(Updated October, 2017)
Welcome to the ToucanTrader.com website (the “Site”). These Terms of Service are a contract between you and Toucan Trading Inc. (“the Company,” “we,” “our,” and “us”) (the “Agreement”). The Agreement governs your purchase and use of the Site, as well as any services provided to you by us. PLEASE READ THIS AGREEMENT, INCLUDING THE MANDATORY ARBITRATION PROVISION INCLUDED BELOW, CAREFULLY BEFORE PROCEEDING.
You assent to the Agreement when you make a purchase by checking the box that provides “I accept the Terms and conditions", including the arbitration provision contained therein prior to your purchase. In addition, when you use any of the services (e.g., Customer Reviews) provided by the Site, you assent to the rules, guidelines, policies, terms, and conditions applicable to such service, and they are incorporated into this Agreement by this reference. We reserve the right to change this Site at any time. We also reserve the right to change this Agreement for future orders at any time.
USE OF SITE
You represent and warrant that you are at least 18 years old or visiting the Site under the supervision of a parent or guardian.
Subject to the terms of this Agreement, we hereby grant you a limited, revocable, non-transferable and non-exclusive license to access and use the Site by displaying it on your internet browser only for the purpose of shopping for products sold on the Site and not for any commercial use or use on behalf of any third party, except as explicitly permitted by us in advance. Any breach of this Agreement shall result in the immediate revocation of the license granted in this paragraph without notice to you.
Except as permitted in the paragraph above, you may not reproduce, distribute, display, sell, lease, transmit, create derivative works from, translate, modify, reverse-engineer, disassemble, decompile or otherwise exploit this Site or any portion of it unless expressly permitted by us in writing. You may not make any commercial use of any of the information provided on the Site or make any use of the Site for the benefit of another business unless explicitly permitted by us in advance. We reserve the right to refuse service, terminate accounts, and/or cancel orders at our discretion, including, without limitation, if we believe that customer conduct violates applicable law or is harmful to our interests.
You shall not upload to, distribute, or otherwise publish through this Site any Content, information, or other material that (a) violates or infringes the copyrights, patents, trademarks, service marks, trade secrets, or other proprietary rights of any person; (b) is libelous, threatening, defamatory, obscene, indecent, pornographic, or could give rise to any civil or criminal liability under U.S. or international law; or (c) includes any bugs, viruses, worms, trap doors, Trojan horses or other harmful code or properties.
Content provided on this site is solely for informational purposes. It is your sole responsibility to consult a licensed physician or qualified healthcare professional for advice, diagnosis, and/or treatment of any health related condition. Submissions or opinions expressed on this Site are that of the individual expressing such Submission or opinion and do not reflect our opinions.
We may assign you a password and account identification to enable you to access and use certain portions of this Site. Each time you use a password or identification, you will be deemed to be authorized to access and use the Site in a manner consistent with the terms of this Agreement, and we have no obligation to investigate the authorization or source of any such access or use of the Site. YOU WILL BE SOLELY RESPONSIBLE FOR ALL ACCESS TO AND USE OF THIS SITE BY ANYONE USING THE PASSWORD AND IDENTIFICATION ORIGINALLY ASSIGNED TO YOU WHETHER OR NOT SUCH ACCESS TO AND USE OF THIS SITE IS ACTUALLY AUTHORIZED BY YOU, INCLUDING WITHOUT LIMITATION, ALL COMMUNICATIONS AND TRANSMISSIONS AND ALL OBLIGATIONS (INCLUDING WITHOUT LIMITATION FINANCIAL OBLIGATIONS) INCURRED THROUGH SUCH ACCESS OR USE. You are solely responsible for protecting the security and confidentiality of the password and identification assigned to you. You shall immediately notify us of any unauthorized use of your password or identification or any other breach or threatened breach of this Site’s security.
REVIEWS AND COMMENTS
Except as otherwise provided elsewhere in this Agreement or on the Site, anything that you submit or post to the Site and/or provide us, including without limitation, ideas, know-how, techniques, questions, reviews, comments, and suggestions (collectively, “Submissions”) is and will be treated as nonconfidential and nonproprietary, and we shall have the royalty-free, worldwide, perpetual, irrevocable and transferable right to use, copy, distribute, display, publish, perform, sell, lease, transmit, adapt, create derivative works from such Submissions by any means and in any form, and to translate, modify, reverse-engineer, disassemble, or decompile such Submissions. All Submissions shall automatically become our sole and exclusive property and shall not be returned to you.
In addition to the rights applicable to any Submission, when you post comments or reviews to the Site, you also grant us the right to use the name that you submit with any review, comment, or other Content, if any, in connection with such review, comment, or other content. You represent and warrant that you own or otherwise control all of the rights to the reviews, comments and other Content that you post on this Site and that use of your reviews, comments, or other Content by us will not infringe upon or violate the rights of any third party. You shall not use a false email address, pretend to be someone other than yourself or otherwise mislead us or third parties as to the origin of any Submissions or Content. We may, but shall not be obligated to, remove or edit any Submissions (including comments or reviews) for any reason.
All text, graphics, button icons, images, audio clips, and software (collectively, “Content”), belongs exclusively to Toucan Trading, Inc,, or its affiliates. The collection, arrangement, and assembly of all Content on this Site (the “Compilation”) belongs exclusively to Toucan Trading Inc. or its affiliates. All software used on this Site (the “Software”) is the property of Toucan Trading Inc., its affiliates or its Software suppliers. The Content, the Compilation and the Software are all protected by U.S. and international copyright laws. The use of any of our trademarks or service marks without our express written consent is strictly prohibited. You may not use our trademarks or service marks in connection with any product or service in any way that is likely to cause confusion. You may not use our trademarks or service marks in any manner that disparages or discredits us. You may not use any of our trademarks or service marks in meta tags without prior explicit consent.
We value your privacy and information including but not limited to: name, address, phone numbers and email addresses. Unless stated elsewhere in this agreement information you provide to us will be used only for transactions, exchange of ideas, and marketing of our products. We will not distribute or sell your information outside of our business and our business partners as necessary for completing our service to you. We make no express or implied promise regarding the security used by the Site or that your information will not be accessed in an unauthorized manner despite the security we provide.
TERMINATION AND EFFECT OF TERMINATION
In addition to any other legal or equitable remedies, we may, without prior notice to you, immediately terminate the Agreement or revoke any or all of your rights granted under this Agreement. Upon any termination of this Agreement, you shall immediately cease all access to and use of the Site and we shall, in addition to any other legal or equitable remedies, immediately revoke all password(s) and account identification issued to you and deny your access to and use of this Site in whole or in part. Any termination of this Agreement shall not affect the respective rights and obligations (including without limitation, payment obligations) of the parties arising before the date of termination.
This Site may be accessed from countries other than the United States. This Site may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use this Site outside the United States you are responsible for complying with your local laws and regulations.
In the event a product is listed at an incorrect price or with incorrect information due to typographical error or error in pricing or product information received from our suppliers, we shall have the right to refuse or cancel any orders placed for product listed at the incorrect price. We shall have the right to refuse or cancel any such orders whether or not the order has been confirmed and your payment card charged. If your payment card has already been charged for the purchase and your order is canceled, we shall immediately issue a credit to your payment card account in the amount of the charge.
This Site may contain links to other sites on the Internet that are owned and operated by third parties. You acknowledge that we are not responsible for the operation of or content located on or through any such site.
If you believe that your work has been copied in a way that constitutes copyright infringement, please contact us.
This Site is created and controlled by us in the State of Ohio, USA. As such, the laws of the State of Ohio will govern any and all claims related to or arising out of your use of the Site or these disclaimers, terms, and conditions, without giving effect to any principles of conflicts of laws.
READ THIS ARBITRATION PROVISION CAREFULLY: This Section impacts how legal claims arising under this Agreement are resolved. Under the terms of this provision (the “Arbitration Provision”), and except as set forth below, Claims (as defined below) will be resolved by individual (and not class-wide) binding arbitration in accordance with this provision if you or we elect it. If a Claim is arbitrated, neither you nor we will have the right to: (1) have a court or a jury decide the Claim; (2) engage in information-gathering (discovery) to the same extent as in court; (3) participate in a class action, private attorney general or other representative action in court or in arbitration; or (4) join or consolidate a Claim with those of any other person.
The terms “Company,” “we,” “us” and “our,” solely as used in this Arbitration Provision and in addition to the meaning set forth above, also refer to our employees, officers, directors, partners, controlling persons, subsidiaries, affiliates, predecessors, acquired entities, successors and assigns.
“Claim” means any demand, cause of action, complaint, claim, asserted right, or request for monetary or equitable relief, whether past, present or future, and based upon any legal theory, including contract, tort, consumer protection law, fraud, statute, regulation, ordinance, or common law, which arises out of or relates to this Agreement or your purchasing of products from the Site, whether related to the product(s)’ quality, representations about the product(s), information you entered into the Site, or otherwise. The term Claim is intended to be interpreted as broadly as permitted under applicable law.
Agreement to Arbitrate Claims: Except if you opt out as provided below, both you and the Company may elect to arbitrate any Claim. This means that by agreeing to this Agreement, you waive your right to sue us in Court, except if you opt out as provided below. agree that any claim or dispute arising from or related to this Agreement, including those based on Statute, shall be settled by biblically based mediation and, if necessary, arbitration.
Electing Arbitration: If you or we elect to arbitrate a Claim, the party electing arbitration must notify the other party in writing (the “Notice”). Your Notice to us shall be sent to Toucan Trading Inc. P.O Box 191 Union City IN, 47390 (“Notice Address”). Our Notice to you shall be sent to the most recent address for you in our files, or to the email address we have on file for you. If you purchased the products for resale, any arbitration will take place in Darke County, Ohio, unless you and the Company agree otherwise. If you purchased the products as a consumer (i.e., as an end-user of the products), any arbitration will take place in any venue in which a federal court would have jurisdiction over your Claims, unless you and the Company agree otherwise. If a party files a lawsuit in court asserting a Claim and the other party elects arbitration, such Notice may be asserted in papers filed in the lawsuit (for example, a motion by the defendant to compel arbitration of Claims asserted by the plaintiff in a lawsuit filed in court). After arbitration is compelled by a court, either party may commence the arbitration proceeding in accordance with the rules and procedures of the arbitration administrator specified in this section.
Arbitration Costs: We will pay the filing, administrative and/or arbitrator’s fees (“Arbitration Fees”) that we are required to pay pursuant to the arbitrator’s rules or the law. In addition, with respect to Arbitration Fees that you are required to pay under the arbitrator’s rules in connection with an individual arbitration you have commenced against us or that is compelled by a court, we will pay, or reimburse you for your payment of, any Arbitration Fees that exceed the filing fee for the federal court located in the venue in which the arbitration will take place if (a) you did not purchase the products for resale (i.e., bought them as the consumer end user), and (b) the amount of your Claim does not exceed $75,000. For us to pay these fees or reimburse you for your payment of these fees, you must notify us in writing of your request for reimbursement at the Notice Address. If this reimbursement provision applies, and you have already paid a filing fee to file a case in state or federal court, you will not be required to pay that amount again if the court compels arbitration.
Arbitration Administrator and Rules:
Any claim or dispute arising from or related to this Agreement, including those based on Statute, shall be settled by
biblically based mediation and, if necessary, arbitration in accordance with the Rules of Procedure for Christian Conciliation of the Institute for Christian Conciliation (ICC) and these rules are incorporated into this Agreement to the extent they are consistent with this Agreement. Judgment upon an arbitration award may be entered in any court otherwise having jurisdiction. You may obtain a copy of the rules/codes, and more information about initiating an arbitration at www.ICCPeace.com/Rules, If ICC can not serve, the parties may agree on another administrator, or a court may appoint one.
What Law the Arbitrator Will Apply: The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court, or by state or local laws that relate to arbitration proceedings. The arbitrator will, however, apply the same statutes of limitation and privileges that a court would apply if the matter were pending in court. In determining liability or awarding damages or other relief, the arbitrator will follow the applicable substantive law, consistent with the Federal Arbitration Act (FAA), that would apply if the matter had been brought in court. The law of the State of Ohio applies to this Agreement, and will be applied by the arbitrator, as set forth above in the Choice of Law section above.
The Arbitrator’s Decision and Award: At the timely request of either party, the arbitrator shall provide a brief written explanation of the grounds for the decision. The arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court.
Effect of Arbitration Award; Appeal: The arbitrator’s award shall be final and binding on all parties, except for any right of appeal provided by the Federal Arbitration Act.
Federal Arbitration Act: This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Provision.
CLASS ACTION WAIVER: If either you or the Company elect to arbitrate a Claim, neither you nor the Company will have the right: (a) to participate in a class action, private attorney general action or other representative action in court or in arbitration, either as a class representative or class member; or (b) to join or consolidate Claims with claims of any other persons. No arbitrator shall have authority to conduct any arbitration in violation of this provision or to issue any relief that applies to any person or entity other than you and/or us individually. The parties acknowledge that the Class Action Waiver is material and essential to the arbitration of any Claims and is non-severable from this Arbitration Provision. If the Class Action Waiver is voided, found unenforceable, or limited with respect to any Claim for which you seek class-wide relief, then the parties’ Arbitration Provision (except for this sentence) shall be null and void with respect to such Claim, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The Arbitration Provision, however, shall remain valid with respect to all other Claims. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.
Conflicts; Severability; Survival: This Arbitration Provision is intended to be broadly interpreted. In the event of a conflict between the provisions of this Arbitration Provision and the ICC rules, or any other terms of the Agreement, the provisions of this Arbitration Provision shall control. If any part of this Arbitration Provision is deemed or found to be unenforceable for any reason, the remainder shall be enforceable, except as provided by the Class Action Waiver. This Arbitration Provision shall survive the termination of any relationship between us, including the termination of the Agreement.
Right To Opt Out of This Arbitration Provision: This Arbitration Provision will apply to you and the Company and to all Claims as of the date you become bound under this Agreement, unless you opt out by providing proper and timely notice. To opt out, you must send us a written notice including your name, the purchase order number of the purchase that this Agreement governs, and a statement that you do not wish to be governed by the Arbitration Provision in this Agreement (the “Opt Out Notice”). To be effective, your written Opt Out Notice must be (1) sent to us by first class mail at Toucan Trading Inc. P.O. Box 191, Union City, IN 47390
(2) include the information set forth above; and 3) be signed by you. We must receive your Opt Out Notice within forty-five (45) days after the date of the purchase that this Agreement governs. Your decision to opt out will not affect any other provision of this Agreement.
LIMITATION OF CLAIMS
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. This provision only applies if you purchased products from the Site for resale to others (that is, it does not apply to consumer transactions).
If any these provisions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed several and shall not affect the validity and enforceability of any remaining provision.
Please send any questions or comments (including all inquiries unrelated to copyright infringement) regarding this Site to:
Toucan Trading Inc. P.O. Box 191, Union City, IN 47390