TERMS OF USE

Last Updated:  August 30, 2019

Toy Exchange Club Inc., (hereafter referred to as “Toy Exchange”, “our”, “us”, or “we”) offers a subscription toy (the “Toy Boxes”) rental program (“Subscription Service”) and personalized in-home toy consulting service (“Consulting Service”, and collectively with the Subscription Service, the “Services”) accessible via www.ToyExchange.ca and its subdomains (“Site”). The terms set out below (these “Terms of Use” in combination with our Privacy Policy which are incorporated by reference and available at our websites are our “Terms”) govern your use of our Site and associated Services.     

Please read our Terms (especially the clauses about liability and dispute resolution and class action waiver) carefully since they are legally binding.  By using our Site or its associated Services, you confirm that you accept our Terms and you agree to abide by them. Please note that these Terms are subject to change from time to time.

If you do not agree to our Terms, please do not use our Site or our Services. Should you have any questions, clarifications, comments or concerns regarding anything contained in these Terms of Use, please email info@toyexchange.ca.

Your use of our Services and Site shall be a clear acknowledgement that you agree with our Terms.

 Understanding Our Role

Toy Exchange provides Services in our own personal or corporate capacities, and should not be considered any other person, even if our Services bear another party’s logo. The User in these Terms of Service refers to the person who is subscribing to our Services. If you are using the Services on behalf of another person (including but not limited to not-for-profit, for-profit company, natural person or a governmental organization), you agree to the Terms on behalf of that organization, and represent you have authority to bind that organization to the terms contained herein. Toy Boxes provided as part of our Subscription Services are ours and ownership of any toys in such Toy Boxes only passes to you after you elect to purchase the applicable toy rather than return the toy to us. 

 

Membership Eligibility

To enroll as a member of our Subscription Service (“Member”), you must be 18 years of age or older, and able to form legally binding contracts. You are responsible for keeping your log-in information secure.    

 

Billing and Payments

 

By registering or choosing to make a purchase through the Toy Exchange Site or Services, you will be required to provide us with your credit card or payment information. You agree to provide us with accurate and current contact and payment information, including your name, billing and shipping address. You warrant that this information is true, and you are authorized to use such payment methods. You authorize Toy Exchange to automatically charge you for our Subscription Services (including gift purchases) on a quarterly basis at the then current quarterly fee rate, starting on the date you register and repeating each quarter. The Subscription Services auto-renew each quarter, which means that you will be automatically charged for the Subscription Services at the start of each quarter for the next quarters until you cancel your subscription.  Apart from subscription fees, as applicable, one-time purchases and consulting fees will be charged via a one-time transaction or will be added to your next payment for Subscription Services.  All applicable shipping fees and taxes will be added automatically to your payment obligation. All payments are non-refundable. If you would like to dispute a payment, you must notify us within 30 days of incurring of the disputed charge.

Toy Exchange reserves the right to change the Services’ pricing, taxes and shipping charges at any time for any reason. You will be notified by email of upcoming pricing changes to our subscription program, allowing you the opportunity to cancel your membership if you do not wish to proceed under the new pricing structure. Utilizing your Subscription Services after notice of pricing changes shall imply your agreement with the changed amounts.

Promo and Discount Codes

All requirements included with any discount, promotional code, referral code or reward we offer (collectively “Promotions”) must be met in order to receive the discount/reward. The value of the Promotions will exist as defined in their respective offers and have no cash value. All Promotions are valid for one-time use only, and once used your subscription will renew at full price. Promotions cannot be applied to gift cards, taxes, shipping fees or other charges. Promotions will expire on the date defined in their respective offers.

 

Returns and Refunds

Toy Exchange does not accept or provide refunds for any prepaid fees, consulting fees, membership fees or subscription fees.  Purchases of gift cards are non-refundable.  We do not provide refunds for Toys purchased from a Toy Box.  

 

Shipping and Delivery

We will do our best to deliver orders made via our Subscription Services to the address you provide us. Our shipping and delivery services do not include redirecting or forwarding the Toy Boxes should you change and fail to update your address. We make no guarantees regarding how soon address information is updated. For best results, you must notify us immediately of address changes before Toy Boxes are scheduled to be shipped.  

Missing Items and Replacements

You must notify us of any damaged or missing toys/parts by email within five (5) days of receipt of Toy Boxes. A photograph of the damaged/missing toys must be included in the email. A replacement item may be issued at the sole discretion of Toy Exchange. Any opinion expressed by Toy Exchange either before or prior to shipment about the efficacy of the contents of our Toy Boxes is ours alone and should not be interpreted as a binding representations regarding the quality or suitability of the contents of our Toy Boxes. If your toys are not delivered, you notify us within 10 days of the shipment date.

Membership Cancellation

You may cancel your membership to the Subscription Service at any time by emailing info@toyexchange.ca. You must return all the contents of all Toy Boxes within 10 days of cancellation of your Membership, or you will be charged the current market price for the contents of all unreturned Toy Boxes.  This charge is non-refundable, even if the contents of the Toy Boxes are returned at a later date. Upon cancellation of your Subscription Service, you will not receive a refund of any fees that have already been received by Toy Exchange, including prepaid fees, membership fees or subscription fees. Any referral credits on your account will be lost with termination of your membership.

Toy Exchange reserves the right to cancel or suspend your account without prior notice if we believe that you have violated the terms outlined in these Terms.

Toy Exchange Limitations

Members of Toy Exchange will receive Toy Boxes featuring a curated selections of toys. The contents of these selections may occasionally change or be updated without prior notice. We will ensure that the contents of our Toy Boxes are shipped in a clean condition, but cannot guarantee the condition of the contents of our Toy Boxes following shipment, and make no binding representations regarding the quality or suitability of the contents of our Toy Boxes.

Toy Exchange will not charge a member for normal wear of the contents (toys) in the Toy Boxes. Normal wear is defined for the purposes of our Terms as minor scratches or dents to the toys which you will be able to utilize for the agreed upon time before shipping back to us. A nominal insurance fee (the “Insurance”) is included in the Subscription Service payment to cover occasional damage to the contents of Toy Boxes. If more than one item in a Toy Box is returned broken, missing a piece, or with significant damage, the member will be charged a replacement fee equal to the current market value of all damaged items, less the current market value of the first damaged item covered by the Insurance. If the contents of Toy Boxes are consistently returned damaged, Toy Exchange may, at our sole discretion, void a member’s Insurance and begin to charge fair market value for replacement of all Toy Box items that are returned damaged. Insurance and/or replacement fees do not represent the purchase of a Toy Box item by the member, and all damaged items must be returned to Toy Exchange.  Except for those items which are charged for sale in the normal course if you decide to buy a toy from a Toy Box, a member will be charged a replacement fee equal to fair market value for all toys or content in the Toy Boxes which are not returned to Toy Exchange for any reason.

Code of Conduct

All members of Toy Exchange must agree to the following:

•           to return the contents of all Toy Boxes in a clean condition;

•            to care for Toy Box items as if they were their own, but in any event at least a reasonable level of care;

•           to clean the all Toy Box items in accordance with the instructions provided in the Toy Box; and

•           to pay for the replacement of lost or missing Toy Box items.

 

Representations, Warranties and Covenants

You acknowledge and agree that: (1) you are 18 years old or older; (2) you have the authority to bind yourself, or such other party which you may be representing, to our Terms; (3) your use of the Services shall only be for purposes that are permitted by our Terms; and (4) the information about you, as provided to us, is current and accurate and shall be updated as needed by you to allow us to remain current in respect of your information.

You promise that you shall not, using our Services, directly or indirectly:

  1. use or allow the use of the Services for any purpose other than what is authorized by us;

  2. without our permission, use our marks, including any logos or graphics and names, associated with us and the Services in accordance with our policies as published on our website; 

  3. involve commercial activities or sales , such as contests, sweepstakes and other sales promotions, barter or advertising in respect of any item we provide under the Services;

  4. use the Services to try or actually deceive any person;

  5. impersonate any person, or to misrepresent your identity or affiliation with any person or organization;

  6. access the Services in order to build a commercially available product or service which competes with the Services;

  7. copy any features, functions or designs which are part of the Services;

  8. promote any illegal activity, or advocate, promote or assist any unlawful act;

  9. act in a manner that could cause a reasonable person annoyance, inconvenience or needless anxiety or upset, embarrass, alarm or annoy any such person;

  10. make statements, on any part of the Services on any topic associated with us, which could reasonably be considered false or misleading; and

  11. willfully tamper with the security of any part of the Services, including attempting to probe, scan or test the vulnerability of any part of our Site.

 

We reserve the right to investigate and prosecute, to the fullest extent of the law, any violation of the above. We may further suspend, modify or terminate your use of the Services immediately at our sole discretion.

Rights in our Intellectual Property

We own all Intellectual Property Rights in the Services (including the look and feel of our Services, certain content created by us, our partners and our users). Other than usage rights, you don’t have any rights of any kind in our Services. Our Terms do not transfer any intellectual property between you and us, and we reserve all rights that are not expressly granted. We will own all Anonymized Information (as defined below) and will be free to use it in compliance with our Privacy Policy to improve our Services.

 

Rights to Handle Data

You grant us a non-exclusive right to handle your data to (i) enable you to utilize the Services, and (ii) generate information derived from your use of the Services including, usage information, metrics and other data points which are not able to be reverse engineered to reveal any party’s identity (“Anonymized Information”).

You agree that all data which is handled by us may be, without further required consent by you, handled by a third-party for purposes which serve our business requirements, including data processing, monitoring or storage, or for regulatory or other reasons which are imposed on us in the jurisdiction we operate (in the unlikely event we receive a disclosure request from an authorized party, we reserve the right to disclose user identities when required to do so by law, including in response to a law enforcement request supported by a valid court order).

We respect your privacy and will handle your data in ways which is respectful and preserves your privacy as set out in our Privacy Policy. You agree that you will waive and hold us harmless from any claims resulting from any action taken by us during or as a result of its investigations and from any actions taken as a consequence of investigations by either us or law enforcement authorities.

 

Rights to Inputs

If you ever make, or are ever invited by us to make comments, improvement suggestions or provide other content (“Input”), you will do so without any expectation from us and we shall have a royalty-free, worldwide, transferrable, sublicensable, irrevocable, perpetual license to use or incorporate such Input into our Services or our business as we see fit.  We have no obligation to monitor the submission of, or make use of, such Input.

 

Right to Communicate

You agree that when you provide us your e-mail address or personally identifying information (e.g. name, phone number) during or prior to accessing our Services, you: (i) consent to receive communications from us through electronic means, including via the email address or phone number you have provided us; and (ii) agree that our Terms, agreements, notices, disclosures and other communications that we provide you electronically satisfy any legal requirement that such communications would satisfy if they were in writing and physically presented to you.

Disclaimers

IN ADDITION TO ANY OTHER DISCLAIMERS SET OUT IN OUR TERMS, THE SERVICES PROVIDED, INCLUDING ALL CONTENT, TOOLS, AND FUNCTIONS, ARE “AS IS” WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND MADE BY US. WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR ACCURACY, SAFETY OR RESULTS, CAUSAL OR CORRELATIONAL, IN RESPECT OF ANY SERVICES COMPONENT.   TOY EXCHANGE WILL NOT BE HELD LIABLE FOR ANY DAMAGE INCURRED BY YOU OR YOUR PROPERTY AS A RESULT OF USE OF SERVICE OR ANY REFERRAL PROGRAM.

WE ASSUME NO OBLIGATION AND PROVIDE NO GUARANTEES WHATSOEVER IN CONNECTION WITH THE PERFORMANCE OF THIRD PARTIES OR ANY CONTENT OR SERVICES COMPONENT’S SUITABILITY OR AVAILABILITY AND WE EXPRESSLY DISCLAIM ANY ROLE IN MONITORING SUCH CONTENT.  

WE ARE NOT RESPONSIBLE TO YOU FOR THE CONDUCT OF ANY SUCH THIRD PARTY OR FOR ANY RELATED DELAY, ERROR, INACCURACY, OR INACCESSIBILITY OF ANY MATERIAL OR SERVICE THEY SUPPLY.

WE DO NOT WARRANT THAT THE SERVICES OR THE FUNCTIONS THEREIN WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ANY TRANSMISSION TO AND FROM US OR COMMUNICATION BY YOU, OR BETWEEN ANY PERSONS IN RESPECT OF OURSERVICES, IS CONFIDENTIAL OR SECURE. YOU AGREE THAT YOUR USE OF THE SERVICES CREATES NO OBLIGATION UPON US, THE SUPPLIER OF OUR SITE, OTHER THAN AS AGREED UNDER OUR TERMS AND THERE IS NO RELATIONSHIP (WHETHER CONTRACTUAL, FIDUCIARY OR OTHERWISE) CREATED BETWEEN YOU AND US OTHER THAN PURSUANT TO THESE TERMS OF USE.

 

ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.

 

Indemnification

You agree to indemnify, defend and hold harmless Toy Exchange, its officers, directors, employees, agents, successors and permitted assigns from and against any and all expenses, claims and demands, losses, costs, damages, actions, suits or other proceedings (“Claims) including legal fees and disbursements, arising out of: (i) your use of the Services, including your violation of any of the provisions in these Terms of Use; (ii) allegation of facts that, if true, would constitute your breach of any of your representations, warranties, covenants or obligations under our Terms; or (iii) negligence or willful misconduct by you or any third party on your behalf in connection with the use of the Services provided by us.

We may, at our sole discretion, choose to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you shall not in any event settle any matter without our written consent.

 

Services Disclaimer & Limitation of Liability

Under no circumstances shall Toy Exchange, its directors, officers, representatives, and affiliates be liable for any indirect, incidental, special, consequential or exemplary damages arising from or relating to your use of the Services or the acts, omissions or conduct of any third party which interacts with the Services in the process of your use of the Services or your use of any item in the Services.

WITHOUT LIMITING THE FOREGOING IN THIS SECTION, THE LIMIT ON TOTAL CUMULATIVE LIABILITY OWED BY TOY EXCHANGE TO YOU OR ANY PERSON FOR ANY CLAIMS ARISING FROM OR RELATING TO THE SERVICES SHALL BE LIMITED TO A MAXIMUM OF ONE (1) CANADIAN DOLLAR.

Services Updates and Revisions

Toy Exchange may update or revise our Terms at any time. You agree to take full responsibility to notify yourself of such updates, and your continued use of the Site and Services constitutes agreement to such updates.

Term and Termination

Our Terms shall be deemed to be applicable to you upon your use of the Services and shall only cease to apply to you upon an actual cancellation of your membership through the means stated in our Terms.  Abandonment or non-use of your membership will not lead to an automatic termination of your membership and our Terms will continue to apply to you.   

We may terminate your access to all or any part of the Services at any time, with or without cause and with or without notice, effective immediately and for any reason deemed appropriate in our sole discretion.

Except for the provisions set out in the Surviving Provisions clause, these Terms of Use shall no longer be applicable to you if your account is cancelled or terminated.

Upon termination of your account (i) all rights, licenses and authorizations granted pursuant to the Terms shall immediately terminate, and (ii) we may disable your access to the Services unless otherwise agreed upon.

Notwithstanding anything to the contrary in these Terms of Use, with respect to information and materials then in our possession or control, we may retain any of your data in our backups, archives and disaster recovery systems until such data is deleted in the ordinary course and all such retained data shall remain subject to all confidentiality, security and other applicable requirements of the Terms.

 

Governing Law

Our Terms and any access to or use of the Services shall be governed by, and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada therein, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction.

 

Arbitration

If any claim, dispute or controversy arises between you and us or any user who obtain Services under the Terms as a result of rights granted to you herein, and such issue cannot be resolved within a commercially reasonable timeframe, the dispute shall be settled in binding arbitration pursuant to the rules of Ontario's Arbitration Act (the “Rules”). There shall be one arbitrator selected in accordance with the Rules. The parties to the dispute shall equally share the fees of the arbitrator and the facility fees and such parties shall each bear their own legal costs and expenses of the arbitration; provided, that the arbitrator shall have the authority to award such fees, costs and expenses in the decision of the arbitrator. The arbitration shall be conducted in English. Notwithstanding the foregoing, each disputing party shall have the right to seek injunctive or other equitable relief that may be related to the breach of a party’s obligations or violation of the Intellectual Property Rights set forth in these Terms of Use.

Waiver of Class Proceedings

You hereby waive any right they may have to commence or participate in any class action lawsuit against Toy Exchange related to any claim, dispute or controversy, and, where applicable, you hereby agree to opt out of any class proceeding against Toy Exchange otherwise commenced.

 

Severability

If any portion or provision of the Terms shall to any extent be declared illegal or unenforceable by a court of competent jurisdiction, then the remainder of the Terms, or the application of such portion of provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of the Terms shall be valid and enforceable to the fullest extent permitted by law.

Assignment

You may not assign or delegate any rights or obligations under the Terms.

 

Headings and Summaries

The headings, captions and summaries in these Terms of Use are for convenience only and in no way define or describe the scope or content of any provision of these Terms of Use.

Other Rules of Interpretation and Definitions

Any reference to gender includes all genders; words importing the singular number only shall include the plural and vice versa; the word “or” is not exclusive; the words “including”, “includes” and “include” mean “including without limitation; and “shall” means “will” and “must”, all three of which can be changed interchangeably and shall not mean “may”; “handle” means to process, record, transfer, access, receive, use, disclose, retain, dispose of, destroy, manage, collect, store, or otherwise handle; “law” as used herein, means any statute, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any governmental authority.

Terms & Conditions Agreement

You confirm that you have read, understand and agree to these Terms of Use. These Terms supersede any prior conversations, proposals or other communications relating to the content of these Terms of Use.

© 2019 Toy Exchange Club, Inc.

Ontario, Canada

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