Terms of Service

Urban Grocery Delivery System (UGDS) Terms of Service

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES.

BY ACCEPTING THIS AGREEMENT BY EXECUTING

AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU

ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT

YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN

WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT

HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT

THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition,

You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any

other benchmarking or competitive purposes.

This Agreement was last updated on July 3, 2017. It is effective between You and Us as of the date of You

accepting this Agreement.

Table of Contents

1. Definitions

2. Our Responsibilities

3. Use of the Services and Content

4. Fees and Payment for Purchased Services

5. Proprietary Rights and Licenses

6. Confidentiality

7. Representations, Warranties, Exclusive Remedies and Disclaimers

8. Limitation of Liability

9. Term and Termination

10. Who You Are Contracting With, Notices, Governing Law and Jurisdiction

11. General Provisions

1. DEFINITIONS

“Agreement” means this Terms of Service Agreement.

“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into

between You and Us, including any addenda and supplements thereto.

“Services” means the products and services that are ordered by You under an Order Form and made

available online by Us.

“User” means an individual who is authorized by You to use the UGDS Service, for whom You have ordered the UGDS Service, and

to whom You (or We at Your request) have supplied a user identification and password. Users may include, for

example, Your employees, consultants, contractors and agents, and third parties with which You transact business.

“We,” “Us” or “Our” means Urban Grocery LLC.

“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates

of that company or entity.

“Your Data” means electronic data and information submitted by or for You to the Purchased Services or collected

and processed by or for You using the Purchased Services.

2. OUR RESPONSIBILITIES

2.1. Provision of Purchased Services. We will (a) make the Services and Content available to You pursuant to this

Agreement and the applicable Order Forms, (b) provide Our standard support for the Purchased Services to You at no

additional charge and (c) use commercially reasonable efforts to make the

online Purchased Services available 24 hours a day, 7 days a week except for

any unavailability caused by

circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire,

earthquake, civil unrest, act of terror, Internet service provider failure or delay, or denial of service attack.

2.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of

the security, confidentiality and integrity of Your Data. Those safeguards will

include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our

personnel except (a) to provide the Purchased Services and prevent or address service or technical problems, (b) as

compelled by law in accordance with Section 6.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.

3. USE OF SERVICES AND CONTENT

3.1 Monthly Service Agreement. Unless otherwise provided in the applicable Order Form, (a) Services and Content are provided on a month to month, no contract basis.

3.2  The UGDS Service is provided per instance of the database at a unique URL, for example, yourgrocerydelivery.com.  If a separate instance of the database is required, for example, to use with a different supplying store, then it must be hosted at a unique URL, for example, yourgrocerydelivery2.com and will require the purchase of another UGDS service instance.

3.3 Your Responsibilities. You will (a) be responsible for Users’ compliance with this Agreement, (b) be responsible

for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use

commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Us

promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with the

Documentation and applicable laws and government regulations.

3.4 Usage Restrictions. You will not (a) make any Service or Content available to, or use any Service or Content

for the benefit of, anyone other than You or Users, (b) sell, resell, license, sublicense, distribute, rent or lease any

Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service to

store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in

violation of third-party privacy rights, (d) use a Service to store or transmit Malicious Code,

(e) attempt to gain

unauthorized access to any Service or Content or its related systems or networks, (f) permit direct or indirect access

to or use of any Service or Content in a way that circumvents a contractual limit, (g) copy a Service or any

part, feature, function or user interface thereof, (h) copy Content except as permitted herein or in an Order Form or the Documentation,

(i) frame or mirror any part of any Service or Content, other than framing on Your own intranets

or otherwise for Your own internal business purposes, (j) access any Service or

Content in order to build a competitive product or service, or (k) reverse engineer any Service (to the extent such

restriction is permitted by law).

4. FEES AND PAYMENT FOR PURCHASED SERVICES

4.1. Fees. You will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form,

(i) fees are based on Services purchased and not actual usage, (ii) payment obligations are non-

cancelable and fees paid are non-refundable.

4.2. Invoicing and Payment. You will provide Us with valid and updated credit card information

When You provide credit card information to Us,

You authorize Us to charge such credit card for all Purchased Services listed in the Order Form for the initial

service term and any renewal service term(s) as set forth in Section 9.2 (Term of Purchased Services).

You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such

information.

4.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our

rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per

month, or the maximum rate permitted by law, whichever is lower.

4.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for

Our services is 10 or more days overdue in the case of amounts You have authorized Us

to charge to Your credit card), We may, without limiting Our other rights and remedies,

suspend

Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your

account is overdue, in accordance with Section 10.2 (Manner of Giving Notice), before suspending services to You.

4.5. Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of

Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are

cooperating diligently to resolve the dispute.

4.6. Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature,

including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever

(collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We

have the legal obligation to pay or collect Taxes for which You are responsible under this Section 6.6, We will invoice

You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the

appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our

income, property and employees.

4.7. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future

functionality or features, or dependent on any oral or written public comments made by Us regarding future

functionality or features.

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5. PROPRIETARY RIGHTS AND LICENSES

5.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors

reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related

intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.

5.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable

intellectual property rights to use Content acquired by You pursuant to Order Forms, subject to those

Order Forms, this Agreement and the Documentation.

5.3. License by You to Host Your Data and Applications. You grant Us and Our Affiliates a worldwide, limited-

term license to host, copy, transmit and display Your Data,

as necessary for Us to provide the Services in accordance with this

Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your

licensors under this Agreement in or to Your Data with the exception that we may report data about the type and quantity of products sold and the sex and zip code of consumers purchasing those products to third parties.

5.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable,

royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation,

correction or other feedback provided by You or Users relating to the operation of the Services.

6. CONFIDENTIALITY

6.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a

party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as

confidential or that reasonably should be understood to be confidential given the nature of the information and the

circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes

the Services and Content; and Confidential Information of each party includes the terms and conditions of this

Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical

information, product plans and designs, and business processes disclosed by such party. However, Confidential

Information does not include any information that (i) is or becomes generally known to the public without breach of

any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the

Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party

without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving

Party.

6.2. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to

protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to

use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii)

except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the

Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes

consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing

protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order

Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written

consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain

responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 6.2.

6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the

extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled

disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing

Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s

Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party

is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of

compiling and providing secure access to that Confidential Information.

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7. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

7.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power

to do so.

7.2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY

KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL

IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA

SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL

LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY

HOSTING PROVIDERS.

8. LIMITATION OF LIABILITY

11.1 Limitation of Liability. NEITHER PARTY’S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT

OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE MONTH PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY

ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER.

THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE

THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS

UNDER SECTION 4 (FEES AND PAYMENT FOR PURCHASED SERVICES).

8.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY

LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL,

CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND

REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

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9. TERM AND TERMINATION

9.1 Term of Agreement. This Agreement commences on the date You first accept it and continues until all

services hereunder have expired or have been terminated.

9.2. Term of Purchased Services. The term of each service shall be as specified in the applicable

Order Form. Except as otherwise specified in an Order Form, services will automatically renew for additional

periods equal to the expiring service term unless either party gives the other

notice of non-renewal at least 10 days before the end of the relevant service term. The per-unit pricing during

any automatic renewal term will be the same as that during the immediately prior term unless We have given You

written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing

increase will be effective upon renewal and thereafter.

9.3. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other

party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party

becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership,

liquidation or assignment for the benefit of creditors.

9.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 9.3 (Termination), We will refund You any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 9.3, You will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve You of

Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.

9.6. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of

termination or expiration of this Agreement, We will make Your Data available to You for export or download as

provided in the Documentation. After that 30-day period, We will have no obligation to maintain or provide Your

Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or

control as provided in the Documentation, unless legally prohibited.  Product data included at the beginning of your service period is owned by Urban Grocery LLC, and will not be included in the data provided to you.  Product data entered by you, as determined by the date added field, will be included upon request.

9.7. Surviving Provisions. The Sections titled “Fees and Payment for Purchase Services,” “Proprietary Rights and

Licenses,” “Confidentiality,” “Disclaimers,” “Limitation of Liability,” “Refund or Payment upon

Termination,” “Portability and Deletion of Your Data,” “Who You Are Contracting With, Notices, Governing Law and

Jurisdiction,” and “General Provisions” will survive any termination or expiration if this Agreement.

10. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION

10.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this

Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts

have jurisdiction over any such lawsuit:

Who you are contracting with: Notices should be addressed to: The governing law is: The courts having exclusive jurisdiction are:
Urban Grocery LLC, PO Box 291, Charles Town, WV  25414 West Virginia and controlling United Sates federal law West Virginia, U.S.A.

 

10.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and

approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the

second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first

business day after sending by email (provided email shall not be sufficient for notices of termination or an

indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by

You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.

10.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above

without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

11. GENERAL PROVISIONS

11.1. Export Compliance. The Services, Content, other technology We make available, and derivatives thereof may

be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is

not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service or

Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S.

export law or regulation.

11.2  Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us

regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or

representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any

provision of this Agreement will be effective unless in writing and signed by the party against whom the modification,

amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or

in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or

inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form,(2) this Agreement, and (3) the Documentation.

11.3. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law

or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however,

either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to

its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its

assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a

change of control in favor of, a direct competitor of the other party, then such other party may terminate this

Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering

the remainder of the term of all services. Subject to the foregoing, this Agreement will bind and inure to the

benefit of the parties, their respective successors and permitted assigns.

11.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a

partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.5. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver

of that right.

11.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to

law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.