GIFT CARD TERMS & CONDITIONS
Last Updated: January 1, 2022
These Gift Card Terms and Conditions (this “Agreement”) describe the terms and conditions that apply to the use of Tocaya physical plastic gift cards (“Physical Gift Cards”) and electronic gift cards (“E-Gift Cards”, and collectively with Physical Gift Cards, the “Cards”).
This Agreement is between you (“Cardholder,” “you,” or “your”) and Tocaya Organica, LLC, d/b/a Tocaya, the issuer of the Cards (“Issuer,” “we,” “us,” or “our”). By purchasing, loading, reloading, accepting, or using your Card, you agree to be bound by this Agreement. If you do not agree with this Agreement, do not purchase, load, reload, accept, or use the Card.
PLEASE READ THIS Agreement as it includes a binding arbitration agreement in Section 15, a class action waiver, and limitations on liability and damages that apply to your use of the Card. If you do not agree to this Agreement, then do not purchase, load, reload, accept or use your Card.
1. About Your Card.
Cards are issued by Issuer. Issuer is responsible for the operation and maintenance of the Card program and is the sole legal obligor to the Cardholder. Physical Gift Cards are valid for use only if obtained from a Tocaya restaurant, www.tocaya.com, or another authorized distributor. E-Gift Cards are currently issued only through the Tocaya App or Tocaya.com. Additionally, you can save Physical Gift Card information into the Tocaya App for use as an E-Gift Card through the Tocaya App. The term “E-Gift Card” as used in this Agreement includes Physical Gift Cards for which the Physical Gift Card information is saved into the Tocaya App. When you purchase, use, load or reload an E-Gift Card or save Physical Gift Card information into the Tocaya App, the Terms and Conditions for Tocaya App and Rewards Program, which can be found HERE, will also apply. Cards are not valid if obtained from unauthorized sellers or resellers, including through Internet auction sites. Resale of Cards is strictly prohibited. Cards are not debit or credit cards. The value on your Card is not insured by the Federal Deposit Insurance Corporation (FDIC), nor does it earn interest. The purchase of Cards does not qualify for points under the Issuer’s loyalty rewards program. Purchases (excluding beer and wine) made using Cards as a form of payment do qualify for points under the Issuer’s loyalty rewards program.
1. Balance Inquiries/Date of Issue.
For balance inquiries, please contact us by phone at 888-834-6872 or by email at info@tocaya.com, or visit any Tocaya restaurant. The balance you receive when inquiring is an estimate only. In most cases, the balance is adjusted 24 hours after you make a purchase, but there may be occasions when the balance adjustment is delayed. Issuance dates for Cards are available by emailing info@tocaya.com or by contacting us by phone at 888-834-6872.
1. Expiration and Fees.
Cards never expire. We do not charge any fees related to the Cards. Issuer reserves the right to refuse to honor any Card in the event of a disputed credit card charge, bounced check, or other failure of consideration.
1. Redemption/Use.
Except as set forth in this Agreement, cards are redeemable and can be used for purchases of food, beverages, other eligible products and services, or as allowed by law. Cards can be used in store at Tocaya restaurants, for online ordering and for ordering through the Tocaya App. Cards cannot be used to purchase another Card or towards previously purchased goods or services.
No Consolidation.
You may not consolidate or combine multiple Cards to purchase a new Card. We do not consolidate or combine multiple Cards into one Card.
1. Saving Card Information into the Tocaya App Does Not Redeem Card.
Saving Physical Gift Card information into the Tocaya App does not redeem the value of the Physical Gift Card. Saving the information into the Tocaya App makes the Physical Gift Card available for use through the Tocaya App.
1. Saving Card Information into the Tocaya App Does Not Limit Card to Use Through App.
Saving Physical Gift Card information to your Tocaya App account does not limit you to using the Card through the Tocaya App. You can use the newly created E-Gift Card and also continue to use the corresponding Physical Gift Card.
Exchange of Certain Cards.
Certain Physical Gift Cards previously issued by Issuer (“Prior Cards”) may not be compatible with the Tocaya App and you may not be able to save the Physical Gift Card information into the Tocaya App for use as an E-Gift Card. If you are rightfully in possession of a Prior Card and would like to exchange such Prior Card for a Card that is compatible with the Tocaya App and that can be used as an E-Gift Card, please send an e-mail to info@tocaya.com or contact us by phone at 888-834-6872.
1. Refunds.
Cards are not refundable or redeemable for cash unless required by law. Please consult your local law.
1. Replacement.
You should treat your Card like cash and not disclose your Card information or your Tocaya App account information to anyone. If your Card, Card information or Tocaya App account information is lost or stolen, anyone who obtains possession of it may use your Card. You are solely responsible for keeping your Tocaya App account information safe and for any activity conducted under your account. The value of any lost, stolen, damaged, or destroyed Card will not be replaced or replenished, except with proof of purchase and only up to the amount on the Card at the time it was lost, stolen, damaged, or destroyed. If you suspect someone has copied or stolen your Card, Card information or Tocaya App account information, contact us by phone at 877-862-2926 immediately.
1. No Returns.
Subject to the terms herein, you may not return or cancel your Card after it is purchased.
1. Reloadable.
All Cards are reloadable – value may be added to your Card at any Tocaya location. E-Gift Cards may be also be reloaded through the Tocaya App. You can link a payment method to your Tocaya App account and use that payment method to reload your E-Gift Card. We will send you an email after each reload to let you know your E-Gift Card has been reloaded. Once the dollar value is loaded or reloaded, the transaction cannot be reversed. There may be a delay from the time you pay the amount to be loaded onto your Card and those funds being available for use.
1. Limitations.
You may not have more than $500 in value on your Card at any time, and no more than $2,000 may be associated with any Card in a single day. This means that the activity on any Card cannot exceed $2,000 over the course of a day. The total value you may load onto all of your Cards, together with the value of any new Cards that you may purchase, may not exceed $10,000 on any given day.
1. Our Privacy Policies.
Information that you provide when purchasing a Card is subject to the following Privacy Policy, as incorporated herein: https://www.tocaya.com/privacy-policy.
1. Arbitration Agreement; Class Waiver; Waiver of Trial by Jury.
Please read the terms of this Section 15 (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 (m) of this Arbitration Agreement, any dispute, controversy, or claim, whether at law or equity, arising out of or relating in any way to this Agreement or the use, purchase, loading, reloading or acceptance of a Card that cannot be resolved informally or in small claims court, including the breach, termination, enforcement, interpretation, or validity of this Agreement 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 Tocayas’ 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 this Agreement or through the use, purchase, loading, reloading or acceptance of a Card.
(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 info@tocaya.com 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 Tocayas’ 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 the this Arbitration Agreement shall continue in full force and effect.
(k) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Tocaya.
(l) 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.
(m) 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.
(n) 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.
1. Disclaimer of Warranties.
ISSUER AND ITS AFFILIATES EXPRESSLY DISCLAIM 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. ISSUER AND ITS AFFILIATES MAKE NO WARRANTY THAT USE OF THE CARDS WILL MEET YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ISSUER, ITS AFFILIATES, OR OTHERWISE 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.
1. Limitation of Liability.
YOU UNDERSTAND AND AGREE THAT, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL ISSUER 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 CARDS, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT, OR OTHERWISE. IN THE EVENT THAT A CARD IS RENDERED NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, SHALL BE THE REPLACEMENT OF SUCH CARD. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 17 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.
1. Indemnification.
You agree to indemnify, defend, and hold harmless Issuer and its agents, employees, representatives, licensors, affiliates, officers, and directors, from and against any and all claims, liabilities, damages, losses, costs, expenses, and 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 the Cards; (b) your violation of this Agreement; or (c) your violation of any rights of any third party in connection with your use of the Card.
1. Governing Law.
This Agreement 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. Issuer and you also agree to apply The California Arbitration Act, which regulates private arbitration in California. See Cal. Civ. Proc. Code § 1280 et seq.
1. Assignment.
The terms and conditions of this Agreement are binding upon you and any of your successors or assigns and anyone to whom you transfer or gift a Card or share a Card with via the Tocaya App. Use of any Card (including shared Cards) constitutes acceptance of the terms and conditions of this Agreement. All or any of Issuer’s rights and obligations hereunder may be assigned to a successor in interest to Issuer in a merger, acquisition, or sale of all or substantially all of Issuer’s assets.
1. Changes to this Agreement.
Tocaya may modify this Agreement at any time by any means of notice deemed to be reasonable under the circumstances, in our sole discretion, including by posting the revised version online (each a “Revised Version”). Any Revised Version will be effective as of the time it is posted or otherwise communicated to you, but no Revised Version will apply retroactively. Your continued use, loading, or reloading of the Card constitutes your acceptance of such Revised Version. PLEASE CHECK THIS AGREEMENT PRIOR TO ANY USE, LOAD, RELOAD, OR ACCEPTANCE OF THE CARD.
1. Fraud.
Issuer reserves the right to refuse to honor a Card where Issuer reasonably suspects that use of the Card is unauthorized, fraudulent, or otherwise unlawful.
1. Conflicts.
Except as otherwise provided in this Agreement, if any provision contained in this Agreement conflicts with any provision in any of the terms and conditions to which you are subject with the Issuer, the provision contained in this Agreement shall govern and control.
1. Miscellaneous.
(a) Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
(b) Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement 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.
(c) Force Majeure. Issuer 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.
(d) Questions; Complaints. If you have any questions or complaints with respect to the Cards, 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 info@tocaya.com. We 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.
(e) Entire Agreement. This Agreement is 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.
