These Terms of Service (“Terms”) govern your use of Towne services, including Towne’s website and any websites (or portions thereof) that are operated by Towne (collectively, the “Services”), and are entered into by you and Qvale Technologies Inc. (d/b/a Towne), a Delaware corporation (“Towne”).
By using the Services, you agree to be bound by these Terms and acknowledge and agree to the collection, use and disclosure of your personal information in accordance with Towne’s Privacy Policy.
The Services comprise a platform that enables you to search for products near you which you can buy. You can then either pick up your products in store (or in some cases curbside) or have them delivered. Delivery services may be performed by Towne personnel or third parties including a third party logistics provider (collectively, “Third Party Providers”).
Delivery may be conducted by various methods of transportation. You acknowledge that transportation or logistics services may be provided by third party independent contractors who are not employed by Towne.
When you use the Services to place an order for products, you authorize the purchase and delivery of those products from the merchants you select. Unless otherwise specified, you acknowledge and agree that Towne or the merchant is acting as your agent in the picking, packing, and/or delivery of goods purchased by you. You agree that your purchase is being made from the merchant you have selected, that merchant is the merchant of record, and that title to any goods passes to you when they are purchased at the applicable merchant’s store. You agree that Towne or the applicable merchant will obtain a credit card authorization for your credit card on file with Towne to cover the cost of the goods you have purchased from the merchant and any separate Towne fees, and your card will be charged for the goods purchased by you and any applicable fees, taxes and/or tips. Your card may be temporarily authorized for an amount greater than the total amount of the purchase appearing in the original check out. This higher authorized amount will be disclosed during the purchase process and is a temporary authorization charge on your order, to deal with situations where your total purchase amount turns out to be higher than the original amount due to special requests, added items, replacement items or weight adjustments.[1] [2] [3]
You also acknowledge and agree that, except as expressly provided for otherwise in these Terms or a separate agreement between you and Towne, Towne does not form any employment or agency relationship with you and does not hold title to any goods that you order through the Services.
Occasionally there may be information on the Services that contains typographical errors, inaccuracies, or omissions that may relate to pricing, product descriptions, promotions offers, and availability. Towne reserves the right to correct any errors, inaccuracies or omissions and to change or update information or refuse or cancel orders if any information on the Services is inaccurate at any time without prior notice (including after you have submitted your order and/or your credit card has been charged). Please note that prices of products on the Services may be different than prices offered for the same products in-store by the same merchant.
Towne grants you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms and Towne’s policies. You may not copy, modify, distribute, sell, or lease any part of the Services. Unless such restriction is prohibited by law or you have Towne’s written permission, you may not reverse engineer or attempt to extract the source code of the Services. You may only access the Services through the interfaces that Towne provides for that purpose (for example, you may not “scrape” the Services through automated means or “frame” any part of the Services), and you may not interfere or attempt to disrupt the Services.
Some parts of the Services may allow you to upload or submit content (such as text, images, video, recipes, lists, links, and other materials). You retain all rights in any content that you upload or submit, and are solely responsible for that content. You grant Towne a non-exclusive, royalty-free, worldwide, transferable, sublicensable license to use, store, publicly display, publicly perform, reproduce, modify, create derivative works from, and distribute any such content for the purposes of operating, providing, and improving the Services. Towne may, in its sole discretion, remove or take down any content that you upload or submit to the Services for any reason, including violation of these Terms or any other policies.[4]
If you are using Towne on behalf of a business or other entity, you represent and warrant that you have the necessary authority to bind that business or entity to these Terms and that you are agreeing to these Terms on behalf of that business or entity.
In order to use the Services, you may need to create a user account. You agree that you are responsible for all conduct and transactions that take place on or using your account and that you will take precautions to keep your password and other account information secure. You also agree that you will comply with all applicable laws when accessing or using the Services and you will respect those who you encounter in your use of the Services, including delivery personnel and individuals who provide customer support. Towne reserves the right to decline orders, refuse partial or full delivery, terminate accounts, and/or cancel orders at any time in its sole discretion.
We’re constantly modifying and improving the Services. Towne may introduce new features, change existing features, or remove features from the Services at any time and without notice. If you provide Towne with any feedback on or comments regarding the Services, you grant Towne the right to use such feedback or comments for any purpose without restriction or payment to you.
If you have any requests for order cancellations, refunds, or returns, please visit your account to initiate such requests or review our FAQs for our policies regarding the same.
By creating a Towne user account, you agree to accept and receive communications from Towne, including via email, text message, calls, and push notifications to the cellular telephone number you provided to Towne. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or which will deliver pre recorded messages sent by or on behalf of Towne, its affiliated companies and/or delivery personnel, including but not limited to communications concerning orders placed through your account on the Services. Message and data rates may apply. If you do not wish to receive promotional emails, text messages, or other communications, you may opt out of such communications at any time by emailing help@towne.io. You may also opt-out of receiving promotional emails by clicking the unsubscribe link at the bottom of every email and opt-out of receiving text messages from Towne by replying “STOP” from the mobile device receiving the messages.
Mobile Messaging Service
The Towne mobile message service (the “Service”) is operated by Klaviyo (“ Klaviyo”, “we”, or “us”). Your use of the Service constitutes your agreement to these terms and conditions (“Mobile Terms”). We may modify or cancel the Service or any of its features without notice. To the extent permitted by applicable law, we may also modify these Mobile Terms at any time and your continued use of the Service following the effective date of any such changes shall constitute your acceptance of such changes.
By consenting to Klaviyo’s SMS/text messaging service, you agree to receive recurring SMS/text messages from and on behalf of Towne through your wireless provider to the mobile number you provided, even if your mobile number is registered on any state or federal Do Not Call list. Text messages may be sent using an automatic telephone dialing system or other technology. Service-related messages may include updates, alerts, and information (e.g., order updates, account alerts, etc.). Promotional messages may include promotions, specials, and other marketing offers (e.g., cart reminders).
You understand that you do not have to sign up for this program in order to make any purchases, and your consent is not a condition of any purchase with Towne. Your participation in this program is completely voluntary.
We do not charge for the Service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message frequency varies. Message and data rates may apply. Check your mobile plan and contact your wireless provider for details. You are solely responsible for all charges related to SMS/text messages, including charges from your wireless provider.
You may opt-out of the Service at any time. Text the single keyword command STOP or click the unsubscribe link (where available) in any text message to cancel. You’ll receive a one-time opt-out confirmation text message. No further messages will be sent to your mobile device, unless initiated by you. If you have subscribed to other Klaviyo mobile message programs and wish to cancel, except where applicable law requires otherwise, you will need to opt out separately from those programs by following the instructions provided in their respective mobile terms. For Service support or assistance, text HELP or email help@towne.io.
We may change any short code or telephone number we use to operate the Service at any time and will notify you of these changes. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages.
The wireless carriers supported by the Service are not liable for delayed or undelivered messages. You agree to provide us with a valid mobile number. If you get a new mobile number, you will need to sign up for the program with your new number.
To the extent permitted by applicable law, you agree that we will not be liable for failed, delayed, or misdirected delivery of any information sent through the Service, any errors in such information, and/or any action you may or may not take in reliance on the information or Service.
We respect your right to privacy. To see how we collect and use your personal information, please see our Privacy Notice.
To qualify for and receive any promotion and/or credit (collectively “Offer(s)”), customers must meet the requirements indicated, as applicable, in the Offer, in the user’s Towne account, and those listed below. Customers must have a valid form of accepted payment on file to take advantage of an Offer. Offer must be used when placing an order, but the Offer may not be applied if all conditions are not met after fulfillment of any order applying the Offer. Offers can only be redeemed for Towne orders www.towne.io. For Offers available to new customers or new subscribers, as applicable, customers will be disqualified and will not be entitled to receive the Offer if Towne has a record of their name, email, phone number, home address, or credit card having being used for a prior Towne order or being linked to an existing active or inactive Towne account or otherwise suspected of fraudulent activity. All deliveries are subject to availability. Offers cannot be redeemed for cash or cash equivalent. Offers are not transferable and may not be auctioned, traded, copied, transferred, bartered, modified or sold. Offers cannot be applied retroactively for prior purchases. Offers cannot be combined unless otherwise indicated. Towne is not a retailer or seller. Terms are subject to change by Towne at any time. Towne reserves the right to modify or cancel an Offer at any time. Void where restricted or prohibited by law. Towne’s computer is the official date/time keeping device for all Offers. The Offer-redeeming user is responsible for paying any applicable sales tax related to the use of an Offer; Towne has no obligation for payment of any tax in conjunction with the distribution or use of any Offer.
Use of Promotional Code(s) Terms and Conditions:
Towne’s General Terms apply. Promotional codes (“promo codes”) will expire on the date indicated in the communication to the customer with the promo code; if no date is specified, the promo code will expire (a) for promo codes contained in mail or email, 30 days after the date the mail or email was sent and (b) for promo codes published in any form (including online), 30 days after the date on which it was last displayed to consumers. To use the promo code and apply it to an order, customers should follow the instructions in the Offer. Promo codes for credits cannot be applied towards taxes or fees other than delivery fees. Promo codes may be limited to a one-time use as indicated in the offer. One-time-use offers apply to charges associated with an order from a single merchant location only. Unless otherwise indicated in offer, all promo codes are limited to one per person.
You agree that Towne does not assume responsibility for any products, content, services, websites, advertisements, offers, or information that is provided by third parties and made available through the Services. If you purchase, use, or access any such products, content, services, advertisements, offers, or information through the Services, you agree that you do so at your own risk and that Towne will have no liability based on such purchase, use, or access.
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOWNE DISCLAIMS ALL REPRESENTATIONS, CONDITIONS, AND WARRANTIES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TOWNE MAKES NO REPRESENTATION, WARRANTY, CONDITIONS, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES FROM MERCHANTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. TOWNE DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS OR MERCHANTS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, REMAINS SOLELY WITH YOU.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT NEITHER TOWNE NOR ITS AFFILIATES, MERCHANT PARTNERS, LICENSORS, OR SUPPLIERS IS RESPONSIBLE FOR THE FITNESS, CONDUCT OR SERVICES OF ANY THIRD PARTY PROVIDER. NEITHER TOWNE NOR ITS AFFILIATES, MERCHANT PARTNERS, LICENSORS, OR SUPPLIERS WILL BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDER.
If you have a dispute with our Third Party Providers, you agree to release Towne (including Towne’s affiliates, and each of their respective officers, directors, employees, agents, shareholders, merchant partners, licensors, and suppliers) from any claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected to such disputes.
Furthermore, you expressly waive any rights you may have under California Civil Code Section 1542 (or analogous laws of other jurisdictions), which states: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that, if known by him or her must, would have materially affected his or her settlement with the debtor or released party.”
THIS PROVISION APPLIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT SHALL TOWNE (INCLUDING ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, MERCHANT PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF TOWNE OR TOWNE’S AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL TOWNE (INCLUDING ITS AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, MERCHANT PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR USE OF THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, EVEN IF TOWNE OR TOWNE’S AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TOWNE, ITS AFFILIATES, MERCHANT PARTNERS, LICENSORS, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES, ANY SERVICES PROVIDED BY THIRD PARTY PROVIDERS, OR ANY PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU FOR MORE THAN THE GREATER OF $100 OR THE AMOUNTS PAID BY YOU TO TOWNE FOR THE PAST 12 MONTHS OF THE SERVICES.
You agree to defend, indemnify and hold harmless Towne and its officers, directors, employees, agents, shareholders, affiliates, and merchant partners (each, an “Indemnified Party”) from and against any losses, claims, actions, costs, damages, penalties, fines and expenses, including without limitation attorneys’ and experts’ fees and expenses, that may be incurred by an Indemnified Party arising out of, relating to or resulting from your unauthorized use of the Services or from any breach by you of these Terms, including without limitation any actual or alleged violation of any law, rule or regulation.
If you have a dispute with Towne arising out of your use of the Services, this Section 8 applies. You agree to contact Towne first and attempt to work out any such dispute amicably and you agree to the following mandatory arbitration provisions:
Mandatory Arbitration: If we’re unable to work out a solution amicably, both you and Towne agree to resolve any disputes arising out of your use of the Services or these Terms through binding arbitration or small claims court.
CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR NON-PAGA REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND TOWNE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
In any lawsuit in which (1) the complaint is filed as a class action, collective action or non-PAGA representative action; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the Class Action Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the Class Action Waiver shall be severable from this Agreement and in such instances, the class action, collective action and/or non-PAGA representative action must be litigated in a civil court of competent jurisdiction and not as a class, collective or non-PAGA representative arbitration.
PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION (“PAGA WAIVER”). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.
In any lawsuit in which (1) the complaint is filed as a private attorney general action seeking to represent any individual(s) other than the named plaintiff; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the PAGA Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the PAGA Waiver shall be severable from this Agreement and in such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction and not as a private attorney general arbitration.
Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver and PAGA Waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.
Opt-out of Mandatory Arbitration: You can decline this mandatory arbitration provision within 30 days of accepting these Terms by emailing Towne at legal@towne.io with your first and last name and stating your intent to opt-out of the arbitration provision. Note that opting out of this arbitration provision does not affect any other part of these Terms, including the provisions regarding controlling law or in which courts any disputes must be brought.
Arbitration Procedures and Location: The arbitration shall be administered by JAMS under its Comprehensive Rules in effect at the time the arbitration demand is made. The current rules, effective July 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rules can be found here: http://www.jamsadr.com/rules-clauses/. In the event of any conflict between the rules and this Agreement, this Agreement shall apply. The Parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the JAMS Comprehensive Rules.
The arbitration will be held in the United States county where you live or work, Tiburon, California, or any other location you and Towne mutually agree upon in writing.
Arbitration Fees: The JAMS rules will govern payment of all arbitration fees and each party will be responsible for their own fees under those rules. However, Towne will pay for your reasonable arbitration fees where: (a) the claim for damages does not exceed $75,000, and (b) the claims are not frivolous under Federal Rule of Civil Procedure 11(b). Towne will not seek attorneys’ fees or costs in arbitration unless the arbitrator determines the claims are frivolous under Federal Rule of Civil Procedure 11(b).
You can stop using the Services at any time and without notice to us. Similarly, Towne may terminate access to the Services to you or any other users or stop offering all or part of the Services at any time without notice. In the event of Termination, Section 1 and Sections 4-16 survive and continue to apply to you.
To the extent permitted by applicable law, these Terms will be governed by the laws of the State of California for residents of the United States, without respect to its conflicts of laws principles. To the extent permitted by applicable law, any claims arising out of or relating to these Terms or use of the Services that are not subject to Section 8 (Disputes & Arbitration) of these Terms shall be brought exclusively in the federal or state courts of Marin County, California, USA, for the residents of the United States, and you and Towne consent to the personal jurisdiction of those courts.
These Terms, subject to any amendments, modifications, or additional agreements you enter into with Towne, shall constitute the entire agreement between you and Towne with respect to the Services and any use of the Services. If any provision of these Terms is found to be invalid by a court of competent jurisdiction, that provision only will be limited to the minimum extent necessary and the remaining provisions will remain in full force and effect.
Towne’s failure to monitor or enforce a provision of these Terms does not constitute a waiver of its right to do so in the future with respect to that provision, any other provision, or these Terms as a whole.