Updated November 21, 2018
By using the producepeddlers.com web site (the “Website”) or establishing an account with Produce Peddlers, Inc. (“Produce Peddlers”, “we” or “us”) and using the Produce Peddlers service (the “Service”), you agree to the following terms and conditions (the “Produce Peddlers User Agreement”).
Importantly, although Produce Peddlers is an online marketplace, it is not a traditional “food retailer.” Instead, Produce Peddlers acts as a venue to match buyers and sellers. Produce Peddlers is not involved in the actual transaction between buyers and sellers and does not transfer legal ownership of goods from the sellers to buyers. As a result, Produce Peddlers has no control over, and bears no responsibility or liability in connection with: (a) the goods advertised, (b) the quality of the goods being bought or sold, (c) the timely delivery of the goods, (d) the ability of sellers to sell goods, or (e) the ability of buyers to pay for goods.
Acceptance of the Produce Peddlers User Agreement
This Produce Peddlers User Agreement, together with any documents incorporated herein by reference, govern your access to and use of the Website, including any content, functionality and services offered on or through the Website.
Please read the Produce Peddlers User Agreement carefully before you start to use the Website. By using the Website or by clicking to accept or agree to the Produce Peddlers User Agreement when this option is made available to you, you accept and agree to be bound and abide by the Produce Peddlers User Agreement and our Privacy Policy, incorporated herein by reference. If you do not want to agree to the Produce Peddlers User Agreement or the Privacy Policy, you must not access or use the Website.
Definitions
“Your Information” is defined as any information you provide to Produce Peddlers or other users when registering for the Service, in the listing process (which includes photographs and descriptions), or through any email feature. You are solely responsible for Your Information, and Produce Peddlers acts as a passive conduit for your online distribution and publication of Your Information.
“Your Activities” include, for example, listing goods, purchasing goods, and email.
Dispute Resolution
Produce Peddlers’ goal is to make you happy. In the event a dispute arises between you and Produce Peddlers, please email Produce Peddlers and we will work as promptly as practicable towards a solution. We encourage you to report all user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity.
General Overview: Terms
Furthermore, while Produce Peddlers discourages certain conduct and content on the Website, you acknowledge and agree the Website is a venue and as such is not responsible for the content posted on it. You agree to use the Website at your own risk.
General Overview: Conditions
Access to the Website is free, but available only to individuals who can form legally binding contracts under applicable law. This Website is offered and available to users who are 18 years of age or older, and reside in the United States. By using the Website, you represent and warrant that you are of legal age to form a binding contract with the Company and meet all of the foregoing eligibility requirements. The Produce Peddlers services are not available to users under the age of 18, or to temporarily or indefinitely suspended Produce Peddlers members. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of, your parents or guardians. If you do not meet all of these requirements, you must not access or use the Website.
An order is binding on the buyer and seller when submitted on the Website.
A buyer may either pick up any goods purchased through the Website from seller or arrange for delivery by Produce Peddlers. All pickups and deliveries must be completed within the timeframe selected by the buyer on the Website; provided, however, that Produce Peddlers shall not be liable for the failure of a buyer to make any pickup or for our failure to make any deliveries within such timeframe or at all. All goods will be delivered to the buyer’s address specified in the order.
Except as provided in Section IV, below, a buyer is obligated to immediately pay in full at the time of buyer’s order or at the time of buyer’s pickup or Produce Peddler’s delivery, as applicable. You may elect to pay by credit card on the Website or in cash at the time of pick up or delivery. We use third-party payment processors (each, a “Payment Processor”) to process your payments linked to the transactions on your account on the Website (your “Payment Account”). The processing of payments will be subject to the terms, conditions and privacy policies of such Payment Processor in addition to this User Agreement. We are not responsible for error by the Payment Processor.
Seller bears all risk of loss or damage to the goods until pick up of the goods by buyer or delivery of the goods by Produce Peddlers to the buyer, at which time, title and risk of loss passes to the buyer. In no event with Produce Peddlers be liable for any damage or loss to any goods that it delivers.
Produce Peddlers may, at Produce Peddlers’ sole discretion, change some or all of Produce Peddlers’ services at any time.
A seller must abide by all of Produce Peddlers’ policies, as well as the seller’s own individual policies, and sell the item as described in the applicable listing on the Website. Likewise, a seller must abide by the seller’s own individual policies when dealing with other issues related to the purchased goods such, for example, issues of damage and returns.
Buyer’s remorse is not a valid reason for requesting a refund from a seller. Prior to making a purchase, buyers should review all seller’s policies regarding refunds, returns, and other seller policies. Buyer acknowledges and agrees that Produce Peddlers has no liability: (a) for any refunds due or requested from any seller, or (b) under any seller policies.
If a buyer is a school district or other institution determined by Produce Peddlers to be eligible for extended payment terms, such buyer(s) shall pay within the period of time, and on such other terms and conditions, as specified by Produce Peddlers, either on the Website or pursuant to a separate written agreement or invoice/purchase order with such buyer (the “Invoice/purchase order”). The buyer agrees to make payment as and within the timeframe provided on the Website or the applicable Invoice/purchase order.
The buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Produce Peddlers for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
In addition to all other remedies available under this User Agreement or at law (which Produce Peddlers does not waive by the exercise of any rights hereunder), Produce Peddlers shall be entitled to suspend the delivery of any goods if buyer fails to pay any amounts when due hereunder.
You shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Produce Peddlers, whether relating to Produce Peddler’s breach, bankruptcy or otherwise.
Produce Peddlers’ Fee Policy. The price of the goods is the price stated on the Website at the time of order, which includes a fee payable to Produce Peddlers. Produce Peddlers reserves the right to change the price of goods and the fee it charges at any time and from time to time without notice or liability. Unless otherwise stated, all fees are quoted in U.S. Dollars (USD). You are responsible for paying all fees associated with using Produce Peddlers’ services, including applicable taxes.
Listing Description: You must be legally able to sell the item(s) you list for sale on the Website. You must describe your item and all terms of sale on the listing page of the Site. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All listed goods must be listed in an appropriate category. Each listing must accurately and completely describe the items/goods for sale in that listing (including, without limitation, the SKU number associated with the item/goods, the lot number associated with the item/goods, and where the item/goods came from). Each unique item must have its own listing. Listings may not contain outbound link(s) or other information that direct users off of Produce Peddlers.
Binding Sale: All sales are binding. If you, as a seller, receive a purchase request (order) you are obligated to complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of your listing (such as payment method and pick-up deadline), or (b) you cannot authenticate the buyer’s identity.
Termination: Without limiting any other remedies, Produce Peddlers may, without notice, suspend or terminate your account if Produce Peddlers suspects, in its sole discretion, that you (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) have violated any of Produce Peddlers’ policies set out in this Produce Peddlers User Agreement, the Privacy Policy, or any other policy documents or community guidelines, or you have engaged in an improper or fraudulent activity in connection with Produce Peddlers. If Produce Peddlers terminates a listing or your account, if you close your account, or if the payment of your seller fees cannot be completed for any reason, you remain obligated to pay Produce Peddlers for all unpaid fees or costs, plus any penalties, as determined by Produce Peddlers in its sole discretion.
If your account is not paid in full and becomes past due, Produce Peddlers reserves the right to attempt to collect past due fees or costs, plus any penalties, by charging your credit card on file. You risk additional penalties such as the suspension of privileges and/or termination of your account and other collection mechanisms (including retaining collection agencies and legal counsel, the fees and expenses for which you are liable). If you have a question or wish to dispute a charge, please contact Produce Peddlers support.
Manipulation: The price stated in each Produce Peddlers item description must be an accurate representation of the sale. Neither buyer nor seller, may manipulate the price of any item for any reason. Manipulation refers to activities whereby the price no longer accurately represents the monetary value of the transaction. Seller may not engage in manipulative activities including by way of example, but are not limited to, intentionally stating one price in the item description but charging a higher price to the buyer, altering the item’s price prior to a sale for the purpose of avoiding Produce Peddlers’ transaction fees, and accessing another’s account and altering prices.
Third Party Content; Identity Verification: You understand that Produce Peddlers acts only as a marketing platform and technical interface between users and that Produce Peddlers does not itself verify the qualifications or identities of users, nor does it evaluate or control in any ongoing manner exchanges between users. Any opinions or statements expressed by a user are of those of the user alone, and are not to be attributed to Produce Peddlers. Produce Peddlers cannot and does not assume responsibility for the accuracy, completeness, safety, reliability, timeliness, innocuousness, legality or applicability of anything said, written, posted, displayed or otherwise made available by any user.
You understand that you may be exposed to content that you find offensive to you, and that you use the Produce Peddlers at your own risk.
Please use caution, common sense, and practice safe trading when using Produce Peddlers. Please note that there are also risks of dealing with underage persons or people acting under false pretense. By using Produce Peddlers, you agree to accept such risks and that Produce Peddlers (and our officers, managers, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Produce Peddlers.
Because user verification on the Internet is difficult, Produce Peddlers cannot and does not confirm each user’s purported identity. Produce Peddlers shall not be liable for any property damage, bodily harm or otherwise in connection with transactions on its Website.
Prohibited, Questionable and Infringing Usage; Restricted Activities: Your Activities which results in Your Information (or any goods listed) on Produce Peddlers shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of illegal, counterfeit, stolen goods or goods which violate the Produce Peddlers User Agreement in any way; (c) infringe upon any third party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); Produce Peddlers also does not permit the listing of goods that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall; (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) contain any viruses, Trojan horses, worms, time bombs, cancelbots, easter eggs or other computer programming routines or code that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (g) create liability for us or cause us to lose (in whole or in part) the services of our suppliers; and (h) link directly or indirectly to or include descriptions of goods or services that: (aa) are prohibited under this Produce Peddlers User Agreement, the Privacy Policy, or other policy documents and community guidelines as posted on Produce Peddlers; (bb) are identical to other goods you have for sale but are priced lower; (cc) are concurrently listed for sale on a web site other than the Website (this does not prevent linking to or advertising a Produce Peddlers item from another web site); or (dd) you do not have a right to link to or include.
Furthermore, you may not list any item on Produce Peddlers (or consummate any transaction that was initiated using our service) that could cause us to violate any applicable law, statute, ordinance or regulation, or that violates this User Agreement.
Breach: Without limiting other remedies available, Produce Peddlers may, without prior notice, limit your activity, immediately remove your item listings, warn Produce Peddlers’ community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your use of the Website (without refunding any amounts) and refuse to provide our services to you if: (a) you breach this User Agreement or other policy documents or community guidelines this User Agreement incorporates by reference; (b) Produce Peddlers is unable to verify or authenticate any of Your Information; or (c) Produce Peddlers believes that your actions may cause financial loss or legal liability for you, Produce Peddlers’ users or Produce Peddlers.
No Warranty: PRODUCE PEDDLERS, TOGETHER WITH PRODUCE PEDDLERS’ AFFILIATES, RELATED PARTIES, SUBSIDIARIES, OFFICERS, SHAREHOLDERS, DIRECTORS, MANAGERS, EMPLOYEES, CONSULTANTS, REPRESENTATIVES, ATTORNEYS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, “THE PRODUCE PEDDLER PARTIES”) PROVIDE THE WEBSITE AND SERVICES “AS IS” AND WITHOUT ANY REPRESENTATION, WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ALL PRODUCE PEDDERL PARTIES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMITTED BY LAW.
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Website will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE WEBSITE OR ANY SERVICES OR GOODS OBTAINED THROUGH THE WEBSITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
Limitation On Liability: IN NO EVENT SHALL ANY PRODUCE PEDDLER PARTY BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNATIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR WEBSITE, OUR SERVICES OR THIS USER AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). THE LIABILITY OF ALL OF THE PRODUCE PEDDLER PARTIES TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO $100.
Indemnification: YOU AGREE TO INDEMNIFY AND HOLD HARMLESS THE PRODUCE PEDDLER PARTIES FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS USER AGREEMENT OR THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE, YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY, OR FOR ANY OTHER REASON.
Applicable Law: This User Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to any principles of conflicts of law. You agree that any action at law or in equity that arises out of or relates to this User Agreement will be filed only in the state or federal courts located in Erie County, New York, and you hereby consent and submit to the personal jurisdiction and venue of such courts for the purposes of litigating any such action.
Disputes; Arbitration
Generally. In the interest of resolving disputes between you and Produce Peddlers in the most expedient and cost effective manner, you and Produce Peddlers agree that every dispute arising in connection with this User Agreement will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of this User Agreement, 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 this User Agreement. You understand and agree that, by entering into these terms, you and Produce Peddlers are each waiving the right to a trial by jury or to participate in a class action.
Exceptions. Despite the above provisions, nothing in this User Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court located in Erie County, NY; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law located in Erie County, NY in aid of arbitration; or (d) file suit in a court of law located in Erie County, NY to address an intellectual property infringement claim.
Arbitrator. Any arbitration between you and Produce Peddlers will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this User Agreement. 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 Produce Peddlers. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Notice of Arbitration; 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 that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). Produce Peddlers address is available on posted on the Website. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 of Arbitration is received, you or Produce Peddlers may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Produce Peddlers must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any.
Fees. 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 Erie County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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. 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.
No Class Actions. You and Produce Peddlers 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 Produce Peddlers 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.
Modifications to this Arbitration Provision. If Produce Peddlers makes any future change to this arbitration provision, other than a change to the Produce Peddlers’ address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Produce Peddlers’ address for Notice of Arbitration, in which case your account with Produce Peddlers will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
Enforceability. If portions or the entirety of the subsections contained under the header “Disputes; Arbitration” in this Section VII are found to be unenforceable, then the entirety of the subsections contained under the header “Disputes; Arbitration” in this Section VII will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described under the header “Applicable Law” in this Section VII will govern any action arising out of or related to this User Agreement.
Term; Termination: The Website has no “term,” and Produce Peddlers reserves the right to discontinue the Website at any time and will have no liability or responsibility to any person or entity therefor. Upon termination of this User Agreement for any reason, you shall destroy and remove from all computers, and other storage media all copies of any intellectual property owned by Produce Peddlers or any other user of the Website that you acquired via use of the Website. Your representations in this User Agreement and any other provision of this User Agreement which by its nature is designed to survive termination or Produce Peddlers determines that it should survive termination, shall survive any termination or expiration of this User Agreement.
Legal Compliance: You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your listing, purchase, solicitation of offers to purchase, and sale of goods.
Force Majeure. Produce Peddlers shall not be liable or responsible to you or any other person or entity and shall nor be deemed to have defaulted under or breached this User Agreement, for any failure or delay in fulfilling or performing any term of this User Agreement or with respect to the delivery of any product(s), if such failure or delay is caused by or results from acts beyond Product Peddler’s control, including: (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of law; (e) actions, embargoes or blockades in effect on or after the date of this User Agreement; (f) action by any governmental authority (whether or not having the effect of law); (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; or (i) shortages of adequate power or transportation.
No Third-Party Beneficiaries: This User Agreement is for the sole benefit of Produce Peddlers and the other Produce Peddler Parties and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this User Agreement.
No Assignment: You may not assign or transfer this User Agreement or your rights or obligations under this User Agreement, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign this User Agreement at any time without notice or consent.
Severability: Whenever possible, each provision of this User Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this User Agreement shall be prohibited by or invalid under such law, it shall be deemed modified to conform to the minimum requirements of such law, or if for any reason it is not deemed so modified, it shall be prohibited or invalid only to the extent of such prohibition or invalidity without the remainder thereof or any other such provision being prohibited or invalid.
Modifications: Produce Peddlers may amend this User Agreement at any time, and from time to time, in its sole discretion, effective upon posting the amended User Agreement on the Website where the prior version of this User Agreement was posted or by communicating these changes through any written or other contact method Produce Peddlers has established with you. Your use of the Website following the date on which such amended User Agreement is published will constitute your consent to such amendments. If you do not agree with the changes in the User Agreement, your sole remedy is to discontinue the use of the Website.