TOMARKET TERMS AND CONDITIONS
EFFECTIVE DATE: May 8, 2024
Welcome to ToMarket! These ToMarket Terms and Conditions (“Terms”) apply to your use of the mobile applications and websites operated by Find Better Food, Inc. and its subsidiaries and affiliates (collectively, “ToMarket” or “we”, “us” or “our”). By visiting our websites, including, but not limited to, https://tomarket.farm, the ToMarket App, a mobile application available through the Apple App Store and the Google Play Store, interacting with us on other platforms (including, but not limited to, social media sites such as Facebook, Instagram and LinkedIn) and/or submitting anything to us through our websites and mobile applications or other platforms operated by us or on our behalf (collectively, our “Platform”), you agree to read, comply with and be legally bound by: (1) these Terms; and (2) any additional terms and conditions, agreements, policies and additional terms published on the Platform or otherwise applicable to your use of the Platform (the “Rules”). You also agree that you may be bound by, and agree to comply with, as applicable to you, any agreements between us and a third party on whose behalf you access our Platform (“Customer Agreement”). These Terms, the Rules and Customer Agreements are collectively referred to in these Terms as the “Agreements”. If you do not agree with the foregoing, you may not use the Platform.
REVIEW THESE TERMS CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN COURT OR JURY TRIALS OR CLASS ACTIONS AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. CAREFULLY REVIEW THE DISPUTE RESOLUTION SECTION OF THESE TERMS BEFORE YOU USE OUR PLATFORM.
1. ACCEPTANCE AND APPLICABILITY OF AGREEMENTS
1.1 Acceptance of Agreements. By using the Platform and/or acknowledging that you have read and agree to any or all of the Agreements, you are agreeing to comply with the applicable Agreements. If you fail to comply with any of the applicable Agreements, we may terminate your ability to use the Platform. Without limiting the foregoing, the Platform is intended for adults 18 years of age or older (or age of majority if higher in your place of residence). By accessing the Platform, you represent to us that: (1) you are 18 years of age or older (or age of majority or older if higher in your place of residence; (2) you are legally able to enter into contracts; and (3) that you are not a person barred from receiving or using the Platform under federal, state, local or other laws. Additionally, your access to and use of the Platform may be available pursuant to or otherwise subject to a Customer Agreement between ToMarket and your employer or another entity on whose behalf you use the Platform. If this is the case, your employer or such other entity may impose additional obligations on your use of the Platform (“Additional Obligations”), and, in addition to the foregoing, you also represent to us that your use the Platform will comply with the applicable Customer Agreements and any applicable Additional Obligations.
1.2 Changes to Terms. We may update or modify these Terms from time-to-time without providing notice to you by posting a revised version of these Terms on our website. You can review the most current version of these Terms at any time by clicking the “Terms and Conditions” link on our website. By using the Platform after any modification of these Terms, you agree to be bound by such modifications.
1.3 Our Rights. We have the right, but not the obligation, to take any of the following actions in our sole discretion without providing any prior notice to you and without any liability to you or any third party:
(a) change or terminate all or any part of the Platform;
(b) restrict or terminate your access to all or any part of the Platform;
(c) refuse, move or remove any content that is available on the Platform; or
(d) deny access to the Platform to anyone at any time in our sole and absolute discretion.
1.4 Conflicts. In the event of any conflict between these Terms and any other Agreement, these Terms shall control.
2. USE OF THE PLATFORM
2.1 Acceptable Use. Your use of the Platform must comply with the following (“Acceptable Use Restrictions”):
(a) You are only allowed to use the Platform for its intended purposes, as determined by us in our sole discretion.
(b) Without limitation, you are not allowed to use the Platform to:
publish, post, distribute or disseminate any defamatory, infringing, obscene, pornographic, sexual, indecent or unlawful material or information, or engage in criminal behavior, or cause others to engage in any of the aforementioned conduct;
violate any laws;
transmit or upload any software or other materials that contain any viruses, worms, trojan horses, defects, time bombs or other items of a destructive nature; or
engage in commercial activity except as authorized under the applicable Agreements.
(c) You are also prohibited from:
reformatting or framing any portion of the Platform;
using any device, software or procedure that interferes with, or attempts to interfere with, the normal operation of the Platform;
taking any action that imposes, or may impose, an unreasonable or disproportionately large load on our information technology infrastructure;
modifying, adapting, translating or reverse engineering any portion of the Platform;
disrupting or otherwise interfering with the Platform or the networks or servers we use;
impersonating any person or entity or misrepresenting your connection or affiliation with a person or entity;
collecting or storing, or attempting to collect or store, personal information about other users of the Platform for any purpose other than engaging in transactions facilitated through the normal use of the Platform; or
engaging in any activity that is illegal under federal, state, local or other laws.
2.2 Access to the Platform. Access to the Platform requires access to the Internet. You are responsible for providing all equipment necessary to establish a connection to the Internet, access to the Internet and any telephone, wireless or other connection and service fees associated with such access. Using the Platform may allow you to receive Content on your mobile phone or wireless device. The manner in which that Content is delivered to your phone or device may cause you to incur extra data, text messaging or other charges from your wireless carrier, which are your sole responsibility.
3. OWNERSHIP OF THE PLATFORM AND CONTENT
3.1 Ownership. All right, title and interest in and to the Platform, including, but not limited to, all of the software and code that comprise and operate the Platform (collectively, the “Software”), and all of the text, photographs, illustrations, images, graphics, audio, video, URLs, advertising copy and other materials provided through the Platform (collectively, the “Content”) are owned by us or by third parties who have licensed their Content to us. The Platform is protected under trademark, service mark, trade dress, copyright, patent, trade secret and other intellectual property laws. In addition, the entire Content of the Platform is a collective work under U.S. and international copyright laws and treaties, and we own the copyright in the selection, coordination, arrangement and enhancement of the Content.
3.2 Limited License. Subject to your acceptance of, and compliance with, the Agreements, we hereby grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable right to access and use the Platform in a manner that is consistent with the Agreements and the Platform’s intended purpose(s). You obtain no rights to the Platform except to use it in accordance with the Agreements. Without limiting the generality of the foregoing, you shall not: (1) use any data mining, robots or other automatic or manual device, software, program, code, algorithm or methodology to access, copy or monitor any portion of the Platform or in any way reproduce or circumvent the navigational structure or presentation of the Platform, or obtain, or attempt to obtain, any materials or information through any means not purposely made available by us through the Platform and we reserve the right to take measures to prevent any such activity; (2) reproduce, copy, duplicate, redistribute, publish, reverse engineer, decompile, disassemble, modify, translate or make any attempt to create derivative works of the Platform (in whole or in part); (3) sell, assign, sublicense, transfer, distribute, lease or grant a security interest in the Platform (in whole or in part); (4) make the Platform (in whole or in part) available to any third party through a computer network or otherwise, including, but not limited to, distributing or making use of the Platform (in whole or in part) over a network where it could be used by multiple devices at the same time; (5) export the Platform (in whole or in part) to any country outside the United States (whether by physical or electronic means); (6) use the Platform (in whole or in part) in a manner prohibited by applicable laws, regulations and/or the Agreements; or (7) use the Platform in violation of the Acceptable Use Restrictions (collectively, the “Prohibited Activities”). You will be solely liable for any damages, costs or expenses arising out of or in connection with your commission of any Prohibited Activity. You shall notify us immediately upon becoming aware of the commission by any person of any Prohibited Activity and shall provide us with reasonable assistance with any investigations we may conduct in light of the information provided by you in this respect.
3.3 Our Marks. The ToMarket names and logos (including, but not limited to, those of our affiliates), all product and service names, all graphics, all button icons and all trademarks, service marks and logos appearing within the Platform, unless otherwise noted, are trademarks (whether registered or not), service marks and/or trade dress of ToMarket (collectively, “Our Marks”). All other trademarks, product names, company names, logos, service marks and/or trade dress (collectively, “Marks”) mentioned, displayed, cited or otherwise indicated within the Platform are the property of their respective owners. You are not authorized to display Our Marks in any manner without our prior written permission. You are not authorized to display or use the Marks of any third party that appear within the Platform without the prior written permission of the applicable third party.
4. ACCOUNTS
4.1 Registration. You may be required to open an account or register with ToMarket in order to use some of the features on the Platform, including, but not limited to, the ToMarket online ordering portal. When registering for an account, you must provide true, accurate, current and complete information about yourself as may be prompted by any registration form. If any information you previously provided to us changes, you must promptly update the relevant information. Without limiting the foregoing, if your access to the Platform is subject to a Customer Agreement, you must be an authorized user under such Customer Agreement and comply with all Additional Obligations, including, but not limited to, those applicable to account registration.
4.2 Account Security and Responsibility. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password and account. You agree to: (1) notify ToMarket immediately of any unauthorized use of your password or account or any breach of security; and (2) ensure that you fully exit from your account at the end of each session. You must set up your account in your own name. You further agree not to use anyone else’s password on the Platform. ToMarket will not be liable for any loss or damage arising from your failure to comply with this provision or any of the Agreement. If ToMarket suspends or terminates your account, you acknowledge that all information and content associated with such account will no longer be available to you.
4.3 Additional Information Sharing. If you open an account, you understand that ToMarket will collect and maintain information related to your use of the Platform. ToMarket connects, though may not always display, that information to your account in order to conduct our business operations.
4.4 Our Termination or Suspension of Your Account. Without limiting any other rights we have under the Agreements, in the event we determine, in our sole discretion, that your account information may be compromised due to your personal device being infected with a virus, malware, other malicious code or due to other theft of your account information, we reserve the right to invalidate, delete or otherwise modify your account in order to protect your account, the accounts of other users and our systems from further damage or exposure. This may include proactively changing your password. If we need to do this, we will make reasonable efforts to inform you of any modifications made via the email address listed on your account or other viable means of communication.
4.5 Cancellation. You may close your account at any time by contacting us at support@tomarket.com and following the instructions we provide. If you cancel your account, these Terms shall be terminated and your license to access and use our Platform shall immediately terminate and you must discontinue all use of the Platform. Please note, cancelling your account will not: (1) terminate any applicable Customer Agreement(s); (2) cancel any orders you entered into prior to your cancellation; or (3) relieve you of any liabilities or obligations arising from your activity on the Platform prior to cancellation.
5. PRODUCT LISTINGS AND ORDERS
5.1 Purveyors. The Platform enables certain users to list products for sale on the Platform (“Purveyors”). You are only permitted to use the Platform as a Purveyor if your account is associated with an entity that is a party to a current Customer Agreement with ToMarket. Without limiting the other requirements regarding your use of the Platform in the Agreements, all listings of products for sale on the Platform must comply with the listing requirements set forth in the applicable Customer Agreement.
5.2 Buyers. The Platform enables certain users to order products listed for sale by Purveyors on the Platform (“Buyers”). When you use the Platform as a Buyer, you agree that:
(a) you are responsible for reading the applicable Product Description before placing an order for a product; and
(b) when you place an order, you are entering into a legally binding agreement between you and the applicable Purveyor to purchase the applicable product(s) when the applicable Purveyor accepts your order.
5.3 Activities Outside the Platform. You are prohibited from using the Platform in any way that is designed to complete or facilitate an order outside of the Platform. Without limiting the foregoing, Purveyors and Buyers shall not:
(a) engage in any action with another user on the Platform designed to circumvent the Platform’s ordering process;
(b) refer to or promote external websites that facilitate sales of products outside the Platform; or
(c) use contact information obtained through the Platform to offer to buy or sell products outside of the Platform.
For clarity, the foregoing prohibitions are not intended to prevent, restrict or otherwise prohibit communications between Purveyors and Buyers that have a pre-existing relationship outside of the Platform and/or communications necessary to complete an order placed through the Platform.
5.4 Disclaimers.
(a) All features, content, availability, specifications, and prices for products described (collectively, “Product Descriptions”) on our Platform are provided by Purveyors. ToMarket has no control or responsibility for any Product Descriptions on the Platform. Purveyors may change any Product Description at any time without notice. While we attempt to ensure that all information, including, but not limited to, Product Descriptions, provided by Purveyors on the Platform is complete, accurate and up to date, occasionally information on the Platform may be inaccurate, incomplete or out of date. Additionally, we cannot guarantee that the colors of the products displayed on the Platform will accurately match the colors of the actual products, as the colors you see on your personal device are dependent on your device and applicable device settings.
(b) ToMarket is not responsible for collecting payment or arranging delivery for any products ordered through the Platform. Purveyors and Buyers are solely responsible for arranging for payment for, arranging the delivery of and transferring ownership of any products ordered through the Platform.
(c) We may confirm orders made through the Platform via email. However, the receipt of an order confirmation by email does not constitute our representation that an order has been accepted, nor does it confirm that a Purveyor has agreed to sell and/or a Buyer has agreed to buy any product.
6. YOUR CONTENT, STATEMENTS AND PERSONAL INFORMATION
6.1 User Content. The Platform may provide you with the ability to add, create, upload, submit, distribute, post or share content on or through the Platform, including, but not limited to, website links, opinions, information, photos, profiles, videos and audio clips (collectively, “User Content”). By providing any User Content on the Platform, you expressly grant, and represent and warrant that you have the right to grant, us a non-exclusive, irrevocable, worldwide, transferable, royalty-free, perpetual license to publicly display, publicly perform, reproduce, distribute, create derivative works of, and sublicense your User Content in any manner or through any media now known or later developed without any payment obligation to you. Without limiting the foregoing, any User Content you provide on the Platform may be viewable by any other users of the Platform (whether registered or unregistered). Further, you understand and agree that we have the right, but not the duty, to pre-screen, edit, refuse, move or remove any User Content posted to the Platform.
6.2 Private Messages. The Platform may provide you with the ability to send private messages to other users of the Platform (“Private Messages”). Private Messages are not considered User Content and we will not intentionally make any such Private Messages available to any party other than the intended recipient. However, you should remain mindful that there is an inherent risk in the use of the Internet. Private Messages may be intercepted without our knowledge or consent, collected illegally and/or forwarded by recipients to others. We cannot guarantee the security of any information, including your Private Messages, that you disclose online, and you do so at your own risk.
6.3 Abusive and Offensive Language. Abusive or offensive language will not be tolerated on our Platform, social media sites or with our personnel. You are not entitled to make untrue, malicious and/or damaging comments with regard to our operations in any media or forum.
6.4 Personal Data. By using the Platform, you are consenting to our collection, use, disclosure, transfer and sharing of your personal information, including, but not limited to, sharing such information with companies other than ToMarket as described in our Privacy Policy (available at www.tomarket.com/privacy or through the ToMarket App). Our Privacy Policy may be updated from time to time, so please review it regularly. If you do not accept the terms of our Privacy Policy, please discontinue use of the applicable portions of the Platform.
6.5 Feedback. By submitting ideas, suggestions, documents, proposals, products and/or technologies (“Feedback”) to us in any way, you acknowledge and agree that: (1) your Feedback does not contain confidential or proprietary information; (2) we are not under any obligation of confidentiality, express or implied, with respect to the Feedback; (3) we shall be entitled to disclose (or choose not to disclose) such Feedback for any purpose and in any way; (4) we may have something similar to the Feedback already under consideration or in development; (5) your Feedback which is not subject to a patent, automatically becomes our property without any obligation to you; and (6) you are not entitled to any compensation or reimbursement of any kind from us under any circumstances.
7. TERMINATION
7.1 Right to Terminate. In addition to, and not in lieu of, any of our other rights set forth in these Terms, we reserve the right, with or without notice and in our sole discretion, to terminate these Terms, your account and/or your ability to access the Platform for any reason, including, without limitation, for lack of use or if we believe that you have violated or acted inconsistently with the letter or spirit of these Terms, or in the case of any activity by you that may harm ToMarket or other users, including, but not limited to, fraud, abuse of promotions or privileges or misuse of the Platform. You agree that we will not be liable to you or any third party for any such termination.
7.2 Effects of Termination. If we exercise our termination rights available under these Agreements, your license to access and use our Platform shall immediately terminate and you must discontinue all use of the Platform affected by such termination.
7.3 Fraudulent Activity. If we suspect that you are engaging in any fraudulent, abusive or illegal activity, we may refer such matter to appropriate law enforcement authorities.
7.4 Survival. The provisions of these Terms which by their nature are intended to survive the termination or cancellation of these Terms shall continue as valid and enforceable obligations notwithstanding any such termination or cancellation. Without limiting the foregoing, the provisions of these Terms regarding indemnity and limitations of liability shall survive the termination or cancellation of these Terms.
8. USER AND THIRD PARTY CONTENT
8.1 User Content. Reliance on User Content is at your own risk. We do not participate in any way in the development of any User Content. You acknowledge and agree that we and other third parties are not responsible or liable for, nor do we endorse, any User Content that appears on the Platform.
8.2 Links to Third Party Websites. Our Platform may include links to other websites (e.g., sponsors’ and/or advertisers’ websites) or services solely as a convenience to you. You acknowledge and agree that we are not responsible for the availability of such external sites or resources and that we do not endorse and are not responsible or liable for any such linked sites or other information, material, products or services contained on other linked sites or accessible through other linked sites. Furthermore, we make no express or implied warranties with regard to the information, material, products or services that are contained on or accessible through linked sites. Your access to and use of linked sites, including information, material, products and services on linked sites or available through linked sites is solely at your own risk.
9. YOUR LIABILITY
9.1 Agreement to Indemnify. YOU AGREE THAT YOU WILL ONLY USE THE PLATFORM IN ACCORDANCE WITH THE APPLICABLE AGREEMENTS. YOU WILL COMPENSATE US IN FULL FOR ANY LOSSES OR COSTS (INCLUDING REASONABLE ATTORNEY’S FEES) WHICH WE (OR ANY OF OUR SUBSIDIARIES OR AFFILIATED COMPANIES) INCUR ARISING FROM ANY BREACH BY YOU OF THE AGREEMENTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US, OUR SUBSIDIARIES AND AFFILIATES AND OUR AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND OTHER PARTNERS (THE “RELEASED PARTIES”) HARMLESS FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEY’S FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE PLATFORM, YOUR CONNECTION TO THE PLATFORM, YOUR VIOLATION OF ANY OF THE AGREEMENTS OR YOUR VIOLATION OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY OTHER PERSON OR ENTITY.
9.2 Additional Remedies. The Released Parties reserve the right to seek all remedies available at law and in equity for violations of the applicable Agreements, including the right to block access from a particular Internet address to the Platform or report misuses to law enforcement.
10. DISCLAIMERS
10.1 Disclaimer of all Warranties
(a) THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE PLATFORM (INCLUDING, BUT NOT LIMITED TO, ANY SOFTWARE COMPRISING ANY PORTION OF THE PLATFORM), WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR THAT THE PLATFORM WILL BE WITHOUT ERROR OR INVULNERABLE TO VIRUSES, WORMS OR OTHER HARMFUL SOFTWARE OR HARDWARE.
(b) YOU HEREBY ACKNOWLEDGE THAT THE PLATFORM MAY NOT BE AVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, BUT NOT LIMITED TO, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, UNAUTHORIZED ACCESS, VIRUSES, DENIAL OF SERVICE OR OTHER ATTACKS, TECHNICAL FAILURE OF THE PLATFORM AND/OR TELECOMMUNICATIONS INFRASTRUCTURE OR DISRUPTION, AND THEREFORE WE EXPRESSLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY REGARDING THE USE AND/OR AVAILABILITY, ACCESSIBILITY, SECURITY OR PERFORMANCE OF THE PLATFORM CAUSED BY SUCH FACTORS.
(c) WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AGAINST THE POSSIBILITY OF DELETION, MISDELIVERY OR FAILURE TO STORE COMMUNICATIONS, PERSONALIZED SETTINGS OR OTHER DATA, INCLUDING WITHOUT LIMITATION, ANY USER CONTENT OR PRIVATE MESSAGES.
(d) SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE DISCLAIMERS OF WARRANTIES MAY NOT APPLY TO YOU.
10.2 Use of Platform at Your Sole Risk. YOUR ACCESS TO THE PLATFORM, DOWNLOAD OF ANY SOFTWARE RELATING TO THE PLATFORM AND USE OF ANY INFORMATION WE MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE PLATFORM IS AT YOUR SOLE OPTION, DISCRETION AND RISK. WE SHALL NOT BE LIABLE FOR ANY MALFUNCTIONS OF THE COMPUTER PROGRAMS RELATING TO THE PLATFORM, BUGS OR VIRUSES RESULTING IN LOST DATA OR ANY OTHER DAMAGE TO YOUR COMPUTER EQUIPMENT, MOBILE PHONE OR MOBILE DEVICE OR SOFTWARE. FURTHERMORE, WE SHALL NOT BE LIABLE FOR ANY ATTEMPTS BY YOU TO USE THE PLATFORM BY METHODS, MEANS OR WAYS NOT INTENDED BY US. WE ARE NOT REQUIRED TO PROVIDE REDUNDANT OR BACKUP NETWORKS AND/OR SYSTEMS.
10.3 No Creation of Warranty. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN OBTAINED BY YOU FROM ANY OF THE RELEASED PARTIES THROUGH OR FROM THE PLATFORM SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
10.4 Third Party Statements. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR STATEMENTS, ADVICE AND OPINIONS MADE BY ANYONE OTHER THAN AUTHORIZED TOMARKET SPOKESPERSONS. WE DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR ANY STATEMENTS, ADVICE OR OPINIONS CONTAINED PROVIDED BY ANY THIRD PARTIES, AND SUCH STATEMENTS, ADVICE AND OPINIONS DO NOT IN ANY WAY REFLECT THE STATEMENTS, ADVICE OR OPINIONS OF TOMARKET.
11. LIMITATION OF LIABILITY
11.1 Maximum Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING ANYTHING ELSE IN THESE TERMS, OUR ENTIRE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO YOUR USE OF THE PLATFORM SHALL BE THE AMOUNT OF $100.
11.2 No Liability for Incidental Damages. IN NO EVENT WILL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE PLATFORM OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE PLATFORM.
11.3 Applicability of Limitations. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY, SO SOME OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
11.4 Notice to California Residents. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASED, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
12. DISPUTE RESOLUTION
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
12.1 Waiver of Rights. YOU AGREE THAT BY USING THE PLATFORM YOU ARE WAIVING THE RIGHT TO PARTICIPATE IN A CLASS ACTION. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST THE RELEASED PARTIES ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE OR COLLECTIVE PROCEEDING.
12.2 Venue for Litigation. ANY CAUSE OF ACTION OR CLAIM UNDER THESE TERMS MUST BE BROUGHT EXCLUSIVELY IN THE FEDERAL COURTS OF THE UNITED STATES OR THE COURTS OF THE STATE OF COLORADO, IN EACH CASE LOCATED IN DENVER, COLORADO, AS APPROPRIATE, AND YOU AGREE TO THE PERSONAL JURISDICTION OF EACH OF THESE COURTS FOR THE PURPOSE OF LITIGATING SUCH CLAIMS OR DISPUTES.
12.3 Time to Bring a Claim. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST THE RELEASED PARTIES ARISING OUT OF OR RELATING IN ANY WAY TO THE AGREEMENTS, YOUR USE OF THE PLATFORM OR YOUR DEALINGS WITH THE RELEASED PARTIES MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CAUSE OF ACTION ACCRUES. AFTER THAT TWO (2) YEAR PERIOD, SUCH CAUSE OF ACTION OR CLAIMS IS PERMANENTLY BARRED. SOME JURISDICTIONS DO NOT ALLOW TIME LIMITATIONS OTHER THAN THOSE SET FORTH IN SUCH STATE’S STATUTE OF LIMITATIONS LAWS. IN SUCH CASES, THE APPLICABLE STATUTE OF LIMITATIONS PROVIDED FOR UNDER THE LAWS OF SUCH STATE SHALL APPLY.
12.4 Prevailing Party. IN ANY LITIGATION BETWEEN YOU AND THE RELEASED PARTIES IN CONNECTION WITH THE AGREEMENTS, YOUR USE OF THE PLATFORM OR YOUR DEALINGS WITH THE RELEASED PARTIES, THE PREVAILING PARTY WILL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEY’S FEES AND COSTS IN SUCH ARBITRATION FROM THE OTHER PARTY.
13. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT.
13.1 Notice of Infringement. If you are a copyright owner or an agent thereof and believe that any user submission or other content on the Platform infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (“DMCA”) by providing us with the following information in writing (see 17 U.S.C. § 512(c)(3) for further detail):
(a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(b) identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
(c) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit us to locate the material;
(d) information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address;
(e) a statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) a statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
13.2 Address for Notices. DMCA claims may be sent to the following addresses:
By email to: Support@tomarket.com
By mail to: Find Better Food, Inc.
Attention: David Moosman
5610 Ward Rd STE 300,
Arvada, CO 80002
NOTE: YOU ACKNOWLEDGE AND AGREE THAT IF YOU FAIL TO COMPLY WITH ALL OF THE REQUIREMENTS OF THIS SECTION 13, YOUR DMCA CLAIM MAY NOT BE VALID.
14. SPECIAL TERMS FOR TOMARKET APP DISTRIBUTED THROUGH THE APPLE APP STORE
14.1 Acknowledgement. The ToMarket App is available through the Apple App Store (“ToMarket App Apple Version”). You and ToMarket each acknowledge that these Terms and any other terms and conditions imposed by ToMarket with respect to the ToMarket App Apple Version and any other agreements entered into between you and ToMarket in connection with the ToMarket App Apple Version (collectively, the “ToMarket App Apple Agreements”) are between you and ToMarket only, and not with Apple, and that ToMarket, not Apple, is solely responsible for the ToMarket App Apple Version and the content thereof. In the event the ToMarket App Apple Agreements provide usage rules for the ToMarket App Apple Version that are in conflict with the Apple Media Services Terms and Conditions, the Apple Media Services Terms and Conditions shall control with respect to the ToMarket App Apple Version.
14.2 Scope of License. In addition to the other terms set forth in the ToMarket App Apple Agreements, the license granted to You for the ToMarket App Apple Version is solely for use by you on any Apple-branded product that you own or control and as permitted by the Usage Rules set forth in the Apple Media Services Terms and Conditions.
14.3 Maintenance and Support. ToMarket is solely responsible for providing any maintenance and support services with respect to the ToMarket App Apple Version, as specified in the ToMarket App Apple Agreements or as required under applicable law. You and ToMarket acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the ToMarket App Apple Version.
14.4 Warranty. ToMarket is solely responsible for any product warranties, whether express or implied by law, to the extent not disclaimed in the ToMarket Apple App Agreements. In the event of any failure of the ToMarket App Apple Version to conform to any applicable warranty, you may notify Apple and Apple will refund the purchase price for the ToMarket App Apple Version (if any) to you. Further, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the ToMarket App Apple Version, and, subject to the limitations of liability set forth in the ToMarket App Apple Agreements, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform with any warranty will be ToMarket’s sole responsibility.
14.5 Product Claims. You and ToMarket acknowledge that ToMarket, not Apple, is responsible for addressing any claims that you or any third party have relating to the ToMarket App Apple Version or your possession and/or use of the ToMarket App Apple Version, including, but not limited to: (1) product liability claims; (2) any claim that the ToMarket App Apple Version fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection, privacy or similar legislation.
14.6 Intellectual Property Rights. You and ToMarket acknowledge that, in the event of any third party claim that the ToMarket App Apple Version or your possession and use of the ToMarket App Apple Version infringes that third party’s intellectual property rights, subject to the limitations of liability and indemnification obligations set forth in the ToMarket App Apple Agreements, ToMarket, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
14.7 Third Party Terms. You must comply with applicable third party terms when using the ToMarket App Apple Version.
14.8 Third Party Beneficiary. You and ToMarket acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries to these Terms as applicable to the ToMarket App Apple Version, and that, upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms (as applicable) against you as a third party beneficiary thereof.
15. ADDITIONAL TERMS
15.1 Governing Law. These Terms will be governed by the laws of the State of Colorado, without giving effect to any principles of conflicts of laws.
15.2 Severability. If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the applicable Agreements shall continue in effect.
15.3 Waivers. Our failure to enforce any provision of the Agreements shall not be deemed a waiver of such provision nor of the right to enforce such provisions.
15.4 Admissibility of Terms. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
15.5 Assignment. We reserve the right to transfer, assign, sublicense or pledge any or all of the Agreements, in whole or in part, to any person without notice, provided that any such assignment will be on the same terms or terms that are no less advantageous to you. You may not assign, sublicense or otherwise transfer in any manner whatsoever any of your rights or obligations under the Agreement.
15.6 Headings. The section headings and sub-headings contained in these Terms are for convenience only and have no legal or contractual effect.
15.7 Support. If you have any questions or concerns about the Platform or these Terms, please email us at support@tomarket.com
