n Totum reserves
the right to expand or limit its payment options.
In conjunction with
each payment you make to through the use of the Site, or which a third party
makes on your behalf, you warrant that the payment information is true and
correct (e.g., valid credit card information). Further, you understand and agree that any
declined payment may be lead to additional fees (e.g., dishonored credit card)
and to the suspension or termination of your Site services. You also understand and agree that you are
solely responsible to ensure prompt payment of all fees owed as a result of
your use of the Site and that Toot 'n Totum is under no obligation to retain,
preserve or otherwise maintain your information, account, or services
associated with your account if your account is in default.
Billing
Your debit or credit
card on file will be automatically charged based on the terms of your
subscription.
Refund Policy
All fees paid to Toot
'n Totum or otherwise associated with your use of the Site are
non-refundable. No refunds will be
provided to you if you cancel your services prior to the end of the services
term. Further, you will not be entitled
to a refund if we suspend or terminate your services for cause.
Renewal Policy
Your subscription services
will continue to be automatically renewed based on the same length of time as
your original subscription unless you cancel prior to the effective renewal
date. As noted above, you may not be
entitled to a refund if you fail to cancel your services before your automatic
renewal date.
Any renewal of your
services with us is subject to our then current terms and conditions and
payment of all applicable service fees at the time of renewal.
Late Fees/Interest
If you miss a
payment or have an overdue account, you may be assessed a one-time late fee at
our then-current late fee rates. You may
also be charged one and half percent (1.5%) interest per month, or the highest
amount allowed by applicable law, on your past due balance. The interest rate is calculated on a
continuously compounded basis.
One Account Policy
To further the
integrity of the services provided through the Site or otherwise, all users are
limited to one account per person. Similarly,
all companies are limited to one account per company. Users who violate this policy may have all of
their accounts suspended or terminated.
Secured Areas
Some portions of the
Site may be restricted and require authorization for access. Unauthorized use of or access to these areas
is prohibited. Actual or attempted
unauthorized use of or access to such areas may result in criminal and/or civil
prosecution. Attempts to access such
areas without authorization may be viewed, monitored and recorded and any
information obtained may be given to law enforcement organizations in
connection with any investigation or prosecution of possible criminal activity
on or through the Site. If you are not
an authorized user of such areas or do not consent to continued monitoring, you
should not attempt to access such areas.
Your Account Security
If you have a Toot 'n Totum
account, you are responsible for maintaining the security of your Toot 'n Totum
Site account. You agree and understand
that you are solely responsible for your account security settings, protection
of confidential information (e.g., your password), and all consequences that
stem from activities occurring with your Toot 'n Totum Site account. You also agree that Toot 'n Totum is not
responsible for any unauthorized use of your Toot 'n Totum Site account
or unauthorized payment methods. You may
not share your login information with anyone. Other than for purposes of
logging into you Site account, Toot 'n Totum will never request your
password. If you suspect that your
account or login information has been compromised, you should immediately
change your password and contact Toot 'n Totum.
You further agree to promptly
notify Toot 'n Totum of any security breach relating to your Site account. Such notices should be sent to: www.tootntotum.com.
Toot 'n Totum encourages all Site
users to proactively take steps to enhance their personal security
measures. These measures may include
using "strong" passwords that consist of lower case and capitalized letters as
well as numbers; regularly changing passwords, and preventing the disclosure of
passwords to any third parties.
Accuracy of Information Provided by You
You agree that all information
you provide through the Site or otherwise to Toot 'n Totum is true, current,
complete and accurate. You also agree
that you will update your information as needed to keep it true, current,
complete and accurate. You hereby agree
to notify us within five (5) business days of a change in any information you
provided us. Such notices should be sent
to www.tootntotum.com.
Failure to provide such updated
information will constitute a material breach of the terms of these TOS and may
lead to the suspension or termination of your account.
You warrant that you
provided notice to, and obtained consent from, any third party whose personal
data you supply through the Site or otherwise to Toot 'n Totum. You further warrant that to the extent you
provided personal data about a third party through the Site or otherwise to Toot
'n Totum, you provided that third party with notice about the Site's TOS and
Privacy Policy. You agree to accept all
liability and consequences resulting from your failure to provide notice or
receive consent from such third parties or for your providing outdated,
incomplete or inaccurate information.
Code of Conduct
You agree that your
use of Site services is only for lawful purposes and is consistent with the
terms, conditions, and policies set forth in these TOS and the Privacy Policy. You agree to not use the Site services or anything
related to the Site services or any other services offered by Toot 'n Totum for
any unlawful or otherwise prohibited means, including but not limited to
employment discrimination, harassment, unlawful images or adult content. Additional prohibited actions with respect to
use of the Site and any Site services include:
1.
Use
the Site in any manner that could damage, disable, overburden, or impair any
Site servers, or the network(s) connected to any Site server, or interfere with
any other party's use and enjoyment of the Site;
2.
Attempt
to gain unauthorized access to the Site, other accounts, computer systems or
networks connected to any Site server or to any of the websites linked to the
Site through hacking, password mining or any other means;
3.
Obtain
or attempt to obtain any materials or information through any means not
intentionally made available through the Site;
4.
Use
data mining, robots, screen scraping or similar data gathering and extraction
tools on the Site;
5.
Use
any metatags or any other "hidden text" utilizing any part of the Site or Toot 'n Totum 's
name, service or trademarks or trade dress without the express written consent
of Toot 'n Totum;
6.
Defame,
abuse, harass, stalk, threaten or otherwise violate the legal rights (such as
rights of privacy and publicity) of others;
7.
Publish,
post, upload, distribute or disseminate any inappropriate, profane, defamatory,
obscene, indecent or unlawful topic, name, material or information;
8.
Upload,
or otherwise make available files that contain images, photographs, software or
other material protected by intellectual property laws, including, by way of
example, and not as limitation, copyright or trademark laws (or by rights of
privacy or publicity) unless you own or control the rights thereto or have
received all necessary consent to do the same;
9.
Use
any material or information, including images or photographs, which are made
available through the Site in any manner that infringes any copyright,
trademark, patent, trade secret or other proprietary right of any party;
10.
Upload
files that contain viruses, Trojan horses, worms, time bombs, cancel bots,
corrupted files, or any other similar software or programs that may damage the
operation of another's computer or property;
11.
Harvest
or otherwise collect information about others, including but not limited to
e-mail addresses;
12.
Use
the Site in connection with surveys, contests, pyramid schemes, chain letters,
junk email, spamming or any duplicative or unsolicited messages (commercial or
otherwise);
13.
Direct
traffic, post links, advertise, or engage in any similar conduct related to
other websites, companies, competitors, or services;
14.
Use
the Site, or any Site services or tools if you are not able to form legally
binding contracts;
15.
Any
attempt to copy or mirror the information, data, content, or coding from the
site without first obtaining express written permission from the Site administrator;
16.
Any
attempt to reverse engineer or reconstruct any portion of the Site;
17.
Failure
to abide by, or breach of, Shopify's terms of service or any other policies
applicable to the Site;
18.
Share your login information or allow third
parties to utilize your login information to access any part of the Site; or
19.
Engage
in any acts or omissions that Toot 'n Totum believes is hateful, offensive, illegal, unprofessional, or otherwise inappropriate.
You agree to fully
comply with any applicable laws and regulations. You further agree to cooperate in any
governmental investigation regarding your use of the Site and Site
services. You further agree to that to
the extent you are using the Site for the purposes related to Toot 'n Totum you
will adhere to all applicable State and Federal laws and regulations.
Knowledge of TOS and Privacy Policy
If you are using
Site services in conjunction with any third parties, you agree to ensure such
third parties are aware of, and agree to, these TOS and the Privacy Policy.
Breach of the Terms of Service and/or Privacy Policy
We reserve the right
to cancel or terminate your use of Site services if, in our sole discretion,
you breach, or we reasonably believe you have breached these TOS or any other
obligation to Toot 'n Totum. Without
limiting the forgoing, you agree that all of the following may be considered a
material breach of your obligations under these TOS and the Privacy Policy: (i)
your failure to abide by any provision of these TOS and the Privacy Policy;
(ii) your failure to pay any amounts due to Toot 'n Totum; (iii) your
communication of inaccurate information to us, including your failure to
promptly update your information; or (iv) your violation of any code of conduct
adopted by Toot 'n Totum.
If any of the foregoing
events occurs and we deem it a material breach by you of these TOS and/or the
Privacy Policy, we may provide you with a written notice describing the breach;
however, you recognize, understand, and agree that Toot 'n Totum is not
obligated to send any such notice of default and may immediately suspend or
terminate your Site account or services without notice. In the event a written notice of breach is
provided to you, you shall have no longer than ten (10) calendar days to cure such
breach.
Use of Name
If you are a
customer using the Site or any Site services, you consent to Toot 'n Totum using
your name and business name in advertising and promotional materials related to
Site services.
Your Authority
You agree that you
are of legal age and authority to enter into and be bound by the terms of these
TOS and the Privacy Policy. Similarly,
to the extent you are providing any information regarding a third party, you
represent and warrant that you have the authority to provide such information
from or about the third party through the Site or otherwise to Toot 'n Totum.
Maintenance/Site
Down Time
Toot 'n Totum reserves the right to perform
maintenance on the Site and Site services whenever it deems reasonably
necessary. Maintenance is generally
scheduled for off-peak hours, such as weekends and evenings. Toot 'n Totum will attempt to communicate any expected
prolonged system outage to Site users in advance of such outage.
Toot 'n Totum is not liable for any unforeseen or
unexpected system outage due to unavailability of utilities or supplies, acts
of god, natural disaster, labor strike or shortage, or any other condition that
is reasonably outside of Toot 'n Totum 's control.
Intellectual
Property Rights
You agree that we hold all right,
title and interest to all services, its websites and information and technology
used to provide the Website and its services. You acknowledge that no title or
interest in such intellectual property rights is being, or has been,
transferred to you. You further agree to
make no claim of interest in any such intellectual property or use any of our
intellectual property rights without the express written permission from us.
All content including but not limited
to text, graphics, downloads and software included on this site is the property
of Toot 'n Totum or its licensors and is protected by United States and
international copyright laws.
You also grant Toot 'n Totum a non-exclusive, royalty
free, perpetual license to use, reference, post, identify, or otherwise utilize
your intellectual property rights that you submit through the Website or
otherwise provide to us. Such
information will be used solely by us in conjunction with marketing the Website
and its services.
Disclaimer of Warranties
TOOT 'N TOTUM EXPRESSLY
DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
SITE AND ALL SITE SERVICES AND ANY RELATED SOFTWARE OR SERVICES ARE PROVIDED ON
AN "AS IS" AND "AS AVAILABLE" BASIS.
UNLESS OTHERWISE PROVIDED IN WRITING AND SIGNED BY AN AUTHORIZED AGENT
OF TOOT 'N TOTUM, TOOT 'N TOTUM DOES NOT WARRANT THAT SITE SERVICES WILL
MEET YOUR REQUIREMENTS, OR THAT THE SITE OR ANY SITE SERVICES WILL BE
UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE.
TOOT 'N TOTUM DOES NOT WARRANT THE RESULTS THAT MAY BE OBTAINED
FROM THE USE OF THE SITE OR ANY SITE SERVICES, THE ACCURACY OR RELIABILITY OF
ANY INFORMATION OBTAINED THROUGH THE SITE, OR THE QUALITY OR COMPLETENESS OF
ANY SERVICES PROVIDED THROUGH THE SITE OR ITS USERS. EXCEPT AS OTHERWISE EXPLICITLY WRITTEN IN A
DOCUMENT SIGNED BY AN AUTHORIZED AGENT OF TOOT 'N TOTUM, TOOT 'N TOTUM PROVIDES
NO WARRANTY REGARDING THE GOODS OR SERVICES PURCHASED OR OBTAINED FROM
THE SITE OR ANY THIRD PARTY ASSOCIATED OR AFFILIATED WITH TOOT 'N TOTUM.
Toot 'n Totum DOES
NOT WARRANTY OR GUARANTEE ANY OF THE SITE'S USERS' COMPLIANCE WITH LAW. Toot 'n Totum IS NOT RESPONSIBLE FOR THIRD PARTIES'
UNLAWFUL ACTIVITIES REGARDLESS OF WHETHER THE SITE'S SERVICES ARE INVOLVED.
Assumption of Risk
The Site is intended
for information purposes only. When you
access the Site, use Site services, download or upload content on the Site,
proceed to other websites linked to the Site, or interact with the Site in any
manner, you do so at your own discretion and risk. In other words, you are solely responsible
for any damage done to your computer, electronic device, or other property,
including but not limited to the loss of money through investments or
corruption of data.
Third Party Intellectual Property Rights
Various goods that
may be available for purchase on the Site may be branded materials or otherwise
contain intellectual property rights owned by third parties. The ownership of all such third-party
intellectual property rights, including but not necessarily limited to
copyrights and trademarks, are owned by their respective owners, and neither
you nor Toot 'n Totum shall acquire any ownership or other interest in such
third parties' intellectual property rights except as may be dictated by
applicable law.
Customer Support
Without
limiting the forgoing disclaimer of warranties or assumption of risk sections, Toot
'n Totum provides email support for Site customers. Support can be reached by
sending an email to www.tootntotum.com. Toot 'n Totum attempts to respond to customer
inquiries within two (2) business days.
Indemnification
As a user of the
Site, you agree to release, indemnify, defend and hold harmless Toot 'n Totum and
all of its agents, affiliates, subsidiaries, licensors, and assigns from any
and all claims, actions, proceedings or demands and all liabilities, claims,
damages, losses, costs and expenses, including reasonable attorneys' fees and
expenses, made by any third party or relating to or arising under or from your violations
of these TOS or the Privacy Policy, your submissions to the Site, the services
provided through the Site or otherwise by Toot 'n Totum to you, your use of any
services of the Site or provided by Toot 'n Totum or your alleged violation of
any rights of another. This
indemnification provision shall not affect nor impair any person's right to
lawfully pursue claims against other users of this Site for their alleged
violations of the law. Further, if Toot
'n Totum receives a subpoena based on your use of our Service, you hereby agree
to and promise to indemnify Toot 'n Totum for all costs and expenses, including
responsible attorneys' fees incurred related to responding to the subpoena. This indemnification obligation is in
addition to any other rights or remedies Toot 'n Totum may have in law or
equity.
You agree that Toot
'n Totum shall have the right to participate in the defense of any claim
asserted against Toot 'n Totum or involving the Site. You also agree that Toot 'n Totum shall be
entitled to retain a counsel of Toot 'n Totum 's own choosing at your
cost. You further agree to notify Toot
'n Totum of your knowledge of any claim against Toot 'n Totum or involving the
Site. You agree to cooperate fully with Toot
'n Totum during such proceedings.
Automatic Payments in the Event of Default
If you provided
payment information to Toot 'n Totum and sums are due and owing from you to Toot
'n Totum and you are in default of your obligations under these TOS, you
authorize Toot 'n Totum to deduct any sums due and owing from your payment
source(s) so long as Toot 'n Totum provided you with notice of your default and
you failed to cure the default under the terms and conditions of these TOS.
Right to Refuse Service
Toot 'n Totum, in
our sole discretion and without any liability to us, reserves the right to
refuse service to any person or entity through the Site or otherwise.
Consent and Survival of Agreement
By using the Site
and Site services provided through the Site by Toot 'n Totum under these TOS
and the Privacy Policy, you acknowledge that you have read and agree to be
bound by all terms and conditions of these TOS and the Privacy Policy. You also agree to be bound by all amended
terms and conditions of these TOS and the Privacy Policy. These terms of these TOS and the Privacy
Policy, and your obligations under such terms, continue to apply to you even if
you are no longer using the Site or its services.
Reports of Abuse
If you have any reason to
believe that content on the Site violates any law, that any user of the Site is
using Site services to violate the law, or that any User is violating these TOS
or the Privacy Policy, you may inform Toot 'n Totum in writing about the facts
and circumstances of the alleged abuse/violations by writing to the address
provided below. Toot 'n Totum may, but
is not obligated, to conduct an investigation into the allegations. Toot 'n Totum reserves the right to remove
accounts, content, or postings that from the Site Toot 'n Totum, in its sole
discretion, believes is offensive, illegal, or otherwise inappropriate.
Retention of Records
You agree to comply with all
applicable governmental laws, ordinances, rules, and regulations related to the
retention of records. Under no
circumstances will Toot 'n Totum be liable to you for your failure to retain
necessary records, nor will Toot 'n Totum 's retention or non-retention of
records act to alleviate your duty under the law.
Termination of Services
You acknowledge and agree that we may terminate or block your use of the Site
or any Site services without prior notice for any reason, including, without
limitation, if we believe you have engaged in conduct prohibited by these TOS
or the Privacy Policy. You agree that
upon such termination or discontinuance for any reason, Toot 'n Totum may
delete all information related to you on or within the Site and may bar your
access to and use of Site services.
Notices and Communication
You authorize Toot
'n Totum and its sponsors and affiliates to communicate with you to the full
extent allowed by the Toot 'n Totum 's Privacy Policy. Such communication may include commercial
e-mails and other notices describing changes, upgrades, new products and
services or other information pertaining to the Site or Toot 'n Totum. If you do not wish to receive bulk e-mail
notices or announcements from Toot 'n Totum, please send us an e-mail at the
e-mail address listed below. To the
extent you do not wish to receive communication from our sponsors and
affiliates, you should contact them directly.
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
You may also send us
notices via e-mail to: www.tootntotum.com so long as you place "LEGAL
NOTICE" in the subject line of the email.
You authorize us to
send any notices to you based on the contact information you provide us. We are not responsible if you fail to keep
your contact information up to date.
Choice of Law,
Jurisdiction and Venue
All purchases made
through the Site are deemed made within the State of Texas.
The terms and
conditions of these TOS and the Privacy Policy shall be interpreted and
construed in accordance with the laws of the State of Texas, without giving any
effect to any choice of law provisions thereof that would cause the application
of the laws of any other jurisdiction, as if each of these TOS and the Privacy
Policy was a contract wholly entered into and wholly performed within Texas.
Except for
injunctive relief, you
agree that any claim, dispute, action or litigation based hereon, relating to
or arising out of these TOS, the Privacy Policy, or related to the Site or Site
services provided by us to you shall be brought and maintained exclusively via
arbitration (except for injunctive relief). Any Party seeking to pursue an
action to arbitrate shall give written notice to the other Party of such
election that summarizes in sufficient detail the basis of the dispute at least
ten (10) days before bringing an arbitration action. The dispute shall be
submitted for arbitration with JAMS in accordance with its Comprehensive
Arbitration Rules and Procedures. Such arbitration shall be conducted, unless
otherwise agreed by the Parties, by a single arbitrator, who shall be a former
judge, in a location that is mutually agreeable to the Parties (or, if no
agreement can be reached, then a location in Potter County, Texas). The award
of the arbitrator may be confirmed or enforced in any court of competent
jurisdiction. 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. If
injunctive relief is needed, the Parties agree to exclusively utilize the
courts with jurisdiction in Potter County, Texas. You expressly waive any
objection of venue and jurisdiction, including but not limited to arguments
that such litigation any action has been brought in an inconvenient forum.
Exclusive Remedy and Damages Cap
You agree that our
entire aggregate liability, and your exclusive remedy, in law, in equity, or
otherwise, with respect to any claim you assert against Toot 'n Totum related
to the Site, these TOS, the Privacy Policy, or procurement of other services,
is limited solely to, and collectively with all claims shall not exceed, the
amount you paid for the goods and services provided to you by Toot 'n Totum within
the six (6) months prior to when your first claim first arose, or $100,
whichever is less. IN NO EVENT SHALL TOOT
'N TOTUM BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL,
PUNITIVE, OR OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, ANY
PECUNIARY LOSS RELATED TO THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, LOST
EARNINGS OR WAGES, OR STATUTORY PENALTIES) ARISING OUT OF OR RELATING TO THE
USE OF THE SITE, INABILITY TO USE THE SITE, OR ANY OTHER HARM YOU CLAIM IN WHICH
TOOT 'N TOTUM MAY BE
RESPONSIBLE.
Time Limitations For Action
Unless prohibited by
law, you agree that any cause of action arising out of or related to the Site
and/or any services provided to you by Toot 'n Totum must commence within one
(1) year after the cause of action arose; otherwise, such cause of action is
permanently barred and shall be deemed released and waived by you.
Waiver of Jury Trial
EACH OF THE PARTIES
HERETO HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
TO ENFORCE OR DEFEND ANY RIGHTS UNDER THESE TOS OR THE PRIVACY POLICY, OR
RELATED TO SITE SERVICES.
Waiver of Class
Action
EACH OF THE PARTIES
HERETO WAIVES ANY RIGHT TO PARTICIPATE IN A CLASS ACTION, AND INSTEAD, AGREES
THAT ANY AND ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS USING THE
DISPUTE RESOLUTION PROVISIONS IN THESE TOS.
Prior Action Before
Formal Claim
You agree that as a
material provision of these TOS, that you will provide us detailed written
notice of any claimed deficiencies and at least thirty (30) days to cure such
alleged deficiency in our service prior to bringing any formal legal claim
against us. You further agree that this
provision is reasonable and helps aid us in providing high quality services and
complying with applicable law. Should
you violate this provision and fail to give us such notice, it shall constitute
a material breach of these TOS and entitle us to all of our attorneys' fees,
court costs, and any related expenses associated with enforcing our right to
the thirty (30) day cure period. 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.
No Third Party
Beneficiaries
Except as otherwise
expressly provided herein, nothing in these TOS is intended to confer upon any
third party any rights, remedies, obligations, or liabilities.
Restriction of
Assignment
You may not assign
any of your rights or delegate any of your duties under these TOS without the
prior written consent from Toot 'n Totum.
Any attempt by your creditors or another third party to obtain an
interest in your rights under these TOS or the Privacy Policy is voidable at Toot
'n Totum 's option.
Successors and
Assigns
Except as otherwise
expressly provided herein, these TOS shall bind and inure to the benefit of the
successors, assigns, heirs, executors and administrators of the parties hereto.
Non-Waiver
No waiver of a
breach, failure of any condition, or any right or remedy contained in or granted
by the provisions of these TOS shall be effective unless it is in writing and
signed by the party waiving the breach, failure, right, or remedy. No failure or delay by Toot 'n Totum in
exercising any right, power or privilege hereunder shall operate as a
waiver. Similarly, Toot 'n Totum 's
election to not assert its rights under these TOS shall not preclude Toot 'n
Totum from asserting its rights in the future.
Severability of
Terms
If any provision of these
TOS or the Privacy Policy is held illegal, unenforceable, or invalid by any
court or an arbitrator of competent jurisdiction, the remaining provisions
shall be unaffected. If any provision in
these TOS, which is held illegal, unenforceable, or invalid, would be legal,
enforceable, or valid if the provision was more narrowly drawn, the offending
provision shall be interpreted so as to give maximum effect to the originally
drafted provision.
Attorneys' Fees
If Toot 'n Totum prevails
in any action, suit, or proceeding arising from or based upon these TOS, Toot
'n Totum shall be entitled to recover its reasonable attorneys' fees in
connection therewith in addition to court costs and other fees and disbursement
incurred in such action, suit, or proceeding.
Headings
The headings in these
TOS are for convenience only. The
heading of any section shall not affect the interpretation of any provision of
the rights or obligations of the parties.
California Residents Only
In accordance with Cal. Civ. Code ยง1789.3, you may report complaints to the
Complaint Assistance Unit of the Division of Consumer Services of the
California Department of Consumer Affairs by contacting them in writing at 400
R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Toot 'n Totum Food Stores, LLC
1201 South Taylor
Amarillo, Texas 79101