UNGRADED PRODUCE, LLC

WEBSITE TERMS OF SALE AND USE

 

I. ACCEPTANCE OF TERMS OF USE

 

1.1 Parties. The following Terms of Sale and Use (the “Terms”) are entered into by and between you and Ungraded Produce, a North Carolina Limited Liability Company (“Ungraded Produce,” “we,” “us” or “our,” as the context may require), and apply to the purchase and sale of products and services through [ungradedproduce.com], Facebook, Instagram, any other social media websites and any mobile applications provided by Ungraded Produce that link to these Terms (collectively, the “Sites”).

 

1.2 Acceptance by Use of Sites. Please read the Terms carefully before you start to use the Sites. By placing an order for products or services from the Sites, otherwise using the Sites or by clicking to accept or agree to the Terms when this option is made available to you, you accept and agree to be bound and abide by these Terms and our Privacy Policy, found at [URL], incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Sites or order, receive or use products or services made available through the Sites (collectively, the “Products”).

1.3 Other Agreements Unaffected. The Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.

1.4 Modification of Terms. Ungraded Produce reserves the right to change or modify these Terms at any time and in the sole discretion of Ungraded Produce. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating Section 12.11 (Last Update). By continuing to access or use the Sites or order, receive or use the Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.

 

1.5 Eligibility. The Sites are not targeted toward nor intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (c) do not have more than one Ungraded Produce account, and (d) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.

 

II. ACCESS TO THE SITES; ACCOUNT SECURITY

 

2.1 Registration for Account. In order to access and use certain areas or features of the Sites, you will need to register for an Ungraded Produce account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update from time to time as necessary your account information, (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us, (d) accept responsibility for all activities that occur under your account or password and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.

2.2 Consent to Receive Electronic Communications. By creating an Ungraded Produce account, you also consent to receive electronic communications from Ungraded Produce (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

 

2.3 Responsibility to Ensure Access. You are responsible for making all arrangements necessary for you to have access to the Sites and ensuring that all persons who access the Sites through your internet connection are aware of these Terms and comply with them.

 

2.4 Privacy of Information. To access the Sites or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Sites that all the information you provide on the Sites is correct, current and complete. You agree that all information you provide to register with this Sites or otherwise, including but not limited to through the use of any interactive features on the Sites, is governed by our Privacy Policy, available at [URL], and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

 

2.5 Security of Account Information. If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to this Sites or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. You also agree to ensure that you exit from your account at the end of each session. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other personal information.

 

2.6 Right to Disable. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in the sole discretion of Ungraded Produce for any or no reason, including if, in our opinion, you have violated any provision of these Terms.

 

III. TERMS OF SALE

 

3.1 Subscription Sales.

 

3.1.1 Produce Box Subscriptions. We offer subscription plans for produce boxes (“Subscriptions” or individually, a “Subscription”), in which you may designate an order that will be regularly shipped by us (your “Subscription Order”). We may alter what Subscriptions are offered, at our sole discretion, from time to time. Information on our available Subscriptions can be found on our website, [ungradedproduce.com/subscriptions].

3.1.2 Continuous Subscriptions. When you register for a produce box subscription, you expressly acknowledge and agree that (a) Ungraded Produce is authorized to charge you [on a regular basis / once per month / twice per month] for your Subscription (in addition to any applicable taxes and other charges) for as long as your Subscription continues, and (b) your Subscription is continuous until you cancel it or we suspend or stop providing access to the Sites or products in accordance with these terms. You may skip your Subscription Order as often as you would like by [managing your delivery schedule on your “Manage Account” page].

3.1.3 Cancellation Policy. In order to cancel your produce box subscription, on or before 3 pm three days prior to your delivery, you must either email us at [UP email], or cancel your Subscription through the Sites. Any Subscription Order that has a delivery date within this three day window has been processed and cannot be cancelled, and you will be responsible for all charges (including any applicable taxes and other charges) incurred prior to the cancellation of your Subscription.

In the event you cancel your Subscription, please note that we may still send you promotional communications about Ungraded Produce, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.

 

3.2 General Sales. We may, at our sole discretion, offer one-time purchases of produce boxes without requiring an account or subscription (an “Order”). You agree that your Order is an offer to buy, under these Terms, all products and services listed in your order. All orders must be accepted by us or we will not be obligated to sell the products or services to you. We may choose not to accept any Orders in our sole discretion. After having received your Order, we will send you a confirmation e-mail with your order number and details of the items you have ordered. Acceptance of your Order and the formation of the contract of sale between Ungraded Produce and you will not take place unless and until you have received your order confirmation e-mail. You have the option to cancel your Order at any time before we have sent your order confirmation e-mail by calling our Customer Service Department at [telephone number].

 

3.3 Sponsorship. You have the ability to purchase a Subscription Order for other people through the Sites (a “Sponsorship”). When you purchase a Sponsorship, we will send an email to the Sponsorship recipient that can be used to redeem the Sponsorship. The Sponsorship recipient will be required to create an [Ungraded Produce] account, which includes placing a credit card on file in order to access the Sites and redeem the Sponsorship. Sponsorships are not refundable or redeemable for cash, unless otherwise required by applicable law. However, Sponsorships do not expire, and any unused balance will be placed in the Sponsorship recipient’s Ungraded Produce account.

 

3.4 Free Trials. From time to time, to the extent legally permitted, we may offer free trials of certain subscriptions for specified periods of time without payment that you may sign up for. If we offer you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. However, an Ungraded Produce account, which includes placing a credit card on file in order to access the Sites, will be required.

 

If you signed up for such a free trial, once your free trial ends, we will begin billing your designated payment method on a recurring basis for your subscription (plus any applicable taxes and other charges) for as long as your subscription continues, unless you cancel your subscription prior to the end of your free trial. Instructions for canceling your subscription are described above. Please note that you will not receive a notice from us that your free trial has ended or that the paid portion of your subscription has begun. We reserve the right to modify or terminate free trials at any time, without notice and in the sole discretion of Ungraded Produce.

 

3.5 Payment and Billing Information. By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us to charge you via that payment method for the total amount of your Subscription Plan, Order or other purchase (including any applicable taxes and other charges) (collectively, your “Purchase”). If the payment method cannot be verified, is invalid or is otherwise not acceptable, your Purchase may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Purchase. In the event you want to change or update payment information associated with your Ungraded Produce account, you can do so at any time by logging into your account and editing your payment information.
3.5 Availability and Pricing.

 

3.5.1 Availability. All of the Products are subject to availability, and we reserve the right to impose quantity limits on any Purchase, to reject all or part of an Purchase, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific produce items) without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond the control of Ungraded Produce, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at [email].
3.5.2 General Pricing. All prices posted on this Site are subject to change without notice. The price charged for a product or service will be the price in effect at the time an Order is placed and will be set out in your order confirmation e-mail. Price increases will only apply to Orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your merchandise total and will be itemized in your shopping cart and in your order confirmation e-mail. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any Purchase arising from such errors.
3.5.3 Subscription Pricing. When you place a Subscription Order, you are agreeing to pay the total subscription price for the mix of items included in that delivery. The items originally chosen for your Subscription Order add up to total your subscription price. Individual prices are not available for these specific items as your purchase is of the mixed box, not the individual items. You may ask for certain items to be removed from the Subscription Order due to allergies or strong preference, and we may accommodate these requests at our sole discretion, but the price for your Subscription Order will not change accordingly. You acknowledge that the amount billed may vary due to promotional offers, changes to your produce box Subscription, changes in applicable taxes or other charges, and you authorize us or a third-party payment processor to charge your payment method for the corresponding amount.

[3.5.4 Extra Items. We may, at our sole discretion, choose to allow extra items to be added to a Subscription Order. If you add extra produce items, you will pay the displayed item price, which is a discounted price, on the extra produce items in addition to your subscription amount.]

 

3.6 Ensuring Freshness and Quality.

 

3.6.1 Your Responsibility. You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your delivery to confirm that the Products arrive in a cool condition.

 

3.6.2 Refrigeration. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery and follow the USDA instructions on refrigeration and food safety, which can be found here.

 

3.6.3 Condition and Consumption. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe washing, handling, preparation, storage, cooking, use and consumption of the Products following delivery. We recommend that you follow the USDA’s instructions on safe food handling, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here.

 

3.6.4 Seasonal and weather-Related Changes. Depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for proper storage of your products prior to consumption. In the case of inclement weather or other events beyond the control of Ungraded Produce that interfere with the ability of Ungraded Produce to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your Order is not feasible, we will cancel your Order for the period so affected and issue you a credit or refund of the purchase price for that produce box delivery.

 

3.7 No Resale. You are not permitted to resell or otherwise use the Products for commercial purposes.

 

3.8 Product Descriptions. Ungraded Produce attempts to be as accurate as possible. However, we do not warrant that product descriptions, photos, or other content of any product is accurate, complete, reliable, current, or error-free. If a product offered by Ungraded Produce itself is not as described, your sole remedy is to receive a refund for the product. We intentionally purchase and sell items that are imperfect and non-uniform. For this reason, weights displayed are approximate and intended to communicate approximate amounts of produce that you will receive. While we do not anticipate weights to be incorrect, your sole remedy for any error or documented weight-related issue will be resolved via a credit or refund for the product in question.

 

3.9 Returns and Refunds. If you are dissatisfied with any product, please contact us at [email] within 48 hours of your delivery and, depending on the circumstances, we will provide you a full or partial credit or refund of the purchase price for that box or product. We may require the return or photographic documentation of any product with which you are dissatisfied before we provide you a replacement, credit or refund.

 

3.10 Delivery. Produce boxes will be delivered to [a third-party pickup location / {specific name, like Durham Co-op}] for pickup. Account-holders who have already paid online may pick up their orders by showing a valid form of identification[, such as a state driver’s license or a passport.] Account-holders who wish to pay by cash may pick up their orders by paying [the third-party pickup location / Durham Co-op].

 

IV. INTELLECTUAL PROPERTY; LICENSE TO ACCESS SITES

 

4.1 Intellectual Property Ownership. Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Ungraded Produce logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Ungraded Produce or its licensors or users, as applicable, and are protected by United States and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.

 

4.1.1 Trademarks. The Company name, the terms [LIST COMPANY TRADEMARKS], [the Company logo] and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Sites are the trademarks of their respective owners.

 

4.2 License to Access and Use. You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without the prior written permission of Ungraded Produce, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Ungraded Produce or any third-party, whether by estoppel, implication or otherwise. This license is revocable at any time.

 

4.3 Other License Terms. Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Ungraded Produce or a third-party that are subject to separate license terms, in which case those license terms will govern such software components.

 

4.4 Prohibited Uses. You may use the Sites only for lawful purposes and in accordance with these Terms. You agree not to use the Sites:

 

·      In any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).

·      For the purpose of exploiting, harming or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information or otherwise.

·      To send, knowingly receive, upload, download, use or re-use any material that does not comply with the Content Standards [INSERT A LINK TO CONTENT STANDARDS – which might just be Facebook’s] set out in these Terms.

·      To transmit, or procure the sending of, any advertising or promotional material [without our prior written consent], including any junk mail, chain letter or spam or any other similar solicitation.

·      To impersonate or attempt to impersonate the Company, a Company employee, another user or any other person or entity (including, without limitation, by using e-mail addresses [or screen names] associated with any of the foregoing).

·      To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Sites, or that, as determined by us, may harm the Company or users of the Sites or expose them to liability.

Additionally, you agree not to:

 

·      Use the Sites in any manner that could disable, overburden, damage, or impair the site or interfere with any other party’s use of the Sites, including their ability to engage in real time activities through the Sites.

·      Use any robot, spider or other automatic device, process or means to access the Sites for any purpose, including monitoring or copying any of the material on the Sites.

·      Use any manual process to monitor or copy any of the material on the Sites or for any other unauthorized purpose without our prior written consent.

·      Use any device, software or routine that interferes with the proper working of the Sites.

·      Introduce any viruses, trojan horses, worms, logic bombs or other material that is malicious or technologically harmful.

·      Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Sites, the server on which the Sites are stored, or any server, computer or database connected to the Sites.

·      Attack the Sites via a denial-of-service attack or a distributed denial-of-service attack.

·      Otherwise attempt to interfere with the proper working of the Sites.

 

[V. USER CONTENT

 

5.1 Right to Hyperlink. You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Ungraded Produce or any of the Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Ungraded Produce logo or other proprietary graphic of Ungraded Produce to link to the Sites without the express written permission of Ungraded Produce. Further, you may not use, frame or utilize framing techniques to enclose any Ungraded Produce trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without the express written consent of Ungraded Produce.

 

5.2 User Contributions. The Sites may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards[, any other interactive features] and other interactive features (collectively, “Interactive Services”) that allow users to post, submit, publish, display or transmit to other users or other persons (hereinafter, “Post”) content or materials (collectively, “User Contributions”) on or through the Sites.

 

5.2.1 Compliance with Terms. All User Contributions must comply with the Content Standards set out in these Terms.

 

5.2.2 Company Right to Material. Any User Contribution you Post to the site will be considered non-confidential and non-proprietary. By providing any User Contribution on the Sites, you grant us and [our affiliates and service providers, and each of their and] our [respective] licensees, successors and assigns the right to use, reproduce, modify, perform, display, distribute and otherwise disclose to third parties any such material [for any purpose/according to your account settings].

 

5.2.3 Representation and Warranty. You represent and warrant that (a) you own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and [our affiliates and service providers, and each of their and] our [respective] licensees, successors and assigns; and (b) all of your User Contributions do and will comply with these Terms.

5.2.4 No Company Liability for User Contributions. You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Company, have fully responsibility for such content, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Contributions posted by you or any other user of the Sites.]

 

VI. THIRD-PARTY CONTENT

 

6.1 Internal Content. We may display content, advertisements and promotions from third-parties through the Sites or in shipments with Products (collectively, “Third-Party Content”). We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third-parties providing Third-Party Content are solely between you and such third-parties, and that Ungraded Produce is not responsible or liable in any manner for such interactions or Third-Party Content.

 

6.2 External Hyperlinks. Ungraded Produce makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such websites are not under the control of Ungraded Produce, and we are not responsible for the contents of any linked website, any link contained in a linked website, or any review, changes or updates to such websites. We may provide these links to you only as a convenience, and the inclusion of any link does not imply affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that the Terms and other policies of Ungraded Produce no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from the Sites.

 

VII. USER CONDUCT

 

7.1 User Conduct within the Sites. You agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Sites. You agree that you will abide by these Terms and will not:
·      Engage in any harassing, threatening, intimidating, predatory or stalking conduct;

·      use or attempt to use another user’s account without authorization from such user and Ungraded Produce;

·      use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites or that could damage, disable, overburden or impair the functioning of the Sites in any manner;

·      Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area or code of the Sites;

·      Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Sites that you are not authorized to access;

·      Develop any third-party applications that interact with user Content or the Sites without the prior written consent of Ungraded Produce;

·      use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Sites, extract data or otherwise interfere with or modify the rendering of Site pages or functionality; or

·      use the Sites for any illegal or unauthorized purpose, or engage in, encourage or promote any activity that violates these Terms.

 

7.2 User Conduct after Purchase. You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying products or services from the Site for your own personal or household use only, and not for resale or export. Products and services purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799) and their successor and supplemental regulations (collectively, “Export Regulations”).

 

VIII. INDEMNIFICATION

 

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Ungraded Produce and its respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Ungraded Produce Parties”), from and against all actual or alleged Ungraded Produce Party or third-party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Sites, Content or Products, (b) any user Content you create, post, share or store on or through the Sites or pages or feeds on third-party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of another, and (f) any third-party’s use or misuse of the Sites or Products provided to you. You agree to promptly notify Ungraded Produce of any third-party Claims and cooperate with the Ungraded Produce Parties in defending such Claims. You further agree that the Ungraded Produce Parties shall have control of the defense or settlement of any third-party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Ungraded Produce.

 

IX. DISCLAIMERS

 

9.1 Safe Use of Products. You are solely responsible for the proper and safe washing, handling, preparation, storage, cooking, use and consumption of the Products you receive from us. You are also solely responsible for knowing about any food allergies you may have and verifying the products and their contents before handling, preparing, using or consuming such products.

 

9.2 No Responsibility for Accuracy of Information. We attempt to display the products and other materials and information you view on the sites, including pricing and nutritional information, as accurately as possible. However, we do not guarantee the accuracy of such materials and information and are not responsible for any claims arising or resulting from your reliance thereon. In the event of an error on the Sites, in an order confirmation, in processing or delivering an order or otherwise, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel your order and issue you a refund.

 

9.3 Variability. You further agree that the products and other materials you receive in your order may vary from the products and materials displayed on the sites due to a number of factors, including, without limitation, system capabilities and constraints of your computer, manufacturing process or supply issues, and the availability and variability of products. The sites may contain information about products that are not available in every location. A reference to a product on the sites does not imply or guarantee that it is or will be available in your location or at the time of your order.

 

9.4 Products Provided “As Is.” Except as may be provided in a warranty by the manufacturer of a product, all Products and the Sites and content are provided on an “as is” basis without warranties of any kind, either express or implied. Ungraded Produce disclaims all other warranties, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement as to the sites, content and products, any warranties that arise from trade usage or custom, and any warranties that the sites or products will be free and clear from any adverse lien or security interests.

 

9.5 Modification without Notice. We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Sites (or any features or functionality of the Sites) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us. Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.

 

X. LIMITATION OF LIABILITY, RELEASE

 

10.1 No Liability. To the fullest extent permitted by applicable law, in no event shall Ungraded Produce or any of the other Ungraded Produce parties be liable for any indirect, special, incidental, consequential, exemplary or punitive damages of any kind (including, but not limited to, loss of revenue, income or profits, loss of use or data, loss or diminution in value of assets or securities, or damages for business interruption) arising out of or in any way related to the access or use of the Sites or content or the order, receipt or use of any product or otherwise related to these terms (including, but not limited to, any damages caused by or resulting from reliance by any user on any information obtained from Ungraded Produce, or from mistakes, omissions, interruptions, deletions of files or emails, errors, defects, bugs, viruses, trojan horses, delays in operation or transmission or any failure of performance, whether or not resulting from acts of god, communications failure, theft, destruction or unauthorized access to Ungraded Produce’s records, programs or systems), regardless of the form of action, whether based in contract, tort (including, but not limited to, simple negligence, whether active, passive or imputed), strict product liability or any other legal or equitable theory (even if the party has been advised of the possibility of such damages and regardless of whether such damages were foreseeable).

 

10.2 Liability Limited to Purchase Price. To the fullest extent permitted by applicable law, in no event shall the maximum aggregate liability of Ungraded Produce and the other Ungraded Produce parties (jointly) arising out of or in any way related to (a) the order, receipt or use of products purchased from Ungraded Produce exceed the amount paid for such products; and (b) the order, receipt or use of products, or access or use of the sites or content, exceed the greater of $22 or the amount you paid to us in the one (1) month period immediately preceding the date on which your claim arose. The foregoing limitations shall apply even in the event your remedies hereunder fail of their essential purpose, and the foregoing shall constitute Ungraded Produce and the other Ungraded Produce parties’ sole liability and obligation in respect hereof, regardless of the form of action, whether based in contract, tort (including, but not limited to, simple negligence, whether active, passive or imputed), strict product liability or any other legal or equitable theory.

 

10.3 Release. To the fullest extent permitted by applicable law, you, on behalf of your heirs, executors, administrators, legal and personal representatives, hereby release, waive, acquit and forever discharge Ungraded Produce and the other Ungraded Produce parties from and against, and covenant not to sue any such Ungraded Produce party for, all claims you have or may have arising out of or in any way related to these terms.

 

10.4 California Waiver. If you are a California resident, you hereby waive your rights under California Civil Code 1542, which states “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.”

 

XI. DISPUTE RESOLUTION

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH UNGRADED PRODUCE AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

 

11.1 Waiver of Rights to Trial. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 8 or Disputes in which either party seeks to bring an individual action in court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Ungraded Produce agree (a) to waive your and Ungraded Produce’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Ungraded Produce’s rights to a jury trial. Instead, you and Ungraded Produce agree to first mediate, and then arbitrate, all Disputes.

 

11.2 Mediation. To resolve any Dispute, you and Ungraded Produce shall seek the assistance of a mediator accredited by the North Carolina Dispute Resolution Commission, or possessing other suitable credentials if agreed to by you and Ungraded Produce. You and Ungraded Produce shall share the expenses of mediation equally. You agree to only resolve Disputes with Ungraded Produce by way of mediation and to not file any action in any state or federal court.

 

11.3 Arbitration. In the case that (a) you or Ungraded Produce does not respond to the efforts of the Mediator to contact you over fifteen consecutive days or (b) the Mediator, in his or her sole discretion, states that the mediation is in impasse, you or Ungraded Produce may demand and proceed to binding arbitration. Arbitration shall be conducted in accordance with the expedited Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.  Arbitration shall be held in North Carolina, and shall be conducted before a single arbitrator mutually agreeable to you and Ungraded Produce, or if no agreement can be reached, before an arbitrator selected by the American Arbitration Association.

11.4 No Class Arbitrations, Class Actions or Representative Actions. You and Ungraded Produce agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Ungraded Produce and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Ungraded Produce agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Ungraded Produce agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

 

11.5 Notice, Information Dispute Resolution. You and Ungraded Produce agree that each party will notify the other party in writing of any Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Ungraded Produce shall be sent by certified mail or courier to Ungraded Produce, [address]. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Ungraded Produce account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Notice to you will be sent electronically in accordance with Section 2.2 and will include the name, postal address and telephone number of Ungraded Produce and an email address at which we can be contacted with respect to the Dispute, a description in reasonable detail of the nature or basis of the Dispute, and the specific relief that we are seeking. If you and Ungraded Produce cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Ungraded Produce may, as appropriate and in accordance with this Section 11, commence a mediation proceeding.

 

11.6 Limitation. Except for Disputes arising out of or related to a violation of Section 8 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Ungraded Produce agree that any Dispute must be commenced or filed by you or Ungraded Produce within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred, meaning that you and Ungraded Produce will no longer have the right to assert such claim regarding the Dispute.

 

XII. MISCELLANEOUS

 

12.1 Modifications to the Sites and Products. We reserve the right in the sole discretion of Ungraded Produce to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time and without liability therefor.

 

12.2 Governing Law and Venue. These Terms, your access to and use of the Sites and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of North Carolina, without regard to conflict of law rules or principles (whether of the State of North Carolina or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of North Carolina and the United States, respectively, sitting in the State of North Carolina, County of Durham.

 

12.3 Termination. Notwithstanding anything contained in these Terms, we reserve the right, without notice and in the sole discretion of Ungraded Produce, to terminate your right to access or use the Sites and to order, receive and use the Products, at any time and for any or no reason, and you acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, to the fullest extent permitted by applicable law.

 

12.4 Severability. If any term, clause or provision of these Terms is held invalid, illegal, void or unenforceable, then that term, clause or provision will be deemed severed from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.

 

12.5 Survival. The following sections will survive the expiration or termination of these Terms and the termination of your Ungraded Produce account: all defined terms and Sections 2, 3, 4 (first paragraph only), 5, 6, 7 (second paragraph only), and 8 through 18.

 

12.6 International Use. We make no representation that information on this Site is appropriate or available for use outside the United States. Those who choose to access this Site from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.

 

12.7 Entire Agreement. Your order confirmation e-mail, these Terms and our Privacy Policy will be deemed the final and integrated agreement between you and us on the matters contained in these Terms.

 

12.8 Nontransferable Rights. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Ungraded Produce.

 

12.9 Limitation on Waivers. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Ungraded Produce’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.

12.10 No Third-Party Benefit. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.

 

12.11 Last Update. The Terms were last updated on May 6, 2016

There will be no deliveries from November 25-26. Dismiss