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 COMMUNITY FOODS MARKET 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 COMMUNITY FOODS MARKET 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 Community Foods Market
located at 3105 San Pablo Ave, Oakland, CA 94608, and
you.
This
Agreement governs Community Foods Market ’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 Community Foods Market specifically.
Community
Foods Market 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 Community Foods
Market. 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. Community Foods Market 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 Community
Foods Market.
· Stores. Stores
are Community Foods Market ’s 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 Community Foods Market Produce’s
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 Community Foods Market ’s Third-Party Service Providers and are not engaged
in any employment or agency relationship with Community Foods Market, 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 Community Foods Market only, and not Apple, and (ii) Community
Foods Market, 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
Community Foods Market 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 Community Foods Market, subject to
this Agreement. You and Community Foods Market acknowledge that, as between
Community Foods Market 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 Community Foods Market 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 Community Foods Market and Apple,
Community Foods Market, 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 Community Foods Market 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 Community Foods Market ’s Privacy Notice, by using
the Services, you consent to the collection, sharing, and use of personally
identifiable information you provide to Community Foods Market.
· 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 Community Foods Market 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. Community Foods Market 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 Community Foods Market, and all rights are reserved to Community Foods
Market. Community Foods Market 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 Community Foods Market, 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 Community Foods Market.
· 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 Community Foods Market); 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 Community Foods Market. 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 Community Foods Market’s discretion. You are encouraged to
check Community Foods Market’s current statement of fees for up-to-date
information before executing new orders.
· Customers
submitting payment information to the Services authorize Community Foods Market
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 Community Foods Market’s 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 Community Foods Market. of Community Foods Market‘s
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
Community Foods Market, 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 Community Foods
Market ’s 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. Community
Foods Market 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 Community Foods Market 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. Community
Foods Market 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
Community Foods Market 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 Community Foods Market 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. Community Foods
Market is not responsible for and does not specifically endorse or accept any
responsibility for the contents or use of these third-party websites. Community
Foods Market provides these links as a convenience only, and the inclusion of
any link does not imply endorsement by Community Foods Market. 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 Community Foods Market, all comments, feedback, information or
content submitted to the Services through or in association with the Services
(“Submissions”) shall be considered non-confidential, and Community Foods
Market shall be free to use such Submissions on an unrestricted basis or as
provided by an agreement with Community Foods Market.
· Each
party making Submissions grants Community Foods Market a royalty-free,
perpetual, irrevocable, transferable, sub-licensable, worldwide, nonexclusive
license under all rights necessary to incorporate and use the Submissions for
any reasonable purpose.
● Non-payments. 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 the 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,
Community Foods Market 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 it to the Services for
Customer’s convenience as proof of delivery.
· Community
Foods Market 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 Community Foods Market 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 Community Foods Market.
● Intellectual
Property. All information, documents, logos,
graphics, images, software, and other materials provided on this Platform is
the intellectual property of Community Foods Market, 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 Community Foods Market. 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 Community Foods Market 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 Community Foods Market and/or the applicable third party. Where
access is permitted, Community Foods Market 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 Community
Foods Market 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 Community Foods
Market and/or the applicable third party, nothing on the Services shall be construed
to confer any license or sale under any of Community Foods Market’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 Community Foods Market.
● Disclaimers.
· THE
PLATFORM AND THE SERVICES ARE PROVIDED “AS IS,” AND COMMUNITY FOODS MARKET
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.
· COMMUNITY
FOODS MARKET 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 COMMUNITY FOODS MARKET IS SOLELY AT THE RISK OF PERSONS USING OR
OTHERWISE HANDLING THE CONSUMER PRODUCTS.
· COMMUNITY
FOODS MARKET DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY
CONSUMER PRODUCT, AND COMMUNITY FOODS MARKET 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. COMMUNITY FOODS MARKET DOES NOT ENDORSE,
GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY DELIVERY PERSON, AND COMMUNITY
FOODS MARKET 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 COMMUNITY FOODS MARKET 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 COMMUNITY FOODS
MARKET’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 COMMUNITY FOODS MARKET FROM ANY AND ALL
LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO DELIVERY
PERSONS. COMMUNITY FOODS MARKET DOES NOT INDEPENDENTLY VERIFY OR ASSESS THE
CHARACTER, SKILL, QUALITY, OR SAFETY OF DELIVERY PERSONS NOR DOES SUPER GLOBAL
INDEPENDENTLY VERIFY OR ASSESS THE LEGALITY OF THE CONSUMER PRODUCTS PROVIDED
BY STORES. COMMUNITY FOODS MARKET IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS
OF DELIVERY PERSONS. SUPER GLOBAL 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. IF YOU ARE A CALIFORNIA RESIDENT, YOU
WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS:
○ A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.
● 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. Community Foods Market operates this Platform from
California 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 Community Foods Market and its
agents (at Community Foods Market’s option) against any allegation, claim, a
lawsuit (“Claim”) made or brought against Community Foods Market 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 Community Foods Market, and for reasonable
attorney’s fees incurred by Community Foods Market, in connection with any such
Claim; provided, that Community Foods Market 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 Community Foods Market’s advance written consent). Community
Foods Market reserves the right, at Community Foods Market’s 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 Community Foods Market’s defense of that claim.
● Updates
and Amendments. Community Foods Market may make
improvements and/or changes to the Services, and changes to the Content, at any
time and without notice. Community Foods Market 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 Community Foods Market and a Delivery Person), and the Community Foods
Market Privacy Notice, represent the entire agreement and
general understanding relating to the use of the Services and supersede prior,
contemporaneous, or additional communications. Community Foods Market’s current
statement of fees may be amended from time to time in Community Foods Market’s
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:
Community Foods Market
3105
San Pablo Ave
Oakland,
CA 94608
email@communityfoodsmarket.com
● 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 Community Foods Market 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
Community Foods Market 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
Community Foods Market as follows:
Initial
Dispute Resolution: Most disputes can be resolved without
resort to litigation. You can reach Community Foods Market’s support department
at email@communityfoodsmarket.com
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 Community Foods Market 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 Community Foods Market at Attn: Legal; email@communityfoodsmarket.com.
To the
extent the filing fee for the arbitration exceeds the cost of filing a lawsuit,
Community Foods Market will pay the additional cost. If the arbitrator finds
the arbitration to be non-frivolous, Community Foods Market 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 California, United States of America, and you and Community Foods Market
agree to submit to the personal jurisdiction of any federal or state court in
Oakland, California 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 COMMUNITY FOODS
MARKET 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 Community Foods Market)
written notice of your decision to opt-out to Community Foods
Market ---Attn: Legal; email@communityfoodsmarket.com 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, Community Foods
Market will not be bound by them.
Changes
To This Section: Community Foods Market 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: August 1, 2020