Terms of Service
Last Updated: April 30, 2020
WELCOME TO THE PEPPER PANTRY!
IMPORTANT – PLEASE READ CAREFULLY
THESE TERMS OF SERVICE REQUIRE THE USE OF ARBITRATION OR SMALL CLAIMS COURT TO RESOLVE ALL DISPUTES ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU SHOULD THERE BE A DISPUTE. YOUR AGREEMENT TO THESE TERMS OF SERVICE INDICATES YOUR EXPRESS ACKNOWLEDGEMENT AND AGREEMENT THAT YOU HAVE READ AND UNDERSTAND HOW THE ARBITRATION PROVISION SET FORTH IN SECTION 2 BELOW WORKS.
1. WHAT ARE THESE TERMS OF SERVICE?
These Terms of Service (“Terms”) are a binding contract that govern your access to and use of our various products, services and technology that we may make available to you (collectively, the “Pepper Services”). These Terms are between you (whether an individual or organization) and Pomegranate Technologies Inc. dba “Pepper” (“we”, “our” or “us”). Access to and use of the Pepper Services is available only to individuals who are at least 18 years of age and can form legally binding contracts under applicable law. By using the Pepper Services, signing up for promotional communications, purchasing products from Suppliers (as defined below), and/or creating an Account (also as defined below) with us, you agree to be bound fully by these Terms, without change, as are published at such time. These Terms apply to all Pepper Services users (including visitors to our websites who do not make a purchase) (each, a “User”). If you are a supplier of products made available for sale to Users through the Pepper Services, our Supplier Terms and Conditions located here apply to you.
Please read these Terms carefully, and if you don’t agree with what they require, you may not use the Pepper Services. We may amend these Terms from time to time, and the revised version will be effective when posted on our website, through our mobile app or as otherwise made available to you. Any revised Terms will supersede previous versions. These Terms were last updated on the date set forth above and apply to all uses, purchases or registrations occurring after that date. Any updates or revisions to these Terms shall not apply retroactively, e.g., to past purchases or sales. While we will use reasonable efforts to provide you advance notice of any important revisions, we recommend that you regularly review these Terms because your continued use of the Pepper Services after we make any changes to them constitutes your agreement to any updated version.
2. LEGAL DISPUTES - THE REQUIREMENT TO ARBITRATE
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY BECAUSE IT AFFECTS YOUR RIGHTS.
a. Relationships with our Users is of paramount importance to us and we work hard to make things right with each and every Pepper User. On occasion, a third party may be necessary to help resolve our disputes, and this agreement to arbitrate set out in this Section 2 (the “Arbitration Agreement”) limits us to arbitration (or small claims court, if a claim qualifies) in all such instances
b. WE EACH AGREE THAT ALL DISPUTES BETWEEN US THAT WE CANNOT RESOLVE INFORMALLY SHALL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY BY BINDING ARBITRATION OR IN SMALL CLAIMS COURT. WE EACH FURTHER AGREE TO WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY, TO THE LITIGATION OF DISPUTES IN STATE OR FEDERAL COURTS OF GENERAL JURISDICTION, AND TO PARTICIPATE IN ANY WAY IN A CLASS ACTION/CLASS ARBITRATION, PRIVATE ATTORNEY GENERAL ACTION OR OTHERWISE TO MAKE OR PROCEED WITH ANY CLAIM ON A COLLECTIVE OR CONSOLIDATED BASIS.
c. This Arbitration Agreement applies to all agents, attorneys, contractors, subcontractors, service providers, employees and all others acting for, on behalf of or under the direction of either you or us, including all parent, affiliated and related entities. This Arbitration Agreement is binding on you and us, as well as our respective heirs, successors and assigns.
d. We each agree that any claim between us involves commerce under, and is exclusively governed by, the Federal Arbitration Act (“FAA”) and federal law, and not by any state or local laws, or the laws of other countries, concerning or purporting to place limits on the availability or scope of arbitration or in any way imposing requirements beyond or inconsistent with those set forth in the FAA. This Arbitration Agreement, however, does not prevent you from bringing any issues to the attention of federal, state or local agencies.
i. There is no judge or jury in arbitration, and discovery and court review of an arbitration award are limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow these Terms as a court would.
ii. The arbitration or small claims court action shall occur in the United States in the county or parish in which you reside or at such other location in the United States which may be agreed upon by you and us. You may also choose to have any arbitration, whether commenced by you or us, conducted by telephone or based on written submissions only. The arbitrator has the authority to and shall resolve all claims and issues arising between us, including international, federal, state, and local statutory, regulatory, constitutional and common law claims. This arbitration requirement covers, but is not limited to, any and all claims arising from or related in any way to your use of, or registration with, the Pepper Services, your requests to receive advertising or promotions, your purchase of (or attempt to purchase) goods through the Pepper Services, and your communications with us.
iii. The arbitrator also has the sole authority to and shall address all claims or arguments by both of us concerning the formation, legality and enforceability of this Arbitration Agreement, the scope of this Arbitration Agreement, and the arbitrability of any claim or issue arising between us.
iv. Any arbitration will be held before a single neutral arbitrator and will be governed by the Consumer Arbitration Rules and the Consumer Due Process Protocol (collectively, “AAA Rules”) of the AAA as currently in effect, and as modified by this Arbitration Agreement, and will be administered by the AAA. The AAA Rules are available online at https://www.adr.org/consumer, by calling the AAA at 800-778-7879, or by writing to the AAA Notice Address set forth below. To the extent there is a conflict between this clause and the AAA Rules, the arbitrator shall resolve such conflicts so as to preserve our mutual obligation to arbitrate claims on an individual basis.
v. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to the AAA and to Pomegranate Technologies Inc. dba “Pepper”, 511 West 25th Street, Suite 4-105, New York, NY 10001. The AAA’s address is: American Arbitration Association Case Filing Services, 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043 (the “AAA Notice Address”). You may also send a copy to the AAA online at https://www.adr.org.
vi. If you initiate an arbitration, we will reimburse you for any standard filing fee which may be required under the AAA Rules for claims under $10,000. For claims over $10,000, payment of such fees will be by separate agreement between you and us. If we cannot agree on such payment, the arbitrator will decide how such fees should be paid and by whom. Each party shall be responsible for their own attorneys’ fees except as provided by applicable law or the AAA Rules.
vii. We are committed to providing for dispute resolution at a reasonable cost to Pepper Users consistent with the AAA Rules, and any matters related to such cost, if not agreed to by you and us, will be decided by the arbitrator. To the extent that any other provision of these Terms is found to be inconsistent with the rights, duties and requirements of this Arbitration Agreement, or where the application of such a provision would change or render unenforceable any part of this Arbitration Agreement, such provision shall be null and void and the terms of this Arbitration Agreement shall control.
3. ADDITIONAL PEPPER POLICIES
4. WHAT ARE THE PEPPER SERVICES?
The Pepper Services serve to connect Users with local wholesale suppliers (each, a “Supplier”) for essential food and kitchen staples, which a Supplier delivers to a User’s door. The Pepper Services includes the ability for Users to search and shop locally in order to support local Suppliers. For the avoidance of doubt, the Pepper Services provide technology services enabling Users to connect with Suppliers for potential purchases, but they do not include or facilitate delivery services and all delivery of products to a User is the Supplier’s sole responsibility. Pepper will have no liability or responsibility for any aspect of the delivery process. Additional details about the Pepper Services can be found here.
5. YOUR PEPPER SERVICES USER ACCOUNT
In order to get the most out of the Pepper Services, you will need to set up a User account (an “Account”), which requires a valid credit or debit card or other approved payment method, as well as other requested information including your name, address and phone number. While you may have some limited browsing capabilities without one, an Account is required in order for you to complete any purchase from a Supplier. Your Account information must be true, accurate and complete, and updated from time to time as needed. Your Account is personal to you, it may not be transferred without our prior written consent and you are responsible for all activity that occurs under it. You must let us know immediately if you suspect any unauthorized use of your Account, and we have the right to temporarily or permanently suspend or deactivate it if it contains incomplete or inaccurate information or if we suspect fraudulent activity.
6. PEPPER SERVICES REQUIREMENTS
By using the Pepper Services, all Users (including you) acknowledge and agree as set forth below:
a. You will not, nor will you encourage any third party to, do any of the following: (i) remove any copyright, trademark or other proprietary notices from any portion of the Pepper Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Pepper Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Pepper Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Pepper Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Pepper Services or unduly burdening, interfering with or hindering the operation or functionality of any aspect of the Pepper Services; (vi) attempt to gain unauthorized access to or impair any aspect of the Pepper Services or its related systems or networks; (vii) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation to, through, or with any assistance from, the Pepper Services; or (viii) otherwise use the Pepper Services in any manner not permitted by these Terms or in violation of applicable law.
b. You will not post, upload, publish, submit or transmit any content on or through the Pepper Services that: (i) infringes, constitutes the misappropriation of or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
c. You acknowledge that we have no obligation to monitor your access to or use of the Pepper Services, or to review or edit any of Your Information (as defined below), but we have the right to do so for the purpose of operating the Pepper Services, to ensure your compliance with these Terms, to investigate a complaint or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body.
7. PAYMENT & TAXES
a. Payments for Purchases. For purchases made by a User from a Supplier, applicable charges will be owed directly to the applicable Supplier, including for sales and use tax, and we will collect payment from each User to the applicable Supplier as a service we provide to Suppliers. Payment of these charges (including sales and use tax) are to be considered the same as payment made directly by that User to that Supplier. Any sale of goods from a User to a Supplier is a transaction occurring between that User and that Supplier. We are not a seller of the goods, we do not set prices and we are not otherwise part of that transaction except to facilitate the sale by the Supplier and the purchase by the User through the Pepper Services, as further set forth below.
b. Our Processing Fee. Subject to our then-current policies, we may collect a processing fee from a User for each transaction between such User and a Supplier, which you will receive notice of prior to any purchase (the “Processing Fee”).
c. Taxes. For each purchase made by a User from a Supplier through the Pepper Services, we collect sales tax on the Supplier’s behalf and remit directly to the Supplier.
d. Returns, Refunds and Exchanges. In the case of missing, incorrect or unfulfilled Products, we will facilitate a return, exchange or refund with the Supplier as appropriate under the circumstances. It is your responsibility to contact us in the event this occurs.
8. WARRANTY DISCLAIMER
THE PEPPER SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” OTHER THAN AS EXPRESSLY SET OUT IN THESE TERMS, WE DO NOT MAKE ANY SPECIFIC PROMISES ABOUT ANY ASPECT OF THE PEPPER SERVICES (INCLUDING ABOUT ANY PARTICULAR SUPPLIER OR USER OR ANY GOODS MADE AVAILABLE OR SOLD, OR WITH RESPECT TO ANY DELIVERY FROM A SUPPLIER TO A USER) AND WHETHER ABOUT ITS SPECIFIC FUNCTIONALITY, RELIABILITY, QUALITY, AVAILABILITY OR ABILITY TO MEET YOUR SPECIFIC NEEDS OR OTHERWISE, OR THAT YOUR USE OF THE PEPPER SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTIES TO BE DISCLAIMED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
9. LIMITATION OF LIABILITY
WE WILL NOT BE RESPONSIBLE FOR LOST PROFITS, LOST REVENUES, LOSS OR CORRUPTION OF DATA, FINANCIAL LOSSES, OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES BY YOU OR ANY THIRD PARTY. OUR TOTAL LIABILITY FOR ANY CLAIMS UNDER THESE TERMS OR IN RELATION TO THE PEPPER SERVICES GENERALLY, INCLUDING FOR ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED, IS LIMITED TO THE GREATER OF US$100.00 AND THE AMOUNT YOU’VE PAID THROUGH THE PEPPER SERVICES IN THE PAST SIX (6) MONTHS. IN ALL CASES, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE. YOU HEREBY WAIVE ANY AND ALL CLAIMS FOR DAMAGES OR LIABILITY BEYOND THE LIMITATIONS AND EXCLUSIONS SET FORTH ABOVE, INCLUDING THOSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY AND/OR ANY OTHER GROUNDS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIMS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, OR FOR CERTAIN BEHAVIORS (SUCH AS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), SO SOME OF THE ABOVE PROVISIONS MAY NOT APPLY TO YOU IN ANY GIVEN SITUATION. THE PROVISIONS IN THIS SECTION APPLY TO THE MAXIMUM EXTENT ALLOWED BY LAW. THE FOREGOING LIMITATION ON INCIDENTAL OR CONSEQUENTIAL DAMAGES DOES NOT APPLY TO INDIVIDUAL PURCHASERS IN THE STATE OF NEW JERSEY WHO BUY, LEASE, BORROW OR BAIL PROPERTY OR SERVICES PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
You agree to indemnify and hold us harmless from any and all claims, actions, costs, damages, penalties, fines, demands, losses, liabilities and expenses (including attorneys' fees and court costs) arising out of or in connection with the following: (a) your use of the Pepper Services; (b) your breach or violation of these Terms; (c) your violation of applicable law; (d) any content you provide, including Your Information; or (e) your violation of the rights of any third party (including intellectual property rights, rights of privacy and other proprietary rights). We reserve the right to assume the exclusive defense of any of the foregoing, and you agree not to settle any claim without our prior written consent. You agree that the obligations in this Section will survive any termination of these Terms, your Account or your access to the Pepper Services generally. THE FOREGOING INDEMNIFICATION OBLIGATION DOES NOT APPLY TO INDIVIDUAL PURCHASERS IN THE STATE OF NEW JERSEY WHO BUY, LEASE, BORROW OR BAIL PROPERTY OR SERVICES PRIMARILY FOR PERSONAL, FAMILY OR HOUSEHOLD PURPOSES.
11. TEXT MESSAGES AND TELEPHONE CALLS
We, and those acting on our behalf, may contact you by telephone or text message (including through use of an automatic telephone dialing system) at the phone numbers you have provided to us. These messages may include operational messages about your use of the Pepper Services. You understand that you are not required to consent to communications as a condition of purchasing any property, goods or services. You may opt out of receiving telephone calls or text messages from us at any time by texting the word “STOP” in response to a text message received from us using the mobile device that is receiving the messages. You may continue to receive text messages for a short period while we process your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality of the Pepper Services. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
12. INTELLECTUAL PROPERTY
a. Our Limited License to You. Subject to these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-commercial, non-transferable license to access and use the Pepper Services solely for its intended purpose. Any rights not expressly granted herein are reserved by us and our licensors. The rights we are granting you are subject to, among other requirements, the Pepper Services requirements set forth in Section 6 above.
b. Our Ownership of the Pepper Services. Using the Pepper Services does not give you ownership of any intellectual property rights in it or to the content you access, and except for the limited license granted to you above and except with respect to Your Information (as defined below), all rights therein (including all intellectual property) belong exclusively to us or our licensors. Except with respect to Your Information, you may not use content from the Pepper Services without our prior written consent or as otherwise permitted by law. These Terms do not grant you the right to use any trademarks, branding or logos used in the Pepper Services or otherwise, including in any advertising or publicity or to imply our endorsement in any way, unless you have our prior written consent to do so. You may not obscure or alter any legal notices displayed in, along with or in connection with the Pepper Services.
c. Your Information. As between us and you, you own all information you make available for use in connection with the Pepper Services (“Your Information”). Subject to these Terms, you grant us a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute Your Information for the following purposes: (i) to provide, maintain and update the Pepper Services (including in connection with the promotion and marketing of the Pepper Services); (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by you.
Additionally, from time to time you may be able to submit content to us (such as if you participate in a user forum, share tips to the Pepper Services’s user community or comment on a blog post). You retain ownership of this content, but you represent and warrant that you have the right to provide it to us. When you do so, you are granting us and our affiliated and related entities a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute it as well as your name, voice and/or likeness if also submitted by you. This license continues even if you stop using the Pepper Services. If you submit feedback or suggestions about the Pepper Services, we may use your feedback or suggestions without obligation to you, and any content you submit in such instance is deemed non-confidential. You may not submit any defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive content, or content that constitutes “spam” or unsolicited advertising. We have the right, but not the obligation, to review, monitor or remove your content (including Your Information) at any time for any reason without notice to you.
13. THIRD PARTY SERVICES AND CONTENT
The Pepper Services may be made available or accessed in connection with services and content (including advertising) controlled by third parties with different terms of service and privacy policies. We do not endorse these third party services and content and we are not responsible or liable for any of their products or services. Additionally, Apple Inc. and/or Google, Inc. will be a third party beneficiary to these Terms if you access the Pepper Services using applications developed for Apple iOS or Android mobile devices, respectively. These third party beneficiaries are not parties to these Terms and are not responsible for the provision or support of the Pepper Services in any manner. Your access to the Pepper Services using these applications or devices is subject to their respective terms of service and privacy policies.
14. ACCESSING THE PEPPER SERVICES
Using the Pepper Services (whether from a mobile device or computer) will require various levels of data network access. It is your responsibility to obtain this access, subject to your mobile network's data and messaging rates and fees. You may need to acquire and update compatible hardware or devices to use and update the Pepper Services. We do not guarantee that the Pepper Services, or any portion of it, will function on any particular hardware or device. The Pepper Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications in general.
These Terms will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflicts of law provisions. You may not assign these Terms or any of your rights or obligations hereunder, whether in whole or in part, without our prior written approval. We may assign these Terms without your consent to a parent, affiliated or related entity or in the event of a sale of all or substantially all of our assets, stock or business, or to a successor by merger, reorganization or other corporate transaction. Any purported assignment in violation of the immediately preceding sentence is void. No joint venture, partnership, employment or agency relationship exists between you and us as a result of these Terms or your use of the Pepper Services. If any provision of these Terms is held to be invalid or unenforceable, that provision shall be enforced to the maximum extent permissible and the remaining provisions shall remain in full force and effect. Section headings are included solely for convenience or reference, and if there is any conflict between such headings and the text of these Terms, the text shall control. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless we acknowledge and agree to it in writing, and it is not a waiver of our right to do so later. Force majeure events may prevent us from providing various products or services or use of the Pepper Services generally, and we will have no liability under those circumstances. Please note that when we use the words “include” or “including” throughout these Terms, we mean “including, but not limited to” but do this for ease of reading. Provisions that by their nature are intended to survive the termination of these Terms or your use of the Pepper Services will survive. These Terms expressly supersede any prior agreements or arrangements we may have with you. We may terminate these Terms or your use of the Pepper Services, or generally cease offering or deny access to any portion of the Pepper Services, at any time in our sole discretion without notice. You may stop using the Pepper Services at any time, or terminate your Account at any time on written notice to us, subject to your payment of any amounts owed at the time of such termination. If we believe there has been a violation of these Terms, we have the right to investigate and notify law enforcement if we deem necessary. As part of any investigation, we cooperate with law enforcement and will take legal whatever action we deem appropriate under the circumstances.
16. CONTACTING US
If you have any questions about these Terms or the Pepper Services generally, please write to us at email@example.com or Pomegranate Technologies Inc. dba “Pepper”, 511 West 25th Street, Suite 4-105, New York, NY 10001.
17. RIGHT TO CONSULT AN ATTORNEY
You understand that you have the absolute right to consult an attorney concerning any aspect of these Terms before accepting them, and that, by acknowledging your acceptance of these Terms as provided for by the Pepper Services, you represent that you understand their requirements and agree to be bound by them.