Terms of Service
Last updated: September 29, 2021
Thank you for using McGrocer! These terms and conditions (“Terms of Service”, “Terms”), govern your use of the McGrocer services, including McGrocer’s website, McGrocer’s mobile applications, and any websites (or portions thereof) (collectively, the “Services”), and are entered into by you and Manhogany Limited (DBA McGrocer), a company incorporated in United Kingdom with registered company number 12166283 (“McGrocer”). This Agreement applies to all visitors, users, and others who access the Services (each, hereafter, a “user”).
The Services comprise a technology platform that presents you with a set of one or more Wholesaler, Broker, Producer, Seller, (each a “Seller”) virtual storefronts from which you can select goods for picking and packing by one or more warehouse operative picker or personal shoppers and delivery to your location or, if available, for you to pick up from the warehouse. Depending on the Seller from whom you purchase goods through the Services, picking, packing and delivery services may be performed by third parties, which may include Seller personnel, independent contractors, and third party logistics providers (collectively, “Third Party Providers”).
SECTION 1 – PLATFORM TERMS
You acknowledge that services provided by Third Party Providers are provided by third-party independent contractors who are not employed by McGrocer. You acknowledge that McGrocer does not supervise, direct, or control the performance of services provided by Third Party Providers to you or for your benefit.
When you use the Services to place an order for goods, you authorize the purchase of those goods from the Sellers you select and, if you have selected delivery services, the delivery of those goods by Third Party Providers. Unless otherwise specified, you acknowledge and agree that McGrocer and the Third Party Provider are collectively acting as your agents in the ordering, picking, packing, and/or delivery of goods purchased by you and the Seller — not the Third Party Provider and not McGrocer—is the Seller of the goods to you. You agree that your purchase is being made from the Seller you have selected, that Seller is the merchant of record, and that title to any goods passes to you when they are purchased at the applicable Seller’s warehouse. You agree that McGrocer or the applicable seller will obtain a credit card authorization for your credit card on file with McGrocer to cover the cost of the goods you have purchased from the retailer and any separate McGrocer fees, and your card will be charged for the goods purchased by you and any applicable fees, taxes and/or tips.
McGrocer may change the fees it charges for the Services, including but not limited to delivery fees, service fees, alcohol service fees, dangerous good fees and heavy order fees. Your card may be temporarily authorized for an amount greater than the total amount of the purchase appearing in the original check out. This higher authorized amount will be disclosed during the purchase process and is a temporary authorization charge on your order, to deal with situations where your total purchase amount turns out to be higher than the original amount due to special requests, added items, replacement items or weight adjustments. Sellers set the prices of the goods on the Services, and some Sellers may set prices for goods on the Services that are different than in-store prices. You can view each Seller’s pricing policies on their storefront on both their website and in the McGrocer website.
You also acknowledge and agree that, except as expressly provided for otherwise in these Terms or a separate agreement between you and McGrocer that:
- McGrocer does not form any employment or agency relationship with you and does not hold title to any goods that you order through the Services.
- McGrocer has no control over the appropriateness of the content of any offer issued by Buyers, counteroffers and orders submitted by Sellers, or any other User Content
- McGrocer make no representation or warranty as to the timeliness, relevance, truth or accuracy of any User Content
- McGrocer does not hold title to any of the products in a Service, which title will pass directly between the Seller and the Buyer
Buyers and Sellers conduct transactions on or through the platform at their own risk. McGrocer disclaims all liability in regard to such transactions to the maximum extent permitted by law.
You hereby release McGrocer from any and claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected any dispute you may have with one or more other Users. You expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favour at the time of agreeing to this release.
You agree that any legal remedy or liability that you seek to obtain for acts or omissions of other Users or other third parties will be limited to a claim against the particular User or third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from McGrocer with respect to such acts or omissions.
This limitation will not apply to any claim by a Seller against McGrocer regarding the remittance of payments received from a Buyer by McGrocer on behalf of a Seller, which instead shall be subject to the limitations described in the subsection entitled "Limitation of Liability" in Section 11 below.
SECTION 2 - YOUR USE OF THE SERVICES
McGrocer grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms and McGrocer’s policies. You may not copy, modify, distribute, sell, or lease any part of the Services. Unless such restriction is prohibited by law or you have McGrocer’s written permission, you may not reverse engineer or attempt to extract the source code of the Services. You may only access the Services through the interfaces that McGrocer provides for that purpose (for example, you may not “scrape” the Services through automated means or “frame” any part of the Services), and you may not interfere or attempt to disrupt the Services.
Some parts of the Services may allow you to upload or submit content (such as text, images, video, recipes, lists, links, and other materials). You retain all rights in any content that you upload or submit, and are solely responsible for that content. You grant McGrocer a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, perpetual license to use, store, publicly display, publicly perform, reproduce, modify, create derivative works from, and distribute any such content for the purposes of operating, providing, and improving the Services. McGrocer may, in its sole discretion, remove or take down any content that you upload or submit to the Services for any reason, including violation of these Terms or any other policies.
You may have the option of accessing the Services through downloadable software and this software may update itself automatically on your device. Some software, or portions of software, in the Services may be governed by open source licenses. In that case, McGrocer will make such licenses available to you and, in the case of conflict between such a license and these Terms, the open source license will control but only with respect to the software, or portion of the software, to which it applies.
If you are using McGrocer Services for its intended purposes on behalf of a business or other entity, you represent and warrant that you have the necessary authority to bind that business or entity to these Terms and that you are agreeing to these Terms on behalf of that business or entity.
In order to use the Services, you may need to create a user account. You agree that you are responsible for all conduct and transactions that take place on or using your account and that you will take precautions to keep your password and other account information secure. You also agree that you will comply with all applicable laws when accessing or using the Services and you will respect those who you encounter in your use of the Services, including Third Party Providers and McGrocer personnel, including individuals who support McGrocer’s Support Center. McGrocer reserves the right to decline orders, refuse partial or full delivery, terminate accounts, and/or cancel orders at any time in its sole discretion.
We’re constantly modifying and improving the Services. McGrocer may introduce new features, change existing features, or remove features from the Services at any time and without notice. If you provide McGrocer with any feedback on or comments regarding the Services, you grant McGrocer the right to use such feedback or comments for any purpose without restriction or payment to you.
If you have any requests for order cancellations, refunds, or returns, please visit your account to initiate such a query or email firstname.lastname@example.org.
SECTION 3 - MCGROCER COMMUNICATIONS
By creating a McGrocer user account, you agree to accept and receive communications from McGrocer or Third Party Providers, including via email, text message, calls, and push notifications to the mobile telephone number you provided to McGrocer, including but not limited to communications concerning offers and orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may opt out of such communications at any time in Your Account Settings. You may also opt-out of receiving text messages from McGrocer by replying “STOP” from the mobile device receiving the messages.
If you use the Services to order alcoholic beverages (where available), you understand and agree that user inquiries may be conducted via telephone. You also understand and agree that a third party licensed delivery partner and/or McGrocer may send you unencrypted SMS messages, push notifications or other electronic notifications relating to alcohol products that you order through the Services. There is some level of risk that information in such communications could be read by an unintended third party. By using the Services to order alcoholic beverages, you explicitly disclaim any liability against McGrocer, its affiliated companies, and Third Party Providers for any harm or damage arising out of or in connection with any SMS messages, push notifications and/or other electronic notifications.
SECTION 4 - MAKE AN OFFER TRANSACTIONS
As described above, the Platform is an online marketplace designed to facilitate the procurement of food and agricultural related products and services through virtual storefronts, from which you can select goods for picking and packing by one or more warehouse operative picker or personal shoppers and delivery to your location.
As a Buyer, when you make an offer, it will be shared with the Seller and you can follow-up your offer by sending a message to the seller. Sellers that wish to respond to a Buyer's offer may reject offer, accept offer, counteroffer or negotiate the price, quantity, quality, shipping terms etc.
If the Buyer elects to pay for the selected products or services by credit card, debit card, direct debit from a bank account, McGrocer will process the payment on the Seller's behalf and notify the Seller when the payment has been approved. The Seller will then prepare, pack and deliver the order while McGrocer will remit payment to the Seller, minus a referral fee.
If the Buyer elects to pay by an alternate method of payment, McGrocer will notify the Seller that its offer has been accepted and provide the Seller with the Buyer's contact information, and the Seller will remit payment of the referral fee to McGrocer. In such cases, the Buyer and Seller will arrange for payment and delivery to be made, and it will be the Seller's sole responsibility to collect payment directly from the Buyer.
For payments processed by McGrocer, McGrocer will help to mediate disagreements between the buyer and seller, where the product specification or shipping terms differs from the earlier agreed terms, and may process refunds to the Buyer under limited circumstances, at McGrocer's sole discretion. In all other cases, Sellers will be responsible to issue credits or refunds directly to the Buyer.
As a Buyer, you agree that:
- you will submit offers only with a bona fide intent to purchase the products or services solicited
- Your enquiry or offer may not be immediately transmitted to Sellers (and may take up to 24 hours to be transmitted in some circumstances)
- McGrocer may withhold or withdraw any enquiry or offer submitted by you at any time, in its sole discretion
- if a Seller or McGrocer has questions about a product enquiry or offer submitted by you, we have the right, but not the duty, to contact you for further information
- you will provide timely responses to requests for additional information
- you are responsible for carefully reviewing and considering quotes or orders
- when you accept a counteroffer or approve an order from a Seller or when a Seller accept your offer through the Platform, you are entering into a legally binding contract to purchase the products or services in accordance with the terms that you have accepted
- when you submit account information to McGrocer to process your payment in connection with an accepted offer, you authorize McGrocer to charge the amount due to your account and to notify the Seller upon approval of the transaction by McGrocer's third-party service provider
- for payments to Sellers that are not processed through the Platform, you will pay all amounts due in a timely manner in a accordance with the terms that you have accepted
- McGrocer may use a third-party payment processing service and that McGrocer will not be liable for the acts or omissions of such service
- McGrocer never takes ownership or possession of products from Sellers, and, hence, does not transfer legal ownership of products from the Seller to the Buyer
- you are responsible for coordinating the delivery of products and services directly with the Seller
- you are responsible for complying with all laws, rules and regulations applicable to the sale, purchase, shipment, and use of all products and services purchased through the Platform
- your obligations with respect to quotes submitted prior to the suspension or termination of your account will survive such suspension or termination
As a Seller, you agree that:
- your counteroffers, quotes, orders, descriptions of products and services and other information and content provided by you in connection with a transaction will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date
- McGrocer may withhold or withdraw a counteroffer, quote, orders created by you at any time, in its sole discretion, including, for example, orders that are not responsive or relevant to your product inventory, or are otherwise deemed inappropriate
- if a Buyer or McGrocer has questions about a counteroffers, quotes, orders or about any of your products or services, we have the right, but not the duty, to contact you for further information
- you will provide timely responses to enquiries and offers for additional information
- when a Buyer accepts your counteroffers, quotes, orders, you are entering into a legally binding contract to purchase the products or services in accordance with the terms that the Buyer has accepted
- you will fulfil the order approved/paid by a Buyer in a timely manner and in accordance with the Buyer's acceptance
- your products and services will:
- be delivered to the location specified by the Buyer
- be provided in a professional manner by qualified personnel
- comply with all applicable laws, rules and regulations
- not infringe the rights of any third party, including, intellectual property rights
- be safe and free from defect and provided in a professional manner by qualified personnel
- be merchantable and fit for their intended purposes
- you authorize McGrocer to collect payments from Buyers on your behalf
- McGrocer may use a third-party payment processing service and that McGrocer will not be liable for the acts or omissions of such service
- you will document all sales and deliveries of products and services to Buyers in an accurate and timely manner, in a form and manner as set forth herein by using McGrocer messaging and communication tools only or as may otherwise be required by McGrocer.
- all referral fees and other amounts owed to McGrocer will be paid in a timely manner, which, except as otherwise specified herein, will be not more than 30 days from invoice
- referral fees are due in connection with all transactions on the Platform, regardless of whether payment has been collected from the Buyer
- you will comply with all other Platform rules, policies and procedures, as updated from time to time
- referral fees are non-refundable, regardless of any cancellation, return or refund to the Seller
- you will not contact, approach, solicit or sell to any Buyer to which you have submitted e counteroffer, order or enquiry response or with which you have conducted transactions on the Platform (except those that are Seller's pre-existing customers) outside of the Platform, or otherwise engage in activities intended to circumvent the Platform
Note: a Buyer is considered a "pre-existing customer" if you can demonstrate that the Buyer has purchased products or services from you within 24 months prior to the time that you first sold products or services to such Buyer through the Platform
- in the event that you knowingly sell goods or services to Buyers (other than pre-existing customers), outside of the Platform, such sales will be deemed "Transactions" for purposes of the Terms, and you will pay referral fees as set forth herein
- interference with the order or transactions of other Sellers is strictly prohibited
- it will be deemed a prohibited interference with the transaction of another Seller if you contact, approach, solicit or sell to any Buyer (including a pre-existing customer) in connection with an offer submitted though the Platform if your quote is not accepted by the Buyer
- in the event that you sell goods or services to Buyers (including pre-existing customers) in connection with an offer where your counteroffer or order was not accepted by the Buyer, such sales will be deemed "Transactions" for purposes of the Terms, and you will pay referral fees as set forth herein
- you will document and report all Buyer complaints to McGrocer (including the status of their resolution) on a monthly basis
- you will resolve all Buyer complaints in a timely manner
- you will provide such additional reporting as may be reasonably requested by McGrocer
- you are responsible for complying with all laws, rules and regulations applicable to the sale, purchase and shipment of all products and services purchased through the Platform
- you will comply with all other Platform rules, policies and procedures, as updated from time to time
- McGrocer has the right to suspend or terminate your account as a result of your breach of this section
- your obligations with respect to offers submitted prior to the suspension or termination of your account will survive such suspension or termination
- your obligations under the Terms apply to your affiliates, owners, employees, agents, contractors and other intermediaries, and you will ensure the compliance of such persons and entities with the terms hereof
SECTION 5 - OPTIONAL TOOLS
We may provide you with access to third-party tools over which we neither monitor nor have any control nor input.You acknowledge and agree that we provide access to such tools ”as is” and “as available” without any warranties, representations or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third-party tools.
Any use by you of optional tools offered through the site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third-party provider(s).
We may also, in the future, offer new services and/or features through the website (including, the release of new tools and resources). Such new features and/or services shall also be subject to these Terms of Service.
SECTION 6 - INTERNATIONAL USERS
The Platform is controlled and operated in the United Kingdom. Unless otherwise indicated, all prices and other amounts are charged in the British Pounds (GBP). You understand and agree that by accessing the Platform from a location outside the United Kingdom, you do so at your own risk and you are responsible for compliance with applicable laws, rules and regulations, including U.K. export and import laws and any regulations and statutory requiremnts regarding online conduct and content.
SECTION 7 - PRODUCT INFORMATION AND OTHER PLATFORM CONTENT
The product information available on the Platform (including information displayed in search results), and all other Platform Content, is provided "AS IS," without warranty express or implied, and for information purposes only. Although we endeavor to present complete, accurate and up-to-date information, the information that we make available is created and maintained by a variety of external sources that themselves may not be complete, accurate or up-to-date. Such information may contain technical inaccuracies or typographical errors. We do not control, monitor, independently verify or guarantee the information provided by such external sources. Nor do we endorse any claims or opinions expressed in Platform Content.
McGrocer reserves the right to correct any errors, inaccuracies or omissions and to change or update information or refuse or cancel orders if any information on the Services is inaccurate at any time without prior notice (including after you have submitted your order and/or your credit card has been charged).
It is your responsibility to review the official manufacturer product label information, applicable regulations, and otherwise research and determine the completeness, accuracy, timeliness and usefulness of the Platform Content for yourself using your professional judgment.
In no event will we or our data providers be responsible or liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or reliance on any Platform Content, including information that is incomplete, incorrect, outdated, deceptive or fraudulent.
The Platform Content, including product information is made available is provided under a limited non-exclusive, revocable, non-transferable license, and may not be redistributed or used to develop a stand-alone database. Further, the Platform Content may include materials covered by registered copyrights and trademarks. All rights not expressly granted herein are reserved by the intellectual property owners.
SECTION 8 - TRANSACTIONS INVOLVING ALCOHOL
You may have the option to order alcohol products in some locations and from certain Sellers. You agree that you will comply with all applicable laws and not cause McGrocer or any Third Party Provider (including any Seller) to contravene any applicable laws. If you order alcohol products from a Seller through the Services, you agree that you are of legal drinking age for purchasing, possessing, and consuming alcohol i.e., 18 years of age or older in the United Kingdom, and agree that, upon delivery of alcohol products by the Third Party Provider, the recipient will provide valid government-issued identification which may be scanned by the Third Party Provider proving their age to the Third Party Provider delivering the alcohol products, that the recipient will not be intoxicated when receiving delivery of such products, and that alcohol has not been purchased with the intent to resell the alcohol or provide the alcohol to someone who is not of legal drinking age.
You agree that if any applicable legal requirements for the delivery of alcohol are not met, McGrocer reserves the right to cancel the alcohol-related portion of your order. Special requests or substitutions for the purchase of alcohol products will not be honoured; all requests for the purchase of alcohol products must be made through the catalogue available through the Services at the time of submitting the order.
SECTION 9 - THIRD-PARTY PRODUCTS AND CONTENT
You agree that McGrocer does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Services, nor does McGrocer assume responsibility for your interactions with any Third Party Provider (including a Seller). If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Services or you engage with any Third Party Provider, you agree that you do so at your own risk and that McGrocer will have no liability based on such purchase, use access, or engagement.
SECTION 10 - SERVICE PROVIDED AS-IS AND RELEASE OF CLAIMS
THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." MCGROCER DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, AND WARRANTIES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, MCGROCER MAKES NO REPRESENTATION, WARRANTY, CONDITIONS, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES FROM SELLERS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. MCGROCER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS, OR SELLERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, REMAINS SOLELY WITH YOU. THE SERVICES, WEBSITE, AND SOFTWARE ARE SUBJECT TO PERIODIC CHANGES, WHICH MAY BE MADE AT ANY TIME AND WITHOUT NOTICE TO YOU.
MCGROCER DOES NOT GUARANTEE THAT THE SERVICES, WEBSITE, AND SOFTWARE WILL OPERATE WITHOUT ERRORS OR THAT THE SERVICES, WEBSITE, AND SOFTWARE ARE FREE OF COMPUTER VIRUSES OR OTHER MALWARE. YOU AGREE THAT MCGROCER WILL NOT BE RESPONSIBLE FOR ANY ECONOMIC COSTS RELATING TO YOUR USE OF THE SERVICES, WEBSITE, OR SOFTWARE.
YOU AGREE THAT NEITHER MCGROCER NOR ITS AFFILIATES, SELLERS, LICENSORS, OR SUPPLIERS IS RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY THIRD PARTY PROVIDER OR FOR ANY SERVICES PROVIDED BY ANY THIRD PARTY PROVIDER. NEITHER MCGROCER NOR ITS AFFILIATES, SELLERS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDER.
If you have a dispute with one or more Third Party Providers, you agree to release McGrocer (including McGrocer’s affiliates, and each of their respective officers, directors, employees, agents, shareholders, retail partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
SECTION 11 - LIMITATION OF LIABILITY
In no event shall McGrocer (including its affiliates, and each of their respective officers, directors, employees, agents, shareholders, seller partners, licensors, and suppliers) be liable to you for any incidental, special, punitive, consequential, or indirect damages (including, but not limited to, damages for deletion, corruption, loss of data, loss of programs, failure to store any information or other content maintained or transmitted by the services, service interruptions, or for the cost of procurement of substitute services) arising out of or in connection with the services, or these terms, however arising including negligence, even if McGrocer or McGrocer’s agents or representatives know or have been advised of the possibility of such damages.
In no event shall McGrocer (including its affiliates, and each of their respective officers, directors, employees, agents, shareholders, seller partners, licensors, and suppliers) be liable for any indirect, special, punitive, incidental, exemplary and/or consequential damages (including, but not limited to physical damages, bodily injury, death and/or emotional distress and discomfort) arising out of your use of the services, any services provided by third party providers, or any products requested by you or delivered to you, even if McGrocer or McGrocer’s agents or representatives know or have been advised of the possibility of such damages.
McGrocer, its affiliates, seller partners, licensors, suppliers, and distributors will not be liable for aggregate liability for all claims relating to the services, any services provided by third party providers, or any products requested by you or delivered to you for more than the greater of £100 or the amounts paid by you to McGrocer during the past 12 months in connection with the services.
SECTION 12 - INDEMNIFICATION
You agree to defend, indemnify and hold harmless McGrocer and its officers, directors, employees, agents, shareholders, affiliates, and retail partners (each, an "Indemnified Party") from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from: (i) your unauthorized use of the Services or from any breach by you of these Terms, including without limitation any actual or alleged violation of any law, rule or regulation; (ii) any third party’s access or use of the Services using your McGrocer user account; or (iii) any dispute or issue between you and any third party, including without limitation any Retailer or other Third Party Provider.
SECTION 13 - DISPUTES & ARBITRATION
This Section 10 (the “Arbitration Agreement”) applies to and governs any dispute, controversy, or claim between you and McGrocer that arises out of or relates to: (a) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (b) access to or use of the Services, including receipt of any advertising or marketing communications; (c) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services; or (d) any other aspect of your relationship or transactions with McGrocer as a consumer.
Before initiating proceedings against McGrocer, you agree to contact McGrocer first and attempt to work out any such dispute amicably.
You agree to the following mandatory arbitration provisions:
Mandatory Arbitration: If we’re unable to work out a solution amicably, both you and McGrocer agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim arising at any time out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with McGrocer as a consumer.
Notwithstanding this mandatory arbitration provision, (a) you may assert claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis, and (b) you and McGrocer each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement of a party’s intellectual property rights.
This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of these Terms. The laws of England and Wales governs the interpretation and enforcement of this Arbitration Agreement and pre-empts all laws to the fullest extent permitted by law.
TRIAL BY JURY WAIVER: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND MCGROCER ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
CLASS, COLLECTIVE, REPRESENTATIVE ACTION WAIVER: BY ENTERING INTO THESE TERMS, YOU ACKNOWLEDGE AND AGREE THAT, WITH RESPECT TO ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT, YOU AND MCGROCER ARE EACH WAIVING THE RIGHT TO BRING, JOIN, OR PARTICIPATE IN, EITHER AS A PLAINTIFF OR CLASS MEMBER, IN ANY PURPORTED CLASS, COLLECTIVE, OR REPRESENTATIVE ACTION OR PROCEEDING. YOU ALSO ACKNOWLEDGE AND AGREE THAT, UNLESS YOU AND MCGROCER OTHERWISE AGREE IN WRITING, ANY ARBITRATION OF ANY CLAIM(S) WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING. YOU FURTHER ACKNOWLEDGE THAT THE ARBITRATOR MAY AWARD RELIEF ONLY IN YOUR FAVOR AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY YOUR INDIVIDUAL CLAIM(S), AND ANY RELIEF AWARDED CANNOT AFFECT OTHER MCGROCER USERS. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS, COLLECTIVE, OR REPRESENTATIVE ARBITRATION.
Opt-out of Mandatory Arbitration: You can reject and opt-out of this Arbitration Agreement within 30 days of first accepting these Terms by emailing McGrocer at hello@McGrocer.com with your first and last name and the email address associated with your account and stating your intent to opt-out of the Arbitration Agreement. Note that opting out of this Arbitration Agreement does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
The Parties agree to submit to the jurisdiction of a single neutral arbitrator (the “Arbitrator”) selected in accordance with the Rules. The Arbitrator will decide the rights and liabilities, if any, of you and McGrocer. The Arbitrator will have the authority to award the same damages and relief on an individual basis that a judge in a court of law can award to an individual. The Arbitrator shall follow the applicable law. The Arbitrator’s decision is final and binding on you and McGrocer.
You and McGrocer agree that the Arbitrator, and not any national or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, unconscionability, or estoppel.
The Rules will govern the payment of all filing, administrative or arbitrator fees (“Arbitration Fees”) and each party will be responsible for their own Arbitration Fees under those Rules or to the maximum extent permitted by law.
If this Arbitration Agreement is found to be void, unenforceable, or unlawful, in whole or in part, the void, unenforceable, or unlawful provision, in whole or in part, shall be severed. Severance of the void, unenforceable, or unlawful provision, in whole or in part, shall have no impact on the remaining provisions of the Arbitration Agreement, which shall remain in force, or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement. Notwithstanding the foregoing, if the Class, Collective, Representative Action Waiver above is found to be void, unenforceable, or unlawful, in whole or in part, because it would prevent you from seeking public injunctive relief, then any dispute regarding the entitlement to such relief (and only that relief) must be severed from arbitration and may be litigated in a civil court of competent jurisdiction. All other claims for relief subject to arbitration under this Arbitration Agreement shall be arbitrated under its terms, and the parties agree that litigation of any dispute regarding the entitlement to public injunctive relief shall be stayed pending the outcome of any individual claims in arbitration.
SECTION 14 - TERMINATION
You can stop using the Services at any time and without notice to us. Similarly, McGrocer may terminate access to the Services to you or any other users or stop offering the all or part of the Services at any time without notice.
SECTION 15 - CONTROLLING LAW
To the extent permitted by applicable law, these Terms will be governed by the laws of England and Wales, without respect to its conflicts of laws principles, except the Arbitration Agreement, which is governed by the laws outlined in Section 13 of these Terms. To the extent permitted by applicable law, any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 13 (Disputes & Arbitration) of these Terms shall be brought exclusively in the courts of laws of England and Wales and you and McGrocer consent to the personal jurisdiction of those courts.
SECTION 16 - TAXES
We may charge and withhold the applicable sales tax for orders. Otherwise, Sellers are solely responsible for all sales taxes, or other taxes, on orders sold by you.
SECTION 17 - PAYMENT PROCESSING
McGrocer is able to process payments made using credit cards, debit cards, direct debit from bank accounts Buyers that wish to pay for purchases using one of these method will submit the necessary account information upon accepting a quote, and the payment will be processed before the Seller is notified of the accepted quote. As a Buyer, you agree that McGrocer, in its role as limited payment collection agent for the Seller, may charge your credit card or other payment method to collect the amounts due in connection with your Transactions. Once the payment is approved, McGrocer will notify the Seller, and the Seller will promptly send the Buyer a confirmation of the sale, including shipping information, or contact the Buyer to arrange delivery.
Payments will be remitted by McGrocer to Sellers to the account provided by the Seller, minus the applicable referral fee. However, McGrocer reserves the right to offset any amounts due to be paid to the Seller by any past due referral fees and other amounts owed by the Seller to McGrocer.
SECTION 18 - CANCELLATIONS, RETURNS & REFUNDS
McGrocer reserves the right, but has no obligation, to permit order cancellations and refunds, which will be permitted under limited circumstances only. When an order is cancelled or an item returned, McGrocer will refund the Buyer any amounts charged in connection with such order or item.
For any cancellations or refunds processed by McGrocer, the Seller will remit to McGrocer payment of the refunded amount, if already paid to the Seller by McGrocer. In addition, the Seller will pay McGrocer a service fee of 1% of the total invoiced amount, and any third-party costs and expenses incurred by McGrocer due to the chargeback. McGrocer reserves the right to offset any amounts due to the Seller by any such amounts owed by the Seller to McGrocer.
SECTION 19 - RECORDS AND AUDIT
As a Seller, you will maintain complete and accurate records in connection with products and services provided to Buyers during the Term and for a period of 3 years thereafter. Upon request, you will allow McGrocer and its designee's access, during regular business hours and on reasonable notice to Seller, for the purpose of allowing McGrocer and its designees to audit your compliance with the Terms as well as such assistance as we may reasonably request. Such audits may be conducted no more than once per calendar year, unless an initial audit reveals evidence of a breach. If an audit reveals that referral fees or other amounts are owed to McGrocer pursuant to the Terms that have not been reported and/or paid, then, in addition to paying McGrocer all amounts due, you will reimburse McGrocer for all reasonable costs and expenses incurred in connection with the audit within thirty 30 days. The terms of this section will survive the suspension or termination of your account.
SECTION 20 - LIQUIDATED DAMAGES
If we determine that a Seller has failed to report any transaction or pay to any referral fee as required by the Terms, you will promptly pay to McGrocer the fee attributable to such transaction, plus interest thereon at the rate of 1.5% per month until paid in full. In addition, you will pay a service fee equal to 50% of the applicable referral fee.
If you attempt to circumvent the Platform or interfere with the transactions of other Sellers, you will pay McGrocer liquidated damages in the amount of 5% of all sales resulting from such circumvention or interference. You hereby agree that (i) if you were to breach these non-circumvention or non-interference provisions, it may be difficult to determine the actual damages caused to McGrocer, and (ii) the amount of liquidated damages is a fair, reasonable and appropriate estimate of McGrocer's damages in the event of such a breach, and not a penalty. McGrocer reserves the right to offset any amounts due to the Seller by any such referral fees, late fees, service fees and liquidated damages owed by the Seller to McGrocer.
SECTION 21 - REPORTING MISCONDUCT
If you feel that another User has violated the Terms, abused the Platform or otherwise acted inappropriately, you may report the User to McGrocer at email@example.com. McGrocer reserves the right, but assumes no obligation, to investigate and take appropriate action in response to such reports. Regardless of its action or inaction, in no event will McGrocer be liable for the acts or omissions of any User or any other third party.
SECTION 22 - NO ENDORSEMENT
Users; Products and Services of Users
McGrocer does not endorse any Buyer, Seller or other User. Users are required by the Terms to provide accurate information and, although McGrocer may conduct certain limited checks and/or institute certain processes designed to help verify information provided by Users, we do not guarantee the completeness or accuracy of any information provided by any User, including the User's purported identity, creditworthiness, credentials or background.
Any references to a User being "verified" (or similar language) only indicates that the User has completed a relevant verification process, and does not represent anything else. Any such description is not an endorsement, certification or guarantee by McGrocer about the User, including of the User's identity, creditworthiness, credentials or background. Any such description is intended only help you to evaluate and you make your own decisions about the identity and suitability of others whom you contact or interact with via the Platform.
Likewise, McGrocer does not endorse the products or services provided by any User. Certain features and functionality of the Platform may enable you to search for and identify products that meet criteria that are specified by you. The results of such searches are generated based on product information provided by third parties, including the product manufacturers. Thus, we do not guarantee that any search results are complete, accurate or up-to-date. McGrocer recommends consulting with the Seller for proper product label and usage information. Further, the appearance of any product within any search results does not imply McGrocer's endorsement of that product, its merchantability or its fitness for any particular purpose. McGrocer makes no endorsement or warranty of any kind with respect to the products or services for which information is made available on or through the Platform, or that such information is complete, accurate or up-to-date.
We therefore recommend that you exercise due diligence when deciding to enter into a Transaction with another User, and we will not be responsible or liable for any damage or harm resulting from your interactions with other Users or their products or services.
SECTION 23 - FORCE MAJEURE
McGrocer shall not be liable for or required to pay compensation of any nature whatsoever for any loss arising from the unavailability, inconvenience or failures of the services or systems due to the following reasons: (i) system shut-down for maintenance; (ii) inability to transmit data due to failures in communications terminals or telecommunications equipment; (iii) systems failure and inability to perform its functions) due to force majeure events including but not limited to typhoons, earthquakes, tsunamis, floods, power failure, fires, storms, war, political unrest, labour strikes, shortage of labor or materials, riots, insurrections, civil disturbances, terrorist attack, explosions, acts of God, governmental actions, orders of domestic or foreign courts or tribunals, non-performance of third parties; or (iv) suspension or delay of services or systems failure due to reasons beyond the reasonable control of McGrocer such as hacker or cyber-attacks, technical adjustments, website upgrades, third party problems or any suspension or disruption of transportation or business operation (including but not limited to delays or disruption of the resumption of work or operation ordered by any government agency) in the event of a national or regional spread of epidemic or pandemic.
SECTION 24. ENTIRE AGREEMENT & SEVERABILITY
These Terms, subject to any amendments, modifications, or additional agreements you enter into with McGrocer, shall constitute the entire agreement between you and McGrocer with respect to the Services and any use of the Services. If any provision of these Terms is found to be invalid by a court competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
SECTION 25. NO WAIVER
McGrocer’s failure to monitor or enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.
SECTION 26. ASSIGNMENT
You may not assign any of your rights, licenses, or obligations under these Terms. Any such attempt at assignment by you shall be void. McGrocer may assign its rights, licenses, and obligations under these Terms without limitation.
SECTION 27. CHANGES TO THE TERMS
We may make changes to these Terms from time to time. When McGrocer does so, McGrocer will post the most current version of the Terms on McGrocer’s website and, if a revision to the Terms is material, McGrocer will notify you of the new Terms (for example, by email or a notification on the Services). Changes to these terms will not apply retroactively. If you do not agree to the modified terms, you should discontinue your use of the Services.
SECTION 28. COPYRIGHT AND TRADEMARK POLICY
McGrocer respects the intellectual property rights of others and has implemented a copyright and trademark policy in accordance with relevant laws. McGrocer will respond to valid notices of copyright or trademark infringement and reserves the right to terminate any users, at McGrocer’s sole discretion and without notice, who repeatedly infringe copyrights or other intellectual property rights.
Without limiting the foregoing, Sellers hereby expressly grant McGrocer a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free right and license to (i) include your trade names, logos, tag lines, and other trademarks and service marks (the "Seller Marks") in its lists of sellers, both on the Website and App and in marketing and promotional materials for the Platform, and (ii) to make other factual references to your participation as a seller in connection with the Platform. In the event that Seller notifies McGrocer of any incorrect or improper usage of any Seller Mark, McGrocer agrees to correct such usage in a commercially timely manner.
If you believe any content posted or made available on the Services constitutes infringement of your copyright rights, you may send a written notice of infringement to McGrocer’s designated Copyright Agent using the contact information listed below. In your notice, please specify the nature of the copyright infringement and include the following information: (a) an electronic or physical signature of the owner of the copyright in question or a person authorized to act on behalf of the owner of the copyright; (b) a description of the claimed infringing material as well as identification of the claimed infringing material, including the location of such material on the Services (e.g., the URL of the claimed infringing material if applicable or other means by which McGrocer may locate the material); (c) complete contact information, including the name of the owner of the copyright and your name, title, address, telephone number, and email address; (d) a statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (e) a statement, made under penalty of perjury, that the information provided in your notice is accurate and that you are the copyright owner or authorized to act on behalf of the owner.
If you believe any content posted or made available on the Services constitutes infringement of your trademark rights, you may also send your notice to McGrocer's designated Copyright Agent using the contact information listed above. Please include as much detail as possible so that we may respond to your notice in a timely manner, including but not limited to description(s) of your trademark(s), your trademark registration number(s), description(s) of the products allegedly using your trademark(s) without authorization, and the location of such allegedly infringing product(s).
SECTION 29 - CONTACT INFORMATION
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org.