Terms and Conditions
Last Updated: May 15, 2018
Welcome to mommagourmet.com (the “site”). Please read the following terms and conditions carefully before using any aspect of the site.
The site is an internet property of Momma Gourmet Inc. (“Momma Gourmet,” "we," “our” or "us"). Each end-user visitor to the site agrees to the following Momma Gourmet terms and conditions (“terms and conditions”), in their entirety, when she/he:
- accesses or uses the site;
- accesses and/or views any of the video, audio, stories, text, photographs, graphics, artwork and/or other content featured on the site (collectively, “content”);
- signs up to receive the Momma Gourmet food delivery service, which includes processing and delivery of orders (the “Momma Gourmet service");
- accesses links to Momma Gourmet’s social media pages/accounts on third party social media websites, such as Facebook®, Instagram®, Pinterest®, Twitter® and Youtube® (collectively, “Social Media Pages”);
- enters one of the sweepstakes, contests and/or promotions offered by Momma Gourmet from time-to-time (“promotions”); and/or
If you have any questions about the Agreement or the Site please access our Frequently Asked Questions or Email us at email@example.com.
We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that:
-any amendment or modification to the provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and
-any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification.
-The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Momma Gourmet Offerings. By your continued use of any of the Momma Gourmet Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).
These Terms are important and affect your legal rights, so please read them carefully. Note that Section 18 of these Terms contains a mandatory arbitration provision that requires the use of arbitration on an individual basis and limits the remedies available to you in the event of certain disputes.
By accessing or using the websites, mobile applications or blogs (collectively, the “Sites”) provided by Momma Gourmet, Inc. or our subsidiaries or other affiliates (collectively, “Momma Gourmet,” “we,” “us” or “our”) that link to these Terms, you agree to be bound by these Terms and all of the terms incorporated herein by reference. If you do not agree to these Terms, you may not access or use the Sites or order, receive or use the meal ingredients or other products made available through the Sites (collectively, the “Products”).
These Terms do not alter in any way the terms or conditions of any other agreement you may have with us in respect of any products, services or otherwise. If you are using the Sites on behalf of any person or entity, you represent and warrant that you are authorized to accept these Terms on such person or entity’s behalf and that such person or entity agrees to be responsible to us if you or such person or entity violates these Terms.
Momma Gourmet reserves the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through the Sites or updating the “Last Updated” date at the beginning of these Terms. By continuing to access or use the Sites or order, receive or use Products, you confirm your acceptance of the revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Sites or order, receive or use the Products. If you do not agree to the revised Terms, you may not access or use the Sites or order, receive or use the Products.
The Sites are not targeted toward or intended for use by anyone under the age of 18. By using the Sites, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Sites, or engaged in any activity that could result in suspension or removal from the Sites, (d) do not have more than one Momma Gourmet account, and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.
Registration, Account and Communication Preferences
In order to access and use certain areas or features of the Sites, you will need to register for a Momma Gourmet account. By creating an account, you agree to (a) provide accurate, current and complete account information, (b) maintain and promptly update, as necessary, your account information, (c) maintain the security of your account credentials, (d) be responsible for the acts or omissions of any third party who has authority to access or use the Sites on your behalf, and (e) immediately notify us if you discover or otherwise suspect any security breaches related to the Sites or your account.
By creating a Momma Gourmet account, you also consent to receive electronic communications from Momma Gourmet (e.g., via email or by posting notices to the Sites). These communications may include notices about your account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.
4. Terms of Sale
4.1. Meal Subscriptions; Continuous Subscriptions; Cancellation Policy
Meal Subscriptions. We offer one subscription plan for our momma kits (each, a “Meal Subscription”). Subscriptions are on a weekly basis. For more information about our Meal Subscriptions, please visit the Pricing page on our website and our FAQs. Note that we do not currently deliver meal ingredients to every location. If you do not see your location listed on the areas we service, please Email us at firstname.lastname@example.org.
Continuous Subscriptions. WHEN YOU REGISTER FOR A MEAL SUBSCRIPTION, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) MOMMA GOURMET (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A WEEKLY BASIS FOR YOUR MEAL SUBSCRIPTION (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR MEAL SUBSCRIPTION CONTINUES, AND (B) YOUR MEAL SUBSCRIPTION IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SITES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. YOU MAY SKIP YOUR WEEKLY MEAL ORDER AS OFTEN AS YOU'D LIKE BY MANAGING YOUR DELIVERY SCHEDULE ON YOUR DELIVERY SCHEDULE PAGE.
Cancellation Policy. YOU MAY CANCEL YOUR MEAL SUBSCRIPTION AT ANY TIME BY CLICKING ON THE “CANCEL” LINK IN YOUR ACCOUNT SETTINGS (ON THE ACCOUNT INFORMATION PAGE) AND FOLLOWING THE STEPS FOR CANCELLATION OR EMAILING US AT KELLY@MOMMAGOURMET.COM AND WE WILL PROCESS YOUR CANCELLATION REQUEST. ANY MEAL ORDER(S) IDENTIFIED AS “ORDER PROCESSED” OR “SHIPPED” ON YOUR DELIVERY SCHEDULE PAGE, HAS BEEN PROCESSED AND CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY MEAL ORDER PROCESSED PRIOR TO THE CANCELLATION OF YOUR MEAL SUBSCRIPTION.
In the event you cancel your Meal Subscription, please note that we may still send you promotional communications about Momma Gourmet, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.
4.2. Product Substitutions and Limited Quantities
At times, Momma Gourmet may substitute meal ingredients due to market conditions outside of its control or product quality that is below Momma Gourmet’s standards. In cases of ingredient substitutions, any modifications to cooking instructions will be communicated to the customer.
At times, the availability or popularity of a particular food item may cause us to limit the number of items that an individual subscriber may order. Momma Gourmet reserves the right to impose these limits in its sole discretion. Momma Gourmet is not responsible for unavailability of product due to popular demand or market conditions outside of its control.
If you are not satisfied with a substitution, please contact us at email@example.com, as applicable.
4.3. Dietary Preferences and Restrictions
Momma Gourmet does not guarantee the accuracy of any nutritional information provided by it. Momma Gourmet will not be responsible for any loss or damage resulting from your reliance on nutritional information, nor for ensuring that whatever foods you purchase, prepare, and consume are in accordance with your respective dietary needs or restrictions. Momma Gourmet stores, portions, and packs meals containing all eight (8) major US allergens (milk, wheat, egg, soy, fish, shellfish, peanuts, and tree nuts). Although Momma Gourmet takes precautions to limit the potential for cross-contamination, cross-contamination may occur between food products, allowing meals to contain any or all of these allergens.
4.4. Free Trials
From time to time, to the extent legally permitted, Momma Gourmet may offer free trials of certain subscriptions for specified periods of time without payment. If Momma Gourmet offers you a free trial, the specific terms of your free trial will be provided in the marketing materials describing the particular trial or at registration. Free trials are limited to one (1) per household.
ONCE YOUR FREE TRIAL ENDS, MOMMA GOURMET (OR ITS THIRD PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING YOUR DESIGNATED PAYMENT METHOD ON A RECURRING BASIS FOR YOUR SUBSCRIPTION (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION CONTINUES, UNLESS YOU CANCEL YOUR SUBSCRIPTION PRIOR TO THE END OF YOUR FREE TRIAL. INSTRUCTIONS FOR CANCELING YOUR SUBSCRIPTION ARE DESCRIBED IN SECTIONS 4.1 AND 4.2 ABOVE. PLEASE NOTE THAT YOU WILL NOT RECEIVE A NOTICE FROM US THAT YOUR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF YOUR SUBSCRIPTION HAS BEGUN. WE RESERVE THE RIGHT TO MODIFY OR TERMINATE FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN OUR SOLE DISCRETION.
4.6. Payment and Billing Information
By providing a credit card or other payment method that we accept, you represent and warrant that you are authorized to use the designated payment method and that you authorize us (or our third party payment processor) to charge your payment method for the total amount of your subscription or other purchase (including any applicable taxes and other charges) (collectively, as applicable, an “Order”). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Order may be suspended or cancelled. You must resolve any problem we encounter in order to proceed with your Order. If you want to change or update the payment information associated with your Momma Gourmet account, you can do so at any time by logging into your account and editing your payment information.
You acknowledge that the amount billed may vary due to promotional offers, changes to your Meal Subscription, or changes in applicable taxes or other charges. You authorize Momma Gourmet (or its third party payment processor) to charge your payment method for the specified amount.
4.7. Pricing and Availability
All prices are shown in U.S. dollars and applicable taxes and other charges, if any, are included. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice; provided, however, that if we change the amounts or other charges associated with your Meal Subscription, we will provide advance notice of such changes in accordance with Section 3. We will not, however, be able to notify you of changes in any applicable taxes. The shipment of meal ingredients as applicable, to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription(s) in accordance with the cancellation policies set forth in Sections 4.1 as applicable.
You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. You should always inspect your delivery to confirm that the meal ingredients arrive in a cool, refrigerated condition. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. We recommend that you follow the USDA’s instructions on safe food handling, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here. We further recommend that as part of preparing the Momma Kit, you wash the produce thoroughly as the first step in preparing the recipe.
Our meal ingredients are packaged with insulated liners and cold packs. As such, the package will typically remain cold and fresh for several hours, but depending on the season and temperature in your geographic area at the time of delivery, advance planning by you should be made for proper storage of your meal ingredients prior to consumption. In certain areas, you may be able to provide additional delivery instructions when setting up your Momma Gourmet account, such as requesting that your delivery be left with a doorman or neighbor. To maintain the quality of food products, we strongly recommend that you immediately refrigerate all perishable items upon delivery.
If there is inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to our delivery schedule, which may cause us to suspend chosen delivery dates and times. If there will be a significant delay, a customer service representative may call or e-mail you to let you know the status of your delivery time. We will deliver your order as quickly as possible when the conditions permit. If your designated delivery location or day is inaccessible, we will contact you to determine the best alternate location and/or date.
If something is missing from your order, please Email us at firstname.lastname@example.org.
4.9 Returns, Replacements, and Refunds
If you are dissatisfied with a meal or meal ingredient for any reason, please contact us at email@example.com within four (4) days of the date you received the meal. Depending on the circumstances, we may, in our sole discretion, replace the meal or meal ingredient at our expense, provide you a full or partial refund of the purchase price for that meal or meal ingredient, or provide you with Credits for that meal or meal ingredient that will automatically be applied to future deliveries under your Meal Subscription.
We may require the return or photographic documentation of any meal or meal ingredient that you are dissatisfied with before we provide you a refund, replacement, or credit.
License to Access and Use Our Sites and Content
Unless otherwise indicated in writing by us, the Sites and all content and other materials contained therein, including, without limitation, the Momma Gourmet logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content (as defined in Section 11), other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Momma Gourmet or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.
You are hereby granted a limited, nonexclusive, nontransferable, non-sublicensable license to access and use the Sites and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Sites or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Sites or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Sites or Content, except as expressly permitted by us, and (f) use the Sites or Content other than for their intended purposes. Any use of the Sites or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright or other proprietary rights of Momma Gourmet or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time.
Notwithstanding anything to the contrary in these Terms, the Sites and Content may include software components provided by Momma Gourmet or a third party that are subject to separate license terms, in which case those license terms will govern such software components.
6. Repeat Infringer Policy; Copyright Complaints
In accordance with the Digital Millennium Copyright Act and other applicable laws, we have adopted a policy of limiting access to the Sites by, or terminating the accounts of, users, in appropriate circumstances and in our sole discretion, who infringe the intellectual property rights of others. If you believe that anything on the Sites infringes any copyright that you own or control, you may file a notification of such infringement with our designated agent as set forth below:
Name of Designated Agent: Gianna Scatchell
Address: Momma Gourmet, Inc., 360 W Hubbard Street, #1404 Chicago, Illinois 60654
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. You should also note that if you knowingly make any material misrepresentation in your notification that the material or activity is infringing, you will be liable for any damages, including, without limitation, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
“Momma Gourmet,” the Momma Gourmet logo and any other Momma Gourmet Product or service names, logos or slogans that may appear on the Sites or Products are trademarks of Momma Gourmet and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “Momma Gourmet” or any other name, trademark or Product or service name of Momma Gourmet without our prior written permission. In addition, the look and feel of the Sites and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Momma Gourmet and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Sites or Products are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship or recommendation by Momma Gourmet.
You are granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Sites for noncommercial purposes, provided that such link does not portray Momma Gourmet or any of our Products in a false, misleading, derogatory or otherwise defamatory manner, and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use a Momma Gourmet logo or other proprietary graphic of Momma Gourmet to link to the Sites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any Momma Gourmet trademark, logo or other proprietary information, including the images found on the Sites or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Sites without our express written consent.
Momma Gourmet makes no claim or representation regarding the quality, content, nature or reliability of third party websites accessible by hyperlink from the Sites or of websites linking to the Sites. Such sites are not under our control and we provide these links to you only as a convenience. The inclusion of any link does not imply our affiliation, endorsement or adoption of any site or any information contained therein. When you leave the Sites, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from the Sites.
Third Party Content
We may display content, advertisements and promotions from third parties through the Sites or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse or adopt any Third Party Content, and we make no representations or warranties of any kind regarding such Third Party Content, including, without limitation, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties.
The Sites may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items or other materials (collectively, “User Content”). In the event you decide to share your User Content with others through the Sites or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Sites.
By using the interactive features and areas of the Sites, you further agree not to create, post, share or store any of the following:
- User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, fraudulent or otherwise objectionable;
- User Content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability or violate any local, state, national or international law;
- User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
- User Content that contains or depicts any statements, remarks or claims that do not reflect your honest views and experiences;
- User Content that impersonates, or misrepresents your affiliation with, any person or entity;
- User Content that references or depicts Momma Gourmet or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Momma Gourmet employee or paid blogger);
- User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
- User Content that contains any private or personal information of a third party without such third party’s consent;
- User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
- User Content that contains any viruses, corrupted data or other harmful, disruptive or destructive files or content; or
- User Content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Sites or Products, or that may expose Momma Gourmet or others to any harm or liability of any type.
Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Sites at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Sites at your sole cost and expense.
11. Rights in User Content
We do not claim any ownership interest in your User Content. However, by uploading, posting, tagging, or submitting User Content to the Sites or to our pages or feeds on third party social media platforms (e.g., Momma Gourmet’s Facebook page, Instagram page, Pinterest, or Twitter feed), you hereby grant Momma Gourmet a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.
By uploading, posting or submitting User Content to Momma Gourmet through the Sites or through our pages or feeds on third-party social media platforms, you represent and warrant that (a) such User Content is not confidential, (b) you own and control all of the rights to the User Content to post such User Content, (c) you authorize Momma Gourmet to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
Separate and apart from User Content, you can submit questions, comments, suggestions, ideas, original or creative materials or other information about Momma Gourmet, the Sites or the Products (collectively, “Feedback”). Feedback is not confidential and shall become the sole property of Momma Gourmet. Momma Gourmet shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Momma Gourmet, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Momma Gourmet Parties”), from and against all actual or alleged Momma Gourmet Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses and costs of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) any use or misuse of the Sites, Content or Products by you or any third party you authorize to access or use such Sites, Content or Products, (b) any User Content you create, post, share or store on or through the Sites or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, and (e) your violation of the rights of another. You agree to promptly notify Momma Gourmet of any third party Claims, cooperate with the Momma Gourmet Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). You further agree that the Momma Gourmet Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Momma Gourmet.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM MOMMA GOURMET. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU OR YOUR CHILD MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREE NUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR ON OUR SITES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, MARKET FORCES BEYOND MOMMA GOURMET’S CONTROL, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SITES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. MOMMA GOURMET DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SITES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SITES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS.
REFERENCE TO ANY PRODUCTS, SERVICES, PROCESSES OR OTHER INFORMATION BY TRADE NAME, TRADEMARK, MANUFACTURER, SUPPLIER, VENDOR OR OTHERWISE DOES NOT CONSTITUTE OR IMPLY ENDORSEMENT, SPONSORSHIP OR RECOMMENDATION THEREOF, OR ANY AFFILIATION THEREWITH, BY US.
- Limitations of Liability
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL MOMMA GOURMET PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SITES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY MOMMA GOURMET PARTY, OR FROM EVENTS BEYOND THE MOMMA GOURMET PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE MOMMA GOURMET PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE MOMMA GOURMET PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE MOMMA GOURMET MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF MEAL INGREDIENTS, OR ACCESS OR USE OF THE SITES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE MOMMA GOURMET PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE MOMMA GOURMET PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH MOMMA GOURMET PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Modifications to the Sites and Products
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Sites (or any features or parts thereof) or the provision of the Products at any time.
17. Dispute Resolution; Arbitration
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH MOMMA GOURMET AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and Momma Gourmet agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within forty-five (45) days after the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Momma Gourmet shall be sent by certified mail or courier to Momma Gourmet, Inc., Attn: General Counsel, Law Offices of Gianna Scatchell 360 W Hubbard Street 1404 Chicago, Illinois 60654. Your notice must include (a) your name, postal address, telephone number, the email address you use or used for your Momma Gourmet account and, if different, an email address at which you can be contacted, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. Our notice to you will be sent electronically in accordance with Section 3 and will include (x) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (y) a description in reasonable detail of the nature or basis of the Dispute, and (z) the specific relief that we are seeking. If you and Momma Gourmet cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Momma Gourmet may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding or, to the extent specifically provided for in Section 18.1, file a claim in court.
17.1 Binding Arbitration
Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 10 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Momma Gourmet agree (a) to waive your and Momma Gourmet’s respective rights to have any and all Disputes arising from or related to these Terms, or the Sites, Content or Products, resolved in a court, and (b) to waive your and Momma Gourmet’s respective rights to a jury trial. Instead, you and Momma Gourmet agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
17.2 No Class Arbitrations, Class Actions or Representative Actions
You and Momma Gourmet agree that any Dispute arising out of or related to these Terms or the Sites, Content or Products is personal to you and Momma Gourmet and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Momma Gourmet agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Momma Gourmet agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.
17.3 Federal Arbitration Act
You and Momma Gourmet agree that these Terms affect interstate commerce and that the enforceability of this Section 18 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
EXCEPT FOR DISPUTES ARISING OUT OF OR RELATED TO A VIOLATION OF SECTION 10 OR DISPUTES IN WHICH EITHER PARTY SEEKS TO BRING AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT OR SEEKS INJUNCTIVE OR OTHER EQUITABLE RELIEF FOR THE ALLEGED UNLAWFUL USE OF INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, COPYRIGHTS, TRADEMARKS, TRADE NAMES, LOGOS, TRADE SECRETS OR PATENTS, YOU AND MOMMA GOURMET AGREE THAT ANY DISPUTE MUST BE COMMENCED OR FILED BY YOU OR MOMMA GOURMET WITHIN ONE (1) YEAR OF THE DATE THE DISPUTE AROSE, OTHERWISE THE UNDERLYING CLAIM IS PERMANENTLY BARRED (WHICH MEANS THAT YOU AND MOMMA GOURMET WILL NO LONGER HAVE THE RIGHT TO ASSERT SUCH CLAIM REGARDING THE DISPUTE). You and Momma Gourmet agree that (a) any arbitration will occur in the State of Illinois, County of Illinois, County of Cook, (b) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and Mediation Services (“JAMS”), which are hereby incorporated by reference, and (c) that the state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois, County of Illinois, County of Cook, have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
17.5 Authority of Arbitrator
As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (a) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (b) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
If any term, clause or provision is declared invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 17 will remain valid and enforceable. The waivers set forth in this agreement are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
17.7 Opt-Out Right
You have the right to opt out of binding arbitration within forty-five (45) days of the date you first accepted the terms of this Section by writing to: Momma Gourmet, Inc., Attn: Gianna Scatchell Momma Gourmet, Inc., 360 W Hubbard Street 1404 Chicago, Illinois 60654. In order to be effective, the opt out notice must include your full name and clearly indicate your intent to opt out of binding arbitration.
18. Governing Law and Venue
These Terms, your access to and use of the Sites, and your order, receipt and use of the Products shall be governed by and construed and enforced in accordance with the laws of the State of Illinois, without regard to conflict of law rules or principles (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Illinois and the United States, respectively, sitting in the State of Illinois, County of Illinois, County of Cook.
These Terms are effective upon your acceptance as set forth herein and shall continue in full force and effect until terminated. Momma Gourmet may amend, suspend, or terminate the Terms, the Momma Gourmet Service, or remove or disable access to any portion of the Momma Gourmet Service at any time for any reason with or without notice to you.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
These Terms constitute the entire agreement between you and Momma Gourmet relating to your access to and use of the Sites and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Momma Gourmet. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Momma Gourmet’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
Third-Party Beneficiaries. The provisions of the Agreement are for the benefit of Momma Gourmet Parties, and each shall have the right to assert and enforce the provisions directly on their own behalf. The Agreement and all obligations and restrictions placed upon you or your permitted users by the Agreement shall survive termination of the Agreement and your Momma Gourmet Service account.
The following sections will survive the expiration or termination of these Terms and the termination of your Momma Gourmet account: all defined terms and Sections 1 through 21.