TERMS OF USE

Last Updated: 10/14/2022

Welcome, and thank you for your interest in Mercato, Inc. ("Mercato," "we," or "us") and our website at www.mercato.com, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the "Service"). These Terms of Service are a legally binding contract between you and Mercato regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY:

BY CLICKING "I ACCEPT," OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING MERCATO'S PRIVACY POLICY (TOGETHER, THESE "TERMS"). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND MERCATO'S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY MERCATO AND BY YOU TO BE BOUND BY THESE TERMS.

ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 17, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND Mercato ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (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. (See Section 17.)

Credit Card Authorization. You agree that Mercato or the applicable Merchant (defined below) will obtain a credit card authorization for the credit card you have on file with Mercato to cover the cost of the Merchant Products (defined below) ordered from a Merchant via the Service and any separate fees charged by Mercato in connection with that order or other services provided by Mercato (such as a Subscription (defined below)) (the "Mercato Services") and your card will be charged for the cost of the Merchant Products purchased by you and any applicable fees, taxes and/or tips arising in connection with each order for Merchant Products or agreement to purchase any Mercato Services. YOUR CARD MAY BE TEMPORARILY AUTHORIZED FOR AN AMOUNT GREATER THAN THE TOTAL AMOUNT OF THE ORDER APPEARING IN THE ORIGINAL CHECK-OUT. This higher authorized amount will be disclosed during the purchase process and is a temporary authorization charge on your order, to deal with situations where your total purchase amount turns out to be higher than the original amount due to special requests, added items, replacement items, or weight adjustments.

1. Mercato Service
   • Service Description. The Service is a communication platform that enables third party merchants ("Merchants") to make available products, information, and services to consumers ("Merchant Products"), and for consumers to order and receive Merchant Products via pickup, delivery by Merchants, or delivery by third party providers ("Delivery Providers").
   • Responsibility for Merchant Products and Delivery. Mercato is not a Merchant or a Delivery Provider. Merchants and Delivery Providers are solely responsible for the Merchant Products and fulfillment and delivery of Merchant Products. Accordingly, all matters regarding Merchant Products, including any warranty or guarantee, are solely between you and the Merchant from whom you ordered the Merchant Products or the Delivery Provider that delivered such Merchant Products. Mercato makes no representations or warranties of any kind, express or implied, regarding Merchant Products, and the fact that the Service enables communication with Merchants, services from Delivery Providers, or the purchase of Merchant Products should not be construed as an endorsement of the Delivery Provider, Merchant or Merchant Products. Mercato does not assume, and expressly disclaims, responsibility for any Merchant Products, content, services, websites, advertisements, offers, or information that is provided by third parties or made available through the Service. If you purchase, use or access any Merchant Products, content, services, advertisements, offers, or information through the Service, you agree that you do so at your own risk and that Mercato will have no liability based on such purchase, use or access. MERCATO DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY, OR ABILITY OF MERCHANTS OR DELIVERY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF ANY SERVICES PROVIDED BY MERCHANTS OR DELIVERY PROVIDERS, OR ANY MERCHANT PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, REMAINS SOLELY WITH YOU. MERCATO IS NOT RESPONSIBLE FOR THE FITNESS OR CONDUCT OF ANY MERCHANT OR DELIVERY PROVIDER OR FOR ANY SERVICES PROVIDED BY MERCHANTS OR DELIVERY PROVIDERS. MERCATO IS NOT LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY MERCHANT OR DELIVERY PROVIDER. If you have a dispute with one or more Merchants or Delivery Providers, you agree to release Mercato from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes with Merchants or Delivery Providers.
   • Transactions Involving Alcohol. You may have the option to order delivery of alcohol products in some locations and from certain Merchants. If you receive your delivery in the United States, you represent that you are 21 year of age or older if you order alcohol products. If you receive your delivery in another country, you represent that you are of legal age to purchase alcohol products in the relevant jurisdiction. You also represent that the recipient of the delivery containing alcohol products will provide valid government-issued identification proving their age (the "ID") and that the recipient of alcohol products ordered by you will not be intoxicated when receiving delivery of those products. The Delivery Provider may be required to scan or otherwise photograph the ID for purposes of confirming the validity of the ID and recipient's eligibility to receive alcohol.
   • Delivery Feedback. If there are any issues with the Merchant Products or delivery services, including late delivery, missing items, or spoiled food, you must provide Mercato with documentation, including photographs of food where applicable, within 48 hours of the actual delivery time.
2. Eligibility. You must be at least 18-years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (1) you are at least 18-years old; (2) you have not previously been suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.
3. Accounts and Registration. To access most features of the Service, you must register for an account. When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up to date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at help@mercato.com.
4. General Payment Terms. Certain features of the Service may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in U.S. Dollars and are non-refundable. Mercato, in its sole discretion, may offer credits or refunds on a case-by-case basis, including, by way of the example, in the event of an error with your order or the amounts you were charged.
   • Price. Mercato reserves the right to determine pricing for the Service. Mercato will make reasonable efforts to keep pricing information published on the website up to date. We encourage you to check our website periodically for current pricing information. Mercato reserves the right to change the fees for any feature of the Service, including additional fees or charges, and will make updates to our website to reflect such changes. Mercato, at its sole discretion, may make promotional offers with different features and different pricing to any of Mercato's customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.
   • Authorization. You authorize Mercato to charge all sums for the orders that you make and any level of Service you select as described in these Terms or published by Mercato, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Mercato may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
   • Subscriptions. The Service may include automatically recurring payments for periodic charges for a subscription to certain services in connection with the Service (each, a "Subscription"). If you activate a Subscription, you authorize Mercato to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The "Subscription Billing Date" is the date when you first purchase access to a Subscription. For information on the "Subscription Fee", please see our www.mercato.com/customer/green page. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next Subscription period. The Subscription will continue unless and until you cancel your Subscription or we terminate it. You must cancel your Subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. In your first Subscription year, you may cancel your Subscription within the first 30 calendar days of the Subscription period and receive a refund of the Subscription Fee you paid, minus the cost of any specific Subscription promotion. In your subsequent Subscription years, you may cancel your Subscription within the first 30 calendar days of the Subscription period and receive a refund of the Subscription Fee you paid, but only if you have not placed any orders using your Subscription. If you cancel at any other time, you will not receive a refund, but you can continue to enjoy the benefits of the Subscription through the end of your billing period. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to your primary payment method if you change your payment information). You can update your primary payment method on your "Payment Info" page at www.mercato.com/customer/payment-info. You may cancel a Subscription by going to the "Manage Membership" page at www.mercato.com/customer/green or contacting us at help@mercato.com.
   • Delinquent Accounts. Mercato may suspend or terminate access to the Service, including fee-based portions of the Service, for any account for which any amount is due but unpaid. In addition to the amount due for the Service, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees.
5. SNAP/EBT Mercato accepts Supplemental Nutrition Assistance Program (SNAP) benefits as a form of payment for eligible food items from select retailers. By using SNAP benefits on our website, you agree to the following terms:
   • SNAP Item Eligibility. The U.S. Department of Agriculture (USDA) determines SNAP eligibility. Items deemed SNAP eligible by the USDA may be purchased with your EBT card. For more information on SNAP eligible items, please visit the USDA's website.
   • Payment. To use SNAP benefits on our website, you will need to provide your valid EBT card information, along with your EBT pin, at checkout. Please note that in order to cover any non-SNAP eligible items such as delivery fees, service fees, taxes, and tips, a credit or debit card will also need to be linked to your account. We do not currently accept EBT cash.
   • EBT Authorization. When you use your SNAP benefits to make purchases on our website, you are representing and warranting that you are authorized to use the EBT information for the purpose of making the purchase. By providing this information, you authorize us to use it for the purpose of processing the transaction. If we are unable to verify or validate the EBT information, we reserve the right to refuse to process the transaction. Please note that any misuse of EBT benefits may result in legal action or other consequences as determined by law.
     
     If you have any questions about using SNAP benefits on our website, please see our SNAP FAQ page.
6. Licenses
   • Limited License. Subject to your complete and ongoing compliance with these Terms, Mercato grants you, solely for your personal use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Service obtained from a legitimate marketplace (whether installed by you or pre-installed on your mobile device by the device manufacturer) on a mobile device that you own or control; and (b) access and use the Service.
   • License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
   • Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service ("Feedback"), then you hereby grant Mercato an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
7. Ownership; Proprietary Rights. The Service is owned and operated by Mercato. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service ("Materials") provided by Mercato are protected by intellectual property and other laws. All Materials included in the Service are the property of Mercato or its third-party licensors. Except as expressly authorized by Mercato, you may not make use of the Materials. Mercato reserves all rights to the Materials not granted expressly in these Terms.
8. Third-Party Terms
   • Third-Party Services and Linked Websites. Mercato may provide tools through the Service that enable you to export information, including User Content, to third-party services, including through features that allow you to link your account on Mercato with an account on the third-party service, such as Twitter or Facebook, or through our implementation of third-party buttons (such as "like" or "share" buttons). By using one of these tools, you agree that Mercato may transfer that information to the applicable third-party service. Third-party services are not under Mercato's control, and, to the fullest extent permitted by law, Mercato is not responsible for any third-party service's use of your exported information. The Service may also contain links to third-party websites. Linked websites are not under Mercato's control, and Mercato is not responsible for their content.
   • Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components ("Third-Party Components"). Although the Service is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
9. User Content
   • User Content Generally. Certain features of the Service may permit users to upload content to the Service, including messages, reviews, and other types of works ("User Content") and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service.
   • Limited License Grant to Mercato. By providing User Content to or via the Service, you grant Mercato a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed.
   • Limited License Grant to Other Users. By providing User Content to or via the Service to other users of the Service, you grant those users a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
   • User Content Representations and Warranties. Mercato disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant to us that:
     1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize Mercato and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by Mercato, the Service, and these Terms;
     2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause Mercato to violate any law or regulation; and
     3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
   • User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish and will not be in any way responsible or liable for User Content. Mercato may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against Mercato with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, Mercato does not permit copyright-infringing activities on the Service.
   • Monitoring Content. Mercato does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users. You acknowledge and agree that Mercato reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time Mercato chooses to monitor the content, Mercato still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.
10. Communications
    • Text Messaging. Mercato and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational or marketing messages about your use of the Service, as well as marketing messages. Text messages may be sent using an automatic telephone dialing system. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier. IF YOU WISH TO OPT OUT OF ALL MESSAGES FROM Mercato, YOU CAN EMAIL HELP@MERCATO.COM OR FOLLOW THE INSTRUCTIONS IN THE TEXT MESSAGE YOU HAVE RECEIVED FROM US, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL MESSAGES MAY IMPACT YOUR USE OF THE SERVICE. You may continue to receive text messages for a short period while we process your request, including messages confirming the receipt of your opt-out request.
    • Push Notifications. When you install our app on your mobile device, you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device's "settings" page.
    • Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
11. Prohibited Conduct. BY USING THE SERVICE, YOU AGREE NOT TO:
    • use the Service for any illegal purpose or in violation of any local, state, national, or international law;
    • harass, threaten, demean, embarrass, or otherwise harm any other user of the Service;
    • violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third-party intellectual property right;
    • interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
    • interfere with the operation of the Service or any user's enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) collecting personal information about another user or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
    • perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age or date of birth;
    • sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 6) or any right or ability to view, access, or use any Materials; or
    • attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
12. Copyright and Intellectual Property Protection
    • DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about Material posted on the Service, you may contact our Designated Agent at the following address:
      Mercato, Inc.
      Att. Robert Brannigan
      550 West B Street 4th Floor San Diego, CA 92101
      Phone: 855-966-2725
      Email: copyright@mercato.com
    • Content of Notification. Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:
      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright or intellectual property owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
    • Repeat Infringers. Mercato will promptly terminate the accounts of users that are determined by Mercato to be repeat infringers.
13. Modification of Terms. We reserve the right to change these Terms on a going-forward basis at any time upon 7 days' notice. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
14. Term, Termination and Modification of the Service
    • Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Service, and ending when terminated as described in Section 13.2.
    • Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, Mercato may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at help@mercato.com.
    • Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you must pay Mercato any unpaid amount that was due prior to termination; and (d) all payment obligations accrued prior to termination and Sections 5.3, 6, 13.3, 14, 15, 16, 17 and 18 will survive.
    • Modification of the Service. Mercato reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily or permanently, without notice to you. Mercato will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service; provided that Mercato will refund unused portions of pre-paid fees.
15. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify Mercato, its affiliates and their respective shareholders, directors, managers, members, officers, employees, consultants, and agents (together, the "Mercato Entities") from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys' fees and costs, arising out of or connected with: (1) your unauthorized use of, or misuse of, the Service; (2) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (3) your violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (4) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.
16. Disclaimers; No Warranties
    THE SERVICE AND ALL MERCHANT PRODUCTS, SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS. Mercato DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE, AND ALL MERCHANT PRODUCTS, SERVICES, MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (2) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. Mercato DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MERCHANT PRODUCTS, SERVICES, MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND Mercato DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.
    
    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR Mercato ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE Mercato ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.
    
    THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. Mercato does not disclaim any warranty or other right that Mercato is prohibited from disclaiming under applicable law.
17. Limitation of Liability TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE Mercato ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MERCHANT PRODUCTS, SERVICES, MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Mercato ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
    
    EXCEPT AS PROVIDED IN SECTION 17.5 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE Mercato ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (1) THE AMOUNT YOU HAVE PAID TO Mercato FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (2) $100.
    
    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
18. Dispute Resolution and Arbitration
    • Generally. In the interest of resolving disputes between you and Mercato in the most expedient and cost effective manner, and except as described in Section 17.2 and 17.3, you and Mercato agree that every dispute arising in connection with these Terms 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 these Terms, 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 these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND Mercato ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
    • Exceptions. Despite the provisions of Section 17.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (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 in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
    • Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 17 within 30 days after the date that you agree to these Terms by sending a letter to Mercato, Inc., Attention: Legal Department – Arbitration Opt-Out, 550 West B Street, 4th Floor, San Diego, CA, 92101 that specifies: your full legal name, the email address associated with your account on the Service, and a statement that you wish to opt out of arbitration ("Opt-Out Notice"). Once Mercato receives your Opt-Out Notice, this Section 17 will be void and any action arising out of these Terms will be resolved as set forth in Section 18.2. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
    • Arbitrator. Any arbitration between you and Mercato 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 these Terms. 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 Mercato. 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"). Mercato's address for Notice of Arbitration is: Mercato, Inc., 550 West B Street, 4th Floor, San Diego, CA, 92101. 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 Mercato 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 Mercato must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Mercato in settlement of the dispute prior to the award, Mercato will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
    • Fees. If you commence arbitration in accordance with these Terms, Mercato 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 San Diego, California, 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. In that case, you agree to reimburse Mercato 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.
    • No Class Actions. YOU AND Mercato 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 Mercato 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 Mercato makes any future change to this arbitration provision, other than a change to Mercato's address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to Mercato's address for Notice of Arbitration, in which case your account with Mercato will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
    • Enforceability. If Section 17.7 or the entirety of this Section 17 is found to be unenforceable, or if Mercato receives an Opt-Out Notice from you, then the entirety of this Section 17 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 18.2 will govern any action arising out of or related to these Terms.
19. Miscellaneous
    • General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and Mercato regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word "including" means "including but not limited to." If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
    • Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles that would result in the application of the laws of another jurisdiction. You and Mercato submit to the personal and exclusive jurisdiction of the state courts and federal courts located within San Diego, California for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in California, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
    • Privacy Policy. Please read the Mercato Privacy Policy at www.mercato.com/privacy carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Mercato Privacy Policy is incorporated by this reference into, and made a part of, these Terms.
    • Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the "Additional Terms"). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
    • Consent to Electronic Communications. By using the Service, you consent to receiving certain electronic communications from us as further described in our Privacy Policy. Please read our Privacy Policy to learn more about our electronic communications practices. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.
    • Contact Information. The Service is offered by Mercato, Inc., located at 550 West B Street 4th Floor San Diego, CA 92101. You may contact us by sending correspondence to that address or by emailing us at help@mercato.com.
    • Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
    • No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.
    • International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.
20. Notice Regarding Apple. This Section 19 only applies to the extent you are using our mobile application on an iOS device. You acknowledge that these Terms are between you and Mercato only, not with Apple Inc. ("Apple"), and Apple is not responsible for the Service or the content thereof. Apple has no obligation to furnish any maintenance and support services with respect to the Service. If the Service fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (1) product liability claims; (2) any claim that the Service fails to conform to any applicable legal or regulatory requirement; or (3) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that the Service and/or your possession and use of the Service infringe a third party's intellectual property rights. You agree to comply with any applicable third-party terms when using the Service. Apple and Apple's subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.