Terms and Conditions
- United States WaiCart Consumers
Effective: October 1st, 2021
PLEASE READ THE TERMS AND CONDITIONS CAREFULLY. THESE TERMS AND CONDITIONS (“AGREEMENT”) CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND WAICART LLC, A DELAWARE LIMITED LIABILITY COMPANY, AND ITS SUBSIDIARIES AND AFFILIATED COMPANIES, (COLLECTIVELY, “WAICART,” “PUSHCARTERS”,“WE,” “US,” “COMPANY,” OR “OUR”).
SECTION 12 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 12 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, EXCEPT AS SET FORTH IN SECTION 12(G); AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 12 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
1. About WaiCart and Our Services
(a) Services. WaiCart, including its subsidiaries and affiliated companies, provides an online marketplace using web-based technology to gather participating independent local farmes and other businesses (“Supplier” or “Suppliers”) in order to facilitate the transmission of orders placed by users/members and connects users to Suppliers’ products offered through WaiCart’s website and apps. WaiCart’s online platform may permit customers to place orders for fresh products picked fresh daily from various farms and businesses for delivery or pickup within 24 hours. (collectively, “Service” or “Services”).
You acknowledge and agree that WaiCart does not itself prepare any products and has no responsibility or liability for the acts or omissions of any Supplier or member farm and business. WaiCart does not provide any retail services or any product preparation services. WaiCart is not a farm, delivery service, or food preparation business.
You agree that the goods that you purchase (“Goods”) will be prepared by the Supplier(s) you selected, the Supplier(s) is the merchant of record, that title to the Goods passes from the Supplier to you at the Supplier’s location when they are purchased, and for delivery orders, the driver will be directed by your instructions to transport the Goods to your designated delivery location.
(b) Delivery. WaiCart also hires drivers that deliver the products to your location within a sixty (60) to one hundred (100) mile radius. Drivers engaged by WaiCart provide the delivery services and have entered into separate arrangements with WaiCart (“Delivery Drivers” or “Drivers”). Drivers are required to comply with all applicable federal, state, and local regulations. Once a delivery order is made, WaiCart’s mobile application (the “Software”) will notify the WaiCart Admin and Driver that a delivery opportunity is available, and the Software will facilitate completion of the delivery to You. If a pickup order is made, the Software will communicate with You regarding the availability of the order for pickup.
(c) No Liability. WaiCart does not assess or guarantee the suitability, safety, responsibility, legality or ability of any Supplier or its Goods. You agree that WaiCart is not responsible for the Suppliers’ products preparation or the safety of the products or whether the photographs or images displayed through the Services accurately reflect the products prepared by the Suppliers and/or delivered, and does not verify Suppliers’ compliance with applicable laws or regulations. WaiCart has no responsibility or liability for acts or omissions by any Supplier or member farm and business. If you purchase, use, or consume any such products through the Services or you engage with any Supplier, you agree that you are doing so at your own risk and that WaiCart will have no liability as a result of such purchase, use access, or engagement.
2. Payment Terms
(a) Prices & Charges. You understand that: (a) the prices for inventory or other items displayed through the Services may differ from the prices offered or published by Suppliers for the same inventory or other items and/or from prices available at third-party websites and that such prices may not be the lowest prices at which the inventory or other items are sold; (b) WaiCart has no obligation to itemize its costs, profits or margins when publishing such prices; and (c) WaiCart reserves the right to change such prices at any time, at its reasonable discretion. For certain transactions, the subtotals shown at checkout are estimates that may be higher or lower depending on the final supplier totals. In those situations, WaiCart reserves the right to charge your payment method the final price after checkout. You are liable for all transaction taxes on the Services provided under this Agreement (other than taxes based on WaiCart’s income). In the event that the charge to your payment method may incorrectly differ from the total amount, including subtotal or fees, displayed to you at checkout, WaiCart reserves the right to make an additional charge to your payment method after the initial charge so that the total amount charged is consistent with the total amount displayed to you at checkout.
All payments will be processed by WaiCart or its payments processor, using the preferred payment method designated in your account. If your payment details change, your card provider may provide us with updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your use of the Services. If you would like to use a different payment method or if there is a change in payment method, please update your billing information.
(b) Refund Policy. Charges paid by you for completed and delivered orders are final and non-refundable. WaiCart has no obligation to provide refunds or credits, but may grant them, on a case by case basis based on WaiCart’s sole discretion.
(c) Promotional Offers and Credits. WaiCart, at its sole discretion, may make promotional offers with different features and different rates to any user. These promotional offers are subject to the terms of this Agreement and may be valid only for certain users as indicated in the offer. You agree that promotional offers: (i) may only be used by the intended audience, for the intended purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by WaiCart; (iii) are subject to the specific terms that WaiCart establishes for such promotional offer; (iv) cannot be redeemed for cash or cash equivalent; and (v) are not valid for use after the date indicated in the offer or in pursuant to this Agreement. WaiCart reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that WaiCart determines or believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement. You agree that WaiCart reserves the right to modify or cancel a promotional offer at any time. WaiCart may also offer gratuitous credits, which can be used for the Services. Any credit issued by WaiCart is valid for 6 months from the date of issue except to the extent prohibited under applicable law and may not be redeemed for cash or cash equivalent. Upon expiration or if your membership has been terminated for any reason, credits will be automatically removed from your account. Expired credits are no longer redeemable and cannot be used towards any order. In certain cases, credits issued through a user’s WaiCart account may only be redeemed through that respective Supplier.
(d) Fees for Services. WaiCart may change the fees for our Services as we deem necessary or appropriate for the Company’s business, including but not limited to delivery fees, alcohol service fees, replacement items, small order fees, special requests, and surge fees. WaiCart may also charge suppliers fees on orders that you place through the Services, including commissions, and may change those Suppliers’ fees as we deem necessary or appropriate for our business or to comply with applicable law.
(e) Referral Program. WaiCart’s Customer Friends and Family Referral Program Terms and Conditions (“Referral Program”) will be made available to you upon checkout.
Under the Referral Program, WaiCart offers its registered users in good standing the opportunity to earn gratuitous WaiCart credits as promotional rewards by inviting their eligible friends and family to register as new WaiCart users and place their initial order through the Services by using a unique referral ID link (“Personal Link”). For each referral, generated through the Personal Link, the user may receive a gratuitous credit. You acknowledge and agree that we may change the terms and conditions of the Referral Program or terminate the Referral Program at any time at our sole discretion.
3. User Account
(a) Registration. You may be required to register for an account in order to use the Services. If you are a minor in the jurisdiction in which you reside in, you must have permission of or be directly supervised by a legal guardian to use the Services and your legal guardian must have read and agreed to this Agreement prior to you using the Services. You must provide accurate, current, and complete information during the registration process and at all other times when you use the Services, and to update the information to keep it accurate, current, and complete.
(b) Your Responsibility. You are the sole authorized user of any account you create through the Services. You are fully responsible for all activities that occur under your password or account. You agree that you shall monitor your account to prevent use by minors and you will accept full responsibility for any unauthorized use of your password or your account. You may not allow others to use your username and password and you may not assign or transfer your user account to any other person or entity.
Should you suspect that any unauthorized party may be using your password or account, you will notify WaiCart immediately. WaiCart will not be liable and you may be liable for losses, damages, liability, expenses, and fees incurred by WaiCart or a third party arising from someone else using your account, regardless of whether you have notified us of such unauthorized use. If you provide any information that is untrue, inaccurate, not current, or incomplete, or WaiCart has reasonable grounds to suspect that such information is untrue, inaccurate, not current, or incomplete, WaiCart has the right to suspend or terminate your account and refuse any and all current or future use of the Services at any time in its sole discretion. We may enable or require you to use a single pair of login credentials to use the WaiCart services. You agree not to create an account or use the Services if you have been previously removed by WaiCart, or if you have been previously banned from use of the Services.
4. WaiCart Pass Subscriptions
(a) General: WaiCart Pass is an automatically renewing subscription requiring recurring payments. WaiCart Pass subscription grants you access to reduced fees on orders placed through the Services for Suppliers with a minimum subtotal as stated when you sign up (excluding taxes) (“Reduced Fees”). Reduced Fees and other WaiCart Pass benefits may be redeemed only at participating and eligible Suppliers. WaiCart reserves the right to change whether a Supplier is eligible for WaiCart Pass at any time with or without notice. WaiCart Pass orders are subject to delivery driver and geographic availability, and taxes may apply to the cost of the items you order. Depending on the conditions as stated when you sign up, Service Fees and other fees may apply. We reserve the right to add and modify fees as discussed in this Section. Your WaiCart Pass benefits will extend to WaiCart when you register for an WaiCart Pass subscription.
(b) Term and Cancellation: WaiCart Pass is offered for a monthly or yearly fee payable at the start of the relevant period. By signing up for WaiCart Pass and providing WaiCart with your payment account information, you agree that: (a) you will be charged your first WaiCart Pass subscription fee and any applicable taxes on the date you purchase your WaiCart Pass subscription; (b) you authorize WaiCart and its service providers to store your payment method for the purpose of executing future WaiCart Pass auto-renewal transactions; (c) UNLESS YOU CANCEL, BY DEFAULT, YOUR WAICART PASS SUBSCRIPTION WILL AUTOMATICALLY RENEW AT THE END OF THE THEN-CURRENT SUBSCRIPTION PERIOD WITH AN ALERT TO THE EMAIL ADDRESS LISTED ON YOUR ACCOUNT, and (d) AT THE TIME OF RENEWAL, WAICART WILL AUTOMATICALLY CHARGE THE THEN-CURRENT WAICART FEE AND ANY APPLICABLE TAXES.
(c) Change in Payment: If you would like to use a different payment method or if there is a change in payment method, please update your billing information. If your payment details change, your card provider may provide us with the updated card details. We may use these new details or details from other cards on file in order to help prevent any interruption to your WaiCart Pass subscription. If you do not wish to have your card automatically updated, please contact the issuing bank to opt out of that service. If payment cannot be successfully completed and your WaiCart Pass is not canceled, WaiCart may suspend your WaiCart Pass benefits until the Company has a valid payment method on file.
(d) Commercial WaiCart Pass Subscriptions: You may be eligible for a complimentary WaiCart Pass subscription when your employer registers for a commercial WaiCart Pass Subscription. If you have a complimentary WaiCart Pass subscription through your employer, your account will be in accordance with the terms of your employer’s corporate subscription; unless your subscription is cancelled. To receive the subscription benefits, you must register using your corporate email address and be an authorized user added by your employer, and then click the activation button.
(e) Trial or Promotional Subscriptions: From time to time, WaiCart offers trial or other promotional subscriptions to WaiCart Pass. Such trial or promotional subscriptions are subject to this Agreement and the WaiCart Customer Friends and Family Referral Program Terms and Conditions except as otherwise stated in the promotional offer. When your free trial period has expired, your subscription will be automatically converted into a paid WaiCart Pass subscription, and WaiCart will bill you the applicable fee. If you purchase an WaiCart Pass subscription with a promotional code, when your WaiCart subscription renews, you will be charged the full billing amount. You may cancel within the first 24 hours of your paid WaiCart Pass subscription and receive a full refund of your WaiCart Pass fee. However, if you cancel your WaiCart Pass subscription outside the first 24-hour time period, you will not receive a refund, and your membership will be terminated immediately. Only one trial or promotional subscription is available per household. If your WaiCart Pass subscription is ever terminated for any reason, you shall not be eligible for a free trial on any subsequent WaiCart Pass subscription.
(f) Cancellation Policy: You can cancel your WaiCart Pass subscription at any time during your monthly or annual subscription. In order not to be charged for the next billing cycle, you must cancel at least one (1) day before the next-scheduled billing cycle date (e.g. if renewal date is January 1st, you must cancel by 11:59:59pm PT on December 31st). Instructions on how to cancel:
Mobile app users
Open your WaiCart app
Tap the account icon at the top left of the screen
Go to "Manage WaiCart Membership"
Tap "End Membership"
Confirm by taping "End Membership"
If you cancel your WaiCart Pass subscription within the first 48 hours of the new subscription period and have not placed an WaiCart Pass eligible order during that period, WaiCart may, in its sole discretion, refund your WaiCart Pass fee. However, if you cancel your WaiCart Pass subscription outside the 48-hour time period, you will not receive a refund, but you can continue to enjoy the WaiCart Pass benefits through the end of the subscription period associated with the last billing cycle.
(g) Updates and Changes: The WaiCart Pass prices and features may change in the future. If WaiCart changes the monthly or annual fee for an WaiCart subscription, WaiCart will notify you via email of the changes, when they plan on taking effect, and provide you with the opportunity to change your subscription before your WaiCart Pass is renewed for another subscription term. Your continued use of the Services after the change will constitute as an acceptance of the new fee. Any WaiCart Pass subscriptions will be subject to the terms and conditions in effect at the time you sign up or your subscription renews.
If you disagree with the changes to your current WaiCart Pass subscription terms and conditions, do not wish to continue your subscription, you may cancel your WaiCart Pass subscription and receive a refund of your subscription fee on a pro-rated basis calculated from the end of the month during which you cancel the subscription.
(h) No Transfer or Assignments & Cancellations: Your WaiCart Pass subscription cannot be transferred or assigned. WaiCart reserves the right to accept, refuse, suspend, or cancel your WaiCart Pass subscription at any time in its sole discretion. If WaiCart terminates your account or your WaiCart Pass subscription because it determines, in its sole discretion, that your actions or your use of the Services violates this Agreement or has harmed another user you will not be provided a refund of your subscription fee.
5. Gift Cards
Gift Cards may be redeemable towards eligible orders placed on www.WaiCart.com and WaiCart apps in the United States. But if you have a Gift Card that was purchased and used, you must use any remaining balance of that Gift Card on the platform where the card was first redeemed. Gift Cards are made available and provided by WaiCart LLC. Gift Cards are not redeemable for cash except when required by applicable law. If your Gift Card only covers a portion of the product(s), you must pay the remaining balance with a payment method accepted by WaiCart. You cannot cancel an order that you placed with your Gift Card. WaiCart is not responsible for Gift Cards that are lost, stolen, or destroyed in which case the relevant third party Gift Card terms and conditions will apply.
6. Transactions Involving Alcohol
You may have the option to request delivery of alcohol products in some locations and from certain Suppliers. If you receive your delivery in the United States, you agree that you will only order alcohol products if you are 21 years of age or older. If you receive your delivery in another country, you agree that you will only order alcohol products if you are of legal age to purchase alcohol products in the relevant jurisdiction. You also agree that, upon delivery of alcohol products, you will provide valid government-issued identification proving your age to the Driver delivering the alcohol products and that the recipient will not be intoxicated when receiving delivery of such products. If you order alcohol products, you understand and acknowledge that neither WaiCart can accept your order of alcohol products, and the order will only be delivered if the Supplier accepts your order. The Driver reserves the right to refuse delivery if you are not 21 years old, if you cannot provide a valid government issued ID, if the name on your ID does not match the name on your order, or if you are visibly intoxicated. If the Driver is unable to complete the delivery of alcohol products for one or more of these reasons, you are subject to a non-refundable $100 re-stocking fee.
7. User Content
(a) User Content. WaiCart may also permit you to post ratings and reviews of the products and Suppliers through the Services. (“User Content”). You represent and warrant that you are the owner of, or otherwise have the right to provide, all User Content that you submit, post and/or otherwise transmit through the Services. You further represent and warrant that any User Content that you submit, post and/or otherwise transmit through the Services (i) does not violate any third-party right, including any copyright, trademark, patent, trade secret, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) does not contain material that is false, intentionally misleading, or defamatory; (iii) does not contain any material that is unlawful; (iv) does not violate any law or regulation; and (v) does not violate this Agreement. You hereby grant WaiCart a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sublicensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use the User Content in connection with WaiCart’s business and in all forms now known or hereafter invented (“Uses”), without notification to and/or approval by you. You further grant WaiCart a license to use your username, first name and last initial, and/or other User profile information, including without limitation, your ratings history, to attribute User Content to you in connection with such Uses, without notification or approval by you or compensation to you. You agree that this license includes the right for other users to access and use your User Content in conjunction with participation in the Services and as permitted through the functionality of the Services. The license granted to WaiCart shall survive termination of the Services or your account. WaiCart reserves the right in its sole discretion to remove or disable access to any User Content from the Services, suspend or terminate your account at any time, or pursue any other remedy or relief available under equity or law if you post any User Content that violates this Agreement or any community or content guidelines we may publish or that we consider to be objectionable for any reason. You agree that WaiCart may monitor and/or delete your User Content for any reason in WaiCart’s sole discretion. WaiCart may also access, read, preserve, and disclose any information as WaiCart reasonably believes is necessary to (a) satisfy any applicable law, regulation, legal process, or governmental request, (b) enforce this Agreement, including investigation of potential violations hereof, (c) detect, prevent, or otherwise address fraud, security, or technical issues, (d) respond to user support requests, or (e) protect the rights, property or safety of WaiCart, its users and the public.
Ratings and reviews are not endorsed by WaiCart and do not represent the views of WaiCart or its affiliates. WaiCart shall have no liability and does not assume liability for User Content or for any claims or losses resulting from such ratings and reviews. Because we strive to maintain a high level of integrity with respect to User Content posted or otherwise made available through the Services, you agree that: (i) you will base any User Content on first-hand experience with the Supplier(s); (ii) you will not provide User Content for any Supplier(s) for which you have an ownership interest, employment relationship or other affiliation or for any of that company’s competitors; (iii) you will not submit User Content in exchange for payment, free products items, or other benefits from a Supplier; (iv) any User Content you submit will comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising; and (v) your User Content will comply with the terms of this Agreement. If we determine, in our sole discretion, that any User Content could diminish the integrity of the User Content or otherwise violates this Agreement, we may remove such User Content without notice.
(b) Feedback. You agree that any submission of any ideas, suggestions, and/or proposals to WaiCart through its suggestion, feedback, forum or similar pages (“Feedback”) is at your own risk and that WaiCart has no obligations (including without limitation, obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback and you hereby grant to WaiCart a perpetual, irrevocable, transferable, fully paid, royalty-free, non-exclusive, worldwide, fully sub licensable right and license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works, distribute and/or otherwise use such Feedback.
8. Conduct and Prohibitions
Without limiting other rules and prohibitions in this Agreement, by using the Services, you agree that:
(a) You will only use the Services for lawful purposes; you will not use the Services for sending or storing any unlawful material or for deceptive or fraudulent purposes; and you will not engage in conduct that harms other users, WaiCart employees, or our community.
(b) You will only use the Services in accordance with all applicable laws, including copyrights, trade secrets, or other rights of any third party, including privacy or publicity rights.
(c) You will only access the Services using means explicitly authorized by WaiCart.
(d) You will not use another User’s account, impersonate any person or entity, or forge or manipulate headers or identifiers to disguise the origin of any content transmitted through the Services.
(e) You will not use the Services to cause nuisance, annoyance, or inconvenience.
(f) You will not use the Services, or any content accessible through the Services, for any commercial purpose, including but not limited to contacting, advertising to, soliciting or selling to, any Supplier or other merchant, other user or Driver or other contractor, unless WaiCart has given you prior permission in writing to do so.
(g) You will not copy or distribute the Software or any content displayed through the Services, including Supplier’s items, WaiCart content and reviews, for republication in any format or media.
(h) You will not compile, directly or indirectly, any content displayed through the Services except for your personal, noncommercial use.
(i) You agree that the information you provide to us when you register an account or otherwise communicate with us accurate, and you will promptly notify us of any changes to such information, and you will provide us with whatever proof of identity we may reasonably request.
(j) You will keep secure and confidential your account password or any identification credentials we provide you which allows access to the Services.
(k) You will use the Software and Services only for your own personal use and will not directly or indirectly resell, license or transfer the Software, Services or content displayed by the Services to a third party.
(l) You will not use the Services in any way that could damage, disable, overburden or impair any WaiCart server, or the networks connected to any WaiCart server.
(m) You will not attempt to gain unauthorized access to the Services and/or to any account, resource, computer system, and/or network connected to any WaiCart server.
(n) You will not probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures WaiCart may use to prevent or restrict access to the Services or use of the Services or the content therein.
(o) You will not deep-link to WaiCart’s websites or access its websites manually or with any robot, spider, web crawler, extraction software, automated process and/or device to scrape, copy, index, frame, or monitor any portion of WaiCart’s websites or any content thereon.
(p) You will not scrape or otherwise conduct any systematic retrieval of data or other content from the Services.
(q) You will not try to harm other users, WaiCart, or the Services in any way whatsoever.
(r) You will not engage in illegal, threatening, harassing, racist, sexist or any other behavior that WaiCart deems inappropriate when using the Services.
(s) You will report any errors, bugs, unauthorized access methodologies or any breach of our intellectual property rights that you uncover in your use of the Services.
(t) You will not abuse our promotional or credit code system, including by redeeming multiple discounts or promotions at once or by opening multiple accounts to benefit from offers available only to first-time users.
(u) You will not attempt to undertake any of the foregoing.
In the event that we believe or determine that you have breached any of the aforementioned, WaiCart reserves the right to suspend and/or permanently deactivate your account at WaiCart’s sole discretion.
(a) General. By creating a WaiCart account, you electronically agree to accept and receive communications from WaiCart, or third parties that provide services to WaiCart through email, text message, calls, and push notifications to the cellular telephone number you provided to WaiCart. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of WaiCart, its affiliated companies and/or Contractor, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply.
(b) Opting Out. If you do not wish to receive promotional emails, text messages, or other communications, you may change your notification preferences by accessing your account. To opt out of receiving promotional text messages from WaiCart, you must reply “STOP” from the mobile device receiving the messages.
10. Intellectual Property
WaiCart alone (and its licensors, if applicable) owns all rights, title and interest, all related intellectual property rights, in and to the Software and the Services and the WaiCart brand. This includes, and not limited to, items protected by trademark, copyright, trade dress, or trade secret. This Agreement is not a sale or a license, nor does it provide you with any rights of ownership in or related to the Software or the Services or any intellectual property rights owned by WaiCart.
You agree that you will not remove, alter, use, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Software or the Services. WaiCart only grants you a limited, non-exclusive, non-transferable, and revocable license to access and use the Services for your own personal use subject to the terms and conditions of this Agreement.
11. Procedure for Making Claims of Copyright Infringement.
It is WaiCart’s policy to terminate membership privileges of any users who infringes on a copyright owner’s work upon prompt notification to WaiCart by the copyright owner or the copyright owner’s legal agent. If you believe that your work has been copied and posted on the WaiCart websites in a way that constitutes copyright infringement, please provide our Copyright Agent (contact below) with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the WaiCart website of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
WaiCart LLC
ATTN: Copyright Agent
5 Hawthorne Drive
Monroe, NY 10950
info@waicart.com
12. Dispute Resolution
(a) Scope of Arbitration Agreement. This Section 12 (the “Arbitration Agreement”) governs any dispute, controversy, or claim between you and WaiCart that may arise or relate to this Agreement, use, transaction, or access of the Services, any advertising or marketing communications regarding WaiCart or the Services, or any other aspect of your relationship with WaiCart as a user. Any conflict will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or WaiCart may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of this Agreement.
(b) Waiver of Class Action. IF YOU AGREE TO ARBITRATION WITH WAICART, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT, EXCEPT AS SET OUT IN SECTION 12(G) BELOW. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER, EXCEPT AS SET OUT IN SECTION 12(G) BELOW. BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST WAICART IN AN INDIVIDUAL ARBITRATION PROCEEDING ONLY. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. THE ARBITRATOR CAN NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL’S CLAIM, EXCEPT AS SET OUT IN SECTION 12(G).
(c) Waiver of Jury Trial. YOU AND WAICART WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and WaiCart are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
(d) Informal Resolution. You and WaiCart agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and WaiCart therefore agree that, before either you or WaiCart demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify WaiCart that you intend to initiate an informal dispute resolution conference, email, providing your name, telephone number associated with your WaiCart account, the email address associated with your WaiCart account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.
(e) Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”). If for whatever reason the rules and procedures of the FAA cannot apply, the state law governing arbitration agreements in the state in which you reside shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 12(b). If this notice is being sent to WaiCart, it must be sent by email to the counsel who represented WaiCart in the informal dispute resolution process, or if there was no such counsel then by mail to WaiCart at info@waicart.com. The arbitration will be conducted under its rules and pursuant to the terms of this Agreement. Arbitration demands filed with WaiCart must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration.
The fees set forth in arbitration: (1) involve the same or similar parties; (2) are based on the same or similar claims which arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact; and (3) involve the same or coordinated counsel for the parties. In all other circumstances, General Fee Schedule shall apply, except that WaiCart will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. Payment of all filing, administration, and arbitration fees will be governed by the arbitration Services. The parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location.
(f) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court. The arbitration will decide the rights and liabilities, if any, of you and WaiCart. Except as expressly agreed to in Section 12(g) of this Agreement, the arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award, on an individual basis, monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The award shall be binding only among the parties and shall have no preclusive effect in any other arbitration or other proceeding involving a different party. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and WaiCart.
(g) Batch Arbitrations. To increase efficiency of resolution, in the event of 100 or more similar arbitration demands against WaiCart, presented by or with the assistance of the same law firm or organization, are submitted to an arbitration provider selected in accordance with the rules described above within a 30-day period, the arbitration provider shall (i) group the arbitration demands into batches of no more than 100 demands per batch (plus, to the extent there are less than 100 arbitration demands left over after the batching described above, a final batch consisting of the remaining demands); and (ii) provide for resolution of each batch as a single arbitration with one set of filing and administrative fees and one arbitrator assigned per batch. You agree to cooperate in good faith with WaiCart and the arbitration provider to implement such a batch approach to resolution and fees.
(h) Ability to Opt Out. WaiCart’s updates to these Terms and Conditions do not provide a new opportunity to opt out of the Arbitration Agreement for users who had previously agreed to a version of WaiCart’s Terms and Conditions and did not validly opt out of arbitration. WaiCart will continue to honor the valid opt outs of users who validly opted out of the Arbitration Agreement in a prior version of the Terms and Conditions. If you are a user who creates a WaiCart account for the first time on or after October 1st 2021, you may opt out of this Arbitration Agreement. If you do so, neither you nor WaiCart can force the other to arbitrate as a result of this Agreement.
To opt out, you must notify WaiCart in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your WaiCart username, the email address you use to access your WaiCart account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must mail your opt-out notice to: WaiCart 5 Hawthorne Drive, Monroe NY 10950 , and email a copy to info@waicart.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you.
(i) No Effect on Other Agreements. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND WAICART.
(j) Survival. This Arbitration Agreement will survive any termination of your relationship with WaiCart.
(k) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if WaiCart makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to WaiCart.
13. Third-Party Interactions
(a) Third-Party Websites, Applications and Advertisements. The Services may contain links to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements (“Third-Party Advertisements”) (collectively, “Third-Party Websites & Advertisements”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Advertisement, WaiCart will not warn you that you have left WaiCart’s website or Services and will not warn you that you are subject to the terms and conditions (including privacy policies) of another website or destination; it is entirely at your own risk. Such Third-Party Websites & Advertisements are not under the control of WaiCart. WaiCart is not responsible for any Third-Party Websites, Third-Party Applications or any Third- Party Advertisements. WaiCart does not review, approve, monitor, endorse, warrant, or make any representations with respect to such Third-Party Websites & Advertisements, or their products or services. You should review applicable terms and policies, including privacy and data gathering practices of any Third-Party Websites or Third-Party Applications, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
(b) App Stores on Mobile Devices. You acknowledge and agree that the availability of the Software and the Services is dependent on the third party from which you received the application license, e.g., the Apple iPhone or Android app stores, etc. (“App Store”). You acknowledge and agree that this Agreement is between you and WaiCart and not with the App Store. WaiCart, not the App Store, is solely responsible for the Software and the Services, including the mobile application(s), the content thereof, maintenance, support services and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). The App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In order to use the Software and the Services, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Software or the Services. You agree to comply with, and your license to use the Software and the Services is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using the Software or the Services. You represent and warrant that you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and you represent and warrant that you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that each App Store (and its affiliates) is an intended third-party beneficiary of this Agreement and has the right to enforce the terms and conditions of this Agreement.
14. Indemnification
You agree to indemnify and hold harmless WaiCart and its officers, directors, employees, agents and affiliates (each, an “Indemnified Party”), from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation, attorneys’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from (a) your User Content; (b) your misuse of the Software or Services; (c) your breach of this Agreement or any representation, warranty or covenant in this Agreement; or (d) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services. WaiCart reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with WaiCart in asserting any available defenses. You agree that the provisions in this section will survive any termination of your account, this Agreement, or your access to the Software and/or Services.
15. Disclaimer of Warranties
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT OF LAW, YOUR USE OF THE SOFTWARE AND SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SOFTWARE AND SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT. WAICART MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT MADE AVAILABLE THROUGH THE SOFTWARE OR SERVICES, OR THE SERVICES, SOFTWARE, TEXT, GRAPHICS OR LINKS.
WAICART DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL OPERATE ERROR-FREE OR THAT THE SOFTWARE OR SERVICES ARE FREE OF COMPUTER VIRUSES AND OTHER HARMFUL MALWARE. IF YOUR USE OF THE SOFTWARE OR SERVICES RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, WAICART SHALL NOT BE RESPONSIBLE FOR THOSE ECONOMIC COSTS.
16. Breach and Limitation of Liability
(a) General. You understand and agree that a key element of the Services and this Agreement is your and our mutual desire to keep the Services simple and efficient, and to provide the Software and Services at low cost for all users.
(b) Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, WAICART’S AGGREGATE LIABILITY SHALL NOT EXCEED THE GREATER OF AMOUNTS PAID BY AND/OR DUE FROM YOU TO WAICART IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(c) Disclaimer of Certain Damages. TO THE FULLEST EXTENT OF LAW, WAICART NOR ANY OF ITS SUBSIDIARIES SHALL NOT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOST PROFITS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, AND LOSS OF DATA, REVENUE, USE AND ECONOMIC ADVANTAGE). U.S. FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATION OF CERTAIN LIABILITIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION. THE EXCLUSIONS AND LIMITATIONS UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
17. Modifications
WaiCart reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Software or Services at any time and will notify you by posting an updated version of this Agreement effective immediately. You should regularly review this Agreement, as your continued use of the Services after any such changes constitutes your agreement to such changes. The updated terms will govern any disputes between you and WaiCart despite the dispute arising earlier than the date stated on the updated Agreement.
18. Termination
If you violate this Agreement, WaiCart may respond based on a number of factors including, but not limited to, the egregiousness of your actions and whether a pattern of harmful behavior exists. In addition, at its sole discretion, WaiCart may modify or discontinue the Software or Service, or may modify, suspend or terminate your access to the Software or the Services, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Software or the Service, WaiCart reserves the right to take appropriate legal action, including without limitation, pursuing civil, criminal or injunctive redress. Even after your right to use the Software or the Services is terminated, this Agreement will remain enforceable against you. All provisions which by their nature should survive to give effect to those provisions shall survive the termination of this Agreement.
19. Acceptance of this Agreement
If you access the Software or any of our websites, install or use our WaiCart mobile application, install or use any other software supplied or operated by WaiCart, or access any information, function, or service available or enabled by WaiCart or complete the WaiCart account registration process, you, your heirs, assigns, and successors (collectively, “you” or “your”) hereby represent and warrant that:
(a) You have read, understand, and agree to be bound by this Agreement;
(b) You are of legal age in the jurisdiction in which you reside to form a binding contract with WaiCart; and
(c) You have the authority to enter into the Agreement personally and, if applicable, on behalf of any organization on whose behalf You have created an account and to bind such organization to the Agreement.
Except as otherwise provided in this Agreement, if you do not agree to be bound by the Agreement, you may not access or use the Services. By using the Services, you agree to be bound by Waicart’s Terms and Conditions and acknowledge and agree to the collection, use and disclosure of your personal information in accordance with Waicart’s Privacy Policy. You also agree to abide by any additional WaiCart policies for users that are published on our website or mobile application. Certain features of our Services may be subject to additional terms and conditions, which are incorporated herein by reference.
20. E-SIGN
Disclosure
By creating a WaiCart account, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing WaiCart at info@waicart.com with “Revoke Electronic Consent” in the subject line.
To view and retain a copy of this disclosure, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email WaiCart with contact information and your mailing address.
21. Exclusive Venue
To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and WaiCart agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in the City of New York.
22. Miscellaneous
(a) No Joint Venture or Partnership. No joint venture, partnership, employment, or agency relationship exists between you, WaiCart or any third-party provider as a result of this Agreement or use of the Software or Services.
(b) Choice of Law. To the extent permitted by applicable law, these Terms and Conditions are governed by the laws of the State of New York consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of any other jurisdiction.
(c) Severability. Except as otherwise provided in this Agreement, if any provision of this Agreement is found to be invalid, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
(d) Consumer Complaints. You may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs.
If you are a California resident, under California Civil Code Section 1789.3, you can reach out to Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs to resolve a complaint regarding the Service. They can be reached either in writing to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs located at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210.
(e) Notice. If WaiCart requires that you provide an email address, you are responsible for providing WaiCart with your most current email address. In the event that the last email address you provided to WaiCart is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, once the email containing such notice is dispatched, it will nonetheless constitute effective notice. You are responsible for updating your email address through the WaiCart user profile page.
(f) Electronic Communications. For contractual purposes, you (1) consent to receive communications from WaiCart in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that WaiCart provides to you electronically satisfy any legal requirement that such communications would satisfy if they were in writing. You agree to keep your contact information, including email address, current. This subparagraph does not affect your statutory rights.
(g) Transfer and Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by WaiCart without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and inures to the benefit of each party and the party’s successors and permitted assigns.
(h) Social Media. WaiCart maintains certain social media pages for the benefit of the WaiCart community. By posting, commenting, or otherwise interacting with these pages, you agree to abide by the respective third party social media guidelines and interact in a respectful, appropriate, and lawful manner.
(i) Internet Delays. The Software and Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Except as set forth in WaiCart’s Privacy Policy or as otherwise required by applicable law, WaiCart is not responsible for any delays, delivery failures, or damage, loss or injury resulting from such problems.
(k) Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter. However, nothing in this Agreement shall supersede, amend, or modify the terms of any separate agreement(s) between you and WaiCart . If any provision of this Agreement is deemed to be invalid by a court, only that clause will be removed and the remaining Agreement will remain in effect.
23. Contact Information
WaiCart welcomes your questions or comments regarding the Terms and Conditions:
WaiCart LLC
5 Hawthorne Drive
Monroe, NY 10950
Help Form: info@waicart.com
Telephone Number: +1 (845) 248-0691
