Terms of Service – Misfits Market

Terms of Service

Terms of Service

Effective Date: July 20, 2020

 

Welcome to Misfits Market! 

Our mission is to bring delicious, fresh, and affordable food to people everywhere at a scale that creates positive and lasting impact. We operate the website www.misfitsmarket.com where users can purchase produce, packaged goods, other food items, merchandise, any other items we offer for sale, and all related services and promotions (collectively, “Products”). Products are made available through weekly or biweekly subscription boxes and optional add-ons to subscription boxes. We use the word “Website” in these Terms of Service to refer to any and all websites owned or operated by Misfits Market (including the websites currently located at www.misfitsmarket.com and http://blog.misfitsmarket.com) through which access to our Products are available. References to the "Website" include any and all related features, functionality, tools, and content. Our provision of the Website and sale and delivery of Products are collectively referred to herein as the “Services.” As used in these Terms of Service, the terms “Misfits Market,” “we” and “us” refer to Misfits Market, Inc.

Please read these Terms of Service, our Privacy Policy, and all other policies, terms, rules, and notices on our Website (collectively, the “Terms”) carefully, because they contain terms and conditions that impact your rights, obligations, and remedies in connection with your use of the Website and Products. As a condition to your access to or use of the Website and purchase of any Products, you consent to be bound by the Terms, so please do not use the Website or purchase Products if you do not agree with all of the Terms. Your use of the Website and purchase of any Products, and our provision thereof to you, constitutes an agreement between you and Misfits Market to be bound by each of the terms, guidelines, and rules incorporated into the Terms. Because the Terms are legally binding, we want to make sure you understand them, so if you have any questions, click here

THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND MISFITS MARKET RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR PURCHASE OF PRODUCTS WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW SECTION 17 (“DISPUTE RESOLUTION AND ARBITRATION”) FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH MISFITS MARKET.

It's really important that you read and understand these Terms, so to encourage you to read to the end, we've hidden one of our favorite recipes. :)

 

1. An Important Note About Food Safety and Allergens

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. We cannot currently accommodate any modification due to allergies, and thus do not guarantee that your order will be free from any allergens. You are solely responsible for knowing about and monitoring any food allergies you may have, and handling, preparing, using, and consuming any Products accordingly. We cannot guarantee that cross-contamination will not occur between Products.  

We attempt to display accurate images of the Products on the Website; however, we do not guarantee the accuracy of such materials and information. The appearance, color, size, condition, and other characteristics of each Product will vary from product to product. Images on the Website are examples only.

 

2. Amendment of The Terms

We regularly review the Terms to make sure they accurately reflect our business operations. As such, Misfits Market reserves the right to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”).  If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by email or another means. By continuing to use the Website after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. 

 

3. Modifications and Updates to the Websites and Product offerings

Misfits Market reserves the right, in its sole discretion, to modify or discontinue offering the Website and/or Products, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Website content at our sole discretion at any time without prior notice to you.

You agree that Misfits Market has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.

 

4. Your Account

a. Account registration. While the Website is publicly available, you must register for a user account before you are able to access certain areas of the Website or order Products or sign up for a subscription. You may register for an account directly via the Website.

You may not register for an account on behalf of any person (other than yourself). No person or entity may have more than one active account at any given time.

b. Account set-up. Your account and account profile page will be created based upon the information you provide to us. In order for us to provide you with the best service possible service, you agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.

When you create your account, you will be asked to create a password, which you will be solely responsible for safeguarding. We encourage you to use a strong password (passwords that use a combination of upper and lowercase letters, numbers, and symbols).  

You should not disclose your username or password to any third party, and you agree to immediately notify Misfits Market of any unauthorized use of your account. You will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions.

c. Account suspension and deactivation. We may, in our discretion, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Website at any time for any reason. We may do this if you create more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent.

We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. Any discount, referral, or coupon codes associated with such accounts will be deactivated.  We also reserve the right to cancel accounts of users who fail to comply with the Terms, including the terms and conditions regarding user conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.

If your account is deactivated or suspended, Misfits Market will have the right, but not the obligation to delete your information.

If Misfits Market has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Misfits Market’s reasonable satisfaction.

 

5. Subscriptions and Cancellation 

If you purchase a subscription, Misfits Market will automatically charge the credit card or payment account associated with your account on the billing dates listed under “Upcoming Orders” in the Manage Your Subscription section of your account page.  

You agree to pay the subscription fee at the rates and frequency in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect on the next billing date after we provide notice of the change.

When you register for a subscription, you expressly acknowledge and agree that (a) Misfits Market (or our third-party payment processor) is authorized to charge you on a weekly (or biweekly, as applicable) basis for your subscription (in addition to any applicable taxes and other charges) for the duration of your subscription, (b) the amount you are charged and the number and size of the Products you receive each delivery cycle may vary, and (c) your subscription is continuous until you cancel it or we suspend or stop providing access to the Website or Products in accordance with the Terms.  

You may cancel or pause your subscription up to 48 hours prior to your next billing date by clicking CANCEL SUBSCRIPTION or PAUSE SUBSCRIPTION in the Manage Your Subscription section of your account page or by clicking here to request a pause or cancellation of the subscription, in accordance with our Cancellation Policy.

 

6. Prices and Payment

a. Prices. You acknowledge that the amount billed may vary due to promotional offers, the particular Products in each delivery, changes you make to your subscription, or changes in applicable taxes or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. The shipment of Products to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription.  

b. Payment and credit cards. You are responsible for providing Misfits Market with valid credit card or payment account details and for the timely payment of all fees.  

Please note that the payment information, including name and contact information, that you submit when you register may be used and shared with our payment processing services provider and otherwise used in accordance with our Privacy Policy.

If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account.  Doing so may temporarily disrupt your access to your account while Misfits Market verifies your new payment information. Any change in the chosen payment method will go into effect for the next billing date. 

c. Default. If Misfits Market is unable to successfully charge your credit card or payment account for fees due, we reserve the right to restrict, suspend access to, or terminate your account. 

 

7. Products, Orders, and Refunds

A reference to a Product on the Website does not imply or guarantee that it is or will be available at the time of your order. 

We attempt to display images of the Products on the Website as accurately as possible. However, we do not guarantee the accuracy of such materials and information. The appearance, color, size, condition and other characteristics of each Product will vary from product to product. Images available on the Website are examples only.

All of our Products are subject to availability, and we reserve the right to impose quantity limits on any order, to reject all or part of an order, to discontinue offering certain Products and to substitute Products without prior notice. You can pause your subscription up to 48 hours prior to your next billing date, as explained above. You can request changes to your order up to 48 hours prior to your next billing date and Misfits Markets will attempt to honor those requests, but cannot guarantee that those requests will be honored. Unless Misfits Market agrees or states otherwise in writing, all fees and charges are nonrefundable. 

If you discover a quality issue regarding your order, please click here for more information. All orders of merchandise and other non-food items are non-refundable.

 

8. Shipping and Delivery

Check the FAQs page of the Website to see where we ship - we don’t yet ship to all 50 states but add new states frequently.

You agree to pay any shipping and handling charges shown at the time you make a purchase. All Products should be shipped to you personally and are not for resale or export.

You will have the opportunity to select a preferred delivery day, but note that the day is an estimate only, and that your actual delivery date may vary. Any person at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.

If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. You should plan for immediate and proper storage of your products upon delivery.

You are responsible for inspecting all Products for any damage or other issues upon delivery. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable products upon delivery and follow the United States Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here, and 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.   

 

9. Communicating With Us

We take your privacy very seriously, but the transmission of data over the Internet and mobile networks isn’t 100% secure. Emails and other messages you send to or receive from Misfits Market are not encrypted, which means that they’re vulnerable to interception by third parties. If you choose to send or receive financial information or any other sensitive information by email or other electronic means (such as a web form) or through our social media channels, you do so at your own risk. By emailing us, messaging us on social media, completing a web form, or requesting that we email you, you consent to receiving unencrypted email and other unencrypted messages from us. 

You agree that all notices, disclosures, agreements, and other communications that we provide to you electronically satisfy any legal requirement that such communication be in writing.

 

10. Information About the Website

a. License to use. Subject to your compliance with the Terms, Misfits Market grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Website as provided by Misfits Market, in the manner permitted by the Terms.

b. Service limitations. The Website is currently configured for use in the United States only and is not intended for use outside of the United States. If you choose to access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content. 

 

11. User Conduct Guidelines

Any time you access or use the Website, you are required to comply with our user conduct guidelines, as set forth below.

You agree that you will access and use the Website and Products for your personal use only. We only permit individuals who are at least 18 years old and can form legally binding contracts to use the Services. 

You are not authorized to access or use the Website to:

  • interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services.
  • take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our or our third party providers’ infrastructure.
  • resell or make any commercial use of the Services or any of the Service content.
  • modify, adapt, translate, reverse engineer, decompile, disassemble, or convert into human readable form any of the Service content not intended to be so read, including using or directly viewing the underlying HTML or other code from the Services except as interpreted and displayed in a web browser.
  • copy, imitate, mirror, reproduce, distribute, publish, download, display, perform, post, store, or transmit any of the Service content, including any Marks (as defined below), in any form or by any means, including electronic, mechanical, photocopying, recording or otherwise.
  • use any manual or automated software devices or other processes (including data mining, bots, spiders, automated tools or similar data gathering and extraction methods) to “crawl” or “spider” any page of the Services or to collect any information from the Services or any user of the Services.
  • harvest or scrape any content from the Services, or using other automated or manual means to take our content without our prior consent.
  • bypass, circumvent, or attempt to bypass or circumvent any feature of the Services or any measures we may use to prevent or restrict access to the Services, including other accounts, computer systems or networks connected to the Services.
  • probe, scan, or test the vulnerability of any system or network of Misfits or its providers, or breach or circumvent any security or authentication measures of such system or network
  • run any form of auto-responder or “spam” on the Services.
  • otherwise abuse the Website or breach the Terms; or
  • attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.

 

12. Intellectual property 

a. The Website. The Website and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries.  You acknowledge and agree that the Website, and all intellectual property rights therein are the exclusive property of Misfits Market and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website or Products.

Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Misfits Market (the “Marks”) are the property of Misfits Market, and that you are not permitted to use the Marks without our prior written consent.

You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Misfits Market or the intellectual property owner, as applicable.

This foregoing license is subject to modification or revocation at any time at Misfits Market’s sole discretion.

No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Misfits Market or its licensors, except for the licenses and rights expressly granted in the Terms.  All rights not expressly granted to you by the Terms are hereby reserved. 

b. Your feedback. We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website (“Feedback”).  You may submit Feedback by clicking here. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Misfits Market.  Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Misfits Market or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Misfits Market all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.

You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Misfits Market’s rights in such improvements, enhancements and modifications.

 

13. Copyright Policy

Just as we ask you to respect our intellectual property rights, we respect your rights and the rights of others, and we expect all our users to do the same. If we believe a user may be infringing upon someone’s intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person’s access rights.

If you believe someone has posted on the Website a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following information to our Designated Agent (whose contact information is below):

  • a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed
  • identification of works or materials being infringed
  • identification of the material that is claimed to be infringing, including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that we are capable of finding and verifying its existence
  • your contact information, including address, telephone number and, if available, e-mail address
  • a statement that you have a valid belief that the material is not authorized by the copyright owner, its agent, or the law
  • a statement made under penalty of perjury that the information provided is accurate and you are authorized to make the complaint on behalf of the copyright owner

Please contact the Designated Agent to receive notice of claimed infringement clicking here, or writing 500 Griffith Morgan Lane, Pennsauken Township, NJ 08110.

 

14. Third-Party Terms

The Website may also provide links to third-party websites, resources or services.  You acknowledge and agree that is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date.  Links to such websites, resources or services do not imply any endorsement by Misfits Market of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.

We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.

 

15. Warranties, Disclaimers, Limitation of Liability, and Indemnification

a. Disclaimers 

EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED.  TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, MISFITS MARKET EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT. 
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 ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. 
WE ATTEMPT TO DISPLAY IMAGES OF THE PRODUCTS ON THE WEBSITE AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. THE APPEARANCE, COLOR, SIZE, CONDITION AND OTHER CHARACTERISTICS OF EACH PRODUCT WILL VARY FROM PRODUCT TO PRODUCT. IMAGES AVAILABLE ON THE WEBSITE ARE EXAMPLES ONLY. 
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.

b. Limitation of liability

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES IS AND REMAINS WITH YOU AND YOU HEREBY RELEASE MISFITS MARKET AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING. 
WITHOUT LIMITING THE FOREGOING, MISFITS MARKET DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES. IN NO EVENT WILL MISFITS MARKET BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MISFITS MARKET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. 
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED.  SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY.  ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, MISFITS MARKET’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100). 
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 MISFITS MARKET FROM AND AGAINST, AND COVENANT NOT TO SUE MISFITS MARKET FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THE TERMS.

c. Indemnification

To the fullest extent permitted by applicable law, you agree to release, defend, indemnify, and hold Misfits Market its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Services, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your gross negligence or willful misconduct.

d. Obligation to defend

You agree that, at Misfits Market’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Misfits Market may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Misfits Market (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.

e. No implied indemnity

No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.

 

16. Governing Law

No matter where you’re located, the laws of the State of New York will govern the Terms and the relationship between you and Misfits Market as if you signed or otherwise agreed to the Terms in New York, without regard to New York’s conflicts of laws rules. If any provisions of the Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. If a lawsuit or court proceeding is permitted under the Terms, then the parties agree to submit to the federal or state courts in New York County, New York for exclusive jurisdiction for the purpose of litigating any dispute arising out of or related to your use of the Services or your breach of the Terms.

 

17. Dispute Resolution and Arbitration

a. Generally. You and Misfits Market agree that every dispute arising out of or in connection with the Terms or your use of the Services will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Terms or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MISFITS MARKET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

b. Exceptions. Despite the provisions of Section 17(a) nothing in the Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

c. Arbitrator. Any arbitration between you and Misfits Market will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Misfits Market. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

d. Notice; process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Misfits Market's address for Notice is: 500 Griffith Morgan Lane, Pennsauken Township, NJ 08110, Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Misfits Market may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Misfits Market must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, we will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Misfits Market in settlement of the dispute prior to the arbitrator’s award; or (iii) $1,000.

e. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Misfits Market for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

f. No class actions. YOU AND MISFITS MARKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Misfits Market agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.

g. Modifications to this arbitration provision. If we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice to our address for Notice within 30 days of the change, in which case your account with Misfits Market will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.

h. Cause of action. You agree that any cause of action arising out of or related to the products must be commenced by you within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.

i. Enforceability. If Section 17(f) is found to be unenforceable or if the entirety of this Section 17(f) is found to be unenforceable, then the entirety of this Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 16 will govern any action arising out of or related to these Terms.

 

18. Privacy

Our collection and use of information about Users is governed by our Privacy Policy.  Be sure to read through it so you understand how we collect and use your information. 

 

19. California Residents

Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:

Complaints regarding the Services or requests to receive further information regarding use of the Services may be submitted by clicking here.

The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210.  Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.

 

20. Miscellaneous

The Terms constitute the entire and exclusive understanding and agreement between you and Misfits Market regarding your access to and use of the Products and the Website, and supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between you and Misfits Market and regarding the subject matter hereof. 

You cannot assign, transfer or sublicense the Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without your consent. 

Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns. 

Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms. 

Our failure to exercise any right or enforce any obligation under the Terms or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach.  No waiver granted in any instance shall constitute a waiver in any other instance.

Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.

Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.

The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof. 

Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.

 

21. Beet Dip Recipe

Congratulations! You’re almost at the end of our Terms. As a reward, you’ve unlocked a Misfits Market must-try recipe in the form of a creamy, earthy beet dip. 

First, you’ll need:

  • 2 large beets (about 1 pound)
  • 1/2 cup walnuts
  • 1/2 cup feta cheese
  • 1/2 cup sour cream
  • 1 clove garlic, peeled
  • 1/4 tsp kosher salt
  • Veggies or pita chips, for serving
  1. Preheat your oven to 400 degrees. Scrub the beets of any dirt and slice off the greens (but save for salad or pesto!). Wrap the beets in aluminum foil, place on a sheet pan, and roast for 45 minutes until tender—a knife should easily pierce them. Let cool.
  2. Meanwhile, toast the walnuts in a skillet over medium heat until fragrant, tossing often so they don’t burn, about 5 minutes.
  3. Rub off the beet skins with the help of a paper towel. Then, cut into 1-inch cubes.
  4. Put the beets, walnuts, feta, sour cream, garlic, and salt in the bowl of a food processor. Process until smooth.
  5. Taste and adjust seasoning as needed. Enjoy with fresh veggies like sliced cucumbers and carrot sticks, or pita chips. 

Serve immediately and enjoy! 

Now, back to the Terms.

 

22. Contact Us

If you have any questions or concerns, please contact Misfits Market by clicking here.

You can also write to us at:

Misfits Market

500 Griffith Morgan Lane

Pennsauken Township, NJ 08110