The Produce Box
Last Revised: July 3, 2019
Welcome to The Produce Box! The Produce Box is delivery subscription service, designed to create a hassle-free experience for fresh local fruits, vegetables, and meats to be delivered to you at your home. The Produce Box app and website are collectively referred to as the “Service.”
The Service is a copyrighted work belonging to The Produce Box, LLC (“Company”, “us”, “our”, and “we”). Certain features of the Service may be subject to additional guidelines, terms, or rules, which will be posted on the Service in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into these Terms.
These terms require the use of arbitration (Section 10.2) on an individual basis to resolve disputes, rather than jury trials or class actions and also limit the remedies available to you in the event of a dispute.
The Produce Box may include food items that you are allergic to if you have or suspect that you have an allergic reaction or other adverse health events, promptly contact your health care provider.
ANY OF THE EIGHT MAJOR U.S. ALLERGENS AS DETERMINED BY THE U.S. FOOD AND DRUG ADMINISTRATION (“FDA”) (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS, AND TREE NUTS) MAY BE STORED, PORTIONED AND PACKAGED THE PRODUCE BOX’S FACILITIES. ALTHOUGH WE TAKE PRECAUTIONS TO LIMIT THE POTENTIAL FOR CROSS-CONTAMINATION, CROSS-CONTAMINATION MAY OCCUR BETWEEN FOOD PRODUCTS, ALLOWING PRODUCE AND OTHER FOODS OFFERED IN CONNECTION WITH THE PRODUCE BOX’S SERVICE TO CONTAIN SOME OR ALL OF THESE ALLERGENS.
- Account Creation. In order to use certain features of the Service, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form (including but not limited to the email address and a unique password). You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information; (c) you reside in the United States or, if you reside outside the United States, that your use of the Service will comply with applicable law in your jurisdiction. You may delete your Account at any time, for any reason, by following the instructions on the Service. Company may suspend or terminate your Account in accordance with Section
- Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. The company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
- Access to the Service
- Who May Access. Any use or access to our services by anyone under the age of 18 is prohibited. If you open account on behalf of a company, organization, or other entity, then (a) “you” includes you are that entity, and (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and bind the entity to these terms, and that you agree to these Terms on the entity’s behalf.
- Subject to these Terms, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Service solely for your own personal, noncommercial use.
- Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service, whether in whole or in part, or any content displayed on the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive website, product, or service; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Unless otherwise indicated, any future release, update, or other addition to functionality of the Service shall be subject to these Terms. All copyright and other proprietary notices on the Service (or on any content displayed on the Service) must be retained on all copies thereof.
- Company reserves the right, at any time, to modify, suspend, or discontinue the Service (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Service or any part thereof.
- No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Service.
- Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Service and its content, are owned by Company or Company’s suppliers. You acknowledge that nothing herein shall be interpreted as restricting Company’s rights to use your User Content in connection with the Service or to aggregate any User Content with other data for use by the Company. As between you and the Company, all rights in and to the aggregated data belong to Company. Neither these Terms (nor your access to the Service) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.2. Company and its suppliers’ reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
- Price and Payment Terms.
- Payment and Billing Information. By providing your credit or debit card information when you sign up (your “Payment Method”), you authorize us and/or our third-party payment processor to charge your Payment Method. If your Payment Method cannot be authorized, we may suspend or cancel your delivery. We may contact you to reconfirm or update your Payment Method. We are not responsible for any fees incurred by you when charging or retrying your Payment Method, including overdraft fees.
WHEN YOU REGISTER FOR OUR SUBSCRIPTION SERVICE, YOU EXPRESSLY AUTHORIZE AND AGREE THAT THE PRODUCE BOX AND/OR OUR THIRD-PARTY PAYMENT PROCESSOR IS AUTHORIZED TO AUTOMATICALLY CHARGE YOUR PAYMENT METHOD. EVERY TIME THAT YOU USE OUR SUBSCRIPTION SERVICE, YOU RE-AFFIRM THAT THE PRODUCE BOX IS AUTHORIZED TO CHARGE YOUR PAYMENT METHOD AS PROVIDED IN THE AGREEMENT, AND TO HAVE ALL APPLICABLE FEES AND CHARGES APPLIED TO SAME.
- Credit or Debit Card Temporary Authorizations. We reserve the right to execute an authorization or temporary charge on your Payment Method to up to One Dollar ($1.00) to verify that your Payment Method is valid.
- Price. We reserve the right to adjust prices in our sole discretion provided that we will give you with at least ten days’ advance notice of any increases in price over the amount you have previously authorized. If you do not agree with such price changes, you must cancel your Service.
- Minimum Purchase Price. We reserve the right to subject every Delivery (as defined below) to a minimum purchase price in our sole discretion and excluding taxes, delivery fees, and surcharges.
- Through the Service, you may tip the delivery personnel who participated in your delivery. A tip is not expected, but it is always appreciated. We give the full amount of the tip to the personnel who delivered your box, less any processing fees that may be charged by the credit card processor. If you choose to tip, we charge the tip to your Payment Method and it appears in the total amount on your credit card statement.
- Promotions. We may offer Promotions through the Site and/or App. By providing your true and accurate to the applicable Promotion and agreeing to the Promotion Rules you can obtain a chance to win the prize(s). You understand and agree that we are not a liability to you for any claim in connection with your participation in any of the Promotions.
- Gift Cards. All sales of our Gift Cards are final and non-refundable. You may purchase and/or otherwise receive Gift Cards through the Site and/or App. We use a third-party vendor to process all gift card purchases. You must have a valid account with us in order to redeem a Gift Card. Gift Cards purchased from us on the later of (a) the third anniversary of the date of purchase or (b) any longer expiration period required by applicable law. Gift Cards may not be redeemed for cash, except in the jurisdictions that require gift cards must be redeemable for cash. Redemptions of Gift Cards result in the application of a credit to your Account. We are not responsible for and will not replace stolen or lost Gift Cards unless required by law.
- Our Subscription Service.
- Subscription Service. Our Subscription Service is an automatic reoccurring weekly subscription service. As part of our subscription service, we offer a number of subscription options that you choose from (a “Plan”). Each week you will receive a box from us including the contents of your chosen plan (a “Delivery”). You can find specific details regarding your Plan and our Service (by accessing the Site and/or App and accessing your Account details. Not included in the price of your Plan is our annual access fee to the Service. We charge this annual access fee to your Payment Method at enrollment with the price of your first order and automatically on the anniversary date of your first order unless you cancel the Service in advance of this annual charge.
- 100% Satisfaction Guarantee. The contents of each Delivery are backed by a 100% customer service guarantee. If for any reason you are not fully satisfied by the contents of your delivery, please contact us immediately via email at MemberSolutions@TheProduceBox.com or log into your account and send us a message from the “Contact Us” section of our platform. We may either resend an acceptable item or issue a credit voucher to your Account to be applied to future deliveries, in our discretion. If the product is perishable, all refunds are subject to a seven (7) day window after the date of delivery. If the product is frozen, all refunds are subject to a twenty-one (21) day window after the date of delivery.
- Changes, Cancellations & Other Modifications to the Plan. You may skip a week (or multiple weeks to the extent allowed) at any time in accordance with the Agreement. You may cancel your Plan at any time by following the instructions located on the Service. Changes to, or cancellations of, your Plan, or requests to skip any weekly Delivery of your Subscription Service, must be received by us by Sunday night at 9:00 p.m. EST. If you do not submit such cancellation, skip or change request before Sunday night at 9:00 p.m. EST, your weekly Delivery will be shipped and you will be charged your Plan Rate, if you requested to change or cancel your Plan, such change will not take effect until the week following your next weekly Delivery.
- We strive to provide you with high-quality products. Given the perishable nature of our products, from time-to-time, certain products may be unavailable due to market conditions beyond our reasonable control. In the event that one of our products is unavailable for any reason, and we have a replacement item that is comparable to such product, we may make a substitution or provide a credit in our discretion.
- Inclement Weather. In the case of inclement weather or unforeseen delivery complications beyond our reasonable control, it may be necessary to make adjustments to our delivery schedule, which may require us to suspend, reschedule or cancel chosen delivery dates and times in our discretion. We will use commercially reasonable efforts to communicate any such delivery complications or adjustments. In the event that we are unable to make a scheduled delivery for any reason, we may issue you a credit or refund of the purchase price for that Delivery.
- Delivery of Products. The Produce Box uses appropriate shipping solutions and may use third-party delivery companies to deliver the Service to its customers. To maintain the integrity and quality of food products, we strongly recommend that you immediately refrigerate all perishable items upon receipt of delivery. We also recommend that all fresh produce be washed prior to using.
To receive a Delivery, you must live in a residential apartment or home, or receive permission from your employer or business owner to receive shipments to a business address. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the Delivery.
- Risk of Loss. The risk of loss and/or damage to the Delivery is passed entirely to you at the time of delivery. You are solely responsible for the proper and safe washing, preparation, storage and cooking of the Delivery contents following delivery. You are solely responsible for products left at your specified delivery location. We recommend that you leave a cooler out for each Delivery. If our delivery personnel leaves a package unattended at the delivery location, we will send you a text message with the time of delivery. You specifically release us from all liability related to any unattended delivery if you do not promptly and properly consume, store or refrigerate each Delivery. If you do not wish to be texted, you may notify us by email, however, the release of liability is still in effect. In the case or requesting no-texts, You are responsible for monitoring delivery times and picking up/refrigerating items after drop off.
- User Content
- User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Service (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with the use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section 3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
- You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully-paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Service. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
- Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
- You agree not to use the Service to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
- In addition, you agree not to: (i) upload, transmit, or distribute to or through the Service any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Service unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Service to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Service, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Service (or to other computer systems or networks connected to or used together with the Service), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Service; or (vi) use software or automated agents or scripts to produce multiple accounts on the Service, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Service (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
- We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
- If you provide Company with any feedback or suggestions regarding the Service (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
- Third-Party Links & Ads; Other Users
- Third-Party Links & Ads. The Service may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. The company provides access to these Third-Party Links & Ads only as a convenience to you and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
- Other Users. Each Service user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Service users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.
- Third-Party Information Providers. In certain cases, we may permit you to order and receive products, information, and services from third parties that are not owned or operated by us. We act only as the link between you and such third parties. The purchase, payment, warranty, guarantee, delivery, maintenance and all other matters concerning the merchandise, services and/or information ordered are covered by their respective customer agreements and policies. We make no representations or warranties in regards to these third-party providers and should not be construed as an endorsement.
- You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Service (including any interactions with, or act or omission of, other Service users or any Third-Party Links & Ads).
THE SERVICE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SERVICE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SERVICE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SERVICE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
- Term and Termination. Subject to this Section, these Terms will remain in full force and effect while you use the Service. We may suspend or terminate your rights to use the Service (including your Account) at any time for any reason at our sole discretion, including for any use of the Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Service will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2 through 2.5, Section 3 and Sections 4 through 11.
- Copyright Policy.
Company respects the intellectual property of others and asks that users of our Service do the same. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent: (1) your physical or electronic signature; (2) identification of the copyrighted work(s) that you claim to have been infringed; (3) identification of the material on our services that you claim is infringing and that you request us to remove; (4) sufficient information to permit us to locate such material; (5) your address, telephone number, and e-mail address; (6) a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and (7) a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact (falsities) in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Company is: DMCA Agent
Address of Agent: 900 Withers Road, Raleigh, NC 27603
- These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. Continued use of our Service following notice of such changes shall indicate your acknowledgment of such changes and agreement to be bound by the terms and conditions of such changes.
- Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with the Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
- Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
- Arbitration. You agree that any dispute, claim or controversy arising hereunder or relating in any way to these Terms and not informally resolved shall be settled by binding arbitration in Wake County, North Carolina, in accordance with the commercial arbitration rules of Judicial Arbitration and Mediation Services (“JAMS”). The arbitrator shall issue a written decision specifying the basis for the award made. The party filing a claim or counterclaim in the arbitration proceeding shall pay the deposit(s) determined by JAMS with respect to such claim or counterclaim. All other costs associated with the arbitration and imposed by JAMS shall be paid as determined by the arbitrator(s) and, in absence of such determination, equally by each party to the arbitration. In addition, unless the arbitrator awards payment of reasonable attorney and other fees to a party, each party to the arbitration shall be responsible for its own attorneys’ fees and other professional fees incurred in connection with the arbitration. Determinations of the arbitrator will be final and binding upon the parties to the arbitration, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order of enforcement, as the case may be. The arbitrator shall apply the substantive law of the State of North Carolina, without giving effect to its conflict of laws rules.
- Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event, any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVES ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
- Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
- Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
- Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
- Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
- Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
- Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
- In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Wake County, North Carolina, for such purpose
- The Service may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
- Electronic Communications. The communications between you and Company use electronic means, whether you use the Service or send us emails, or whether Company posts notices on the Service or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in a hardcopy writing. The foregoing does not affect your non-waivable rights.
- Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Service. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
- Copyright/Trademark Information. Copyright © June 2019, The Produce Box. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Service are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
- Third-Party Device and Application Terms. If you are accessing the Service via an application on a device provided by a third party (such as Google, Inc. (“Google”), Apple, Inc. (“Apple”)) (each a “Third Party Vendor”) or an application obtained through the Apple App Store, the Google Play Store or another third-party marketplace (each an “Application”), the following shall apply:
- Both you and Company acknowledge that these Terms are concluded between you and Company only, and not with any Third Party Vendor, and that each Third Party Vendor is not responsible for the Application or the content therein;
- The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Service for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Application;
- You will only use the Application in connection with a Third Party Vendor device that You own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service;
- Both you and Company acknowledge and agree that each Third Party Vendor has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- Both you and Company acknowledge that., as between Company and any Third Party Vendor, Company, not the Third Party Vendor, is responsible for addressing your claims or the claims of any third party relating to the Application or your possession and/or use of the Application, including, but not limited to: (i) product liability claims; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation;
- Both you and Company acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, Company, and not any Third Party Vendor, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Company acknowledge and agree that, in your use of the Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
- Both you and Company acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you as the third party beneficiary hereof.
- Apple, the Apple logo, iPhone and iPad are trademarks of Apple Inc., registered in the U.S. and other countries. App Store is a service mark of Apple Inc. Google, Android, the Google logo and the Android logo are trademarks of Google, Inc., registered in the U.S. and other countries.
The Produce Box
900 Withers Road
Raleigh, NC 27603