March 12, 2019
The following Terms of Service (“Terms”) between you (“you” or “your”) and Trailtogo, and Kalanea LLC dba Trailtogo (“we,” “our,” “us,” or “TTG”) describes the terms and conditions on which you may access and use the TTG website located at Trailtogo.com (the “Site”), the TTG mobile app (the “App”) and related services including TTG’s product rental and sale services (together with the Site, the App, and the TTG Content, as defined below, the “Services”). These Terms also apply to in-store rentals and sales, which are part of 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.
Notice of Agreement to Arbitrate and Class Action Waiver
By accepting these Terms, you are agreeing to the arbitration agreement and class action waiver containedbelow.
1. RENTAL AND SALE OF PRODUCTS
- General Conditions
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 clicking 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. All orders will be shipped through TTG's shipping partners, which may change from time to time at TTG’s discretion. The shipping method used will be at the discretion of TTG.
COLLECTIONS. If you do not pay the amounts you owe to TTG when due, then TTG will need to institute collection procedures. You agree to pay TTG’s costs of collection, including without limitation reasonable attorneys' fees, but in no event exceeding $2,500.00.
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 support@Trailtogo.com. You acknowledge that opting out of receiving communications may impact your use of the Services."
The following additional conditions apply to the rental of any Product.
RENTAL FEE. The rental fee (“Rental Fee”) for the Product will be the total of the rental fee, insurance charges and delivery charges listed on the Site or App for your rental of the Product. When you place your rental order for a Product, you hereby authorize TTG to charge your payment card for the Rental Fee. TTG will charge your payment card the amount of the Rental Fee immediately upon your rental order. In addition, at the time of your rental order for a Product, you hereby authorize TTG to charge your payment card for an amount equal to 100% of the original retail value of the Product (when new) set forth on the Site or App (“Retail Value”) plus applicable sales taxes; provided that TTG will only charge your payment card for an amount greater than the Rental Fee as described below. Rental Fees 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 TTG, shall be paid by you to TTG in connection with your rental order.
CANCELLATION POLICY. You may cancel your rental order subject to the following cancellation fees and policies:
- If you cancel before the equipment are shipped, you will receive a full refund.
- If you cancel after the equipment is shipped, there will be no refund.
RETURN PACKAGING. With delivery of the Product, TTG will provide you with a pre-paid, pre-addressed TTG shipping box, or mailing envelope (as the case may be) as well as instructions for your use in returning the Products to TTG (“Return Packaging”).
RECEIPT OF THE PRODUCTS. Upon delivery, you bear responsibility for the Product(s). If, however, you opt to pick up the Products or equipment at our facility in Los Angeles, you agree to bear responsibility to arrive on time to pick up your equipment. 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, TTG 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 TTG 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, major stains or any other cause, other than normal wear and tear. Normal wear and tear encompasses minor stains, rips, missing beads, stuck zippers or other minor damage covered by the insurance you paid for with your rental of the applicable Product. 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. If the product or equipment is returned wet, dirty, with minor repairable damage, or muddy, you will be responsible to TTG for labor at the rate of $60.00 per hour. In the event you return the equipment damaged and beyond repair, you must pay, and you will be charged for full retail value of the equipment.
RETURN OF THE PRODUCTS; EXTENSIONS. You agree to return the Products to TTG in the Return Packaging on or before the return date for the Products that are identified in the online invoice for your order. You must deliver the Product in the Return Packaging to a UPS store located 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 left in the Products or which are returned to TTG 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 sales@Trailtogo.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, you will be responsible for a late fee of Twenty Five Percent of Retail Value, for up Five days, and the full retail value thereafter, and you agree that you 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 TTG 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 TTG 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 TTG will not charge you for more than an amount equal to 100% of the Retail Value, plus sales tax, plus the Rental Fee, in the aggregate, for any charges arising under this Section 2(B), excluding collection costs. If you pay TTG 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 TTG with a tracking number. 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 Agreement.
LIMITED WARRANTIES. The following are the limited warranties TTG provides in connection with Product rentals. TTG’s liability to you for failure to comply with any of these warranties is limited to timely delivery of Product conforming to the warranties or a refund of the Rental Fee (excluding insurance and delivery charges) as determined by TTG.
CORRECT PRODUCTS. Subject to availability, we will deliver the Products you ordered, including the specified size, and design, on or before the delivery date for which you ordered them, except in the rare event that the Product is damaged beyond repair or there is an occurrence subsequent to the placing of the order that prevents timely delivery. In such event, we will use reasonable efforts to notify you that the Product is unavailable. If we are able to reach you, you will be entitled to choose any available rental Product to replace the unavailable Product. If we are unable to reach you, you acknowledge and agree that we may send you a replacement product of the same or greater value. Products may appear different in color and style than as displayed on the Site or App. TTG reserves the right to ship equipment in different color that depicted on the TTG website.
CLEAN AND READY TO WEAR. The Products will be cleaned and delivered ready to use. TTG inspects each Product with the care but use of the Product is at your own risk and TTG shall not be held liable for any health-related complaints associated with any Product.
The following additional conditions apply to the sale of any Product.
FOR ALL USED PRODUCTS AND EQUIPMENT; 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. EXCEPT FOR INTIMATES, SHAPEWEAR AND BEAUTY PRODUCTS, THE PRODUCTS FOR SALE HAVE BEEN PREVIOUSLY RENTED BY OTHER CUSTOMERS AND ARE NOT NEW. TTG 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.
FOR ALL NEW PRODUCTS:You must notify TTG in writing or by telephone within 10 days of receipt of your package to obtain Return Authorization Number, and instructions for return. When TTG receives the defective product, TTG will refund you the full purchase price. All products returned without the Return Authorization Number on the exterior of the packaging will be rejected and you will not receive a refund or credit.
PURCHASE PRICE. The purchase price (“Purchase Price”) for the Products will be the Retail Price and delivery charges listed on the Site or App in connection with your purchase of the Products. Purchase Price is as listed on the TTG website at the time of purchase and is subject to change. TTG 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 TTG 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 TTG, shall be paid by you to TTG in connection with your purchase order. Purchase orders are final and cannot be cancelled.
- GENERAL CONDITIONS
The following additional terms and conditions apply to the sale, use and redemption of TTG 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.
- REDEMPTION AND USE.
Gift Cards may be purchased online. Gift Cards are redeemable only for eligible services and merchandise through Trailtogo.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 TTG retail location.
- 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.
- 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. TTG reserves the right to refuse to accept Gift Cards that TTG believes were fraudulently obtained.
TTG 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 TTG’s records. TTG is not responsible if your Gift Card is used without your permission.
- LIMITATION OF LIABILITY.
IN ADDITION TO THE LIMITATIONS OF LIABILITY STATED IN SECTION 7(C), IN THE EVENT THAT TTG 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 support@Trailtogo.com.
- DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
- 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 TTG 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 TTG's sole and exclusive liability for a breach by TTG of the limited warranties set out in Section 2(B) shall be, at TTG's option, TTG'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).
- 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, TTG DOES NOT WARRANT THAT: (I) THE SERVICES, INCLUDING THE TTG 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.
- Limitation of Liability
UNDER NO CIRCUMSTANCES SHALL TTG 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 TTG 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.
- 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.
- Informal Process First
Both you and TTG agree that in the event of any dispute between us, you and TTG 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.
- Mandatory Arbitration of Disputes
All disputes between you and TTG 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 TTG 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 TTG 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 City of Los Angeles.
(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 party’s 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 JAMS filing fees then in effect 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 TTG 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.
- 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 TTG 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.
JURISDICTIONAL ISSUES. TTG 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 TTG intends to announce or make available such products or services to the general public, or in your country. Contact TTG at support@Trailtogo.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 TTG 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 California, 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 County of Los Angeles, California, 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 TTG relating to the subject matter herein and shall not be modified except by TTG in accordance with these Terms, or as otherwise agreed in writing by you and TTG. No employee, agent or other representative of TTG has any authority to bind TTG 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. TTG may assign these Terms at any time without notice to you.
FORCE MAJEURE. TTG 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 TTG’s reasonable control.
CONTACT INFORMATION. Please send any questions or comments, or report violations of these Terms, to TTG at support@Trailtogo.com or Trailtogo, Inc., Attn: Legal, 16501 Ventura Blvd, Suite 400, Encino CA 91436