Terms of Use & Terms of Sale
Updated: Effective as of August 22, 2024
1. Terms of Use
IMPORTANT NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS AND CONDITIONS CONTAIN A CLASS ACTION WAIVER AND JURY TRIAL WAIVER AND REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS IN CERTAIN JURISDICTIONS TO RESOLVE CLAIMS. PLEASE SEE THE DISPUTE RESOLUTION SECTION (INCLUDING SUBSECTIONS) FOR COMPLETE DETAILS AND REVIEW CAREFULLY. PLEASE READ THESE ENTIRE TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS WEBSITE. These Terms and Conditions incorporate by reference the Privacy Policy, and any capitalized terms in that agreement shall have the same meaning here.
2. General
Welcome to the website of TOMS Shoes, LLC (including any of its subsidiaries or corporate affiliates, collectively, "TOMS," "we" or "us"). Any person accessing or using the website and any associated webpages (collectively, the "Website") is referred to as "you".
We ask that you review and abide by these Terms and Conditions, our Privacy Policy, our Terms of Sale, and any other terms and conditions that may appear on the Website from time to time. By using this website of TOMS, you accept and agree to be bound and abide by these Terms and Conditions, our Privacy Policy, our Terms of Sale, and any other terms and conditions that may appear on the Website.
This Website and its Content (as defined below) are intended solely for personal and non-commercial use by you. Any use of this Website or its Content other than for personal and non-commercial purposes is prohibited.
3. Privacy
Please take a few moments to review our Privacy Policy which describes the collection and use of information on the Website.
4. Intellectual Property Rights; Content
Unless otherwise noted, the Website, its features, functionality, and all materials, including, but not limited to, images, text, graphics, logos, descriptions, data, illustrations, designs, icons, photographs, video clips, audio clips, sounds, files, trademarks, trade dress, software, specifications, advertisements, titles, names, written materials, User Generated Content (as defined below), Digital Content (as defined below) and any other materials that appear as part of or on the Website (collectively, the "Content"), are protected by copyright, trade dress, and/or trademark laws of the United States, and all worldwide rights, title and interest in and to the Website and Content are owned controlled, and/or licensed by TOMS®. Please note that certain trademarks, product names, company names, logos, service marks or material displayed on the Website may be owned by third parties, and you understand that you are not authorized to display or use such without the prior written permission of the relevant third party.
TOMS, One for One,
Except as may be expressly permitted by TOMS®, you may not use, reproduce, copy, publish, transmit, distribute, display, modify, perform, download, license, create derivative works of, reverse engineer, frame, transfer, sell or participate in any sale of, or exploit in any way, in whole or in part, any Content, the Website, or any related software; provided, however, that you may download certain Content as indicated on the Website for your personal, non-commercial use only. You are hereby granted a non-exclusive, limited and revocable license to view the Content on the Website, but only while accessing the Website. In addition, you are hereby granted a right to download certain Content as expressly permitted by TOMS on the Website, including but not limited to the Digital Content provided as part of the TOMS Rewards Program set forth in Section 27 below; provided, however, that where TOMS expressly permits you to download certain Content as indicated on the Website you may do so only for your personal, non-commercial use and subject to any additional restrictions provided by TOMS either in these Terms and Conditions, on the Website or elsewhere as may be indicated by TOMS. No right, title or interest in or to any downloaded Content or software is transferred to you as a result of any such permissible downloading or copying.
The Content may contain omissions, errors, or may be out of date. The Content is provided for informational purposes only and TOMS® is under no obligation to keep the Content updated. TOMS® may, in its sole discretion, change, delete, update, modify or otherwise alter the Content at any time without providing notice to you.
5. User Generated Content
As used in this Section, (i) "User Generated Content" means messages (including e-mail), data, information, text, music, sounds, photos, graphics, images, designs, icons, video or audio clips, files and comments, including but not limited to feedback, suggestions, reviews, questions or other material or content regarding our existing products, marketing strategies, business and customer service; and (ii) "Interactive Areas" means reviews, forums, blogs, chat areas, bulletin boards or other interactive areas in which you or other Website users may post Comments, content, messages, materials or other items on the Website.
6. Generally
By posting, distributing, sending or displaying User Generated Content to the Website, you:
- hereby grant to TOMS® a non-exclusive, royalty-free, perpetual, transferable, irrevocable, fully paid-up, worldwide, and sublicenseable right to use, copy, reproduce, modify, adapt, translate, distribute, publish, create derivative works of, display, perform, and otherwise disclose or incorporate into other works, the User Generated Content for any purpose to the extent permissible by applicable law;
- grant TOMS® and its subsidiaries the right (but not the obligation) to use your name in connection with such User Generated Content, subject to TOMS®'s Privacy Policy;
-
represent and warrant that:
- you own and control all of the ownership rights to the User Generated Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute such User Generated Content on or through this Website;
- such User Generated Content is true, accurate, complete, and not misleading and does not infringe or otherwise violate or breach any applicable laws or regulations; and
- the usage, publication and posting of such User Generated Content does not violate these Terms and Conditions and will not and could not violate any rights of, or cause or could cause injury to, any third person or entity; and
- further grant TOMS® the right to pursue before any appropriate forum any person or entity that violates TOMS®'s or your rights under any applicable law in the User Generated Content.
User Generated Content submitted by you is deemed non-confidential and TOMS® is under no obligation to treat such User Generated Content as proprietary information. Without limiting the foregoing, TOMS® reserves the right to use the User Generated Content as it deems appropriate, including, without limitation, deleting, rejecting, or refusing to post it. TOMS® is under no obligation to offer you any payment or compensation for User Generated Content, respond to any User Generated Content or to attribute authorship of User Generated Content to you. If, nonetheless, under any applicable law, it is determined that you retain moral rights in the User Generated Content which you have posted to the Website, you hereby agree that:
- you won't require that any personally identifying information be used in connection with the User Generated Content;
- you won't oppose the publication, use, modification or deletion of the User Generated Content by TOMS®; and
- you waive and will not claim or assert any entitlement to any moral rights in any of the User Generated Content, to the extent permissible under applicable law.
7. Interactive Areas
This Website may contain Interactive Areas. If TOMS® provides such Interactive Areas, you are solely responsible for your use of such Interactive Areas and you use them at your own risk. By way of example, and not as a limitation, you agree that when using any of the Interactive Areas, you will not post, upload, transmit, distribute, store, create or otherwise publish any of the following:
- Material that is sexually explicit, violent, derogatory, unlawful, libelous, defamatory, slanderous, obscene, pornographic, indecent, lewd, harassing, threatening, an invasion of the privacy or publicity rights of a third party, abusive, inflammatory, fraudulent or otherwise objectionable;
- Material that promotes illegal drugs, tobacco or firearms use;
- Material that constitutes hate speech or encourages or provides instructions for a criminal offense, violates the rights of any individual or group, or that otherwise creates liability or violates any applicable local, state, national or international laws or regulations;
- Material that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any third party;
- Material that uses the names or likenesses of persons living or dead or their property without their prior express written permission or that impersonates any person or entity or otherwise misrepresents your affiliation with any person or entity;
- Advertising or links to other commercial websites;
- Names, postal addresses, telephone or telecopy numbers, email addresses, driver licenses, Social Security, national identity, passport and/or credit card numbers or other personally identifiable information of any third party;
- Viruses, corrupted data or other harmful, disruptive or destructive files;
- Material that is unrelated to the topic of the Interactive Areas in which such material is posted;
- Material that communicates messages inconsistent with the goodwill of TOMS® or which otherwise violates these Terms and Conditions; or
- Material that, in the sole judgment of TOMS®, is objectionable or which may expose TOMS®, you or other Website users to any harm, prejudice or liability.
To the extent possible under applicable law, TOMS® takes no responsibility and assumes no liability for any User Generated Content posted, published, displayed or uploaded by you, or for any loss or damage thereto, nor is TOMS® liable for any errors, mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography, profanity or racial or gender slurs you may encounter or any other type of content posted, published, displayed or uploaded by third parties in violation of these Terms and Conditions. As a simple provider of the Interactive Areas, to the extent permissible by applicable law, TOMS® is not and shall not be liable for any statements, representations or User Generated Content provided by its users on this Website. TOMS® has no legal or contractual obligation to screen, edit or monitor any of the User Generated Content posted, published, displayed or uploaded to or through any Interactive Area and makes no claim that it will do so. However, TOMS® reserves the option and right, at its sole discretion, to remove or modify any User Generated Content posted or stored on this Website without any prior notice of any type whatsoever and for any reason whatsoever.
Any use of the Website, including the Interactive Areas, in violation of these Terms and Conditions may result in termination or suspension of your permission to use the Website and/or any other website(s) owned or operated by TOMS®.
8. Unsolicited Ideas Submissions
TOMS welcomes your feedback regarding our existing products, marketing strategies, business and customer service, subject to Section 4 above. Feel free to contact us with your valuable feedback.
However, our company policy does not allow us to accept or consider unsolicited ideas, suggestions, proposals, comments or materials, including for new or improved products, services or technologies, advertising campaigns, promotions, One for One ideas, product enhancements, processes, materials, designs, marketing plans, designs, artwork or new product names (collectively, "Submissions"). Please do not submit any Submissions in any form to TOMS or any of its employees. Since TOMS is constantly developing new ideas, strategies and products, we hope that you will understand that this policy is intended to help TOMS avoid potential misunderstandings or disputes when TOMS' products, lines of business or marketing strategies might seem similar or even identical to Submissions made to TOMS.
If, despite our policy, you still provide your Submissions to TOMS, the following terms shall apply to your Submissions, regardless of what your communication says. You agree that:
- TOMS shall automatically solely and exclusively own the content and form of all Submissions and such shall not be returned to you;
- TOMS may use, copy, redistribute and disclose the Submissions for any purpose in any manner, without compensation to you or any other person or party; and
- TOMS is not and shall be under no obligation to: (i) pay any compensation for any Submissions; (ii) attribute any Submissions to you; (iii) respond to any Submissions; or (iv) keep any Submissions confidential.
9. Third Party Content; Links To Third Party Websites
Any Content, products or services posted on, transmitted through, or linked to by third parties from the Website are the sole responsibility of the third-party originator of such Content. TOMS® does not control, approve, sponsor or endorse any third-party Content, products or services on or linked through the Website and we make no representations regarding, and are not liable or responsible for the accuracy, completeness, timeliness, reliability or availability of any third-party Content, products or services. Links to any third-party Content are provided for your convenience only. If you choose to access any third-party Content, you agree that you do so at your own risk and TOMS® is not responsible or liable for any loss or damage of any sort that you may incur as a result of any third-party Content, products or services.
This Website may contain links to third-party services and resources. You acknowledge that (a) TOMS® is not responsible for the contents of any linked website or any link contained in a linked website, or any changes or updates to such websites; and (b) TOMS® is not responsible for any other form of transmission received from any linked website. TOMS® is providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by TOMS® of the website. Any concerns regarding any such link should be directed to the particular third-party website.
10. Access To And Use Of Website; Acceptable Use Policy
We do not guarantee that the Website, or any Content on it, will always be available or uninterrupted. Access to the Website is permitted on a temporary basis. We may suspend, withdraw, discontinue or change any or all part of the Website without notice. We will not be liable to you if, for any reason, our Website is unavailable at any time or for any period.
Although we make reasonable efforts to update the information on the Website, we make no representations, warranties or guarantees, whether express or implied, that the content on the Website is accurate, complete or up to date.
11. Acceptable Use Policy
By using the Website, you agree to comply with all content and conduct standards set forth in these Terms and Conditions. By way of example and not limitation, you agree not to:
- modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works of, frame, use, transfer or sell any information, products, services or Content provided through or obtained from the Website, including without limitation, engage in the practice of "screen scraping," or any other similar activity;
- hack into the Website, the server on which the Website is stored, or any server, computer or database connected to the Website, or attack the Website via a denial-of-service attack or a distributed denial-of service attack;
- modify another website so as to falsely imply that it is associated or affiliated with the Website;
- damage, disable, overburden, transmit any worms, viruses, trojans, logic bombs or other material of a destructive nature, or interfere with any other party's use and enjoyment of the Website;
- violate any applicable laws, rules or regulations in your jurisdiction;
- use any automatic or manual conduct, device, process, software, program, algorithm, methodology or routine, including but not limited to a "robot," "spider" or other similar process or functionality to interfere (or attempt to interfere) with, damage, disable or impose an unreasonable burden or load on, the operation of the Website; or
- use the Website for any illegal, obscene, abusive, offensive, harassing, improper or objectionable purpose, to sell or offer to sell any goods or services, to conduct or forward surveys, contests, or chain letters, or for any purpose that is prohibited by these Terms and Conditions.
12. Account Security
For any portion of the Website that requires a user name and/or password, you are responsible for all use of your account (under any user name or password) and for ensuring that all use of your account complies fully with the provisions of these Terms and Conditions. You shall be responsible for protecting the confidentiality of your user name(s) or password(s), if any.
13. Mobile Terms & Conditions
TOMS offers its customers mobile alerts regarding company information, products, events, and cart reminders by SMS message (the "Service") on 73780. By participating in the Service, you are agreeing to these Terms and to the Privacy Policy.
14. Signing Up and Opting-In to the Service
Enrollment in the Service requires you to provide your mobile phone number and to agree to these terms and conditions. You may not enroll if you are under 18 years old. Before the Service starts, you will need to agree to these Terms. TOMS reserves the right to stop offering the Service at any time with or without notice.
15. By opting into the Service, you:
- Authorize TOMS to use auto dialer or non-auto dialed technology to send recurring text messages to the mobile phone number associated with your opt-in (i.e., the number listed on the opt-in form or, if none, the number from which you send the opt-in, or, if none, the number on file for the account associated with your opt-in).
- Acknowledge that you do not have to agree to receive messages as a condition of purchase.
- Confirm that you are the subscriber to the relevant phone number or that you are the customary user of that number on a family or business plan and that you are authorized to opt in.
- Consent to the use of an electronic record to document your opt-in. To request a free paper or email copy of the opt-in or to update our records with your contact information, 800-975-8667. To view and retain an electronic copy of these Terms or the rest of your opt-in, you will need (i) a device (such as a computer or mobile phone) with Internet access, and (ii) and either a printer or storage space on such device. For an email copy, you'll also need an email account you can access from the device, along with a browser or other software that can display the emails.
16. Content You May Receive
Once you affirm your choice to opt-in to the Service on 73780, your message frequency may vary. You may receive alerts about:
- Sale promotions
- Event information
- Product launch announcements
- Cart reminders
- Back in stock alerts
- Price drop alerts
- Low inventory alerts
17. Charges and Carriers
Message and data rates may apply. Please consult your service agreement with your wireless carrier or contact your wireless carrier to determine your phone's pricing plan and the charges for sending and receiving text messages. You acknowledge that you are responsible for any message, data or other charges incurred (usage, subscription, etc.) as a result of using the Service.
Supported carriers are AT&T, T-Mobile, Verizon Wireless, Sprint, Boost, Virgin Mobile, U.S. Cellular, Cricket, Alltel, Cincinnati Bell, Cellcom, C-Spire, nTelos, MetroPCS, and other smaller regional carriers. The Service may not be available on all wireless carriers. TOMS may add or remove any wireless carrier from the Service at any time without notice. TOMS and mobile carriers are not responsible for any undue delays, failure of delivery, or errors in messages.
18. To Stop the Service
You and TOMS agree that to stop receiving text messages from TOMS, you must text the word STOP to 73780 any time or reply STOP to any of the text messages you have received from TOMS. You and TOMS agree that other means of opting out or revoking consent to receive text messages are not reasonable. After texting STOP to 73780, you will receive one additional message confirming that your request has been processed.
19. Questions
You can text HELP for help at any time to 73780. This will provide you with a toll-free customer contact phone number 800-975-8667.
20. Changes to Terms
These Mobile Terms and Conditions are subject to change at any time without notice.
21. DMCA – Copyright Complaint Policy; Infringement Notification
If you believe in good faith that certain Content on the Website infringes your copyright rights, please provide the written information requested below. The procedure outlined below is exclusively for notifying TOMS® that your copyrighted material has been infringed.
Please provide the following information in the following order (including Section Numbers):
- A clear identification of the copyrighted work you claim was infringed. Please describe the work, and where possible include a copy or the location (e.g., URL) of an authorized version of the work.
- A clear identification of the material you claim is infringing the copyrighted work, and information that will allow us to locate that material on the Website, such as a link to the infringing material.
- Your contact information so that we can reply to your complaint, preferably including your name, address, email address and telephone number.
- Include the following statement: "I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. This information and notification is accurate. Under penalty of perjury, I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."
- The notice must be signed by the person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notices of claims of copyright infringement on the Website should be emailed or mailed to:
TOMS Shoes, LLC
Attn: Legal Department
5800 Uplander Way, Suite 100
Culver City, CA 90230
or
legal@TOMS.com, RE: Copyright Infringement
We suggest that you consult an attorney before filing a notice or counter-notice. Also, please note that you may be liable for damages (including, but not limited to, costs and attorneys' fees) if you make a false claim of copyright infringement.
We will review and address all notices that comply with the requirements above and applicable law, including but not limited to the Digital Millennium Copyright Act of 1998.
22. Repeat Infringers
In accordance with applicable law, TOMS® has adopted a policy of terminating, in appropriate circumstances and at TOMS®'s sole discretion, subscribers or account holders who are deemed to be repeat copyright infringers. TOMS® may also limit or restrict access to the Website and/or terminate the accounts of any users who are deemed by TOMS® to infringe any intellectual property rights of others, whether or not there is any repeat infringement, in TOMS®'s sole discretion.
23. Indemnification
You agree to defend, indemnify and hold harmless TOMS®, its officers, directors, employees, agents, licensors, suppliers, vendors, manufacturers and distributors (collectively, the "TOMS Parties") from and against any and all claims, actions, demands, charges, complaints, damages, losses, liabilities, costs and expenses (including but not limited to attorneys' fees), arising from or in connection with: (a) your misuse of the Website; (b) any Content submitted, posted, or otherwise provided by you to the Website, any of the TOMS Parties, and/or its agents, third party licensors or licensees, (c) your breach of any provision of these Terms and Conditions or any representations you provide herein, and/or (d) your use of the Website. TOMS® reserves the right to take exclusive control and defense of any claim subject to this indemnification by you, in which event you will cooperate fully with TOMS® in asserting any and all available defenses. This provision does not require you to indemnify any of the TOMS Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Content provided hereunder.
24. Disclaimer; Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WEBSITE AND CONTENT ON THE WEBSITE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TOMS® DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES THE WEBSITE AVAILABLE ARE FREE FROM VIRUSES OR ANYTHING ELSE HARMFUL. FURTHER, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, ADEQUACY, USEFULNESS, RELIABILITY, OR COMPLETENESS OF THE WEBSITE, CONTENT, THE CONTENT OF ANY THIRD-PARTY WEBSITE LINKED TO OR FROM THIS WEBSITE, USER GENERATED CONTENT, SUBMISSIONS, INFORMATION, GIVING INFORMATION MADE BY TOMS® OR ITS GIVING PARTNERS, INFORMATION PROVIDED BY THIRD PARTY VENDORS, OR ANY OTHER ITEMS OR MATERIALS ON THE WEBSITE OR LINKED TO FROM THE WEBSITE.
TOMS® ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF THE CONTENT, INFORMATION, WEBSITE AND MATERIALS SET FORTH ON OR MADE AVAILABLE THROUGH THE WEBSITE, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE, OR ANY THIRD PARTY WEBSITE(S), (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS THAT HOST THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR THIRD PARTY WEBSITE(S), (E) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) BY TOMS® OR ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN THE NETWORK OR ANY CONTENT, INFORMATION AND MATERIALS (INCLUDING BUT NOT LIMITED TO THIRD PARTY WEBSITE(S)) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE FOREGOING.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN, DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
25. Limitation Of Liability
IN NO EVENT SHALL TOMS® OR ITS SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS, VENDORS, MANUFACTURERS OR DISTRIBUTORS (COLLECTIVELY, THE "TOMS RELEASED PARTIES") BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, REVENUE OR PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, ARISING FROM OR IN CONNECTION WITH (A) THE USE OF, OR INABILITY TO USE, THE WEBSITE; (B) THE PROVISION OF OR FAILURE TO PROVIDE CONTENT, OR SOFTWARE AVAILABLE FROM, ON OR THROUGH THE WEBSITE OR ANY THIRD-PARTY WEBSITE(S); OR (C) THE CONDUCT OF OTHER USERS OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME COMPLETE RESPONSIBILITY FOR YOUR USE OF THE WEBSITE. YOUR SOLE REMEDY AGAINST THE TOMS RELEASED PARTIES FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THAT SAID, IF ANY OF THE TOMS RELEASED PARTIES ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS ARISING OUT OF OR WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE, OR ANY CONTENT ON THE WEBSITE, THE TOMS RELEASED PARTIES' TOTAL LIABILITY SHALL NOT EXCEED $100.00 IN THE AGGREGATE. NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS OF LIABILITY DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
26. Promotions
Any and all offers or promotions advertised on this Website are void where prohibited, and are subject to the posting of any official rules to such offers or promotions.
27. TOMS Rewards
ELIGIBILITY: TOMS Rewards ("Program") is open to legal residents of the fifty (50) United States and District of Columbia, 13 years of age or older. Employees, officers and directors of TOMS.com, LLC and its affiliated companies are not eligible to participate. VOID WHERE PROHIBITED BY LAW.
PROGRAM REGISTRATION: In order to be eligible to earn and redeem points, you must first create a TOMS.com account by completing the free registration process on the Website. By creating an account on TOMS.com, you will automatically be enrolled in TOMS rewards. Limit one (1) account per person/email address.
HOW TO EARN POINTS: You can earn points as part of this Program by participating in various activities listed on the Website and on TOMS.com/us/TOMS-Rewards ("Rewards Website"), including, but not limited to, social media activities and product purchases (each, a "Qualified Activity" and, collectively, "Qualified Activities"). Each time you return to the Website to complete one or more Qualified Activities, you must login in order to receive credit for those completions. The types and duration of Qualified Activities will vary from time to time. The latest information about Qualified Activities will be available on the Rewards Website, so please check back regularly.
- Purchases: If you wish to earn points through purchases on the Website, Good will earn one (1) point for every USD $1 spent, Gooder will earn 1.25 points for every USD $1 spent, and Goodest will earn 1.5 points for every USD $1 spent on qualifying purchases on the Website when you are logged into your Program account on the Website. Qualifying purchases include regular and sale priced merchandise but exclude purchases of gift cards (both physical and electronic). Taxes and shipping and handling charges are also excluded when calculating qualifying purchase amounts. You will earn points on the qualifying purchase subtotal, after all discounts have been applied but before applicable taxes, shipping and handling.
- When you make a purchase, your order will appear on your dashboard showing “Pending Points.” This means you have not been awarded your points yet. You will be awarded your points when your order has shipped.
- When products are returned for a refund to the original payment method, points will be deducted from your account for the amount of return, net of taxes, shipping and handling when the product(s) is/are received at the TOMS warehouse (note: your account may have a negative balance if the dollar amount returned is greater than your current points account balance). When products are returned for store credit, points will not be deducted, and the points accrued during the original purchase will remain in your account. Points may be earned on qualifying purchases when TOMS Gift Cards are redeemed.
- Other Qualified Activities: The number of points you can earn by completing a non-purchase Qualified Activity will be stated on the Rewards Website. There may be limitations placed on how often and/or how many total points you can earn by completing any Qualified Activity, and any such limitations will be stated on the Rewards Website.
- Social Media Qualified Activities: You can earn points through the various social media Qualified Activities listed on the Rewards Website. Note also that your TOMS account must be connected to your applicable social media accounts in order to earn points. As with other Qualified Activities, there may be limitations placed on how often and/or how many total points you can earn by completing any Social Media Qualified Activity, and any such limitations will be stated on the Rewards Website. You should be careful that your behavior when participating in any of these Qualified Activities will not be deemed "spamming" or in violation of any of the applicable social media platforms' terms and conditions. In the event TOMS.com determines, in its sole discretion, that you are abusing these Social Media Qualified Activities, your account may be terminated and any points earned for these Qualified Activities will be forfeited.
- You agree not to abuse the Rewards Website and any social media platforms connected to the Program by conduct which is detrimental to the interests of TOMS.com, including without limitation, attempting to accrue points or redeem points in a manner inconsistent with these Rewards Terms or the intent of these Rewards Terms, attempting to earn points through illegitimate channels, participating in redemption fraud, or tampering with the Program or its tools.
- TOMS.com reserves the right to add, modify and/or delete any Qualified Activity, the points you can earn in connection with completing any Qualified Activity and/or any limitation placed on total points you can earn in connection with any Qualified Activity. For a complete list of Qualified Activities and the corresponding number of points you can earn for each Qualified Activity, please visit the Rewards Website.
- Recently purchased items will have pending points. Your points will be awarded after your order has shipped or deposited into your account following confirmation of a completed Qualified Activity. Your points deposit and new balance will appear on the Rewards Website. You can go online and view your points balance at any time. Points cannot be transferred or redeemed for cash. Qualified Activity completions or registrations or points generated by script, macro or other automated means will be void. TOMS' decision with respect to the number of points accumulated are final and binding.
MEMBER LEVELS/POINT LIFE CYCLE: There are three (3) levels within the Program which are determined by the number of points that you accumulate in your account (each, a "Member Level"). By creating an account, you will be automatically enrolled in the Program at Good status. Earn 125 points and you will proceed to Gooder status. Earn 350 points and you will proceed to Goodest Status.
All Program participants will receive exclusive benefits, such as coupons, exclusive sweepstakes, early access to TOMS.com sales, and more. Goodest status receives additional benefits including Free Shipping for a year.
NOTE: Program participants will be sent emails about up-coming sales and promotions but only if you're opted in for TOMS Marketing emails. Otherwise, you probably won't hear about these sales.
There is an email sign-up at the bottom of every page on TOMS.com.
FREE SHIPPING: Once you've reached Goodest status, you get free shipping for as long as you remain in this tier subject to the following conditions. This excludes orders that contain only gift card(s). It is only valid on orders shipped to the contiguous United States with Standard shipping only to one shipping address. Choosing any shipping method other than Standard shipping may result in normal shipping and handling charges. Offer is not valid on shipments to Alaska, Hawaii, Puerto Rico, international shipments or other shipments outside the contiguous United States. No promotional code is necessary; offer will automatically be reflected in your shopping bag, but you must be logged into your Rewards account. Offer not valid on previously purchased merchandise. TOMS reserves the right to extend, modify, or discontinue this offer at any time.
Your Points to Redeem are the number of points you have available to redeem rewards. This number decreases with each reward you redeem and will increase with the completion of Qualified Activities.
POINT EXPIRATION: Once you register for the Program, if you do not make a purchase on the Website while logged into your TOMS.com account within twelve (12) months of your last purchase, your unused Redeemable points will automatically expire. TOMS may, at its discretion, send you periodic notifications to remind you that your Redeemable points will expire upon the 12th month of inactivity. However, it is your responsibility to monitor your Program account and points status. Please note that making a purchase by redeeming a reward coupon code for free product does not qualify as a "purchase" for the purpose of this determination.
MEMBER LEVEL EXPIRATION: When you sign up for the Rewards Program, you’re automatically Good status. If you earn 125 points during the 12-month period after you enroll, you will move up to Gooder status. If you earn 350 points during the 12-month period after you reach Gooder status, you will move up to Goodest status. If you have not earned 125 points for Gooder status a year, in order to move to Gooder status, you will need to earn 125 points over the next 12-month period (i.e., points needed to move from Good to Gooder do not carry forward from one 12-month period to the next and, if Gooder status is not achieved, “qualifying” points are reset to zero on each anniversary date of when you signed up for the Rewards Program or when your membership level is re-set to a new tier as described below). If you have not earned 350 points for Goodest status within a year, in order to move to Goodest status, you will need to earn 350 points over the next 12-month period (i.e., points needed to move from Goodest to Gooder do not carry forward from one 12-month period to the next and, if Goodest status is not achieved, “qualifying” points are reset to zero on each anniversary date of when you signed up for the Rewards Program or when your membership level is re-set to a new tier as described below).
Once you reach Goodest status, you have 12 months from the date you reached Goodest status to earn 350 additional points in order to maintain that Member status. If you do not earn 350 points during that 12-month period, your Member status will be re-set to Good and you will no longer have access to exclusive Goodest status benefits, including free shipping. You will be able to move back to Goodest status if you earn 350 points within the following 12-month period or any subsequent 12-month period after that, as described above. Once you reach Gooder status, you have 12 months from the date you reached Gooder status to earn 125 additional points in order to maintain that Member status. If you do not earn 125 points during that 12-month period, your Member status will be re-set to Good and you will no longer have access to exclusive Gooder status benefits. You will be able to move back to Gooder status if you earn 125 points within the following 12-month period or any subsequent 12-month period after that, as described above. Good members can never lose their Member Level.
HOW TO REDEEM POINTS: To redeem your points for a reward item, visit the Rewards Website and follow the directions provided. Each reward item has its own specific points value as set forth on the Rewards Website.
REWARDS: Please visit the Rewards Website for a current list of reward items. Once you redeem your points for a reward, your transaction cannot be reversed or refunded. Reward redemptions are final. Reward items will be provided on a first come, first-serve basis and may be subject to availability, so once a reward item has been depleted such reward item may no longer be available. Additional terms and conditions may apply to Rewards and will be set forth on the Rewards Website. Except as may be set forth in Section 4 of the Terms of Sale, Reward items will be provided "as is" with no warranty or guarantee, either express or implied by TOMS. All reward item details are at the sole discretion of TOMS. You cannot transfer, substitute or redeem rewards for cash. TOMS reserves the right to substitute a reward item of comparable or greater value, at its sole discretion. You are responsible for all federal, state and local taxes as well as any other costs or expenses associated with a reward item not specified herein or on the Website as being provided. Rewards are considered taxable income and are subject to local, state and federal taxes. When the value of the reward items for which you have redeemed points reaches USD $600 or more in a calendar year, a 1099 tax form will be generated and mailed to you for tax reporting purposes. TOMS recommends that you keep all account statements sent to you when you redeem points for reward items for your record keeping purposes.
Reward items will be mailed to the mailing address provided at checkout or the email address provided in your Program account, as applicable. Please note that you may be charged shipping and handling fees as noted on the Website (during checkout) for any reward items mailed to you, unless a shipping promotion applies (if any). You are responsible for updating your registration information. No reward items will be shipped to destinations outside the United States. Rewards that can be delivered electronically will be delivered in approximately 48 hours from the date the redemption is fully processed. The Rewards Released Parties (as defined below) shall not be liable for any damages, losses or delays in connection with any shipments.
Reward coupon codes will be reflected in your Program account on the Rewards Website and also issued via email to the email address in your Program account. If a reward coupon code expires, the expiration date will be clearly disclosed and reward coupon code must be used by such expiration date or it will be void. Please follow the instructions provided along with the reward coupon code for your specific redemption instructions. Reward coupon codes will generally automatically be issued within 24 hours after your rewards redemption. Multiple reward coupon codes cannot be combined in a single order. Reward coupon codes are not redeemable towards purchases of gift cards (electronic or physical). The reward coupon code will be applied to the qualifying purchase subtotal, after all discounts have been applied but before applicable taxes, shipping and handling charges.
Reward coupon codes may only be redeemed by the Program member to whom the reward coupon code was issued. Reward coupon codes are not redeemable for cash. Reward coupon codes cannot be applied to previous purchases. Reward coupon codes may not be combined with any other discounts, promotions or offers, except for any shipping promotions available on the Website (if any).
If you choose to use your points to help TOMS support one of its various charitable causes, your points donation will not be tax deductible to you. Decisions with respect to how points will be used for such causes will be determined by TOMS in its sole and absolute discretion.
Gift Cards and discounts given as rewards are subject to terms and conditions specified thereon and in our Terms of Sale, including, but not limited to, any expiration dates.
Experiential rewards are subject to additional terms to be provided by TOMS.
GENERAL CONDITIONS: This Program is not valid with in combination any other programs offered by TOMS. By participating in the Program, you (and, if an eligible minor, your parent or legal guardian) agree (i) to release, discharge, indemnify and hold harmless TOMS, its parents, subsidiaries, affiliates, retailers, advertising and promotion agencies, and all of their respective officers, directors, shareholders, employees and agents (collectively, "Rewards Released Parties") from any liability or damages which may arise out of participation in the Program or out of the acceptance, use, misuse or possession of any Reward or products attained, achieved or received through this Program. All applicable federal, state and local laws and regulations apply.
The Rewards Released Parties are not responsible for late, lost, incomplete, delayed, inaccurate, garbled, undelivered, misdirected points, reward requests, reward items or other errors or problems of any kind relating to or in connection with the Program, whether printing, typographical, technical, computer, network, human, mechanical, electronic or otherwise, including, without limitation, errors or problems which may occur in connection with the administration of the Program, the tabulating of points, the announcement of the Rewards or in any Program-related materials. Persons found tampering with or abusing any aspect of this Program, who are acting in a disruptive or unsportsmanlike manner or who are otherwise not in compliance with these Terms and Conditions as solely determined by TOMS may be removed from the Program and all points will be void. The Rewards Released Parties are not responsible for injury or damage to participants' or to any other person's computer related to or resulting from participating in this Program or downloading materials from or use of the Website.
TOMS reserves the right at any time to modify, suspend or cancel the Program at any time. Any changes TOMS makes will be effective immediately upon notice, which it may give either by posting the new Terms and Conditions on the Website or via e-mail to you. Your participation in the Program after such notice will be deemed acceptance of such changes, so please check back regularly for any updates and changes. All questions or disputes regarding the Program, including without limitation those involving eligibility, participation, fraud and abuse, will be resolved by TOMS.
Your participation in the Program constitutes permission for TOMS and its designees to use your name, biographical information, image, likeness and/or statements about the Program for advertising, trade, promotional and other purposes in any and all media now or hereafter devised, worldwide, in perpetuity, without additional compensation, notification or permission, unless prohibited by law.
PERSONAL INFORMATION: Your personal information collected in connection with this Program will be used in accordance with TOMS' Privacy Policy.
HOW TO CONTACT US: For information about your TOMS Rewards account, to update your account information or to review the most recent terms and conditions, visit TOMS.com and login into your account.
TOMS Shoes, LLC
Attn: TOMS Rewards
5800 Uplander Way, Suite 100
Culver City, CA 90230
Please have the email address you used to join TOMS Rewards when you contact customer service.
28. DISPUTE RESOLUTION
PLEASE READ THIS ENTIRE DISPUTE RESOLUTION SECTION (INCLUDING SUBSECTIONS) CAREFULLY, AS IT INCLUDES A CLASS ACTION WAIVER AND JURY TRIAL WAIVER AND REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS IN CERTAIN JURISDICTIONS.
THE PROCEDURES AND OTHER TERMS SET FORTH IN THIS DISPUTE RESOLUTION SECTION APPLY TO ANY AND ALL CLAIMS, DISAGREEMENTS, DISPUTES OR CONTROVERSIES BETWEEN YOU AND TOMS OR ITS OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, PARENTS, AFFILIATES, SUBSIDIARIES AND/OR RELATED COMPANIES, REGARDLESS OF WHEN SUCH CLAIM AROSE (EACH, A “CLAIM”), INCLUDING BUT NOT LIMITED TO CLAIMS ARISING OUT OF OR RELATING TO THE WEBSITE, TO THE USE OR ACCESS THEREOF, TO OUR ADVERTISING, TO THE PRODUCTS, SERVICES, MATERIALS, PROGRAMS OR OTHER FEATURES OFFERED, ADVERTISED, MARKETED AND/OR SOLD BY TOMS AND/OR TO THESE TERMS AND CONDITIONS.
The provisions of this Dispute Resolution section apply to you and TOMS and its affiliates and related entities. This entire Dispute Resolution section shall survive termination of this agreement or the parties’ relationship or the end of your use of the Site.
A. MANDATORY INFORMAL PRE-SUIT RESOLUTION
TOMS values our customers and seeks to resolve disputes informally where possible. Before filing any lawsuit relating to a Claim, you agree to first send a detailed notice (“Notice”) to TOMS by email at legal@toms.com within the applicable statute of limitations. Your Notice must contain all of the following information: (1) your full name; (2) your address; (3) your telephone numbers; (4) your email address; (5) information sufficient for TOMS to identify any transaction and/or product at issue (e.g., your order number, order confirmation communication, SKU number, etc.); and (6) a detailed description of your Claim, the nature and basis of your Claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice.
Likewise, TOMS agrees that if we have a dispute with you, we will first send a detailed Notice to your e-mail address on file with us. TOMS’ Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue; and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it.
You and TOMS agree to negotiate in good faith, for a period of at least 60 days from the date of the Notice, in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should TOMS request a telephone conference with you in an effort to resolve your claim as part of this informal process, you agree to personally participate (with your counsel if you are represented). Compliance with and completion of this Mandatory Informal Pre-suit Resolution process is a condition precedent to filing any lawsuit or serving an arbitration demand. You and TOMS agree that any action commenced in court or arbitration without first exhausting the Mandatory Informal Pre-Suit Resolution process shall be defective and subject to dismissal at the cost of the party found to have prematurely commenced the action. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. A court shall have the authority to enjoin the filing of any lawsuit concerning a Claim without first providing a Notice or other participating in good faith in this Mandatory Informal Pre-Suit Resolution process.
B. CLASS ACTION WAIVER; JURY TRIAL WAIVER; WHERE PERMISSIBLE, CLAIMS SHALL BE BROUGHT IN COURT ON AN INDIVIDUAL BASIS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TOMS AGREE THAT ANY CLAIM RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS; CLASS ACTIONS AND ANY OTHER CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN ANY SUCH ACTION. You agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. Class actions, private attorney general actions, and other consolidated actions are not allowed. Claims regarding the enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.
Together, the terms in the preceding paragraph shall be called and operate as the “Class Action Waiver.”
WHERE PERMISSIBLE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Claims must be brought in court, and only on an individual basis in accordance with the Class Action Waiver. To the extent permissible under applicable law, any such cases shall be decided by a judge and not a jury; the Parties mutually waive their right to have their Claim decided by a jury.
Solely in the context of arbitration, and as specified in subsection (C) below, if any court or arbitrator determines that this Class Action Waiver is void, unenforceable, or that an arbitration can proceed on a class basis for any other reason, then the Arbitration Clause set forth in this Dispute Resolution section shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
C. ARBITRATION CLAUSE
In jurisdictions where applicable law prohibits the Class Action Waiver from applying to Claims brought in Court, the CLAIM SHALL BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION, RATHER THAN IN COURT.
THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS ARBITRATION CLAUSE. BY AGREEING TO ARBITRATION, YOU AND TOMS ARE NOT LIMITING IN ANY WAY EITHER OF OUR STATUTORY OR COMMON LAW RIGHTS OR POTENTIAL REMEDIES TO WHICH EITHER OF US WOULD BE ENTITLED TO IF OUR CLAIM WERE INSTEAD BEING HEARD IN A COURT.
ANY ARBITRATION WILL BE ADMINISTERED BY NATIONAL ARBITRATION AND MEDIATION (“NAM”) AND GOVERNED BY NAM’S APPLICABLE RULES (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by these Terms and Conditions. You may obtain a form to initiate arbitration as set forth in the NAM Rules available online at www.NAMADR.com, by emailing NAM at commercial@namadr.com, or by requesting them in writing at the Notice address; this form must be personally signed by the party initiating arbitration (and their counsel, if represented). You and TOMS agree that any counsel representing a party in arbitration must comply with the requirements of Federal Rule of Civil Procedure 11(b), and that the arbitrator may impose any sanctions against all appropriate represented parties and counsel if he or she determines a claim is frivolous.
The arbitration shall occur through the submission of documents to one arbitrator. If the Arbitrator determines that a hearing is necessary, the hearing shall be conducted remotely by telephone or video conference. If the Arbitrator determines that an in-person haring is necessary, the hearing will take place in the United States county where you live or work or such other location agreed upon by both parties. Pursuant to the NAM Rules, you and TOMS will endeavor to select an arbitrator or hearing officer(s) after commencement of the action. If the parties are unable to jointly select an arbitrator, NAM will administratively appoint an arbitrator at the request of either party.
You and TOMS will submit a joint pre-hearing and hearing schedule to the hearing officer(s) within the earlier date of either 14 days prior to the arbitrator’s appointment or 5-7 days prior to the hearing. If you and TOMS cannot submit a joint pre-hearing and hearing schedule, each party will submit their own schedule to NAM. If only one schedule is submitted, that schedule will be delivered to the arbitrator for his or her consideration. The arbitrator may adopt the schedule submitted by one party in the absence of a competing or joint schedule.
Payment of all filing, administration and arbitrator fees will be governed by the NAM rules and applicable fee sheet, as determined by NAM. All issues relating in any way to arbitration—including the applicability, scope, and enforceability of the arbitration provisions of these Terms and Conditions—are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision on all procedural and substantive issues is binding only between you and TOMS and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
You and TOMS shall each be limited to a maximum of one (1) fact witness deposition per side, unless we agree otherwise or the arbitrator determines that more depositions are warranted based on the totality of circumstances (including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the Claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery). Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as "all documents directly or indirectly related to"; and shall not be encumbered with extensive "definitions" or "instructions." The arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
In any arbitration, the defending party may make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. Settlement offers may not be disclosed to the arbitrator until after the arbitrator issues an award on the Claim. If the award is issued in the defending party's favor, or in the other party's favor but is less than the defending party's settlement offer, then the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the Claim may be entitled for the cause of action under which it is suing.
D. SPECIAL PROCEDURES FOR MASS FILINGS
To the extent an arbitration falls within NAM’s definition of a mass filing, you and TOMS agree to the procedures set forth below and in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms). Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Informal Pre-Suit Resolution process is initiated, until the Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Counsel for each side shall select 25 Claims (50 Claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless you and TOMS agree otherwise in writing. No administrative fees will be assessed in connection with any remaining Claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, you and TOMS shall promptly engage in a global mediation session of all remaining Claims with a retired federal or state court judge, unless the parties agree otherwise.
If the remaining Claims are not resolved at this time, counsel for the parties shall each select an additional 25 Claims per side (50 Claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. This process shall continue, consistent with this staged process set forth above in this subsection, by administering and moving forward a maximum of 50 individual arbitration proceedings at a time until the parties are able to resolve all of the Claims, either through settlement or arbitration.
NOTWITHSTANDING THE PROVISIONS HEREIN, IN MASS FILINGS CONSISTING OF MORE THAN 500 CLAIMS TOTAL, EITHER PARTY MAY OPT OUT OF ARBITRATION AND ELECT TO HAVE THE CLAIMS HEARD IN COURT.
A court of competent jurisdiction shall have the authority to enforce this entire Dispute Resolution section and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the allocation of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with the remainder of these Terms and Conditions.
E. EXCEPTIONS
Notwithstanding the parties’ agreement to resolve all Claims through arbitration (i) either you or TOMS may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction; and (ii) either you or TOMS may bring suit in court to enjoin infringement or other misuse of intellectual property rights or confidential information. The route to small claims court shall only be the result of a direct filing by you or TOMS. As set forth above, a Claim commenced in arbitration may not be secondarily directed to small claims court per otherwise applicable rules. Any institution of any action for injunctive relief will not constitute a waiver of the right or obligation of the claiming party to submit any claim seeking relief other than injunctive relief to arbitration.
29. Time Limits
To the fullest extent permitted by applicable law, YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO ANY CLAIM MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, THAT CAUSE OF ACTION IS PERMANENTLY BARRED. For purposes of this provision, a Claim is considered commenced at the time the Notice (defined above) is sent. To the extent a Claim is filed in court or arbitration without first providing such Notice (which would be contrary to these terms, as set forth above), the Claim is deemed commenced at the time of such filing.
30. Choice Of Law/Forum Selection
These Terms and Conditions shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of law rules. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in the Central District of California or Los Angeles County.
31. Severability
Each section, paragraph, part, term, and/or provision of these Terms and Conditions shall be considered severable; and if, for any reason, any provision herein is determined to be invalid and contrary to, or in conflict with, any existing or future law or regulation by a court or agency having valid jurisdiction, such provision shall not impair the operation, or have any other effect upon, other provisions of these Terms and Conditions as may remain otherwise intelligible, and the latter shall continue to be given full force and effect to bind you and TOMS; and said invalid provisions shall be deemed not to be part of these Terms and Conditions.
However, notwithstanding the preceding paragraph, if the Class Action Waiver is found to be void or unenforceable and you are permitted to proceed in an action other than as an individual, the Claim shall proceed and be resolved in court and NOT by arbitration.
32. General Legal Provisions
These Terms and Conditions are effective unless and until terminated by either you or TOMS®. You may terminate these Terms and Conditions as they apply to you at any time by ceasing to use the Website. TOMS® may terminate these Terms and Conditions at any time immediately and without notice, and accordingly deny you access to the Website, for any reason in its sole discretion; however, the provisions in these Terms and Conditions that relate to dispute resolution, intellectual property, indemnification, disclaimer, limitation of liability, and choice of law shall survive any termination of these Terms and Conditions. Unless otherwise specified, the Website and Content are displayed solely for the purpose of promoting TOMS® products and services available in the United States. This Website is controlled and operated by TOMS® from its offices in California.
If any portion of these Terms and Conditions is held to be invalid or unenforceable, the invalid or unenforceable portion shall be modified in accordance with the applicable law with a provision that most closely reflects the intention of the original provision, and the remainder of these Terms and Conditions shall remain in full force and effect. The failure of TOMS® to insist upon or enforce strict performance by you of any provision of these Terms and Conditions shall not be construed as a waiver of any provision or right.
We may provide notice to you relating to the Website and/or these Terms and Conditions by sending an e-mail to your last known e-mail address, and any such notice shall be deemed given and received on the day it is sent. A printed version of these Terms and Conditions and of any notices given to you in electronic form or otherwise shall be admissible in judicial or administrative proceedings based upon or relating to these Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You agree that any cause of action that you may desire to bring arising out of or related to these Terms and Conditions and/or the Website must commence within one (1) year after the cause of action arises. You may not use the Website or export the Content in violation of U.S. export laws and regulations. If you access the Website from a location outside the United States, you are responsible for compliance with all local laws.
TOMS®'s performance of these Terms and Conditions is subject to existing laws and legal process, and nothing contained in this these Terms and Conditions is in derogation of TOMS®'s right to comply with law enforcement requests or requirements.
These Terms and Conditions (together with our Privacy Policy, which is expressly incorporated herein by reference and which can be accessed on this Website, and any other terms that may appear on the Website from time-to-time) contain the entire understanding between you and us with respect to your use and access of this Website, and supersede all prior agreements, terms, conditions and understandings, both written and oral, with respect to such use and access of the Website. No representation, statement or inducement, whether oral or written, not contained in these Terms and Conditions (and any other terms that may appear on the Website from time-to-time) or the Privacy Policy shall bind any party to this agreement. No additional or different terms or conditions will be binding upon us unless expressly agreed to in writing by an officer of TOMS®. No other representative has any authority to waive, alter, vary or add to these Terms and Conditions. Before using this Website please read through all referenced documents carefully.
The sections on Indemnity, Limitation of Liability and Disclaimer; Warranties do not apply to New Jersey residents.
33. Information or Complaints for California Users
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to tomslegal@toms.com. You may also contact us by writing to Customer Service at tomslegal@toms.com or by calling us at 888-900-6545. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
34. Copyright
© 2006-2024 TOMS.com, LLC. All rights reserved.
Terms of Sale
IMPORTANT NOTICE REGARDING DISPUTE RESOLUTION: THESE TERMS OF SALE INCLUDE A CLASS ACTION WAIVER AND JURY TRIAL WAIVER AND REQUIRE ARBITRATION ON AN INDIVIDUAL BASIS. PLEASE READ THESE ENTIRE TERMS OF SALE CAREFULLY BEFORE PLACING AN ORDER WITH US FOR A PURCHASE OF A PRODUCT OR SERVICE AND, IN PARTICULAR, PLEASE CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION (INCLUDING SUBSECTIONS) FOR COMPLETE DETAILS. These Terms of Sale incorporate by reference the Terms of Use and Privacy Policy, and any capitalized terms in those agreements shall have the same meaning here.
Orders; General
By placing an order with TOMS, you are (i) offering to purchase a product and/or service, (ii) representing that you are at least 18 years old, (iii) representing that all information you provide to us in connection with such order is true and accurate, and (iv) representing that you are an authorized user of the payment method provided.
When you send us your order, we may verify certain items before the order is fulfilled, including without limitation your personal information, your payment information and your creditworthiness.
We reserve the right to: (a) refuse any order you place with us; (b) correct any errors, inaccuracies or omissions (including but not limited to the price) with regard to the products or services offered; (c) change or update information in connection with any products or services offered; and (d) modify or cancel your order, whether or not the order has been confirmed, each at any time without notice to you (including after you have submitted your order) and without liability to you. If we modify your order, we will attempt to give you prior notice of this and provide you with the opportunity to cancel the order in its entirety. If we cancel your order, we will attempt to notify you by contacting you via the contact information you provided at the time the order was made. We reserve the right to limit, reject, modify, or cancel orders that, in our sole judgment, appear to be placed by unauthorized parties, including resellers.
If your payment method has already been charged for an order that is later modified or cancelled, TOMS® shall issue you a refund in the amount of the incorrect price back to your original method of payment. We apologize for any inconvenience this may cause you.
TOMS® accepts the following methods of payment on TOMS.com: Visa, MasterCard, American Express, Discover, PayPal, Apple Pay, Afterpay, Klarna, TOMS.com Gift Cards (electronic or physical) and TOMS.com store credit. Please see Gift Cards and Store Credit for further details. Please see our FAQs for further helpful information.
Product & Pricing Information
Select TOMS® products displayed on the Website may be available in select stores in the United States while supplies last. Please see our Store Locator for information on our retailers in the United States.
All prices and products advertised are subject to change. Although the Website is composed with care, it may happen that the pricing information on the Website contains errors. We are not bound by our offer or any prices on the Website and we therefore reserve the right to modify or cancel your purchase in the event of spelling, pricing, or other errors on the Website.
All prices displayed on the Website are quoted in US Dollars ($).
Shipping costs are applied per order and depend on where your order is shipped and by what method. Shipping costs and all other applicable taxes, fees or charges of any nature shall be added to the total amount of your purchase and will be displayed prior to checkout.
The images of the products on our Website are for illustrative purposes only. Although we have made every effort to display the colors accurately, we cannot guarantee that your computer's display of the colors accurately reflect the actual colors of the product(s). Your product(s) and the packaging of your product(s) may vary from that shown on images on our Website.
Shipping, Delivery, Returns And Exchanges
Please note that shipping dates, delivery dates, and timeframes for processing returns and refunds are estimates only and not guaranteed. We can only fulfill domestic orders to home and office addresses and do not ship to P.O. Boxes. TOMS® does not ship internationally, except to Australia. If you would like to ship to international locations, please see our Shipping FAQs for further information on international locations to which we ship.
While most of our products can be returned, we cannot accept returns of TOMS Roasting Co. coffee (whether purchased from our retail stores or otherwise), Gift Cards, Rewards (as defined below) redemptions and any other items that are marked "Final Sale".
Item(s) that are unworn, unwashed and unaltered, or items that you believe have a manufacturer’s defect, may be returned within 30 days from date of purchase if you are in the contiguous United States or within 30 days from date of purchase if you are outside of the contiguous United States (i.e., Alaska, Hawaii, Puerto Rico, or another U.S. territory). All returnable items should be returned unused, in their original packaging and in saleable condition. Your refund will reflect the total amount you paid for the product(s) you are returning. However, you will not be refunded any original shipping costs you may have paid for the delivery of the product(s) to you.
If you are shipping to us from within the contiguous United States, you may choose to receive your refund back to your original method of payment (so long as you did not make your purchase using a Gift Card or Store Credit) or in the form of a TOMS.com store credit. All returns will be charged a $14.99 restocking fee.
Please remember that in order for us to process your return, we must receive the item(s) within the 30-day timeframe noted above if you are in the contiguous United States or 30-day timeframe noted above if you are outside of the contiguous United States (i.e., Alaska, Hawaii, Puerto Rico, or another U.S. territory). Therefore, you must account for the time it takes for the carrier to ship your item(s) back to our warehouse in Dallas, Texas.
All returns should be addressed to our distribution center based in Dallas, Texas.
Mail your return to:
RETURNS TOMS® C/O Cart.com
10300 Sanden Drive, Suite 100
Dallas, TX 75238
The risk of loss of any product(s) ordered through this Website shall transfer to you upon delivery of the product(s) to the shipping carrier.
We do not offer exchanges at this time. We apologize for any inconvenience this may cause you.
You may contact Customer Service to assist you with returning your product(s).
Warranty For Defective Products
Refer to Shipping, Delivery, Returns and Exchanges.
Recall
You agree to cooperate fully with us and will provide all reasonable assistance in the event we recall any product(s), at our sole expense. Please notify us immediately if you know or suspect there is a possibility of products becoming or needing to become the subject of a recall.
Gift Cards & Store Credit
TOMS.com Gift Cards
TOMS® physical and electronic gift cards (collectively, the "Gift Card(s)") may be redeemed towards the purchase of eligible items on the Website. Please treat your Gift Cards like cash — we are not responsible if a Gift Card is lost, stolen, destroyed or used without your permission. Gift Cards may not be reloaded, resold, transferred for value or redeemed for cash, except to the extent required by law. Purchases made with a Gift Card will be deducted from the redeemer's Gift Card balance and any unused balance will be available for future purchases. Purchase amounts that exceed the redeemer's Gift Card balance will require that the remaining balance due be paid with another acceptable payment method. Gift Cards are not returnable, cancelable or exchangeable after purchase for cash, except in states where required by law. Gift Cards do not expire and we do not assess any service fees for non-use.
Gift Cards have other restrictions, including but not limited to:
Coupons and other discounts or promotions may not be applicable to purchase Gift Cards.
Gift Cards cannot be used to purchase other Gift Cards.
Gift Cards are FINAL SALE cannot be returned.
Gift Cards may only be applicable to purchase certain product(s) or services on the Website, or they may exclude the purchase of certain product(s) or services. Please see any applicable restrictions noted on your Gift Card or the applicable product(s) or promotion(s) for further details.
TOMS.com Store Credit
TOMS.com store credit (the "Store Credit") may be redeemed towards the purchase of eligible items on the Website. Any available Store Credit you may have will be automatically applied towards your next purchase. We are not responsible if Store Credit is lost, stolen, destroyed or used without your permission. Please note that store Credit is non-transferable. Purchases made with Store Credit will be deducted from your Store Credit balance, and any remaining unused balance will be available over for future purchases. Purchase amounts that exceed the redeemer's available Store Credit balance will require that the remaining balance due be paid with another acceptable payment method. Store Credit does not expire and we do not assess any service fees for non-use.
FRAUD
TOMS® reserves the right to refuse, cancel or hold for review any orders or customer accounts using a Gift Card or Store Credit or any Gift Card or Store Credit mistakenly issued in an incorrect denomination, to bill alternative forms of payment for suspected fraud in connection with a Gift Card or Store Credit, or to take any other action in connection with a violation of this Section.
Please note that Gift Cards/Store Credits and their redemption are each subject to change in the sole discretion of TOMS®, at all times in accordance with applicable law.
Third Party Products
The Website may contain products that are produced and manufactured by third party suppliers and not by TOMS®. TOMS® is not responsible for any third-party products or for the actions or inactions of any third party vendors or suppliers. TOMS’ inclusion of such products does not imply any endorsement of such or, unless expressly disclosed otherwise, any sponsorship, affiliation, or association with such vendor(s) or supplier(s). TOMS does not assume any responsibility or liability for the products of third parties. While TOMS® aims to ensure that all third-party vendors suppliers are honest and truthful when making representations regarding their products and/or the causes they claim to support and how, we cannot warrant or represent that the statements they make are truthful, complete or accurate. Please carefully review the terms of use, privacy policy, and all other relevant user agreements for the third party products.
Dispute Resolution
A. MANDATORY INFORMAL PRE-SUIT RESOLUTION
TOMS values our customers and seeks to resolve disputes informally where possible. Before filing any lawsuit relating to a Claim, you agree to first send a detailed notice (“Notice”) to TOMS by email at legal@toms.com within the applicable statute of limitations. Your Notice must contain all of the following information: (1) your full name; (2) your address; (3) your telephone numbers; (4) your email address; (5) information sufficient for TOMS to identify any transaction and/or product at issue (e.g., your order number, order confirmation communication, SKU number, etc.); and (6) a detailed description of your Claim, the nature and basis of your Claim(s), and the nature and basis of the relief you are seeking with a calculation for it. You must personally sign this Notice.
Likewise, TOMS agrees that if we have a dispute with you, we will first send a detailed Notice to your e-mail address on file with us. TOMS’ Notice will likewise set forth (1) information sufficient for you to identify any transaction at issue; and (2) a detailed description of our dispute, the nature and basis of our claim(s), and the nature and basis of the relief we are seeking with a calculation for it.
You and TOMS agree to negotiate in good faith, for a period of at least 60 days from the date of the Notice, in an effort to swiftly resolve it to your satisfaction without the need for a formal proceeding. Should TOMS request a telephone conference with you in an effort to resolve your claim as part of this informal process, you agree to personally participate (with your counsel if you are represented). Compliance with and completion of this Mandatory Informal Pre-suit Resolution process is a condition precedent to filing any lawsuit or serving an arbitration demand. You and TOMS agree that any action commenced in court or arbitration without first exhausting the Mandatory Informal Pre-Suit Resolution process shall be defective and subject to dismissal at the cost of the party found to have prematurely commenced the action. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in this process. A court shall have the authority to enjoin the filing of any lawsuit concerning a Claim without first providing a Notice or other participating in good faith in this Mandatory Informal Pre-Suit Resolution process.
B. CLASS ACTION WAIVER; JURY TRIAL WAIVER; WHERE PERMISSIBLE, CLAIMS SHALL BE BROUGHT IN COURT ON AN INDIVIDUAL BASIS
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND TOMS AGREE THAT ANY CLAIM RESOLUTION PROCEEDING WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS; CLASS ACTIONS AND ANY OTHER CONSOLIDATED, COLLECTIVE, OR REPRESENTATIVE ACTIONS ARE NOT PERMITTED AND YOU AGREE TO GIVE UP THE ABILITY TO PARTICIPATE IN ANY SUCH ACTION. You agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. Class actions, private attorney general actions, and other consolidated actions are not allowed. Claims regarding the enforceability, revocability, or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator.
Together, the terms in the preceding paragraph shall be called and operate as the “Class Action Waiver.”
WHERE PERMISSIBLE, AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, Claims must be brought in court, and only on an individual basis in accordance with the Class Action Waiver. To the extent permissible under applicable law, any such cases shall be decided by a judge and not a jury; the Parties mutually waive their right to have their Claim decided by a jury.
Solely in the context of arbitration, and as specified in subsection (C) below, if any court or arbitrator determines that this Class Action Waiver is void, unenforceable, or that an arbitration can proceed on a class basis for any other reason, then the Arbitration Clause set forth in this Dispute Resolution section shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate Claims.
C. ARBITRATION CLAUSE
In jurisdictions where applicable law prohibits the Class Action Waiver from applying to Claims brought in Court, the CLAIM SHALL BE RESOLVED THROUGH BINDING INDIVIDUAL ARBITRATION, RATHER THAN IN COURT.
THE FEDERAL ARBITRATION ACT AND FEDERAL ARBITRATION LAW APPLY TO THIS ARBITRATION CLAUSE. BY AGREEING TO ARBITRATION, YOU AND TOMS ARE NOT LIMITING IN ANY WAY EITHER OF OUR STATUTORY OR COMMON LAW RIGHTS OR POTENTIAL REMEDIES TO WHICH EITHER OF US WOULD BE ENTITLED TO IF OUR CLAIM WERE INSTEAD BEING HEARD IN A COURT.
ANY ARBITRATION WILL BE ADMINISTERED BY NATIONAL ARBITRATION AND MEDIATION (“NAM”) AND GOVERNED BY NAM’S APPLICABLE RULES (including the Comprehensive Dispute Resolution Rules and Procedures and/or the Supplemental Rules for Mass Arbitration Filings, as applicable) ("NAM Rules"), as modified by these Terms and Conditions. You may obtain a form to initiate arbitration as set forth in the NAM Rules available online at www.NAMADR.com, by emailing NAM at commercial@namadr.com, or by requesting them in writing at the Notice address; this form must be personally signed by the party initiating arbitration (and their counsel, if represented). You and TOMS agree that any counsel representing a party in arbitration must comply with the requirements of Federal Rule of Civil Procedure 11(b), and that the arbitrator may impose any sanctions against all appropriate represented parties and counsel if he or she determines a claim is frivolous.
The arbitration shall occur through the submission of documents to one arbitrator. If the Arbitrator determines that a hearing is necessary, the hearing shall be conducted remotely by telephone or video conference. If the Arbitrator determines that an in-person haring is necessary, the hearing will take place in the United States county where you live or work or such other location agreed upon by both parties. Pursuant to the NAM Rules, you and TOMS will endeavor to select an arbitrator or hearing officer(s) after commencement of the action. If the parties are unable to jointly select an arbitrator, NAM will administratively appoint an arbitrator at the request of either party.
You and TOMS will submit a joint pre-hearing and hearing schedule to the hearing officer(s) within the earlier date of either 14 days prior to the arbitrator’s appointment or 5-7 days prior to the hearing. If you and TOMS cannot submit a joint pre-hearing and hearing schedule, each party will submit their own schedule to NAM. If only one schedule is submitted, that schedule will be delivered to the arbitrator for his or her consideration. The arbitrator may adopt the schedule submitted by one party in the absence of a competing or joint schedule.
Payment of all filing, administration and arbitrator fees will be governed by the NAM rules and applicable fee sheet, as determined by NAM. All issues relating in any way to arbitration—including the applicability, scope, and enforceability of the arbitration provisions of these Terms and Conditions—are for the arbitrator to decide. The arbitrator may consider but shall not be bound by rulings in other arbitrations involving different customers. At the conclusion of the arbitration proceeding, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator’s decision on all procedural and substantive issues is binding only between you and TOMS and will not have any preclusive effect in another arbitration or proceeding that involves a different party. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
You and TOMS shall each be limited to a maximum of one (1) fact witness deposition per side, unless we agree otherwise or the arbitrator determines that more depositions are warranted based on the totality of circumstances (including the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests, and whether any or all of the Claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery). Document requests shall be limited to documents that are directly relevant to the matter(s) in dispute or to its outcome; shall be reasonably restricted in terms of time frame, subject matter and persons or entities to which the requests pertain; shall not include broad phraseology such as "all documents directly or indirectly related to"; and shall not be encumbered with extensive "definitions" or "instructions." The arbitrator may edit or limit the number of document requests based on the totality of circumstances, including the factors listed above.
In any arbitration, the defending party may make a written settlement offer at any time before the evidentiary hearing or, if a dispositive motion is permitted, prior to the dispositive motion being granted. Settlement offers may not be disclosed to the arbitrator until after the arbitrator issues an award on the Claim. If the award is issued in the defending party's favor, or in the other party's favor but is less than the defending party's settlement offer, then the other party must pay the defending party's costs incurred after the offer was made, including any attorney's fees. If any applicable statute or case law prohibits the shifting of costs incurred in the arbitration, then the offer in this provision shall serve to cease the accumulation of any costs to which the party bringing the Claim may be entitled for the cause of action under which it is suing.
D. SPECIAL PROCEDURES FOR MASS FILINGS
To the extent an arbitration falls within NAM’s definition of a mass filing, you and TOMS agree to the procedures set forth below and in NAM’s Mass Filing Supplemental Dispute Resolution Rules and Procedures (“NAM’s Mass Filing Rules," available at https://www.namadr.com/resources/rules-fees-forms). Any applicable limitations period (including statute of limitations) and any filing fee deadlines shall be tolled beginning when the Mandatory Informal Pre-Suit Resolution process is initiated, until the Claim is selected to proceed as part of a staged process or is settled, withdrawn, otherwise resolved, or opted out of arbitration.
Counsel for each side shall select 25 Claims (50 Claims total) to be filed and to proceed in individual arbitrations as part of a staged process. Each of these individual arbitrations shall be assigned to a different, single arbitrator unless you and TOMS agree otherwise in writing. No administrative fees will be assessed in connection with any remaining Claims unless and until they are selected to be filed in individual arbitration proceedings as part of a staged process. After this initial set of staged proceedings is completed, you and TOMS shall promptly engage in a global mediation session of all remaining Claims with a retired federal or state court judge, unless the parties agree otherwise.
If the remaining Claims are not resolved at this time, counsel for the parties shall each select an additional 25 Claims per side (50 Claims total) to be filed and to proceed in individual arbitrations as part of a second staged process, subject to any procedural changes the parties agreed to in writing. This process shall continue, consistent with this staged process set forth above in this subsection, by administering and moving forward a maximum of 50 individual arbitration proceedings at a time until the parties are able to resolve all of the Claims, either through settlement or arbitration.
NOTWITHSTANDING THE PROVISIONS HEREIN, IN MASS FILINGS CONSISTING OF MORE THAN 500 CLAIMS TOTAL, EITHER PARTY MAY OPT OUT OF ARBITRATION AND ELECT TO HAVE THE CLAIMS HEARD IN COURT.
A court of competent jurisdiction shall have the authority to enforce this entire Dispute Resolution section and, if necessary, to enjoin the mass filing, prosecution, or administration of arbitrations and the allocation of arbitration fees. If these additional procedures apply to your Claim, and a court of competent jurisdiction determines that they are not enforceable as to your Claim, then your Claim shall proceed in a court of competent jurisdiction consistent with the remainder of these Terms and Conditions.
E. EXCEPTIONS
Notwithstanding the parties’ agreement to resolve all Claims through arbitration (i) either you or TOMS may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction; and (ii) either you or TOMS may bring suit in court to enjoin infringement or other misuse of intellectual property rights or confidential information. The route to small claims court shall only be the result of a direct filing by you or TOMS. As set forth above, a Claim commenced in arbitration may not be secondarily directed to small claims court per otherwise applicable rules. Any institution of any action for injunctive relief will not constitute a waiver of the right or obligation of the claiming party to submit any claim seeking relief other than injunctive relief to arbitration.
Disclaimer; Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, YOU EXPRESSLY UNDERSTAND AND AGREE THAT THE WEBSITE AND CONTENT ON THE WEBSITE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TOMS® DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVER THAT MAKES THE WEBSITE AVAILABLE ARE FREE FROM VIRUSES OR ANYTHING ELSE HARMFUL. FURTHER, EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, TOMS® MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, ADEQUACY, USEFULNESS, RELIABILITY, OR COMPLETENESS OF THE WEBSITE, CONTENT, THE CONTENT OF ANY THIRD-PARTY WEBSITE LINKED TO OR FROM THIS WEBSITE, USER GENERATED CONTENT, SUBMISSIONS, INFORMATION, GIVING INFORMATION MADE BY TOMS® OR ITS GIVING PARTNERS, INFORMATION PROVIDED BY THIRD PARTY VENDORS, OR ANY OTHER ITEMS OR MATERIALS ON THE WEBSITE OR LINKED TO FROM THE WEBSITE.
TOMS® ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES OR INACCURACIES OF THE CONTENT, INFORMATION, WEBSITE AND MATERIALS SET FORTH ON OR MADE AVAILABLE THROUGH THE WEBSITE, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF THE WEBSITE, OR ANY THIRD PARTY WEBSITE(S), (C) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVERS THAT HOST THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE OR THIRD PARTY WEBSITE(S), (E) ANY BUGS, VIRUSES, TROJAN HORSES OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE OR ANY THIRD PARTY WEBSITE(S) BY TOMS® OR ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN THE NETWORK OR ANY CONTENT, INFORMATION AND MATERIALS (INCLUDING BUT NOT LIMITED TO THIRD PARTY WEBSITE(S)) OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE FOREGOING.
NOTWITHSTANDING THE FOREGOING, THESE DISCLAIMERS HEREIN, DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
Limitation Of Liability
IN NO EVENT SHALL TOMS® OR ITS SUBSIDIARIES, AFFILIATES, AGENTS, SUPPLIERS, VENDORS, MANUFACTURERS OR DISTRIBUTORS (COLLECTIVELY, THE "TOMS RELEASED PARTIES") BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE, DATA, REVENUE OR PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY OR GOODWILL, ARISING FROM OR IN CONNECTION WITH (A) THE USE OF, OR INABILITY TO USE, THE WEBSITE; (B) THE PROVISION OF OR FAILURE TO PROVIDE CONTENT, OR SOFTWARE AVAILABLE FROM, ON OR THROUGH THE WEBSITE OR ANY THIRD-PARTY WEBSITE(S); OR (C) THE CONDUCT OF OTHER USERS OF THE WEBSITE, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ASSUME COMPLETE RESPONSIBILITY FOR YOUR USE OF THE WEBSITE. YOUR SOLE REMEDY AGAINST THE TOMS RELEASED PARTIES FOR DISSATISFACTION WITH THE WEBSITE OR ANY CONTENT IS TO STOP USING THE WEBSITE. THAT SAID, IF ANY OF THE TOMS RELEASED PARTIES ARE FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS ARISING OUT OF OR WHICH IS IN ANY WAY CONNECTED WITH YOUR USE OF THE WEBSITE, OR ANY CONTENT ON THE WEBSITE, THE TOMS RELEASED PARTIES' TOTAL LIABILITY SHALL NOT EXCEED $100.00 IN THE AGGREGATE. NOTWITHSTANDING THE FOREGOING, THESE LIMITATIONS OF LIABILITY DO NOT EXCLUDE ANY PRODUCT LIABILITY CLAIMS, STATUTORY CONSUMER RIGHTS, DAMAGES ASSOCIATED WITH PERSONAL INJURY OR RESULTING FROM COMPANY INTENTIONAL MISCONDUCT, RECKLESSNESS, FRAUD, OR GROSS NEGLIGENCE.
The sections on Limitation of Liability and Disclaimer; Warranties do not apply to New Jersey residents.
Information or Complaints for California Users
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Site, please send an e-mail to tomslegal@toms.com. You may also contact us by writing to Customer Service at tomslegal@toms.com or by calling us at 888-900-6545. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210
Copyright
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