Fresh Foods IGA
Terms of Use
IMPORTANT-
THESE TERMS OF USE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
THE
TERMS AND CONDITIONS OF THESE TERMS OF USE (THE “AGREEMENT”) SET FORTH BELOW
GOVERN YOUR USE OF THE FRESH FOODS IGA WEBSITE AND/OR MOBILE APPLICATIONS
(COLLECTIVELY, THE “PLATFORM”) AND E-COMMERCE AND OTHER SERVICES AVAILABLE ON
AND THROUGH THE PLATFORM (THE “SERVICES”). THIS AGREEMENT IS A LEGAL CONTRACT
BETWEEN YOU (“YOU” OR “YOUR”) AND FRESH FOODS IGA AND GOVERN YOUR ACCESS TO,
AND USE OF, THE PLATFORM AND THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF THE
TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THIS PLATFORM OR THE
SERVICES, OR ANY INFORMATION ON OR RELATED TO THIS PLATFORM OR THE SERVICES. BY
CLICKING THE BOX TO USE THE PLATFORM OR THE SERVICES OR USING THIS PLATFORM OR
THE SERVICES, YOU AGREE TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW.
Overview
This
Agreement is a legal agreement with Fresh Foods IGA, located at:
1.
5601
Castle Hayne Road, Castle Hayne, NC 28429, 2. 1733
Roberts Avenue, Lumberton, NC 28358 and you.
This
Agreement governs Fresh Foods IGA’s relationship with you. To the extent stated
below, this Agreement also governs each party’s relationship with other parties
with whom those parties transact utilizing the Services, and all such parties
remain free to have additional agreements and terms between themselves as they
may agree in writing, provided that no such additional terms shall be
interpreted to conflict with or supersede this Agreement with respect to Fresh
Foods IGA specifically.
Fresh
Foods IGA provides online and mobile technology that connects Customers,
Stores, and Delivery Persons. Using the Platform and Services, Customers place
purchase orders for grocery products that are available to purchase online on
the Platform. Items purchased online are available for pickup or delivery.
If
you submit orders through a third-party site or application, such as GrubHub or
DoorDash, you may be required to have an account with such third party and may
be transferred to such third party’s website or application to complete
transactions. Any orders submitted through such third-party sites or
applications are solely between you and the applicable third party, not Fresh
Foods IGA. This Agreement does not apply to orders placed through a third
party’s website or application. If you use a third party’s website or
application for an order from one of our stores, you will be subject to the
terms and policies posted by that third party and we are not responsible for
those terms or policies or acts or omissions of those third parties.
Terms
●
Parties. All parties to this Agreement are independent contractors with
respect to one another, such that no party exercises control over any other
party or has any liability or responsibility for any other party.
Third-Party
Service Providers. Fresh Foods IGA in partnership with its service
providers (“Third-Party Service Providers”) provides information and online
methods for Customers to purchase and obtain delivery of products. Third-Party
Service Providers do not provide any items for online sales but do provide the
necessary infrastructure in order to provide customers of the Services a method
to order items available online and provide delivery services.
Customers.
Customers utilize the Services to purchase products from Stores and to obtain
delivery of such products from Delivery Persons. Customers do not control and
have no liability or responsibility for any Store or Delivery Person, or for Fresh
Foods IGA.
Stores.
Stores are Fresh Foods IGA’ stores and/or warehouses that showcase and sell
consumer products to Customers via the Platform and Services. Stores fulfill
orders for Customers unless specified otherwise. Stores do not themselves
provide delivery services unless the Store expressly advises the Customer
otherwise. Stores may provide Customers with pick-up options in each Store’s
discretion.
Delivery
Persons. Delivery Persons utilize Fresh Foods IGA’ Third-Party Service
Providers’ services, to independently select and execute delivery jobs to
deliver products that Customers purchase on the Platform in exchange for a fee
from the Third- Party Service Provider. Delivery Persons do not themselves
provide products. Delivery Persons are independent contractors to Fresh Foods
IGA’ Third-Party Service Providers and are not engaged in any employment or
agency relationship with Fresh Foods IGA, Stores, or Customers.
Mobile Applications. With respect to
the mobile versions of the Platform, you will only use the Platform and
Services (i) on an Apple-branded product that runs the iOS (Apple’s proprietary
operating system) or a product that runs on Android; and (ii) as permitted by
applicable “Usage Rules” set forth in the Apple App Store Terms of Use or the
Google Play Terms of Use. With regard to your use of the iOS version of the
Platform and Services, you acknowledge and agree that (i) this Agreement is an
agreement between you and Fresh Foods IGA only, and not Apple, and (ii) Fresh
Foods IGA, not Apple, is solely responsible for the Platform and Services and
content thereof. Your use of the Platform and Services must comply with the App
Store Terms of Use. You acknowledge that Apple has no obligation whatsoever to
furnish any maintenance and support services with respect to the Platform or
the Services. In the event of any failure of the Platform or the Services to
conform to any applicable warranty, you may notify Apple, and Apple will refund
the purchase price for the Platform and Services (if any) to you and to the
maximum extent permitted by applicable law, Apple will have no other warranty
obligation whatsoever with respect to the Platform or the Services. As between Fresh
Foods IGA and Apple, any other claims, losses, liabilities, damages, costs or
expenses attributable to any failure to conform to any warranty will be the
sole responsibility of Fresh Foods IGA, subject to this Agreement. You and Fresh
Foods IGA acknowledge that, as between Fresh Foods IGA and Apple, Apple is not
responsible for addressing any claims you have or any claims of any third party
relating to the Platform or the Services or your possession and use of the
Platform or the Services, including, but not limited to: (i) product liability
claims; (ii) any claim that the Platform or the Services fails to conform to
any applicable legal or regulatory requirement; and (iii) claims arising under
consumer protection or similar legislation. You and Fresh Foods IGA acknowledge
that, in the event of any third-party claim that the Platform or the Services
or your possession and use of the Platform or the Services infringe that third
party’s intellectual property rights, as between Fresh Foods IGA and Apple, Fresh
Foods IGA, 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, and subject to, this Agreement.
You and Fresh Foods IGA acknowledge and agree that Apple, and Apple’s
subsidiaries, are third-party beneficiaries of this Agreement as related to
your license of the Platform or the Services, and that, upon your acceptance of
the Terms of Use and conditions of this Agreement, Apple will have the right
(and will be deemed to have accepted the right) to enforce this Agreement as
related to your license of the Platform or the Services against you as a
third-party beneficiary thereof.
As-Is. Unless agreed otherwise in
writing by the party providing the product or service, all products and
services are provided "as is", and without warranties of any kind.
Privacy. In accordance with Fresh Foods
IGA’ Privacy Notice, by using the Services, you consent to the collection,
sharing, and use of personally identifiable information you provide to Fresh
Foods IGA.
Accounts. You must register for an
account and provide information about yourself to use the Services, such as
profile and payment information. You are responsible for providing accurate
information, for maintaining the confidentiality of their own account and
password (including for example any third-party login password such as Google),
and for any activities occurring under or through their account. If you have a
reasonable belief that your account integrity or privacy has been jeopardized,
they must immediately notify the Services through the contact page. You shall
not create multiple accounts.
Accuracy of Information. While Fresh
Foods IGA and the Stores endeavor to provide accurate product information, you
should know that product information accessed through the Platforms is obtained
from information made by product manufacturers and producers; on occasion, they
may change their labels or ingredient lists; and actual product packaging and
materials may contain more and/or different information than that shown on the
Platforms. Accordingly, you should not rely solely on the product information
presented on the Platforms, but should always read carefully the labels,
warnings, and directions before using or consuming a product and contact the
product manufacturer or producer directly for any questions. Fresh Foods IGA
and the Stores do not assume any liability for inaccuracies, misstatements, or
omissions related to any product information listed on the Platforms. In
addition, even though we make an effort to describe and display our products
and services accurately on the Platforms, products on the Platform may be mispriced,
described inaccurately, or unavailable and we may experience delays in updating
information on the Platforms and in our advertising on the Platforms.
Intellectual Property License. The
Services and the Platform are owned by Fresh Foods IGA, and all rights are
reserved to Fresh Foods IGA. Fresh Foods IGA grants to each party using the
Services a limited, revocable, non-transferable license to use the Services on
appropriate and compatible devices that the party owns or controls solely for
its personal use. You shall not (1) modify, replicate, distribute, share, or
otherwise cause the Platform or the Services to be made available to multiple
devices simultaneously, or (2) sell, transfer, redistribute, or sublicense the
Services or the Platform.
Service Limitations and Requirements.
Customers must be at least eighteen years old to
utilize the Services.
Alcohol purchases can only be dropped off with a
person aged 21 or older. For alcohol purchases, you represent and warrant that
you are age 21 or older. For alcohol purchases, the Delivery Person reserves
the right to refuse delivery where the recipient cannot provide proper
Identification matching the order and showing legal age. Valid forms of
identification must include photo identification, such as a valid driver
license; a passport, or (iii) a valid Armed Forces ID card. Delivery Persons
may also refuse to deliver alcohol to anyone visibly intoxicated or otherwise
presenting an observable danger to themselves or others.
Alcohol and tobacco deliveries may be limited in
some markets and locales.
You agree not to modify, create derivative works
of, sell, license or in any way exploit Fresh Foods IGA, the Platform or the
Services. You agree not to reproduce, distribute, publish, stream or broadcast
any part of the Services without prior written authorization from Fresh Foods
IGA.
The parties agree not to circumvent or attempt to
circumvent any security or other features of the Services or the Platform
designed to limit access.
The parties agree not to harvest or mine content
from the Platform or otherwise access or use the Services inconsistently.
Representations. By using the Platform
or the Services, you represent that you are at least eighteen (18) years old;
you are in good standing with the Services (i.e., no previous suspensions of
service with Fresh Foods IGA); and you will comply with and all applicable laws
and regulations for your jurisdiction; if you are using the Services on behalf
of an organization or entity, then you represent that you have authority to
agree to this Agreement on behalf of that organization or entity. You agree
that the information you provide to the Services is accurate and that you will
keep it up to date at all relevant times.
Payments. The Services will process
your payment information as a Customer to make payments for your orders. You
will be prompted to confirm payments before submitting your order finally to Fresh
Foods IGA. Unless otherwise agreed mutually in writing, all payments are
non-refundable. There may be a fee or surcharge to the party requesting or
utilizing the service, and such fees and surcharges may change over time in Fresh
Foods IGA’s discretion. You are encouraged to check Fresh Foods IGA’ current
statement of fees for up-to-date information before executing new orders.
Customers submitting payment information to the
Services authorize Fresh Foods IGA and its Third-Party Service Providers to
process payments for orders according to the payment method specified in the
Customer account. New payment methods and certain existing payment methods
(i.e., credit card) may incur a temporary pre-authorization hold prior to Fresh
Foods IGA’ verification of the Customer’s account and available credit or
balance for the intended purchase. Upon completion or cancellation of the
Customer’s order, the pre-authorization hold is lifted within approximately 2-4
business days, depending on the Customer’s account holder.
Refunds. Refunds, credits, and order
changes are processed by the Services on a case-by-case basis in the discretion
of Fresh Foods IGA. Fresh Foods
IGA‘policy is to diligently and with good faith assist Customers in processing
these requests. This refund policy always applies regardless of any disruptions
or downtime in the Services for any reason whatsoever.
Returning Items To A Store. Stores and Delivery Persons give the
original receipt to the Customer. Delivery Persons are not obligated to return
items to a Store for a Customer; however, Delivery Persons are free to
independently agree to do so for a Customer subject to the Delivery Person’s
agreement with the Third-Party Service Provider.
Order Changes. Customers acknowledge that after placing an order
through Fresh Foods IGA, the order may be processed quickly by a Store and
Delivery Person. Once an order is in process, it may not be changed without the
consent of the Store and Delivery Person where applicable.
Surcharge. Canceled orders may incur a surcharge. Customers are
encouraged to check Fresh Foods IGA’ current statement of fees and cancellation
policies.
Store Pricing. Stores are required to
provide up-to-date and accurate pricing to Customers through the Platform. If
the product has already been purchased and delivered to the Customer (or is in
the process of delivery by the Delivery Person), then the Store agrees to abide
by the pricing then published on the Platform.
Store Inventory and Offers. The
Services monitor inventory data to ensure its accuracy before uploading to the
Platform and after uploading while it is being showcased to Customers but some
items may still be unavailable even if the Services indicate the item is
available. Fresh Foods IGA may change or terminate any of the services,
programs, promotions, and/or other offers, deals, coupons, and/or specials
(collectively, "Offerings") described or offered through the Platform
at any time without notice to you. Not all products are available at all of our
stores or for online ordering or at all times. Some or all of the Offerings or
products may not be available in your location (or your delivery or preferred
pickup location). You shall not misuse or reproduce Offerings, such as by
creating multiple accounts to use the same Offering.
Customer Specifications. When
purchasing a product, Customers have the option to make comments &
specifications (i.e., “large ripe tomatoes please”) and also replacement
options (i.e., ‘If no organic free-trade shade-grown bird-friendly coffee, then
regular organic coffee’). Stores and Delivery Persons will use reasonable
efforts to read and attempt to fulfill Customer comments and specifications,
but Fresh Foods IGA makes no guarantees regarding the fulfillment of such
comments and specifications. Customers agree to be reasonable with Delivery
Persons and Stores in all parties’ requests. Please note that any request is
subject to availability.
Communications. Fresh Foods IGA may
provide your contact information to a particular Store or Delivery Person
solely for the purposes of communication regarding a transaction or order. The
Store and/or Delivery Person is responsible for maintaining the privacy of your
contact information, including but not limited to refraining from selling the
contact information or using it for future promotional purposes.
By agreeing to this Agreement,
you agree that all communications from us relating to your use of or access to
the Platform may be provided or made available to you electronically by email,
“in-Platform” messaging or by posting a communication on the Platform or via
text or phone as set forth below. Your consent to receive communications and do
business electronically, and our agreement to do so, applies to all your
interactions and transactions with us and our agents concerning your Platform
usage and access.
For purposes of the Services
operations or a specific transaction, you agree to receive text messages and
phone calls at the phone number provided to the Services, and also emails to
the email address provided to the Services, and also written correspondence to
the address provided to the Services. Such communications may be sent by Fresh
Foods IGA and its Third-Party Service Providers and Delivery Persons. You will
not be able to use the Services without agreeing to receive such communications.
For purposes of promotional
communications, you may opt-out of promotional communications from Fresh Foods
IGA at any time. Otherwise, you may receive text messages, emails, or written
communications to the contact information provided.
For text messages, you can limit your receipt of
push notifications by adjusting the settings of your mobile device. We may send
four or fewer text messages per month unless otherwise noted at the time of
opt-in. You may opt-out of receiving text messages at any time by replying
"STOP" to the message. You may receive one confirming text. Message
and data rates may apply.
For email messages, we may send ten or fewer
email messages per month. You may opt-out of email messages at any time by
following the instructions in the email.
●
Off-Platform Links. The Services may contain links to third-party websites
and services, such as recipe providers, DoorDash or GrubHub or other delivery
partners. Fresh Foods IGA is not responsible for and does not specifically
endorse or accept any responsibility for the contents or use of these
third-party websites. Fresh Foods IGA provides these links as a convenience
only, and the inclusion of any link does not imply endorsement by Fresh Foods
IGA. It is each party’s responsibility to take precautions to ensure that
whatever they select for their own use is suitable for their own needs and free
of viruses or other harmful items.
Delivery Fees. The Customer
acknowledges that delivery fees will apply as will be displayed in your account
and checkout.
Tips.
Customers are free and encouraged to give monetary tips to Delivery Persons.
Such tips are solely the income of the Delivery Person and are not received or
accounted in any manner by the Services or Stores.
User Submissions. Except where
expressly provided otherwise by Fresh Foods IGA, all comments, feedback,
information or content submitted to the Services through or in association with
the Services (“Submissions”) shall be considered non-confidential, and Fresh
Foods IGA shall be free to use such Submissions on an unrestricted basis or as
provided by an agreement with Fresh Foods IGA.
Each party making Submissions
grants Fresh Foods IGA a royalty-free, perpetual, irrevocable, transferable,
sublicensable, worldwide, nonexclusive license under all rights necessary to
incorporate and use the Submissions for any reasonable purpose.
Nonpayment. If payment for purchases on
a Customer’s account is delinquent, your account information may be sent to a
collection agency/debt collector and you may be subject to a collection action,
and payment of collection related fees and costs. If you have questions
regarding an outstanding balance on your account, please contact us.
Delivery.
The
Customer is responsible for providing the Delivery Person with access to the
Customer’s designated delivery location. Delivery Persons are entitled to rely
upon their reasonable interpretation of the description of the Customer’s
delivery location.
If
a Customer requires delivery to a person at a location, then the Delivery
Person may only drop off the goods with a person at Customer’s designated
location. If a person is not present at the designated delivery location when
the Delivery Person arrives to complete the delivery, then the Delivery Person
may either (1) attempt to contact the Customer to schedule delivery at a later
time, or (2) return the order to the Store so that Customer can pick up at
Customer’s earliest opportunity within a reasonable time – and in either case, Fresh
Foods IGA reserves the right to charge the Customer the full amount of the
Order, along with a redelivery surcharge.
If
a Customer allows drop-off to an unmanned location, then the Delivery Person
may drop off the goods at the Customer’s designated location. Delivery Person
may take a photo of the dropped off order and upload to the Services for
Customer’s convenience as proof of delivery.
Fresh
Foods IGA will use reasonable efforts to have deliveries made by the dates and
times indicated in the Services for a particular order. Otherwise, delivery
times are governed by general standards of reasonableness.
If
goods are damaged in transit, the party that assumes the risk of damaged goods
is Fresh Foods IGA provided that (i) if the damage is apparent at the time of
delivery, the damage is identified by the Customer at the time of delivery by
the Customer notifying the Delivery Person or (ii) if the damage is not
apparent at the time of delivery but after unpacking the delivery, Customer
promptly notifies Fresh Foods IGA.
Intellectual Property. All information,
documents, logos, graphics, images, software and other materials provided on
this Platform is the intellectual property of Fresh Foods IGA, and third parties
where applicable, (“Content”). All trademarks, service marks, logos, trade
names, and trade dresses in or on the Platform, whether registered or
unregistered, are proprietary to Fresh Foods IGA. You may not use, reproduce,
or otherwise display any such trademarks, service marks, logos, trade names or
trade dresses without the prior written consent of Fresh Foods IGA or the
appropriate owner thereof. There are no implied rights. Except as permitted
herein or otherwise agreed in writing, Content on the Services may not be
copied, republished, mirrored, or transmitted without the express written
permission of Fresh Foods IGA and/or the applicable third party. Where access
is permitted, Fresh Foods IGA grants you permission to display, copy, download,
and distribute for informational purposes the Content provided to you, so long
as the appropriate copyright attribution is given to Fresh Foods IGA and/or
applicable third parties. See the contact information below if you have any
questions about such access or attribution. This permission terminates
automatically if you breach any of the terms of this Agreement. Upon
termination, you agree to immediately delete or discard any downloaded Content
in your possession. Except where expressly allowed herein by Fresh Foods IGA
and/or the applicable third party, nothing on the Services shall be construed
to confer any license or sale under any of Fresh Foods IGA’s or any of third
party’s intellectual property rights. Parties utilizing the Services
acknowledge sole responsibility for obtaining any such licensure rights through
the appropriate channels. Please see the contact information below if you have
any questions about obtaining licenses from Fresh Foods IGA.
Disclaimers.
THE PLATFORM AND THE SERVICES
ARE PROVIDED “AS IS,” AND FRESH FOODS IGA DISCLAIMS ALL EXPRESS AND IMPLIED
REPRESENTATIONS, WARRANTIES, AND GUARANTEES, TO THE FULLEST EXTENT ALLOWED BY
LAW, INCLUDING WITHOUT LIMITATION WITH REGARD TO TIMELINESS, SECURITY, QUALITY,
AVAILABILITY, SUITABILITY, ACCURACY, AND COMPLETENESS. THIS DISCLAIMER APPLIES
ALSO TO CONTENT, SERVICE, AND CONSUMER PRODUCTS PROVIDED BY OTHER PARTIES.
FRESH FOODS IGA RELIES UPON
STORES AND CONSUMER PRODUCT LABELS TO PROVIDE ACCURATE DIETARY INFORMATION,
ALLERGEN WARNINGS, AND GENERAL PRODUCT SAFETY INFORMATION AND DOES NOT ACTUALLY
WARRANT THAT ANY SUCH INFORMATION IS ACCURATE, COMPLETE, RELIABLE, CURRENT OR
ERROR-FREE. RATHER, ALL CONTENT IS ONLY PROVIDED FOR INFORMATIONAL FRESH FOODS
IGA IS SOLELY AT THE RISK OF PERSONS USING OR OTHERWISE HANDLING THE CONSUMER
PRODUCTS.
FRESH FOODS IGA DOES NOT
ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONSUMER PRODUCT, AND FRESH
FOODS IGA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN
CUSTOMERS OR THIRD PARTIES.
DELIVERY PERSONS ARE SOLELY
RESPONSIBLE FOR MANAGING THEIR OWN VEHICLES, AND TRAVELLING PROPERLY, SAFELY,
AND SECURELY. FRESH FOODS IGA DOES NOT
ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY DELIVERY PERSON, AND FRESH
FOODS IGA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY DELIVERY SERVICE.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY LAW,
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR
OTHERWISE, SHALL FRESH FOODS IGA BE LIABLE TO YOU, ANY PARTY OR TO ANY OTHER
PERSON FOR LOSS OF PROFITS, LOSS OF GOODWILL, PUNITIVE DAMAGES, OR ANY
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR
NEGLIGENCE OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
GOODWILL, WORK STOPPAGE, LOSS OF DATA, COMPUTER OR NETWORK FAILURE OR
MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN NO EVENT SHALL FRESH FOODS IGA’S
TOTAL LIABILITY EXCEED THE CUSTOMER’S COST OF THE ORDER AT ISSUE, OR $500,
WHICHEVER IS LESS.
ASSUMPTION OF RISK AND RELEASE OF LIABILITY. CUSTOMERS UNDERSTAND
THAT BY USING DELIVERY PERSONS, THEIR ITEMS MAY BE EXPOSED TO SITUATIONS THAT
ARE POTENTIALLY DANGEROUS, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT
THE CUSTOMER CHOOSES TO USE THE SERVICES AND ENGAGE DELIVERY PERSONS AT THEIR
OWN RISK. EACH PARTY EXPRESSLY WAIVES AND RELEASES FRESH FOODS IGA FROM ANY AND
ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO DELIVERY
PERSONS. FRESH FOODS IGA DOES NOT
INDEPENDENTLY VERIFY OR ASSESS THE CHARACTER, SKILL, QUALITY, OR SAFETY OF
DELIVERY PERSONS NOR DOES FRESH FOODS IGA INDEPENDENTLY VERIFY OR ASSESS THE
LEGALITY OF THE CONSUMER PRODUCTS PROVIDED BY STORES. FRESH FOODS IGA IS NOT
RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF DELIVERY PERSONS. FRESH FOODS IGA WILL NOT BE A PARTY TO
DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN CUSTOMERS, DELIVERY PERSONS, OR
THIRD PARTIES. EACH PARTY ASSUMES RESPONSIBILITY FOR THEIR OWN CONDUCT AND
FULLY ASSUMES THE RISK OF THEIR OWN DECISIONS.
Legal Compliance. It is each party’s
responsibility to use the Services solely for lawful purposes. In this respect
a party may not, without limitation (a) intercept or monitor any equipment that
is not their own; (b) use any type of spider, virus, worm, trojan-horse, time
bomb or any other codes or instructions that are designed to distort, damage,
unreasonably delete or disassemble Content, the Platform or the Services ; (c)
cause or intend to cause unfair embarrassment or distress to, or to unfairly
threaten, harass, or harm anyone. Fresh Foods IGA operates this Platform from North
Carolina and makes no representation that the Content is available for use
outside the United States of America. If a party accesses this Platform from
another location, it is by their own initiative and it is their own
responsibility to comply with the laws of their jurisdiction, as well as any
applicable import/export laws.
Indemnification. You (‘Responsible
Party’) shall defend and indemnify Fresh Foods IGA and its agents (at Fresh
Foods IGA’ option) against any allegation, claim, lawsuit (“Claim”) made or
brought against Fresh Foods IGA by another party or a third party arising out
of the Responsible Party’s use of the Platform or Services, including, without
limitation, arising out of violation of this Agreement, violation of an
intellectual property right, breach of contract, negligence, willful
misconduct, or crime. Such indemnity shall cover any damages awarded against Fresh
Foods IGA, and for reasonable attorney’s fees incurred by Fresh Foods IGA, in
connection with any such Claim; provided, that Fresh Foods IGA promptly gives
Responsible Party written notice of the Claim. Where Responsible Party provides
defense, Responsible Party shall have the reasonable control of the defense and
any settlement of the Claim (provided that Responsible Party may not settle any
Claim without Fresh Foods IGA’ advance written consent). Fresh Foods IGA
reserves the right, at Fresh Foods IGA’ expense, to assume the exclusive
defense and control of any matter otherwise subject to indemnification under
this section (without limiting indemnification obligations hereunder) and the
Responsible Party agrees to reasonably cooperate with Fresh Foods IGA’ defense
of that claim.
Updates and Amendments. Fresh Foods IGA
may make improvements and/or changes to the Services, and changes to the
Content, at any time and without notice. Fresh Foods IGA may amend this
Agreement upon 10-days advance written notice, which amendments shall be
binding on all parties. If you do not agree with a change, your sole remedy is
to cease using the Platform and the Services.
Complete Agreement. This Agreement,
together with any applicable written agreement between parties (i.e., Delivery
Person Agreement between Fresh Foods IGA and a Delivery Person), and the Fresh
Foods IGA Privacy Notice, represent the entire agreement and general
understanding relating to the use of the Services and supersede prior,
contemporaneous, or additional communications. Fresh Foods IGA’ current
statement of fees may be amended from time to time in Fresh Foods IGA’
discretion.
Legal Contact Information
If
you have any questions about this Agreement, or if you would like to request
permission to use any Content, please contact us:
Fresh
Foods IGA
5601 Castle Hayne Road, Castle
Hayne, NC 28429
1733 Roberts Avenue, Lumberton, NC 28358
jeet@freshfoods.us
Term.
This Agreement shall take
effect when you first use the Platform or when it is electronically accepted by
a party, whichever is first.
A party may terminate this
Agreement at any time for any reason or for no reason upon 3-days advance
notice, or immediately if the other party breaches the terms of this Agreement.
Upon the giving of a termination notice, an account may be immediately suspended.
Both parties agree that the opportunities presented by this Agreement
constitute adequate consideration for such a termination right. Except as
otherwise stated herein, neither party shall be responsible to the other for
any costs or damages resulting from the termination of this Agreement.
The provisions of this
Agreement that by their nature extend beyond the applicable expiration date or
other termination of this Agreement will survive and remain in effect until all
obligations are satisfied.
Waiver. Failure of Fresh Foods IGA to
enforce a right under this Agreement shall not act as a waiver of that right or
the ability to later assert that right relative to the situation involved.
Validity of Provisions. If any
provision of this Agreement shall be found by a court to be void, invalid or
unenforceable, the same shall be reformed to comply with applicable law or
stricken if not so conformable, so as not to affect the invalidity or
enforceability of this Agreement.
Force Majeure. No party shall be liable
to any other party for any failure or delay in performance of its obligations
under this Agreement due to any force majeure, labor strike, adverse weather
conditions, shortage of materials, pandemic, epidemic, quarantine, war, invasion,
acts of a public enemy, governmental preemption in connection with a national
emergency, riot, laws, rules, regulations or order of governmental or military
authorities, or failure of the Internet.
Arbitration And Class Action Waiver.
PLEASE
READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT
TO FILE A LAWSUIT IN COURT.
You
and Fresh Foods IGA agree that this Agreement affects interstate commerce and
that the Federal Arbitration Act governs the interpretation and enforcement of
these arbitration provisions.
This
Section is intended to be interpreted broadly and governs any and all disputes
between us, including but not limited to claims arising out of or relating to
any aspect of the relationship between us, whether based in contract, tort,
statute, fraud, misrepresentation or any other legal theory; claims that arose
before this Agreement or any prior agreement (including, but not limited to,
claims related to advertising); and claims that may arise after the termination
of this Agreement. The only disputes excluded from this broad prohibition are
the litigation of certain intellectual property and small court claims, as
provided below.
By
agreeing to this Agreement, you agree to resolve any and all disputes with Fresh
Foods IGA as follows:
Initial Dispute Resolution: Most
disputes can be resolved without resort to litigation. You can reach Fresh
Foods IGA’ support department at jeet@freshfoods.us. Except
for intellectual property and small claims court claims, the parties agree to
use their best efforts to settle any dispute, claim, question, or disagreement
directly through consultation with the Fresh Foods IGA support department, and
good faith negotiations shall be a condition to either party initiating a
lawsuit or arbitration.
Binding Arbitration: If the parties do
not reach an agreed-upon solution within a period of thirty (30) days from the
time informal dispute resolution is initiated under the Initial Dispute Resolution
provision above, then either party may initiate binding arbitration as the sole
means to resolve claims, subject to the terms set forth below. Specifically,
all claims arising out of or relating to this Agreement (including the Privacy
Notice’s formation, performance, and breach), the parties’ relationship with
each other, and/or your use of the Platform or the Services shall be finally
settled by binding arbitration administered by JAMS in accordance with the JAMS
Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000
and the JAMS Comprehensive Arbitration Rules and Procedures for claims
exceeding $250,000 in effect at the time the arbitration is initiated,
excluding any rules or procedures governing or permitting class actions. The
arbitrator, and not any federal, state, or local court or agency, shall have
exclusive authority to resolve all disputes arising out of or relating to the
interpretation, applicability, enforceability, or formation of this Agreement
or the Privacy Notice, including but not limited to any claim that all or any
part of this Agreement or Privacy Notice is void or voidable, whether a claim
is subject to arbitration, or the question of waiver by litigation conduct. The
arbitrator shall be empowered to grant whatever relief would be available in a
court under law or in equity. The arbitrator’s award shall be written and shall
be binding on the parties and may be entered as a judgment in any court of
competent jurisdiction. To start an arbitration, you must do the following: (a)
write a Demand for Arbitration that includes a description of the claim and the
amount of damages you seek to recover (you may find a copy of a Demand for
Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration,
plus the appropriate filing fee, to JAMS; and (c) send one copy of the Demand
for Arbitration to Fresh Foods IGA at Attn: Legal; jeet@freshfoods.us.
To
the extent, the filing fee for the arbitration exceeds the cost of filing a
lawsuit, Fresh Foods IGA will pay the additional cost. If the arbitrator finds
the arbitration to be non-frivolous, Fresh Foods IGA will pay the fees invoiced
by JAMS, including filing fees and arbitrator and hearing expenses. You are
responsible for your own attorneys’ fees unless the arbitration rules and/or
applicable law provide otherwise.
The
parties understand that absent this mandatory arbitration provision, they would
have the right to sue in court and have a jury trial. They further understand
that, in some instances, the costs of arbitration could exceed the costs of
litigation and the right to discovery may be more limited in arbitration than
in court.
If
you are a resident of the United States, arbitration may take place in the
county where you reside at the time of filing. For individuals residing outside
the United States, the arbitration shall be initiated in the State of North
Carolina, the United States of America and you and Fresh Foods IGA agree to
submit to the personal jurisdiction of any federal or state court in Merrillville, North Carolina in order to compel arbitration, to stay proceedings
pending arbitration, or to confirm, modify, vacate, or enter judgment on the
award entered by the arbitrator.
Class Action Waiver: The parties
further agree that the arbitration shall be conducted in their individual
capacities only and not as a class action or other representative action, and
the parties expressly waive their right to file a class action or seek relief
on a class basis. YOU AND Fresh Foods IGA AGREE THAT EACH MAY BRING CLAIMS
AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If
any court or arbitrator determines that the class action waiver set forth in
this paragraph is void or unenforceable for any reason or that arbitration can
proceed on a class basis, then the arbitration provisions set forth above shall
be deemed null and void in their entirety and the parties shall be deemed to
have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual
Property and Small Claims Court Claims: Notwithstanding the parties’ decision
to resolve all disputes through arbitration, either party may bring enforcement
actions, validity determinations or claims arising from or relating to theft,
piracy or unauthorized use of intellectual property in state or federal court
or in the U.S. Patent and Trademark Office to protect its intellectual property
rights (“intellectual property rights” means patents, copyrights, moral rights,
trademarks, and trade secrets, but not privacy or publicity rights). Either
party may also seek relief in a small claims court for disputes or claims
within the scope of that court’s jurisdiction.
30-Day Right To Opt Out: You have the
right to opt-out and not be bound by the arbitration and class action waiver
provisions set forth above by sending (from the email address you use on Fresh
Foods IGA) written notice of your decision to opt-out to Fresh Foods IGA
---Attn: Legal; jeet@freshfoods.us
with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.”
The notice must be sent within thirty (30) days of your first use of the
Services; otherwise, you shall be bound to arbitrate disputes in accordance
with the terms of those paragraphs. If you opt-out of these arbitration
provisions, Fresh Foods IGA will not be bound by them.
Changes
To This Section: Fresh Foods IGA will provide thirty (30) days’ notice of any
changes to this section by posting on the Platform, sending you a message, or
otherwise notifying you when you are logged into your account. Amendments will
become effective thirty (30) days after they are posted on the Platform or sent
to you.
Changes
to this section will otherwise apply prospectively only to claims arising after
the thirtieth (30th) day. If a court or arbitrator decides that this subsection
on “Changes to This Section” is not enforceable or valid, then this subsection
shall be severed from the section entitled “Arbitration and Class Action
Waiver,” and the court or arbitrator shall apply the first Arbitration and
Class Action Waiver section in existence after you began using the Services.
Survival: This Arbitration and Class
Action Waiver section shall survive any termination of your Account or
cessation of use of the Platform or the Services.
Last
Updated: November 5, 2020