Last update: 06/01/2020
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You are prohibited from using the marks or logos appearing throughout this Website without permission from the trademark owner, except as permitted by applicable law.
The Company prohibits unauthorized links to this Website and the framing of any information contained on this Website or any of this Website’s Content. The Company reserves the right to disable any unauthorized links or frames. The Company has no responsibility or liability for any material on other websites that may contain links to this Website.
You agree to use this Website only for lawful purposes. You agree not to take any action that might compromise the security of this Website, render it inaccessible to others or otherwise cause damage to it or its Content. You additionally agree not to use this Website in any way that might interfere with the rights of other users or third-parties.
If you supply or post any non-identifiable information to this Website, you guarantee to the Company that you have the legal right to post such material and that it does not violate any law or the rights of any person or entity. For any information you do send, post or submit to this Website, you hereby grant the Company an unrestricted, royalty-free, irrevocable license to use, reproduce, display, perform, modify, transmit and distribute the same, and agree that the Company is free to use any ideas, concepts, know-how or techniques that you send to the Company for any lawful purpose whatsoever without compensation to you or any other person sending such information, and you represent and warrant that you own or otherwise control all of the rights to such information and that public posting and use of your content by the Company will not infringe or violate the rights of any third-party.
By entering into this Agreement or using the Website, you expressly consent and agree to accept and receive communications from DeliverMD dba Smoakland and/or Drivers that you transact with, including via email, text message, calls, and push notifications to the cellular telephone number you provided to Company.
By consenting to being contacted, you understand and agree that you may receive communications (including those generated by automatic telephone dialing systems and/or which will deliver pre recorded messages) sent by or on behalf of Company, and/or Retailers (or their Drivers), including but not limited to: operational or transactional communications concerning your Account or use of the Website; updates concerning new or existing features of the Website; communications concerning Promotions (defined below) run by Company or third parties; and news or industry developments concerning Company, Products, or third parties. Standard text messaging charges applied by your cell phone carrier will apply to text messages you receive.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, UNSUBSCRIBE FROM COMPANY’S PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF, INCLUDING CLICKING THE UNSUBSCRIBE LINK PROVIDED AT THE BOTTOM OF THE EMAIL. IF YOU WISH TO OPT OUT OF PUSH NOTIFICATIONS YOU MAY DO SO THROUGH YOUR DEVICE SETTINGS. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES TO THE PHONE NUMBER YOU RECEIVED THE MESSAGE FROM.
YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE WEBSITE. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM COMPANY (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), PLEASE CONTACT CUSTOMER SUPPORT. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE WEBSITE.
Agreement to Arbitrate
YOU AND COMPANY MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION. This will prohibit you from bringing any class, collective, or consolidated action against Company, and will also prohibit you from participating in or recovering relief under any current or future such actions brought against Company by someone else. Arbitration is more informal than a lawsuit in court: there is no judge or jury in arbitration; discovery in arbitration may be more limited than discovery in litigation; and court review of an arbitration award is limited. This agreement to arbitrate (“Arbitration Agreement”) also applies to claims between you and Company’s Third-Party Providers, and such Third-Party Providers will be considered intended third party beneficiaries of this Arbitration Agreement.
You and Company agree that any dispute, claim, or controversy, whether based on past, present or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof); the Website; Content currently or previously available on or through the Website; any Products currently or previously available on the Website; your relationship with Company; your User Data; the threatened or actual suspension, deactivation, or termination of your Account or this Agreement; payments made by you or any payments made or allegedly owed to you; any Promotions, referral benefits, or other offers; and any other federal and state statutory and common law claims (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. All disputes concerning the arbitrability of a Dispute (including disputes about the scope, applicability, enforceability, legality, revocability, or validity of the Arbitration Agreement) will be decided by the arbitrator, except as expressly provided herein.
YOU UNDERSTAND, ACKNOWLEDGE, AND AGREE THAT YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ANY AND ALL DISPUTES, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT.
Prohibition Of Class Actions And Non-individualized Relief
You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class, collective, or consolidated proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, collective, consolidated or representative proceeding.
Arbitration Rules And Governing Law
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Agreement. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879 or any subsequent applicable telephone number. The Federal Arbitration Act (“FAA”) will govern the interpretation and enforcement of this Arbitration Agreement. It is your and Company’s intent that the FAA and AAA Rules will preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue will be resolved under the laws of the State of California. This Agreement governs to the extent it conflicts with the AAA Rules or FAA.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration and a separate form for California residents at adr.org. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location And Procedure
Unless you and Company otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party in arbitration will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.
Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules.
Under no circumstances will the Company, its parents, partners, affiliated companies, business partners, licensors, employees, agents, or any third-party information providers be liable to you for any direct, indirect, consequential, punitive, special, exemplary, incidental or other damages, whether in contract, tort or otherwise, including negligence, arising in any way out of access to or use of or inability to access or use this Website or arising out of the Content or any errors or omissions in the Content, including but not limited to lost profits, business interruption, or loss of programs or other data on computer systems or otherwise, even if the Company is expressly advised of the possibility of such damages. The Company does not warrant that the functions performed by this Website will be uninterrupted, secure, timely, or error-free, or that defects in this Website will be corrected. The Company does not warrant that this Website, its servers, or email sent from the Company are free of viruses or other harmful components.
Certain state laws 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. In such cases, the Company’s liability will be limited to the fullest extent permitted by applicable law, but shall, in no event, exceed $100.00.
If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision will be severed from this Arbitration Agreement, (2) severance of the unenforceable or unlawful provision will have no impact on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis, and (3) to the extent that any Disputes must therefore proceed on a class, collective, consolidated or representative basis, such Disputes must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. In any case in which the Dispute proceeds on a class, collective, consolidated or representative basis and there is also a final judicial determination that this Arbitration Agreement is unenforceable as to a portion (but not all) of such Dispute, then such portion of the Dispute will be severed from any remaining claims and the remainder will be enforced in arbitration on an individual basis as to all other Disputes to the fullest extent possible. Except as otherwise provided herein, this “Arbitration Agreement” section will survive any termination of this Agreement.