Totes Tots (“Totes Tots”, “TT”, “we”, “us” or “our”) values your privacy and is committed to protecting your personal information. Totes Tots is an online service that delivers high quality mom-themed apparel and goods to its members once a month (“Services”).
1. INFORMATION COLLECTION AND USE
The information we collect from you enables us to fulfill your requests for our products; send you information or content we believe may be of interest to you; and keep you abreast of any updates related to our Site and your Membership. We also use this information to personalize and continually improve our Site, your experience, and ultimately serve you better.
Information Collected Upon Registration: You may browse our Site without registering. However, if you would like to place an order, become a member, and/or request information from us, then you must complete the account registration process and become a member on our Sites. Whenever you create, register, or edit your TT account, you provide some basic personal information, such as your name, and email address. In order to purchase our products, you must provide us with your credit card, debit card, or other type of acceptable payment information along with your billing and shipping address information. While you are free to choose not to provide this information, without it, we cannot provide you with any of our products and Services, or complete your Membership. Please safeguard your personal information to avoid the risk of your private information being used by others without your consent, and any potential liability for the unauthorized use of our Sites or your account.
Information We Collect Automatically: When you visit the Sites and/or register for Membership, we may also collect certain additional information by automated means, such as cookies, web beacons, and other automated devices. A “cookie” is a text file that websites send to a visitor’s computer or other Internet-connected device to uniquely identify the visitor’s browser or to store information or settings in the browser. A “web beacon” (also known as an Internet tag, pixel tag or clear GIF) is used to transmit information back to a web server.
We and/or our third party service partners may employ automated Canvas fingerprinting and other browser-fingerprinting techniques that extract and analyze information about your browser, operating system, and installed graphics hardware in conjunction with other user information (e.g. time-zone, language preference, etc.) to help verify your unique identity for fraud prevention purposes and to improve our Site and Services. By using our Site and Services, you consent to the use of these browser-fingerprinting technologies. See below for more information on Canvas fingerprinting and ways to detect or block it. We may also use third-party website analytics tools (such as Omniture, Google Analytics, and Facebook Insights) that collect information about visitor traffic on the Sites that help us continue to improve the Site, performance and user experiences.
The information we may collect by such automated means includes:
Information about the devices our visitors use to access the Internet (such as the IP address and the device, browser, domain name and operating system type)
URLs that refer visitors to our Sites
Dates and times of visits to our Sites
Information on actions taken on our Sites (such as page views and site navigation patterns)
A general geographic location (such as country and city) from which a visitor accesses our Sites
Search terms that visitors use to reach our Sites and the webpage that led you to the Sites
2. COOKIES AND OTHER TRACKING TECHNOLOGY
Some of the cookies used by our Service are served by us, and some are served by third parties who are delivering services on our behalf. Most web browsers automatically accept cookies but, if you prefer, you can change your browser settings to prevent cookies, or notify you each time a cookie is sent. You can also learn more about cookies by visiting www.allaboutcookies.org, which includes additional useful information on cookies and how to block them using different browsers. By blocking or deleting cookies used on our Service, you may not be able to take full advantage of our Service.
Local Storage Objects: We may use Flash Local Storage Objects (“Flash LSOs”) in order to store your Site preferences and to personalize your visit. Flash LSOs are different from browser cookies because of the amount and type of data stored. In addition, you cannot control, delete, or disable the acceptance of Flash LSOs through your browser. For more information on Flash LSOs, or to learn how to manage your settings for Flash cookies, go to the Adobe Flash Player Help Page, choose “Global Storage Settings Panel” and follow the instructions. To see the Flash LSOs currently on your computer, choose the “Website Storage Settings Panel” and follow the instructions to review and, if you choose, to delete any specific Flash LSO.
Log File Information or Log Data: Our servers automatically record information ("Log Data") created by your use of the Site or our Services. Log Data may include information such as your IP address, browser type, operating system, the referring web page, pages visited, location, your mobile carrier, device and application IDs, search terms, and cookie information. We receive Log Data when you interact with our Services, for example, when you visit our websites, sign into our Services, interact with our email notifications, or visit a third-party website that includes a TT button or widget. TT uses Log Data to provide our Services and to measure, customize, and improve them. We periodically delete all Log Data or remove any common account identifiers, such as your username, full IP address, or email address, after 18 months, if not earlier.
Clear Gifs Information: When you use the Service, we may employ clear gifs (a.k.a. Web Beacons), which are used to track the online usage patterns of our users anonymously. No personally identifiable information from your TT account is collected using these clear gifs. In addition, we may also use clear gifs in HTML-based emails sent to our users to track which emails are opened by recipients. The information is used to enable more accurate reporting, improve the effectiveness of our marketing, and make TT better for our users.
Site Analytics: As noted, we may use automated devices and applications, such as Google Analytics, to evaluate usage of our Site. We also may use other analytic means to evaluate our Site. We use these tools to help us improve our Site, performance and user experiences.
Links: TT may keep track of how you interact with links across our Services, including our email notifications, third-party services, and client applications, by redirecting clicks or through other means. We do this to help improve our Services, to provide more relevant advertising, and to be able to share aggregate click statistics such as how many times a particular link was clicked on.
In addition, some of these companies are members of the Network Advertising Initiative ("NAI"), which offers a single location to opt out of receiving tailored ads from member companies. To opt out of information collection by NAI member companies, or to obtain information about the technologies they use or their own privacy policies, please visit the NAI consumer opt out page. Also, through the Digital Advertising Alliance ("DAA"), several media and marketing associations have developed an industry self-regulatory program to give consumers a better understanding of and greater control over ads that are customized based on their online behavior across different websites. To learn more and make choices about interest-based ads from participating third parties, please visit the DAA consumer opt out page. In the UK, the Internet Advertising Bureau ("IAB UK") has developed Good Practice Principles for Online Behavioural Targeting. More information and an opt-out page to manage online behavioral advertising preferences with IAB UK member companies are available at YourOnlineChoices.com. Please note that if you choose to opt out of having your information used to deliver advertisements tailored to your interests, you will continue to see advertisements on our Sites, but these advertisements may not be as relevant to you.
3. Totes Tots SUPPORTS DO NOT TRACK
What is “Do Not Track”? Do Not Track (DNT) is a privacy preference that any user can set as a preference in their preferred web browsers. The United States Federal Trade Commission has endorsed DNT and California enacted a bill (AB370) that lets the sites you visit know that you do not want them collecting certain kinds of information about you across services that you have either directly or indirectly interacted with while on the page. The DNT browser setting is now supported by recent versions of major browsers, including Firefox 5+, Internet Explorer 9+, Safari 5.1+, and Chrome.
4. INFORMATION SHARING AND DISCLOSURE
We do not disclose your private personal information except in the limited circumstances described here.
Your Consent: We may share or disclose your information at your direction, such as when you authorize a third-party web client or application as login credentials when you register for Membership.
5. HOW WE PROTECT YOUR INFORMATION
We are committed to protecting the information we receive from you. We employ reasonable technical and management practices to help protect the confidentiality, security and integrity of data stored on our system. While no computer system is completely secure, we believe the measures we have implemented reduce the likelihood of security problems to a level appropriate to the type of data involved. We have implemented commercially reasonable precautions, including, where appropriate, password protection, encryption, SSL, firewalls, and internal restrictions on who may access data to protect our Site and the information we collect from loss, misuse, unauthorized access, disclosure, alteration, and destruction. The Sites encrypt your credit card number, debit card number, or other payment and personal information using secure socket layer (SSL) technology to provide for the secure transmission of the information from your personal computer to our servers. In addition, only those employees and third parties who absolutely need access to your information in order to perform their duties are allowed such access. You should take steps to protect against unauthorized access to your password, phone, and computer by, among other things, signing off after using a shared computer, choosing a password that nobody else knows or can easily guess, and keeping your password private. Also, you should never share your login information with others. We are not responsible for any lost, stolen, or compromised passwords or for any activity on your account via unauthorized password activity. To change your Facebook password, you must go to the Facebook site and follow its procedures for changing your password.
6. MODIFYING YOUR PERSONAL INFORMATION
You may also cancel your TT account at any time. Just email [email protected] with the subject line “I want to cancel my membership.” We will try to cancel your account as soon as possible, but it may take up to fourteen (14) business days for our systems to completely implement the cancellation so that you may continue to receive some correspondence from us during that time.
7. YOUR CALIFORNIA PRIVACY RIGHTS
California Civil Code Section 1798.83 permits California residents to request from companies conducting business in California a list of third parties to which the company has disclosed personally identifiable information during the preceding year for direct marketing purposes. Consistent with that section, California residents may request a list of third parties to which we have disclosed personally identifiable information about you for direct marketing purposes. You may make one request per calendar year. In your request, please attest to the fact that you are a California resident and provide a current California address for your response. You may request this information in writing by contacting us at: [email protected] Please allow up to thirty (30) days for a response.
8. OUR POLICY TOWARDS CHILDREN
Our Services are not directed to persons under 13. If you become aware that your child has provided us with personal information without your consent, please contact us at [email protected] We do not knowingly collect personal information from children under 13. If we become aware that a child under 13 has provided us with personal information, we take steps to remove such information and terminate the child's account. You can find additional resources for parents and teens at www.connectsafely.org.
9. CHANGES TO THIS POLICY
Terms of Service
THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT” OR “TERMS”) IS A LEGAL AGREEMENT BETWEEN YOU (“YOU”, “YOUR”, OR “CUSTOMER”) AND TOTES TOTS. (“WE”, “Totes Tots”, THE “COMPANY”), THE OWNER AND OPERATOR OF THE WWW.TOTESTOTS.COM WEBSITE (THE “SITE”) AND THE RELATED TOTES TOTS MOBILE APPLICATIONS (“APPLICATIONS”). THIS AGREEMENT STATES THE TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE AND APPLICATION OF ALL SERVICES, FEATURES, GIFT CARDS, CREDITS AND RESOURCES AVAILABLE OR ENABLED VIA THE SITE AND/OR APPLICATIONS (COLLECTIVELY, WITH THE SITE AND APPLICATIONS, THE “SERVICES”), AND YOUR PURCHASE OF THE MEMBERSHIPS AND PRODUCTS SOLD THROUGH OUR SERVICES. BY ACCESSING AND USING ANY OF THE SERVICES, YOU ARE INDICATING THAT YOU ACCEPT, AND AGREE TO COMPLY WITH, THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU ARE NOT PERMITTED TO, AND YOU MUST NOT, ACCESS OR USE THE SERVICES OR PURCHASE PRODUCTS FROM, OR MEMBERSHIPS TO, TOTES TOTS.
By signing up for a Membership (as defined below), you represent, acknowledge and agree that you are at least 18 years of age, or if you are under 18 years of age but are at least 13 years old, that you are using the Site with the consent of your parent or legal guardian and that you have received your parent’s or legal guardian’s permission to enter into this Agreement. If you are a parent or legal guardian who is registering for a child, you hereby agree to bind your child to this Agreement and to fully indemnify, release and hold harmless Totes Tots if your child breaches or disaffirms any term or condition of this Agreement.
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER.
1 – CHANGES TO SERVICES; PERSONAL INFORMATION/PRIVACY
1.1 – Changes to the Services
Totes Tots may add to, change or remove any part of the Site, including, without limitation, any Content (as defined below) therein, at any time without prior notice to you.
1.2 – Personal Information
Customers agree to provide accurate, current, and complete information as required for the purchase of the Products and Memberships (both as defined below in Section 3.1). Totes Tots reserves the right to block further sales to Customers who provide false, inaccurate or incomplete data. Customer acknowledges that Totes Tots uses a third party payment processing service to process orders and bill fees to your credit, debit, or other Company accepted payment method (“Payment Method”).
1.3 – Privacy
2 – PASSWORDS; USER LICENSE; CHAT SESSIONS
2.1 – Passwords
You are responsible for maintaining the confidentiality of your passwords, and you are responsible for all activities that occur using your passwords or accounts. You agree not to share your passwords, let anyone else access your passwords or do anything else that might jeopardize the security of your passwords. You agree to notify Totes Tots if there is any unauthorized use of your password or if you know of any other breach of security in relation to the Services.
2.2 – User License
Subject to your compliance with this Agreement, Totes Tots hereby grants you a limited, personal, revocable, non-transferable, non-sub-licensable, and non-exclusive license to access the Services and use the content, information, text, images, graphics, interfaces, audio and video clips and any other materials displayed through the Services (collectively, the “Content”), solely for your personal, non-commercial use. You may not copy, modify, reproduce, publicly display or perform, distribute, or otherwise use the Content except as expressly set forth in this Agreement. You may not remove any copyright or other proprietary notices from any Content. If you breach any term of this Agreement, your authorization to use the Services and Content automatically terminates without notice to you.
You hereby represent and warrant that you will not, and will not induce any third party to: (a) attempt to disable or circumvent any security mechanisms used by the Services or Content or otherwise attempt to gain unauthorized access to any portion of the Services or Content or any other systems or networks connected to the Site, or to any server of Totes Tots or its third party service providers, by hacking, password “mining”, or any other illegal means; (b) use any “deep-link”, “page-scrape”, “robot”, “spider”, or other automatic device, program, algorithm or methodology, or any comparable manual process, to access, acquire, copy, or monitor any portion of the Services or Content; (c) use any device, software or routine to interrupt or interfere with, or attempt to interrupt or interfere with, the proper operation and working of the Services or with any other person’s use of the Services; (d) track or seek to trace any information on any other person who visits the Site or Applications, or uses our Services; (e) use the Services or Content for, or in connection with, any illegal purpose, to solicit, facilitate, encourage, condone, or induce any illegal activity, or as otherwise prohibited by this Agreement or applicable laws, rules or regulations; or (f) copy, modify, create a derivative work of, reverse engineer, decompile, or otherwise attempt to extract the source code of any proprietary software used to provide, maintain, or otherwise applicable to the Site, Applications, Services, or Content.
2.3 – Chat Sessions
Totes Tots may offer to its Members the ability to enter into an instant messaging session (“Chat Sessions”) with a Totes Tots Member Services Agent (“MSA”). In order to maintain a high standard of service and provide a safe environment for its MSAs, Totes Tots reserves the right to refuse, discontinue, and/or block you from Chat Sessions for acts we consider to be inappropriate, such as unreasonable demands, misrepresentations, personally threatening or offensive language, and/or erratic behavior or acts that violate the Terms of Service. If you do not agree to the Terms of Service, including these provisions relating to the Chat Sessions, please do not use the Chat Session service.
Due to account security restrictions MSAs are not able and will not fulfill certain types of requests. If your request requires making a payment OR canceling your service, please log onto your account or email Member Services at [email protected] to complete such transactions. MSAs may request your account login user name, email address, or other personally identifiable information in order ensure the identity and security of the chat. MSAs are NOT supposed to ask you for your password or Payment Method information to confirm your account. If a MSA asks for your password or payment information, please immediately discontinue the Chat session and email Totes Tots at: [email protected]
3 – TERMS OF SALE
3.1 - Sales of Products and Memberships to End Users Only
Totes Tots sells mom-themed apparel and products (the “Product(s)”) to end-user customers who purchase monthly memberships to receive the Products (“Membership(s)”) only for their own personal, non-commercial use. You may not purchase Products or Memberships for further distribution or resale or for any other commercial or business purpose. The Membership and all rights and privileges conferred are personal and non-transferable.
3.2 - Pricing
Pricing for Products and Memberships (including any applicable shipping and handling fees) can be found on Totes Tots’s then-current pricing page located on the Site at: http://totestots.com/monthly. The price that we will charge you for the Products and Memberships will be the price as posted on the Site on the date you first sign-up for a Membership to the Site. Totes Tots reserves the right to change prices for Products and Memberships at any time, and does not provide price protection or refunds in the event of promotions or price decreases.
3.3 –Promotional Trials
Your Membership may start with a promotional trial period, allowing you to receive your first shipment at a reduced price ("Trial"). At the time of sign-up, your Payment Method will just be charged for the reduced trial price and shipping and taxes, if applicable. For combinations with other offers, restrictions may apply. Totes Tots reserves the right, in its absolute discretion, to determine your Trial eligibility.
We will begin billing your Payment Method the applicable monthly Membership fees -- based on the membership type you selected -- at the end of the Trial unless you cancel your Membership prior to the end of the Trial. To view the specific details of your Membership, including monthly Membership price and end date of your Trial, visit our website and click the "Your Account" page. We may authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your Trial period.
You will not receive a notice from us that your promotional (reduced Trial) pricing has ended or that the standard rate portion of your Membership has begun. To avoid being charged after the expiration of your Trial, you must cancel your Membership prior to the end of the first month. We will continue to bill your Payment Method on a monthly or bi-monthly basis (depending on your selection) for your Membership fee until you cancel. For detailed instructions on how to cancel, see Section 3.5 below.
Totes Tots reserves the right, in its absolute discretion, to withdraw or modify any Trial offerings or promotions at any time without prior notice and with no liability.
3.4 – Refunds
If you are dissatisfied with one of our Products for any reason, Totes Tots will refund the amount paid for your most recent month of service. Refund requests must be made directly to Totes Tots at [email protected] All refund requests must be made within thirty (30) days of the date of shipment by Totes Tots. Totes Tots is not liable for Products that are damaged or lost in transit to Totes Tots. Promptly following Totes Tots’s receipt of your request (typically within five (5) business days), Totes Tots will credit the amount paid for the returned Product (less any shipping and handling costs/fees related to the original purchase, which are non-refundable) to the Payment Method you used to make the original purchase. Notwithstanding the foregoing, Totes Tots does not control when a specific credit card or payment method company processes a chargeback transaction. You are responsible for contacting your credit card or payment method company if you have questions about the status of the chargeback.
Totes Tots will not provide a refund for a request that is received by Totes Tots more than thirty (30) days after the date of original shipment. Totes Tots also does not provide a refund for returned Products that are damaged due to misuse, lack of care, mishandling, accident, abuse or other abnormal use.
Totes Tots accepts various Payment Methods. You agree to pay all fees charged to your account based on Totes Tots’s fees, charges, and billing terms in effect as shown on the payment page when you first sign-up for a Membership. You are also responsible for paying any sales and use taxes and shipping and handling fees that may apply to your purchase of Products or Memberships based on the address that you provide as the shipping address when you register for a Membership, and you authorize Totes Tots or the third party payment processing service provider that we engage to charge your Payment Method for any such taxes and fees. All payments shall be made by your selected Payment Method in advance prior to shipping the Products. If you do not pay on time or if your Payment Method cannot be charged for any reason, Totes Tots reserves the right to either suspend or terminate your account and Membership and terminate these Terms of Service. All sales and payments will be in US dollars.
Totes Tots and Totes Tots's third party payment service provider may receive updated Payment Method information from your credit card or payment method issuer. The disbursement of the updated Payment Method information is provided to Totes Tots and Totes Tots's third party payment service provider at the election of your credit card and payment method issuer. Neither Totes Tots nor Totes Tots's third party payment service provider is responsible for the distribution of your credit card or payment method information. It is at the sole election of your credit card or payment method issuer. Your credit card or payment method issuer may give you the right to opt out of the update service. It is your responsibility to contact your credit card or payment method issuer with regards to your right to opt out of the update service.
IMPORTANT NOTICE TO CONSUMER:
MONTHLY MEMBERSHIP RENEWAL FEES WILL BE AUTOMATICALLY CHARGED TO YOUR CARD ON FILE EACH MONTH. Totes Tots will automatically renew your Membership on each monthly anniversary date of the Membership (or bi-monthly anniversary date, depending on the subscription selections you make) and, as authorized by you by checking the box demonstrating your consent for automatic monthly renewal of your Membership during the sign-up process, we will charge your Payment Method with the applicable Membership fee and any shipping and handling costs and sales or similar taxes that may be imposed on your Membership fee payments. Each Membership renewal period is for one month.
MEMBERSHIP CANCELLATION. You may cancel your Membership at any time by emailing [email protected] Cancellation requests submitted in this manner must be received at least one full calendar day prior to your next shipping date to avoid being charged for that shipment. Cancellation requests received after that shall take effect the following month. Cancellation requests received by TT through other channels may take up to five (5) days to process. If you have any problems, please email [email protected] Totes Tots requires a reasonable amount of time to process your Membership cancellation request. If you cancel your Membership, you will enjoy your Membership benefits until the end of the then-current Membership term, and your Membership benefits will expire at the end of the then-current Membership term for which you have paid. You will not be eligible for a prorated refund of any portion of the Membership fees paid for any unused days of the then-current Membership term.
3.6 – Shipping and Product Acceptance
The shipment date will be determined according to whichever date is closer to the date of the Customer’s first purchase date. Shipping dates are estimates only. All shipments are sent Priority Mail or First-Class mail via the US Postal Service. The risk of loss and title for all Products purchased via the Site pass to the Customer upon delivery of the item to the carrier.
3.7 – Pausing and Resuming Shipping
Totes Tots offers its members the ability to temporarily pause their TT Memberships (“Pause Period”). During the Pause Period, members will remain active members, but they will not receive any TT Products.
A Membership may be placed on a Pause Period for either a one, two, or three month period. During the Pause Period, members will remain a member of TT, continue to receive communications from TT via email, but will not be charged any maintenance or membership fee.
Members who are in a Pause Period may resume receiving TT Products by emailing [email protected] and requesting to resume shipping either immediately or on their original bill date. You may email any questions about the Pause Period to [email protected]
4 – USE OF MOBILE APPLICATIONS, SITE, AND OTHER SERVICES
4.1 – TT iOS and Android Mobile Application Terms:
The Terms of this Section 4 shall apply to the Users utilization of either the Totes Tots iOS Application or Totes Tots Android Application. The consideration of which terms apply is contingent on the Mobile Application downloaded and utilized by the User at the time of access to Totes Tots Sites and Services. By way of example, if the User accesses the Totes Tots Services on an Android device the Android terms shall apply and if the User accesses the Totes Tots Services on an Apple device the iOS terms shall apply. For purposes of this section and to the extent applicable in this Agreement, together the iOS Application and Android Application shall be known as Applications.
4.2 – Incorporation of Related Apple Terms:
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
4.2-1 – End-User License for Apple Application: Subject to these Terms, TT grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Apple iPhone, iPad, or iPod Touch (“iOS Device”) owned or controlled by User as permitted by the Usage Rules contained in the Apple Terms and in accordance with these Terms (“User License”). Any use of the iOS Device in any other manner, including, without limitation, resale, transfer, modification or distribution of the iOS Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the iOS Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the iOS Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
4.3 – Incorporation of Related Android Terms:
Should any provisions in the terms, conditions, or other policies listed above conflict with these Terms, these Terms will control, solely to the extent such provisions apply to the Application.
4.3-1 – End-User License for Android Application: Subject to these Terms, TT grants the User a personal, non-exclusive, non-transferable, limited and revocable license to use the Applications for personal use only on an Android Device owned or controlled by User as permitted by the Usage Rules contained in the Android Terms and in accordance with these Terms (“User License”). Any use of the Android Application in any other manner, including, without limitation, resale, transfer, modification or distribution of the Android Application or text, pictures, music, barcodes, video, data, hyperlinks, displays, and other content associated with the Android Application is prohibited. This Agreement and User License also governs any updates to, or supplements or replacements for, the Android Application unless separate terms accompany such updates, supplements or replacements, in which case the separate terms will apply.
4.4 – User Information:
Services and features, such as Virtual Totes Tots Credits, mobile gifting, feedback, account management, and interaction with social media sites, may use, maintain, or transmit User’s personal information, including, without limitation, user names, passwords, proper names, email address, address, location, financial information (including Payment Method information), virtual Totes Tots Credits information, GPS location information, and information for and from third-party social-media accounts (collectively “User Information”). By acknowledging and agreeing to this Agreement, or by using the Applications, Site, or other Services, User consents to the transmission of User Information to Totes Tots, including its agents and third-party partners, and consents to Totes Tots, including its agents and third-party partners, receiving, collecting, storing, processing, transmitting, and using User Information for Application functionality and for the purposes disclosed in one or more of the Totes Tots Privacy Policies identified in this Agreement.
Users are solely responsible for taking precautionary steps to protect User Information stored on the respective Applications, including without limitation password-protecting the respective Applications and employing Apple's or Android's remote-wipe feature.
Unless attributable to Totes Tots' negligence or misconduct, users are also responsible for all payments and losses resulting from transactions and activities undertaken using Virtual Totes Tots Credits registered in their names and agree to immediately notify TT of any suspected unauthorized transactions associated with the Services or any other breach of security.
4.5 – Prohibited Uses:
Users are prohibited from using the Applications, Site, or Services in any way that:
Harasses, abuses, stalks, threatens, defames any person, or otherwise infringes or violates the rights of any person (including but not limited to rights of publicity or other proprietary rights);
is unlawful, fraudulent, or deceptive;
Uses technology or other means to access unauthorized content or non-public spaces;
Uses or launches any automated system or process, including without limitation, “bots,” “spiders,” or “crawlers,” to access unauthorized content or non-public data;
Attempts to introduce viruses or any other harmful computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
Attempts to damage, disable, overburden, or impair TT servers or networks;
Attempts to gain unauthorized access to a TT computer network;
Attempts to gain unauthorized access to TT’s user accounts;
Encourages conduct that would constitute a criminal offense, or that gives rise to civil liability;
Violates these Terms in any manner; or
Fails to comply with applicable third-party terms and conditions or other third-party policies (collectively “Acceptable Use”).
TT reserves the right, in its sole discretion, to terminate any User License, remove Content, assist law enforcement in the prosecution of criminal liability, or assert a civil or criminal legal action with respect to Content or use of the Applications or other Services, including any Virtual Totes Tots Credits, that TT reasonably believes is or might be in violation of these Terms, but failure or delay in taking such actions does not constitute a waiver of its rights to enforce these Terms.
4.6 – User-Generated Content:
The User may generate content, written or otherwise, while using the Services (“User-Generated Content”). User acknowledges and agrees that User-Generated Content may be used, reproduced, displayed, modified, deleted, added too, adapted, and published by TT (for example, in product marketing campaigns). User grants TT and its successors a worldwide; irrevocable; transferrable; sublicensable; fully-paid and royalty-free; and non-exclusive license to use, reproduce, display, modify, delete from, add to, adapt, publish, and prepare derivative works from the User-Generated Information. User further acknowledges and agrees that the User, and the User alone, is responsible for the development of User-Generated Content.
4.7 – Indemnification:
User agrees to indemnify and hold harmless Totes Tots, its affiliates, licensors, suppliers, and third-party service providers, and each of their respective directors, officers, employees, contractors, agents, successors, and assigns (collectively, the "Totes Tots Parties") from all claims or causes of action, liabilities, damages, costs, fines, penalties, and expenses (including attorneys’ fees) arising from or related to the User's misuse of the Services or Products, violation of these Terms, or violations of any rights of a third party, or any allegation thereof. Totes Tots reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by the User, in which event the User will cooperate in asserting any available defenses. This provision does not require you to indemnify any Totes Tots Party for any unconscionable commercial practice by such party, or for such party's negligence, fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact.
4.8 – No Warranties:
THE SITE, APPLICATIONS, OTHER SERVICES AND CONTENT ARE FURNISHED TO YOU “AS IS” AND WITHOUT WARRANTIES, REPRESENTATIONS OR CONDITIONS, STATUTORY OR OTHERWISE, OF ANY KIND. TOTES TOTS, ON BEHALF OF ITSELF AND THE OTHER TOTES TOTS PARTIES: (A) EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE; (B) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE SITE, APPLICATION OR SERVICES WILL BE TIMELY, UNINTERRUPTED, STABLE, OR SECURE; (C) DOES NOT REPRESENT OR WARRANT THAT THE SITE, APPLICATIONS, CONTENT, OR SERVICES WILL BE ERROR-FREE OR THAT ANY DEFECTS WILL BE CORRECTED; AND (D) DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES OR CONDITIONS REGARDING THE USE OF THE SITE, APPLICATION, SERVICES OR CONTENT IN TERMS OF THEIR ACCURACY, RELIABILITY, TIMELINESS, COMPLETENESS, OR OTHERWISE. YOUR USE OF THE SITE, APPLICATIONS, SERVICES AND CONTENT IS ENTIRELY AT YOUR OWN DISCRETION AND RISK.
THIS LIMITATION OF WARRANTIES IS A PART OF THE BARGAIN BETWEEN YOU AND TOTES TOTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY TOTES TOTS OR ANY PERSON ON BEHALF OF TOTES TOTS SHALL CREATE A WARRANTY OR CONDITION, OR IN ANY WAY CHANGE THIS EXCLUSION OF WARRANTY.
NOTHING IN THIS SECTION SHALL EXCLUDE OR LIMIT THE TOTES TOTS PARTIES’ WARRANTIES, REPRESENTATIONS OR CONDITIONS TO THE EXTENT THEY MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW, IN WHICH CASE, SUCH WARRANTIES, REPRESENTATIONS OR CONDITIONS WILL BE EXCLUDED AND LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
4.9 – No Liability:
IN NO EVENT SHALL THE TOTES TOTS PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATIONS, SITE, OTHER SERVICES OR CONTENT, THE INABILITY TO USE THE APPLICATIONS, SITE OR OTHER SERVICES OR CONTENT, OR DEVICE FAILURE OR MALFUNCTION, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR OTHER ECONOMIC DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, OR LOST PROFITS, EVEN IF A TOTES TOTS PARTY HAS BEEN’ ADVISED OF THE POSSIBILITY OF SUCH ECONOMIC DAMAGES.
IF, NOTWITHSTANDING THE FOREGOING, A TOTES TOTS PARTY IS FOUND TO BE LIABLE FOR ANY ECONOMIC DAMAGE OR LOSS WHICH ARISES UNDER OR IN CONNECTION WITH YOUR USE OF THE SITE, APPLICATIONS OR OTHER SERVICES, THE RELEVANT TOTES TOTS PARTY’S TOTAL CUMULATIVE LIABILITY SHALL NOT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID TOTES TOTS FOR THE PRODUCTS OR MEMBERSHIP, AS APPLICABLE; OR (B) THE SUM OF ONE HUNDRED DOLLARS (US $100). THIS LIMITATION EXPRESSLY APPLIES ONLY TO ECONOMIC DAMAGES ARISING FROM THE USE OF THE APPLICATION, SITE, OTHER SERVICES OR CONTENT AND DOES NOT APPLY TO PERSONAL INJURY OR ANY INJURY CAUSED BY ALLEGED FRAUD.
THE FOREGOING DISCLAIMER OF PUNITIVE AND EXEMPLARY DAMAGES, AND THE LIMITATION ON RECOVERY OF ECONOMIC DAMAGE OR LASS, SHALL NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.
4.10 – Intellectual Property:
TT, Totes Tots, the Totes Tots logo, and other TT trademarks, service marks, graphics and logos used in connection with the Applications and other Services are trademarks or registered trademarks of Totes Tots or other companies of TT (collectively “TT Marks”). Other trademarks, service marks, graphics and logos used in connection with the Applications and other Services are the trademarks of their respective owners (collectively “Third-Party Marks”). The TT Marks and Third-Party Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of TT or the applicable trademark holder. The Applications and the Content are protected by copyright, trademark, patent, trade secret, international treaties, laws and other proprietary rights, and also may have security components that protect digital information only as authorized by TT or the owner of the Content.
4.11 – Severability:
If any of these Terms shall be deemed invalid, void, or for any reason unenforceable, those terms shall be deemed severable and shall not affect the validity and enforceability of any remaining terms. Failure of TT to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision in that or any other instance.
4.12 – Modification of this Agreement:
Subject to Section 10.1(x) of this Agreement, TT reserves the right to change or modify this Agreement or any other TT terms, conditions, or policies related to use of the Applications or other Services at any time and at its sole discretion by posting revisions on the Site (https://www.totestots.com) or within the Applications. Continued use of the Applications, Site, or other Services following the posting of these changes or modifications will constitute the User’s acknowledgement and agreement to such changes or modifications. Only a specific, written waiver signed by an authorized representative of TT shall have any legal effect as a waiver by TT of any Terms of this Agreement.
4.13 – Third-Party Beneficiary:
User agrees that TT’s service providers, licensors, or others involved in creating or providing the Applications or other Services are third party beneficiaries to this End-User Agreement and may rely upon the provisions of this End-User Agreement, including but not limited to, the provisions concerning Indemnification, No Warranties, and No Liability.
5 – GIFT CARDS
5.1 – Purchasing and Redemption:
By purchasing Totes Tots Gift Cards ("Gift Cards"), you agree and represent that your use of the Gift Cards will comply with this Agreement and all applicable laws, rules, and regulations, and that you will not use the Gift Cards in any manner that is misleading, deceptive, unfair, or otherwise harmful to consumers or Totes Tots, including its investors, officers, employees, agents, servants, assignees, subsidiaries, or any other Totes Tots-related entity.
A Site account is not required in order to purchase a Gift Card. If the Gift Card is purchased for an individual other than you, the recipient of the Gift Card shall be notified via email at the email address you provide during the purchase. In the event the recipient does not have a Site account at the time of receiving the email, they will be prompted to create a Site account in order to redeem the Gift Card. A Site account is required in order to redeem a Gift Card.
You may purchase Gift Cards for any value between $10 and $300 US dollars. The amount of the Gift Card you purchase shall be charged to you according to your selected payment option when you confirm the purchase of the Gift Card. If the purchase of a Gift Card is part of a promotional campaign wherein purchase of a Gift Card at a pre-determined dollar amount is awarded with additional Totes Tots credits (“TT Credits”), these TT Credits shall only be available for use after the total amount of Gift Cards has been exhausted. In all circumstances TT Credits shall be used only after the exhaustion of Gift Cards.
Gift Cards and TT Credits may only be redeemed toward the purchase of eligible products on the Site. Redemption of Gift Cards and TT Credits on the Site is subject to change in Totes Tots' sole discretion. Purchases are deducted from the Gift Card balance. Any unused balance will be placed in the recipient's Totes Tots account (“TT Credits Balance Display”) when redeemed. If an order exceeds the amount of the Gift Card, the balance must be paid with a Payment Method or other payment method accepted by Totes Tots.
You may be able to obtain your gift card balance by contacting Totes Tots customer service at [email protected] The Gift Card balance relayed to you by a Totes Tots customer service agent is an estimate only. In most cases, the balance is adjusted immediately when you make a purchase online, but there may be occasions when the updated balance is delayed for a period of time.
Gift Cards never expire.
5.2 – Use and Limitations:
Gift Cards may only be purchased and redeemed by persons residing in the 50 United States and the District of Columbia, and may only be used on the Site (www.totestots.com). Gift Cards may not be purchased through or redeemed for the purchase of products at any other website operated by TT, its affiliates, or any other person or entity, except as indicated by these terms and conditions.
Gift Cards cannot be used to purchase other gift cards.
To the fullest extent of the law, Gift Cards cannot be reloaded, resold, transferred for value, or applied to any other account. Unused Gift Card balances in a Site account may not be transferred.
Gift Cards are not returnable or refundable for cash except in states where required by law. Notwithstanding the foregoing reason sentence, if a balance of less than $5 remains on a Gift Card owned by a New Jersey resident following redemption we will refund the balance in cash upon the owner's request to [email protected]
Gift Cards may be used as personal or business gifts, but may not be used in connection with any marketing, advertising, or other promotional activities (including without limitation via websites, Internet advertisements, email, telemarketing, direct mail, newspaper and magazine advertisements, and radio and television broadcasts) unless you obtain Totes Tots' prior written approval.
Use of Totes Tots' name, logo, trade dress (including any image/likeness of the Gift Cards) or trademarks (or those of any of its subsidiaries or affiliates) in connection with the purchase or use of Totes Tots' Gift Cards is strictly prohibited. Furthermore, the use of Totes Tots' Gift Cards in any manner that states or implies that any person, website, business, product, or service is endorsed or sponsored by, or otherwise affiliated with, Totes Tots or any of its subsidiaries or affiliates is prohibited.
5.3 – Risk of Loss:
If your Gift Card is lost or stolen, immediately contact customer service at [email protected] Your Gift Card will be cancelled and after an internal investigation, we will issue a new Gift Card with the remaining balance, if any. Lost or stolen Gift Cards cannot be replaced without the original confirmation email sent to the email account provided to Totes Tots. Totes Tots and its affiliates shall have no liability to you for:
for lost or stolen Gift Cards; or
use of any Gift Cards by third parties through your Site account. You are solely responsible for keeping the username and password for your Site account safe and for any activity conducted under your account.
Notwithstanding the above, the risk of loss and title for Gift Cards pass to the purchaser upon our electronic transmission to the purchaser, recipient, or delivery to the carrier, whichever is first and/or applicable. We are not responsible if a Gift Card is lost, stolen, destroyed, or used without your permission.
5.4 – Fraud:
Totes Tots shall have the right to close member accounts or any related account(s) if Totes Tots suspects a Gift Card is being used in a fraudulent manner to make purchases on the Site. If a fraudulently obtained Gift Card is redeemed and/or used to make purchases on the Site or any of its affiliated websites set forth above Totes Tots shall immediately suspend the Gift Card and may recoup the amount of the Gift Card by charging the amount from the Credit or Debit Card supplied. Totes Tots may also cancel or remove any and all Totes Tots Credits on the member accounts and/or any related account(s). Totes Tots has a zero-tolerance Fraud policy and it is the responsibility of the account holder to secure their account and Gift Card.
5.5 – Limitation of Liability & Gift Cards:
IN THE EVENT A GIFT CARD CODE IS NON-FUNCTIONAL, UNLESS SUCH NON-FUNCTIONALITY IS DUE TO THE GIFT CARD BEING FULLY REDEEMED, OUR SOLE LIABILITY SHALL BE FOR THE REPLACEMENT OF SUCH GIFT CARD CODE.
5.6 – Issuer:
Gift Cards are issued by Totes Tots.
6 – REFERRALS
These are the Terms and Conditions applicable to the Totes Tots Referral Program (the “Program”). Under the Program, Totes Tots offers its Members the opportunity to provide their friends, family, or other individuals (“Prospective Members”) with a unique referral ID link (“Personal Link”) that a Prospective Member can use to sign up for Totes Tots services (“Membership”). For each Qualified Referral (defined below) generated through the Member’s Personal Link, the Member may receive a Totes Tots credit (“Credit”) as specified on the Company’s Referral Program page. We reserve the right to terminate this Program at any time for any reason.
Members and Prospective Members that wish to take part in the Program are bound by these Terms. If you do not agree to and abide by these Terms in their entirety you are not authorized to participate in the Program. Members and Prospective Members may not participate in the Program where doing so would be prohibited by any applicable law or regulations. We reserve the right to modify or amend at any time these Terms and the methods through which any Credits may be earned. We reserve the right to disqualify any Member or Prospective Member at any time from participation in the Program.
Children: No part of the Program is directed to persons under the age of 13. IF YOU ARE UNDER 13 YEARS OF AGE, PLEASE DO NOT USE OR ACCESS THE PROGRAM AT ANY TIME OR IN ANY MANNER.
6.1 – PRIVACY
6.2 – HOW THE PROGRAM WORKS:
Generally: To participate, a Member shall provide the Prospective Member with the Member’s Personal Link. The Prospective Member must click on the Personal Link and complete the sign up in the same session. If the Prospective Member does not complete the sign up in the same session, the Member will be not be credited for that referral and will not be eligible for the Credit, even if the Prospective Member subsequently signs up for a Membership. For purposes of clarification, completion of sign-up in the same session means clicking the Personal Link provided by Member and completing Totes Tots service sign-up within a reasonable period of time and without the Prospective Member closing their Internet browser or pressing the back button.
To be eligible for Program and to receive Credits, a Member must:
Be a legal resident of the United States;
Be at least 18 years old;
Have provided the Prospective Customer with their correct unique Personal Link; and
Have a Membership account in good standing with Totes Tots.
Employees of Totes Tots, its service providers or any of its or their subsidiaries, affiliates or promotional agencies, including immediate family and household members, are not eligible.
Personalized Referral Links
Totes Tots offers Members the opportunity to create their own personalized referral name ("Personalized Referral Link"). These Personalized Referral Links may be of any length and include any combination of words and/or numbers of the Member's choosing. Personalized Referral Links shall be on a first come, first served basis. Totes Tots is in no way responsible for confirming or ensuring that the Personalized Referral Link is accurate or correctly formatted or spelled. Under no circumstances may a Member transfer or sell a Personalized Referral Link to another Member. Notwithstanding the foregoing, the Totes Tots reserves the right to revoke, ban, or amend any Personalized Referral Link at any time and for any reason. Any or all Credits earned through a revoked, banned, or amended Personalized Referral Link may be removed from Member’s account by Totes Tots. For purposes of clarification, but in no way limiting the Totes Tots' rights to revoke, ban, or amend any Personalized Referral Link, the following Personalized Referral Links are explicitly banned and may be grounds for suspension of Membership and removal of any Credits earned:
Personalized Referral Links that imply a discount or savings on Membership (e.g. 5DollarsOff, 5buxOff, FreeBox, 5Off, etc.);
Personalized Referral Links that Totes Tots deems to be obscene, racist, sexist, or offensive in its sole discretion;
Personalized Referral Links that use a trademark, copyright, or the name of another individual.
Personalized Referral Links that are promoted, advertised, or publicized on any Totes Tots owned or operated websites, third party websites, social networks, and any other similarly situated Internet site, property, location, or asset where Totes Tots is an Administrator or Trustee. By way of example, this includes but is not limited to Facebook, Twitter, Pinterest, Blog, or any other similarly situated websites.
Making a Referral
Members can refer Prospective Members by giving their Personal Link to the Prospective Member. Once a Prospective Member uses a Member’s Personal Link and successfully completes the signup process for the Totes Tots services, the Member may receive a communication from the Company confirming that the Prospective Member has signed up. The confirmation communication to the Member shall include some of the Prospective Member’s personal information provided to Company such as name and email address. A Member’s failure to receive such a confirmation communication means that the Prospective Member failed to complete the signup process (during the same session, or at all) and no Credit will have been earned. The Member and/or the Prospective Member may email Company any comments or questions in regard to a failed referral, but whether to award Member the Credit shall be at Totes Tots' sole discretion. Prospective Members must satisfy the requirements of these Terms and Conditions and consent to receiving communications from Totes Tots. Members may not refer themselves.
For purposes of emphasis and clarification, by using a Personal Link, a Prospective Member acknowledges and affirms his/her understanding that some of his/her personal information, including but not limited to his/her name and email address, may be sent to the Member who provided the Personal Link as confirmation of the Prospective Member’s successful referral and sign-up with Totes Tots. Accordingly, Totes Tots strongly advises that Prospective Members only use a Personal Link they receive from someone whom they personally know and trust. For their own security, Prospective Members should not use a Personal Link if they receive it from an unknown, untrusted, or public source, such as an Internet forum.
A Qualified Referral means that all the following conditions are met:
The Prospective Member completed the registration process for a Membership using the Member’s Personal Link. If a Prospective Member registers for a Membership using any other link or method, the registration will not count as a Qualified Referral and the Member will not be rewarded a Credit;
The Prospective Member was not previously registered with the Service under any other email address or alias; and
The Prospective Member is a) at least 18 years old; b) meets the eligibility requirements to become a Member of Totes Tots' services; and c) has consented to receiving communications from Totes Tots.
If the Prospective Member upon sign up takes advantage of a Totes Tots trial offer (see Section 3.3 above) then the Prospective Member must remain a Member beyond the first month of the trial offer and pay the standard, non-promotional subscription fee for at least one month.
Earning Credits Member shall receive five (5) Credits for each verified Qualified Referral generated through the Member’s Personal Link. The actual Credit will be determined by Totes Tots in its sole discretion as specified on its Credits Page. If the Credit consists of credit, such credit may only be applied in the amount specified by Totes Tots towards the Member’s purchase of future services from TT. A Member may attain an unlimited number of Qualified Referrals, but any Qualified Referral shall be subject to review at any time by Totes Tots and it is in the sole discretion of Totes Tots as to the legitimacy and validity of such Qualified Referral.
Verified Qualified Referrals All Credits are subject to verification. Totes Tots may delay a Credit for the purposes of investigation. Totes Tots may also refuse to verify and process any transaction Company deems, in its sole discretion, to be fraudulent, suspicious, or in violation of these Terms and Conditions, or Totes Tots believes will impose potential liability on Totes Tots beyond what is reasonable for this Referral Program, its subsidiaries, affiliates or any of their respective officers, directors, employees, representatives and agents. Totes Tots may cancel, amend or revoke the Credit at any time due to business considerations of circumstances beyond Totes Tots' control. Totes Tots is not responsible for errors, omissions, malfunctions, interruptions, deletions, delays or failures of operations. All of Totes Tots' decisions are final and binding, including decisions as to whether a Qualified Referral or Credit is verified.
Value of Credit Credits have absolutely no monetary value and may not, under any circumstances, be redeemed for cash or any cash equivalent including but not limited to gift cards, certificates, or refunds. Totes Tots may cancel, amend or revoke the Credit at any time for any reason.
Transfer of Credits Credits are personal to the Member and are not transferable and may not be auctioned, traded, bartered or sold, whether by operation of law or otherwise. Upon termination of the Program or any portion thereof for any reason, or upon cancellation of a Member’s account for any reason, any unredeemed Credits (including without limitation any unapplied credits) accumulated by the Member are forfeited.
6.3 – ADDITIONAL PROGRAM CONDITIONS:
By participating in the Program, both Members and Prospective Members agree:
To receive communications from Totes Tots from time to time.
That Totes Tots shall not be liable for late, lost, delayed, stolen, misdirected, incomplete, inaccurate, unreliable, garbled or unintelligible registrations, links, communications or affidavits, regardless of the method of transmission;
Data corruption, theft, destruction, unauthorized access to or alteration of account information or other materials;
Any injuries, losses or damages of any kind resulting from acceptance, possession or use of a Credit, or from participation in the Program, that were not reasonably foreseeable to Totes Tots at the relevant time;
Any printing, typographical, administrative or technological errors in any websites or materials associated with the Program; or
Claims and demands made, and damages sought in disputes between users of the Program.
6.4 – DISCLAIMERS:
The Totes Tots disclaims any liability for damage to any computer system resulting from participating in, or accessing or downloading information in connection with the Program, and reserve the right, in their sole discretion, to cancel, modify or suspend the Program should a virus, bug, computer problem, unauthorized intervention or other causes beyond the v's control, corrupt the administration, security or proper play of the Program.
The Totes Tots shall not be liable to any Member for failure to supply any Credit or any part thereof, by reason of any acts of God, any action(s), regulation(s), order(s) or request(s) by any governmental or quasi-governmental entity (whether or not the action(s), regulations(s), order(s) or request(s) prove(s) to be invalid), equipment failure, threatened terrorist acts, terrorist acts, air raid, blackout, act of public enemy, earthquake, tornado, tsunami, war (declared or undeclared), fire, flood, epidemic, explosion, unusually severe weather, hurricane, embargo, labor dispute or strike (whether legal or illegal), labor or material shortage, transportation interruption of any kind, work slow-down, civil disturbance, insurrection, riot, or any other similar or dissimilar cause beyond any of the Released Parties' control.
The Totes Tots reserves the right to cancel or suspend the Program should it determine, in its sole discretion, that the administration, security or fairness of the Program has been compromised in any way.
6.5 – CONDUCT:
Prohibited Conduct, Generally.
Members agree not to use the Program to:
Violate applicable law;
Stalk, harass, or harm another individual;
Collect or store personal data about other Members;
Impersonate any person or otherwise misrepresent Member's identity;
Interfere with, disrupt or violate the Terms and Conditions or servers or networks connected to the Program; or disobey any requirements, procedures, policies, or regulations of such networks;
Interfere with another Member's use of the Program;
Attempt to gain unauthorized access to the Program, other accounts, computer systems, or networks connected to the Program;
Transmit any file that contains viruses, worms, Trojan horses, or any other contaminating or destructive features;
Conduct any illegal activity or solicit the performance of any illegal activity or other activity that infringes the rights of others;
Resell, barter, trade, auction or otherwise generate income by providing access to the Program to others;
Submit personal information relating to third parties to the Program without the consent of those third parties.
Bulk Distribution ("Spam").
If a Member provides a Personal Link to a Prospective Member by email, the email must be created and distributed in a personal manner that is appropriate and customary for communications with friends, colleagues and family members. By using a Member’s Personal Link, the Prospective Member represents that he/she has given consent to Totes Tots to send Member his/her personal information such as full name and email address.
Bulk email distribution, distribution to strangers, or any other promotion of a Personal Link in a manner that would constitute or appear to constitute unsolicited commercial email or "spam" in the Totes Tots' sole discretion is expressly prohibited and may be grounds for immediate termination of the Member’s account and deactivation of the Personal Link. We have a zero-tolerance spam policy.
The Totes Tots has no obligation to monitor the content provided by Members; however, Totes Tots may choose to do so and block any email messages, remove any such content, or prohibit any use of the Program.
Fraudulent and Suspicious Behavior
Totes Tots may prohibit a Member from participating in the Program or receiving a Credit, in their sole discretion, if they determine such Member, either directly or indirectly is attempting to undermine the fairness, integrity or legitimate operation of the Program in any way by cheating, hacking, deception, or any other unfair playing practices that would in any way annoy, abuse, threaten or harass any other users or representatives of Totes Tots.
Use of any automated system, script, or macro to participate in the Program or generate Qualified Referrals is strictly prohibited and will result in the responsible Member’s disqualification from the Program.
Members may not enter with multiple or fake email addresses or accounts, use fictitious identities or use any system, bot or other device or artifice to participate in the Program or receive a Credit.
Totes Tots reserves the right to disqualify any Member and/or cancel any Credit(s) if they determine a Member has tampered with the operation of the Program or violated these Terms and Conditions.
Totes Tots reserves the right to suspend, disqualify or terminate any Member’s or Prospective Member’s participation in the Program and forfeit any Credits or credits earned if the Member or Prospective Member is found to have engaged in any prohibited conduct or otherwise violated the provisions of this Section 6. If Members have engaged in prohibited conduct, spam or fraudulent or suspicious behavior that undermines or affects the integrity or credibility of the Program, and Totes Tots is unable to find a solution to restore the integrity and credibility of the Program, then Totes Tots may in its sole discretion cancel, change or suspend the Program.
CAUTION: ANY DELIBERATE ATTEMPT TO DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY CONSTITUTE A VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION FROM FURTHER PARTICIPATION IN THE PROGRAM. TOTES TOTS RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION, IN THE EVENT OF ANY SUCH ATTEMPT.
7 – PROPRIETARY RIGHTS
You hereby acknowledge and agree that Totes Tots or its licensors own all legal right, title and interest in and to the Service and Content, including, without limitation, any and all intellectual property and other proprietary rights which subsist in the Services and Content, whether such rights are registered or unregistered, and wherever in the world those rights may exist.
Totes Tots and its personnel do not accept or consider unsolicited ideas, including, without limitation, ideas for new advertising campaigns, new promotions, new or improved products or technologies, product enhancements, processes, materials, marketing plans or new product names. Please do not submit any unsolicited ideas, original creative artwork, suggestions or other works (“Submissions”) in any form to Totes Tots or any of its employees. The sole purpose of this policy is to avoid potential misunderstandings or disputes when any of Totes Tots' products, services or marketing strategies might seem similar to ideas submitted to Totes Tots. If, despite our request that you not send us your ideas, you still submit them, then regardless of what your correspondence says, the following terms shall apply to your Submissions.
You agree that:
Any Submission (including its complete contents) by you to Totes Tots will automatically become the property of Totes Tots, without any compensation to you;
Totes Tots may use or redistribute any Submission and its contents for any purpose and in any way, without any compensation to you;
Totes Tots has no obligation to review any Submission; and
Totes Tots has no obligation to keep any Submission confidential, and no confidential relationship may be established by or inferred from any such Submissions to, or the consideration of your Submissions by, Totes Tots.
9 – THIRD PARTY SITES
9.1 – Third Party Web Sites
10 – DISPUTE AND ARBITRATION; CLASS ACTION WAIVER; CHOICE OF LAW 10.1 – Arbitration Agreement; Class Waiver; Waiver of Trial by Jury. Please read this Section (“Arbitration Agreement”) carefully. It is part of your contract with Totes Tots and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Informal Resolution. Most customer concerns can be resolved quickly and to a customer’s satisfaction by writing to our customer service department at [email protected] or Totes Tots, Attn: Customer Service, 1058 N Tamiami Trl Ste 108 Box 311, Sarasota FL 34236. In the unlikely event that our customer service department is unable to resolve a complaint you may have to your satisfaction, the terms of this Section 10.1 govern dispute resolution between us.
Applicability of Arbitration Agreement. All claims and disputes in connection with the Agreement or the use of any product or service provided by Totes Tots that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Totes Tots, and to any of Totes Tots' licensors, suppliers, dealers or third party vendors, subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Agreement.
Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of this arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with this Arbitration Agreement (“Arbitration Rules”). The AAA Consumer Arbitration Rules governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. Any hearing will be held in a location within one hundred (100) miles of your residence, unless you reside outside of the United States (in which case hearing will be held in the capital of your country), and unless the parties agree otherwise. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator will decide the rights and liabilities, if any, of you and Totes Tots, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Totes Tots.
Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in court and are subject to very limited review by a court. In the event any litigation should arise between you and Totes Tots in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND TOTES TOTS WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court located in Sarasota, Florida.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Totes Tots, Attn: Legal Department, 1058 N Tamiami Trl Ste 108 Box 311, Sarasota FL 34236 within 30 days of purchasing a Membership. If you send this notice, then the Arbitration Agreement will not apply to either party and you must litigate pursuant to subparagraph xii below. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Totes Tots.
Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Totes Tots makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Totes Tots.
Small Claims Court. Notwithstanding this section 10, either you or Totes Tots may bring an individual action in small claims court.
Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court (except for actions brought in small claims court), the parties hereby agree to submit to the personal jurisdiction of the courts located in Sarasota, Florida for such purpose.
10.2 – Choice of Law
This Agreement is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of Florida, without regard to its conflicts of laws rules. Foreign laws do not apply. If any provision of the Agreement is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from this Agreement.
11 – ELECTRONIC COMMUNICATIONS; GENERAL TERMS
11.1 – Electronic Communications
Whenever you visit our Site or send emails to us, you are communicating with us electronically. For that reason, you also consent to receive communications from us electronically. We will communicate with you by email (if you have provided your email address to us), by text (if you send a SMS or text message to TT), by posting notices on our Site or by such other means as we may determine from time-to-time. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing, to the extent permitted by applicable law.
11.2 – General Terms