Lush, Inc. (“Farmstead", “we”, “us” and “our”) welcomes and invites you to our online website (including all content and functionality available through the http://www.farmsteadapp.com/ domain name, the "Site"). We provide you (the terms “you”, “your”, and “yours” refers to any and all users of the Site and Services (the “User”)) with access to the Site, related data, Farmstead’s proprietary software, and content and related documentation and information in connection with the ordering and delivery of fresh, locally sourced milk, eggs, bread and yogurt services provided by Farmstead (collectively the “Services”) subject to the terms of this Terms of Service agreement (the “Agreement”).
1. Proprietary Rights; Grant of Limited License.
1.1 Proprietary Rights. The entire contents displayed on the Site (the “Content”) have copyrighted protection as a collective work under the laws of the United States and other copyright laws. Farmstead is the sole exclusive owner of the Content. There may be collective work that is the property of other third parties and such collective work is also protected by copyright and other intellectual property laws. You are allowed to display and, subject to any expressly stated restrictions or limitations relating to specific material, download portions of the Content from the different areas of the Site only for non-commercial use, unless otherwise permitted. Any redistribution, retransmission or publication of any copyrighted material is strictly prohibited without the express written permission of the copyright owner. You may not change or delete any proprietary notices from materials downloaded from the Site. You agree not to use any Farmstead logo or any other proprietary graphic or trademark without Farmstead's express written consent. As between the parties, title, ownership rights, and intellectual property rights in the Content, and any copies or portions thereof, shall remain in Farmstead and/or its content providers. Third-party trademarks, service marks and logos contained in the Site are owned and licensed by their respective owners. Any and all rights not expressly granted herein are reserved.
1.2 Grant of Limited License. Your access to the Service is licensed and not sold. Subject to the terms of this Agreement, and upon providing us information to register your Account, Farmstead hereby grants you a revocable, non-exclusive, non-transferable account enabling you to access and use the Services and the Site. All the Content that is made available to view and/or download in connection with the Site is owned by and is the copyrighted work of Farmstead and/or its suppliers and is licensed, not sold. You do not have the right to lend, lease, rent or sublicense the Site and/or the Content. Your use of the Services (including the use of the materials that you download from the Site and along with any documentation, text, software, photos, video, graphics, and music, sound or other multimedia files that might accompany it (collectively, “Material”)) is governed by the terms of this Agreement. We reserve the right, without notice and in our sole discretion, to terminate your license to use the Site, and Services, and to block or prevent future access to and use of the Site and Services. You are not permitted, directly or indirectly, and the foregoing license grant does NOT include the right for you to (a) publish, publicly perform or display, or distribute to any third party any Materials, including reproduction on any computer network or broadcast or publications media; (b) market, sell or make commercial use of the Site or any Material; (c) systematically collect and use of any data or content including the use of any data spiders, robots, or similar data gathering, mining or extraction methods; (d) make derivative uses of the Site or the Material; or (e) use, frame or utilize framing techniques to enclose any portion of the Site (including the images found at this Site or any text or the layout/design of any page or form contained on a page).
2.1 Account. In order to use the Services, you will need to provide us with your phone number (your “Phone Number”) through the Site. Once we receive your Phone Number we will contact you via SMS (i.e. text message) and ask for the following information: (i) the item(s) of bread, eggs, milk and/or yogurt (each a “Product”) you wish to order (your “Order”); (ii) your email address; and (iii) your full name (collectively, your “Registration Information”). Upon receipt of your Registration Information, we will create your Account and send you a secure link to our third party payment processor Stripe Inc. (the “Processor” (please see Section 2.5 of this Agreement for more information on the Processor)) where you will enter in your credit card information (your “Credit Card”) and the address where you would like your Order delivered (your “Address”). You agree to: (A) provide true, accurate, current and complete information about (x) your Phone Number, (y) yourself when providing your Registration Information, and (z) your Credit Card and Address; (B) maintain and promptly update your Phone Number, Registration Information, Credit Card and Address to keep it true, accurate, current and complete; (C) review the prices (accessible at http://www.farmsteadapp.com/prices) (the “Fees”) to be charged for your use of the Services and the Products of your Order; and (D) authorize Farmstead and its Processor to charge your Credit Card for any and all Fees incurred by you for your use of the Services and any Order you place. If you provide any information that is untrue, inaccurate, not current or incomplete, or Farmstead has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account, cancel your Order and refuse any and all current or future use of the Services (or any portion thereof).
2.2 User Representations.
(a) You represent and warrant to Farmstead that you will (i) maintain the security of any user identification, password and other confidential information relating to your access to the Processor’s site; (ii) maintain the security, confidentiality and integrity of all messages and the content that you receive and/or transmit through the Service; (iii) maintain all charges resulting from any Order placed through and using your Phone Number, whether authorized by you or not, prior to you notifying Farmstead in writing of such unauthorized use and taking steps to prevent its further occurrence; (iv) comply with the terms set forth herein; and (v) comply with all applicable U.S. and international laws, statutes, ordinances, rules, regulations, contracts and applicable licenses regarding your use of the Services or Site.
(b) You represent and warrant that (i) you are over the age of eighteen (18) and have the power, authority or consent to enter into and perform your obligations under the Agreement; (ii) all information provided by you to us, including your Phone Number, Registration Information, Credit Card information, and Address is yours and is truthful, accurate and complete; (iii) you are authorized, or have the permission of the authorized signatory of the Credit Card provided to us, to pay any Fees incurred from use of the Services and/or your Orders; and (iv) you shall comply with all terms and conditions of this Agreement.
(c) You further warrant, represent and agree that you will not use the Site in a manner that (i) infringes the intellectual property rights or proprietary rights, or rights of publicity or privacy, of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) you should know is harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, fraudulent, deceptive, or misleading or otherwise objectionable; (iv) adversely affects or reflects negatively on Farmstead’s goodwill, name or reputation or causes duress, distress or discomfort to Farmstead or anyone else, or discourages any person, firm or enterprise from using all or any portion, feature, or function of the Site, or from advertising, liking or becoming a supplier to use in connection with the Site ; (v) send or result in the transmission or junk e-mail, chain letters, duplicative or unsolicited messages, or so-called “spamming”; (vi) transmit, distribute or upload programs or material that contain malicious code, such as viruses, timebombs, cancelbots, worms, trojan horse, spyware, or other potentially harmful programs or other material or information; (vii) falsely report to an employee or agent of Farmstead; (viii) circumvent, disable or otherwise interfere with security-related features of the Site or its features that prevent or restrict use or copying of any content; (ix) intercept or attempt to intercept communications of any kind not intended for you; and/or (x) causes the Site to be used for commercial or business purposes, including, without limitation, advertising, marketing, or offering goods or services, whether or not for financial or any other form of compensation or through linking with any other Site or web pages.
2.3 User’s Restrictions. You are not permitted, directly or indirectly, to (a) engage in any acts inconsistent with the principles of copyright protection and fair use, as codified in 17 U.S.C. Sections 106-110, without obtaining the express written consent of Farmstead and/or the copyright owner; (b) distribute, display, rent, lease, transfer or otherwise transfer rights to, or in any way exploit, the Content, in whole or in part; or (c) remove any proprietary notices or labels on the Content.
2.4 Use of the Services.
3. OPERATION. Farmstead reserves complete and sole discretion with respect to the operation of the Site. Farmstead may, among other things: (a) delete any private messages, if applicable, if it has not been accessed by a User within the time established by Farmstead policies; (b) subject to Section 1, make available to third parties information relating to the Users; and (c) withdraw, suspend or discontinue any functionality or feature of the Site.
4. CONTENT AND GENERAL DISCLAIMERS
4.1 General Disclaimer. THE SITE IS PROVIDED BY FARMSTEAD ON AN "AS IS" BASIS. FARMSTEAD MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SITE OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS INCLUDED ON THE SITE. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, FARMSTEAD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND WARRANTIES THAT ACCESS TO OR USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THESE TERMS. FARMSTEAD CANNOT AND DOES NOT WARRANT AGAINST HUMAN AND MACHINE ERRORS, OMISSIONS, DELAYS, INTERRUPTIONS OR LOSSES, INCLUDING LOSS OF DATA. FARMSTEAD CANNOT AND DOES NOT GUARANTEE OR WARRANT THAT FILES AVAILABLE FOR DOWNLOADING FROM THE SITE, IF ANY, WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFEST CONTAMINATING OR DESTRUCTIVE PROPERTIES. FARMSTEAD DOES NOT WARRANT OR GUARANTEE THAT THE FUNCTIONS OR SERVICE ACCESSED THROUGH THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SITE WILL BE CORRECTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THESE TERMS. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE, OR WITH ANY OF THESE TERMS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE. FARMSTEAD MAY CHANGE THE SERVICE OR THE FEATURES IN ANY WAY, AND AT ANY TIME AND FOR ANY REASON. ALTHOUGH FARMSTEAD HAS ATTEMPTED TO PROVIDE ACCURATE INFORMATION ON THE SITE, FARMSTEAD ASSUMES NO RESPONSIBILITY FOR THE ACCURACY OR COMPLETENESS OF THE INFORMATION.
4.2 Informational Purposes Only. Any opinions expressed on the Site or are the personal opinions of the original author and not of Farmstead, even though the original author may be employed by Farmstead. The Content is provided for informational and entertainment purposes only and is not an endorsement or representation by Farmstead or any other party. Farmstead does not assume any responsibility or liability for any opinion or other commentary posted on the Site (as applicable), or any third party website linked to the Site and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the Content.
4.3 Food Allergy Disclaimer. It is your responsibility to review our price list at http://www.farmsteadapp.com/prices and contact the maker, manufacturer or provider (the “Provider”) of each Product we deliver to determine if you have any food allergies. There is a possibility that Providers of the Products we delivery can change the formulation of a Product at any time, without notice. If you are concerned with food allergies, by using the Services, you hereby confirm that you are aware of this risk and it is your sole responsibility to contact the Provider regarding the ingredients in a Product and how the Product is prepared (e.g. contamination from other ingredients that are used in a Provider’s facility that prepares the Product). If you have any type of food allergy, you agree to refrain from ordering any Products.
4.4 Disclaimer of Third Party Information. You understand that when using the Site, you may be exposed to third party content from a variety of sources, and that Farmstead is not responsible for the accuracy, usefulness, safety, or intellectual property rights of or relating to such third party content. You further understand and acknowledge that you may be exposed to third party content that may be offensive, indecent, inaccurate, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against Farmstead with respect thereto.
5. INDEMNIFICATION. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS FARMSTEAD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INFORMATION PROVIDERS AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING REASONABLE ATTORNEY'S FEES, RESULTING FROM ANY VIOLATION OF THIS AGREEMENT, BREACH OF YOUR REPRESENTATIONS CONTAINED HEREIN, OR ANY ACTIVITY RELATED TO YOUR USE OF SERVICE (INCLUDING INFRINGEMENT OF THIRD PARTIES' WORLDWIDE INTELLECTUAL PROPERTY RIGHTS OR NEGLIGENT OR WRONGFUL CONDUCT).
6. WAIVER AND RELEASE. YOU AGREE THAT NEITHER FARMSTEAD NOR ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS SHALL HAVE ANY LIABILITY TO YOU UNDER ANY THEORY OF LIABILITY OR INDEMNITY IN CONNECTION WITH (A) YOUR USE OF THE SITE, THE SERVICE, OR THE CONTENT; (B) YOUR CONSUMPTION OR USE OF THE PRODUCTS; (C) THE USE OR CONSUMPTION BY OTHERS OF THE PRODUCTS IN YOUR ORDER; AND (D) ANY MISLABELING, MISREPRESENTATION OR INACCURATE INFORMATION PROVIDED BY A PROVIDER ON A PRODUCT (COLLECTIVELY, THE “RELEASED CLAIMS”). YOU SPECIFICALLY ACKNOWLEDGE THAT FARMSTEAD SHALL NOT BE LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND THAT THE RISK OF HARM OR DAMAGE FROM THE FOREGOING RESTS ENTIRELY WITH YOU. YOU HEREBY RELEASE AND FOREVER WAIVE ANY AND ALL CLAIMS YOU MAY HAVE AGAINST FARMSTEAD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS (INCLUDING BUT NOT LIMITED TO CLAIMS BASED UPON THE NEGLIGENCE OF FARMSTEAD, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS OR SUPPLIERS) FOR LOSSES OR DAMAGES YOU SUSTAIN IN CONNECTION WITH THE RELEASED CLAIMS.
7. LIABILITY LIMITATION.
7.1 NOTWITHSTANDING THE ANYTHING TO THE CONTRARY HEREIN, FARMSTEAD WILL NOT BE LIABLE UNDER ANY THEORY OF LAW, FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF INFORMATION OR DATA OR COSTS OF REPLACEMENT GOODS, ARISING OUT OF THE USE OR INABILITY TO USE THE SITE OR RESULTING FROM USE OF OR RELIANCE ON THE INFORMATION PRESENTED, EVEN IF FARMSTEAD MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SITE IS CONTROLLED AND OFFERED BY FARMSTEAD FROM ITS FACILITIES IN THE UNITED STATES OF AMERICA. FARMSTEAD MAKES NO REPRESENTATIONS THAT THE SITE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SITE FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
7.2 YOU AGREE THAT FARMSTEAD HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO THE RELEASED CLAIMS.
7.3 CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
8. COPYRIGHT OR INTELLECTUAL PROPERTY INFRINGEMENT NOTIFICATION. Farmstead respects the intellectual property rights of others. You can notify Farmstead of possible copyright infringement, and Farmstead will review all claims of copyright infringement received and remove content deemed to have been posted or distributed in violation of any such laws. To make a claim, please provide the following:
(a) A physical or an electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;
(b) A description of the copyrighted work or other intellectual property that you claim has been infringed;
(c) A description of where the material that you claim is infringing is located on the Site reasonably sufficient to permit Farmstead to locate the material;
(d) Your contact information, including your address, telephone number, and email;
(e) A statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
(f) A statement by you that the above information in your notice is accurate and that you, made under penalty of perjury, are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Contact the agent designated to receive and act on copyright violations under the Digital Millennium Copyright Act ("DMCA"). Claims can be directed to us at firstname.lastname@example.org or to Farmstead Inc., 1134 N Humboldt St, San Mateo, CA 94010.
9. TERM AND TERMINATION. Either you or Farmstead may terminate this Agreement at any time and for any reason. In addition, this Agreement will terminate immediately, without notice, if you fail to comply with the terms of this Agreement. Farmstead also reserves the right to terminate or suspend your Account and access to the Site and Services without prior notice. The provisions of Sections 1.1 (Proprietary Rights), 2.1 (Account), 2.2 (User Representations), 2.3 (User Restrictions), 4 (Content and General Disclaimers), 5 (Indemnification), 6 (Waiver and Release), 7 (Limitation of Liabilities), 9 (Term and Termination), and 12 (Miscellaneous) shall survive any termination of this Agreement.
11. Export Controls. You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not to export, or allow the export or re-export of the Material in violation of any such restrictions, laws or regulations. By downloading or using the Material, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any restricted country or on any such list.
12. MISCELLANEOUS. This Agreement shall be governed by and construed in accordance with the laws of the State of California. You agree that any legal action or proceeding between Farmstead and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a court of competent jurisdiction sitting in Santa Clara County, California, United States. Any cause of action or claim you may have with respect to Farmstead must be commenced within one (1) year after the claim or cause of action arises. Farmstead’s failure to insist upon or enforce strict performance of any provision of this Agreement shall not be construed as a waiver of any provision or right. No waiver of any term, provision or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or shall constitute, a waiver of any other term, provision or condition hereof, whether or not similar, nor shall such waiver constitute a continuing waiver of any such term, provision or condition hereof. No waiver shall be binding unless executed in writing by the party making the waiver. This Agreement constitutes the complete and exclusive statement of the agreement between the parties with respect to the Service and supersedes any and all prior or contemporaneous communications, representations, statements and understandings, whether oral or written, between the parties concerning the Service. If any action in law or in equity is necessary to enforce the terms of this Agreement, the prevailing party will be entitled to reasonable fees of attorneys, accountants, and other professionals, and costs and expenses in addition to any other relief to which such prevailing party may be entitled. The provisions of this Agreement are severable, and in the event any provision hereof is determined to be invalid or unenforceable, such invalidity or unenforceability shall not in any way affect the validity or enforceability of the remaining provisions hereof. No provisions of this Agreement are intended, nor will be interpreted, to provide or create any third party beneficiary rights or any other rights of any kind in any Nonprofit User, client, customer, affiliate, or any party hereto or any other person unless specifically provided otherwise herein, and except as so provided, all provisions hereof will be personal solely between the parties to this Agreement; except that Sections 5, 6, and 7 are intended to benefit Farmstead and its officers, directors, employees, agents, licensors, and suppliers. Farmstead may assign its rights and duties under this Agreement to any party at any time without notice to you.
13. NOTICE. Farmstead may deliver notice to you under this Agreement by means of electronic mail, a general notice on the Site or by text message to your Phone Number. You may give notice to Farmstead at any time via electronic mail to the Site at the following address email@example.com or by text message to (415) 329-7702
14. MODIFICATIONS. Farmstead may modify this Agreement at any time, and such modification shall be effective immediately upon either posting of the modified Agreement or notifying you. You agree to review this Agreement periodically to ensure that you are aware of any modifications and you agree that your continued access or use of the Site shall be deemed your conclusive acceptance of the modified Agreement.