Togu Kives Terms and Conditions
Togu Terms of Service
Effective Date:
November 13, 2018.
The following Terms of Service (“Terms”) between you (“you” or “your”) and Togu LLC (“we,” “our,” “us,” or “Togu”) describes the terms and conditions on which you may access and use the Togu website located at toguknives.com (the “Site”), the Togu mobile app (the “App”) and related services including Togu’s subscription product rental and sale services (together with the Site, the App, and the Togu Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 8 of these Terms below.
About the Services
Rental and Sale of Products
Special Trial Programs
Use of the Services
Intellectual Property
Termination
Disclaimer of Warranties; Limitation of Liability
Dispute Resolution, Arbitration and Class Action Waiver
Miscellaneous
1. ABOUT THE SERVICES
A. Introduction
Through the Services, we aim to give you access to sharp, well maintained kitchen knives and other products to help mak cooking easier and more fun..
B. Mobile Charges
To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
C. Eligibility
Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site and App under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any kitchen implements (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.
D. Modification of the Services or the Terms
Togu may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, Togu will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to Togu upon registration.
2. RENTAL AND SALE OF PRODUCTS
A. General Conditions
The Services include the rental and sale of Products. This Section 2(A) sets out terms and conditions that apply to your rental or purchase of any Product.
18 YEARS OR OLDER. Products may be rented or purchased for use by individuals under 18 years of age, but we rent and sell only to adults, who may rent or purchase the Products with a payment card or other approved payment method. By agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.
LIMITS. You acknowledge and agree that we may place limits on the rental or purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals or sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns.
DELIVERY. Your Products will be delivered through Togu's shipping partners, which may change from time to time at Togu’s discretion. The shipping method used will be at the discretion of Togu.
COLLECTIONS. If you do not pay the amounts you owe to Togu when due, then Togu will need to institute collection procedures. You agree to pay Togu’s costs of collection, including without limitation reasonable attorneys' fees.
COMMUNICATIONS. You consent to receive communications from us, including email, text messages, calls, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying "STOP" to a text message you receive from us or by emailing help@toguknives.com. You acknowledge that opting out of receiving communications may impact your use of the Services.
B. Memberships
The following additional conditions apply to the rental of any Product through Togu’s membership service.
SUBSCRIPTION FEES. Togu will charge to the payment method you provided a subscription fee on the date that you sign up for a Togu membership (this is you Billing Date). The subscription fee will automatically renew, meaning Togu will automatically charge to your payment method on file the then-current subscription fee during each subsequent period of your Togu membership. The period between your Billing Dates is referred to as a Billing Period. As of your first Billing Date, your Togu membership becomes active for your first Billing Period and you are eligible to participate in the Togu program, subject to these Terms. Your membership will remain active, and you will remain eligible to participate in the Togu program for subsequent Billing Periods after each successful billing on subsequent Billing Dates. The current Togu subscription fee is $48 plus tax per Billing Period, but is subject to change at our discretion, and any such change will be effective for any subsequent Billing Period. You hereby authorize Togu or our third party payment processor to charge your payment card for the applicable Togu subscription fee on recurring pre-pay basis until you pause or cancel. The subscription fee includes shipping but does not cover significant damage, loss or theft. Togu subscription fees are non-refundable except as expressly set forth in this Section 3(D). You will be responsible for all taxes in connection with the subscription fee. Any taxes will be determined based on your shipping address provided at checkout.
PAUSE OR CANCELLATION OF YOUR MEMBERSHIP. You may pause or cancel your membership at any time before the beginning of the next Billing Period by contacting Member Services at memberservices@toguknives.com. If you want to pause your membership, you may choose to pause for up to three months (or you can indicate a specific date on which you want your membership to resume within a maximum three month period). To successfully pause your account, you must return all Togu Products no later than the last day of the then-current Billing Period. If you fail to return all Togu Products in time, your account will remain active and regular billing for your Togu membership will automatically continue. During the Billing Period in which you contact Togu to pause your membership, you will have until seven days before the end of that Billing Period to use your Shipment for that Billing Period. During the time in which your account is successfully paused, you will not be billed and you will not be eligible for any of the benefits of your Togu membership. The first day after the end of your Togu account’s paused period will mark your new Billing Date, and on that day regular billing for your Togu membership will automatically resume and your regular access to your Togu membership will automatically resume. If you cancel your membership, you must return all Togu Products in your possession no later than the last day of the then-current Billing Period. After that day, your Togu membership will become inactive. If you fail to return all Togu Products in time, you will be subject to late fees as described in the “RETURNS; LATE FEES'' paragraph below.
DELIVERY. All deliveries will be through Togu’s shipping partners, which may change from time to time at our discretion. We will provide you with information about estimated delivery and arrival times of Togu Products through the Site or App. We will use reasonable efforts to send you new Togu Products promptly. The Togu Products we send to you will be professionally cleaned and delivered ready to use. We clean, sterilize, and inspect each Togu Product we send to you, but use of the Togu Products is at your own risk and Togu shall not be held liable for any health or safety-related complaints associated with any Togu Product.
CANCELLATION POLICY. You may cancel your rental order at any time and Togu will provide you with pre-paid, pre-addressed packaging for return of Products in your possession.
RETURN PACKAGING. With delivery of the Product, Togu will provide you with pre-paid, pre-addressed Togu packaging as well as instructions for your use in returning the Products to Togu (“Return Packaging”).
RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a Secure Shipping Address is highly recommended. A “Secure Shipping Address” means a location where an individual can physically receive Product(s). In the event that an un-secure shipping address is provided, Togu does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Togu will not be liable. You will be liable for all such delays and additional delivery fees.
USE OF THE PRODUCTS. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, drops, misuse, chipping of blade, or any other cause, other than normal wear and tear. Normal wear and tear encompasses minor scratches or other reasonably repairable cosmetic damage. If you return a Product that is damaged beyond normal wear and tear, then you agree that we shall charge you, and you shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the Retail Value for the Product.
RETURN OF THE PRODUCTS; EXTENSIONS. You agree to return the Products to Togu in the Return Packaging within one week of receiving packaging.. You must return the Product by delivering the Product in the Return Packaging to a USPS drop-off location in the United States by 12 p.m. on or before the date that the Product is due. We are not responsible for any personal or other items which are returned to Togu in the Return Packaging. If you believe you have accidentally or otherwise sent us any such items, please contact customer service as soon as possible at help@toguknives.com. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
LATE FEES. If you return the Products late or not at all, a late fee of fifteen dollars ($15.00) will be charged to the payment card you used to pay the Rental Fee or to any other payment card included in your account information that you have provided to Togu for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 100% of the Retail Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each order of Products that is not returned when due, not for each Product that is the subject of the order that is late. If you have not returned a Product within twenty (20) days after the return date for the Product, your late return will be considered a non-return and Togu will charge your payment card the maximum late fee set forth in this Section 2(B), less any late fees that you have already paid, plus applicable sales tax.
PAYMENT OF 100% RENTAL VALUE Togu will not charge you for more than an amount equal to 100% of the Retail Value plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay Togu an amount equal to 100% of the Retail Value under this Section 2(B) and you still possess the Product, the Product is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LOST RETURN PACKAGING. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the expected return date, and providing Togu with a tracking number. Also, if you lose or fail to return the Togu packaging you will be charged $50. If you still possess the Togu packaging, it is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
C. Sales
The following additional conditions apply to the sale of any Product.
PRODUCTS ARE USED; ALL SALES ARE FINAL AND “AS IS.” You acknowledge and agree that only those Products designated by us on the Site or App as available for purchase are eligible for purchase by you. THE PRODUCTS FOR SALE HAVE BEEN PREVIOUSLY RENTED BY OTHER CUSTOMERS AND ARE NOT NEW. Togu will professionally clean and inspect the Products before they are delivered to you. However, all Products are sold on an “as is” basis, without any warranty whatsoever, and all Product sales are final.
PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site or App in connection with your purchase of the Products. Purchase Price is as listed on the Togu website at the time of purchase, and is subject to change. Togu reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize Togu to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Togu, shall be paid by you to Togu in connection with your purchase order. Purchase orders are final and cannot be cancelled.
D. Gift Cards
I. GENERAL CONDITIONS
The following additional terms and conditions apply to the sale, use and redemption of Togu physical gift cards and electronic-only “digital” gift cards and gift credits (collectively, “Gift Cards”). Purchase and use of a Gift Card constitutes acceptance of these terms. In addition to the terms in this Section the purchase, use and redemption of Gift Cards is considered part of the Services subject to these Terms generally.
II. REDEMPTION AND USE.
Gift Cards may be purchased online. Gift Cards are redeemable only for eligible services and merchandise through toguknives.com.
Limits may apply to Gift Card redemption and use. A Gift Card cannot be used to purchase other Gift Cards. When a Gift Card is redeemed, the value of the rental or purchase plus any shipping/handling fees and sales tax will be deducted from the currently available Gift Card balance.
III. ADDITIONAL TERMS FOR DIGITAL GIFT CARDS.
Digital gift cards are only issued electronically; no physical card will be provided. The digital gift card number will be delivered to the recipient’s email address that purchaser provides at time of purchase of the digital gift card. Purchaser is responsible for providing an accurate and deliverable recipient email address. Recipient will usually receive a digital gift card via email within 24 hours, or on the delivery date the purchaser chooses. Digital gift cards may be redeemed by providing the digital card number at the time of checkout online or at a Togu retail location.
IV. EXPIRATION AND FEES.
The Gift Cards do not expire, and are not subject to any fees. Gift Cards are not redeemable or exchangeable for cash (except as required by law). Gift Cards cannot be reloaded and are not refundable. Gift Cards cannot be transferred for value.
V. LOST, STOLEN, OR DAMAGED CARDS; UNAUTHORIZED USE.
You should treat your Gift Card like cash and protect it accordingly. Title to and risk of loss for Gift Cards passes to the purchaser upon sale. Togu reserves the right to refuse to accept Gift Cards that Togu believes were fraudulently obtained.
Togu is not responsible if a Gift Card is lost, stolen, destroyed, damaged, or used without permission. Gift Cards will be replaced if lost, stolen or damaged only with proof of purchase and only for the value shown on Togu’s records. Togu is not responsible if your Gift Card is used without your permission.
VI. LIMITATION OF LIABILITY.
IN ADDITION TO THE LIMITATIONS OF LIABILITY STATED IN SECTION 7(C), IN THE EVENT THAT TOGU IS FOUND LIABLE TO YOU FOR A CLAIM ARISING FROM A GIFT CARD, YOUR SOLE REMEDY WILL BE TO RECOVER ACTUAL AND DIRECT DAMAGES WHICH SHALL NOT EXCEED THE LAST BALANCE HELD ON YOUR GIFT CARD.
VII. CUSTOMER SERVICE; CHECK BALANCE.
For assistance or to check Gift Card balance, email help@toguknives.com.
4. Use of the Services
A. Togu Content
CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“Togu Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The Togu Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any Togu Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the Togu Content.
UPDATES We may update the Togu Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to legalinfo@toguknives.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
B. Third Party Content
LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-Togu websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and Togu is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from Togu, and Togu has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that Togu endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
C. Acceptable Use Policy
USE OF Togu CONTENT. No part of the Services, including the Togu Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that Togu authorizes you to view, copy, download, and print Togu Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the Togu Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the Togu Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the Togu Content.
USE OF THE SERVICES. You may not use the Services to: (i) transmit any content, information or other materials that are, or which Togu considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a Togu representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend Togu and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
D. Your Content
If you post, upload or make available to Togu or the Services, or otherwise submit to or through Togu as part of your use of the Services, including the Site or App, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to Togu a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 4(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize Togu to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
E. Your Account
Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify Togu promptly of any unauthorized use of your account or password.
F. Delays
There may be delays, omissions, or inaccuracies in the Services, including the Togu Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
G. Job Postings
Togu may list open employment positions on or through the Services. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.
5. INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including the Togu Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of Togu and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “Togu” and the Togu logo are registered trademarks of Togu LLC, under the applicable laws of the United States and/or other countries. Other Togu product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of Togu and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. Togu and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Togu Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of Togu or such third party that may own such Togu Content.
B. Services License
Subject to your compliance with these Terms, Togu grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
C. App License
Subject to the terms of these Terms, Togu grants to you a limited, non-transferable, non-exclusive, revocable license to download, install and use one copy of the App in object code form only on an interactive wireless device that you own or control.
ACKNOWLEDGMENT. The following applies to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and Togu, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and Togu acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Togu acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Togu, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and Togu acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
D. Feedback
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that Togu may use your Feedback without restriction or obligation to you or any third party.
E. Notice and Take Down Procedures; Copyright Agent
If you believe any Togu Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting Togu’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.
Togu's agent for copyright issues relating to the Services is as follows:
Copyright Agent Togu LLC 345 Hudson Street, Suite 6A, New York, NY 10014 E-Mail address: CopyrightAgent@toguknives.com
In an effort to protect the rights of copyright owners, Togu maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Services who are repeat infringers.
6. TERMINATION
A. Termination By You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at help@toguknives.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
B. Termination By Togu
Any violation of these Terms, including any of the prohibitions in Section 4(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. Togu may also terminate your account if Togu determines that your conduct poses a risk or liability to Togu, or for any other reason as determined by Togu in its sole discretion.
C. Effects of Termination
In each of these cases, the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C), 3(A) (Failure to Pay Fees), 4(A)-(D), 5(A), 5(C) (Acknowledgment), 5(D), 6(C), and 7-9, including the mandatory arbitration and class-action waiver provisions.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties
The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by Togu in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.
Your sole and exclusive remedy and Togu's sole and exclusive liability for a breach by Togu of the limited warranties set out in Section 2(B) shall be, at Togu's option, Togu's use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).
B. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, Togu DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE Togu CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
C. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL Togu BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF Togu HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
8. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 8 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and Togu agree that in the event of any dispute between us, you and Togu will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and Togu will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of Togu or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either Togu or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will be conducted at a JAMS facility in your area or at a JAMS facility in New York City.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with Togu remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and Togu shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
9. MISCELLANEOUS
JURISDICTIONAL ISSUES. Togu makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that Togu intends to announce or make available such products or services to the general public, or in your country. Contact Togu at help@toguknives.com to determine which products and services may be available to you.
EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the Togu Content, or any part thereof, in any way, in violation of United States law.
GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
ENTIRE AGREEMENT. These Terms are the entire agreement between you and Togu relating to the subject matter herein and shall not be modified except by Togu in accordance with these Terms, or as otherwise agreed in writing by you and Togu. No employee, agent or other representative of Togu has any authority to bind Togu with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. Togu may assign these Terms at any time without notice to you.
FORCE MAJEURE. Togu will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Togu’s reasonable control.
CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to Togu at legalinfo@toguknives.com or Togu LLC, Attn: Legal, 218 Brookline St Cambridge, MA 02139
Effective Date:
November 13, 2018.
The following Terms of Service (“Terms”) between you (“you” or “your”) and Togu LLC (“we,” “our,” “us,” or “Togu”) describes the terms and conditions on which you may access and use the Togu website located at toguknives.com (the “Site”), the Togu mobile app (the “App”) and related services including Togu’s subscription product rental and sale services (together with the Site, the App, and the Togu Content, as defined below, the “Services”). By accessing or using any of the Services, you acknowledge that you have read, understood and agreed to be bound by these Terms.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS MAY HAVE CHANGED SINCE YOU LAST ACCESSED OR USED THE SERVICES. BY CLICKING “I AGREE” OR OTHERWISE ACCESSING OR USING ANY PART OF THE SERVICES, YOU AGREE TO THESE TERMS.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver contained in Section 8 of these Terms below.
About the Services
Rental and Sale of Products
Special Trial Programs
Use of the Services
Intellectual Property
Termination
Disclaimer of Warranties; Limitation of Liability
Dispute Resolution, Arbitration and Class Action Waiver
Miscellaneous
1. ABOUT THE SERVICES
A. Introduction
Through the Services, we aim to give you access to sharp, well maintained kitchen knives and other products to help mak cooking easier and more fun..
B. Mobile Charges
To the extent you access the Services through a mobile or wireless device, your carrier’s standard charges, data rates and other fees may apply.
C. Eligibility
Children under the age of 13 may not use the Services and parents or legal guardians may not agree to these Terms on their behalf. Children under 18 years of age but at least 13 years of age may use the Site and App under the supervision of parents or legal guardians who agree to be bound by these Terms on their behalf, but such children may not rent or purchase any kitchen implements (“Products”) via the Services. If you are a parent or legal guardian agreeing to these Terms for the benefit of a child between the ages of 13 and 18, you are fully responsible for his or her use of the Services and the rental or purchase of any Products, including all legal liability he or she may incur.
D. Modification of the Services or the Terms
Togu may modify these Terms or modify, suspend, or discontinue the Services at any time for any reason. However, Togu will use commercially reasonable efforts to notify you of material changes to these Terms by posting a notice on the Site and/or sending an email to the email address you provided to Togu upon registration.
2. RENTAL AND SALE OF PRODUCTS
A. General Conditions
The Services include the rental and sale of Products. This Section 2(A) sets out terms and conditions that apply to your rental or purchase of any Product.
18 YEARS OR OLDER. Products may be rented or purchased for use by individuals under 18 years of age, but we rent and sell only to adults, who may rent or purchase the Products with a payment card or other approved payment method. By agreeing to these Terms, you represent that you are 18 years or older and that you are authorized to use the chosen payment method (including, without limitation, credit cards) for the purpose of renting or purchasing the Products as described in these Terms.
LIMITS. You acknowledge and agree that we may place limits on the rental or purchase of Products, including but not limited to restricting orders placed under a single customer account, payment card or billing or shipping address. We reserve the right to limit, cancel or prohibit any rentals or sales of Products for any reason in our sole discretion, including but not limited to availability and geographic concerns.
DELIVERY. Your Products will be delivered through Togu's shipping partners, which may change from time to time at Togu’s discretion. The shipping method used will be at the discretion of Togu.
COLLECTIONS. If you do not pay the amounts you owe to Togu when due, then Togu will need to institute collection procedures. You agree to pay Togu’s costs of collection, including without limitation reasonable attorneys' fees.
COMMUNICATIONS. You consent to receive communications from us, including email, text messages, calls, and push notifications, including for the purposes of notifying you about the status of your order, sending you reminders, facilitating secondary authentication, and providing other information. We may contact you by telephone calls or text messages, including by an automatic telephone dialing system, at any of the telephone numbers provided by you. Standard message and data rates charged by your mobile carrier may apply to the text messages we send you. You may opt out of receiving communications by following the unsubscribe procedures we provide to you. In the case of text messages, you may opt out by replying "STOP" to a text message you receive from us or by emailing help@toguknives.com. You acknowledge that opting out of receiving communications may impact your use of the Services.
B. Memberships
The following additional conditions apply to the rental of any Product through Togu’s membership service.
SUBSCRIPTION FEES. Togu will charge to the payment method you provided a subscription fee on the date that you sign up for a Togu membership (this is you Billing Date). The subscription fee will automatically renew, meaning Togu will automatically charge to your payment method on file the then-current subscription fee during each subsequent period of your Togu membership. The period between your Billing Dates is referred to as a Billing Period. As of your first Billing Date, your Togu membership becomes active for your first Billing Period and you are eligible to participate in the Togu program, subject to these Terms. Your membership will remain active, and you will remain eligible to participate in the Togu program for subsequent Billing Periods after each successful billing on subsequent Billing Dates. The current Togu subscription fee is $48 plus tax per Billing Period, but is subject to change at our discretion, and any such change will be effective for any subsequent Billing Period. You hereby authorize Togu or our third party payment processor to charge your payment card for the applicable Togu subscription fee on recurring pre-pay basis until you pause or cancel. The subscription fee includes shipping but does not cover significant damage, loss or theft. Togu subscription fees are non-refundable except as expressly set forth in this Section 3(D). You will be responsible for all taxes in connection with the subscription fee. Any taxes will be determined based on your shipping address provided at checkout.
PAUSE OR CANCELLATION OF YOUR MEMBERSHIP. You may pause or cancel your membership at any time before the beginning of the next Billing Period by contacting Member Services at memberservices@toguknives.com. If you want to pause your membership, you may choose to pause for up to three months (or you can indicate a specific date on which you want your membership to resume within a maximum three month period). To successfully pause your account, you must return all Togu Products no later than the last day of the then-current Billing Period. If you fail to return all Togu Products in time, your account will remain active and regular billing for your Togu membership will automatically continue. During the Billing Period in which you contact Togu to pause your membership, you will have until seven days before the end of that Billing Period to use your Shipment for that Billing Period. During the time in which your account is successfully paused, you will not be billed and you will not be eligible for any of the benefits of your Togu membership. The first day after the end of your Togu account’s paused period will mark your new Billing Date, and on that day regular billing for your Togu membership will automatically resume and your regular access to your Togu membership will automatically resume. If you cancel your membership, you must return all Togu Products in your possession no later than the last day of the then-current Billing Period. After that day, your Togu membership will become inactive. If you fail to return all Togu Products in time, you will be subject to late fees as described in the “RETURNS; LATE FEES'' paragraph below.
DELIVERY. All deliveries will be through Togu’s shipping partners, which may change from time to time at our discretion. We will provide you with information about estimated delivery and arrival times of Togu Products through the Site or App. We will use reasonable efforts to send you new Togu Products promptly. The Togu Products we send to you will be professionally cleaned and delivered ready to use. We clean, sterilize, and inspect each Togu Product we send to you, but use of the Togu Products is at your own risk and Togu shall not be held liable for any health or safety-related complaints associated with any Togu Product.
CANCELLATION POLICY. You may cancel your rental order at any time and Togu will provide you with pre-paid, pre-addressed packaging for return of Products in your possession.
RETURN PACKAGING. With delivery of the Product, Togu will provide you with pre-paid, pre-addressed Togu packaging as well as instructions for your use in returning the Products to Togu (“Return Packaging”).
RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). You acknowledge that a Secure Shipping Address is highly recommended. A “Secure Shipping Address” means a location where an individual can physically receive Product(s). In the event that an un-secure shipping address is provided, Togu does not bear liability for Products left unattended. Furthermore, you acknowledge that providing anything other than a Secure Shipping Address may result in delivery delays and additional delivery fees for which Togu will not be liable. You will be liable for all such delays and additional delivery fees.
USE OF THE PRODUCTS. You agree to treat the Products with great care, as if it was borrowed from your close friend. You are responsible for loss, destruction or damage to the Products due to theft, mysterious disappearance, fire, drops, misuse, chipping of blade, or any other cause, other than normal wear and tear. Normal wear and tear encompasses minor scratches or other reasonably repairable cosmetic damage. If you return a Product that is damaged beyond normal wear and tear, then you agree that we shall charge you, and you shall pay, for the price for repairing or replacing the Product, as determined in our discretion, up to the Retail Value for the Product.
RETURN OF THE PRODUCTS; EXTENSIONS. You agree to return the Products to Togu in the Return Packaging within one week of receiving packaging.. You must return the Product by delivering the Product in the Return Packaging to a USPS drop-off location in the United States by 12 p.m. on or before the date that the Product is due. We are not responsible for any personal or other items which are returned to Togu in the Return Packaging. If you believe you have accidentally or otherwise sent us any such items, please contact customer service as soon as possible at help@toguknives.com. Our staff may assist in attempting to locate such items at a customer’s request, but are not obligated to and assume no liability for doing so.
LATE FEES. If you return the Products late or not at all, a late fee of fifteen dollars ($15.00) will be charged to the payment card you used to pay the Rental Fee or to any other payment card included in your account information that you have provided to Togu for every day that you are late returning the Products, and you agree to pay such late fees, up to an amount not to exceed 100% of the Retail Value plus applicable sales tax (plus the Rental Fee). The late fee is payable for each order of Products that is not returned when due, not for each Product that is the subject of the order that is late. If you have not returned a Product within twenty (20) days after the return date for the Product, your late return will be considered a non-return and Togu will charge your payment card the maximum late fee set forth in this Section 2(B), less any late fees that you have already paid, plus applicable sales tax.
PAYMENT OF 100% RENTAL VALUE Togu will not charge you for more than an amount equal to 100% of the Retail Value plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay Togu an amount equal to 100% of the Retail Value under this Section 2(B) and you still possess the Product, the Product is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
LOST RETURN PACKAGING. If you lose the Return Packaging, you will be responsible for returning the item at your own expense by the expected return date, and providing Togu with a tracking number. Also, if you lose or fail to return the Togu packaging you will be charged $50. If you still possess the Togu packaging, it is yours to keep, though on an “AS IS” basis without warranty of any kind. For the avoidance of doubt, the limitations of this clause shall not apply to the Rental Fee, which is charged separately from, and in addition to, any other charges payable by you pursuant to this Section 2(B).
C. Sales
The following additional conditions apply to the sale of any Product.
PRODUCTS ARE USED; ALL SALES ARE FINAL AND “AS IS.” You acknowledge and agree that only those Products designated by us on the Site or App as available for purchase are eligible for purchase by you. THE PRODUCTS FOR SALE HAVE BEEN PREVIOUSLY RENTED BY OTHER CUSTOMERS AND ARE NOT NEW. Togu will professionally clean and inspect the Products before they are delivered to you. However, all Products are sold on an “as is” basis, without any warranty whatsoever, and all Product sales are final.
PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the purchase fee and delivery charges listed on the Site or App in connection with your purchase of the Products. Purchase Price is as listed on the Togu website at the time of purchase, and is subject to change. Togu reserves the right to alter Purchase Price, discount, or availability of any particular item at its discretion and without notice. Upon your purchase order for a Product, you hereby authorize Togu to charge your payment card for the Purchase Price. We will charge your payment card the amount of the Purchase Price immediately upon your purchase order. Purchase Prices exclude all federal, state and local taxes, GST, fees, customs, duties, levies and other governmental assessments, all of which shall be paid by you directly or, if paid by Togu, shall be paid by you to Togu in connection with your purchase order. Purchase orders are final and cannot be cancelled.
D. Gift Cards
I. GENERAL CONDITIONS
The following additional terms and conditions apply to the sale, use and redemption of Togu physical gift cards and electronic-only “digital” gift cards and gift credits (collectively, “Gift Cards”). Purchase and use of a Gift Card constitutes acceptance of these terms. In addition to the terms in this Section the purchase, use and redemption of Gift Cards is considered part of the Services subject to these Terms generally.
II. REDEMPTION AND USE.
Gift Cards may be purchased online. Gift Cards are redeemable only for eligible services and merchandise through toguknives.com.
Limits may apply to Gift Card redemption and use. A Gift Card cannot be used to purchase other Gift Cards. When a Gift Card is redeemed, the value of the rental or purchase plus any shipping/handling fees and sales tax will be deducted from the currently available Gift Card balance.
III. ADDITIONAL TERMS FOR DIGITAL GIFT CARDS.
Digital gift cards are only issued electronically; no physical card will be provided. The digital gift card number will be delivered to the recipient’s email address that purchaser provides at time of purchase of the digital gift card. Purchaser is responsible for providing an accurate and deliverable recipient email address. Recipient will usually receive a digital gift card via email within 24 hours, or on the delivery date the purchaser chooses. Digital gift cards may be redeemed by providing the digital card number at the time of checkout online or at a Togu retail location.
IV. EXPIRATION AND FEES.
The Gift Cards do not expire, and are not subject to any fees. Gift Cards are not redeemable or exchangeable for cash (except as required by law). Gift Cards cannot be reloaded and are not refundable. Gift Cards cannot be transferred for value.
V. LOST, STOLEN, OR DAMAGED CARDS; UNAUTHORIZED USE.
You should treat your Gift Card like cash and protect it accordingly. Title to and risk of loss for Gift Cards passes to the purchaser upon sale. Togu reserves the right to refuse to accept Gift Cards that Togu believes were fraudulently obtained.
Togu is not responsible if a Gift Card is lost, stolen, destroyed, damaged, or used without permission. Gift Cards will be replaced if lost, stolen or damaged only with proof of purchase and only for the value shown on Togu’s records. Togu is not responsible if your Gift Card is used without your permission.
VI. LIMITATION OF LIABILITY.
IN ADDITION TO THE LIMITATIONS OF LIABILITY STATED IN SECTION 7(C), IN THE EVENT THAT TOGU IS FOUND LIABLE TO YOU FOR A CLAIM ARISING FROM A GIFT CARD, YOUR SOLE REMEDY WILL BE TO RECOVER ACTUAL AND DIRECT DAMAGES WHICH SHALL NOT EXCEED THE LAST BALANCE HELD ON YOUR GIFT CARD.
VII. CUSTOMER SERVICE; CHECK BALANCE.
For assistance or to check Gift Card balance, email help@toguknives.com.
4. Use of the Services
A. Togu Content
CONTENT PROVIDED “AS IS.” All content and information available through the Services, including but not limited to product descriptions and specifications, product photos, advice from stylists and photos and comments from other users (“Togu Content”) is available to you on an “as is” basis and is to be used for general information purposes only. Such information is provided on a blind-basis, without any knowledge as to your identity or specific circumstances. The Togu Content is provided with the understanding that such information does not constitute professional advice or services. As such, you agree not to rely upon or use any Togu Content as a substitute for consultation with professional advisors. As used in these Terms, the Services include the Togu Content.
UPDATES We may update the Togu Content, including Product descriptions and specifications, as we deem appropriate and without notice to you. If you have any questions about the existence of more current information, please send those questions to legalinfo@toguknives.com. We take your questions and requests for information seriously, and we will use reasonable efforts to respond in a timely manner. However, we cannot guarantee a prompt response in all cases.
B. Third Party Content
LINKS TO THIRD-PARTY WEBSITES. The Services may contain links or references to non-Togu websites, products, services or other materials or content (“Third Party Content”). This Third Party Content is provided to you as a convenience, and Togu is not responsible for any Third Party Content or the actions of those that provide or use such Third Party Content. Any Third Party Content is independent from Togu, and Togu has no control over the Third Party Content. In addition, a link to any Third Party Content does not imply that Togu endorses, approves of or accepts any responsibility for the Third Party Content or its provider, or vice versa.
C. Acceptable Use Policy
USE OF Togu CONTENT. No part of the Services, including the Togu Content, may be reproduced or transmitted in any form, by any means, electronic or mechanical, including photocopying and recording, except that Togu authorizes you to view, copy, download, and print Togu Content (such as press releases and FAQs) that is available on the Site, provided that: (a) you use the Togu Content solely for your personal, noncommercial, informational purposes; (b) you do not modify the Togu Content; and (c) you do not remove any copyright, trademark, and other proprietary notices on the Togu Content.
USE OF THE SERVICES. You may not use the Services to: (i) transmit any content, information or other materials that are, or which Togu considers in its sole discretion to be, unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, offensive, obscene, pornographic, hateful or threatening to any group defined by race, religion, gender, national origin or sexual orientation, obscene, lewd, lascivious, violent, harassing or otherwise objectionable, including without limitation expressions of bigotry, prejudice, racism, hatred or profanity; (ii) sell or promote any products or services, including any controlled pharmaceutical substances, tobacco, fire arms, or alcoholic beverages; (iii) introduce viruses, worms, Trojan horses and/or harmful code; (iv) display material that exploits children under 18 years of age; (v) post any content, information or other materials that infringe, misappropriate or violate any intellectual property or other right of any third party; (vi) promote or solicit any business or promote, solicit or participate in multi-level marketing or pyramid schemes; impersonate any other person, including but not limited to, a Togu representative; (vii) post, collect or disclose any personally identifying information (including account names) or private information about children or any third parties without their consent (or their parent's consent in case of a child under 13 years of age); (viii) post or transmit any unsolicited advertising, promotional materials, or any other forms of solicitation, including without limitation solicitations of credit card numbers, solicitations for sponsors, or promotion of raffles or contests; or (ix) violate any applicable local, state, national or international laws or regulations.
You also agree that you will not (and will not attempt to or permit any third party to): reverse engineer, decompile, disassemble, translate, derive the source code for, interfere with, rent, sell or lease the Services, any part thereof or access thereto.
INDEMNIFICATION FOR BREACH. By using the Services, you agree to indemnify, hold harmless and defend Togu and its officers, directors, agents and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim by a third party that is based on your use of the Services in violation of these Terms.
D. Your Content
If you post, upload or make available to Togu or the Services, or otherwise submit to or through Togu as part of your use of the Services, including the Site or App, any information, data, text, images, files, links, software, chat, communication or other materials, including but not limited to photos and reviews relating to your use of the Products (“Your Content”), you hereby grant to Togu a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit Your Content and your name, image, voice, likeness and/or other biographical information or material in connection with Your Content, in whole or in part, in all media formats and distribution methods now known or hereafter devised (including on the Site and App, in email and other promotional campaigns and on third party sites promoting the Services) in connection with the Services, including but not limited to advertising, promoting, and marketing the Services, all without further notice to you, with or without attribution, without limitation as to frequency, and without the requirement of any permission from or payment to you or to any other person or entity. You waive any right to inspect or approve any of Your Content or any use of Your Content. By submitting Your Content, you represent and warrant that Your Content and your communication thereof conform to these Terms, including Section 4(C), and that you own or have the necessary rights, licenses, consents and permissions, without the need for any permission from or payment to any other person or entity, to exploit, and to authorize Togu to exploit, Your Content in all manners contemplated by these Terms. You waive all moral rights in Your Content which may be available to you in any part of the world and confirm that no such rights have been asserted. None of Your Content will be subject to any obligation, whether of confidentiality, attribution or otherwise, on our part and we will not be liable for any use or disclosure of any Your Content.
E. Your Account
Access to parts of the Services requires the creation of a user account, including a user name and password that you choose upon registration. You are solely responsible and liable for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your account information and all use or charges incurred from use of the Services with your account. You agree to notify Togu promptly of any unauthorized use of your account or password.
F. Delays
There may be delays, omissions, or inaccuracies in the Services, including the Togu Content. The Service may become unavailable due to maintenance or malfunction of computer equipment or other reasons.
G. Job Postings
Togu may list open employment positions on or through the Services. These postings are for informational purposes only and are subject to change without notice. You should not construe any information on or made available through the Services as an offer for employment or promotion or solicitation for employment not authorized by the laws and regulations of your locale.
5. INTELLECTUAL PROPERTY
A. Ownership of the Services
The Services, including the Togu Content, including all intellectual property rights in and to the Services and any changes, modifications or corrections thereto, are the property of Togu and its affiliates and licensors, and are protected from unauthorized copying and dissemination by United States copyright law, trademark law, international conventions and other intellectual property laws. By way of example only, and not as a limitation, “Togu” and the Togu logo are registered trademarks of Togu LLC, under the applicable laws of the United States and/or other countries. Other Togu product or service names or logos appearing on or through the Services are either trademarks or registered trademarks of Togu and/or its affiliates. All other product names are trademarks or registered trademarks of their respective owners. Togu and its affiliates and licensors reserve all rights in and to the Services not granted expressly in these Terms.
Nothing shall be construed as granting to you, by implication, estoppel, or otherwise, any license or right to use the Services or any Togu Content, through the use of framing or otherwise, except: (a) as expressly permitted by these Terms; or (b) with the prior written permission of Togu or such third party that may own such Togu Content.
B. Services License
Subject to your compliance with these Terms, Togu grants to you a limited, non-exclusive, non-transferable, revocable license to access and use the Services for your personal, non-commercial purposes.
C. App License
Subject to the terms of these Terms, Togu grants to you a limited, non-transferable, non-exclusive, revocable license to download, install and use one copy of the App in object code form only on an interactive wireless device that you own or control.
ACKNOWLEDGMENT. The following applies to you only if you are using the App from the Apple App Store. To the extent the other terms and conditions of these Terms are less restrictive than, or otherwise conflict with, the terms and conditions of this paragraph, the more restrictive or conflicting terms and conditions in this paragraph apply, but solely with respect to App from the Apple App Store. You acknowledge and agree that these Terms are solely between you and Togu, not Apple, and that Apple has no responsibility for the App or content thereof. Your use of the App must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price, if any, for the App to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms. You and Togu acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the App or your possession and/or use of the App, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. You and Togu acknowledge that, in the event of any third-party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, Togu, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You must comply with applicable third party terms of agreement when using the App. You and Togu acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of these Terms as they relate to your license of the App, and that, upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary thereof.
D. Feedback
By sending us any feedback, ideas, suggestions, documents or proposals (“Feedback”), you grant to us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works of, publish, distribute, sublicense and otherwise exploit the Feedback, and you waive all moral rights in the Feedback which may be available to you in any part of the world and confirm that no such rights have been asserted. You represent and warrant that the Feedback does not contain any confidential or proprietary information of any third party, and that Togu may use your Feedback without restriction or obligation to you or any third party.
E. Notice and Take Down Procedures; Copyright Agent
If you believe any Togu Content infringes your copyright, you may request removal of those materials (or access thereto) by contacting Togu’s copyright agent (identified below) and providing the following information: identification of the copyrighted work that you believe to be infringed, including a description of the work, and where possible a copy or the location (e.g., URL) of an authorized version of the work; identification of the material that you believe to be infringing and its location, including a description of the material and its URL or any other pertinent information that will allow us to locate the material; your name, address, telephone number and e-mail address; a statement that you have a good faith belief that the complained of use of the materials is not authorized by the copyright owner, its agent, or the law; a statement that the information that you have supplied is accurate, and indicating that “under penalty of perjury,” you are the copyright owner or are authorized to act on the copyright owner’s behalf; and a signature or the electronic equivalent from the copyright holder or authorized representative.
Togu's agent for copyright issues relating to the Services is as follows:
Copyright Agent Togu LLC 345 Hudson Street, Suite 6A, New York, NY 10014 E-Mail address: CopyrightAgent@toguknives.com
In an effort to protect the rights of copyright owners, Togu maintains a policy for the termination, in appropriate circumstances, of subscribers and account holders of the Services who are repeat infringers.
6. TERMINATION
A. Termination By You
You may deactivate your account and discontinue your use of the Services at any time. In order to deactivate your account, please contact us at help@toguknives.com. You understand that Your Content may continue to exist and be used on or through the Service even after such deactivation.
B. Termination By Togu
Any violation of these Terms, including any of the prohibitions in Section 4(C), may result in suspension or termination of your access to the Services and/or removal of Your Content. Togu may also terminate your account if Togu determines that your conduct poses a risk or liability to Togu, or for any other reason as determined by Togu in its sole discretion.
C. Effects of Termination
In each of these cases, the Terms will terminate, including your license to use the Services, except that the following sections shall continue to apply: 2(A) (Collections), 2(B) (Rental Fee, Late Fees, Lost Return Packaging), 2(C), 3(A) (Failure to Pay Fees), 4(A)-(D), 5(A), 5(C) (Acknowledgment), 5(D), 6(C), and 7-9, including the mandatory arbitration and class-action waiver provisions.
7. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
A. Limited Warranties
The limited warranties set out in Section 2(B) for rentals apply only to you and may not be assigned, sold or transferred to any third party. No other warranties are granted by Togu in connection with the Services or Products. The limited warranties shall not apply to any matters arising from your violation of these Terms.
Your sole and exclusive remedy and Togu's sole and exclusive liability for a breach by Togu of the limited warranties set out in Section 2(B) shall be, at Togu's option, Togu's use of its commercially reasonable efforts to replace the non-conforming Product in a timely manner or a refund of your Rental Fee, as applicable (excluding insurance and delivery charges).
B. Disclaimer of Warranties
EXCEPT FOR THE LIMITED WARRANTIES SET OUT IN SECTION 2(B), THE SERVICES AND PRODUCTS, INCLUDING ALL TRIAL PROGRAMS, ARE PROVIDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR USE. SPECIFICALLY, BUT WITHOUT LIMITATION, Togu DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE Togu CONTENT, ARE CORRECT, ACCURATE, RELIABLE OR COMPLETE; (II) THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; (III) DEFECTS WILL BE CORRECTED, (IV) THE SERVICES OR THE SERVER(S) THAT MAKES THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (V) THE PRODUCTS WILL BE FIT FOR YOUR INTENDED PURPOSE OR OTHERWISE ACCORD WITH YOUR EXPECTATIONS. THIS DISCLAIMER DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
C. Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL Togu BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR OTHER DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SERVICES AND/OR THE PRODUCTS, EVEN IF Togu HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE AS SET FORTH UNDER SECTION 7(A) OR TO DISCONTINUE YOUR USE OF THE SERVICES AND TERMINATE THESE TERMS. THE FOREGOING LIMITATION OF LIABILITY DOES NOT APPLY TO NEW JERSEY RESIDENTS OR TRANSACTIONS OR WHERE OTHERWISE PROHIBITED BY LAW.
8. DISPUTE RESOLUTION, ARBITRATION AND CLASS ACTION WAIVER
This Section 8 includes an arbitration agreement and an agreement that all claims will be brought either in arbitration or in small claims court and, in either case, only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully.
A. Informal Process First
Both you and Togu agree that in the event of any dispute between us, you and Togu will first contact the other party and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution.
B. Mandatory Arbitration of Disputes
All disputes between you and Togu will be resolved by BINDING ARBITRATION. YOU HEREBY AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract, except for matters that may be taken to small claims court. Your rights will be determined by a neutral arbitrator, NOT a judge or jury. You agree that any dispute arising out of or relating to this Agreement, including with respect to the interpretation of any provision of this Agreement or concerning the performance or obligations of Togu or you, shall be resolved by mandatory and binding arbitration submitted to JAMS in accordance with its Commercial Arbitration Rules at the request of either Togu or you pursuant to the following conditions:
(a) Place of Arbitration Hearings. Unless you elect to conduct the arbitration by telephone or written submission, an in-person arbitration hearing will be conducted at a JAMS facility in your area or at a JAMS facility in New York City.
(b) Selection of Arbitrator shall be made pursuant to JAMS’ Streamlined Arbitration Rules & Procedures or JAMS’ Comprehensive Arbitration Rules & Procedures, depending on the amount of the claim as specified herein.
(c) Conduct of Arbitration. The arbitration shall be conducted by a single neutral arbitrator under JAMS’ Streamlined Arbitration Rules & Procedures. For claims exceeding $5,000.00, the arbitration shall be conducted under JAMS’ Comprehensive Arbitration Rules & Procedures Subject to the applicable JAMS procedure, the arbitrator shall allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration. The arbitrator(s) shall have no power or authority to amend or disregard any provision of this section or any other provision of these Terms of Service, except as necessary to comply with JAMS’ Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness. The arbitration hearing shall be commenced promptly and conducted expeditiously. If more than one day is necessary, the arbitration hearing shall be conducted on consecutive days unless otherwise agreed in writing by the parties.
(d) Findings and Conclusions. The arbitrator(s) shall, after reaching judgment and award, prepare and distribute to the parties written findings of fact and conclusions of law relevant to such judgment and award and containing an opinion setting forth the reasons for the giving or denial of any award. The award of the arbitrator(s) shall be final and binding on the parties, and judgment thereon may be entered in a court of competent jurisdiction.
(e) Costs and Fees. You will be subject to a $250 filing fee to initiate an arbitration. To the extent permitted by JAMS procedures, each party shall bear its own costs and expenses and an equal share of the arbitrators' and administrative fees of arbitration, with Togu remaining responsible for its share of costs, expenses and fees plus any costs, expenses and fees required of it under JAMS procedures.
(f) Litigation. The Federal Arbitration Act and federal arbitration law apply to this Agreement. Either party also may, without waiving any remedy under this Agreement, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the establishment of the arbitral tribunal (or pending the arbitral tribunal's determination of the merits of the controversy). We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
(g) Other. The Federal Arbitration Act and federal arbitration law apply to these Terms and Conditions.
C. Class Action Waiver
The parties expressly waive any ability to maintain any class action in any forum. Any arbitration, claim or other proceedings by or between you and Togu shall be conducted on an individual basis and not in any class action, mass action, or on a consolidated or representative basis. You further agree that the arbitrator shall have no authority to award class-wide relief or to combine or aggregate similar claims or unrelated transactions. You acknowledge and agree that this agreement specifically prohibits you from commencing arbitration proceedings as a representative of others. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
9. MISCELLANEOUS
JURISDICTIONAL ISSUES. Togu makes no representation that the Services are appropriate or available for use outside the United States. Those who choose to access the Services or any part thereof from outside the United States do so at their own risk and are responsible for compliance with applicable local laws. The Services may contain references or cross references to products or services that are not available or approved by the appropriate regulatory authorities in your country. Such references do not imply that Togu intends to announce or make available such products or services to the general public, or in your country. Contact Togu at help@toguknives.com to determine which products and services may be available to you.
EXPORT LAWS. The laws of the United States of America prohibit the export of certain software and data to particular persons, territories, and foreign states. You agree not to export the Services, including the Togu Content, or any part thereof, in any way, in violation of United States law.
GOVERNING LAW AND VENUE. These Terms are governed and interpreted pursuant to the laws of the State of New York, notwithstanding any principles of conflicts of law. Any disputes in connection with these Terms that, notwithstanding the mandatory arbitration provision we have agreed to above, results in court action, shall be resolved exclusively by a state or federal court located in New York County, New York, and you specifically consent to the personal jurisdiction of such courts and waive any claim of forum non conveniens.
ENTIRE AGREEMENT. These Terms are the entire agreement between you and Togu relating to the subject matter herein and shall not be modified except by Togu in accordance with these Terms, or as otherwise agreed in writing by you and Togu. No employee, agent or other representative of Togu has any authority to bind Togu with respect to any statement, representation, warranty or other expression not specifically set forth in these Terms.
SEVERABILITY AND WAIVER. If any part of these terms is unlawful, void, or unenforceable, that part will be deemed severable and will not affect the validity and enforceability of the remaining provisions. The preceding sentence does not apply to New Jersey residents or transactions. The failure of a party to require performance of any provision will not affect such party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of these Terms or any provision of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.
ASSIGNMENT. You may not assign or transfer these Terms or any of your rights or obligations under these Terms. Togu may assign these Terms at any time without notice to you.
FORCE MAJEURE. Togu will not be liable for, or be considered to be in breach of these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond Togu’s reasonable control.
CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to Togu at legalinfo@toguknives.com or Togu LLC, Attn: Legal, 218 Brookline St Cambridge, MA 02139