App & Reward Terms
This TOCAYA App (the “App”) is offered by Tocaya Organica, LLC d/b/a Tocaya and/or its subsidiaries, licensees, franchisees and affiliated companies (“Tocaya”, “we”, or “us”). These Terms and Conditions (“Terms and Conditions”) apply only to this App and the Rewards Program (as defined below) (collectively part of the “App”) offered herein, and not to any other website, mobile app, product, service, or program offered by us. These Terms and Conditions are a legal and binding agreement between you and Tocaya governing your use of this App, which includes its content, information, services, and features, or participation in the Rewards Program.
PLEASE READ THESE TERMS AND CONDITIONS, INCLUDING THE ARBITRATION AGREEMENT REQUIRING MANDATORY BINDING ARBITRATION SET FORTH IN SECTION 10, WHICH APPLY TO YOUR USE OF THIS APP AND ENROLLMENT AND PARTICIPATION IN OUR REWARDS PROGRAM. IF YOU DO NOT AGREE TO THESE TERMS, THEN DO NOT USE THIS APP OR PARTICIPATE IN THE REWARDS PROGRAM.
We may modify these Terms and Conditions from time to time. When we do, we will notify you by email or otherwise as permitted or required under applicable law. It is therefore required that you update your account information, including when your email address changes. Any changes to these Terms and Conditions will also be posted here. Your continued use of the App or participation in the Rewards Program after any modification confirms your acceptance to the modifications.
Additionally, Tocaya may at any time, for any reason, and without notice or liability: (1) modify, suspend, or terminate operation of or access to this App or any portion thereof; (2) change, revise, or modify this App or any portion thereof; (3) interrupt the operation of this App or any portion thereof for maintenance and support; (4) impose limits on certain features and services, or restrict access to the App; and/or (5) terminate the authorization, rights, and license given above. Upon any termination, the rights and licenses granted to you herein shall terminate, and you must cease all use of the App.
- Content & Use
This App and all content, information, and other materials featured, displayed, contained, and available on this App (collectively, the “Content“) are owned by or licensed to Tocaya and are protected by copyright, trademark, trade dress, patent, and/or other intellectual property rights. Subject to your compliance with these Terms and Conditions, Tocaya grants you a personal, non-exclusive, non-transferable, limited right to access, use, display, and download this App for noncommercial purposes only. You may not, in any way, otherwise copy, reproduce, distribute, transmit, display, perform, reproduce, publish, license, modify, create derivative works from, sell, or exploit, in whole or in part, this App or its Content.
You agree to use this App and the Content in accordance with these Terms and Conditions and all applicable laws and regulations. Tocaya may prohibit access, use, conduct, communications, or content that we, in our sole discretion, deem to be harmful to this App, the Content, users, us, our brand, or any other person or entity, or that violates these Terms and Conditions and/or applicable law.
- Rewards Program
Tocaya offers the Tocaya Loyalty Program (the “Rewards Program“) to reward and thank our loyal restaurant customers. The Rewards Program is available to enrolled members at participating Tocaya restaurants in the United States. Points and Rewards accumulated under the Rewards Program are promotional and have no cash value. There are no membership fees associated with the Rewards Program.
Notice of Financial Incentive:
- Summary of Financial Incentive: Through the Rewards Program, you may accumulate Points and Rewards to be used toward a complimentary food item.
- Material Terms: The material terms of the financial incentive of Tocaya’s Reward Program are included below.
- How to Opt-In: You may opt-in to Tocaya’s Rewards Program by following the “Enrollment/Rewards Account” instructions below.
- Right to Withdraw: You have the right to withdraw from the Rewards Program at any time by providing notice, consistent with Section 12(b) below, with the subject line “Request to Withdraw.”
- Explanation of How the Financial Incentive is Reasonably Related to the Value of the Consumer’s Data: We determine how the Financial Incentive is reasonably related to the value of your data by calculating the average value to Tocaya of the sale, collection, or deletion of your data or a typical consumer’s data.
Eligibility: You may enroll in the Rewards Program if you: (1) are a legal resident of the United States; (2) at least 13 years of age at the time you enroll; (3) have an active, valid e-mail address; and (4) are a human being. No corporations, partnerships, limited liability companies, or other legal entities can participate in the Rewards Program.
The Rewards Program is not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use the Rewards Program under the supervision of a parent or legal guardian who agrees to be bound by these Terms and Conditions.
Enrollment/Rewards Account: You can enroll in the Rewards Program and create a Rewards account (“Rewards Account”) in one of the following ways:
- Click here to create a Rewards Account;
- Create a Rewards Account on Tocaya online ordering site located at http://order.tocaya.com; or
- Download the Tocaya mobile application to your Android™ or iPhone® device and create a Rewards Account.
Your Rewards Account is personal to you and may not be sold, transferred or assigned to, or shared with family, friends or others. You may have only one (1) Rewards Account.
As a part of the Rewards Program, Tocaya will send you transactional, informational, and promotional messages and/or offers. These communications may happen in the form of push notifications through the App to your device, email, SMS or text message, with message and data rates applying, and/or any other ways you may have selected when you enrolled in the Rewards Program or to which you thereafter consented. If your contact information changes, or if you wish to change your contact information or the method by which we send you messages, please log into your Rewards Account and update your contact information or preferences. Tocaya will also provide for opt-out and unsubscribe options as required by law, some of which are made available via your phone and/or email settings. You may contact Tocaya for assistance in any opt-out via email@example.com.
Earning Points and Offers for Rewards: You will earn and receive Points (as defined below) toward offers for rewards, which are defined as a thing given by Tocaya to you, (“Rewards”) as follows:
Qualifying Purchases: Making Qualifying Purchases will help you progress towards earning rewards from us (“Reward Progress“) and reaching the designated threshold (a “Reward Threshold“) indicated within the App. When you reach a Reward Threshold, you will have access to the rewards that we offer which can be redeemed automatically to your Linked Card or by showing us the reward on your next visit to one of our participating locations, as applicable (collectively, “Rewards“).
To receive Points for a qualified purchase, scan the bar code on the receipt or use a QR code scanner at the register from your purchase with the built in scanner in the App or upload a photo of your receipt within 7 days of your purchase to verify the minimum purchase requirement of $1. After this verification, the Points to which you are entitled will be applied to your Rewards Account. You can track the Points and offers and/or Rewards you have already earned and that you may earn in the future by logging into your Rewards Account History. Points for qualifying purchases from participating stores are automatically added to your Rewards Account within twenty-four (24) hours. From time to time, we, or others acting with our permission, may offer you special promotions that offer you bonus points (“Bonus Points“). Bonus Points will be awarded as described in the applicable promotional or special offer and will be subject to any additional terms set forth in the promotional offer. Read each offer carefully for specific details, expiration dates, limitations and restrictions.
Participating in our Loyalty Program
Our Loyalty Program provides a personalized reward experience for consumers and includes loyalty rewards and offers, discounts, experiences, targeted promotions and general information (collectively, “Opportunities“) via email, mobile device notifications and other channels. You can link one or multiple payment methods to enable automatic accrual and, in some cases, automatic redemption of rewards. We will try to deliver you the most relevant Opportunities to you.
To participate in our Loyalty Program via the Service, you must (1) link one or multiple payment cards with your account (“Linked Cards”) and (2) make eligible purchases (as described in the “Important Notes About Your Cards and Transactions” section below) with your Linked Cards to earn progress and rewards (collectively, “Qualifying Purchases“).
Making Qualifying Purchases will help you progress towards earning rewards from us (“Reward Progress“) and reaching the designated threshold (a “Reward Threshold“) indicated within the App. When you reach a Reward Threshold, you will have access to the rewards that we offer which can be redeemed automatically to your Linked Card or by showing us the reward on your next visit to one of our participating locations, as applicable (collectively, “Rewards“).
Social Media Sharing & Referral Bonuses: You can also share your Tocaya experience through the App. You have the option to make your comment public, but please note that by making your comment public, we may use your comment on the Tocaya website, Facebook page, and/or other social media outlets, and you hereby grant a perpetual, royalty-free license to Tocaya to do so.
Additional Rewards Program Terms: Tocaya reserves the right to terminate your Rewards Account and/or your participation in the Rewards Program if we determine in our sole discretion that you have violated these Terms and Conditions, you have more than one (1) Rewards Account, or that the use of your Rewards Account is unauthorized, deceptive, fraudulent or otherwise unlawful. Tocaya may, in its sole discretion, suspend, cancel, or combine Rewards Accounts that appear to be duplicative, and may refuse to allow you to re-enroll in the Rewards Program. Tocaya also reserves the right to “unregister” and make ineligible for the Rewards Program any Rewards Account that has been inactive for three years. Inactive is defined as no Points or Rewards earned.
Tocaya has the right at any time, with or without giving you prior notice, to:
- end or cancel the Rewards Program and/or any specific Reward;
- change any Reward or other Rewards Program benefit we offer;
- change the requirements, including, without limitation, the number of Points required, for earning a particular Reward;
- change the time you have in which to earn a particular Reward; and/or
- change any other feature of the Rewards Program.
If we end the Rewards Program, Rewards you have earned but not used will expire on the end date, and you may not redeem any Rewards or use any credits after the end date.
- Login and Registration
Certain features or services offered on or through this App may require you to complete a registration process and/or setup an account or login. In connection therewith, you agree to (1) provide true, accurate, current, and complete information about yourself, and (2) maintain and promptly update your information to keep it true, accurate, current, and complete. You are entirely responsible for maintaining the confidentiality of the information you hold for your login, including your password. You agree to notify Tocaya immediately of any unauthorized use of your login, or any other breach of security. You are solely responsible for keeping your account information safe and for any activity conducted under your account. You may be held liable for losses incurred by Tocaya or any other App user or visitor due to someone else using your login as a result of your failing to keep your login information secure and confidential.
You may not use anyone else’s account or login information. Tocaya shall not be liable for any loss or damage arising from your failure to comply with these obligations.
- Mobile App
If accessing Tocaya through the App from the Apple App Store and/or Google Play Store, you agree to the following:
- These Terms and Conditions are entered into between you and Tocaya only, not Apple and/or Google, and Tocaya is solely responsible for the App;
- The license granted to you under these Terms and Conditions to use the App is non-transferable;
- Tocaya is solely responsible for providing any maintenance and support services with respect to the App;
- Tocaya is solely responsible for any warranties as articulated in these Terms and Conditions;
- You and Tocaya are solely responsible for addressing any claims relating to product liability, the App’s failure to conform with any applicable legal or regularly requirement, and claims arising under consumer protection, privacy, or similar legislation;
- In the event of any third-party claim that the App or your possession and use of the App infringes that third-party’s intellectual property rights, Tocaya is solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim;
- You represent and warrant that they are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting country” and that you is not listed on an U.S. Government list of prohibited or restricted parties;
- The contact information for Tocaya to which any questions, complaints, and/or claims can be directed is located below;
- You and Tocaya agree that Apple and Google, and Apple and/or Google’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of these Terms and Conditions, Apple and/or Google will have the right to enforce these Terms and Conditions against the you as a third-party beneficiary thereof.
- Disclaimer of Warranties
YOU EXPRESSLY AGREE THAT USE OF THIS APP, THE CONTENT, AND THE REWARDS PROGRAM IS AT YOUR OWN RISK. ALL PARTS OF THE APP, CONTENT AND REWARDS PROGRAM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TOCAYA EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT. TOCAYA MAKES NO WARRANTY THAT ANY PART OF THE APP, CONTENT OR REWARDS PROGRAM WILL MEET YOUR REQUIREMENTS. YOU UNDERSTAND AND AGREE THAT ANY PRODUCTS OR SERVICES YOU OBTAIN THROUGH USE OF THE APP, CONTENT OR REWARDS PROGRAM ARE OBTAINED AT YOUR OWN RISK, AND TOCAYA MAKES NO WARRANTY REGARDING ANY DEALINGS WITH OR TRANSACTIONS ENTERED INTO WITH ANY OTHER PARTIES THROUGH THE SAME. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM TOCAYA OR OTHERWISE THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. CERTAIN STATE LAWS DO NOT PERMIT LIMITATIONS ON OR DISCLAIMERS OF IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO YOU. IN THAT EVENT, THE DISCLAIMERS SHALL BE APPLICABLE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
- Limitation of Liability
YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL TOCAYA OR ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING OUT OF OR RELATED TO YOUR USE OF THE APP, CONTENT OR REWARDS PROGRAM OR YOUR PURCHASE OF ANY PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY GIFT CARDS, VIA THE APP OR ANY THIRD-PARTY SERVICE, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT OR OTHERWISE. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF TOCAYA TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATED TO YOUR USE OF THE APP, CONTENT OR REWARDS PROGRAM OR YOUR PURCHASE OF ANY PRODUCTS, INCLUDING, WITHOUT LIMITATION, ANY GIFT CARDS, VIA THE APP OR ANY THIRD-PARTY SERVICE, EXCEED ONE HUNDRED DOLLARS ($100). THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 6 REFLECT THE ALLOCATION OF RISK AGREED UPON AS REASONABLE BY THE PARTIES AND THAT THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS OF LIABILITY INCLUDED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, LIMIT OR EXCLUDE OUR LIABILITY, THE EXTENT OF OUR LIABILITY SHALL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
- International Users
This App is controlled, operated, and administered by Tocaya from offices within the United States of America. We make no representation regarding use of this App outside of the United States. You may not use this App or export any portion of it in violation of U.S. export laws and regulations. If you access this App from locations outside of the United States of America, you are responsible for compliance with all local laws.
You agree to indemnify, defend and hold harmless Tocaya and its agents, employees, representatives, licensors, affiliates, officers and directors, from and against any and all claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys’ fees and court costs) resulting or arising from any third-party claim based upon or arising in connection with (a) your use of or access to the App, Content or Rewards Program; (b) any information you submit or transmit through the App; (c) your violation of these Terms and Conditions; (d) your violation of any rights of any third party in connection with your use of the App; or (e) any viruses, trojan horses, worms, time bombs, cancelbots, spyware, or other similar harmful or deleterious programming routines input by you into the App.
- Arbitration Agreement; Class Waiver; Waiver of Trial by Jury
Please read the terms of this Section 10 (this “Arbitration Agreement”) carefully. It is part of your contract with Tocaya and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION, A CLASS ACTION WAIVER, AND A WAIVER OF TRIAL BY JURY.
(a) Applicability of Arbitration Agreement. Except as otherwise specifically provided in Paragraph (n) of this Arbitration Agreement, any dispute, controversy, or claim, whether at law or equity, arising out of or relating in any way to these Terms and Conditions, use of the App, and enrollment or participation in the Tocaya Rewards Program that cannot be resolved informally or in small claims court, including the breach, termination, enforcement, interpretation, or validity of these Terms and Conditions and the determination of the scope or applicability of this Arbitration Agreement, shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. This Arbitration Agreement applies to you and Tocaya, and to any of your or Tocaya’s 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 these Terms and Conditions.
(b) Notice Requirement and Informal Dispute Resolution. Before any party may seek arbitration, the party must first send to the other party a written Notice of Dispute (a “Notice“) describing the nature and basis of the claim or dispute, and the requested relief. Such Notice shall be sufficient if sent by via e-mail or by mail. Any Notice to Tocaya shall be sent to either firstname.lastname@example.org or 1201 W. 5th Street Suite T-400, Los Angeles, CA 90017. After Notice is received, you and Tocaya may attempt to resolve the claim or dispute informally. If you and Tocaya do not resolve the claim or dispute within thirty (30) calendar days after such Notice is received, either party may begin an arbitration proceeding.
(c) Arbitration Rules. Arbitration shall be administered by ADR Services, Inc. (“ADR Services”) and held before a sole arbitrator. The arbitration shall be binding with no right of appeal. The arbitration shall be conducted pursuant to the ADR Services’ Arbitration Rules. The arbitration shall be commenced by filing a demand for arbitration with the administrator of ADR Services and serving the demand on the responding party. Upon receipt of the demand for arbitration, ADR Services will send a “Commencement Letter” acknowledging receipt of the demand. The responding party may file a response and/or a counter-claim within fifteen (15) calendar days after receipt of the demand. If no response is filed, all allegations of the demand shall be deemed denied. The parties shall select an arbitrator by mutual agreement through ADR Services within thirty (30) calendar days after the date the demand for arbitration was filed. If the parties are unable to agree on the selection of an arbitrator within such time, the administrator of ADR Services shall select an independent arbitrator pursuant to the procedures set forth in the ADR Services Arbitration Rules, Paragraph 11. The costs of arbitration, including the arbitrator’s fees, shall be borne equally by the parties to the arbitration, unless required under applicable law, otherwise ordered by the arbitrator, or agreed upon by the parties. The parties to this Arbitration Agreement further agree to abide by any award rendered by the arbitrator. Judgment on the award rendered by the arbitrator may otherwise be entered in any court having jurisdiction thereof. To begin an arbitration proceeding, you must serve Tocaya’s registered agent for service of process: Registered Agent Solutions, Inc., 1220 S ST STE 150, SACRAMENTO, CA 95811. Arbitration will take place in Los Angeles, California; provided, however, that the arbitrator may cause the arbitration to take place (a) in another location agreed to by both parties, or (b) in another location which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances.
(d) Additional Rules for Non-appearance Based Arbitration. To the extent permitted by the ADR Services Arbitration Rules, if non-appearance arbitration is elected by both parties, the arbitration shall be conducted by telephone, online, and/or based solely on written submissions, the specific manner shall be chosen by the party initiating the arbitration, and the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties or required by the ADR Services Arbitration Rules.
(e) Time Limits. If you or Tocaya pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim).
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Tocaya. 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, ADR Services Arbitration Rules, and this Arbitration Agreement. 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 Tocaya.
(g) Waiver of 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 an action in court and are subject to very limited review by a court.
(h) Waiver of Class or Consolidated Actions. UNLESS OTHERWISE REQUIRED UNDER APPLICABLE LAW, ALL CLAIMS AND DISPUTES ARISING OUT OF OR OTHERWISE RELATED TO THESE TERMS AND CONDITIONS MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. UNLESS OTHERWISE REQUIRED UNDER APPLICABLE LAW, CLASS, MASS, CONSOLIDATED, COMBINED, OR REPRESENTATIVE ACTIONS, ARBITRATIONS, OR PROCEEDINGS AS A PRIVATE ATTORNEY GENERAL ARE NOT PERMITTED. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by applicable law. This Paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Arbitration Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under applicable 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 this Arbitration Agreement shall continue in full force and effect.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tocaya.
(m) Small Claims Court. Notwithstanding anything to the contrary contained in this Arbitration Agreement, either you or Tocaya may bring an individual action in small claims court.
(n) Claims Not Subject To Arbitration. Notwithstanding anything to the contrary contained in this Arbitration Agreement, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement.
(o) Courts. In the event any litigation should arise between you and Tocaya in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, or in any circumstances where this Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit for such purpose to venue in and the personal jurisdiction of the courts located within Los Angeles County, California.
(a) Governing Law. These Terms and Conditions shall be governed by and construed in accordance with the substantive laws of the State of California, without regard to principles of conflict of laws. Tocaya and you also agree to apply The California Arbitration Act (“CAA”) which regulates private arbitration in California. See Cal. Civ. Proc. Code § 1280 et seq.
(b) Notice. Where Tocaya requires that you provide an e-mail address, you are responsible for providing Tocaya with your most current e-mail address. In the event that the last e-mail address you provided to Tocaya is not valid, or for any reason is not capable of delivering to you any notices required or permitted by these Terms and Conditions, Tocaya’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Tocaya only at the following address: Tocaya Organica, LLC d/b/a Tocaya, 1201 West 5th Street, Suite T-400, Los Angeles, California 90017, with a copy to email@example.com. Such notice shall be deemed given when received by Tocaya by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
(c) Waiver. Any waiver or failure to enforce any provision of these Terms and Conditions on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(d) Severability. If any provision of these Terms and Conditions is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms and Conditions will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by applicable law.
(e) Export Control. You may not use, export, import, or transfer any part of the App except as authorized by U.S. law, the laws of the jurisdiction in which you obtained such App, and any other applicable laws. In particular, but without limitation, no part of the App may be exported or re-exported (i) into any United States embargoed countries, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using the App, you represent and warrant that (A) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (B) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use the App for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Tocaya are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer any products or the App or any other technology of Tocaya, either directly or indirectly, to any country in violation of such laws and regulations.
(f) Electronic Communications. The communications between you and Tocaya use electronic means, whether you use the App or send Tocaya e-mails, or whether Tocaya posts notices on any part of the App or communicates with you via e-mail. For contractual purposes, you (i) consent to receive communications from Tocaya in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Tocaya provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
(g) Release. You hereby release Tocaya, its affiliates and each of their officers, directors, employees, and agents and their successors from claims, demands, any and all losses, damages, rights, and actions of any kind, including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from your use of the App, Content or Rewards Program, including but not limited to, any interactions with or conduct of other users or third-party websites of any kind arising in connection with or as a result of these Terms and Conditions or your use of the App, Content or Rewards Program. If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.
(h) Assignment. The Terms and Conditions, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Tocaya’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. All or any of Tocaya’s rights and obligations hereunder may be assigned to a subsequent owner or operator of this App in a merger, acquisition or sale of all or substantially all of Tocaya’s assets.
(i) Force Majeure. Tocaya shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes, failures of the Internet or shortages of transportation facilities, fuel, energy, labor or materials.
(j) Questions, Complaints, Claims. If you have any questions or complaints with respect to the App, Rewards Program or services provided by Tocaya, please contact us by writing to: Tocaya Organica, LLC d/b/a Tocaya, 1201 West 5th Street, Suite T-400, Los Angeles, California 90017, with a copy to firstname.lastname@example.org will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
(k) Consumer Complaints. In accordance with California Civil Code §1789.3, 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, California 95814, or by telephone at (800) 952-5210.
(l) Entire Agreement. These Terms and Conditions are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.