La Tropicana Market Terms of Use
IMPORTANT-
THESE TERMS OF USE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS
ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN
INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS
ACTIONS.
THE
TERMS AND CONDITIONS OF THESE TERMS OF USE (THE “AGREEMENT”) SET FORTH BELOW
GOVERN YOUR USE OF THE LA TROPICANA MARKET WEBSITE AND/OR MOBILE APPLICATIONS
(COLLECTIVELY, THE “PLATFORM”) AND E-COMMERCE AND OTHER SERVICES AVAILABLE ON
AND THROUGH THE PLATFORM (THE “SERVICES”). THIS AGREEMENT IS A LEGAL CONTRACT
BETWEEN YOU (“YOU” OR “YOUR”) AND LA TROPICANA MARKET AND GOVERN YOUR ACCESS
TO, AND USE OF, THE PLATFORM AND THE SERVICES. IF YOU DO NOT AGREE WITH ANY OF
THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THIS PLATFORM OR
THE SERVICES, OR ANY INFORMATION ON OR RELATED TO THIS PLATFORM OR THE
SERVICES. BY CLICKING THE BOX TO USE THE PLATFORM OR THE SERVICES OR USING THIS
PLATFORM OR THE SERVICES, YOU AGREE TO ABIDE BY EACH OF THE TERMS SET FORTH
BELOW.
Overview
This
Agreement is a legal agreement with La Tropicana Market located at 5200 Monte Vista St.
Highland Park, CA, 90042, and you.
This Agreement governs La Tropicana Market’s relationship
with you. To the extent stated below, this Agreement also governs each party’s
relationship with other parties with whom those parties transact utilizing the
Services, and all such parties remain free to have additional agreements and
terms between themselves as they may agree in writing, provided that no such additional
terms shall be interpreted to conflict with or supersede this Agreement with
respect to La Tropicana Market specifically.
La
Tropicana Market provides online and mobile technology that connects Customers,
Stores, and Delivery Persons. Using the Platform and Services, Customers place
purchase orders for grocery products that are available to purchase online on
the Platform, items purchased online are available for pickup or
delivery.
If you
submit orders through a third-party site or application, such as GrubHub or
DoorDash, you may be required to have an account with such third party and may
be transferred to such third party’s website or application to complete
transactions. Any orders submitted through such third-party sites or
applications are solely between you and the applicable third party, not La
Tropicana Market. This Agreement does not apply to orders placed through a
third party’s website or application. If you use a third party’s website or
application for an order from one of our Stores, you will be subject to the
terms and policies posted by that third party and we are not responsible for
those terms or policies or acts or omissions of those third parties.
Terms
● Parties. All parties to this Agreement are independent contractors with
respect to one another, such that no party exercises control over any other
party or has any liability or responsibility for any other party.
· Third-Party Service Providers. La Tropicana Market in partnership with its service providers
(“Third-Party Service Providers”) provides information, and online methods for
Customers to purchase and obtain delivery of products. Third-Party Service
Providers do not provide any items for online sales but do provide the
necessary infrastructure in order to provide customers of the Services a method
to order items available online and provide delivery services.
· Customers. Customers
utilize the Services to purchase products from Stores and to obtain delivery of
such products from Delivery Persons. Customers do not control and have no
liability or responsibility for any Store or Delivery Person, or for La
Tropicana Market.
· Stores. Stores are La Tropicana Market’s
stores and/or warehouses that showcase and sell consumer products to Customers
via the Platform and Services. Stores fulfill orders for Customers unless
specified otherwise. Stores do not themselves provide delivery services unless
the Store expressly advises the Customer otherwise. Stores may provide
Customers with pick-up options in each Store’s discretion.
· Delivery Persons. Delivery
Persons utilize La Tropicana Market Produce’s Third-Party Service Providers’
services, to independently select and execute delivery jobs to deliver products
that Customers purchase on the Platform in exchange for a fee from the Third-
Party Service Provider. Delivery Persons do not themselves provide products.
Delivery Persons are independent contractors to La Tropicana Market’s
Third-Party Service Providers and are not engaged in any employment or agency
relationship with La Tropicana Market, Stores, or Customers.
Mobile Applications. With
respect to the mobile versions of the Platform, you will only use the Platform
and Services (i) on an Apple-branded product that runs the iOS (Apple’s
proprietary operating system) or a product that runs on Android; and (ii) as
permitted by applicable “Usage Rules” set forth in the Apple App Store Terms of
Use or the Google Play Terms of Use. With regard to your use of the iOS version
of the Platform and Services, you acknowledge and agree that (i) this Agreement
is an agreement between you and La Tropicana Market only, and not Apple, and
(ii) La Tropicana Market, not Apple, is solely responsible for the Platform and
Services and content thereof. Your use of the Platform and Services must comply
with the App Store Terms of Use. You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance and support services with respect to the
Platform or the Services. In the event of any failure of the Platform or the
Services to conform to any applicable warranty, you may notify Apple, and Apple
will refund the purchase price for the Platform and Services (if any) to you
and to the maximum extent permitted by applicable law, Apple will have no other
warranty obligation whatsoever with respect to the Platform or the Services. As
between La Tropicana Market and Apple, any other claims, losses, liabilities,
damages, costs or expenses attributable to any failure to conform to any
warranty will be the sole responsibility of La Tropicana Market, subject to
this Agreement. You and La Tropicana Market acknowledge that, as between La
Tropicana Market and Apple, Apple is not responsible for addressing any claims you
have or any claims of any third party relating to the Platform or the Services
or your possession and use of the Platform or the Services, including, but not
limited to: (i) product liability claims; (ii) any claim that the Platform or
the Services fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection or similar
legislation. You and La Tropicana Market acknowledge that, in the event of any
third-party claim that the Platform or the Services or your possession and use
of the Platform or the Services infringe that third party’s intellectual
property rights, as between La Tropicana Market and Apple, La Tropicana Market,
not Apple, will be solely responsible for the investigation, defense, settlement
and discharge of any such intellectual property infringement claim to the
extent required by, and subject to, this Agreement. You and La Tropicana Market
acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party
beneficiaries of this Agreement as related to your license of the Platform or
the Services, and that, upon your acceptance of the Terms of Use and conditions
of this Agreement, Apple will have the right (and will be deemed to have
accepted the right) to enforce this Agreement as related to your license of the
Platform or the Services against you as a third-party beneficiary
thereof.
· As-Is. Unless agreed otherwise in writing by the party providing the
product or service, all products and services are provided "as is",
and without warranties of any kind.
· Privacy. In accordance with La Tropicana
Market’s Privacy Notice, by using the Services, you consent to the collection, sharing,
and use of personally identifiable information you provide to La Tropicana
Market.
· Accounts. You
must register for an account and provide information about yourself to use the
Services, such as profile and payment information. You are responsible for
providing accurate information, for maintaining the confidentiality of their
own account and password (including for example any third-party login password
such as Google), and for any activities occurring under or through their
account. If you have a reasonable belief that your account integrity or privacy
has been jeopardized, they must immediately notify the Services through the
contact page. You shall not create multiple accounts.
· Accuracy of Information. While
La Tropicana Market and the Stores endeavor to provide accurate product
information, you should know that product information accessed through the
Platforms is obtained from information made by product manufacturers and
producers; on occasion, they may change their labels or ingredient lists, and
actual product packaging and materials may contain more and/or different
information than that shown on the Platforms. Accordingly, you should not rely
solely on the product information presented on the Platforms, but should always
read carefully the labels, warnings, and directions before using or consuming a
product and contact the product manufacturer or producer directly for any
questions. La Tropicana Market and the Stores do not assume any liability for
inaccuracies, misstatements, or omissions related to any product information
listed on the Platforms. In addition, even though we make an effort to describe
and display our products and services accurately on the Platforms, products on
the Platform may be mispriced, described inaccurately, or unavailable and we
may experience delays in updating information on the Platforms and in our
advertising on the Platforms.
· Intellectual Property License. The Services and the Platform are owned by La Tropicana Market,
and all rights are reserved to La Tropicana Market. La Tropicana Market grants
to each party using the Services a limited, revocable, non-transferable license
to use the Services on appropriate and compatible devices that the party owns
or controls solely for its personal use. You shall not (1) modify, replicate,
distribute, share, or otherwise cause the Platform or the Services to be made
available to multiple devices simultaneously, or (2) sell, transfer,
redistribute, or sublicense the Services or the Platform.
· Service Limitations and Requirements.
· Customers must be at least eighteen years old to utilize the
Services.
· Alcohol purchases can only be dropped off with a person aged 21 or
older. For alcohol
· purchases, you represent and warrant that you are age 21 or older.
For alcohol purchases, the Delivery Person reserves the right to refuse
delivery where the recipient cannot provide proper Identification matching the
order and showing legal age. Valid forms of identification must include photo
identification, such as a valid driver license; a passport, or (iii) a valid
Armed Forces ID card. Delivery Persons may also refuse to deliver alcohol to
anyone visibly intoxicated or otherwise presenting an observable danger to
themselves or others.
· Alcohol and tobacco deliveries may be limited in some markets and
locales.
· You agree not to modify, create derivative works of, sell,
license, or in any way exploit La Tropicana Market, the Platform, or the
Services. You agree not to reproduce, distribute, publish, stream, or broadcast
any part of the Services without prior written authorization from La Tropicana
Market.
· The parties agree not to circumvent or attempt to circumvent any
security or other features of the Services or the Platform designed to limit
access.
· The parties agree not to harvest or mine content from the Platform
or otherwise access or use the Services inconsistently.
· Representations. By
using the Platform or the Services, you represent that you are at least
eighteen (18) years old; you are in good standing with the Services (i.e., no
previous suspensions of service with La Tropicana Market); and you will comply
with and all applicable laws and regulations for your jurisdiction; if you are
using the Services on behalf of an organization or entity, then you represent
that you have authority to agree to this Agreement on behalf of that
organization or entity. You agree that the information you provide to the
Services is accurate and that you will keep it up to date at all relevant
times.
· Payments. The
Services will process your payment information as a Customer to make payments
for your orders. You will be prompted to confirm payments before submitting
your order finally to La Tropicana Market. Unless otherwise agreed mutually in
writing, all payments are non-refundable. There may be a fee or surcharge to
the party requesting or utilizing the service, and such fees and surcharges may
change over time in La Tropicana Market’s discretion. You are encouraged to
check La Tropicana Market Produce’s current statement of fees for up-to-date
information before executing new orders.
· Customers submitting payment information to the Services authorize
La Tropicana Market and its Third-Party Service Providers to process payments
for orders according to the payment method specified in the Customer account.
New payment methods and certain existing payment methods (i.e., credit card)
may incur a temporary pre-authorization hold prior to La Tropicana Market’s
verification of the Customer’s account and available credit or balance for the
intended purchase. Upon completion or cancellation of the Customer’s order, the
pre-authorization hold is lifted within approximately 2-4 business days,
depending on the Customer’s account holder.
● Refunds. Refunds, credits, and order changes
are processed by the Services on a case-by-case basis at the discretion of La
Tropicana Market. of La Tropicana Market‘s policy is to diligently and with
good faith assist Customers in processing these requests. This refund policy
always applies regardless of any disruptions or downtime in the Services for
any reason whatsoever.
· Returning Items To A Store. Stores and Delivery Persons give the original receipt to the
Customer. Delivery Persons are not obligated to return items to a Store for a
Customer; however, Delivery Persons are free to independently agree to do so
for a Customer subject to the Delivery Person’s agreement with the Third-Party
Service Provider.
· Order Changes. Customers
acknowledge that after placing an order through La Tropicana Market, the order
may be processed quickly by a Store and Delivery Person. Once an order is in
process, it may not be changed without the consent of the Store and Delivery
Person where applicable.
· Surcharge. Canceled
orders may incur a surcharge. Customers are encouraged to check La Tropicana
Market’s current statement of fees and cancellation policies.
· Store Pricing. Stores
are required to provide up-to-date and accurate pricing to Customers through
the Platform. If the product has already been purchased and delivered to the
Customer (or is in the process of delivery by the Delivery Person), then the
Store agrees to abide by the pricing then published on the Platform.
· Store Inventory and Offers. The Services monitor inventory data to ensure its accuracy before
uploading to the Platform and after uploading while it is being showcased to
Customers but some items may still be unavailable even if the Services indicate
the item is available. La Tropicana Market Produce may change or terminate any
of the services, programs, promotions, and/or other offers, deals, coupons,
and/or specials (collectively, "Offerings") described or offered
through the Platform at any time without notice to you. Not all products are
available at all of our Stores or for online ordering or at all times. Some or
all of the Offerings or products may not be available in your location (or your
delivery or preferred pickup location). You shall not misuse or reproduce
Offerings, such as by creating multiple accounts to use the same
Offering.
· Customer Specifications. When
purchasing a product, Customers have the option to make comments &
specifications (i.e., “large ripe tomatoes please”) and also replacement
options (i.e., ‘If no organic free-trade shade-grown bird-friendly coffee, then
regular organic coffee’). Stores and Delivery Persons will use reasonable
efforts to read and attempt to fulfill Customer comments and specifications,
but La Tropicana Market makes no guarantees regarding the fulfillment of such
comments and specifications. Customers agree to be reasonable with Delivery
Persons and Stores in all parties’ requests. Please note that any request is
subject to availability.
· Communications. La
Tropicana Market Produce may provide your contact information to a particular
Store or Delivery Person solely for the purposes of communication regarding a
transaction or order. The Store and/or Delivery Person is responsible for
maintaining the privacy of your contact information, including but not limited
to refraining from selling the contact information or using it for future
promotional purposes.
○ By agreeing to this Agreement, you agree that all communications
from us relating to your use of or access to the Platform may be provided or
made available to you electronically by email, “in-Platform” messaging or by
posting a communication on the Platform or via text or phone as set forth
below. Your consent to receive communications and do business electronically,
and our agreement to do so, applies to all your interactions and transactions
with us and our agents concerning your Platform usage and access.
§ For purposes of the Services operations or a specific transaction,
you agree to receive text messages and phone calls at the phone number provided
to the Services, and also emails to the email address provided to the Services,
and also written correspondence to the address provided to the Services. Such
communications may be sent by La Tropicana Market and its Third-Party Service
Providers and Delivery Persons. You will not be able to use the Services
without agreeing to receive such communications.
§ For purposes of promotional
communications, you may opt-out of promotional communications from La Tropicana
Market at any time. Otherwise, you may receive text messages, emails, or
written communications to the contact information provided.
§ For text messages, you can limit your receipt of push
notifications by adjusting the settings of your mobile device. We may send four
or fewer text messages per month unless otherwise noted at the time of opt-in.
You may opt-out of receiving text messages at any time by replying
"STOP" to the message. You may receive one confirming text. Message
and data rates may apply.
§ For email messages, we may send ten
or fewer email messages per month. You may opt-out of email messages at any
time by following the instructions in the email.
● Off-Platform
Links. The Services may contain links to
third-party websites and services, such as recipe providers, DoorDash, or
GrubHub or other delivery partners. La Tropicana Market is not responsible for
and does not specifically endorse or accept any responsibility for the contents
or use of these third-party websites. La Tropicana Market provides these links
as a convenience only, and the inclusion of any link does not imply endorsement
by La Tropicana Market. It is each party’s responsibility to take precautions
to ensure that whatever they select for their own use is suitable for their own
needs and free of viruses or other harmful items.
· Delivery Fees. The
Customer acknowledges that delivery fees will apply as will be displayed in
your account and checkout.
· Tips. Customers are free and encouraged to
give monetary tips to Delivery Persons. Such tips are solely the income of the
Delivery Person and are not received or accounted in any manner by the Services
or Stores.
· User Submissions. Except
where expressly provided otherwise by La Tropicana Market, all comments,
feedback, information or content submitted to the Services through or in
association with the Services (“Submissions”) shall be considered
non-confidential, and La Tropicana Market shall be free to use such Submissions
on an unrestricted basis or as provided by an agreement with La Tropicana
Market.
· Each party making Submissions grants La Tropicana Market a
royalty-free, perpetual, irrevocable, transferable, sub-licensable, worldwide,
nonexclusive license under all rights necessary to incorporate and use the
Submissions for any reasonable purpose.
● Non-payments. If
payment for purchases on a Customer’s account is delinquent, your account
information may be sent to a collection agency/debt collector and you may be
subject to a collection action, and payment of collection related fees and
costs. If you have questions regarding an outstanding balance on your account,
please contact us.
● Delivery.
· The Customer is responsible for providing the Delivery Person with
access to the Customer’s designated delivery location. Delivery Persons are
entitled to rely upon their reasonable interpretation of the description of the
Customer’s delivery location.
· If a Customer requires delivery to a person at a location, then
the Delivery Person may only drop off the goods with a person at the Customer’s
designated location. If a person is not present at the designated delivery
location when the Delivery Person arrives to complete the delivery, then the
Delivery Person may either (1) attempt to contact the Customer to schedule
delivery at a later time or (2) return the order to the Store so that Customer
can pick up at Customer’s earliest opportunity within a reasonable time – and
in either case, La Tropicana Market reserves the right to charge the Customer
the full amount of the Order, along with a redelivery surcharge.
· If a Customer allows drop-off to an unmanned location, then the
Delivery Person may drop off the goods at the Customer’s designated location.
Delivery Person may take a photo of the dropped off order and upload it to the
Services for the Customer’s convenience as proof of delivery.
· La Tropicana Market will use reasonable efforts to have deliveries
made by the dates and times indicated in the Services for a particular order.
Otherwise, delivery times are governed by general standards of reasonableness.
· If goods are damaged in transit, the party that assumes the risk
of damaged goods is La Tropicana Market provided that (i) if the damage is
apparent at the time of delivery, the damage is identified by the Customer at
the time of delivery by the Customer notifying the Delivery Person or (ii) if
the damage is not apparent at the time of delivery but after unpacking the
delivery, Customer promptly notifies La Tropicana Market.
● Intellectual Property. All
information, documents, logos, graphics, images, software, and other materials
provided on this Platform is the intellectual property of La Tropicana Market,
and third parties where applicable, (“Content”). All trademarks, service marks,
logos, trade names, and trade dresses in or on the Platform, whether registered
or unregistered, are proprietary to La Tropicana Market. You may not use,
reproduce, or otherwise display any such trademarks, service marks, logos,
trade names or trade dresses without the prior written consent of La Tropicana
Market or the appropriate owner thereof. There are no implied rights. Except as
permitted herein or otherwise agreed in writing, Content on the Services may
not be copied, republished, mirrored, or transmitted without the express
written permission of La Tropicana Market and/or the applicable third party.
Where access is permitted, La Tropicana Market grants you permission to
display, copy, download, and distribute for informational purposes the Content
provided to you, so long as the appropriate copyright attribution is given to
La Tropicana Market and/or applicable third parties. See the contact
information below if you have any questions about such access or attribution.
This permission terminates automatically if you breach any of the terms of this
Agreement. Upon termination, you agree to immediately delete or discard any
downloaded Content in your possession. Except where expressly allowed herein by
La Tropicana Market and/or the applicable third party, nothing on the Services
shall be construed to confer any license or sale under any of La Tropicana
Markets or any of third party’s intellectual property rights. Parties utilizing
the Services acknowledge sole responsibility for obtaining any such licensure
rights through the appropriate channels. Please see the contact information
below if you have any questions about obtaining licenses from La Tropicana
Market.
● Disclaimers.
· THE PLATFORM AND THE SERVICES ARE PROVIDED “AS IS,” AND LA
TROPICANA MARKET DISCLAIMS ALL EXPRESS AND IMPLIED REPRESENTATIONS, WARRANTIES,
AND GUARANTEES, TO THE FULLEST EXTENT ALLOWED BY LAW, INCLUDING WITHOUT
LIMITATION WITH REGARD TO TIMELINESS, SECURITY, QUALITY, AVAILABILITY,
SUITABILITY, ACCURACY, AND COMPLETENESS. THIS DISCLAIMER APPLIES ALSO TO
CONTENT, SERVICE, AND CONSUMER PRODUCTS PROVIDED BY OTHER PARTIES.
· LA TROPICANA MARKET RELIES UPON STORES AND CONSUMER PRODUCT LABELS
TO PROVIDE ACCURATE DIETARY INFORMATION, ALLERGEN WARNINGS, AND GENERAL PRODUCT
SAFETY INFORMATION AND DOES NOT ACTUALLY WARRANT THAT ANY SUCH INFORMATION IS
ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE. RATHER, ALL CONTENT IS
ONLY PROVIDED FOR INFORMATIONAL LA TROPICANA MARKET IS SOLELY AT THE RISK OF
PERSONS USING OR OTHERWISE HANDLING THE CONSUMER PRODUCTS.
· LA TROPICANA MARKET DOES NOT ENDORSE, GUARANTEE, OR ASSUME
RESPONSIBILITY FOR ANY CONSUMER PRODUCT, AND LA TROPICANA MARKET WILL NOT BE A
PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMERS OR THIRD
PARTIES.
· DELIVERY PERSONS ARE SOLELY RESPONSIBLE FOR MANAGING THEIR OWN
VEHICLES, AND TRAVELLING PROPERLY, SAFELY, AND SECURELY. LA TROPICANA MARKET
DOES NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY DELIVERY PERSON,
AND LA TROPICANA MARKET WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY DELIVERY
SERVICE.
· Limitation of Liability. TO THE
FULLEST EXTENT ALLOWED BY LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL
THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL BERKELEY BOWL PRODUCE BE
LIABLE TO YOU, ANY PARTY OR TO ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF
GOODWILL, PUNITIVE DAMAGES, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES, OR DAMAGES FOR NEGLIGENCE OF ANY CHARACTER INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, LOSS OF DATA,
COMPUTER OR NETWORK FAILURE OR MALFUNCTION, OR FOR ANY OTHER DAMAGE OR LOSS. IN
NO EVENT SHALL LA TROPICANA MARKET’S TOTAL LIABILITY EXCEED THE CUSTOMER’S COST
OF THE ORDER AT ISSUE, OR $500, WHICHEVER IS LESS.
· ASSUMPTION OF RISK AND RELEASE OF LIABILITY. CUSTOMERS UNDERSTAND THAT BY USING DELIVERY PERSONS, THEIR ITEMS
MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS, HARMFUL, UNSAFE OR
OTHERWISE OBJECTIONABLE, AND THAT THE CUSTOMER CHOOSES TO USE THE SERVICES AND
ENGAGE DELIVERY PERSONS AT THEIR OWN RISK. EACH PARTY EXPRESSLY WAIVES AND
RELEASES LA TROPICANA MARKET FROM ANY AND ALL LIABILITY, CLAIMS, OR DAMAGES
ARISING FROM OR IN ANY WAY RELATED TO DELIVERY PERSONS. LA TROPICANA MARKET
DOES NOT INDEPENDENTLY VERIFY OR ASSESS THE CHARACTER, SKILL, QUALITY, OR
SAFETY OF DELIVERY PERSONS NOR DOES SUPER GLOBAL INDEPENDENTLY VERIFY OR ASSESS
THE LEGALITY OF THE CONSUMER PRODUCTS PROVIDED BY STORES. LA TROPICANA MARKET
IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF DELIVERY PERSONS. SUPER GLOBAL WILL
NOT BE A PARTY TO DISPUTES OR NEGOTIATIONS OF DISPUTES, BETWEEN CUSTOMERS,
DELIVERY PERSONS, OR THIRD PARTIES. EACH PARTY ASSUMES RESPONSIBILITY FOR THEIR
OWN CONDUCT AND FULLY ASSUMES THE RISK OF THEIR OWN DECISIONS. IF YOU ARE A
TEXAS RESIDENT, YOU WAIVE TEXAS CIVIL CODE §1542, WHICH SAYS:
○ A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR
DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
● Legal Compliance. It is
each party’s responsibility to use the Services solely for lawful purposes. In
this respect a party may not, without limitation (a) intercept or monitor any
equipment that is not their own; (b) use any type of spider, virus, worm,
trojan-horse, time bomb or any other codes or instructions that are designed to
distort, damage, unreasonably delete or disassemble Content, the Platform or
the Services; (c) cause or intend to cause unfair embarrassment or distress to,
or to unfairly threaten, harass, or harm anyone. La Tropicana Market operates
this Platform from Texas and makes no representation that the Content is
available for use outside the United States of America. If a party accesses
this Platform from another location, it is by their own initiative and it is
their own responsibility to comply with the laws of their jurisdiction, as well
as any applicable import/export laws.
● Indemnification. You
(‘Responsible Party’) shall defend and indemnify La Tropicana Market and its
agents (at La Tropicana Market ’s option) against any allegation, claim, a
lawsuit (“Claim”) made or brought against La Tropicana Market by another party
or a third party arising out of the Responsible Party’s use of the Platform or
Services, including, without limitation, arising out of violation of this
Agreement, violation of an intellectual property right, breach of contract,
negligence, willful misconduct, or crime. Such indemnity shall cover any
damages awarded against La Tropicana Market, and for reasonable attorney’s fees
incurred by La Tropicana Market, in connection with any such Claim; provided,
that La Tropicana Market promptly gives Responsible Party written notice of the
Claim. Where Responsible Party provides defense, Responsible Party shall have
the reasonable control of the defense and any settlement of the Claim (provided
that Responsible Party may not settle any Claim without La Tropicana Market’s
advance written consent). La Tropicana Market reserves the right, at La
Tropicana Market’s expense, to assume the exclusive defense and control of any
matter otherwise subject to indemnification under this section (without
limiting indemnification obligations hereunder) and the Responsible Party
agrees to reasonably cooperate with La Tropicana Market’s defense of that
claim.
● Updates and Amendments. La
Tropicana Market may make improvements and/or changes to the Services, and
changes to the Content, at any time and without notice. La Tropicana Market may
amend this Agreement upon 10-days advance written notice, which amendments
shall be binding on all parties. If you do not agree with a change, your sole
remedy is to cease using the Platform and the Services.
● Complete Agreement. This
Agreement, together with any applicable written agreement between parties
(i.e., Delivery Person Agreement between La Tropicana Market and a Delivery
Person), and the La Tropicana Market Privacy
Notice, represent the entire agreement and
general understanding relating to the use of the Services and supersede prior,
contemporaneous, or additional communications. La Tropicana Market’s current
statement of fees may be amended from time to time in La Tropicana Market’s
discretion.
● Legal Contact Information
If you have any questions about this
Agreement, or if you would like to request permission to use any Content, please
contact us:
La Tropicana Market
5200 Monte Vista St.
Highland Park, Ca, 90042
rana@latropicanamarket.com
● Term.
○ This Agreement shall take effect when you first use the Platform
or when it is electronically accepted by a party, whichever is first.
○ A party may terminate this Agreement at any time for any reason or
for no reason upon 3-days advance notice, or immediately if the other party
breaches the terms of this Agreement. Upon the giving of a termination notice,
an account may be immediately suspended. Both parties agree that the
opportunities presented by this Agreement constitute adequate consideration for
such a termination right. Except as otherwise stated herein, neither party
shall be responsible to the other for any costs or damages resulting from the
termination of this Agreement.
○ The provisions of this Agreement that by their nature extend
beyond the applicable expiration date or other termination of this Agreement
will survive and remain in effect until all obligations are satisfied.
· Waiver. Failure of La Tropicana Market to
enforce a right under this Agreement shall not act as a waiver of that right or
the ability to later assert that right relative to the situation
involved.
· Validity
of Provisions. If any provision of this Agreement
shall be found by a court to be void, invalid, or unenforceable, the same shall
be reformed to comply with applicable law or stricken if not so conformable, so
as not to affect the invalidity or enforceability of this Agreement.
· Force Majeure. No
party shall be liable to any other party for any failure or delay in
performance of its obligations under this Agreement due to any force majeure,
labor strike, adverse weather conditions, shortage of materials, pandemic,
epidemic, quarantine, war, invasion, acts of a public enemy, governmental
preemption in connection with a national emergency, riot, laws, rules,
regulations or order of governmental or military authorities, or failure of the
Internet.
● Arbitration
And Class Action Waiver.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS,
INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and
La Tropicana Market agree that this Agreement affects interstate commerce and
that the Federal Arbitration Act governs the interpretation and enforcement of
these arbitration provisions.
This
Section is intended to be interpreted broadly and governs any and all disputes
between us, including but not limited to claims arising out of or relating to
any aspect of the relationship between us, whether based in contract, tort,
statute, fraud, misrepresentation, or any other legal theory; claims that arose
before this Agreement or any prior agreement (including, but not limited to,
claims related to advertising); and claims that may arise after the termination
of this Agreement. The only disputes excluded from this broad prohibition are
the litigation of certain intellectual property and small court claims, as
provided below.
By
agreeing to this Agreement, you agree to resolve any and all disputes with La
Tropicana Market as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You
can reach La Tropicana Market’s support department at rana@latropicanamarket.com.
Except for intellectual property and small claims court claims,
the parties agree to use their best efforts to settle any dispute, claim,
question, or disagreement directly through consultation with the La Tropicana
Market support department, and good faith negotiations shall be a condition to
either party initiating a lawsuit or arbitration.
Binding Arbitration: If the
parties do not reach an agreed-upon solution within a period of thirty (30)
days from the time informal dispute resolution is initiated under the Initial
Dispute Resolution provision above, then either party may initiate binding
arbitration as the sole means to resolve claims, subject to the terms set forth
below. Specifically, all claims arising out of or relating to this Agreement
(including the Privacy Notice’s formation, performance, and breach), the
parties’ relationship with each other, and/or your use of the Platform or the
Services shall be finally settled by binding arbitration administered by JAMS
in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims
that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and
Procedures for claims exceeding $250,000 in effect at the time the arbitration
is initiated, excluding any rules or procedures governing or permitting class
actions. The arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve all disputes arising out of or
relating to the interpretation, applicability, enforceability, or formation of
this Agreement or the Privacy Notice, including but not limited to any claim
that all or any part of this Agreement or Privacy Notice is void or voidable,
whether a claim is subject to arbitration, or the question of waiver by
litigation conduct. The arbitrator shall be empowered to grant whatever relief
would be available in a court under law or in equity. The arbitrator’s award
shall be written and shall be binding on the parties and may be entered as a
judgment in any court of competent jurisdiction. To start an arbitration, you
must do the following: (a) write a Demand for Arbitration that includes a
description of the claim and the number of damages you seek to recover (you may
find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three
copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS;
and (c) send one copy of the Demand for Arbitration to La Tropicana Market
at Attn: Legal; contact: rana@latropicanamarket.com.
To the
extent the filing fee for the arbitration exceeds the cost of filing a
lawsuit, La Tropicana Market will pay the additional cost. If the arbitrator
finds the arbitration to be non-frivolous, La Tropicana Market will pay the
fees invoiced by JAMS, including filing fees and arbitrator and hearing
expenses. You are responsible for your own attorneys’ fees unless the
arbitration rules and/or applicable law provide otherwise.
The
parties understand that absent this mandatory arbitration provision, they would
have the right to sue in court and have a jury trial. They further understand
that, in some instances, the costs of arbitration could exceed the costs of
litigation and the right to discovery may be more limited in arbitration than
in court.
If you
are a resident of the United States, arbitration may take place in the county
where you reside at the time of filing. For individuals residing outside the
United States, the arbitration shall be initiated in the State
of California, United States of America, and you and La Tropicana Market
agree to submit to the personal jurisdiction of any federal or state court in
Los Angeles, CA in order to compel arbitration, to stay proceedings
pending arbitration, or to confirm, modify, vacate, or enter judgment on the
award entered by the arbitrator.
Class Action Waiver: The
parties further agree that the arbitration shall be conducted in their
individual capacities only and not as a class action or other representative
action, and the parties expressly waive their right to file a class action or
seek relief on a class basis. YOU AND LA TROPICANA MARKET AGREE THAT EACH MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT
AS A PLAINTIFF OR CLASS USER IN ANY PURPORTED CLASS OR REPRESENTATIVE
PROCEEDING. If any court or arbitrator determines that the class action waiver
set forth in this paragraph is void or unenforceable for any reason or that
arbitration can proceed on a class basis, then the arbitration provisions set
forth above shall be deemed null and void in their entirety and the parties
shall be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property
and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve
all disputes through arbitration, either party may bring enforcement actions,
validity determinations or claims arising from or relating to theft, piracy or
unauthorized use of intellectual property in state or federal court or in the
U.S. Patent and Trademark Office to protect its intellectual property rights
(“intellectual property rights” means patents, copyrights, moral rights,
trademarks, and trade secrets, but not privacy or publicity rights). Either
party may also seek relief in a small claims court for disputes or claims
within the scope of that court’s jurisdiction.
30-Day Right To Opt Out: You
have the right to opt-out and not be bound by the arbitration and class
action waiver provisions set forth above by sending (from the email
address you use on La Tropicana Market Produce) written notice of
your decision to opt-out to La Tropicana Market Attn: Legal; rana@latropicanamarket.com with
the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice
must be sent within thirty (30) days of your first use of the Services;
otherwise, you shall be bound to arbitrate disputes in accordance with the
terms of those paragraphs. If you opt-out of these arbitration provisions,
La Tropicana Market will not be bound by them.
Changes To This Section: La
Tropicana Market will provide thirty (30) days’ notice of any changes to this
section by posting on the Platform, sending you a message, or otherwise
notifying you when you are logged into your account. Amendments will become
effective thirty (30) days after they are posted on the Platform or sent to
you.
Changes
to this section will otherwise apply prospectively only to claims arising after
the thirtieth (30th) day. If a court or arbitrator decides that this subsection
on “Changes to This Section” is not enforceable or valid, then this subsection
shall be severed from the section entitled “Arbitration and Class Action
Waiver,” and the court or arbitrator shall apply the first Arbitration and
Class Action Waiver section in existence after you began using the
Services.
Survival: This
Arbitration and Class Action Waiver section shall survive any termination of
your Account or cessation of use of the Platform or the Services.
Last
Updated: August 1, 2020