If you are under the age of 18, you must have the permission of, and be directly supervised by, your parent or legal guardian to use the App and the Mkt2Day Services, and your parent or legal guardian must read and agree to these Terms prior to your using the App and the Mkt2Day Services.
The App is owned and operated by Mkt2Day. Mkt2Day reserves the right to modify or discontinue, temporarily or permanently, and at any time, the App and/or the Mkt2Day Services (or any part thereof) with or without notice. You agree that Mkt2Day shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Mkt2Day Services.
Mkt2Day may modify these Terms from time to time, and any change to these Terms will be reflected on the App (with revisions being indicated by date), and you agree to be bound to any changes to these Terms when you use the App or the Mkt2Day Services. Mkt2Day may also, in its sole and absolute discretion, choose to alert via email all users with whom it maintains email information of such modifications. It is therefore important that you regularly review these Terms and keep your contact information current in your account settings to ensure you are informed of any such changes. Modifications to these Terms shall be effective 30 days after being posted but shall not apply retroactively. Also, Mkt2Day may make corrections to typographical errors, inaccuracies or omissions that may relate to service descriptions, pricing, availability, and various other information at any time, without prior notice.
The App and the Mkt2Day Services
The App is a third-party marketplace for customers (“Customers”) to view, discuss, and place orders for food and other products, and pick-up and/or delivery services in connection therewith, with participating farmers market vendors (“Vendors”), either through shoppers who coordinate the shopping and delivery services for Customers (“Shoppers”) or directly with the Vendors (the “Mkt2Day Services”). Mkt2Day provides order placement services only. Mkt2Day is not a merchant of food or other products, or provider of any pickup or delivery services in connection therewith and does not control the Vendor or the production of any food or other products, or any pick-up or delivery services therewith coordinated and controlled by Shoppers. Any reference to “user” in these Terms shall refer collectively, as applicable, to the Customers, Vendors and Shoppers.
These Terms govern the relationship between and among the Customers, Vendors, Shoppers and Mkt2Day and describe the various roles and responsibilities of each party. Mkt2Day does not in any way independently guarantee or verify the credentials or representations of any of the Vendors, the ingredients or the quality of any their products or services, or any Vendor’s compliance with applicable laws, or of the Shoppers in connection with the delivery of the products to Customers.
Customers using the Mkt2Day Services may inquire directly with the Shoppers and/or Vendors, as applicable, as to the quality and reliability and quality of the Vendors and the Vendors’ compliance with applicable laws. Mkt2Day, including the App and the Mkt2Day Services, does not in any way guarantee the quality of any Shopper, Vendor or any food or other product, or any pickup or delivery service in connection therewith, or any compliance thereof with applicable laws. In addition, a Vendor may represent certain standards with respect to their food preparation (or other services), such as “organic,” “kosher,” “macrobiotic” or allergen- specific standards such as “nut-free,” “gluten-free,” or “lactose-free”; Mkt2Day does not investigate or verify any such representations. Mkt2Day shall not be liable or responsible for any food or other products, or any other services, offered by the Vendors or any errors or misrepresentations made by them (including on the App and through the Mkt2Day Services). In the event of a Customer’s dissatisfaction with the products or the quality, standards or issues with the food products, the Customer’s sole remedy shall be against the Vendor. To the extent a Shopper has been engaged, such Shopper’s sole responsibility shall be for coordinating the packaging of all ordered products from Customers in a safe and commercially reasonable manner and the delivery of such products to the Customer as directed by the Customer. Customer’s sole recourse for any late delivery of the products or quality of the products caused by the delivery method of the products shall be against the applicable Shopper. Mkt2Day’s role is to facilitate the purchase and exchange of food and other products from Vendors and Shoppers to Customers and therefore shall have no liability whatsoever for any matter relating to these Terms or such relationship other than if directly caused by the breach by Mkt2Day of its obligations under these Terms.
ORDERING AND PAYMENT
Mkt2Day’s shopping and delivery fees and the prices of Vendors’ products are charged to the Customer via the App. When a Customer places an order through the Mkt2Day Services, the Customer will be given a choice of payment options, which may include via Apple Pay, Credit Card, PayPal®, Android Pay, and direct payment to the applicable Vendor. If a Customer pays for their purchase via Apple Pay, Credit Card, PayPal, or Android Pay, we will ask for a valid Apple Pay account, Credit Card, PayPal account, or Android Pay account, as applicable, which will be billed through the Mkt2Day Services, for the purchase price of the applicable order, and “Mkt2Day” will be the name that appears on the Apple Pay, Credit Card, PayPal, or Android Pay statement, as applicable. Shoppers and the Vendors are paid directly through a payment processing service integrated in the App from monies received from a Customer. While the terms of each payment processing service may differ, payment processing services charge approximately 2-3% of revenue. Vendors will be responsible for paying for the payment processing fees through a deduction in the net amount to be received by the Vendor. If Mkt2Day elects to receive additional fees such as receive a commission in the future in connection with the sales to Customers, it shall provide the Shoppers and Vendors with at least thirty (30) days prior notice of such change. Such commission fees shall then be deducted from the payment received from the Customer. As stated above, however, Mkt2Day, including the App and the Mkt2Day Services, is not and shall not in any manner be considered the seller of any of the food, other products, and services ordered.
Mkt2Day takes customer satisfaction very seriously. A Customer should contact us if they have any problems with their order. Mkt2Day may then contact the appropriate Shopper and/or Vendor(s). In appropriate cases, if a Customer has already been billed by Mkt2Day, Mkt2Day may issue full or partial refunds or credits. If such refunds or credits are issued, Mkt2Day is authorized to be reimbursed and/or credited by the applicable Shopper and/or Vendor(s).
USER REPRESENTATIONS, WARRANTIES AND COVENANTS
By using the App and/or the Mkt2Day Services, the User represents, warrants, and covenants that:
All registration information the User submits is truthful and accurate, and that the User will maintain the accuracy of such information;
The User will keep his or her password confidential and will be responsible for all use of the User’s password and account;
The User is not a minor in the jurisdiction in which he or she resides, or if the User is a minor, that the User is above the age of 13 and has received the permission of the User’s parents or legal guardian to use the App and the Mkt2Day Services; and
The User’s use of the App and the Mkt2Day Services does not violate any applicable law.
In connection with the Vendor’s agreement to use the Mkt2Day Services, the Vendor represents, warrants and covenants that
To accurately inform Mkt2Day and the applicable Shopper of the locations where its products are being sold and, as much as reasonably practicable, the products being sold at each location from time to time;
To provide Mkt2Day and the applicable Shopper with updated published prices for all of its products being sold;
Fulfill all orders of the products purchased using Mkt2Day Services at a price not greater than the prices provided to Mkt2Day from time to time;
Ensure that the products sold using the Mkt2Day Services shall be of good quality and at least the same standard and quality as products sold at the specific location at such time.
In connection with the Shopper’s agreement to use the Mkt2Day Services, the Shopper represents, warrants and covenants that:
It shall provide Mkt2Day with basic information requested by it in order to create a profile for the Shopper on the App and all Vendors being utilized by the Shopper;
To fulfill all orders of the Products purchased through the Services at a price not greater than the prices provided to Mkt2Day from time to time.
Upon receiving an order for any Products from a Customer through the Service, Mkt2Day shall notify the Shopper and the Vendors.
It shall be responsible for coordinating the packaging and delivery of all ordered products in a safe and commercially reasonable manner and for any damage incurred with the products during the delivery to the Customer.
The Shopper may engage third party companies to provide delivery services (the “Third-Party Delivery Service Provider”). Shopper will be fully responsible for any financial transactions, contracts and performance quality with the Third-Party Delivery Service Provider and will always have ultimate responsibility for quality of service
MUTUAL RESPONSIBILITIES OF SHOPPERS AND VENDORS:
The Shopper and Vendor shall use their respective best efforts to fulfill all orders provided to the Shopper before 5:00 am the day before the products become available at the specific location. If a Vendor anticipates that it will be unable to fulfill all or any portion of a particular order, the Vendor shall notify the Shopper and Mkt2Day no later than 5:00 pm the day before such event where the products are being sold. Maximum quantities to be sold may be set for each item to avoid unfulfilled orders. Mkt2day recommends that Shoppers and Vendors communicate confirmation of orders between each other prior to the day of the market so as to advise Customers and adjust quantities.
Nothing herein contained will be construed to imply a joint venture, partnership, employer-employee or principal-agent relationship between Mkt2Day and any Shopper or Vendor. Each Shopper and Vendor is an independent contractor, and not an employee of Mkt2Day, nor are any of the Shopper’s or Vendor’s employees or contract personnel employees of Mkt2Day. Each Shopper and Vendor is responsible for payment of any taxes, withholdings and any other statutory or contractual obligations of any sort, in connection with services provided hereunder. No Shopper and Vendor has any authority to create or assume any obligation on behalf of Mkt2Day, or to hold itself out as having such authority.
The App and the Mkt2Day Services allow users to interact with other users by uploading content to the Mkt2Day Service, including reviews, comments, photos, images and other types of works (“Additions”). Users retain copyright and any other proprietary rights that he or she may hold in the Additions that a user posts to the Mkt2Day Service.
Each user is entirely responsible for the content of, and any harm resulting from, their use of and uploading of their Additions. When a user publishes or posts an Addition, the user thereby represents and warrants that:
the creation, distribution, transmission, public display and performance, accessing, downloading and copying of such user’s Addition does not and will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark, trade secret or moral rights of any third party;
such user is the creator and owner of or have the necessary licenses, rights, consents, releases and permissions to use and to authorize Mkt2Day, the App, and the Mkt2Day Services, and all uses thereof, to use the Additions as necessary to exercise the licenses granted by such user under these Terms;
the Addition is not (in all cases as determined by Mkt2Day in its sole and absolute discretion) obscene, lewd, lascivious, filthy, violent, harassing or otherwise objectionable, libelous or slanderous, does not advocate the violent overthrow of the government of the United States, does not incite, encourage or threaten immediate physical harm against another, does not violate any applicable law, regulation, or rule, and does not violate the privacy or publicity rights of any third party;
the Addition does not contain any viruses, worms, Trojan horses, malicious code, spyware, malware or other or any other computer code or harmful or destructive content, whether on Mkt2Day’s or others’ computers or equipment, including any computer code designed to enable such user or others to gather information about or monitor the activities of another party;
the Addition does not inundate the App with communications or other traffic suggesting no serious intent to use the App for its stated purpose;
the Addition does not otherwise violate, or link to material that violates, any provision of these Terms or any applicable law or regulation; and
the Addition does not contain pictures, data, audio or visual files, or any other content that is excessive in size, as determined by Mkt2Day in its sole and absolute discretion.
By posting Additions, such user automatically grants, and represents and warrants that such user has the right to grant, to Mkt2Day an irrevocable, perpetual, non-exclusive, transferable, royalty-free, fully-paid, worldwide license to use, copy, publicly perform, publicly display, modify, reformat, translate, excerpt (in whole or in part), create derivative works of and distribute such Additions for any purpose, commercial, advertising, or otherwise, on or in connection with the App, the Mkt2Day Services or the promotion thereof, to prepare derivative works of, or incorporate into other works, such Additions, and to grant and authorize sublicenses of the foregoing.
Mkt2Day has the right, in its sole and absolute discretion, to (i) edit, redact or otherwise change any Additions, (ii) re-categorize any Additions to place them in more appropriate locations, or (iii) pre-screen or delete any Additions that are determined to be inappropriate or otherwise in violation of these Terms.
Mkt2Day may accept, reject, or remove any Additions, including vendor reviews in its sole and absolute discretion, but Mkt2Day has absolutely no obligation to screen or delete Additions, even if someone considers a particular Addition to be objectionable or inaccurate. If a Customer are posting a review of a Shopper or Vendor, such review must comply with the following criteria: (1) Customer should have firsthand experience with the vendor; (2) Customer is not affiliated with any competitors of the Shopper or Vendor; (3) Customer will not make any conclusions as to the legality of the Vendors products, services, or conduct; and (4) Customer’s review must comply with the other Addition representations, warranties, covenants, and other agreements in these Terms. Reviews are not endorsed by Mkt2Day (including its App and the Mkt2Day Services), and do not represent the views of Mkt2Day or of any affiliate or partner of Mkt2Day. Mkt2Day does not assume liability for any review or for any claims, liabilities or losses resulting from any review.
SUBMISSIONS AND FEEDBACK
In addition to the rights granted by each user with respect to their Additions, each user acknowledges and agrees that all questions, comments, suggestions, ideas, feedback or other information regarding the App and/or the Mkt2Day Services provided by such user to or via Mkt2Day, the App, or the Mkt2Day Services are non-confidential and Mkt2Day (as well as any designee of Mkt2Day) shall be entitled to the unrestricted use and dissemination of these submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to such user.
The App and the Mkt2Day Services are for personal, noncommercial use only (unless specifically endorse or approved by Mkt2Day). Users may not access or use the App for any other purpose other than the legitimate review and request for food and other products, and pick-up and delivery services in connection therewith, provided by the Vendors and Shoppers, or for Vendors and Shoppers to fulfill such orders of Customers. Additionally, the following uses and activities of and with respect to Mkt2Day, including the App and the Mkt2Day Services, are prohibited:
criminal or tortuous activity, including child pornography, fraud, trafficking in obscene material, drug dealing, gambling, harassment, stalking, spamming, copyright infringement, patent infringement, or theft of trade secrets;
advertising to, or solicitation of, any user to buy or sell any products or services, unless authorized by Mkt2Day;
systematic retrieval of data or other content from the App or the Services to create or compile, directly or indirectly, any collection, compilation, database or directory;
engaging in unauthorized framing of or linking to the App or the Mkt2Day Services;
transmitting chain letters or junk email;
using any information obtained from the App or the Mkt2Day Services in order to contact, advertise to, solicit, or sell to any user;
engaging in any automated use of the App or the Mkt2Day Services, or any system or component thereof, such as using scripts to add friends or send comments or messages, or using any data mining, robots or similar data gathering and extraction tools;
interfering with, disrupting, or creating an undue burden on the App or the Mkt2Day Services or the networks or services connected or linked thereto;
attempting to impersonate another user or person;
using the username of another user;
selling or otherwise transferring a user’s profile;
using any information obtained from the App or the Mkt2Day Services in order to harass, abuse, or harm another person;
using the App or the Mkt2Day Service as part of any effort to compete with Mkt2Day, the App, or the Mkt2Day Service or to provide services as a service bureau;
deciphering, decompiling, disassembling or reverse engineering any of the software comprising or in any way making up a part of the App or the Mkt2Day Services;
attempting to bypass any measures of the App or the Mkt2Day Services designed to prevent or restrict access to the App or the Mkt2Day Services, or any portion of the App or the Mkt2Day Services;
harassing, annoying, intimidating or threatening any Mkt2Day employees or agents engaged in providing any portion of the Mkt2Day Services;
displaying an advertisement, or accepting payment or anything of value from a third person in exchange for a user performing any commercial activity on or through the App or the Mkt2Day Services on behalf of that person, such as posting blogs or bulletins with a commercial purpose;
deleting the copyright or other proprietary rights notice from any Addition or any portion of the App or the Mkt2Day Services (including any content therein and thereof); and
using the App and/or the Mkt2Day Services in any manner inconsistent with any and all applicable laws and regulations.
INTELLECTUAL PROPERTY RIGHTS
As between any user and Mkt2Day, all of the content included in and as a part of the App and the Mkt2Day Services (including, without limitation, all source code, databases, functionality, software, website designs, audio, video, text, photographs, and graphics, the “Mkt2Day Content”), including all trademarks, service marks, and logos contained therein (“Marks”), is the property of or is licensed to Mkt2Day, and are subject to copyright and other intellectual property rights under United States and foreign laws and international conventions. Mkt2Day reserves all rights in and to the App, the Mkt2Day Services, and the Mkt2Day Content and Marks. Subject to a user’s agreement to, compliance with, and except as otherwise prohibited by, these Terms, such user is hereby granted a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the App and the Mkt2Day Services; the license granted hereby does not include any resale or commercial use of the App, the Mkt2Day Services, or the Mkt2Day Content. If a user downloads or prints a copy of the Mkt2Day Content for personal use in accordance with the limited license granted herein, the user must retain all copyright and other proprietary notices contained therein. User agrees not to circumvent, disable or otherwise interfere with security related features of the App or features that prevent or restrict use or copying of any Mkt2Day Content or enforce limitations on use of the App or the Mkt2Day Content therein.
THIRD PARTY WEBSITES AND CONTENT
The App and the Mkt2Day Services may contain, or a user may be sent through the App or the Mkt2Day Service to, links to other websites (“Third Party Apps”) as well as articles, photographs, text, graphics, pictures, designs, music, sound, video, information, applications, software and other content or items belonging to or originating from third parties (the “Third Party Content”). Such Third Party Apps and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Mkt2Day (including the App and the Mkt2Day Services), and Mkt2Day (including the App and the Mkt2Day Services) are not responsible for any Third Party Apps accessed through the App or any Third Party Content posted on, available through or installed from the App, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third Party Apps or the Third Party Content. Inclusion of, linking to, or permitting the use or installation of any Third Party App or any Third Party Content does not imply approval or endorsement thereof by us. If a user decides to access the Third Party Apps or to use or install any Third Party Content, such user does so at their own risk and such user agrees that Mkt2Day (including the App and the Mkt2Day Services) shall have no responsibility with respect thereto. Users should review the applicable terms and policies, including privacy and data gathering practices, of any website to which a user navigates from the App or through the use of the Mkt2Day Services or as may otherwise relate to any applications that a user may use or install from the App or through the Mkt2Day Services. Any purchases a user makes through Third Party Apps will be through and from the applicable third party, and Mkt2Day (including the App and the Mkt2Day Services) takes no responsibility whatsoever in relation to such purchases, which user agrees are exclusively between such user and the applicable third party.
Mkt2Day reserves the right but does not have the obligation to:
monitor the App and the Mkt2Day Services for violations of these Terms;
take appropriate legal action against anyone who, in Mkt2Day’s sole and absolute discretion, violates these Terms, including without limitation, reporting such person to law enforcement authorities;
in Mkt2Day’s sole and absolute discretion, refuse, restrict access to or availability of, or disable (to the extent technologically feasible) any user’s Addition or any portion thereof that may violate these Terms or any applicable policy of Mkt2Day, the App, and/or the Mkt2Day Services;
in Mkt2Day’s sole and absolute discretion, remove from the App or the Mkt2Day Services, or otherwise disable all files and content, that are excessive in size or are in anyway burdensome to the App’s or the Mkt2Day Services’ systems; and
otherwise manage the App in a manner designed to protect the rights and property of Mkt2Day and others and to facilitate the proper functioning of the App and the Mkt2Day Services.
DATA AND TEXT MESSAGE RATES
Users may be able to access the Mkt2Day Services through their mobile device or cellphone. If a Shopper or Vendor is unable to reach a Customer to complete delivery, Mkt2Day may send a Customer a text message. Please be aware that data and messaging rates may apply depending on a Customer’s carrier and phone service. Customers should be sure to check data and messaging plans to understand any relevant costs incurred by his or her use of the Mkt2Day Services. Mkt2Day is not responsible for any fees charged by a Customer’s data or cellphone carrier.
Each user hereby consents to receive text messages from or on behalf of Mkt2Day as a part of the Mkt2Day Services at the cell phone number(s) provided by a user to Mkt2Day. Each user also agrees that such text messages may be generated using an automatic telephone dialing system. A user should must us immediately if the cell phone number(s) such user has provided to Mkt2Day are changed or disconnected.
TERM AND TERMINATION
These Terms shall remain in full force and effect while a user uses the App or the Mkt2Day Services. A Customer may terminate his or her use or participation at any time, for any reason, by either ceasing to use the App and the Mkt2Day Services. The Shopper or Vendor may terminate this Agreement in writing at any time upon at least thirty (30) days prior written notice to Mkt2Day.
WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, MKT2DAY RESERVES THE RIGHT TO, IN MKT2DAY’S SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE AND THE MKT2DAY SERVICES, TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN THESE TERMS, OR OF ANY APPLICABLE LAW OR REGULATION, AND MKT2DAY MAY TERMINATE A USER’S USE OR PARTICIPATION IN THE APP AND THE MKT2DAY SERVICES, DELETE A USER’S PROFILE AND ANY CONTENT OR INFORMATION THAT A USER HAS POSTED AT ANY TIME, WITHOUT WARNING, IN MKT2DAY’S SOLE AND ABSOLUTE DISCRETION, INCLUDING TERMINATING A VENDOR’S AND/OR SHOPPER’S ACCESS TO THE APP AND THE MKT2DAY SERVICES AND AUTHORITY TO ACT AS A VENDOR AND/OR SHOPPER HEREUNDER.
Any provisions of these Terms that, in order to fulfill the purposes of such provisions, need to survive the termination or expiration of these Terms, shall be deemed to survive for as long as necessary to fulfill such purposes.
These Terms are governed by the laws of the Commonwealth of Massachusetts without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, each user and Mkt2Day agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Plymouth, County, MA for the purpose of litigating any dispute. Mkt2Day operates the Mkt2Day Service from our offices in Hingham, and makes no representation that the Mkt2Day Services are appropriate or available for use in other locations.
If there is a dispute between users of the App, or between users and any third party (including any Vendor or Shopper), each user understands and agrees that Mkt2Day (including the App and the Mkt2Day Services) is under no obligation to become involved. In the event of any such dispute between and among Customers, Vendors, Shoppers or other third parties, each such user hereby releases Mkt2Day (including the App and the Mkt2Day Services), its directors, officers, employees, service providers, affiliates, agents and successors from all claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to such disputes.
In the interest of resolving disputes between any users and Mkt2Day in the most expedient and cost effective manner, each user and Mkt2Day agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. EACH USER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THESE TERMS, SUCH USER AND MKT2DAY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
Despite the provisions of the paragraph directly above, each user and Mkt2Day agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law; or (d) to file suit in a court of law to address an intellectual property infringement claim.
Any arbitration between any user and Mkt2Day will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by these Terms, and will be administered by the AAA located in Plymouth County, Massachusetts.
A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail or Federal Express (signature required), or if Mkt2Day does not have a physical address on file for such user, by electronic mail ("Notice"). Mkt2Day's address for Notice is: Mkt2Day, 11 Pleasant St, Hingham MA 02043. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). Mkt2Day agrees to use good faith efforts to resolve the claim directly, but if an agreement is not reached within 30 days after the Notice is received, either the user or Mkt2Day may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by a user or Mkt2Day must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
EACH USER AND MKT2DAY AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN THEIR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless such user and Mkt2Day agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
If Mkt2Day makes any future change to this arbitration provision (other than a change to Mkt2Day's address for Notice), a user may reject the change by sending Mkt2Day written notice within thirty (30) days of the change to Mkt2Day's address for Notice, in which case such user’s account with Mkt2Day will be immediately terminated and this arbitration provision, as in effect immediately prior to the amendments such user rejects will survive.
If the paragraph above regarding class or representative proceedings is found to be unenforceable or if the entirety of this Disputes Section is found to be unenforceable, then the entirety of this Disputes Section will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Governing Law Section will govern any action arising out of or related to these Terms.
Mkt2Day cannot control the nature of all of the content available on the App or through the Mkt2Day Services, or the products and services being sold by the Vendors therein. By operating the App and providing the Mkt2Day Services, Mkt2Day does not represent or imply that Mkt2Day endorses any Customer, Shopper, Vendor, Additions, or any other content or products available on or linked to by the App or through the Mkt2Day Services, or that Mkt2Day believes any products, Additions, or other content to be accurate, useful, or non-harmful. We do not control and are not responsible for unlawful or otherwise objectionable products or content a user may encounter on the App or through the Mkt2Day Services or in connection with any Customers, Shoppers, Vendors, Additions, or other third parties.
EACH USER AGREES THAT THEIR USE OF THE APP AND MKT2DAY SERVICES WILL BE AT THEIR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, MKT2DAY, ITS DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE APP AND MKT2DAY SERVICES AND A USER’S USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MKT2DAY MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE APP’S CONTENT OR THE CONTENT OF ANY WEBSITES LINKED TO THIS APP AND ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT AND MATERIALS, (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM A USER’S ACCESS TO AND USE OF OUR APP AND MKT2DAY SERVICES, (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE APP, (E) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE APP BY ANY THIRD PARTY, AND/OR (F) ANY ERRORS OR OMISSIONS IN ANY CONTENT AND MATERIALS OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY OF THE PRODUCTS, SERVICES, OR CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APP OR THROUGH THE MKT2DAY SERVICES. MKT2DAY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED THROUGH THE APP OR ANY HYPERLINKED WEBSITE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND MKT2DAY WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN A USER AND PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, SUCH USER SHOULD USE THEIR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.
LIMITATIONS OF LIABILITY
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MKT2DAY OR ITS DIRECTORS, OFFICERS, EMPLOYEES, SERVICE PROVIDERS, AFFILIATES, OR AGENTS BE LIABLE TO A USER OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM A USER’S USE OF THE APP OR MKT2DAY SERVICES, EVEN IF MKT2DAY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, MKT2DAY’S LIABILITY TO ANY USER FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES (A) FOR A CUSTOMER, BE LIMITED TO THE AMOUNT PAID BY USER TO MKT2DAY FOR ORDER PLACED BY SUCH CUSTOMER THROUGH THE MKT2DAY SERVICES DURING THE PERIOD OF 1 MONTH PRIOR TO ANY CAUSE OF ACTION INITIALLY ARISING AND (B) FOR A SHOPPER OR VENDOR, A MAXIMUM AMOUNT OF $1,000.00.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO A USER, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO SUCH USER, AND SUCH USER MAY HAVE ADDITIONAL RIGHTS.
Each user agrees to defend, indemnify and hold Mkt2Day, its subsidiaries, and affiliates, and their respective directors, officers, employees, service providers, and agents (collectively, the “Mkt2Day Indemnitees”) harmless from and against, any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any party due to or arising out of their Additions, their use of the App, use of Mkt2Day Services, or obligations to provide services under the App and/or Mkt2Day Services to a third party, including, without limitation use in violation of these Terms and/or arising from a breach of these Terms and/or any breach of their representations, warranties, or covenants set forth in these Terms. Notwithstanding the foregoing, Mkt2Day reserves the right, at such user’s expense, to assume the exclusive defense and control of any matter for which such user is required to indemnify a Mkt2Day Indemnitee, and such user agrees to cooperate, at their expense, with Mkt2Day’s defense of such claims. Mkt2Day will use reasonable efforts to notify such user of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
In the future Mkt2Day may offer coupons from participating Vendors through the Mkt2Day Services. Participating Vendors would be identified during the checkout process. In order to receive coupons, a Customer must have a valid Mkt2Day account. These coupons would only be applied to an order from any Vendor using such Customer’s account on the Mkt2Day Services. Unless required by law, such coupons would be non-transferrable and would not be redeemable for cash or any other consideration. ANY COUPONS WILL EXPIRE THIRTY (30) DAYS AFTER THE ISSUE DATE. If a Customer’s Mkt2Day account is terminated prior to the expiration date, any unexpired coupons remaining in such Customer’s Mkt2Day account will be terminated and cannot be redeemed unless as required by law. Cash Coupons earned through the referral program are only valid for friends who receive the code directly from a Customer. Each Customer is responsible for the unauthorized use of their coupons.
If at any time, Mkt2Day offers gift cards, the following terms shall apply: (1) gift cards cannot be combined with cash, (2) gift cards are redeemable only with online payments; (3) gift cards are not redeemable for cash, (4) lost, stolen or damaged gift cards may be replaced only with valid proof of purchase and to the extent of the remaining gift card balance appears in Mkt2Day’s records, (5) gift cards are not a credit or debit card, (6) there are no expiration dates and no fees for purchased gift cards, and (7) expiration dates or other terms may apply to promotional or service credit gift cards not purchased directly by a consumer.
These Terms constitutes the entire agreement between each user with each other user and Mkt2Day regarding the App and the Mkt2Day Services. The failure of Mkt2Day to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. These Terms operates to the fullest extent permissible by law. These Terms and each user’s account and/or relationship with Mkt2Day may not be assigned by such user without Mkt2Day’s express written consent. Mkt2Day may assign any or all of its rights and obligations to others at any time. Mkt2Day shall not be responsible or liable for any loss, damage, delay or failure to act caused by any cause beyond Mkt2Day’s reasonable control. If any provision or part of a provision of these Terms is unlawful, void or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions.
In order to resolve a complaint regarding the App or the Mkt2Day Services, or to receive further information regarding the Mkt2Day Services, please contact Mkt2Day as set forth below, or, if any complaint with Mkt2Day, the App, or the Mkt2Day Services is not satisfactorily resolved, and such user is a Massachusetts resident, such user can contact:
11 Pleasant St
Hingham, MA 02043
DIGITAL MILLENNIUM COPYRIGHT ACT (DMCA) INFRINGEMENT NOTICE AND POLICY
If a user believes that content available on or through the App infringes one or more of such user’s copyrights, please immediately notify our Copyright Agent by mail, email or faxed notice (“Notification”) providing the information described below, which Notification is pursuant to DMCA 17 U.S.C. § 512(c)(3). A copy of such user’s Notification will be sent to the person who posted or stored the material addressed in the Notification. Please be advised that pursuant to federal law a user may be held liable for damages if a user makes material misrepresentations in a Notification. Thus, if a user is not sure that content located on or linked to by the App infringes such user’s copyright, such user should consider first contacting an attorney. Company has a policy of terminating repeat infringers in appropriate circumstances.
All Notifications should include the following:
A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online website are covered by a single notification, a representative list of such works at that website.
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 Company to locate the material.
Information reasonably sufficient to permit the Company to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
A statement that the complaining party has 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.
A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications should be sent to our Copyright Agent as follows:
Mkt2Day also will advise the alleged infringer of the DMCA Statutory Counter Notification procedure described below by which the alleged infringer may respond to such user’s claim and request that we restore this material.