Last Update. The Terms were last updated on June __, 2017.
Welcome to Ungraded Produce! At Ungraded Produce, we buy locally-grown “ugly” produce sell it to those seeking nourishing foods, but who lack the time, resources, and transportation to obtain such foods.
Our legal name is Ungraded Produce, LLC, and we are a North Carolina limited liability company. To make these Terms of Sale and Use easier to read:
- These Terms of Sale and Use will be referred to herein as the “Terms”;
- Ungraded Produce’s website and any associated sites (whether ungradedproduce.com, a mobile application provided by Ungraded Produce, or Ungraded Produce’s social media pages) will be referred to herein as the “Sites”;
- We will refer to anything purchased through the Service as a “Product” or “Products”;
- We will refer to any services offered by Ungraded Produce (including providing you with the ability to purchase, and the delivery of, Products) as the “Service”;
- Ungraded Produce, inclusive of the Sites, Service, and Products, will be referred to herein as “Ungraded Produce,” “we,” “us” or “our,” as the context may require;
- We will simply refer to you and other users as “you,” or “your”.
- GENERAL CONDITIONS
1.1 Eligibility. To access or use the Ungraded Produce, you must:
- be at least 18 years old,
- not have been previously suspended from accessing or using Ungraded Produce,
- not be engaged in any activity that could result in suspension from accessing or using the Ungraded Produce,
- have only 1 account to access or use Ungraded Produce, and
1.2 Modification of Terms. We reserve the right, in our sole discretion, to change or modify these Terms. If we make changes to these Terms, we will provide you notice of such changes by posting a notice to the Sites. Following any such changes, your continued access or use of Ungraded Produce will confirm your acceptance of the revised Terms. If you do not agree to the revised Terms, you may not access or use Ungraded Produce.
2.1 Registration for Account. In order to access or use Ungraded Produce, you will need to register for an Ungraded Produce account (“Account”), by providing any prompted information, which may include the following: name, address, phone number, email address, password, and payment information. Any information that you provide to Ungraded Produce for any reason must be correct, current and complete. Anytime such information changes, you must update such information and notify us immediately, if the change so requires.
2.2 Responsibility for Account You acknowledge and agree that you (i) are solely responsible for your Account and any use of your Account, (ii) are solely responsible for any unauthorized use of your Account, and (iii) will notify us in writing immediately if you become aware of any unauthorized use of your Account. This means you may not provide any other person or entity with access to your Account. Likewise, you must not use any other person’s or entity’s Account, unless you express permission to do so.
2.3 Consent to Receive Electronic Communications. By creating an Account, you (i) consent to receiving electronic communications (emails, text messages, etc.) from Ungraded Produce concerning matters that include, without limitation, notices about your account, such as payment authorizations, password changes, promotions and other such information; and (ii) acknowledge that any such electronic communications will satisfy any legal requirements concerning notice or communication. If you do not want to receive promotional communications from us, you may opt out at any time by following the unsubscribe instructions provided in any such communications.
2.6 Right to Disable. We retain the right to restrict, suspend, or cancel any person’s or entity’s Account for any reason or no reason. Furthermore, we retain the right to restrict, suspend, or cancel any person’s or entity’s access and use of Ungraded Produce.
- TERMS OF SALE
3.1 Subscription Sales.
3.1.1 Produce Box Subscriptions. As part of the Service, we offer the ability to subscribe to receive produce boxes on regular basis (“Subscriptions” or individually, a “Subscription”), with each such instance being described herein as your “Subscription Order”. In our sole discretion, we may alter the Subscriptions offered. Information on the Subscriptions available can be found on our website, ungradedproduce.com.
3.1.2 Continuous Subscriptions. When you register for a Subscription, you expressly acknowledge and agree that (a) Ungraded Produce or a third-party provider (the “Payment Processor”) is authorized to charge you in accordance with the terms your Subscription for each Subscription Order. Your Subscription will remain in effect until you cancel or we cancel your Subscription. You may skip a Subscription Order by managing your delivery schedule on your “Manage Account” page.
3.1.3 Cancellation Policy. In order to cancel your Subscription, you must either email us at [email protected], or cancel your Subscription through your Account. The cancellation of your Subscription will not take effect for three business days; thus, you must cancel your Subscription at least three business days prior to your next Subscription Order or delivery will be processed and you will be responsible for all charges.
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 an Order is an offer to buy, under these Terms, the Products and Services listed in your order. We are not obligated to sell you the Products or Services requested in the Order until we accept the Order. 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 (which will serve as our acceptance of your Order) with your Order number and details of the items you have ordered. 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 (301) 452-1348.
3.3 Sponsorship. You have the ability to purchase a Subscription Order for other people through your Account (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 Account, which includes placing a credit card on file in order to redeem the Sponsorship. Sponsorships are not refundable or redeemable for cash, unless required by applicable law. Sponsorships do not expire, and any unused balance will be placed in the Sponsorship recipient’s Account.
3.4 Free Trials. We may offer you, on terms determined at the time of such offer, a free trial, which will still require you to add a payment method to your Account. Upon expiration and unless you cancel, your free trial will convert to a Subscription for which we will begin billing you, using the payment method you provided, in accordance with the terms of such Subscription and free trial. 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 our sole discretion.
3.5 Payment and Billing Information. By providing a payment method, you represent and warrant that you are authorized to use such payment method and that you authorize the Payment Processor to charge you via such payment method for the total amount of your Subscription, 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 until such issue is resolved. You may change or update your payment method by logging into your Account and editing your payment information.
3.6 Availability and Pricing.
3.6.1 Availability. All of the Products are subject to availability and any other limitations that we may put in place. Due to the perishable nature and quality issues related to produce, generally, we may be required to make substitutions to your order from time to time. If you are not satisfied with a substitution, please contact us at [email protected].
3.6.2 General Pricing. All prices posted by Ungraded Produce 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 Order or Subscription Order arising from such errors. You acknowledge we may offer promotions (such as a refer-a-friend program whereby we give the referring party a discount on their next order and the referred party a discount on their first order) from time to time, and any promotions that we offer are governed by the terms of such promotion and may change at any time with or without notice.
3.6.3 Subscription Pricing. By agreeing to a Subscription, you agree to pay the total price for items included in that Subscription Order. The items originally chosen for your Subscription Order add up to total your subscription price. You may ask for certain items to be removed from the Subscription Order and we may accommodate these requests at our sole discretion, but the price for your Subscription Order will not change. You acknowledge that the amount billed may vary due to promotional offers, changes to your Subscription, changes in Product prices, changes in applicable taxes or other charges, and you authorize us or our Payment Processor to charge your payment method for the corresponding amount.
3.6.4 Extra Items. We may, at our sole discretion, choose to allow extra items, for which you will be charged the then current price, to be added to an Order or Subscription Order.
3.7 Ensuring Freshness and Quality.
3.7.1 Your Responsibility. Upon delivery, you are responsible for inspecting all Products for damage and any other issues. In addition, you are solely responsible for determining the freshness of the Products. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all Products upon delivery and follow the USDA instructions on refrigeration and food safety, which can be found here. Following delivery, your consumption of the Products is solely at your own risk, and you are solely responsible for the proper and safe washing, handling, preparation, storage, cooking, and use.
3.7.2 Seasonal and Weather-Related Changes. 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 or Subscription Order, we will attempt to deliver your Order as soon as reasonably possible. In the event that timely delivery of your Order or Subscription Order is not feasible, we will cancel such order and issue you a credit or refund.
3.8 Product Descriptions. Ungraded Produce attempts to be as accurate as possible. However, we do not warrant that descriptions, photos, or other content posted on Ungraded Produce is accurate, complete, reliable, current, or error-free. If a Product offered by Ungraded Produce itself is not as described, including for reasons relating to weight, your sole remedy is to receive a refund for the Product.
3.9 Returns and Refunds. If you are dissatisfied with any Product, please contact us at [email protected] within 24 hours of your delivery to determine if you are eligible for a refund, a decision that shall be in our sole discretion.
3.10 Delivery. Orders and Subscription Orders will be delivered to a location that you designate.
- SITES ACCESS AND USE
4.1 Prohibited Uses. You may use Ungraded Produce only for lawful purposes and in accordance with these Terms. As such, you agree not to use Ungraded Produce:
- 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).
- To purchase and then sell or resell any Products.
- 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 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 associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of Ungraded Produce, or that, as determined by us, may harm the Company or users of Ungraded Produce or expose them to liability.
Additionally, you agree not to:
- Use Ungraded Produce in any manner that could disable, overburden, damage, or impair Ungraded Produce or interfere with any other party’s use of Ungraded Produce, including their ability to engage in real time activities through Ungraded Produce.
- 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 Ungraded Produce.
- Introduce to the Sites 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 Ungraded Produce.
4.2 Internal Content. We may display content, advertisements and promotions from third-parties on any Ungraded Produce medium of communication (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. You are solely responsible for your interaction with Third-Party Content and its providers.
4.3 External Hyperlinks. Ungraded Produce is not liable for the quality, content, nature or reliability of any third-party websites, services or materials that are advertised through Ungraded Produce.
- INTELLECTUAL PROPERTY
5.1 Intellectual Property Ownership. Unless otherwise indicated in writing by us, all content and other materials contained on Ungraded Produce, 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 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.
5.2 License to Access and Use. You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use Ungraded Produce (the “License”). However, the License is subject to these Terms and any use of Ungraded Produce other than as specifically authorized herein, without the prior written permission of Ungraded Produce, is strictly prohibited and will terminate your License. We may revoke your License at any time and for any reason.
5.3 Other License Terms. Notwithstanding anything to the contrary in these Terms, Ungraded Produce may include software components provided by a third-party that are subject to separate license terms, in which case those license terms will govern such software components.
- INDEMNIFICATION, LIMITED LIABILITY, 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.
6.1 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 your (i) use or misuse of Ungraded Produce or (ii) violation of these Terms. You agree to promptly notify Ungraded Produce of any third-party Claims and cooperate with Ungraded Produce 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.
6.2 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 your access or use of Ungraded Produce.
6.3 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 any of its related parties (jointly) exceed the amount you paid to us in the one (1) month period immediately preceding the date on which your claim arose.
6.4 Release. To the fullest extent permitted by applicable law, you (and on behalf of any parties related to you) hereby release, waive, acquit and forever discharge Ungraded Produce 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. 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.”
6.5 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 this Section 6 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, you and Ungraded Produce agree (a) to waive any rights to have Disputes arising out of these Terms, or the access of use of Ungraded Produce, resolved in a court (including a jury trial), and (b) to first mediate, and then arbitrate, all Disputes. In the case that mediation is at an impasse, as determined by a mediator, you or Ungraded Produce may demand and proceed to binding arbitration. Any 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 of competent jurisdiction. 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.
6.6 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 access of use of Ungraded Produce 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.
6.7 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 such Dispute arises. Notice to Ungraded Produce shall be sent by certified mail to Ungraded Produce, PO Box 2722, Durham, NC 27715. Your notice must include (a) your contact information, the email address listed in your Account, and, any email address at which you desire to 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. 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 will no longer have the right to assert such claim regarding the Dispute.
7.1 Governing Law and Venue. These Terms and your access to and use of Ungraded Produce shall be governed by the laws of the State of North Carolina, without regard to conflict of law rules or principles. Any Dispute between the parties that is not subject to arbitration, shall be resolved in the state or federal courts of the State of North Carolina in Durham County.
7.2 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.
7.3 Survival. The Terms will survive the expiration or termination of your Ungraded Produce Account.
7.4 International Use. We make no representation that information on Ungraded Produce is appropriate or available for use outside the United States. Those who choose to access Ungraded Produce 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.
7.6 Nontransferable Rights. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without our prior written consent.
7.7 Limitation on Waivers. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent occurence, and Ungraded Produce’s failure to assert any right or provision under these Terms shall not constitute waiver.
7.8 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.