TERMS AND CONDITIONS OF USE
Last Updated: November 24, 2020
1. ACCEPTANCE OF TERMS
These Terms apply to all users of the Services, including, without limitation, users who are browsers, vendors, customers, merchants, and/or contributors of content. If you access the Services on behalf of a company, organization, or entity, then: (a) the term “you” as used herein includes you and that company, organization, or entity; (b) you represent and warrant that you are authorized to grant all permissions and licenses provided in these Terms and to bind the company, organization, or entity to the terms of these Terms; and (c) you agree to the terms of these Terms on behalf of the company, organization, or entity.
2. CHANGES TO TERMS
2.1. Changes to Terms. You can review the most current version of the Terms at any time on this page. We reserve the right to update, remove, add to, or otherwise change or replace any part of these Terms by posting updates and/or changes here (www.theevergreenmarket.com/terms-of-use). It is your responsibility to check this page periodically for changes to the Terms. Your continued use of or access to the Services following the posting of any changes constitutes acceptance of any changes to the Terms.
2.2. Promotional Plans. We may also offer special promotional plans, memberships, or services on, through, or in connection with the Services, such as our loyalty and texting platform, that, unless otherwise indicated, constitute “Services” subject to these Terms, but which may be subject to additional or different terms and conditions from these Terms. We reserve the right to modify, terminate or otherwise amend our offered subscription plans and promotional offerings at any time in accordance with these Terms.
3. GENERAL CONDITIONS
3.1. The Services are intended for use only by persons who are at least 21 years of age who have the capacity to form a binding contract. By agreeing to these Terms, you represent that you are at least 21 years of age. You may not access or use the Services if you are under the age of 21.
3.2. Legal Compliance. You agree that you will not violate any laws in connection with your use of the Services. This includes any local, state, federal (other than violations of the Federal Controlled Substances Act, 21 U.S.C. 801 et seq., incident to the Services), and international laws that may apply to
you, including, but not limited to, the Washington Uniform Controlled Substances Act (Chapter 69.50 RCW) and rules and regulations promulgated by the Washington State Liquor and Cannabis Board (WAC 314-55 et seq.).
4.2. Managing Your Subscription. If you wish to unsubscribe from the Newsletter, please follow this unsubscribe process:
· Click the “Unsubscribe” link on the email.
· Confirm your email address.
· Click “Unsubscribe From All Mailings” to unsubscribe from all mailings, or click “Update My Details” to change the email address that is subscribed.
· You may reactivate your subscription at any time.
5. ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
5.1. Accuracy, Completeness, and Timeliness of Information. While we strive to ensure that the Services are up to date and accurate, we are not responsible if information made available on or through the Services is not accurate, complete or current. The material made available on or through the Services is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material made available on or through the Services is at your own risk.
5.2. Historical Information. The Services may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of Services at any time, but we have no obligation to update any information made available on or through the Services.
6. ACCESS TO AND USE OF THE SERVICES
6.1. Restrictions on Your Access to and Use of the Services. In connection with your access to or use of the Services, you are prohibited from:
· accessing data not intended for you or logging onto a server which you are not authorized to access;
· using any engine, software, tool, agent or other device or mechanism (including without limitation browsers, spiders, robots, avatars or intelligent agents) to access, navigate, or search the Services, other than generally available third-party web browsers (e.g., Mozilla Firefox, Google Chrome and Microsoft Explorer);
· using any device, software or routine to interfere or attempt to interfere with the proper working of the Services or any activity being conducted on or through the Services;
· attempting to probe, scan or test the vulnerability of an Evergreen Market system or network or to breach security or authentication measures;
· attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Services or through the Services, overloading, “flooding,” “spamming,” “mailbombing” or “crashing”;
· forging any TCP/IP packet header or any part of the header information in any email or newsgroup posting;
· copying, modifying, adapting, reproducing, reverse engineering, decompiling, disassembling, or preparing derivative works of our software or Evergreen Market Content, or any content that is not your own;
· distributing viruses, malicious code, malware or any other technologies that may harm the Services or any user of the Services;
· violating or circumventing any applicable laws or regulations, or any technical measures, security measures or policies of the Services;
· violating, infringing, or breaching the rights of Evergreen Market or a third-party, including, but not limited to, any copyrights, trademark rights, patent rights, trade secret rights, rights of publicity or personality, moral rights, or any other proprietary rights; or
· submitting to or through the Services any false, inaccurate, misleading, deceptive, defamatory, or libelous materials or content.
Violations of system or network security may result in civil or criminal liability. Evergreen Market may investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
7. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1. License Grant to You. We grant you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Services solely (i) for your personal, non-commercial, and transitory use; and (ii) in accordance with the terms of these Terms. All rights not expressly granted in these Terms are reserved by us.
7.2. User Content and License Grant to Us. When you transmit any information, content, materials or data to or through the Services (“User Content”), you are not forfeiting any ownership rights you may have in the User Content. However, by submitting User Content on or through the Services, you grant Evergreen Market and its affiliates a non-exclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, sell or participate in the sale of or exploit in any way, and display, in whole or in part, such User Content, including, but not limited to, throughout the world in any media, as necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly authorized by you. You represent and warrant that you own or have obtained all necessary rights and/or licenses to User Content that you
transmit, and that our use of such User Content as authorized under these Terms does not violate or infringe upon the rights of any person or entity. Evergreen Market will not be responsible for any loss, destruction, alteration or disclosure of your User Content. If you are a company, organization, or entity, you hereby grant Evergreen Market and its affiliates a non-exclusive, royalty-free, perpetual license to use your name, logo and/or trademark, without further notice, in connection with our promotional, sales, and marketing materials solely to identify you as our customer. Such marketing materials may include, but are not limited to, the Site homepage.
7.3. Ownership. The Services and all information, content, and materials offered on or through the Services, including, but not limited to, text, images, videos, illustrations, designs, icons, photographs, software, programs and written and other materials that are part of the Site or accessible through the Site, other than your User Content (collectively, “Evergreen Market Content”), is the property of Evergreen Market or its licensors. No right, title or interest in any Evergreen Market Content is transferred to you by way of these Terms or otherwise. You may not reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any of the Evergreen Market Content or the Services without our express written consent. The EVERGREEN MARKET trademark and the Evergreen Market logo are trademarks of Evergreen Market, Inc. The Site, the Evergreen Market Content, and the EVERGREEN MARKET and Evergreen Market logo trademarks are protected by copyright, trademark, and/or other intellectual property laws.
8. COPYRIGHT INFRINGEMENT (DIGITAL MILLENNIUM COPYRIGHT ACT)
8.1. Copyright. We respect the intellectual property of others. We strive to respond promptly to proper notices of copyright infringement by removing or disabling access to allegedly infringing material. It is our policy to terminate the access privileges of those who infringe the copyrights of others.
8.2. Submitting a Copyright Infringement Notification. If you believe that any material appears on the Services in a way that infringes the copyright in a work you own, please send a notification containing the following information to Evergreen Market’s Copyright Agent (identified below):
· an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
· a description of the work in which you hold a copyright interest which you believe is being infringed;
· a description of the location on the Services where the allegedly infringing material is located (preferably including a URL address);
· your address, telephone number, and email address;
· a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
· a statement by you, made under penalty of perjury, that the above information in your notification is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent can be reached at the following address:
Evergreen Market (North America), Inc.
Attn: Copyright Agent
4242 E Valley Rd
Renton, WA 98057
9. THIRD PARTIES; THIRD-PARTY CONTENT AND THE SERVICES
References on the Services or through the Services to any third parties or any products or services of such third parties, are provided solely as a convenience to you. We do not endorse, recommend, approve of, or make any representations or warranties regarding any third parties or their products or services. We are not responsible for the content of any third-party websites and do not make any representations regarding the content or accuracy of material on such websites. If you decide to follow a link to any third-party website, you do so entirely at your own risk. You understand that your information may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
10. DISCLAIMER OF WARRANTY
THE SERVICES ARE PROVIDED BY EVERGREEN MARKET ON AN “AS IS” AND “AS AVAILABLE” BASIS. EVERGREEN MARKET MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE SERVICES, OR INFORMATION, CONTENT, OR MATERIALS OFFERED ON OR THROUGH THE SERVICES. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, EVERGREEN MARKET DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. EVERGREEN MARKET DOES NOT WARRANT THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THIS DISCLAIMER CONSTITUTES AN ESSENTIAL PART OF THESE TERMS, AND YOU ACKNOWLEDGE THAT EVERGREEN MARKET WOULD NOT HAVE ENTERED INTO THESE TERMS WITH YOU WITHOUT YOUR AGREEMENT TO THE TERMS OF THIS DISCLAIMER.
11. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL OR EQUITABLE THEORY, WHETHER IN TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE, SHALL EVERGREEN MARKET, ITS AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY NATURE ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF EVERGREEN MARKET, ITS AFFILIATES, OR THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS, AND AGENTS HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. IN NO EVENT WILL EVERGREEN MARKET BE LIABLE FOR ANY CLAIM, LOSS OR DAMAGES IN EXCESS OF THE AMOUNTS PAID BY YOU (IF ANY) IN CONNECTION WITH YOUR USE OF THE
SERVICES DURING THE SIX-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.
CERTAIN JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR 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 MIGHT HAVE ADDITIONAL RIGHTS.
You agree to defend, indemnify and hold harmless Evergreen Market, its affiliates, and their respective employees, directors, officers and agents from and against any and all claims, damages, costs and expenses, including attorneys’ fees, arising from or related to your breach or alleged breach of these Terms, your improper use of the Services, or your breach of any applicable law or infringement of the rights of a third party. Evergreen Market shall have the right to participate in the defense of any such claim at its own cost. You may not settle or negotiate any claim that results in liability to, or imposes any obligation upon, Evergreen Market, financial or otherwise, without the written consent of Evergreen Market.
13. INFORMATION ABOUT YOU AND YOUR VISITS TO THE WEBSITE
14. LIMITATION ON TIME TO BRING CLAIMS
To help resolve any issues between us promptly, you agree to bring any claim arising out of or relating to these Terms, our relationship, or the use of the Services within one year after a claim arises; otherwise, the claim is waived. This limitation applies regardless of the venue in which such claim is or could otherwise be asserted.
These Terms shall remain in force and effect unless and until terminated by either you or us. We reserve the right to immediately suspend or terminate your current or future use of the Services, with or without notice or liability, at any time and in our sole discretion, for any business reason or if we determine or suspect that you have breached or threaten to breach these Terms, violated any law, rule, or regulation, or engaged in other inappropriate conduct. You may terminate these Terms at any time by providing written notice to us, via email to Marketing@TheEvergreenMarket.com. Upon termination of these Terms, you must immediately discontinue use of the Services. Even after your rights under these Terms are terminated, all provisions of these Terms that by their nature should survive, will survive, including, without limitation, ownership provisions, warranty disclaimers, indemnification obligations and limitations of liability.
16. MISCELLANEOUS TERMS
16.1. Consent to Electronic Communications. You consent to receive communications from us electronically. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email, or on the Services or through the Services, satisfy any legal requirement that such communications or agreements be in writing.
16.2. Assignment. You may not assign your rights under these Terms without the prior written permission of Evergreen Market and any attempt by you to do so shall be null and void. Evergreen Market may assign these Terms or delegate its rights or obligations hereunder in its sole discretion.
16.3. Waiver. The waiver of a breach of any provision of these Terms will not operate or be interpreted as a waiver of any other or subsequent breach.
16.4. Severability. If any provision of these Terms is held to be invalid or unenforceable for any reason, the remaining provisions will continue in full force without being impaired or invalidated in any way.
16.5. Relationship of the Parties; No Third-Party Beneficiaries. Evergreen Market and you are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between Evergreen Market and you. There are no third-party beneficiaries to these Terms.
16.6. Governing Law; Forum; Waiver of Jury Trial. These Terms will be construed in accordance with and governed exclusively by the laws of the State of Washington applicable to agreements made among Washington residents and to be performed wholly within such jurisdiction, regardless of the parties’ actual domiciles. Except as otherwise expressly set forth in Section 16.7 (“Dispute Resolution”), Evergreen Market and you consent to the exclusive jurisdiction and venue of the state and federal courts of King County, Washington, for any Disputes (defined below) that you and Evergreen Market are not required to arbitrate, and you and Evergreen Market each waive any objection to jurisdiction and venue in such courts. EACH PARTY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THESE TERMS AND YOUR USE OR NON-USE OF THE SERVICES.
16.7. Dispute Resolution.
(a) Mandatory Arbitration of Disputes. YOU AND EVERGREEN MARKET MUTUALLY AGREE THAT ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING IN ANY WAY TO THE ACCESS TO AND USE OF THE SERVICES, THESE TERMS, OR THE APPLICABILITY, BREACH, TERMINATION, VALIDITY, ENFORCEMENT OR INTERPRETATION THEREOF, WHETHER BASED IN CONTRACT, STATUTE, REGULATION, ORDINANCE, TORT (INCLUDING WITHOUT LIMITATION, FRAUD, MISREPRESENTATION, FRAUDULENT INDUCEMENT, OR NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY (COLLECTIVELY, “DISPUTE”) WILL BE RESOLVED SOLELY BY BINDING, INDIVIDUAL ARBITRATION AND NOT IN A CLASS, REPRESENTATIVE OR CONSOLIDATED ACTION OR PROCEEDING. You and Evergreen Market agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Evergreen Market are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
(b) Exceptions. As limited exceptions to Section 16.7(a) above: (i) you or Evergreen Market may seek to resolve a Dispute in small claims court if it qualifies; and (ii) Evergreen Market retains the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of Evergreen Market’s intellectual property rights.
(c) Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (the “AAA
Rules”) then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org.
If your claim is for U.S. $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic or video-conference hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds U.S. $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place in Seattle, Washington, and you waive any right to contest this jurisdiction by argument that the forum is inconvenient or otherwise. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
(d) Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules. Each party will bear its own attorneys’ fees and costs in any such arbitration and you agree not to seek to recover such costs in any such arbitration.
(e) Class Action Waiver. YOU AND EVERGREEN 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, if the parties’ dispute is resolved through arbitration, the arbitrator may not consolidate another person’s claims with your claims and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Section 16.7 shall be null and void.
(f) Severability. With the exception of any of the provisions in Section 16.7(e) of these Terms, if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.