TERMS OF USE

Last Updated: 1/6/2016

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY ACCESSING OR USING OUR WEBSITES YOU AGREE TO BE BOUND BY THESE TERMS OF USE AND ALL TERMS INCORPORATED HEREIN BY REFERENCE. PLEASE NOTE THAT SECTION 13 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECTS YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT ACCESS OR USE OUR WEBSITES.

These Terms of Use ("Terms") govern your access to and use of the websites (collectively, the "Sites") Mercato, Inc. ("MERCATO," "we," "us" or "our"). These Terms do not alter in any way the terms or conditions of any other agreement you may have with MERCATO. If you are accessing or using the Sites on behalf of an entity, you represent and warrant that you are authorized to accept these Terms on such entity's behalf and that such entity agrees to be responsible to MERCATO if you violate these Terms.

MERCATO reserves the right to change or modify these Terms at any time and in our sole discretion. If MERCATO makes any changes to these Terms, we will provide notice of such changes, such as by updating the "Last Updated" date at the top of these Terms, sending you an email notification or providing notice through the Sites. Your continued use of the Sites will confirm your acceptance of the revised Terms. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites. If you do not agree to any amended Terms, you must immediately stop accessing and using our Sites.

Enforcement of these Terms is solely in MERCATO's discretion, and the absence of enforcement of these Terms in some instances does not constitute a waiver of MERCATO's right to enforce these Terms in other instances. Any use of the Sites in violation of these Terms may result in, among other things, termination or suspension of your right to use the Sites.

The Sites provide the service of connecting customers with Merchants. Unless expressly stated on the Sites, the goods and services featured on the Sites are offered, sold and delivered by the merchant members. You agree that your purchases are being made between you and the merchant. We are in no way responsible for the quality of goods or services offered by the merchant members. Questions regarding merchant members' products and/or services featured on the Sites should be directed to the appropriate merchant.

1. Privacy Policy

Please refer to our Privacy Policy for information about how MERCATO collects, uses and discloses information about our users.

2. Eligibility

The Sites are not targeted towards, nor intended for use by, anyone under the age of 18. By accessing or using the Sites, you represent and warrant that: (a) you are 18 years of age or older; (b) your right to use the Sites has not been previously suspended or terminated; and (c) you have full power and authority to enter into these Terms and that, in doing so, you will not violate any other agreement to which you are a party.

3. Registration and Account

In order to access and use certain areas or features of the Sites, you may be required to register for an online account or to use your credentials (e.g., username and password) from a third-party social media platform to log into the Sites. When registering for an account, you cannot create an account name that incorporates a trademark without authorization from the trademark owner. We reserve the right to reclaim account names, or to take other reasonable action as necessary, on behalf of any business or individual that holds legal claim, including trademark rights, in a name.

By creating an account, you agree to (a) provide accurate, current and complete account information; (b) maintain and promptly update your account information to keep it accurate, current and complete; (c) maintain the security of your password and accept all risks of unauthorized access to your account and the information you provide to us; and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites.

4. Copyright and Limited License

Unless otherwise indicated on the Sites or by MERCATO, the Sites and all content and other materials contained therein, including, without limitation, the MERCATO logo and all designs, text, graphics, pictures, information, data, software, sound files, other files and the selection and arrangement thereof (collectively, "Site Materials") are the proprietary property of MERCATO or our licensors and are protected by U.S. and international copyright laws.

You are hereby granted a limited, non-transferable, non-exclusive, non-sublicensable license to access and use the Sites and Site Materials; however, such license is subject to these Terms and does not include: (a) any resale or commercial use of the Sites, or Site Materials; (b) distributing, publicly performing or publicly displaying any Site Materials; (c) modifying or otherwise making any derivative uses of the Sites or Site Materials, or any portion thereof; (d) using any data mining, robots or similar data gathering or extraction methods; (e) downloading (other than the page caching) of any portion of the Sites or Site Materials, except as expressly permitted by us; and (f) any use of the Sites or Site Materials other than for their intended purposes. Any use of the Sites or Site Materials other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use also may violate applicable laws, including without limitation copyright and trademark laws and applicable communications regulations and statutes. This license is revocable at any time.

Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of MERCATO or any third party, whether by estoppel, implication or otherwise.

Notwithstanding anything to the contrary in these Terms, the Sites and Site Materials may include software components provided by MERCATO or a third party that are subject to separate license terms, in which case those license terms will govern such software components.

5. Trademarks

"MERCATO" and the MERCATO logo and any other MERCATO product or service names, logos or slogans that may appear on the Sites are trademarks of MERCATO and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other "hidden text" utilizing "MERCATO" or any other name, trademark, or product or service name of MERCATO without our prior written permission. In addition, the look and feel of the Sites, including all page headers, custom graphics, button icons and scripts, are the service mark, trademark and/or trade dress of MERCATO and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product or service names, logos or slogans mentioned in the Sites are the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by MERCATO.

6. Hyperlinks

You are granted a limited, non-exclusive right to create a text hyperlink to the Sites for non-commercial purposes; provided, that such link does not portray MERCATO or any of our services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use any of our logos or any other proprietary graphics of MERCATO to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any MERCATO trademark, logo or other proprietary information, including the images found at the Sites, the content of any text or the layout/design of any page or form contained on a page on the Sites without our express written consent.

MERCATO makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third-party websites accessible by hyperlink from the Sites, or websites linking to the Sites. Such sites are not under our control, and we are not responsible for the contents of any linked site, any link contained in a linked site, or any review, changes or updates to such sites. MERCATO provides these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering and protection practices, of any site to which you navigate from the Sites.

7. Third-Party Content and Products

We may display content from third parties through the Sites or may provide links to certain web pages and content of third parties (collectively, "Third-Party Content") as a service to those interested in this information. We do not control, endorse or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including without limitation regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third-Party Content through the Sites are solely between you and such third parties, and that MERCATO is not responsible or liable in any manner for such interactions or Third-Party Content.

If you purchase any products from Sellers you agree that you do so at your own risk, and Mercato does not assume responsibility and will have no liability based on purchase, use or access.

8. Acceptable Use of the Sites

You agree that your access to and use of the Sites will not violate any law, contract, intellectual property or other third-party right or constitute a tort, and that you are solely responsible for your conduct while using the Sites. You further agree that you will abide by these Terms and will not:

  • Use the Sites in any manner that could interfere with, disrupt, negatively affect or inhibit other users from fully enjoying the Sites, or that could damage, disable, overburden or impair the functioning of the Sites in any manner;
  • Send any unsolicited or unauthorized advertising, solicitations, promotional materials, spam, junk mail, chain letters or pyramid schemes, or harvest or collect the email addresses or other contact information of other users from the Sites for the purpose of sending spam or other commercial messages;
  • Use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Sites or to extract data;
  • Reverse engineer any aspect of the Sites or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any area, content or code of the Sites (except as otherwise expressly permitted by law);
  • Attempt to circumvent any content filtering techniques we employ, or attempt to access any service or area of the Sites that you are not authorized to access;
  • Engage in any harassing, intimidating, predatory or stalking conduct;
  • Develop any third-party applications that interact with the Sites without our prior written consent;
  • Use the Sites for any illegal or unauthorized purpose or engage in, encourage or promote any activity that violates these Terms or is otherwise objectionable to us.
  • These Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Sites will not contain any content that is prohibited by these Terms. Any use of the Sites in violation of these Terms may result in, among other things, termination or suspension of your rights to use the Sites.

    9. Feedback, Communications & Other User Generated Content.

    Anyone who buys products that sellers sell via our Sites may post reviews, comments, and other content; send other communications; and submit suggestions, ideas, comments, questions or other information, so long as the content is not illegal, obscene, offensive, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam."

    You may not use a false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a card or other content. Mercato, Inc. reserves the right (but not the obligation) to remove or edit such content, but does not regularly review posted content.

    If you do post content or submit material, and unless we indicate otherwise, you grant Grocery Marketplace Inc. and its affiliates a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display such content throughout the world in any media. You grant Grocery Marketplace Inc. and its sublicensees the right to use the name that you submit in connection with such content, if they choose.

    We encourage you to be sensitive to cultural differences and sensitivities in making any comments.

    You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Grocery Marketplace Inc. for all claims resulting from content you supply. Grocery Marketplace Inc. has the right but not the obligation to monitor and edit or remove any activity or content. Grocery Marketplace Inc. takes no responsibility and assumes no liability for any content posted by you or any third party.

    10. Indemnification

    You agree to defend, indemnify and hold harmless MERCATO and our partners, successors and assigns, and any of their respective directors, officers, employees, agents, independent contractors, service providers and consultants (individually and collectively, the "MERCATO Parties"), from and against any and all actual or alleged claims, damages, costs, losses, liabilities and expenses (including, but not limited to, reasonable attorneys' fees) (collectively, "Claims"), whether in contract or in tort, including, but not limited to, damages to property or personal injury, at law or in equity, that are caused by, arise out of or are related to: (a) your use or misuse of the Sites; (b) any Feedback you provide; (c) your violation of these Terms; and (d) your violation of the rights of another.

    11. Disclaimer

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE SITES AND SITE MATERIALS ARE PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY MERCATO; AND (B) MERCATO DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES AND SITE MATERIALS. MERCATO DOES NOT REPRESENT OR WARRANT THAT THE SITES OR SITE MATERIALS ARE ACCURATE, COMPLETE, RELIABLE, CURRENT OR ERROR-FREE.

    WHILE MERCATO ATTEMPTS TO MAKE YOUR ACCESS TO AND USE OF THE SITES SAFE, MERCATO CANNOT AND DOES NOT REPRESENT OR WARRANT THAT THE SITES OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THEREFORE, YOU SHOULD USE INDUSTRY-RECOGNIZED SOFTWARE TO DETECT AND DISINFECT VIRUSES FROM ANY DOWNLOAD.

    Reference to any services, processes or other information, by trade name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by MERCATO.

    Some jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, so some or all of the disclaimers in this section may not apply to you.

    12. Limitation of Liability

    YOU AGREE THAT NEITHER MERCATO OR ITS AFFILIATES, RETAIL PARTNERS, LICENSORS OR SUPPLIERS IS RESONPOSIBLE FOR THE FITNESS OR CONDUCT OF ANY MERCHANT. MERCATO NOR IT’S AFFILIATES, RETAIL PARTNERS, LICENSORS OR SUPPLIERS, WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH ACTIONS OF MERCHANTS.

    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MERCATO OR THE MERCATO PARTIES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SITES OR SITE MATERIALS, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM MERCATO, OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO MERCATO'S RECORDS, SITES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MERCATO OR THE MERCATO PARTIES, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, ARISING OUT OF OR RELATING TO THE USE OF THE SITES OR SITE MATERIALS OR TO THESE TERMS EXCEED [$100].

    Some jurisdictions do not allow the limitation or exclusion of incidental or consequential damages, so some or all of the above limitations or exclusions may not apply to you.

    13. Dispute Resolution; Arbitration

    PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MERCATO AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.

    13.1. Binding Arbitration

    Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, "Disputes") arising out of or related to violations of Section 8 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, you and MERCATO hereby: (a) waive your and MERCATO's respective rights to have any and all Disputes arising out of or related to these Terms, the Sites or Site Materials resolved in a court; and (b) waive your and MERCATO's respective rights to a jury trial. Instead, you and MERCATO agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).

    13.2. No Class Arbitrations, Class Actions or Representative Actions

    You and MERCATO agree that any Dispute arising out of or related to these Terms, the Sites or Site Materials is personal to you and MERCATO and that such dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. Neither party agrees to class arbitration or to an arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. Further, you and MERCATO agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

    PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION ("PAGA WAIVER"). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.

    In any lawsuit in which (1) the complaint is filed as a private attorney general action seeking to represent any individual(s) other than the named plaintiff; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the PAGA Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the PAGA Waiver shall be severable from this Agreement and in such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction and not as a private attorney general arbitration.

    Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver and PAGA Waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.

    13.3. Federal Arbitration Act

    You and MERCATO agree that these Terms affect interstate commerce and that the enforceability of this Section 13 shall be governed by, construed and enforced, both substantively and procedurally, by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the "FAA") to the maximum extent permitted by applicable law.

    13.4. Notice; Informal Dispute Resolution

    You and MERCATO agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to MERCATO shall be sent by certified mail or courier to: MERCATO, Inc., Attn: [Legal], [48 Wall Street, Floor 32, New York, NY 1005] or to notices@mercato.com. Your notice must include: (a) your name, postal address, telephone number and an email address at which you can be contacted; (b) a description in reasonable detail of the nature or basis of the Dispute; and (c) the specific relief that you are seeking. Our notice to you will be sent to the postal or email address we have on file for you and will include: (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute; (y) a description in reasonable detail of the nature or basis of the Dispute; and (z) the specific relief that we are seeking. If you and MERCATO cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, either you or MERCATO may, as appropriate pursuant to this Section 13, commence an arbitration proceeding or, to the extent specifically provided for in Section 13.1, file a claim in court.

    13.5. Process

    Except for Disputes arising out of or related to violations of Section 8 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents, you and MERCATO agree that any arbitration or claim must be commenced or filed by you or MERCATO within one (1) year of the date that the Dispute arose; otherwise, you and MERCATO agree that the underlying claim is permanently barred (which means that you and MERCATO will no longer have the right to assert such claim regarding the Dispute). You and MERCATO agree that (a) any arbitration will occur near your city of residence or in San Diego County; (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services ("JAMS"), which are hereby incorporated by reference; and (c) the state or federal courts located in your state of residence or San Diego County,CA will have exclusive jurisdiction over the enforcement of an arbitration award and over any Dispute between the parties that is not subject to arbitration. If a Dispute meets the requirements in Section 13.1 to be heard in small claims court, you may litigate such Dispute in the small claims court located in the county in which you reside.

    13.6. Authority of Arbitrator

    As limited by the FAA, these Terms and applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable; and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual's claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.

    13.7. Rules of JAMS

    The rules of JAMS and additional information about JAMS are available on the JAMS website at http://www.jamsadr.com/, as may be updated from time to time. By agreeing to be bound by these Terms, you either (a) acknowledge and agree that you have read and understand the rules of JAMS or (b) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

    13.8. Severability

    If any term, clause or provision of this Section 13 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 13 and these Terms will remain valid and enforceable. Further, the waivers set forth in Section 13.2 are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.

    13.9. Opt-Out Right

    You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 13 by providing notice of the same in writing to: MERCATO, Inc., Attn: Legal, 48 Wall Street, Floor 32, New York, NY 10005 In order to be effective, the opt out notice must include your full name and must clearly indicate your intent to opt out of such binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 13.

    14. Applicable Law and Venue

    These Terms, your access to and use of the Sites shall be governed by and construed in accordance with the laws of the State of CA, without regard to conflict of law principles. You hereby irrevocably consent to the jurisdiction and venue of the federal and state courts located in San Diego County, CA with respect to any Dispute between the parties that is not subject to arbitration under these Terms.

    15. Modifications to the Sites

    MERCATO reserves the right to modify or discontinue, temporarily or permanently, the Sites or any features or portions thereof. You agree that MERCATO will not be liable for any modification, suspension or discontinuance of the Sites or any part thereof.

    16. Termination

    Notwithstanding any of these Terms, MERCATO reserves the right, without notice and in our sole discretion, to terminate your right to use the Sites, or any portion of thereof, and to block or prevent your future access to and use of the Sites or any portion thereof.

    17. Severability

    If any term, clause or provision of these Terms shall be deemed unlawful, void or for any reason unenforceable, such term, clause or provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining part of that provision, or the remaining other provisions.

    We're committed to social & environmental responsibility

    We believe that building a strong community is about more than just the bottom line.We strive to make a positive impact in the communities we serve.

    We've partnered withThe Carbon Neutral Company