TERMS OF USE

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY BEFORE USING THIS SITE OR MOBILE DEVICE APPLICATIONS. BY USING OR ACCESSING THIS SITE, DOWNLOADING OR USING A MOBILE DEVICE APPLICATION OR USING THE SERVICES THEREIN, YOU AGREE TO THESE TERMS AND CONDITIONS OF USE.

Last updated: March 30, 2017

Apio Inc. (“Apio”), owns and operates this site, portions of other web pages and web content (collectively, the “Site”), and mobile device applications (“App”) through which you have accessed these Terms of Use. Apio offers various services that are accessible to users through this Site and/or the App, such as, for example, information about and access to food products, recipes, etc. (“Products”) and resources relating and access to and purchase and delivery of Products (collectively “Services”). Some Services are only available to users who have an account with Apio, such as purchase of the Products. Other Services are available to anyone on the Site, such as learning more about the Products and viewing resources relating to the same. By visiting, using and/or submitting information to the Site, downloading or using the App or using the Services, you agree to be bound by the terms and conditions of these Terms of Use (this “Agreement”) and Apio’s Privacy Policy (the “Privacy Policy”), which is incorporated herein in its entirety for all purpose. If you do not agree to this Agreement and of the terms and conditions stated herein, do not use the Site, App or Services and leave the Site and uninstall the App.

The Site is Not Intended for Minors

This Site is generally not intended for anyone under the age of 18. If you are under the age of 18 and have reached this Site, please leave the Site immediately.

Your Compliance with this Agreement

You acknowledge that this Agreement is supported by reasonable and valuable consideration, the receipt and adequacy of which is hereby acknowledged. Without limiting the foregoing, you acknowledge that such consideration includes, without limitation, your ability to visit, use and/or submit information to the Site and/or App and use the Services.

You represent that you have the capacity to be bound by this Agreement, or if you are accepting this Agreement on behalf of a business or other legal entity (“Business”), you represent and warrant that you have the authority to enter into this Agreement on its behalf and you intend to bind it hereto. The terms “you, “your” and similar variants in this Agreement include both you and the Business. In order to determine your compliance with this Agreement, Apio may monitor your access and use of the Site, App and/or Services in accordance with Apio’s Privacy Policy.

Your Access and Use of the Site, App and/or Services

Access to the App and select Services is account-based. To access and /or use the App or select Services you must register an Account (defined below) and log into your Account through the Site or App. By entering this Agreement, Apio is providing you a limited, non-exclusive, non-transferable, non-sublicensable license to use the Site and select Services. Your right to access and use the Site and Services is personal to you and is not transferable by you to any other person or entity. You are only entitled to access and use the Site, App and Services for lawful purposes and pursuant to the terms and conditions of this Agreement and the Privacy Policy.

Your access and use of the Site, App and/or Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Site, App or Services or other actions that Apio, in its sole discretion, may elect to take. Apio reserves the right to suspend or discontinue the availability of the Site, App or Services and/or any portion or feature of the Site, App or Services at any time in its sole discretion and without prior notice.

You understand and agree that you have no interest, monetary or otherwise, in any feature or content contained in the Site, App or Services, including without limitation, the Account registered to you, posted User Generated Content (defined below), etc., in the real world without Apio’s express written consent.

Additionally, you may not:

Sublicense, lease, loan, or otherwise transfer your Account or use the Account, Site, App or Services for commercial purposes;
Modify, adapt, reverse engineer or decompile the Site, App or Services software (“Software”), or otherwise attempt to derive source code from any Software, Service or the App or Site;
Create any copies or derivative works regarding the Site, App, Software or the Services;
Use maillist, listserv, an auto-responder or spam on the Site, App, Software or Services or any processes that run or are activated while you are not logged in to your Account, or that otherwise interfere with the proper working of the Site, App, Software or Services;
Record, process or mine information about other users;
Attempt to gain unauthorized access to the Site, App, Services, Accounts, Software, computer systems or networks connected to the same;
Use the Site, App or Services to violate the security of any computer network, disrupt or interfere with the security of, or otherwise cause harm to the Site, App Software or Services;
Crawl, scrape, index or spider any page or portion of the Site, App, Software or Services; or
Otherwise use the Account, Site, App, Software or the Services except as expressly provided in this Agreement.
Any action by you that, in Apio’s sole discretion: (i) violates the terms and conditions of this Agreement and/or the Privacy Policy; (ii) restricts, inhibits or prevents any access, use or enjoyment of the Site, App or Services; or (iii) through the use of the Site, App or Services, defames, abuses, harasses, offends or threatens, shall not be permitted, and may result in your loss of the right to access and use the Site, App or Services and/or termination of your Account and this Agreement. You shall not metatag, provide links to or frame the Site, App or Services without Apio’s prior express written permission.

Account Eligibility

To use select Services offered under this Agreement, you must register for a user account (an “Account”) on the Site. Accounts are available only to adult individuals 18 years of age or older who have the necessary power and authority to enter in this Agreement. By accepting the terms of this Agreement, you represent that you are an adult 18 years of age or older and have the necessary power and authority to enter in this Agreement.

When you register for an Account, you will be asked to select Access Credentials (defined below). The Access Credentials will allow the owner or holder of the Account access to and use of select Services. You agree to accept full responsibility of all obligations under this Agreement for the actions of any user of any Account created by you.

Apio may suspend, terminate, modify, or delete an Account at any time for any reason, with or without notice to you. Most Account suspensions, terminations, and/or deletions are the result of violations of this Agreement or are a result of an abandoned Account.

Your Access and Use of Services on the Site

You Must Maintain the Integrity of Your Information. To use certain Services and/or the App, you may be required to provide Apio with information about you (“Registration Data”). If you provide Registration Data to Apio then you agree to provide true, current, complete and accurate information, and not to misrepresent your identity. You also agree to keep Registration Data current and to update the Registration Data if any of the Registration Data changes. Apio’s collection, use and disclosure of the Registration Data is governed by this Agreement and Apio’s Privacy Policy.

You Must Maintain the Security of Any Access Credentials Issued to You. To use the App and/or select Services offered under this Agreement, you must register for an Account on the Site and/or App. If you create an Account on the Site, you will be asked to create a password and a user name upon completing the registration process (“Access Credentials”). It is solely your responsibility to maintain the security of your Access Credentials. You agree that Apio shall not be liable for any loss that you may suffer as a result of the authorized or unauthorized use of your Access Credentials by a third party. You shall not allow any other person to use any Service or the App via your Access Credentials. You agree to ensure that you exit from your Account at the end of each session.

You Must Notify Apio of a Breach. You agree to immediately notify Apio of any unauthorized use of your Access Credentials, any unauthorized use of any Account that you may have with Apio, any violation of this Agreement, or any other breach of security known to you in connection with any Product or Service available on the Site or App by sending an email to info@eatsmart.net. Apio has the right to suspend or terminate your Account and refuse your use of the App, Software and/or Services for any reason, including for violations of this or any other agreement with Apio.

You Are Responsible for Your Decisions. Apio and its affiliates, through the Site, App and/or Services, may provide a venue through which you can obtain information and you can find third-party service providers (“Service Providers”). Apio does not endorse or recommend the products or services of any Service Provider and is not an agent or advisor to you or any Service Provider. Apio does not validate or investigate the licensing, certification or other requirements and qualifications of Service Providers. It is your responsibility to investigate Service Providers. You acknowledge and agree that Service Providers are solely responsible for any services that they may provide to you and that Apio shall not be liable for any losses, costs, damages or claims in connection with, arising from or related to your use of a Service Provider’s products or services. You acknowledge and agree that you rely on your own judgment in selecting any products or services offered by Service Providers.

No Guarantee of Quotes, Fees, Terms, Rates, Coverage or Services. Apio does not make any warranties or representations regarding any pricing, quotes, fees, terms, rates, discounts, specials, coverage or services offered or made available through the Site, App or Services or by Service Providers. Apio reserves the right to adjust prices at any time which includes items in your cart. Due to possible information misrepresentations, we may correct typographical and printing errors related to prices at any time. Members should be aware that product prices can and do fluctuate as a result of a supplier updating their wholesale pricing. Further, the availability of some Products may also change without notice.

Fees and Payments

Access to and use of the Site, Services and an Account is currently free for all users. However, at any time, Apio may choose to charge or change fees for access to the Site, App and/or Services, and Apio will notify you of those charges at the time that Apio offers the same for a fee. Apio may, in its sole discretion, and by notifying you on the Site or App or through the Services, of such a change to this policy and begin charging for access to the Site, App and/or Services, and Apio may, in its sole discretion, add, remove or change the features and Services Apio offers or the fees (including the amount and type of fees) Apio charges at any time. If Apio introduces a new service or charges a new fee, Apio will post a reasonable notification of the fees for that service at the launch of the service or the start of charging a new fee. Upon the posting of such a notification, you agree to pay all fees and charges specified and all applicable taxes for your continued use of the applicable Site, App and/or Services.

Financial Transactions on the Account

You acknowledge and agree that Apio is authorized, but not required, to act on payment instructions received from anyone using your Account. You authorize Apio to: (a) initiate debits or charges against your financial account or credit card periodically for the amount then due for purchases made and Fees or other charges due (if any); and (b) initiate any other debits or credits authorized by you or anyone using the Account registered to you. All payments must be made in U.S. dollars from a U.S. bank or via alternative payment methods made available by Apio. Electronic Benefit program payments (EBT or Food Stamps) for internet grocery purchases are not accepted at this time. You acknowledge that transactions may be facilitated by a third party payment processor (the “Processor”), and agree that Apio may share your information with the Processor, for this purpose. All amounts paid are final and non-refundable, except where and to the extent required by law. All fees, balances or other charges not paid by you within thirty (30) days from the date of purchase are subject to interest charges. You are responsible and liable for any fees, including attorneys’ fees and collection costs, that Apio may incur in its efforts to collect any unpaid balances from you. You are also responsible for paying all taxes on any purchase, Fees or other charges. If Apio is obligated to collect any taxes, such taxes will be charged to and deducted from your Account as appropriate.

From time to time Apio may offer coupons. The redemption value for such coupons will be applied upon validation and the satisfaction of purchase requirements and/or other conditions as stated in connection with such coupons. Apio will not accept third party coupons.

After an order is placed by you or someone using your Account, Apio reserves the right to request credit card authorization for up to 110% of the order total to accommodate updates to your order. You will only be charged the actual final cost. During the authorization process, your card is validated and must have enough available funds for the transaction to be approved. Upon approval, the order will be accepted. Apio reserves the right to determine a spending limit for your account.

Delivery

Delivery will be made to the delivery address from your Registration Data. You are responsible for ensuring that someone is present at the delivery address to accept delivery of your order at the time specified. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the order. If we cannot deliver your order or must make an additional delivery because no one is at the delivery address to receive the order at the specified time, you will be assessed an additional fee. Apio’s liability for missing a delivery or pickup time is limited to delivery at a later agreed time at no additional charge.

Some may have the choice to have the delivery left at the delivery address, e.g. on your front porch. Please understand that such deliveries will be left unattended at your designated delivery address. Apio is not responsible for damage or theft to an unattended delivery if you selected that option. Apio reserves the right to refuse to leave an order unattended if our driver considers the circumstances to be unsuitable or unsafe or, if severe weather conditions exist, choose a safe or protected area for your delivery.

Some may have the choice to pick up an order, for example, from select FedEx locations. Such users will select a location from the locations offered by Apio and a time period. Apio cannot guarantee the Products not picked up within the time period and no refund will be offered for Products that were not picked up and were returned to Apio. Also, Apio is not affiliated with FedEx. Therefore, any user selecting pick up should review the hours of operation, location and policies of the FedEx location selected.

Transmissions, Submissions and Postings to the Site

You may be able to post user-generated content, e.g. recipes, reviews, ratings, comments, videos, photos, etc. (“User Generated Content”), on the Site or App or through the Services. In connection with posting such User Generated Content, we may ask you for some personal information, e.g. first and last name, location and email. The collection, use and disclosure of such personal information is governed by this Agreement and Apio’s Privacy Policy.

You will remain the owner of the User Generated Content you post. You are responsible for the User Generated Content you have posted and that posted from any of your Accounts.

For all User Generated Content posted by you or through your Account, you represent and warrant that: (i) the poster has the right to post the User Generated Content, (ii) neither Apio’s nor any third party’s rights, laws, statutes, ordinances or regulations, e.g. COPPA, CalOPPA, etc., will be violated by such posting, (iii) you are not being compensated for the posting; and (iv) the User Generated Content: (a) is not harmful, trade libelous, fraudulent, threatening, abusive, harassing, defamatory, pornographic, obscene, explicit or vulgar, libelous, or otherwise injurious, objectionable or offensive or that infringes on Apio’s or any third party’s rights of publicity or privacy, (b) does not make the security of your Account, the Site, App, Software and/or Services vulnerable in any way, (c) does not contain any viruses, worms, Trojan horses, trap doors, back doors, easter eggs, time bombs, cancelbots or other code or computer programming routines that contain contaminating or destructive properties or that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information, (d) does not contain or constitute chain letters, mass mailings, political campaigning, or any form of “spam,” (e) does not contain information that is false, inaccurate or misleading and (f) does not include or constitute commercial advertisements or solicitations. You acknowledge that Apio and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any User Generated Content or material that is available through the Site, App, Software and/or Services.

By posting User Generated Content by you or through your Account, you grant Apio an irrevocable, perpetual, non-exclusive, transferable, sub-licensable, fully paid, worldwide license to use, copy, publicly perform, publicly display, reformat, edit, translate, excerpt (in whole or in part) and distribute such User Generated Content for any purpose, commercial, advertising, or otherwise, on or in connection with Apio, the Site, App, Services, other websites, social media platforms, in print or in other media, or the promotion thereof, to prepare derivative works of, or incorporate into other works, such User Generated Content, and to grant and authorize sublicenses of the foregoing. You also hereby grant each User of an Account, Site, App, and/or Service a worldwide, non-exclusive, fully paid, royalty free, worldwide license to use, copy, publicly perform, publicly display, host, reformat, edit, translate, excerpt (in whole or in part) any User Generated Content submitted by you during each such User’s use of the Account, Site, App, and/or Services.

Although Apio does not regularly review transmissions, submissions or postings, Apio reserves the right (but not the obligation) to review, edit, refuse to post or remove User Generated Content.

You are solely responsible for all your transmissions, submissions or postings or those submitted through your Account (e.g., User Generated Content) and the consequences of transmitting, submitting or posting them.

You irrevocably waive any and all claims and assertions of moral rights or attribution with respect to User Generated Content as against Apio.

Apio’s Intellectual Property Rights

The content in the Site, App, Software and Services, except your User Generated Content, to the extent any exists, including without limitation, the trademarks, copyrights, text, software, graphics, scripts, photos, music, videos, and the like (“Content”), is owned by or licensed to Apio and is subject to trademark, copyright and other intellectual property laws of the United States and foreign countries. Content in the Site, App, Software and Services is provided for your personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of Apio, which permission may be withheld in Apio’s sole discretion. Apio reserves all rights not expressly granted in and to the Site, App, Software, Services and Content. Apio makes no claim to any third-party names, trademarks or service marks appearing on the Site or App or through the Services or Content. Any third-party names, trademarks, and service marks are property of their respective owners.

You shall be solely responsible for any damage resulting from your or your Account’s infringement of Apio’s or any third party’s intellectual property rights regarding the Content and/or any other harm incurred by Apio or its affiliates as a direct or indirect result of your or your Account’s copying, distributing, redistributing, transmitting, publishing or using the same for purposes that are contrary to the terms and conditions of this Agreement.

Your Use of the Content

Apio grants you a limited, non-exclusive, non-transferable, non-sublicensable license to make personal use of the Content, e.g. printing a copy of a recipe; provided, however, that you shall not delete any proprietary notices. You may not modify the Content or utilize it for any commercial purpose or any other public display, distribution, performance, sale, or rental, and may not decompile, reverse engineer, or disassemble the Content, or transfer or distribute the Content to another person or entity.

Except as otherwise permitted under the copyright laws of the United States, no other copying, distribution, redistribution, transmission, publication or use, other than as expressly permitted by this Agreement, is permitted by you without the express prior written permission of Apio, which permission may be withheld in Apio’s sole discretion.

You may not use any meta tags or any other “hidden text” utilizing Apio’s name or trademarks without the express written permission of Apio, which permission may be withheld in Apio’s sole discretion.

Your Use of the User Generated Content

You agree to only use so much of the User Generated Content or portions thereof, other than your own, as is necessary to utilize the App and/or Services for their intended purposes.

Access and Interference

You agree that neither you nor any user of an your Account will use any robot, spider, scraper, deep link or other similar automated data gathering or extraction tools, program, algorithm or methodology to access, acquire, copy or monitor the Services, Software, Site or App or any portion of the Services, Software, Site or App or for any other purpose, without Apio’s express written permission which may be withheld in Apio’s sole discretion. Additionally, you agree that neither you nor any user of an your Account will: (i) take any action that imposes, or may impose in Apio’s sole discretion an unreasonable or disproportionately large load on Apio’s infrastructure; (ii) copy, reproduce, modify, create derivative works from, distribute or publicly display any Content (except for your personal information) from the Site, App or Services without the prior written permission of Apio and the appropriate third party, as applicable; (iii) interfere or attempt to interfere with the proper working of the Site, App, Software or Services or any activities conducted on the same; or (iv) bypass any robot exclusion headers or other measures Apio may use to prevent or restrict access to the Site, App or Services. Notwithstanding the foregoing, Apio grants the operators of public search engines permission to use spiders to copy materials from the Site, App or Services for the sole purpose and solely to the extent necessary for creating publicly available search indices of the materials on the Site, App or Services, but not caches or archives of such materials. Apio reserves the right to revoke these exceptions either generally or in specific cases. You shall not collect or harvest any personally identifiable information, including account names, from the Site, App or Services. You shall not: (i) use any communication systems provided on the Site or App or through the Services (such as Forums or email) for any commercial or solicitation purposes or (ii) solicit for commercial purposes any users of the Site, App or Service without Apio’s express, written permission, which permission may be withheld in Apio’s sole discretion.

Electronic Communications

When you visit the Site or App, use the Services or send email to Apio, you are communicating with Apio electronically. You consent to receive communications from Apio, its affiliates and partners electronically, including via any e-mail address you provide to Apio, text message, by phone or other similar means or through the Site, App or Services for any purposes. Although Apio may choose to communicate with you by regular mail, Apio may also choose to communicate with you by e-mail or by posting notices on the Site or App or through the Services. You agree that all agreements, notices, disclosures and other communications that Apio provides to you electronically satisfy any legal requirement that such communications be in writing. You also agree to accept such messages and at any applicable network access, data usage or similar fees.

Your Responsibility for Equipment and Related Costs

You are responsible for obtaining and maintaining all telephone, computer hardware, Internet access services and other equipment, software (including a web browser) or services needed to access and use the Site, App and/or Services and all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of the Site or App. Apio will endeavor to make the Site, App, and Services accessible on the most common web browsers and the current version of such web browsers and some common devices, but makes no representations or warranties on the same.

Third Party Links

There may be provided on the Site or App, or through the Service, links to other sites belonging to Apio’s advertisers, business partners, affiliates, Service Providers and other third parties. Such links do not constitute an endorsement by Apio of those sites, nor the products or services listed on those sites.

Apio is not responsible for the activities or policies of those sites. Apio does not endorse or recommend the products of any particular advertiser, business partner, affiliate or other third party. Apio does not guarantee that the terms or rates offered by any particular advertiser, business partner, affiliate, Service Provider or other third party on the Site or App are the best terms or lowest rates available in the market.

Mobile Devices

If Apio provides aspects of the Site, App or Services via an application for your mobile or other device, please be aware that your carrier’s normal rates and fees may apply and that the terms of this Agreement and other agreements within the App apply to your use of such mobile application.

Infringement

Apio respects the intellectual property rights of others. It is Apio’s policy to comply with the Digital Millennium Copyright Act, title 17, United States Code, Section 512, including, without limitation, responding to notices of alleged copyright infringement, and other applicable intellectual property laws.

When reporting infringing material to Apio (“DMCA Notice”) please provide:

a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Apio to locate the material;
information reasonably sufficient to permit Apio to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
a statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Upon receiving a complete DMCA Notice, Apio will

take reasonable steps promptly to notify the Account holder that Apio has removed or disabled access to the allegedly infringing material;
upon receipt of a counter notification described below, promptly provide the person who provided the notification with a copy of the counter notification, and inform that person that Apio will replace the removed material or cease disabling access to it in 10 business days; and
replace the removed material and cease disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless Apio’s designated agent (identified below) first receives notice from the person who submitted the notification that such person has filed an action seeking a court order to restrain the Account holder from engaging in infringing activity relating to the material on Apio Site, App or through the Services.
A counter notification must include:

a physical or electronic signature of the Account holder;
identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
a statement under penalty of perjury that the individual has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
the individual’s name, address, and telephone number, and a statement that the individual consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the individual’s address is outside of the United States, for any judicial district in which Apio may be found, and that the individual will accept service of process from the person who provided notification or an agent of such person.

Pursuant to the Digital Millennium Copyright Act (17 U.S.C. §512(c)(2)), Apio’s designated agent to receive notices and counter notices of claimed infringement is:

Attention: DMCA Notice

Apio Inc.

P.O. Box 727

Guadalupe, California 93434
Facsimile number of designated agent:
Email address of designated agent: info@eatsmart.net

If you wish report infringing materials other than for copyright infringement, please provide as much of the above information as possible. Although we reserve the right to remove any infringing material that we believe in good faith to be infringing material that is used without authorization by any Account holder or user or other user of the Apio Site, App and/or Services, Apio does not obligate itself to do so except in accordance with the Digital Millennium Copyright Act. We also reserve the right to suspend or delete the Account of any repeat offender.

Termination

This Agreement is effective until terminated. You may terminate this Agreement by deactivating your Account, stopping all use of the Site, App and/or Services, deleting and destroying all Content or material containing Content in your possession and providing notice of termination to info@eatsmart.net. In the event that you terminate or breach this Agreement, you will forfeit your right to any and all Fees, purchases and other payments made in connection with the Site, App, and Services and all Accounts will terminate. Apio may terminate this Agreement with or without notice by deactivating the Account and/or deleting or dissociating any User Generated Content. By way of example only, Apio may deactivate and/or terminate abandoned Accounts or Accounts which appear to be abandoned such as due to non-use for period of time. A termination of this Agreement will also act to terminate your Account. You acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Account prior to termination of this Agreement.

Patches and Updates

Apio may apply patches, updates and modifications to its Site, App, and/or Services at any time (each an “Update”), and features may change after the application of an Update. Apio may change, modify, suspend, or discontinue any aspect of any feature or Service at any time. Apio may also impose limits on certain features or restrict your access to parts or all of the Site, App, Software and/or Services without notice or liability. Apio makes no representation that a feature, the Site, App, Software and/or Services will work on a particular web browser, version of a web browser or device.

Apio Makes No Representations or Warranties Regarding the Content

THIS SERVICE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN OR PROVIDED THROUGH IT, IS PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DELAYS, ERRORS AND NON-INFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY AND RISK FOR YOUR USE OF THIS SERVICE, THE SITE, APP, SERVICES, SOFTWARE AND THE INFORMATION RECEIVED THROUGH THEM. FURTHER, APIO MAKES NO REPRESENTATIONS WHATSOEVER ABOUT OTHER WEBSITES WHICH YOU MAY ACCESS THROUGH THE SITE, APP OR THE CONTENT, SERVICES OR PRODUCTS CONTAINED THEREIN OR OBTAINED THERE THROUGH.

APIO FURTHER DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, (1) REGARDING THE QUALITY, VALIDITY, CORRECTNESS, ACCURACY OR COMPLETENESS OF THE CONTENT, SERVICES, PRODUCTS AND MATERIALS ASSOCIATED WITH THE SITE, APP OR SERVICES, (2) THAT THE FUNCTIONS CONTAINED ON THE SERVICES, SITE, AND/OR APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS OR INACCURACIES WILL BE CORRECTED, OR (3) REGARDING THE SAFETY, RELIABILITY, TITLE, TIMELINESS, COMPLETENESS, MERCHANTABILITY, CONFORMITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CONTENT OR THE SERVICES AND PRODUCTS ASSOCIATED WITH THE SITE OR APP. APIO MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE CONTENT THAT MAY BE AVAILABLE FOR DOWNLOADING FROM THE SITE OR APP OR THROUGH THE SERVICES IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION. APIO DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, REGARDING ANY QUOTES, OFFERS, PRODUCTS OR SERVICES PROVIDED ON OR THROUGH THE SITE OR APP.

APIO MAY MAKE CHANGES TO THE CONTENT OR MATERIALS, OR TO THE PRODUCTS, SERVICES, SPECIFICATIONS OR PRICES DESCRIBED IN THEM, AT ANY TIME WITHOUT NOTICE. THE CONTENT AND MATERIALS MAY BE OUT OF DATE, AND APIO MAKES NO COMMITMENT TO UPDATE THE CONTENT OR MATERIALS AT ITS SERVICES, SITE, AND/OR APP OR TO MAKE ANY NOTIFICATION OF CHANGES. INFORMATION PUBLISHED AT THE SITE OR IN CONNECTION WITH THE SERVICES AND/OR APP MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE. YOU HEREBY RELEASE APIO FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO A DISPUTE BETWEEN YOU AND ANOTHER ACCOUNT HOLDER OR USER.

CALIFORNIA RESIDENTS HEREBY SHALL AND DO WAIVE CALIFORNIA CIVIL CODE 1542, WHICH PROVIDES “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.”

THE SITE OR APP IS CONTROLLED AND OFFERED BY APIO FROM APIO’S FACILITIES IN THE UNITED STATES OF AMERICA. APIO MAKES NO REPRESENTATIONS THAT THE SITE OR APP IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER JURISDICTIONS. IF YOU ACCESS OR USE THE SITE OR APP FROM OTHER JURISDICTIONS, THEN YOU DO SO BY YOUR OWN VOLITION AND ARE SOLELY RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.

Limitations on Apio’s Liability

APIO SHALL IN NO EVENT BE RESPONSIBLE TO, OR LIABLE TO, YOU, OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES, SITE, AND/OR APP OR ANY INFORMATION RECEIVED FROM THE SAME, INCLUDING THE CONTENT OR ANY INFORMATION CONTAINED WITHIN OR THROUGH THE SERVICES, SITE, AND/OR APP, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR BREACH OR VIOLATION OF THE TERMS AND CONDITIONS OF THIS AGREEMENT; (II) YOUR ACCESS AND USE OF THE SITE, APP OR SERVICES; (III) YOUR DELAY IN ACCESSING OR INABILITY TO ACCESS OR USE THE SITE, APP OR SERVICES FOR ANY REASON; (IV) YOUR DOWNLOADING OF ANY OF THE CONTENT OR THE COLLECTIVE WORK FOR YOUR USE; (V) YOUR RELIANCE UPON OR USE OF THE CONTENT OR THE COLLECTIVE WORK, OR (VI) ANY INFORMATION, SOFTWARE, PRODUCTS OR SERVICES OBTAINED THROUGH THE SITE, OR OTHERWISE ARISING OUT OF THE USE OF THE SITE, APP OR SERVICES, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF APIO AND/OR ITS SUPPLIERS HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES, SITE, AND/OR APP IS TO TERMINATE YOUR ACCOUNT AND/OR STOP USING THE SITE, SERVICE, APP AND THE INFORMATION OBTAINED THEREIN. NOTWITHSTANDING THE ABOVE, APIO’S LIABILITY AND THE LIABILITY OF ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, INDEPENDENT CONTRACTORS, SHAREHOLDERS, REPRESENTATIVES, AND AGENTS ARISING OUT OF THIS AGREEMENT SHALL NOT EXCEED $100.

YOU SPECIFICALLY ACKNOWLEDGE THAT APIO SHALL NOT BE LIABLE FOR USER GENERATED CONTENT, AUTHORIZED USER GENERATED CONTENT OR THE DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF ANY THIRD PARTY, AND THAT THE RISK OF HARM OR DAMAGE FROM SUCH USER GENERATED CONTENT, AUTHORIZED USER GENERATED CONTENT AND THIRD-PARTY CONDUCT RESTS ENTIRELY WITH YOU.

YOU AND APIO AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, APP OR SERVICES MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

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.

Your Indemnification & Release of Apio

You shall defend, indemnify and hold harmless Apio and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys’ fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you or someone using your Account; (ii) your failure to provide accurate, complete and current Registration Data requested or required by Apio; (iii) your or someone using your Account’s access or use of the Site or Services; (iv) access or use of the Site or Services under any Access Credentials that may be issued to you; (v) your or someone using your Account’s transmissions, submissions or postings (e.g., your User Generated Content); (vi) your or someone using your Account’s purchase of any Products or Services through this Site or Services; and/or (vii) any personal injury or property damage caused by you or someone using your Account. Upon learning of any claim, action or proceeding, Apio will undertake to promptly notify you. Apio reserves the right to take over the exclusive defense and control of any matter for which you would be required to indemnify Apio and you agree to cooperate with such defense. You agree not to settle any such matter without the prior written consent of Apio.

You release Apio (and its officers, agents, directors, subsidiaries, and employees) from claims, demands and damages of every kind and nature, known and unknown, arising out of or in any way related with any dispute between you or your Account and one or more users.

Amendments of this Agreement

Apio reserves the right to update, amend and/or change this Agreement at any time in its sole discretion and without notice. Updates to this Agreement will be posted here. Amendments will take effect immediately upon Apio posting the updated Agreement on the Site or App or through the Services. You are encouraged to revisit this Agreement from time to time in order to review any changes that have been made. The date on which this Agreement was last updated will be noted immediately above this Agreement. Your continued access or use of the Site, App or Services following the posting of any such changes shall automatically be deemed your acceptance of all changes. If you do not agree to the revised version of this Agreement, you will not be permitted to continue use of your Account or the Site, App and Services. If at any time you become no longer able to comply with the terms of the current version of this Agreement, you must terminate this Agreement and immediately stop using all Accounts as well as the Site, App and Services. You acknowledge and agree that you are not entitled to any refund for any amounts paid or pre-paid in connection with the Account prior to termination of this Agreement.

Apio’s Remedies

You acknowledge that Apio may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you or someone using your Account, Apio shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement. For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach may be brought where you reside or in the courts of San Mateo County, California or the United States District Court, Northern District of California. You consent to the jurisdiction of such court and waive any objection to the laying of venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.

Governing Law

You agree that: (i) the Site, App and Services shall be deemed solely based in the State of California; and (ii) the Site shall be deemed a passive site and the App a passive application that does not give rise to personal jurisdiction over Apio, its affiliates and assigns, either specific or general, in jurisdictions other than the State of California. This Agreement and the relationship between you and Apio is to be governed by and construed in accordance with the internal laws of the State of California, without regard for principles of conflicts of laws. Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you as provided above, shall be brought in the courts of San Mateo County, Wisconsin, or the United States District Court, Northern District of California and you agree to the exclusive jurisdiction and forum of the same. Apio’s failure to enforce any right or provision of this Agreement does not constitute a waiver of that right or provision.

Miscellaneous

If any portion of this Agreement is deemed unlawful, void or unenforceable by any arbitrator or court of competent jurisdiction, this Agreement as a whole shall not be deemed unlawful, void or unenforceable, but only that portion of this Agreement that is unlawful, void or unenforceable shall be stricken from this Agreement.

The headings contained in this Agreement are for convenience of reference only, are not to be considered a part of this Agreement, and shall not limit or otherwise affect in any way the meaning or interpretation of this Agreement.

This Agreement, the Privacy Policy, and all aspects of your relationship with Apio, including any personal information or data associated therewith, may be disclosed and/or assigned by Apio to a third party in connection with a Business Transfer. A “Business Transfer” means a sale, acquisition, merger, consolidation, reorganization, bankruptcy or other corporate change involving Apio and/or its affiliates, even if the Business Transfer is only being contemplated and regardless of whether the Business Transfer relates to a part or the whole of Apio’s business. Nothing in this Agreement is intended to interfere with Apio’s ability to transfer all or part of Apio’s business, equity, and/or assets (including this Site, the App or Services) to an affiliate or independent third party at any time, for any purpose, without any limitation, without notice, any without any compensation to you, whatsoever.

All covenants, agreements, representations and warranties made in this Agreement that by their nature should survive, as may be amended by Apio from time to time, shall survive your acceptance of this Agreement and the termination of this Agreement.

This Agreement and the Privacy Policy represent the entire understanding and agreement between you and Apio regarding the subject matter of the same, and supersede all other previous agreements, understandings and/or representations regarding the same.

If you have questions, comments, concerns or feedback regarding this Agreement or the Site, App or Services, please contact Apio via any of the methods set forth below:

Via telephone:(800) 626-2746

Via mail: Terms of Use
Apio Inc.

P.O. Box 727

Guadalupe, California 93434

Via email: info@eatsmart.net

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