Updated: January 14, 2016
1. THIS AGREEMENT
1.1 Acceptance. Please read this Agreement carefully before accessing the Website. In order to use the Website, you must first agree to be bound by the terms and conditions set forth in this Agreement. By accessing the Website, Visitors indicate that they have read, understood and agree to be bound by the terms and conditions set forth in this Agreement. Registrants indicate that they have read, understood and agree to be bound by the terms and conditions set forth in this Agreement by means of a click-through consent, where provided by Toobydoo. If you do not agree to be bound by this Agreement, you are not authorized to use the Website. Furthermore, you are not authorized to use the Website if (i) you are not of legal age or otherwise do not have the legal capacity to form a binding contract with Toobydoo, or (ii) you are a person barred from using the Website either (a) under the laws of the country in which you reside or from which you are attempting to access the Website, or (b) due to prior violations of this Agreement.
1.2 Modification. We reserve the right to modify this Agreement at any time. You shall periodically review this Agreement to be aware of such modifications. You further agree that your continued use of the Website after any such modifications have been made shall be deemed to be your conclusive acceptance of any modified version of this Agreement. We will indicate that changes to this Agreement have been made by updating the date indicated after "Last Updated" at the beginning or end of this Agreement. We will be happy to provide you with prior versions of this Agreement upon your written request to us. If you do not agree to abide by the initial version and any modified version of this Agreement, then you are not authorized to use the Website. A current version of this Agreement is accessible via the footer of the Website's homepage.
2.1 Profile; Password. You will only be able to use certain functionality of the Website if you register with us. If you decide to register with us, you will receive a user ID and password ("Profile") to access your Registrant account ("Account"). You shall not to allow any third party to use your Profile or Account to access the Website and you shall strictly safeguard all information that would enable any individual or entity to access the Website by using your Profile. You are fully responsible for your failure to safeguard information and/or to permit any other person to access or use the Website using your Profile and/or Account, and for all activities that occur under your Profile and/or Account. You may not sell or otherwise transfer your Profile or Account or any portion thereof. You shall notify Toobydoo immediately of any unauthorized use of their Profile, Account or otherwise of the Website. You shall not be liable for any loss that results from the unauthorized use of any Profile or Account, either with or without your knowledge.
2.2 Accurate Information. You shall provide us with accurate, complete and current information about yourself during registration and at all other times, and you shall update all information provided to us or requested by us if and as soon as such information changes.
2.3 Disabling or Revocation of Account. We have the right to cancel your registration for any reason (without having to specify the reason) or for no reason at any time, as determined in our sole discretion, including without limitation if we believe you have violated this Agreement. If we disable access to your Account, you may be prevented from accessing the Website, your Account details and/or any files or other various Website materials, including without limitation all text, comments, icons, images, messages, tags, links, photographs, audio, video and other content (collectively, "Content") which are contained in or accessible through your Account, all of which may be deleted by us. Such disabling or canceling of your Account will mean that you may lose access to all Content submitted by you.
2.4 Cessation of Services. The form and nature of the products or services offered through the Website may change from time to time without prior notice to you. As part of our continuing innovation, Toobydoo may stop (permanently or temporarily) providing certain Website features to you in our sole discretion, without prior notice to you.
3.1 Products. Various of our products are offered for sale through the Website. In the event you wish to purchase any of these products, you will be asked by Toobydoo or an authorized third party on Toobydoo's behalf to supply certain information to us, including without limitation, your full name, address and credit card information. You shall provide us or such third party with accurate, complete and current information at all times, and to comply with the terms and conditions of any ancillary agreement that you may enter into which governs your purchase of any product.
3.2 Payments. Your right to any product that is available for purchase through the Website is conditional on our receipt of the appropriate full payment and related costs for such product. If such payment and costs cannot be charged to your credit card or if a charge is refunded for any reason, including chargeback, we reserve the right to cancel your order and/or suspend or terminate your Account. You are responsible for all charges made under your Account.
3.3 Taxes. You are responsible for paying all applicable taxes arising out of any purchase made under your Account or otherwise made by you.
3.4 Shipping. Please review our shipping rates at http://www.toobydoo.com/shipping.html. You are responsible for paying all such applicable rates.
3.5 Product Descriptions. We attempt to be as accurate as possible in describing products (including pricing) offered for purchase through the Website; however, we do not warrant or represent that all such descriptions are complete, current or error-free. If you purchase one of our products and such product was not accurately described or depicted on the Website, your sole remedy shall be to return such unused product to us within (18) days of your receipt thereof for a full refund (including your reasonable return shipping costs). We change our product descriptions and pricing from time to time, so you must check these details before ordering from us. We also cannot guarantee product availability.
3.6 Returns. If you have purchased a product offered through the Website that you wish to return to us, you must adhere to our Return Policy:http://www.toobydoo.com/returns.html Your sole remedy for any and all failures, delays or interruptions with respect to the ordering and delivery of our products ordered by you through the Website is limited to a refund for such products, if we determine in our sole discretion that you have complied with our Return Policy and thus that a refund is warranted. All products ordered through the Website are acquired by you "AS IS" and "WHERE IS".
4. INTELLECTUAL PROPERTY
4.1 Copyright. The Website contains various Content that is protected by the copyright laws of the United States and/or other jurisdictions. As between you and Toobydoo, Toobydoo owns all rights, title and interest (including without limitation all copyright, trademark, patent, trade secret and other intellectual property rights) in and to the Website (including without limitation all Content appearing therein), and you have no rights in and to the Website other than as expressly set forth in this Agreement. Except for that information which is in the public domain or for which you have been given express written permission by Toobydoo, no Content may be sold, leased, copied, reproduced, republished, uploaded, displayed, posted, transmitted, distributed, modified, publicly performed, used in any derivative works based thereon or otherwise used for any public or commercial purpose without the prior written consent of Toobydoo or, where applicable, our licensors. However, you may print copies of materials on the Website for your personal, noncommercial use only, provided that you must keep intact all copyright, trademark, and other proprietary notices appearing therein and that you use such materials solely in the manner permitted by this Agreement and not in any manner that competes with us.
4.2 Trademarks. The trademark "Toobydoo", are Trademarks and all names, graphics, designs, logos, page headers, button icons, scripts, commercial markings, trade dress, and service names appearing on the Website and which indicate a source of goods or services (collectively, the "Trademarks") belong exclusively to Toobydoo or those our licensors, sponsors, suppliers or other third parties, as indicated. Trademarks are protected by the trademark laws of the United States and/or other applicable jurisdictions. You may not use, copy, reproduce, republish, distribute or modify any Trademark in any way, including without but not limited to distribution of Content for advertising or publicity or otherwise, without our prior written consent or the consent of such third party Trademark holder, as applicable.
4.3 Removal of Notices. You shall not remove, obscure, or alter any proprietary rights notices (including copyright and Trademark notices) which may be affixed to or contained within any Content, and you shall abide by all such notices.
5. USAGE RESTRICTIONS. YOU SHALL NOT USE THE WEBSITE IN ANY MATTER THAT:
(a) is designed to interrupt, destroys or limit the functionality of, any computer software or hardware or telecommunications equipment (including without limitation by means of software viruses or any other computer code, files or programs);
(b) interferes with or disrupts the Website, services connected to the Website, or otherwise interferes with operations or services of the Website in any way;
(c) infringes any copyright, trademark, trade secret, patent or other right of any party, or defames or invades the publicity rights or the privacy of any person, living or deceased (or impersonates any such person);
(d) consists of any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; causes us to lose (in whole or part) the services of our internet service providers or other suppliers;
(e) links to materials or other content, directly or indirectly, to which you do not have a right to link;
(f) is false, misleading, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable, as determined by Toobydoo in its sole discretion;
(g) copies, modifies, creates a derivative work of, reverse engineers, decompiles or otherwise attempts to extract the source code of the software underlying the Website or any portion thereof;
(i) violates, or encourages anyone to violate, any applicable local, state, national, or international law, regulation or order.
6. LINKS; THIRD PARTY WEBSITES
The Website provides links to third party websites that we believe may be of possible interest to you. Because we do not endorse or otherwise have control over such websites, we are not responsible or liable, directly or indirectly, for (i) the availability of such websites, (ii) any content, data, text, software, music, sound, photographs, video, messages, tags, links, advertising, services, products, or other materials on or available from such websites, (iii) your participation, correspondence or business dealings with any third party found on or through the Website regarding payment and delivery of specific goods and services, and any other terms, conditions, representations or warranties associated with such dealings, which are solely between you and any such third party, or (iv) any damage or loss caused or alleged to be caused by or in connection with your interaction with any such third party. Your use of any website linked to from the Website is subject to the policies and procedures of the owner of such website, and your use of all such websites is subject to such policies and procedures and not to the terms and conditions of this Agreement. You understand that by using any third party website linked to from the Website, you may be exposed to content or other materials that are offensive, indecent, defamatory or otherwise objectionable.
7. DISCLAIMER OF WARRANTIES
YOUR USE OF THE WEBSITE IS "AS IS" AND "AS AVAILABLE", AND AT YOUR SOLE RISK. NEITHER TOOBYDOO NOR ANY OF ITS SHAREHOLDERS, DIRECTORS, OFFICERS, LICENSORS, AGENTS, EMPLOYEES, CONSULTANTS OR REPRESENTATIVES (COLLECTIVELY, THE "TOOBYDOO PARTIES") SHALL HAVE ANY LIABILITY, OBLIGATION OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS, DAMAGE, OR ADVERSE CONSEQUENCE ALLEGED TO HAVE HAPPENED OR WHICH HAS HAPPENED, DIRECTLY OR INDIRECTLY, THROUGH YOUR USE OF THE WEBSITE OR YOUR USE OF ANY OF OUR PRODUCTS. TOOBYDOO FURTHER DOES NOT MAKE ANY GUARANTY OF THE ACCURACY, CORRECTNESS, USEFULNESS OR COMPLETENESS OF, AND IS NOT LIABLE FOR LOSSES OR DAMAGES ALLEGED TO ARISE FROM OR ARISING FROM, ANY USE OF THE WEBSITE OR YOUR USE OF ANY OF OUR PRODUCTS, AND TOOBYDOO IS NOT RESPONSIBLE FOR ANY ERRORS OR OMISSIONS ALLEGED TO ARISE FROM OR ARISING FROM THE USE OF THE WEBSITE OR ANY OF OUR PRODUCTS. SPECIFICALLY, TOOBYDOO DISCLAIMS (I) ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE REGARDING THE WEBSITE AND ANY OF OUR PRODUCTS, AND (II) ALL WARRANTIES NOT EXPRESSLY MADE IN THIS AGREEMENT. FURTHER, UNDER NO CIRCUMSTANCES SHALL TOOBYDOO BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE ALLEGED TO ARISE OR ARISING OUT OF YOUR USE OF THE WEBSITE OR ANY OF OUR PRODUCTS, OR YOUR INTERACTION WITH ANY THIRD PARTY WEBSITE, WHETHER LINKED TO FROM THE WEBSITE OR OTHERWISE, INCLUDING WITHOUT LIMITATION YOUR USE OF ANY (A) PRODUCT OR SERVICE, OR (B) CONTENT, INCLUDING BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR ANY OFFENSIVE, INDECENT, DEFAMATORY OR OTHERWISE OBJECTIONABLE NATURE OF ANY CONTENT. ALL PRODUCTS ORDERED THROUGH THE WEBSITE ARE ACQUIRED BY YOU "AS IS" AND "WHERE IS": AND AT YOUR SOLE RISK. YOUR SOLE RECOURSE FOR ANY PRODUCTS THAT YOU PURCHASE THROUGH THE WEBSITE AND WISH TO RETURN IS SET FORTH IN OUR RETURN POLICY AND REQUIRES YOUR STRICT ADHERENCE TO ITS TERMS. IN THE EVENT THAT YOU PURCHASE A PRODUCT THROUGH THE WEBSITE THAT WAS NOT ACCURATELY DESCRIBED ON THE WEBSITE, OR IF WE MADE AN ERROR IN FULFILLING YOUR ORDER (E.G., WRONG ITEM, SIZE OR COLOR), THEN YOUR SOLE REMEDY SHALL BE TO RETURN SUCH UNUSED PRODUCT TO US WITHIN THIRTY (18) DAYS OF YOUR RECEIPT THEREOF FOR A FULL REFUND (INCLUDING YOUR REASONABLE RETURN SHIPPING COSTS).
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT SHALL ANY OF THE TOOBYDOO PARTIES BE LIABLE FOR LOST PROFITS OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH, DIRECTLY OR INDIRECTLY YOUR USE OF (I) THE WEBSITE (INCLUDING WITHOUT LIMITATION YOUR USE OF ANY CONTENT APPEARING THEREON), OR (II) ANY PRODUCT PURCHASED THROUGH THE WEBSITE, WHETHER OR NOT TOOBYDOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY OF THE TOOBYDOO PARTIES TO YOU OR ANY THIRD PARTY IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSER OF (A) ALL PRODUCTS PURCHASED IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE ARISING OF SUCH LIABILITY, OR (B) ONE THOUSAND DOLLARS ($1,000).
8.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS IN SECTIONS 7 OR 8 HEREOF MAY NOT APPLY TO YOU.
9. REPRESENTATIONS AND WARRANTIES
You shall indemnify, defend and hold harmless each of the Toobydoo Parties from all claims, demands, actions, causes of action and/or lawsuits (each, a "Claim" and collectively, "Claims") and all resulting costs, liabilities, losses, expenses, and damages, actual and consequential, direct and indirect, of every kind and nature, including without limitation reasonable attorneys' fees and disbursements (collectively, "Losses"), made by any third party due to or arising out of your (a) breach of any of your representations, warranties, covenants or obligations under this Agreement, (b) negligence or misconduct, or (c) violation of any law or regulation. You shall immediately provide all applicable Toobydoo Parties with prompt written notice of any Claim or potential Claim of which you become aware. Upon the assertion or commencement of any Claim against one or more of the Toobydoo Parties by any third party that may give rise to liability of any such Toobydoo Party hereunder, you shall assume the control of the defense of such Claim at your sole expense with counsel reasonably acceptable to each such applicable Toobydoo Party; provided, however, that each such Toobydoo Party may take part in and/or fully assume such defense, in its sole discretion and at its own expense, after you assume the control thereof. You shall not enter into any settlement of any Claim which any of the Toobydoo Parties believes is adverse to its interests, without receiving the prior written consent of each of the Toobydoo Parties affected by such Claim. In no event shall any of the Toobydoo Parties be obligated to participate in any settlement which any such party reasonably believes would have an adverse effect on such party's business interests.
12. NO ENDORSEMENT
Toobydoo is neither affiliated with, nor sponsored or endorsed by, any specific product, service, methodology or person. The owners of any third party Trademark or copyright appearing on the Website are not sponsors of Toobydoo or the Website and have not endorsed and are not affiliated with Toobydoo or the Website, and Toobydoo is not a sponsor and does not endorse any such third parties.
13. NO AGENCY
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created between you and Toobydoo by this Agreement.
All notices hereunder shall be given by certified mail, postage prepaid and return receipt requested, to: Toobydoo LLC LLC, Attn: Toobydoo Ecommerce Dept., 821 Englishtown Road, Old Bridge, NJ 08857 and to a Registrant at the address listed in such Registrant's Account. Notice shall be deemed given three (3) days after the date of such mailing.
15. GOVERNING LAW; JURISDICTION
This Agreement shall be governed by and construed in accordance with the internal laws of the State of New Jersey, excluding conflict of laws provisions thereof. You hereby agree to the personal and exclusive jurisdiction by and venue in the courts located within the County of Middlesex, State of New Jersey, and to receive service of process through certified mail or by other means sanctioned by law, and the parties expressly waive any claim of improper venue and any claim that such courts are an inconvenient forum.
16. TIMELY FILING OF CLAIMS
YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS WEBSITE, OR THE USE OF THIS WEBSITE, MUST BE FILED BY YOU PURSUANT TO SECTION 15 ABOVE WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR IS CLAIMED TO HAVE ARISEN.
You shall not to resell or assign your rights, duties or obligations under this Agreement and that any attempted assignment or delegation will be void and of no force or effect whatsoever. This Agreement may be automatically assigned by Toobydoo, in our sole discretion, to a third party, and such an assignment will inure to the benefit of our successors, assigns and/or licensees. Without limitation of the foregoing, we may sell, transfer or otherwise share some or all of our assets, including without limitation your personal information, with any parent company, subsidiary, joint venture, and a company under our common control, as well as with a potential acquirer, including without limitation in connection with a merger, reorganization, or sale of assets, or in the event of bankruptcy. In each such an event, the PII we have collected from you may be one of the assets transferred.
18. NO WAIVER
Our failure to act with respect to a breach by you or others does not waive our right to act with respect to a subsequent or similar breach or breaches. If Toobydoo does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which Toobydoo has the benefit of under any applicable law or regulation), such action or inaction shall not be taken to be a formal waiver of Toobydoo's rights, and all such rights or remedies shall still be available to Toobydoo.
If any provision of this Agreement is held to be invalid by a court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. Section headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. This Agreement and any ancillary terms and conditions referenced herein sets forth the entire understanding and agreement between us with respect to the subject matter hereof. The provisions of this Agreement shall survive termination or expiration to the extent necessary to carry out the obligations of you and Toobydoo hereunder.
20. CONTACT US
If you have any questions or concerns regarding the Website, please contact us by e-mail at email@example.com or write to us at Toobydoo LLC, Attn: Toobydoo Ecommerce Dept, 821 Englishtown Road, Old Bridge, NJ 08857.