TERMS & CONDITIONS
Last updated 02.10.2020
The Fruit Truck
Welcome and thank you for visiting MyFruitTruck.com (“Site”) and our Terms and Conditions (“Terms”).
PLEASE REVIEW THE TERMS CAREFULLY. IF YOU DO NOT AGREE TO THE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO USE THE THE FRUIT TRUCK SITE OR PRODUCTS IN ANY MANNER OR FORM.
The Fruit Truck (“We,” “Our,” “Us,” or “Company”) operates this Site. You agree to be bound by the following Terms, in their entirety, when you: (1) Use, access, or visit the Site; (2) Purchase or receive any good or service offered through the Site, including, but not limited to, pick up of fruit or protein products; (3) Listen to, access, or view any of the text, audio, video, graphics, or other content featured on the Site or App (“Content”); (4) access links to or view The Fruit Truck's social media pages or accounts on third-party social media websites, including, but not limited to, Facebook, Instagram, Pinterest, Twitter, Snapchat, and LinkedIn (“Social Media”); (5) Purchase, redeem, or sign up to receive or send The Fruit Truck gift certificates (including, for the purposes of these Terms, electronic versions of both) or Trial Offers, Sweepstakes, Contests, or Promotions(“Vouchers”, as defined in Section 9).
INFORMATION ABOUT US
The Fruit Truck
d/b/a The Fruit Truck
is a Limited Liability Company in the State of South Dakota with offices at 2100 East Rice Street,
Sioux Falls, SD 57103
SERVICE AVAILABILITY AND YOUR STATUS
The MyFruitTruck.com site is intended for use by individuals in the United States of America (“Serviced Countries”). As such, by placing an order through our Site you warrant that you: (1) Are legally capable of entering into these Terms; (2) Are at least 18 years old; (3) Are a resident of the United States.
The latest Terms will be posted on the Site, and you should review the Terms before using any Products offered by The Fruit Truck and from time to time after. By your continued use of MyFruitTruck.com, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Terms in effect at the time you access any Offerings offered by The Fruit Truck (other than for changes to the price/billing or dispute resolution pursuant to the preceding paragraph). All other amendments or modifications to the Terms shall be effective immediately upon publication on the Site.
To utilize specific features on the Site, individuals will need to create an account with The Fruit Truck. Should you create an account with The Fruit Truck, you agree to (1)provide accurate and up-to-date information, as well as updating the information as necessary; (2) maintain the security of your password and accept the risks associated with access to your account which is not authorized by you; and (3) notify us as soon as possible either at hello@MyFruitTruck.com or call (855) 711-6677 if you believe there have been any breaches to the security of the Site or your account information.
To deactivate your account, please call The Fruit Truck Customer Care at (855) 711-6677 or email hello@MyFruitTruck.com stating that you wish to terminate your account, along with your full name and registered email address.
THE FRUIT TRUCK SERVICES
The Fruit Truck is a pre-order, location-based delivery service of fruits, produce, meats, poultry, and seafood. The Fruit Truck may make other products available from time to time.
Given the perishable nature of many of our products, market conditions, and product supply beyond our control, we reserve the right to substitute products without prior notice. While we make every effort to ensure that you are provided with the very best products, substitutions may occasionally be required. If such a substitution is required, we will make reasonable efforts to notify you before your scheduled delivery date. If you have any issues with any substitution, please contact us at hello@MyFruitTruck.com or call (855) 711-6677.
The Fruit Truck may offer discount promotions, free/discounted trials, or other types of vouchers (“Vouchers”). To utilize the offer on a Voucher, users need to create an account through the Site input their information and the code found on the Voucher (“Voucher Code”) to redeem. If you purchase any Voucher, Voucher is deemed to have been sold at the time of payment for it. The discount found on the Voucher lasts for a limited time unless specifically stated otherwise on the Voucher.
Similarly, a Voucher may only be used once and may not be copied, reproduced, distributed, or published either directly or indirectly in any form or stored in data retrieval systems without our prior written approval. The Fruit Truck reserves the right to withdraw or deactivate any Voucher (other than one which has been purchased) for any reason, at any time. Vouchers may only be redeemed through our Site and not through any other website or method of communication.
The Fruit Truck posts its Delivery Schedule on the Site and is subject to change without notice. There may be circumstances, such as adverse weather conditions, availability of products, mechanical failures, or the like, that make it necessary for changes to our Delivery Schedule. Delivery Schedule changes will be communicated to you via email, text, telephone, or by updating our delivery schedule on our Site. Delivery dates and locations are not guaranteed, and you agree to hold The Fruit Truck harmless from damages beyond the full refund of your order for failure to meet any Delivery Schedule commitment. If you have any questions about your area and delivery, please contact Customer Care at hello@MyFruitTruck.com or call (855) 711-6677. To deactivate your account, please call The Fruit Truck Customer Care at (855) 711-6677 or email hello@MyFruitTruck.com stating that you wish to terminate your account, along with your full name and registered email address.
RETURN AND REFUND POLICY
Refunds must be requested via email at
In the event that you are unhappy with your order, please contact us at refunds@MyFruitTruck.com. You must do so within five (5) days of the date you’ve picked up the order and include a description of your concern. We reserve the right to require photographs of your order. Please do not dispose of your order or the box containing your order until directed to do so by a representative of The Fruit Truck.
For Fruit Orders: No refunds will be given for perishable fruit. At our discretion, we may provide a The Fruit Truck Credit to be used on a future purchase, up to the amount of your original purchase.
For Protein (Meat/Seafood, etc.) In the event, you cancel your order, or if there are changes in our Delivery Schedule, we will refund your order, in full, to the original form of payment. In the event that you are unhappy with your order, please contact us at refunds@MyFruitTruck.com. You must do so within five (5) days of the date you’ve picked up the order and include a description of your concern. We reserve the right to require photographs of your order. Please do not dispose of your order or the box containing your order until directed to do so by a representative of The Fruit Truck.
PLEASE NOTE THAT REFUNDS MAY TAKE UP TO FOURTEEN (14) BUSINESS DAYS AND THAT THE FRUIT TRUCK CANNOT GUARANTEE THE DATE ON WHICH THE REFUND WILL OCCUR. THE FRUIT TRUCK CANNOT MAKE REFUNDS AVAILABLE IMMEDIATELY AS A MERCHANT SERVICES PROVIDER MUST process ALL REFUNDS.
We will not be liable or responsible for any failure to perform or delay the performance of, any of our obligations that are caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes, but is not limited, to the following: (1) Strikes, lock-outs, or other industrial action; (2) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war, or threat or preparation for war; (3) Fire, explosion, storm, flood, earthquake, subsidence, epidemic, or other natural disaster; (4) Impossibility of the use of railways, shipping, aircraft, motor transport, or other means of public or private transport; (5) Impossibility of the use of public or private telecommunications networks; and (6) The acts, decrees, legislation, regulations, or restrictions of any government. Our performance under these Terms is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.
Upon receipt of your order, you are responsible for all products contained within for any defects or other problems upon receipt. The risk of loss and/or damage passes to you at the time of pick up or delivery. We highly recommend that you review the USDA’s instructions on safe food handling, which can be found here. All items are solely your responsibility from the time of receipt. As such, you are solely responsible for any preparatory steps, storage, safe washing (we recommend that all fresh produce is washed before consumption). We recommend that you use a thermometer to measure the temperature of any poultry, seafood, or meat products that you have purchased, and, under USDA Guidelines (found here), you should utilize said thermometer to ensure that they are at (or below) 41 degrees Fahrenheit.
The Fruit Truck is the owner and operator of the Site and duly licensed to utilize, all content, features, and functionality (including, but not limited to, all information, text, graphics, software, video, and audio, and the design, selection, and arrangement thereof) published on the Site, or any The Fruit Truck offerings, all of which may be protected by the United States and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
Users are only permitted to use these materials to utilize The Fruit Truck offerings for personal, non-commercial use. Any other use of The Fruit Truck materials, including modification, distribution, or reproduction for purposes other than the personal usage of The Fruit Truck's offerings, without written approval from The Fruit Truck, is prohibited.
Trademarks. "The Fruit Truck” and all other The Fruit Truck marks and logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of The Fruit Truck or otherwise proprietary to The Fruit Truck and may not be used by you for any reason other than as expressly permitted by the Terms. All other trademarks, service marks, product names, and company names, logos, designs, or slogans appearing by and through the The Fruit Truck offerings are the property of their respective owners and you do not acquire any ownership rights in or to such marks, logos, or names by using and/or accessing the offerings.
The Fruit Truck reserves the right to terminate any end-users access to the The Fruit Truck site where that end-user infringes upon third-party copyrights. Please notify us t hello@MyFruitTruck.com if you believe any infringement has occurred.
You may use The Fruit Truck Site and products only for lawful purposes and by these Terms and Conditions. You agree not to:
In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
To exploit, harm, or to attempt to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
To send, knowingly receive upload, download, use, or re-use any material that does not comply with the Content Standards.
To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.
To impersonate or attempt to impersonate The Fruit Truck, an employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm The Fruit Truck or users of the Site or expose them to liability.
Additionally, you agree not to:
Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site.
Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
Use any device, software, or routine that interferes with the proper working of the Site.
Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
Otherwise, attempt to interfere with the proper working of the Site.
NON-USER THIRD PARTY CONTENT
We may display content, advertisements, and promotions from third parties through the Site, in mailings or emails containing information regarding other companies, or with or contained within The Fruit Truck (“Third Party Content”). Third-Party Content is not endorsed, adopted by, or controlled by The Fruit Truck, and we make no representations or warranties of any kind regarding such Third-Party Content, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third-Party Content through or on The Fruit Truck offerings (including, but not limited to, our Site, Social Media, other Content, or Products) are solely between you and such third parties.
You agree that you will not violate any statute, regulation, intellectual property (including, but not limited to, copyright and trademarks), contractual obligations, other third party rights, or commit a tort, and that you are solely responsible for your conduct while accessing or using the Site. You agree that you will abide by these Terms and will not: (1) display personal or confidential information related to any third party, including, but not limited to, street addresses, email addresses, last names, telephone numbers, and URLs; (2) attempt to access or use another user’s account unless permitted to do so, in writing, from both the user and The Fruit Truck; (3) engage in any behavior which is deemed to be harassment, threatening, stalking or predation of any other person; (4) make any claim, statement, or assertion, or imply, that your claim, statement, or assertion is endorsed by The Fruit Truck without The Fruit Truck express written consent; (5) engage in the commercial solicitation of other end-users; (6) collect or record end-users’ personal information without their prior written consent; (7) develop or use any third party applications that interact with any of The Fruit Truck Content, the Site, without our prior written consent; (8) use the Site in any way that prevents or inhibits other end-users from fully utilizing the Site, or in a way that could overburden or interfere with the functioning of the Site in any manner;(9) use any manual or automatic process, means, or interface (including, but not limited to robot, spider, script or, browser extension), which The Fruit Truck has not authorized to access the Site, to retrieve or index data; (10) decipher or reverse engineer any portion of the Site that may reveal source code or bypass items designed to obstruct, limit, or stop access to any Content, specific site within the Site, or code within the Site; (11) access or attempt to access any portion or feature of the Site which you are not authorized to access, pursuant to these Terms or any subsequent agreements; or (12) use the Site for any illegal purpose.
Pursuant to the specifications located in these Terms, the Site, or any social media platforms on which The Fruit Truck has an official page or feed, may include, now or in the future, areas that allow users to post content, including but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, or other materials (“User Content”). Any User Content you post must, in its entirety, comply with all applicable federal, state, local and international laws and regulations, and these Terms including, but not limited to, the Prohibited Uses and User Content Standards.
You understand and acknowledge that you are responsible for any User Content you submit or contribute and your use of any Interactive Areas of the Site, and you, not The Fruit Truck, have full responsibility for such content and use, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Site. You understand and acknowledge that User Content that you share with a third party through the Site or third-party platforms will be viewable by others in accordance with the privacy settings you establish.
USER CONTENT STANDARDS
Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Website, you represent and warrant that:
You own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
You grant The Fruit Truck and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
All of your User Content does and will comply with these Terms.
By using the Interactive Areas of the Site, you further agree not to create, post, share or store any of the following: (1) Any content that would encourage, either express or implied, conduct that could be deemed a violation of a statute or regulation; (2) Any content that is determined, by The Fruit Truck in its sole determination, to be indecent, obscene, abusive, threatening, pornographic, or harassing; (3) Any content that violates the proprietary rights of a third party; (4) Any content that contains confidential information; (5) Any content that impersonates, or misrepresents your affiliation with, any person or entity without their express permission; (6) Any content that contains any viruses or other computer code, files, or programs designed to harm, inhibit the operative ability of, or destroy part/all of the Site; (7) Any content that contains solicitations, including, but not limited to, any advertisements, promotional materials (other than those directly related to The Fruit Truck), and political campaign requests; (8) Any content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Site, Products, or offerings, or that may expose The Fruit Truck or others to any harm or liability of any type.
Although we are not required to regulate User Content, we reserve the right, in our sole discretion, to monitor, edit or remove User Content posted or stored on the Site or the App for any reason. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
RIGHTS IN USER CONTENT
We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Site, to our pages or feeds on third party social media platforms (e.g., The Fruit Truck Facebook page, Instagram page, or Twitter feed), you hereby: (1) grant The Fruit Truck and its affiliates and subsidiaries a nonexclusive, royalty-free, transferable, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes; (2) represent and warrant that (a) you own and control all of the rights to the User Content or you otherwise have the lawful right to post such User Content, (b) the User Content is non-confidential and you authorize The Fruit Truck to use such User Content for the purposes described in these Terms, (c) the User Content is accurate and not misleading or harmful in any manner, and (d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
You agree to defend, indemnify and hold harmless The Fruit Truck, our affiliates, service providers, and licensors and their respective directors, officers, agents, contractors, partners, licensors, representatives, suppliers and employees, from and against any loss, liability, threatened or actual claim, demand, damages, costs, and expenses, (including reasonable legal fees) arising out of or in connection with your use of the Site, the Products or any offerings, or any information obtained therefor other than as expressly authorized in these Terms. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate as fully as reasonably required by us. You agree to promptly notify The Fruit Truck of any third-party claims, cooperate with The Fruit Truck in defending such claims, and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and The Fruit Truck.
YOU ARE SOLELY RESPONSIBLE FOR AND ASSUME ALL RISKS RELATED TO THE PROPER AND SAFE PREPARATION (INCLUDING STORAGE, and WASHING) US AND CONSUMPTION OF THE FRUIT TRUCK PRODUCTS. AS SUCH, ALL CONTENTS OF THE RESPECTIVE PRODUCTS ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” AND, TO THE FULLEST EXTENT ALLOWABLE UNDER THE APPLICABLE LAW, ALL EXPRESS AND IMPLIED WARRANTIES ARE DISCLAIMED. THIS SPECIFICALLY INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND WARRANTIES FOR THE NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
ALLERGENS. PLEASE NOTE THAT THE EIGHT MAJOR ALLERGENS, AS DETERMINED BY THE US FOOD AND DRUG ADMINISTRATION, WHICH ARE WHEAT, EGG, SOY, MILK, TREE NUTS, PEANUTS, FISH, AND SHELLFISH, MAY BE PROCESSED, STORED OR PACKAGED IN THE FRUIT TRUCK SUPPLIER’S FACILITIES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WHILE THE FRUIT TRUCK TAKES PRECAUTIONS TO LIMIT ANY CROSS-CONTAMINATION, CROSS-CONTAMINATION MAY OCCUR BETWEEN FOOD PRODUCTS, AND THUS, PRODUCTS MAY HAVE BEEN EXPOSED TO OR CONTAIN SOME OR ALL OF THE ALLERGENS LISTED. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. THE FRUIT TRUCK DOES NOT REPRESENT OR WARRANT THAT ANY NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION ON OUR SITE IS ACCURATE OR COMPLETE SINCE THIS INFORMATION IS PROVIDED BY THE PRODUCT SUPPLIERS. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON OUR SITE AND THAT YOU CONSULT THE PRODUCTS LABEL OR CONTACT THE FRUIT TRUCK IN ORDER TO PROVIDE INFORMATION TO CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY OR ALLERGIC CONCERN OR QUESTION ABOUT A PRODUCT.
THE FRUIT TRUCK DOES NOT GUARANTEE THE ACCURACY OF PRODUCT INFORMATION. IN THE EVENT OF AN ERROR, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION AND SUBJECT TO THESE TERMS, TO CORRECT SUCH ERRORS AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A CREDIT REFUND. YOU FURTHER AGREE THAT THE PRODUCTS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS DISPLAYED ON THE SITE DUE TO Several FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, PREPARATION METHODS AND VARIABILITY EQUIPMENT AND APPLIANCES. THE SITE MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
We reserve the right to change any Content and to modify, suspend or stop providing access to the Site (or any features or functionality of the Site) and the Products at any time without notice and without obligation or liability to you.
LIMITATION OF LIABILITY; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE FRUIT TRUCK, ITS AFFILIATES (INCLUDING, BUT NOT LIMITED TO, THEIR LICENSORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS, REPRESENTATIVES AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY/PUNITIVE DAMAGES. THIS LIMITATION SHALL INCLUDE, BUT IS NOT LIMITED TO, DAMAGES RELATED TO PERSONAL INJURY; PAIN AND SUFFERING; EMOTIONAL DISTRESS; BUSINESS INTERRUPTION; LOSS OF PROFITS, REVENUE, BUSINESS OR ANTICIPATED SAVINGS, USE, GOODWILL, DATA; AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE) BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
ADDITIONALLY, IN NO EVENT SHALL THE FRUIT TRUCK BE LIABLE FOR DISPUTES ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE, OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT, CONTENT OF LINKED THIRD PARTY SITES), OR THE ORDERING, RECEIPT, OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO,ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE FRUIT TRUCK, OR FROM EVENTS BEYOND THE FRUIT TRUCK'S REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS,BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE THE FRUIT TRUCK PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH THE FRUIT TRUCK PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY, AND IN SUCH JURISDICTIONS THE LIABILITY OF THE FRUIT TRUCK SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
THE LIMITATIONS outlined in THIS SECTION SHALL NOT AFFECT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW/JURISDICTION, SUCH AS LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR ACTS OR OMISSIONS, OR FOR OUR GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
SITE AND PRODUCT MODIFICATION
The Fruit Truck reserves the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the rates, delivery, or provision of the Products at any time.
DISPUTE RESOLUTION & BINDING ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE FRUIT TRUCK AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Arbitration Is Binding. YOU AND THE FRUIT TRUCK ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND THE FRUIT TRUCK ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF PRODUCTS OR OFFERINGS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
This shall not apply to any disputes arising from disputes in which a party seeks to resolve an issue in small claims court, seeks injunctive relief, or other equitable relief related to the use of proprietary rights.
Preliminary Resolution Attempts. You agree to notify The Fruit Truck within forty-five (45) days of the occurrence or alleged occurrence of any dispute that could rise to become a small claim or claim that can be arbitrated according to these Terms. Notification can occur by contacting The Fruit Truck by mailing us at 2100 East Rice Street, Sioux Falls, SD 57103. Upon receipt of the notification, both parties shall attempt to resolve the issue within thirty (30) days. If we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration in accordance with these Terms.
Waiver of Class Actions & Class Arbitrations. To the fullest extent permitted by law, you agree to arbitration on an individual basis, and to give up any rights to bring, join, or participate in any class action or representative action with respect to any claim, dispute or controversy that you may have against The Fruit Truck. In any such dispute, NEITHER PARTIES ARE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR In A Private Attorney General Capacity. Unless both you and The Fruit Truck agree otherwise, the arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit, and to pay the attorney’s fees and court costs that The Fruit Truck incurs in seeking such relief.
This provision preventing you from bringing, joining, or participating in class action lawsuits and class arbitrations: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. The arbitral tribunal has no power to consider the enforceability of this class action and class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. You may opt-out of these dispute resolution provisions. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced.
Arbitration Proceedings. You can choose whether the arbitration proceeds in person, by telephone, or based only on submissions. Nothing contained herein shall be construed to preclude any party from (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorneys’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.
Right to Opt Out. You may pursue your claim in small-claims court rather than arbitration (as it pertains to Section 24) if you provide written notice of this intention within sixty (60) days of the day you agreed to (or are determined to have agreed to) these Terms. If you choose to opt out, send written notice to Compliance, The Fruit Truck, 2100 East Rice Street, Sioux Falls, SD 57103. Please include your name, contact information, and a clear statement that you would like to opt out of the provisions related to binding arbitration. Please note that all other provisions of the Terms will still apply. The Arbitration or smalls-claim court proceeding will be limited solely to your individual dispute.
GOVERNING LAW AND VENUE
All matters relating to these Terms, your access to and use of the Site, and your order, receipt, and use of the Products, and any dispute or claim arising therefrom or related thereto shall be governed by and construed in accordance with the laws of the State of South Dakota, without regard to conflict of law rules or provisions (whether of the State of South Dakota or any other jurisdiction). Any dispute arising out of, or related to, these Terms or The Fruit Truck’ products not subject to arbitration or cannot be heard in small claims court, shall be resolved exclusively in the state or federal courts of the State of South Dakota and the United States, respectively, sitting in the State of South Dakota, County of Minnehaha. You waive any objections to the exercise of jurisdiction over you by such courts and venue in such courts.
TERMINATION AND SURVIVAL
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate or suspend your right to access or use the Site and to order, receive and use the Products, at any time and for any or no reason, including, without limitation, any violation of these Terms. You acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, for which you have received a corresponding delivery, to the fullest extent permitted by applicable law.
SEVERABILITY AND WAIVER
If any of these Terms and Conditions or any provisions of a Contract are determined by any competent jurisdiction to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.
No waiver by The Fruit Truck of any provision in these Terms and Conditions shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and any failure to assert a right or provision under these Terms does not constitute a waiver of such right or provision.
These Terms and any document expressly referred to in them constitute the whole agreement between you and The Fruit Truck, and supersede all previous discussions, correspondence, negotiations, arrangements, understandings, or agreements between us relating to the subject matter of any Contract. These Terms and any rights and licenses granted hereunder may not be transferred or assigned by you without the prior written consent of The Fruit Truck. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity.