Maloney Meat Company
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 MALONEY MEAT COMPANY 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 MALONEY MEAT COMPANY 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 Maloney Meat Company, located at 3255
Firestone Blvd, South Gate, CA 90280, and you.
This
Agreement governs Maloney Meat Company’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 Maloney
Meat Company specifically.
Maloney
Meat Company 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 Maloney
Meat Company. 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. Maloney Meat Company 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 Maloney
Meat Company.
Stores.
Stores are Maloney Meat Company’ 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 Maloney Meat Company’ 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 Maloney Meat
Company’ Third-Party Service Providers and are not engaged in any employment or
agency relationship with Maloney Meat Company, 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 Maloney Meat Company only, and not Apple, and (ii) Maloney
Meat Company, 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 Maloney
Meat Company 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 Maloney Meat Company, subject to this Agreement. You and
Maloney Meat Company acknowledge that, as between Maloney Meat Company 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 Maloney Meat Company 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 Maloney Meat Company and Apple, Maloney Meat Company, 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 Maloney Meat
Company 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 Maloney
Meat Company’ Privacy Notice, by using the Services, you consent to the
collection, sharing, and use of personally identifiable information you provide
to Maloney Meat Company.
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 Maloney
Meat Company 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. Maloney
Meat Company 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 Maloney Meat Company, and all rights are
reserved to Maloney Meat Company. Maloney Meat Company 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 Maloney Meat Company, 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 Maloney
Meat Company.
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 Maloney Meat Company); 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 Maloney
Meat Company. 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 Maloney
Meat Company’s discretion. You are encouraged to check Maloney Meat Company’
current statement of fees for up-to-date information before executing new
orders.
Customers submitting payment information to the
Services authorize Maloney Meat Company 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 Maloney
Meat Company’ verification of the Customer’s account and available credit or
balance for the intended purchase. Upon completion or cancellation of the
Customer’s order, the pre-authorization hold is lifted within approximately 2-4
business days, depending on the Customer’s account holder.
Refunds. Refunds, credits, and order
changes are processed by the Services on a case-by-case basis in the discretion
of Maloney Meat Company. Maloney Meat
Company‘ 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 Maloney Meat Company, 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 Maloney Meat Company’ 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. Maloney Meat Company 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 Maloney Meat Company 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. Maloney Meat Company
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 Maloney
Meat Company 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 Maloney Meat
Company 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. Maloney Meat Company is not responsible for and does not specifically
endorse or accept any responsibility for the contents or use of these
third-party websites. Maloney Meat Company provides these links as a
convenience only, and the inclusion of any link does not imply endorsement by Maloney
Meat Company. 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 Maloney Meat Company, all comments, feedback,
information or content submitted to the Services through or in association with
the Services (“Submissions”) shall be considered non-confidential, and Maloney
Meat Company shall be free to use such Submissions on an unrestricted basis or
as provided by an agreement with Maloney Meat Company.
Each party making Submissions
grants Maloney Meat Company a royalty-free, perpetual, irrevocable,
transferable, sublicensable, worldwide, nonexclusive license under all rights
necessary to incorporate and use the Submissions for any reasonable purpose.
Nonpayment. 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 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, Maloney
Meat Company 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 to the Services for
Customer’s convenience as proof of delivery.
Maloney
Meat Company 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 Maloney Meat Company 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 Maloney Meat Company.
Intellectual Property. All information,
documents, logos, graphics, images, software and other materials provided on
this Platform is the intellectual property of Maloney Meat Company, 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 Maloney Meat Company. 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 Maloney Meat
Company 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 Maloney Meat Company and/or the applicable third party.
Where access is permitted, Maloney Meat Company 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 Maloney
Meat Company 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 Maloney Meat
Company and/or the applicable third party, nothing on the Services shall be
construed to confer any license or sale under any of Maloney Meat Company’s or
any of third party’s intellectual property rights. Parties utilizing the
Services acknowledge sole responsibility for obtaining any such licensure
rights through the appropriate channels. Please see the contact information
below if you have any questions about obtaining licenses from Maloney Meat
Company.
Disclaimers.
THE PLATFORM AND THE SERVICES
ARE PROVIDED “AS IS,” AND MALONEY MEAT COMPANY 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.
MALONEY MEAT COMPANY 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 MALONEY
MEAT COMPANY IS SOLELY AT THE RISK OF PERSONS USING OR OTHERWISE HANDLING THE
CONSUMER PRODUCTS.
MALONEY MEAT COMPANY DOES NOT
ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY CONSUMER PRODUCT, AND MALONEY
MEAT COMPANY 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. MALONEY MEAT COMPANY DOES
NOT ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY DELIVERY PERSON, AND MALONEY
MEAT COMPANY 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 MALONEY MEAT COMPANY 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 MALONEY MEAT
COMPANY’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 MALONEY MEAT COMPANY FROM
ANY AND ALL LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO
DELIVERY PERSONS. MALONEY MEAT COMPANY
DOES NOT INDEPENDENTLY VERIFY OR ASSESS THE CHARACTER, SKILL, QUALITY, OR SAFETY
OF DELIVERY PERSONS NOR DOES MALONEY MEAT COMPANY INDEPENDENTLY VERIFY OR
ASSESS THE LEGALITY OF THE CONSUMER PRODUCTS PROVIDED BY STORES. MALONEY MEAT
COMPANY IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF DELIVERY PERSONS. MALONEY MEAT COMPANY 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.
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. Maloney Meat Company operates this Platform
from California and makes no representation that the Content is available for
use outside the United States of America. If a party accesses this Platform
from another location, it is by their own initiative and it is their own
responsibility to comply with the laws of their jurisdiction, as well as any
applicable import/export laws.
Indemnification. You (‘Responsible
Party’) shall defend and indemnify Maloney Meat Company and its agents (at Maloney
Meat Company’ option) against any allegation, claim, lawsuit (“Claim”) made or
brought against Maloney Meat Company 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 Maloney
Meat Company, and for reasonable attorney’s fees incurred by Maloney Meat
Company, in connection with any such Claim; provided, that Maloney Meat Company
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 Maloney Meat Company’ advance written
consent). Maloney Meat Company reserves the right, at Maloney Meat Company’
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 Maloney Meat Company’ defense of that claim.
Updates and Amendments. Maloney Meat
Company may make improvements and/or changes to the Services, and changes to
the Content, at any time and without notice. Maloney Meat Company 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 Maloney Meat Company and a Delivery Person), and the Maloney
Meat Company Privacy Notice, represent the entire agreement and general
understanding relating to the use of the Services and supersede prior,
contemporaneous, or additional communications. Maloney Meat Company’ current
statement of fees may be amended from time to time in Maloney Meat Company’
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:
Maloney
Meat Company
3255 Firestone Blvd,
South Gate, CA 90280
maryann@tenacitymedia.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 Maloney Meat Company
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 Maloney Meat Company 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 Maloney
Meat Company as follows:
Initial Dispute Resolution: Most
disputes can be resolved without resort to litigation. You can reach Maloney
Meat Company’ support department at maryann@tenacitymedia.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 Maloney Meat Company support department,
and good faith negotiations shall be a condition to either party initiating a
lawsuit or arbitration.
Binding Arbitration: If the parties do
not reach an agreed-upon solution within a period of thirty (30) days from the
time informal dispute resolution is initiated under the Initial Dispute
Resolution provision above, then either party may initiate binding arbitration
as the sole means to resolve claims, subject to the terms set forth below.
Specifically, all claims arising out of or relating to this Agreement
(including the Privacy Notice’s formation, performance, and breach), the
parties’ relationship with each other, and/or your use of the Platform or the
Services shall be finally settled by binding arbitration administered by JAMS
in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims
that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and
Procedures for claims exceeding $250,000 in effect at the time the arbitration
is initiated, excluding any rules or procedures governing or permitting class
actions. The arbitrator, and not any federal, state, or local court or agency,
shall have exclusive authority to resolve all disputes arising out of or
relating to the interpretation, applicability, enforceability, or formation of
this Agreement or the Privacy Notice, including but not limited to any claim
that all or any part of this Agreement or Privacy Notice is void or voidable,
whether a claim is subject to arbitration, or the question of waiver by
litigation conduct. The arbitrator shall be empowered to grant whatever relief
would be available in a court under law or in equity. The arbitrator’s award
shall be written and shall be binding on the parties and may be entered as a
judgment in any court of competent jurisdiction. To start an arbitration, you
must do the following: (a) write a Demand for Arbitration that includes a
description of the claim and the amount of damages you seek to recover (you may
find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three
copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS;
and (c) send one copy of the Demand for Arbitration to Maloney Meat Company at
Attn: Legal; maryann@tenacitymedia.com.
To
the extent, the filing fee for the arbitration exceeds the cost of filing a
lawsuit, Maloney Meat Company will pay the additional cost. If the arbitrator
finds the arbitration to be non-frivolous, Maloney Meat Company 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,
the United States of America and you and Maloney Meat Company agree to submit
to the personal jurisdiction of any federal or state court in Merrillville, California in order to compel arbitration, to stay proceedings
pending arbitration, or to confirm, modify, vacate, or enter judgment on the
award entered by the arbitrator.
Class Action Waiver: The parties
further agree that the arbitration shall be conducted in their individual
capacities only and not as a class action or other representative action, and
the parties expressly waive their right to file a class action or seek relief
on a class basis. YOU AND Maloney Meat Company 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 Maloney
Meat Company) written notice of your decision to opt-out to Maloney Meat
Company ---Attn: Legal; maryann@tenacitymedia.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, Maloney Meat
Company will not be bound by them.
Changes
To This Section: Maloney Meat Company 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: October 1, 2020