Merchant Terms of Use

BEFORE YOU PARTICIPATE IN THE PROGRAM(S) OPERATED BY AVOCADO, INC. (“AVOCADO”) THAT ARE COVERED BY THESE AVOCADO MERCHANT TERMS OF USE (“MERCHANT TERMS” OR “TERMS”), PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH AVOCADO OR OTHERWISE AGREEING TO THESE TERMS, INCLUDING THROUGH AN AUTHORIZED AVOCADO PARTNER, YOU OR THE ENTITY THAT YOU REPRESENT AGREE ON BEHALF OF ALL PARTICIPATING STORE LOCATIONS TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

Definitions

  1. Marketplace Core Responsibilities.
  2. Pickup Core Responsibilities.
  3. Refunds and Re-Orders.
  4. Delivery Services.
  5. Order Equipment.
  6. Payment, Fees, and Taxes.
  7. Payment Processing.
  8. Merchant Content and Trademark; Photographs of Merchant Product Listing.
  9. Merchant Term or PickUp Term.
  10. Communications from AVOCADO.
  11. Confidential Information.
  12. No Poaching.
  13. Data Privacy and Security.
  14. Modifications.
  15. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
  16. Indemnification.
  17. Limitation of Liability.
  18. Insurance.
  19. Dispute Resolution.
  20. Franchisees.
  21. Partner Code of Conduct.
  22. General Provisions.

Definitions

  1. “Delivery Person” means a person from third-party Delivery Services as defined in Section 4.
  2. “AVOCADO Data” shall mean any information that AVOCADO provides or makes accessible to Merchant through the AVOCADO Platform, including without limitation Personal Information.
  3. “AVOCADO End Customer” means the AVOCADO customer who places an order through the AVOCADO Marketplace.
  4. “AVOCADO Marketplace” means the online ordering platform where AVOCADO End Customers can place an order for Merchant Products via the AVOCADO website or mobile application.
  5. “AVOCADO Services” means AVOCADO Marketplace and PickUp, as applicable.
  6. “Marketplace Orders” means orders for Merchant Products through the AVOCADO Marketplace from AVOCADO
  7. “Merchant” means the store or other entity that has agreed to participate in the AVOCADO Services.
  8. “Merchant Products” means all products offered for delivery or PickUp orders at Merchant Stores.
  9. “Merchant Product Listing” means a listing of Merchant Products.
  10. “AVOCADO Store Dashboard” means an online dashboard login provided by AVOCADO to the store, where store can make changes to Merchant Product Listing, Store Timings, Store Location etc.
  11. “Merchant Stores” means the Merchant store locations that are within the then-current territory serviced by AVOCADO and that have elected to participate in the AVOCADO Services, as may be amended by an exchange of emails.
  12. “Marketplace Term” means the term of the agreement between AVOCADO and the Merchant for the AVOCADO Marketplace.
  13. “PickUp Term” means the term of the agreement between AVOCADO and the Merchant for the AVOCADO PickUp program.
  14. “AVOCADO Shopper App” means the AVOCADO app and login provided to the Merchant staff for preparing the orders. AVOCADO may update or release new AVOCADO Shopper App from time to time.
  15. “Local Delivery” means delivery in nearby zip codes from the store location, upto 100 miles from the physical store location.
  16. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law.
  17. Marketplace Core Responsibilities.

For Merchants that have agreed to participate in the AVOCADO Marketplace, AVOCADO and Merchant shall have the following responsibilities during the Marketplace Term:

  1. AVOCADO Core Responsibilities. AVOCADO will, in a timely manner:
  • Display Merchant’s logo; a listing of the Merchant Stores; and Merchant Product Listing;
  • Accept Marketplace Orders from AVOCADO End Customers;
  • Forward each Marketplace Order to the relevant Merchant Store; and
  • Forward each Marketplace Order to a Delivery Person, so that the Delivery Person can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the AVOCADO End Customer.
  1. Merchant Core Responsibilities. Merchant will, in a timely manner:
  • Notify AVOCADO of its days and hours of operation, and remain open for business on AVOCADO the same days and hours of operation as Merchant’s in-store business; notify AVOCADO of any changes to Merchant’s hours of operations on federal holidays; and notify AVOCADO if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;
  • Notify all Merchant store staff members of the relationship with AVOCADO immediately upon execution of this Agreement.
  • Participate in AVOCADO Store Promotion Program targeted to increase orders for the store;
  • Merchant is responsible for keeping AVOCADO Dashboard and AVOCADO Shopper App password secure. AVOCADO cannot and will not be liable for any loss or damage from your failure to maintain the security of your Account and password.
  • Product Listing
    • Provide AVOCADO with the Merchant Product Listing including the price, packaging size and availability of each item;
    • Monitor Merchant’s Product Listing and store information on the AVOCADO Marketplace, promptly make updates via the Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify AVOCADO of any errors or changes in writing;
    • Merchant is responsible for all activity and content such as photos, images, videos, graphics, written content, audio files, code, information, or data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Merchant Product Listing.
    • Update in AVOCADO Store Dashboard and Notify AVOCADO of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;
    • Update in AVOCADO Store Dashboard and Notify AVOCADO of any daily, weekly, monthly deals on the Merchant Products;
    • Merchant will keep store prices on AVOCADO online platform or as decided by then AVOCADO pricing policy.
  • Order Preparation
    • Accept all Marketplace Orders placed by AVOCADO from Merchant’s then-current Merchant Product Listing;
    • Confirm all Marketplace Orders from AVOCADO;
    • Prepare the Merchant Products for each Marketplace Order for pickup by a Delivery Person at the designated time;
    • Process Marketplace Orders 75 minutes before the scheduled delivery window;
    • For preparing the order, pick exact product and size as mentioned in the AVOCADO Shopper App. If the exact product and size is not available, please mark the product as “Not Available” in the AVOCADO Shopper App. Based on the Customer Preference for that product in the order, (i) the app may show you alternate items that the customer chose to replace this product with (ii) customer may choose not to replace (iii) customer will allow the shopper to “Replace with Best Match”. In this case, pick product in the product listing, search for that product and select appropriate replacement in the substitution screen.
    • While preparing the order, Merchant will view the LiveVue messages and make appropriate changes to the order as requested by the customer.
    • Provide the same bags and other materials that Merchant would typically provide in a standard store order, subject to Section 15(3)(i).
    • For preparing the order, Merchant will place frozen products separately in bag(s) henceforth known as “Frozen Bags”, refrigerated products separately in bag(s) henceforth known as “Refrigerated Bags” and all other products will be in separate bag(s) henceforth known as “Shelf Bags”
    • After preparing the order, Merchant will keep Frozen Bags in the freezer, Refrigerated Bags in the refrigerator, Shelf Bags in the shelf.
    • Merchant will notify in the Shopper App, exact number of respective bags prepared for the order
    • Merchant will label each bag with Order #, Name of the customer, Total Bags and their appropriate location (Freezer, Refrigerator and Shelf)
    • Hand-Off order to the Delivery Person and also Hand Off the order in the AVOCADO Shopper App.
  1. PickUp Core Responsibilities.

For Merchants that have agreed to participate in the PickUp program, during the PickUp Term, AVOCADO will have the same responsibilities as set forth in Section 1.1  and Merchant will have the same responsibilities as set forth in Section 1.2 except for Hand-Off order to the customer instead of Delivery Person.

  1. Refunds and Re-Orders.

Refunds and re-orders will be addressed as follows for Merchants that have agreed to participate in the AVOCADO Marketplace, or the PickUp Program as applicable:

  1. Marketplace Refunds. In the event that AVOCADO, in its sole reasonable discretion, has to issue a refund, credit or re-order on an End Customer’s Order, Merchant will prepare the order to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the gross negligence or willful misconduct of Delivery Persons or AVOCADO.
  2. PickUp Refunds. AVOCADO shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to an End Customer’s AVOCADO account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that AVOCADO, in its sole discretion, has to issue a refund, credit or re-order for an End Customer’s Order, Merchant will prepare the order to the same specifications as the original PickUp Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

Additional Fee are applicable in case of Errors or Delays as per Schedule 1. See Schedule 1 for detailed schedule of applicable charges.

  1. Delivery Services.
    1. AVOCADO may partner with independent contractors, service providers, delivery companies to make available delivery options on AVOCADO. AVOCADO may change or discontinue the Services at any time without notice, but any change shall only apply to Merchant after the effective date of the change. You acknowledge and agree that: (a) the Services may be performed by or on behalf of AVOCADO; and (b) for quality assurance and training purposes, communications between Merchant and your personnel and AVOCADO personnel may be monitored and/or recorded.
    2. AVOCADO reserves the right to engage independent contractors, service providers, delivery companies to provide certain Services. For the avoidance of doubt, AVOCADO is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Customer acknowledges that the Services are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).
  2. Order Equipment.

With respect to the AVOCADO Marketplace, Merchant will install any equipment reasonably required by AVOCADO for Merchant to receive Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). Any Order Equipment provided by AVOCADO will remain AVOCADO’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware, and shall notify AVOCADO in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. AVOCADO may restrict or rescind Merchant’s right to use the AVOCADO Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by AVOCADO (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). AVOCADO may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.

  1. Payment, Fees, and Taxes.

Payment, fees, and taxes shall be addressed as follows for Merchants that have agreed to participate in the AVOCADO Marketplace as applicable:

  1. AVOCADO Marketplace. AVOCADO will pay for Marketplace Orders prepared by Merchant each week on a consistent day of the week, subject to change with no less than 10 days notice to Merchants by email or service notification, provided that AVOCADO shall be entitled to deduct from such payment the Referral Fee, Delivery fee, Credit Card fee (2.9%+ $0.3 per order) and any other applicable fee on all Marketplace Orders. If Merchant has opted for a tablet subscription, AVOCADO will also deduct a weekly fee, as set forth on the Sign-Up Sheet. For the avoidance of doubt, AVOCADO will be entitled to a Referral Fee on all Marketplace Orders at the rate stated in the Sign-Up Sheet and AVOCADO may also elect (in its sole discretion) to charge an End Customer fees, including but not limited to a Delivery Fee and/or a Service Fee, as well as an additional markup for Merchant Products. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a Merchant’s Product, it shall not charge AVOCADO the higher price for 3 business days after it has provided notice to AVOCADO of that change. For Merchants in Canada, Merchant shall also be responsible for all taxes, duties, and other governmental charges on the Referral Fee, which AVOCADO shall be responsible for withholding and remitting to the appropriate authorities.
  2. Modifications to the Service and Prices. Prices for using the Services are subject to change upon 30 day notice from AVOCADO. Such notice may be provided at any time by posting the changes to the AVOCADO Site (AVOCADO.com) or the administration menu of your AVOCADO store via an announcement. AVOCADO reserves the right at any time, and from time to time, to modify or discontinue, the Service (or any part thereof) with or without notice. AVOCADO shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Service.
  3. Payment Processing.

Payment processing services for Merchants on the AVOCADO Marketplace are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of AVOCADO enabling payment processing services through Stripe, Merchant agrees to provide AVOCADO accurate and complete information about Merchant’s representative and its business, and Merchant authorizes AVOCADO to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

AVOCADO in its sole discretion may change its payment processing partner.

  1. Merchant Content and Trademark; Photographs of Merchant Product Listing.
    1. During the Marketplace Term or PickUp Term, as applicable, Merchant grants to AVOCADO a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use and display the Merchant Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, Merchant Product Listing, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to AVOCADO.
    2. If photographs of Merchant’s Product Listing are not available or if they do not meet AVOCADO’s requirements, as reasonably determined by AVOCADO, then Merchant consents to AVOCADO engaging a professional photographer or to take photographs of Merchant’s Products and display such photographs on the AVOCADO Marketplace as representations of Merchant’s Products; provided that Merchant may contact AVOCADO support to have such photographs removed from the Merchant’s store listing and, in such event, AVOCADO will comply in a timely manner.
  2. Merchant Term or PickUp Term.

This Agreement will commence on the first day after: (a) Merchant signs an agreement with AVOCADO; and will remain in full force and effect for Merchant Term as defined in Sign-Up Sheet, after which this Agreement will automatically renew for additional consecutive two (2) year periods (each a “Renewal Term”). Initial Term and any Renewal Terms are together referred to herein as the “Term.” Either party may terminate this Agreement upon the date that is one
hundred eighty (180) days following the Merchant Store Launch Date (the “Trial Period”) by providing the other party written notice of such termination at least thirty (30) days prior to the expiration of the Trial Period. Further, either party may terminate this Agreement if: (a) there is a material breach that has not been cured within thirty (30) days after receiving written notice of such material breach, or (b) a receiver is appointed for the other party or its property or
the other party becomes insolvent or is unable to pay its debts as they become due. AVOCADO may terminate this Agreement or stop servicing specific Merchant Locations if there is a material change in the Gig Economy Landscape and the parties are unable to reach agreement upon revised Service Fees to accommodate such material change. Expiration or earlier termination of the Agreement shall not affect any amounts due under this Agreement that exist as of the date of such expiration or termination and a party shall have ninety (90) days in which to make payment to the other party for any amounts then owing in accordance with these Terms. Settling of accounts in the manner set forth in the foregoing sentence and termination of this Agreement shall be the exclusive remedy of the parties for breach of this Agreement, except for a breach of Section 11.5 (Confidentiality), 16.2 (Indemnification) or 12. (No Poaching).

Exclusive Provider. Merchant agrees that, during the Term, AVOCADO will be Merchant’s exclusive partner for Marketplace Services (as defined in the Sign Up Sheet), and online and mobile grocery sales. Notwithstanding the foregoing and for the avoidance of doubt, the restrictions in this Section shall not apply to (i) Merchant’s existing delivery services as of the Effective Date that are delivered by Merchant.

10. Communications from AVOCADO.

Merchant agrees to accept and receive communications from AVOCADO or Delivery Persons, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to AVOCADO. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of AVOCADO, its affiliated companies and/or Delivery Persons. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.

  1. Confidential Information.
    1. The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, AVOCADO Data is the Confidential Information of AVOCADO.
    2. Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
    3. The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
    4. If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.
  2. No Poaching.

During the Term and for a period of six (6) months following the expiration or any earlier termination of the Agreement, You agree not to hire, solicit or entice any AVOCADO employee, AVOCADO Merchant, AVOCADO customer and Delivery Person.

  1. Data Privacy and Security.

Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner AVOCADO Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep AVOCADO Data secure from unauthorized access and maintain the accuracy and integrity of AVOCADO Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to AVOCADO Data, Merchant will immediately notify AVOCADO, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by AVOCADO. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by AVOCADO and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the AVOCADO Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the AVOCADO Platform; damage, destroy or impede the services provided through the AVOCADO Platform; transmit injurious code; or bypass or breach any security protection on the AVOCADO Platform.

  1. Modifications.

AVOCADO reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. AVOCADO may, at its sole discretion, remove Merchant Products or Stores from the AVOCADO Marketplace if AVOCADO reasonable determines that such Merchant Product or Merchant Store could subject AVOCADO to undue regulatory risk, health and safety risk, or other liability. AVOCADO also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.avocadonext.com.com/merchant/merchant-terms/. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

  1. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
    1. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
    2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
    3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable store supplies), and food safety and sanitation, (ii) it has informed AVOCADO of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform AVOCADO of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s Product Listing listed on the AVOCADO Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s Product Listing on the AVOCADO Marketplace or request delivery of any age-restricted products through the AVOCADO Platform without first entering into a separate agreement with AVOCADO memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) title to Merchant Products transfers from Merchant directly to the AVOCADO End Customer once such Merchant Product leaves the physical possession of the Merchant, (vi) it will not disclose any information related to a Delivery Person or a consumer to a third party (except as required to comply with law or pursuant to a court order).
    4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, AVOCADO HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE AVOCADO PLATFORM, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and AVOCADO shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the AVOCADO services contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
  2. Indemnification.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of AVOCADO, Delivery Persons (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 13 and Section 15 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, Merchant Product Listing, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless AVOCADO from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of AVOCADO. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party express prior written consent. AVOCADO assumes no liability, and shall have no liability, for any infringement claim pursuant to section 16(iii) above based on Merchant’s access to and/or use of the AVOCADO Platform following notice of such an infringement claim; any unauthorized modification of the AVOCADO Platform by Merchant; or Merchant’s combination of the AVOCADO Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

  1. Limitation of Liability.

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID FEES OWED BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

  1. Insurance.

During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

  1. Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY (AVOCADO) AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE

REFERRED TO AS THE “ARBITRATION AGREEMENT”.

  1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST THE COMPANY—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
  2. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to AVOCADO’s registered The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com/ (under the Rules/Clauses tab) or by calling JAMS at 800-352-5267. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver of fees from JAMS, the Company will pay them for you. In addition, the Company will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
  3. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.
  4. Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in SECTION 19(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
  5. Waiver of Class or Consolidated Actions; Severability. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO

RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 23, and all other provisions of this SECTION 19 (Dispute Resolution) shall remain in force. If any provision of this SECTION 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this SECTION 19.

  1. Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor the Company can force the other to arbitrate as a result of this Agreement. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your AVOCADO username (if any), the email address you used to set up your AVOCADO account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: merchant@avocadonext.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY.
  2. This Arbitration Agreement will survive any termination of your relationship with the Company.
  3. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.
  4. Franchisees

Franchisees operating a store concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by AVOCADO to the Franchisee

  1. Partner Code of Conduct.

Merchant agrees to comply with the https://www.AVOCADO.com/partner/code-of-conduct, which may be updated by AVOCADO from time to time.

22. General Provisions.

Nothing in these Terms is to be construed as creating an agency, partnership, or joint venture relationship between AVOCADO and Merchant, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Sign-Up Sheet executed between Merchant and AVOCADO, these Terms form part of an Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws principles thereof. Except as set forth above in SECTION 19 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of San Francisco, California. Merchant may not assign this Agreement in whole or in part without AVOCADO’s prior written consent. AVOCADO may freely assign this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder). AVOCADO’s address is 2040 Martin Ave, Santa Clara, CA 95050. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

Schedule 1

Additional Fees (Additional fees are cumulative in nature)

DescriptionRateComment
Expired or spoiled items except for driver errorAt costIf the item offered by the merchant is expired or spoiled as reported by the customer, the customer will be refunded for the cost of the item. The merchant must prove that items were spoiled solely due to driver error. Example, bad stacking of the items may result in spoilage.
Invalid replacements done by the merchant shopperAt costIn case the Item Replacement Process is not followed, the customer will be refunded (upon customer request) for the cost of the item.
Incorrect item providedAt costIn cases when the correct item as described in the app is not provided or a replacement is provided without marking it as such on the app, the customer will be refunded (upon customer request) for the cost of the item.