Effective Date: October 23, 2024
Welcome to Misfits Market and our family of brands, now including Imperfect Foods! Our mission is to bring delicious, fresh, and affordable food to people everywhere at a scale that creates positive and lasting impact.
As used in these Terms of Service, the terms “Misfits Market,” “we” and “us” refer to the Misfits Market family of companies, including Misfits Market, Inc., Imperfect Foods, Inc. (“Imperfect Foods”), and other affiliated entities under common ownership and control. We operate the websites www.misfitsmarket.com and www.imperfectfoods.com where users can purchase produce, packaged goods, other food and beverage items, merchandise, any other items we offer for sale, and all related services and promotions (collectively, “Products”). Products are made available through periodic grocery boxes containing Products. We use the word “Website” in these Terms of Service to refer to any and all websites, blogs, and mobile applications owned or operated by Misfits Market (including the websites currently located at www.misfitsmarket.com, www.imperfectfoods.com, https://blog.misfitsmarket.com, and https://blog.imperfectfoods.com) through which access to our Products are available. References to the “Website” include any and all related features, functionality, tools, and content. Our provision of the Website and sale and delivery of Products are collectively referred to herein as the “Services.”
Please read these Terms of Service, our Privacy Policy, and all other policies, terms, rules, and notices on our Website (collectively, the “Terms”) carefully, because they contain terms and conditions that impact your rights, obligations, and remedies in connection with your use of the Website and Products. As a condition to your access to or use of the Website and purchase of any Products, you consent to be bound by the Terms, so please do not use the Website or purchase Products if you do not agree with all of the Terms. Your use of the Website and purchase of any Products, and our provision thereof to you, constitutes an agreement between you and Misfits Market to be bound by each of the terms, guidelines, and rules incorporated into the Terms. Because the Terms are legally binding, we want to make sure you understand them, so if you have any questions, click here.
THESE TERMS PROVIDE THAT ALL DISPUTES BETWEEN YOU AND MISFITS MARKET RELATING TO THE TERMS OR YOUR USE OF THE WEBSITE OR PURCHASE OF PRODUCTS WILL BE RESOLVED BY BINDING ARBITRATION. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THE TERMS, EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY, AND YOUR CLAIMS CANNOT BE BROUGHT AS A CLASS ACTION. PLEASE REVIEW SECTION 21 (“DISPUTE RESOLUTION AND ARBITRATION”) FOR THE DETAILS REGARDING YOUR AGREEMENT TO ARBITRATE ANY DISPUTES WITH MISFITS MARKET.
It's really important that you read and understand these Terms, so to encourage you to read to the end, we've hidden one of our favorite recipes. :)
You are solely responsible for, and assume all risks related to, the proper and safe washing, handling, preparation, storage, refrigeration, cooking, use, and consumption of the Products. You are solely responsible for inspecting all Products for any damage or other issues upon delivery. We recommend that you use a food thermometer to ensure that the internal temperature of any meat, poultry, or seafood is 40° F or below. If you believe that any Products are not suitable for consumption, do not consume the items, and contact us here.
We recommend that you immediately refrigerate all perishable Products upon delivery and follow the United States Department of Agriculture's (“USDA”) instructions on refrigeration and food safety, which can be found here, and the USDA's instructions on safe food handling, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness.
We cannot currently accommodate any modification due to allergies, and thus do not guarantee that your order will be free from any allergens. You are solely responsible for knowing about and monitoring any food allergies you may have, and reviewing, handling, preparing, using, and consuming any Products you receive accordingly.
Please be aware that orders are shipped within boxes that permit cross-contact between any Products that are not fully packaged and sealed by the manufacturer or producer. As a result, we cannot guarantee that allergen cross-contamination will not occur between Products. Additionally, orders containing both organic and conventional Products may be subject to cross-contact between such Products within your orders.
We attempt to display accurate information about and images of the Products on the Website; however, we do not guarantee the accuracy of such materials and information. Product packaging and material may contain more and/or different information than that provided on the Website, including the Product description, country of origin, nutrition, ingredient, allergen, and other information. Always read all labels, warnings, directions, and other information provided with the Product you receive before using or consuming the Product. The appearance, color, size, condition, and other characteristics of each Product will vary from product to product. Images on the Website are examples only.
We regularly review the Terms to make sure they accurately reflect our business operations. As such, Misfits Market reserves the right to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by email or another means. By continuing to use the Website after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms.
Misfits Market reserves the right, in its sole discretion, to modify or discontinue offering the Website and/or Products, in whole or in part, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you. We also retain the right to impose limits on your use and storage of Website content at our sole discretion at any time without prior notice to you.
You agree that Misfits Market has no obligation to provide any updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
a. Account Registration. While the Website is publicly available, you must register for a user account before you are able to access certain areas of the Website or order Products. You may register for an account directly via the Website.
You may not register for an account on behalf of any person (other than yourself). No person or entity may have more than one account unless expressly permitted by Misfits Market.
In the event that you have created and maintained active accounts with both Misfits Market and Imperfect Foods, your accounts will be combined into a single account which will be communicated to you.
b. Account Set-up. Your account and account profile page will be created based upon the information you provide to us. In order for us to provide you with the best service possible, you agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a password, which you will be solely responsible for safeguarding. We encourage you to use a strong password (passwords that use a combination of upper and lowercase letters, numbers, and symbols).
You should not disclose your username or password to any third party, and you agree to immediately notify Misfits Market of any unauthorized use of your account. You will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions.
c. Account Suspension and Deactivation. We may, in our discretion, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Website at any time for any reason. We may do this if we suspect you have created more than one account or if any of your payment method(s) are utilized for more than one account, or if any information provided during the registration process or thereafter is determined to be incomplete, inaccurate, outdated, deceptive or fraudulent.
We reserve the right to cancel unconfirmed accounts or accounts that have been inactive for a prolonged period of time. Any discount, credits, referral, or coupon codes associated with such accounts will be deactivated. We also reserve the right to cancel accounts of users who fail to comply with the Terms, including the terms and conditions regarding user conduct, as set forth in the “User Conduct Guidelines” section below and elsewhere in the Terms.
If your account is deactivated or suspended, Misfits Market will have the right, but not the obligation to delete your information.
If Misfits Market has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to Misfits Market's reasonable satisfaction.
a. Shopping Windows; Orders. Once you create your account, you may be able to select your preferred delivery day, or you will otherwise be notified of your delivery day for your orders. After your delivery day has been set, you will also be assigned a shopping window in advance of your delivery day, during which you will be able to add or remove Products to your order, which we also call “building your box.”
Your shopping window to build your box will remain open until 11:45 p.m. Eastern Time on the last day of your shopping window, at which time your order will automatically be placed if your cart contains Products meeting the applicable order minimum communicated to you at the time of enrollment (your “Order Minimum”), excluding any applicable taxes, shipping charges, and other charges or Promotions (an “Order”). Your current Order Minimum may thereafter be updated from time to time upon notice to you as described in the “Notices” section below, and you will be able to see your Order Minimum in the “My Plan” section of your Account Home page.
You will be able to see your shopping window dates, billing date, and delivery date for your next Order listed on your Account Home page. If you wish to start shopping prior to the start of your next shopping window and place an Order on an earlier delivery date, certain customers may have the option to do so on the “Upcoming Deliveries” section of your Account Home page, which will change your default delivery day to the new delivery day shown on that page. If you elect to change your default delivery day, you will be able to view your new shopping window dates, billing date, and delivery date listed on your Account Home page.
b. Grocery Subscription; Continuous Subscription.
i. Grocery Subscription Order Process.
When you create your account, YOU ARE AGREEING THAT MISFITS MARKET WILL POPULATE YOUR CART WITH PRODUCTS SELECTED BY US AT THE BEGINNING OF EACH SHOPPING WINDOW UNTIL YOU CANCEL. The value of the Products populated in your cart will be within the dollar value range described to you at the time of account creation (excluding any applicable taxes, shipping charges, and other charges or Promotions) or such other dollar value range as we otherwise thereafter specify by written notice to you in a manner described hereunder. We may refer to this program interchangeably as your “Grocery Subscription,” “Grocery Plan” or your “subscription” with us.
After your cart has been populated by Misfits Market, you will be able to view your pre-populated cart and have the opportunity to customize your cart further by adding or removing Products to your order at any time prior to the close of your shopping window as shown on your Account Home page. You may also skip your upcoming order through the “Delivery Schedule” section of your Account Home page at any time prior to the close of your shopping window.
If your cart continues to meet your Order Minimum of Products (excluding any applicable taxes, shipping charges, and other charges or Promotions) as of 11:45 p.m. Eastern Time on the last day of your shopping window, your Order will automatically be placed. We may place a pre-authorization hold on your payment method for the estimated total of your Order on the day after your shopping window closes, and your payment method will be charged in full when we pack your Order, at which point we will authorize the release of any excess amounts held.
ii. Consent to Continuous Subscription.
By registering for an account, you expressly acknowledge and agree that (A) YOU ARE SIGNING UP FOR A CONTINUOUS SUBSCRIPTION SERVICE THAT WILL CONTINUE UNTIL YOU CANCEL THROUGH A CANCELLATION METHOD DESCRIBED IN SECTION 5(d) BELOW, (B) BY RETAINING A MINIMUM SUBTOTAL OF YOUR ORDER MINIMUM OF PRODUCTS WITHIN YOUR CART AS OF 11:45 P.M. EASTERN TIME ON THE LAST DAY OF YOUR SHOPPING WINDOW, MISFITS MARKET (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU AT THE PRICES LISTED FOR SUCH PRODUCTS WHEN THE ORDER IS PLACED AS DESCRIBED ABOVE (IN ADDITION TO ANY APPLICABLE TAXES, SHIPPING CHARGES, AND OTHER CHARGES AS REFLECTED IN YOUR CART FOR THE ORDER) and (c) the amount you are charged and the number and assortment of the Products you receive each delivery cycle will vary based on the Product selections made by Misfits Market and/or you.
Once your Order has been placed, you will no longer be able to add, remove, or substitute any Products in your Order. IF YOU DO NOT WISH TO BE CHARGED FOR YOUR CURRENT ORDER, YOU MUST EITHER REMOVE PRODUCTS FROM YOUR CART TO REDUCE THE CART SUBTOTAL BELOW YOUR ORDER MINIMUM OR SKIP OR PAUSE YOUR ORDER IN THE MANNER DESCRIBED IN SECTION 5(d) BELOW PRIOR TO THE CLOSE OF YOUR APPLICABLE SHOPPING WINDOW FOR THAT ORDER, in which case an Order will not be placed for that upcoming delivery date and your payment method will not be charged. Certain customers may be able to use our Late Cancel feature prior to the close of your Late Cancel Window for that Order if that feature is made available to you as described in Section 5(d) below.
iii. Updating your Grocery Subscription.
The dollar value range of the Products that will be populated in your cart at the start of each shopping window (excluding any applicable taxes, shipping charges, and other charges or Promotions, your “Plan Range”) will be described on the “Plan Summary” section of your “My Plan” page. You may modify your Plan Range by clicking on the “Edit” button in the “Plan Summary” section of this page as further described below.
For certain customers, you will have the ability to set your Plan Range for your Grocery Subscription by selecting between certain designated dollar ranges. For example, we may give you the option to have your cart pre-populated with thirty-five to forty dollars ($35-$40) worth of Products per Order, or forty to forty-five dollars ($40-$45) worth of Products per Order. If you are one of these customers, these Plan Range options will be displayed for you and you will be able to update your selection by clicking on the “Edit” button and selecting the dollar range of Products that you wish to have pre-populated for each Order's shopping window. By modifying your selection and clicking the “Update” button, your Plan Range selection will thereafter apply once your next shopping window opens, and you are consenting to this new Plan Range for your Grocery Subscription.
For other customers, you will have the ability to select your cart preferences (i.e., the specific Product categories that will be populated within your pre-populated cart). You may also have the ability to indicate how many people you are shopping for. Each Product category that you select under the “Cart Preferences” heading will have a starting price associated with it (if applicable, such starting price will be based on the number of people you have indicated you are shopping for), and the price of Products that are populated in your cart from each Product category in any given Order will be within a reasonable range of such starting price. The aggregate dollar range of all Product categories that you select will determine your total Plan Range. If you are one of these customers, your “Plan Summary” section of the “My Plan” page will indicate both your Plan Range and the Product categories that you have selected under the “Cart Preferences” heading, and when you click on the “Edit” button you will see that each Product category within the selection window has its starting price range identified next to it. To edit your Plan Range and Cart Preferences, click the “Edit” button and you will be able to designate both the specific Product categories to be populated in your pre-populated cart (as well as the number of people you are shopping for, if applicable), and these selections will update your expected Plan Range as displayed at the top of the “Plan Settings” section. Please note that you will be required to select a sufficient number of Product categories to meet your Order Minimum, and you will be prompted to select additional Product categories if your Order Minimum is not satisfied based on your selections. By modifying your selections and clicking the “Update” button, your Plan Range and Cart Preferences selections will thereafter apply once your next shopping window opens, and you are consenting to this new Plan Range for your Grocery Subscription.
Finally, some customers will have the ability to indicate how many people you are shopping for and then select your cart preferences (i.e., the specific Product categories that will be populated within your pre-populated cart), but these Product category selections will not affect your total Plan Range. Rather, for these customers the Plan Range will only be impacted by the number of people you indicate you are shopping for. If you are one of these customers, your “Plan Summary” section of the “My Plan” page will indicate both your Plan Range and the Product categories that you have selected under the “Cart Preferences” heading, but when you click on the “Edit” button you will not see specific prices identified for individual Product categories and your new Product category selections will not update your total Plan Range at the top of the “Plan Settings” section. If this applies to you, please note that because your Plan Range will not update, the number of Products that are pre-populated in your cart from any Product category will generally decrease if you increase the total number of Product categories that you want to receive. To update your Product category selections or the number of people you are shopping for, click on the “Edit” button and make your selections. If you update the number of people you are shopping for, you will see an updated expected Plan Range at the top of the “Plan Settings” section. By modifying your selections and clicking the “Update” button, your Plan Range and Cart Preferences selections will thereafter apply once your next shopping window opens, and you are consenting to this new Plan Range for your Grocery Subscription.
Certain Grocery Subscription customers may also be able to update your Order frequency from weekly to every other week by clicking “Edit” under the “Delivery Settings” section of your “My Plan” page. If you elect to change your Order frequency to every other week, you will be able to view your new shopping window dates, billing dates, and delivery dates listed on your “Upcoming Deliveries” section of your Account Home page.
c. Flex Plan. For certain existing Misfits Market customers or for customers who have cancelled their Grocery Subscription, you will still be permitted to shop with Misfits Market by manually adding or removing all Products to your cart during any open shopping window.
For these Flex Plan customers, if you have added at least your Order Minimum of Products (excluding any applicable taxes, shipping charges, and other charges or Promotions) to your cart as of 11:45 p.m. Eastern Time on the last day of your shopping window, your Order will automatically be placed. We may place a pre-authorization hold on your payment method for the estimated total of your Order on the day after your shopping window closes, and your payment method will be charged in full when we pack your Order, at which point we will authorize the release of any excess amounts held.
If you are a Flex Plan customer, by continuing to use the Services (including by adding Products to your cart) you expressly acknowledge and agree that (a) by adding a minimum subtotal of your Order Minimum of Products to your cart as of 11:45 p.m. Eastern Time on the last day of your shopping window, Misfits Market (or our third-party payment processor) is authorized to charge you at the prices listed for such Products when the Order is placed as described above (in addition to any applicable taxes, shipping charges, and other charges as reflected in your cart for the Order) and (b) the amount you are charged and the number and assortment of the Products you receive each delivery cycle will vary based on the Product selections made by you.
Once your Order has been placed, you will no longer be able to add, remove, or substitute any Products in your Order. If your cart does not contain at least your Order Minimum in Products (excluding any applicable taxes, shipping charges, and other charges or Promotions) as of 11:45 p.m. Eastern Time on the last day of your shopping window, an Order will not be placed for that upcoming delivery date and your payment method will not be charged.
d. Skipping your Orders; Cancelling or pausing your Grocery Subscription or account; Upgrading to a Grocery Subscription.
Customers on a Grocery Subscription can skip an upcoming Order in the “Delivery Schedule” section of your Account Home page at any time before 11:45 P.M. Eastern Time on the last day of your shopping window, or by contacting us here at least forty-eight (48) hours prior to the close of the shopping window for the Order you wish to skip. If you are a Flex Plan customer, your upcoming Order will automatically be skipped unless you meet your Order Minimum as described above.
Except as set forth below, you cannot cancel, pause, skip, or alter an Order after your shopping window has closed for that Order, even if you haven't been charged for that Order or that Order hasn't shipped yet. For more information, please read our Cancellation Policy.
For certain customers, you may be permitted to use our “Late Cancel” feature, which allows you to cancel your Order after the close of your shopping window but prior to the time we have begun fulfilling your Order (your “Late Cancel Window”). If you are one of these customers, our Late Cancel feature will be displayed to you on the “Orders” section of your Account Home page next to your most recent Order, and you can use the Late Cancel feature by clicking the “Need to cancel” button for that Order and following the prompts to cancel, in which case you will not receive an Order from that shopping window and any pre-authorization holds on your payment method will be refunded. If you are one of these customers but the “Need to cancel” button is not displayed next to your most recent Order, you are no longer within your Late Cancel Window and cannot cancel your Order. We cannot guarantee the duration of your Late Cancel Window or that it will remain available for the same duration from Order to Order. If you wish to use the Late Cancel feature for an Order, we recommend that you attempt to cancel your Order as soon as possible once you realize that you wish to cancel your Order. For these customers, you cannot cancel an Order after your Late Cancel Window has closed, even if you haven’t been charged for that Order or that Order hasn’t shipped yet.
If you are enrolled in a Grocery Subscription, you can pause your subscription for a designated period of time or cancel your subscription by downgrading to a Flex Plan at any time in the “My Plan” section of your Account Home page or by contacting us here at least forty-eight (48) hours prior to the billing date of your upcoming Order. If you cancel your subscription by downgrading to the Flex Plan, you will still be permitted to shop with Misfits Market during your open shopping window and will only be charged for Orders when you manually add Products to your cart as further described in Section 5(c) above. Please note that canceling your Grocery Subscription will not cancel an active Misfits+ membership, which can be cancelled as described in Section 6(c) below.
If you wish to completely cancel your account while on the Flex Plan, you may do so through the “My Plan” section of your Account Home page or by contacting us here.
If you are enrolled in the Flex Plan, you will be eligible to upgrade your account to subscribe to a Grocery Subscription at any time through the “My Plan” section of your Account Home page. If you upgrade to a Grocery Subscription, your Order process will be as further described in Section 5(b) above.
e. Food Preferences. Grocery Subscription customers can help us better customize your Order by using the “Food Preferences” section of your Account Home page. You can see the Products that you have previously ordered under the “Past Items” tab and designate these Products as “Recurring” items, as “Liked” items, or as “Never” items. To remove any of these Products for their Food Preferences designation, simply click on the applicable preference tab and click “Remove” to return the Product to the undesignated “Past Items” tab.
Any Products that you designate as “Recurring” items will be automatically added to your pre-populated cart during each Order period that the Product is available for purchase in addition to the items that were already added to your pre-populated cart based on your designated Plan Range. This means that the subtotal of your Order will increase above your Plan Range to account for the addition of these “Recurring” items. By adding Products to your “Recurring” item list, you are consenting to the addition of these “Recurring” items to your cart and the corresponding increase to your Order price above your Plan Range.
Any Products that you designate as “Liked” items will be prioritized for adding to your pre-populated cart when they are available. However, “Liked” items will only be included in your pre-populated cart if their addition does not cause your Order subtotal to exceed the applicable dollar value for your Plan Range. “Liked” items will not increase your Order subtotal above your Plan Range.
Any Products that you designated as “Never” items will no longer be added to your pre-populated cart for your Grocery Subscription.
Please note that all Food Preferences are designated only for that specific Product, and similar Product types (for example, small bag of apples vs. a large bag of apples) that have not been specifically designated within a preference category will not also be subject to your designated Food Preferences.
f. Cold-Pack Orders. We require that certain of our Products be shipped to you in specialized packaging designed to keep items refrigerator-cold in transit (a “Cold Pack”), and we designate these Products during your shopping experience as requiring a Cold Pack (“Cold-Pack Products”).
For certain customers, we require a separate thirty dollar ($30) minimum of Cold-Pack Products within any Order in order to receive a Cold Pack. If you place Cold-Pack Products in your cart but do not reach this thirty dollar ($30) Cold Pack minimum, the Cold-Pack Products in your cart will not be included within your Order and you will not be charged for them.
Certain other customers may be permitted to purchase less than thirty dollars ($30) in Cold Pack Products for an additional fee on your Order in the amount stated in your shopping cart (“Cold-Pack Fee”). For these customers, the Cold-Pack Fee will automatically be waived if you add a subtotal of at least thirty dollar ($30) of Cold-Pack Products to your Order. If you are enrolled in this program, it will be described to you on the Cold Pack aisle during your shopping window and your Cold-Pack Fee will be reflected in your cart during your shopping window, including if you have added a qualifying subtotal of Cold-Pack Products for the Cold-Pack Fee to be waived.
Finally, some customers will be offered the ability to purchase Cold-Pack Products without a Cold-Pack Fee and no minimum subtotal. If you are enrolled in this program, you will be notified that it applies to you and you will not see a Cold-Pack Fee listed in your cart during your shopping window.
g. Donating Your Skipped Box. Instead of skipping a box, you can instead choose to donate the value of your box to a non-profit organization with a mission to save food from waste or loss, alleviate hunger, improve health outcomes through nutrition, and/or build a more sustainable food system through the “Delivery Schedule” section of your Account Home page. If you select this option, you will be charged for the amount shown on that page and Misfits Market will donate the amount of your donation to a non-profit organization we select on your behalf. Electing to donate your box is not considered a tax-deductible charitable contribution. Box donations are not refundable.
h. Wine and Alcohol Orders. Misfits Market may market alcoholic beverage Products (“Alcoholic Beverages”) on the Website. Purchases of Alcoholic Beverages may be subject to certain minimum purchase quantities as described on the Website, and an additional service fee may be charged with any Order containing Alcoholic Beverages as indicated when adding Alcoholic Beverages to your cart. Purchases of Alcoholic Beverages do not count towards your applicable Order Minimum.
With respect to any Order requests for Alcoholic Beverages placed through the Website, Misfits Market serves only as a third-party marketer. Misfits Market is not, nor does it represent or warrant that it is, a licensed producer, distributor, or retailer of Alcoholic Beverages. All Order requests for Alcoholic Beverages are made to, accepted by, processed by, and fulfilled by a third-party licensed entity of such Alcoholic Beverages (the “Licensed Entity”). The Alcoholic Beverage portion of any Order request is subject to review by such Licensed Entity and may be rejected upon further review in its sole discretion. The name of the specific Licensed Entity for each Alcoholic Beverage will be provided within the production description on the Website for that Alcoholic Beverage.
Shipments of Alcoholic Beverages are delivered by UPS®, FedEx®, or other private courier separately from other Products sold on the Website. Shipments of Alcoholic Beverages may be delivered on a different day or time from packages containing other Products. Shipments of Alcoholic Beverages may also be delayed by the Licensed Entity, in its sole discretion, due to weather conditions, such as excessive heat. Alcoholic Beverages cannot be shipped to the following states: Alabama, Alaska, Arkansas, Delaware, Hawaii, Kentucky, Mississippi, Rhode Island, South Dakota, and Utah. Packages refused or returned to the Licensed Entity as undeliverable may be subject to a re-stocking fee and/or retention of any applicable alcohol service fee.
BY PLACING ANY ORDER FOR ALCOHOLIC BEVERAGES, YOU REPRESENT, WARRANT, AND CERTIFY THAT YOU AND THE RECIPIENT (IF APPLICABLE) OF ANY ALCOHOLIC BEVERAGES ARE AT LEAST 21 YEARS OF AGE. THE SIGNATURE OF AN ADULT AT LEAST 21 YEARS OF AGE IS REQUIRED AT THE TIME OF DELIVERY OF ANY PACKAGE CONTAINING AN ALCOHOLIC BEVERAGE. IF AN ADULT AT LEAST 21 YEARS OF AGE WITH A VALIDLY ISSUED GOVERNMENT IDENTIFICATION IS NOT PRESENT AT THE DELIVERY ADDRESS DURING BUSINESS HOURS, THE DELIVERY CARRIER WILL NOT DELIVER ANY ALCOHOLIC BEVERAGES. PRODUCTS CAN BE SHIPPED TO A PLACE OF BUSINESS OR RESIDENCE. WE CANNOT SHIP TO P.O. BOX OR APO BOXES.
Misfits Market and/or the Licensed Entity may restrict the application of any Promotions, Credits, or other discount offers to any Order requests for Alcoholic Beverages placed on the Website. Unless otherwise specified on the Website, any Promotions, Credits, or other discount offers applicable to Alcoholic Beverages are applied to a portion of the purchase price of each Alcoholic Beverage, shipping, and the alcohol service fee. If an Alcoholic Beverage becomes unavailable from the applicable Licensed Entity, the Licensed Entity reserves the right to, in its sole discretion, to replace the Alcoholic Beverage with an equivalent or similar Alcoholic Beverage or refund you for the item.
If any communication from this web site is not in conformity with any jurisdiction rules and regulations governing solicitation, advertising, shipping and/or transacting business for the sale of Alcoholic Beverages in such jurisdiction, then such communication and any offers made herein in connection therewith, shall be void to the extent prohibited by law.
If your Order of Alcoholic Beverages is damaged or incorrect, you must reach out to Misfits Market within fourteen (14) days of your receipt of your Order and we will handle your issue in accordance with the “Refunds and credits” section below. Please click here for more information on how to notify us of damaged or incorrect Orders.
i. Operations Fee. Certain customers may be subject to an Operations Fee in connection with each Order placed, which helps Misfits Market cover our operating costs of sourcing and delivering fresh groceries using more sustainable methods and our implementation of zero-waste practices in our facilities. Misfits Market may charge different amounts to different customers for the Operations Fee based on a variety of factors, including but not limited to a customer’s geographic delivery area. If the Operations Fee applies to your Orders, the Operations Fee and its amount will be displayed to you in your cart under the “Estimated Tax & Fees” line item. Misfits Market may change the Operations Fee that we charge you, and we reserve the right to establish and change other fees or surcharges, as we deem necessary or appropriate for our business from time to time. The Operations Fee is not for any right to access, install or use any of the Websites.
a. General. You may receive an offer on our Website, by email, or otherwise to purchase a Misfits+ membership (“Offer”), which grants you access to certain exclusive membership benefits (“Membership Benefits”). The Offer will include important details and terms, such as the applicable Membership Benefits, the cost of the Misfits+ membership (the “Membership Rate”), the applicable subscription term, and your billing interval (“Billing Cycle”). Please refer to your Offer for details before purchasing the Misfits+ membership. By purchasing a Misfits+ membership, you agree to these Terms, as well as the specific terms of the Offer. If you do not agree to these Terms or the terms of your Offer, do not purchase a Misfits+ membership.
b. Continuous Subscription; Duration and Frequency of Charges. When you purchase a Misfits+ membership, you will be charged the Membership Rate (plus any applicable taxes) for your first Billing Cycle on the date of purchase, or, if your Offer includes a free trial, at 9:00 p.m. Eastern Time on the day your free trial ends, in each case which activates your Misfits+ membership for the term set forth in your Offer. Unless you notify us in accordance with Section 6(c) below (Canceling your Misfits+ Membership) that you want to cancel, you understand that your Misfits+ membership will continue and your default payment method will automatically be charged at 9:00 p.m. Eastern Time on the day your current Billing Cycle ends until you cancel. UNLESS YOU CANCEL YOUR MISFITS+ MEMBERSHIP, IT WILL AUTOMATICALLY RENEW AT THE BEGINNING OF EACH BILLING CYCLE, AND YOU AUTHORIZE US TO COLLECT THE MEMBERSHIP RATE PLUS ANY APPLICABLE TAXES (WITHOUT PRIOR NOTICE UNLESS REQUIRED BY APPLICABLE LAW), USING YOUR DEFAULT PAYMENT METHOD OR ANY OTHER ELIGIBLE PAYMENT METHOD AVAILABLE IN YOUR ACCOUNT.
Please note that in certain circumstances, your billing date may change (for example, if we are unable to successfully charge your payment method for the Misfits+ membership fee on a given day).
c. Canceling your Misfits+ Membership. You may cancel your Misfits+ membership on our Website prior to 9:00 p.m. Eastern Time on the day your current Billing Cycle ends to avoid further charges. To do this, visit the “Misfits+” section of your Account Home page and select “Cancel Misfits+ membership” or contact us here at least forty-eight (48) hours prior to your upcoming Billing Cycle. If you cancel your Misfits+ membership within the first seven (7) calendar days (or fourteen (14) calendar days if your Orders are delivered on a biweekly cadence) of your subscription period and have not placed any Orders using your Misfits+ membership, Misfits Market may, in its sole discretion, refund your Membership Rate. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future.
If you cancel your Misfits+ membership at any other time during a Billing Cycle, you will not receive a refund, but you will still have access to your Membership Benefits until the end of your then-current subscription term. However, if you have a free trial and you cancel your Misfits+ Membership, then your access to your Membership Benefits will end upon cancellation (unless you cancel during an open shopping window, in which case your Membership Benefits will end once the Order placed during such shopping window is fulfilled).
Please note that canceling your Misfits+ membership will not cancel an active Grocery Subscription, which can be cancelled as described in Section 5(d) above.
Please also be aware that if you are enrolled in an active Misfits+ membership and you completely cancel your account while on the Flex Plan as described in Section 5(d) above, your Misfits+ membership will also be cancelled and you will not receive a refund for the remainder of your current Billing Cycle. However, if you re-activate your account during this Billing Cycle, you will regain access to your Membership Benefits until the end of your then-current subscription term.
d. Trial and Promotional Subscriptions. Misfits Market may offer certain users a free trial or other promotional subscriptions to a Misfits+ membership. Such trial or promotional subscriptions are subject to these Terms except as otherwise stated in your Offer. Only one trial or promotional subscription is available per household. Free trial or promotional subscription eligibility is determined by Misfits Market in its sole discretion. Subject to applicable laws, we reserve the right to cancel, revoke, or terminate your free trial or promotional offer for any reason, including in the event that we determine that you are not eligible or to prevent free trial abuse or fraud. Certain limitations may exist with respect to combining a free trial or promotional subscription with any other offers.
We may require you to provide your payment details to start the free trial or promotional subscription. BY PROVIDING SUCH PAYMENT DETAILS, YOU AGREE THAT AT THE END OF YOUR APPLICABLE FREE TRIAL OR PROMOTIONAL SUBSCRIPTION PERIOD, YOUR MISFITS+ MEMBERSHIP WILL AUTOMATICALLY CONVERT INTO A PAID, AUTOMATICALLY RENEWING SUBSCRIPTION AND YOU WILL BE CHARGED THE MEMBERSHIP RATE STATED IN YOUR OFFER PLUS ANY APPLICABLE TAXES AT THE BEGINNING OF EACH BILLING CYCLE UNTIL YOU CANCEL. IF YOU DO NOT WANT TO BE CHARGED FOR ANOTHER BILLING CYCLE, YOU MUST CANCEL THE APPLICABLE TRIAL OR PROMOTIONAL SUBSCRIPTION BEFORE THE END OF THE TRIAL OR PROMOTIONAL SUBSCRIPTION PERIOD IN ACCORDANCE WITH THE CANCELLATION METHOD DESCRIBED IN SECTION 6(C) ABOVE.
If you purchase a Misfits+ membership with a promotional code or discount, each time your Misfits+ membership renews, you will be charged the full Membership Rate rather than the promotional amount unless expressly stated otherwise. Promotional Offers cannot be combined unless expressly permitted by Misfits Market.
e. Updates and Changes to Membership Benefits and Misfits+ Membership. Please note that the Membership Benefits that are available to you are subject to change and may vary based on your delivery location and other factors. For example, if your Membership Benefits include free or discounted shipping, such shipping benefit may vary based on the delivery method utilized for Orders in your delivery location. Such shipping benefit will be described to you in your Offer but may be subsequently updated upon notice to you if you change your delivery location or if Misfits Market changes the delivery method utilized for your delivery location. Misfits Market makes no promise of the continued availability of any Membership Benefit, even if it is displayed to you on the Website or in your Offer. By purchasing a Misfits+ membership, you acknowledge and agree that Misfits Market expressly reserves the right to change, modify, discontinue, or cancel some or all of the Membership Benefits, at any time and in its sole and absolute discretion, without compensation to you.
Misfits Market reserves the right to change the Membership Rate or alter the features associated with a Misfits+ membership at any time in its sole discretion. If Misfits Market changes your Membership Rate, such fee change will not apply to current Misfits+ members until such time as their current subscription term expires and their memberships are renewed for another term. We will provide you with notice of any such change to your Membership Rate, and if you do not wish to continue your Misfits+ membership with the new Membership Rate, you can cancel your Misfits+ membership in accordance with the instructions in Section 6(c) above. Misfits Market may also make changes with respect to current Misfits+ memberships, in which case Misfits Market will provide you with notice of the changes and when they will take effect. If you do not consent to the changes to your Misfits+ membership, you may cancel as described in Section 6(c) above. Your continued use of the Services after a fee or feature change becomes effective will constitute your acceptance of the change, and any updated terms and conditions will apply for the remaining Billing Cycle and all renewals going forward.
Misfits Market reserves the right to stop offering the Misfits+ membership at any time in its sole discretion.
f. Cancellation by Misfits Market; No Transfer or Assignment Misfits Market may terminate, suspend, refuse or cancel your Misfits+ membership at any time in its sole discretion without notice, including in the event we are unable to collect payment from you. If Misfits Market cancels your Misfits+ membership, you will receive a pro-rata refund of your Membership Rate based on the amount of time remaining in your Billing Cycle, unless such termination related to conduct that we determine, in our sole discretion, violates these Terms, any applicable law, or involves fraud or misuse of the Misfits+ membership or the Services. If your Misfits+ membership is ever terminated for any reason, you will not be eligible for a free trial or promotional subscription on any subsequent Misfits+ membership unless otherwise permitted by Misfits Market in its sole discretion.
Your Misfits+ membership cannot be transferred or assigned.
a. Prices. You acknowledge that the amount billed may vary due to Promotions, Credits, the particular number and assortment of Products you add to or retain within your cart in each Order, your Misfits+ membership, if applicable, and changes in applicable taxes, shipping charges, or other charges, and you authorize us (or our third party-payment processor) to charge your payment method for the corresponding amount. We reserve the right to adjust prices as we may determine in our sole discretion, at any time and without notice. The shipment of Products to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your account.
b. Payment and Credit Cards. You are responsible for providing Misfits Market with valid credit card or payment account details and for the timely payment of all fees.
Please note that the payment information, including name and contact information, that you submit when you register may be used and shared with our payment processing services provider and otherwise used in accordance with our Privacy Policy.
If you wish to designate a different credit card or payment account, or if there is a change in your credit card or payment account status, you must change your information in your account. Doing so may temporarily disrupt your access to your account while Misfits Market verifies your new payment information. Any change in the chosen payment method will go into effect for the next billing date.
You acknowledge and agree that following the close of your shopping window we may place a pre-authorization hold on your payment method for the estimated total of your Order. You will be charged in full for the actual total of your Order when we pack your Order, at which point we will authorize the release of any excess amounts held. Please be aware that your payment method’s rules will apply to your credit card or payment account being credited for any hold amounts released and may not be immediately released by your card issuer.
c. Default. If your default payment is declined for any reason (such as expiration or insufficient funds), you authorize Misfits Market to charge any other payment method available in your account. If no other payment method is available in your account, Misfits Market may prompt you for a new payment method, or your payment method provider may provide us with updated payment details. If Misfits Market is unable to successfully charge your credit card or payment account for fees due, we reserve the right to restrict, suspend access to, or terminate your account and cancel your Order. Misfits Market is not responsible for any fees charged by your bank including, but not limited to, overdraft fees, insufficient funds fees, interest charges, foreign exchange fees, cross border fees, and other penalties.
d. Promotions. From time to time, Misfits Market may offer discounts, coupons, and other promotions to new or existing customers (collectively “Promotions”). Promotions are subject to eligibility criteria and additional terms and conditions (“Promotional Terms”), which will be provided to you at the time you redeem the Promotion or in other communications made available to you. We encourage you read all Promotional Terms carefully. In order to use a Promotion, you will be required to create an account with Misfits Market and may be required to take other actions as described in the Promotional Terms, such as entering a promotional code on the “Promos & Credits” section of your Account Home page, and your use of any Promotion will be deemed to confirm your agreement to these Terms of Service and any Promotional Terms applicable to the Promotion. Certain Promotional Terms may include a “claim by” date, which identifies the date by which the Promotion must be claimed and applied to your account through the method described in the Promotional Terms, and a “use by” date, which identifies the final date on which your shopping window can close to remain eligible to use the Promotion. Following the expiration or exhaustion of your Promotion, you agree and acknowledge that you will be billed at the standard prices for your future Orders pursuant to these Terms of Service.
Misfits Market may determine your eligibility for any Promotion in our sole discretion, and we may use information such as your device ID, method of payment, purchase history, or contact information to determine your eligibility for a Promotion. We reserve the right to revoke any offer, and suspend your access to the Services, if we determine you are not or were not eligible for a Promotion. We also reserve the right, in our sole discretion, to modify or terminate any Promotion, at any time and without notice or liability to you. Without limiting the foregoing, Misfits Market reserves the right to withdraw or deactivate any Promotions in the event the applicable promotional code is posted to a third-party website.
Unless otherwise expressly stated in the Promotional Terms, all Promotions are non-transferrable and may be used only by the intended recipient, may only be used once, are not redeemable for cash or other property, may not be combined with any other offers or promotions, and are void where prohibited by law.
a. Product Availability. A reference to a Product on the Website does not imply or guarantee that it is or will be available at the time of your shopping window or during fulfillment of your Order.
We attempt to display images of the Products on the Website as accurately as possible. However, we do not guarantee the accuracy of such materials and information. The appearance, color, size, condition and other characteristics of each Product will vary from product to product. Images available on the Website are examples only.
All of our Products are subject to availability, and we reserve the right to impose quantity limits on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products without prior notice. Unless Misfits Market agrees or states otherwise in writing, all fees and charges are nonrefundable.
b. Refunds and Credits. If you discover a quality issue regarding your Order, you must reach out to Misfits Market within seven (7) days of your receipt of your Order. Please click here for more information on how to notify us of an unsatisfactory Product.
Depending on the circumstances, we may in our sole and absolute discretion replace any Product at our expense, provide you a full or partial refund of the purchase price for the Product, or provide you a credit of promotional value intended to be applied to your next eligible purchase from Misfits Market (a “Credit”). We may require the return or photographic documentation of any Product that you are dissatisfied with before we provide you with a refund, replacement, or Credit, as applicable, at our election.
Credits are subject to any additional terms and conditions described at the time such Credit is provided or as otherwise described under the “Promos & Credits” section of your Account Home page, including any expiration dates. Credits will typically be automatically applied to your account, but certain Credits may require additional action on your part (for example, entering a coupon code) in order to be applied to future purchases, which will be communicated to you at the time of issuance. Once applied to your account, Credits will automatically be applied to the purchase of your next Order(s) until exhausted or expired. A maximum of $250 in Credits may be applied to any single Order. Credits will only be applied to Orders that are fulfilled and not to donated or skipped orders. Credits cannot be applied to purchases of Alcoholic Beverages or gift cards, or to pay for your Misfits+ Membership Rate, if applicable.
Credits are promotional in nature, are not transferable, and are not redeemable for cash or other property. Credits only remain available if you maintain a valid account with Misfits Market. That means that if you cancel your account, any outstanding Credits associated with your cancelled account will immediately expire. You may only redeem Credits after they are applied to your account. If for some reason you believe there is a discrepancy regarding your Credit balance, please click here to contact us. All decisions regarding your Credit balance will be determined in our sole discretion and are final.
If you purchase a Product as part of a “buy one get one” Promotion, the discount is based on the lowest priced Product, then applied to each Product proportionately. If you receive a refund or Credit for any Product purchased as part of a “buy one get one” Promotion, your refund or Credit will be the discounted amount of that Product. For example, if your first qualifying Product purchased pursuant to a “buy one get one 50% off” Promotion is $3 and your second qualifying Product is $2, the $3 Product will be discounted by $.60 and the $2 Product will be discounted by $.40, for a total discount of $1. If a refund or Credit of either Product is granted, the refund or Credit amount will be the original price reduced by its prorated discount.
If you receive a refund or Credit for any Product purchased as part of a discount Promotion, your refund or Credit will be the discounted amount of that Product. For example, if the Product is $4 and it qualified for a 20% discount, the refund or Credit amount would be $3.20.
If you receive a refund or Credit for any Product purchased as part of a bundled-pricing Promotion, your refund or Credit will be based on the average discounted price of that bundled Product. For example, if a $4 Product is offered as part of a “Buy 3 for $9” promotional bundle, the refund or Credit amount would be $3.00 per affected Product.
All Orders of Alcoholic Beverages, merchandise, and other non-food items are non-refundable.
Check the FAQs page of the Website to see where we ship - we don't yet ship to all 50 states but add new states frequently.
You agree to pay any shipping and handling charges shown in your cart at the time you place an Order in the manner described in Section 5. Shipping fees are subject to change from time to time, and you will be notified of the shipping charges applicable to your Order based on the charges specified in your cart during your shopping window, including any promotions or discounts that may be applicable to your shipping fees. It is your responsibility to review the shipping fees applicable to each of your Orders. All Products should be shipped to you personally and are not for resale or export.
Certain customers may be eligible for free shipping if their Order exceeds a certain threshold (excluding any applicable taxes, shipping charges, and other charges or Promotions), which we call your “free shipping threshold.” If this applies to you, your free shipping threshold will be identified in the “Plan Summary” section of your “My Plan” page, and your standard shipping fee will not apply to any Orders with a subtotal meeting this free shipping threshold.
You may have the opportunity to select a preferred delivery day, but note that the day is an estimate only, and that your actual delivery date may vary. Any person at the delivery address who accepts a delivery from us is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all of the same terms and conditions that would apply had you accepted the delivery yourself.
If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door, unless other delivery instructions have been communicated to you. You should plan for immediate and proper storage of your products upon delivery.
If you experience a delivery issue relating to your Order, you must reach out to Misfits Market within seven (7) days of your scheduled delivery date for your Order. Please click here for more information on how to notify us of a delivery issue.
Our referral program rewards our customers for spreading the word about Misfits Market. Each time a new customer uses your unique referral code (“Referral Code”) at checkout, you'll both receive a special offer. You can learn more about our referral program here. If you participate in our referral program by sharing your Referral Code, you're subject to the following terms and conditions.
A “Qualified Referral” is a purchase made at www.misfitsmarket.com by a new customer who arrives at our website by using your Referral Code (a “Referred Customer”). You are limited to one Qualified Referral for each Referred Customer; in other words, additional/repeat purchases made by a Referred Customer are not considered additional Qualified Referrals. You may not make purchases using your own Referral Code (for example, by using a different email address).
Only individual people are eligible to participate in Misfits Market's referral program. Businesses may not use referral codes for affiliate lead generation. You must comply with all “spam” laws. For example, any emails you send with your Referral Code must be created and distributed in a personal manner, and bulk email distribution is strongly discouraged. Any distribution of your Referral Code that could constitute unsolicited commercial email or “spam” under any applicable law or regulation is expressly prohibited. You may not post your Referral Code on coupon or other commercial or promotional websites without Misfits Market's prior written approval. Any Referral Codes posted on such websites may be automatically disabled and any resulting Qualified Referrals may be revoked by Misfits Market without notice to you, and you may be issued a new Referral Code in Misfits Market's discretion.
You may earn no more than 30 Qualified Referrals (i.e. referral rewards) per calendar year. Credits from Qualified Referrals may not be combined with any other offer, and a maximum of $250 in Credits may be applied to any single Order. You are responsible for any and all tax liability resulting from Referral Rewards.
Misfits Market reserves the right to cancel its referral program or to change the terms and conditions of the program at any time in its sole discretion. Any unclaimed referral rewards will be forfeited at that time.
Misfits Market reserves the right to close the account of (and/or charge payment of any discount or credit provided to) any customer who uses or attempts to use the referral program in violation of these terms and conditions or in violation of any applicable law or regulation. Misfits Market also reserves the right to close the account of any customer whose Referral Code is found posted to coupon or other commercial or promotional websites without Misfits Market's written approval or who attempts to make purchases using their own Referral Code.
Misfits Market offers gift cards in any denomination between $10 and $250. Upon purchase of a gift card, the purchaser will receive an email confirmation containing a unique gift card code that they can forward to the intended recipient. If the recipient is an existing Misfits Market customer, they can add the gift card amount to their Misfits Market credit balance. If the recipient is a new customer, they will need to set up a Misfits Market account and input their credit card number. If the recipient does not live in Misfits Market's delivery area at the time of purchase, the recipient can keep the gift card to use in the future, or the purchaser may contact Customer Care to request that the gift card be voided, in which event the amount paid for the gift card will be added as a credit on the purchaser's Misfits Market account.
The gift card balance will be added to the recipient's Misfits Market credit balance, and purchases made will be deducted from that balance. The unused portion of any gift card will remain in the recipient's credit balance and can be used for future purchases. In the event that the total purchase amount exceeds the recipient's total credit balance, the difference will be charged to the credit card on file. Gift cards do not expire and do not decrease in value over time.
Gift card purchases are non-refundable, and gift cards cannot be reloaded, resold, transferred for value, or redeemed for cash, except as required by law. Gift cards cannot be redeemed by the gift card purchaser for their own use. Misfits Market is not responsible for lost, stolen, or destroyed gift cards or use by someone other than the intended recipient or other misuse. Use of gift cards for unauthorized marketing, sweepstakes, or other promotional or commercial purposes is prohibited. Gift cards may not be combined with certain promotional offers, and cannot be used to purchase additional gift cards. Gift cards may not be used for the purchase of Alcoholic Beverages or to pay your Misfits+ Membership Rate, if applicable. Misfits Market reserves the right to refuse gift card sales to anyone and limit how many gift cards a customer may purchase or redeem. Customers may not purchase gift cards exceeding $1,000 total in any calendar month. If Misfits Market suspects that a gift card is obtained or used in violation of these terms and conditions or of any applicable law or regulation, Misfits Market reserves the right to void outstanding gift cards or any component of the customer's account balance, close the account, and bill alternative forms of payment. Misfits Market may change the terms and conditions pertaining to the sale and redemption of gift cards at any time in its sole discretion.
By purchasing or using a Misfits Market gift card, you agree to be bound by this Section 11 and these Terms.
These Misfits Perks Loyalty Terms of Use (“Loyalty Terms”) apply to your access to, and your participation in, the Misfits Perks loyalty program in the United States (“Misfits Perks” or the “Program”), which is operated by Misfits Market. These Loyalty Terms form a part of, and are expressly subject in all respects to, the Terms of Service between you and Misfits Market, including without limitation Section 19 (Warranties, Disclaimers, Limitation of Liability, and Indemnification) and Section 21 (Dispute Resolution and Arbitration), as well as our Privacy Policy as described in Section 22.
a. General Applicability. Misfits Perks is one way in which Misfits Market attempts to reward and thank loyal customers for shopping with Misfits Market. Customers are able to earn and accumulate points (“Points”) that can be redeemed for certain rewards, Products, discounts, or other benefits (collectively known as “Perks”) through our Website. You can learn more about Misfits Perks here.
Misfits Perks is intended for personal use only. Only individuals who are at least 18 years old and can form legally binding contracts are authorized to participate in Misfits Perks.
b. Changes to Loyalty Terms or Misfits Perks. Misfits Market reserves the right to change or modify these Loyalty Terms or any policy, FAQ, or guideline pertaining to Misfits Perks, in whole or in part, at any time and in its sole discretion. Any changes or modifications will be effective immediately and may be posted to www.misfitsmarket.com, so please check back from time to time. You waive any right you may have to receive specific notice of such changes or modifications, and your continued access to or participation in Misfits Perks following any such changes or modifications confirms your acceptance.
By participating in Misfits Perks, you acknowledge and agree that Misfits Market expressly reserves the right to change, modify, discontinue, or cancel Misfits Perks or any part of the Misfits Perks program, at any time and in its sole and absolute discretion, without notice or compensation to you.
c. Joining Misfits Perks. You will be automatically enrolled in the Misfits Perks program when you register for a user account with Misfits Market as described in Section 4 of these Terms of Service. Registering for an account constitutes your full and unconditional agreement to these Loyalty Terms. If you do not agree to these Loyalty Terms, you must stop accessing and participating in Misfits Perks and may not use the Website or purchase Products. Misfits Market reserves the right in its sole discretion to decline eligibility to any person or, in its sole discretion, to terminate any person's participation in Misfits Perks.
d. Earning Points. The Perks that are available to you through Misfits Perks are based on the number of Points that you earn. You can earn Points by making purchases through our website or mobile applications and engaging in certain other activity through our Website in the following ways:
Dollar amounts for purchase calculations are based on the Order’s subtotal, meaning that it excludes any tax or shipping fees applicable to the Order. Points based on purchases may not be earned in fractional amounts. The purchase amount of any subtotal will automatically be rounded down to the nearest one U.S. Dollar ($1) when calculating the number of Points awarded for any Order. Qualifying purchases include grocery items sold through the Misfits Market website and mobile application, but expressly exclude any alcoholic beverages (including wine) or gift cards. Donated boxes are eligible to earn Points on the amount of your donation at the rate consistent with your order plan.
You will remain eligible to earn points if you use more than one eligible payment method to purchase a single Order. For example, if you purchase an Order with a subtotal $35.50 using $5 in Credits and paying the remaining $30.50 with your credit card on file, you will earn 35 Points on the purchase
Points will not be deducted from our Points balance if a single Product or your full Order is refunded due to an issue with the Product or Order. However, if your Order is cancelled for any reason, the applicable Points from that Order will be deducted from your Points balance.
You can see your current Points balance on the Misfits Perks section of your Account Home page. It may take twenty-four (24) hours or more for the Point(s) to show in your account. Misfits Market reserves the right to update, modify, or revoke any of the methods of earning Points as described above at any time in its sole discretion and without advanced notice to you.
e. Points Expiration. Unless otherwise noted, Points are automatically added to your account within twenty-four (24) hours of your qualifying purchase or activity and will automatically expire in any of the following scenarios:
f. Redeeming Points for Perks. Points may be redeemed for complimentary Perks that apply to your upcoming Order. You will be able to redeem your Points to “shop” for Perks at the Points value designated for each Perk during your open shopping window. The specific Perks that are available to you at any given time will be described in the “Shop With Points” aisle in the store front while your shopping window is open. A selection of available Perks may also be displayed on the “Misfits Perks” section of your Account Home page from time to time. These Perks may include, for example, various grocery items that you can select to add to your Order in exchange for the Point value designated for such items. These Perks may from time to time also include, at our discretion, additional options such as dollar-value discounts on your Order.
Please note that the Perks that are available to you may vary from time to time based on availability and your delivery location. Misfits Market makes no promise of the continued availability of any Perk, even if it is displayed to you on the Website. Perks are available until supplies last, and Misfits Market may modify, change, or discontinue the Points required for any tier or the Perks offered to you at any time without notice in its sole discretion.
To redeem your Points for a Perk on your upcoming Order, visit the “Shop With Points” aisle of your store front at any time during your open shopping window to see which Perks are currently available to you based on your Points balance and select “Redeem” for the Perk that you wish to apply to your upcoming Order. Once applied, your Points balance will automatically be reduced by the cost of that Perk selected. If you skip or otherwise do not place an Order to which a Perk was applied, your Perk will not be completed and any Points applied to that Perk will be returned to your Points balance for use on a future Order. You may also select the “Unredeem” button on the “Misfits Perks” section of your Account Home page at any time during your shopping window to opt out of redeeming a particular Perk.
You may apply multiple Perks to any Order (up to a maximum of 1,000 Points redeemed per Order) so long as you have a sufficient number of Points to redeem those Perks, except that any dollar-value discount Perks (if offered) will be limited to a maximum of one (1) per Order.
g. Other Important Details About Misfits Perks. There are no participation or membership fees associated with Misfits Perks. Points accrued in connection with Misfits Perks are promotional and do not constitute property, do not entitle you to a vested right or interest, and have no cash value. As such, Points are not redeemable for cash. Points may not be transferred, auctioned, or assigned to, or shared with, any other person, including family, friends, or others, and are not transferable upon death, as part of a domestic relations matter, or otherwise by operation of law.
Points may not be used by you for any commercial purpose. The sale of Points (whether directly or indirectly) is strictly prohibited, and any person identified or suspected by Misfits Market of attempting to sell Points may have their Misfits Market account terminated and all Points forfeited without compensation.
Misfits Market reserves the right to remove Points from your Account if it determines that such Points were improperly credited to your Account or were obtained fraudulently. Points deposited into your Account that are subsequently determined to be invalid for any reason are subject to disqualification and will be removed from your Account.
Without notice to you, Misfits Market reserves the right to suspend or terminate your account and/or your participation in Misfits Perks if Misfits Market, in its sole discretion, that you have violated these Loyalty Terms or that any use of your Misfits Perks account is unauthorized, deceptive, fraudulent, unlawful, or otherwise appears to be in a manner inconsistent with these Loyalty Terms or the purposes of the Misfits Perks program. In the event that your account and/or your participation in Misfits Perks is terminated, all accrued Points in your account will be immediately void and forfeited without compensation. Misfits Market reserves the right to charge payment for any Perks awarded to any customer in violation of these Loyalty Terms or in violation of any applicable law or regulation. All questions or disputes regarding eligibility for Misfits Perks, accumulation of and redemption of Points, or a customer's compliance with these Loyalty Terms will be resolved by Misfits Market in its sole discretion.
Your redemption of Points accrued in connection with Misfits Perks cannot be combined with any other offers or discounts unless otherwise expressly authorized in writing by Misfits Market. Customers are responsible for the payment of all taxes which may result from participation in Misfits Perks. Misfits Perks is subject to all applicable laws, rules, and regulations.
The Program will continue until such time as Misfits Market, in its sole discretion, elects to terminate it.
h. Imperfect Foods Customers. Existing customers of Imperfect Foods will be automatically enrolled in Misfits Perks effective as of August 9, 2023. These customers will thereafter be eligible to earn Misfits Points and redeem them for Misfits Perks in accordance with these Loyalty Terms, but please note that these existing Imperfect Foods customers will not be eligible to receive the twenty-five (25) bonus points for creating a Misfits Market account.
a. Security. We take your privacy very seriously, but the transmission of data over the Internet and mobile networks isn't 100% secure. Emails, text messages, and other messages you send to or receive from Misfits Market are not encrypted, which means that they're vulnerable to interception by third parties. If you choose to send or receive financial information or any other sensitive information by email, text message, or other electronic means (such as a web form) or through our social media channels, you do so at your own risk. By emailing or texting us, messaging us on social media, completing a web form, or requesting that we email you, you consent to receiving unencrypted email, text messages, and other unencrypted messages from us.
b. Text Messages. By providing your phone number when creating an account, placing an Order, or otherwise while using the Services, you consent to receiving text messages (i.e. SMS or MMS messages) relating to your account and your Orders from Misfits Market and from our third-party delivery partners (or their respective messaging service providers), some of which may be sent through an automatic telephone dialing system, to the phone number you provided or any other number that you designate. You acknowledge and agree that your voluntary provision to Misfits Market of your phone number represents your consent that Misfits Market and its third-party delivery partners (or their respective messaging service providers) may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for transactional, operational, or informational purposes.
Additionally, you may elect to provide your phone number in order to receive promotional and marketing text messages (i.e. SMS or MMS messages) from Misfits Market (or our messaging service provider), including recurring and/or personalized messages, some of which may be sent through an automatic telephone dialing system, to the phone number you provided or any other number that you designate. You acknowledge and agree that your voluntary provision to Misfits Market of your phone number when collected for purposes of promotional and marketing text messages, whether that election is made via an opt-in check box, submitting your phone number to a designated form for promotional and marketing text messages, requesting enrollment via text message, or another method, represents your consent that Misfits Market (or its messaging service provider) may contact you by telephone, SMS, or MMS messages at that phone number, and your consent to receiving such communications for marketing and promotional purposes.
You can make purchases without agreeing to receive text messages from us. Standard text messaging and data rates charged by your mobile carrier may apply to such text messages, and any and all such charges, fees, taxes, and costs are your sole responsibility. Message frequency will vary, and Misfits Market reserves the right to alter the frequency of messages sent at any time so as to increase or decrease the total number of sent messages. Misfits Market also reserves the right to change the short code or phone number from which messages are sent, and we will notify you when we do so.
Not all mobile devices or handsets may be supported, and our messages may not be deliverable in all areas. Misfits Market, its service providers, and the mobile carriers supported by the program are not liable for delayed or undelivered messages.
You may opt out of receiving text messages at any time by replying STOP, END, CANCEL, UNSUBSCRIBE, or QUIT, and you can contact us here if you need additional help. After texting STOP, END, CANCEL, UNSUBSCRIBE, or QUIT to us, please note that you may continue to receive text messages for a short period while Misfits Market processes your requests. You will receive one additional message confirming that your request has been processed. Please be aware that our text message platform may not recognize and respond to unsubscribe requests that do not include the STOP, END, CANCEL, UNSUBSCRIBE, or QUIT keyword commands and agree that Misfits Market (and its messaging service provider) will have no liability for failing to honor such requests. If you unsubscribe from one of our text message programs, you further acknowledge that you may continue to receive text messages from Misfits Market through our other text message programs you may have joined until you separately unsubscribe from those programs. For example, if you unsubscribe from receiving promotional and marketing text messages, you may still receive text messages about your account or Orders for transactional, operational, or informational purposes unless you unsubscribe from those text messages as described above, and even in such event you may still receive individual texts from our third-party delivery partners to enable successful delivery of your Order.
Text the keyword HELP to our phone number to return customer care contact information.
You represent and warrant that you are the owner of the phone number that you provide when you create an account or otherwise provide your phone number, and if you change your phone number you have an affirmative obligation to immediately update your account information and the phone number associated with your account to prevent us from inadvertently communicating with anyone who acquires any phone number previously attributed to you. Any new or updated phone number you provide Misfits Market may be enrolled to receive messages through our text message program(s) unless you also unsubscribe through the procedures provided in this section.
c. Notices. You agree that all notices, disclosures, agreements, and other communications that we provide to you electronically, including by email, text message, and by communications posted on the Services or within your account, will satisfy any legal requirement that such communication be in writing.
a. License to Use. Subject to your compliance with the Terms, Misfits Market grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Website, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Website as provided by Misfits Market, in the manner permitted by the Terms.
b. Service Limitations. The Website is currently configured for use in the United States only and is not intended for use outside of the United States. If you choose to access the Website from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
Any time you access or use the Website, you are required to comply with our user conduct guidelines, as set forth below.
You agree that you will access and use the Website and Products for your personal use only. We only permit individuals who are at least 18 years old and can form legally binding contracts to use the Services.
You are not authorized to access or use the Website to:
a. The Website. The Website and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Website, and all intellectual property rights therein are the exclusive property of Misfits Market and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Website or Products.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with Misfits Market (the “Marks”) are the property of Misfits Market, and that you are not permitted to use the Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Website in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of Misfits Market or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at Misfits Market's sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Misfits Market or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
b. Your Feedback. We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Website (“Feedback”). You may submit Feedback by clicking here. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of Misfits Market. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by Misfits Market or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to Misfits Market all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect Misfits Market's rights in such improvements, enhancements and modifications.
Just as we ask you to respect our intellectual property rights, we respect your rights and the rights of others, and we expect all our users to do the same. If we believe a user may be infringing upon someone's intellectual property rights, we may remove the material. If we believe someone is repeatedly infringing, we will terminate that person's access rights. If you believe someone has posted on the Website a work that you own without your authorization, let us know. Please send a notice of copyright infringement containing the following information to our Designated Agent (whose contact information is below):
Please contact the Designated Agent to receive notice of claimed infringement by clicking here, or by writing to Misfits Market, Inc., c/o Imperfect Foods, Inc., 16800 SE Evelyn St., Suite 140 Clackamas, OR 97015 , Attention: General Counsel.
The Website may also provide links to third-party websites, resources or services. You acknowledge and agree that is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by Misfits Market of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
a. Disclaimers
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, MISFITS MARKET EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE SERVICES, OR THAT USE OF THE WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY WEBSITE CONTENT.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.
WE ATTEMPT TO DISPLAY IMAGES OF THE PRODUCTS ON THE WEBSITE AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. THE APPEARANCE, COLOR, SIZE, CONDITION AND OTHER CHARACTERISTICS OF EACH PRODUCT WILL VARY FROM PRODUCT TO PRODUCT. IMAGES AVAILABLE ON THE WEBSITE ARE EXAMPLES ONLY.
A REFERENCE TO A PRODUCT ON THE SITES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
b. Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST PERMITTED BY APPLICABLE LAW, THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE SERVICES IS AND REMAINS WITH YOU AND YOU HEREBY RELEASE MISFITS MARKET AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
WITHOUT LIMITING THE FOREGOING, MISFITS MARKET DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE SERVICES. IN NO EVENT WILL MISFITS MARKET BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MISFITS MARKET HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
NOTHING IN THE TERMS FURTHER IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, MISFITS MARKET'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
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 MISFITS MARKET FROM AND AGAINST, AND COVENANT NOT TO SUE MISFITS MARKET FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THE TERMS.
c. Indemnification
To the fullest extent permitted by applicable law, you agree to release, defend, indemnify, and hold Misfits Market, its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Services, including any and all features, functionality, tools, content and promotions available on and through the Website, (ii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iii) your gross negligence or willful misconduct.
d. Obligation to Defend
You agree that, at Misfits Market's option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) Misfits Market may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of Misfits Market (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
e. No Implied Indemnity
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
No matter where you're located, the laws of the State of New York will govern the Terms and the relationship between you and Misfits Market as if you signed or otherwise agreed to the Terms in New York, without regard to New York's conflicts of laws rules. If any provisions of the Terms are inconsistent with any applicable law, those provisions will be superseded and/or modified only to the extent such provisions are inconsistent. If a lawsuit or court proceeding is permitted under the Terms, then the parties agree to submit to the federal or state courts in New York County, New York for exclusive jurisdiction for the purpose of litigating any dispute arising out of or related to your use of the Services or your breach of the Terms.
a. Generally. You and Misfits Market agree that every dispute arising out of or in connection with the Terms or your use of the Services will be resolved by binding arbitration. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of the Terms or your use of the Services, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of the Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MISFITS MARKET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
b. Exceptions. Despite the provisions of Section 21(a) nothing in the Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) to file suit in a court of law to address an intellectual property infringement claim.
c. Arbitrator. Any arbitration between you and Misfits Market will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Misfits Market. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
d. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if such other party has not provided a current physical address, then by electronic mail (“Notice”). Misfits Market's address for Notice is: Misfits Market, Inc., c/o Imperfect Foods, Inc., 16800 SE Evelyn St., Suite 140 Clackamas, OR 97015 , Attn: Legal Department. The Notice must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice is received, you or Misfits Market may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Misfits Market must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, we will pay you the highest of the following: (i) the amount awarded by the arbitrator, if any; (ii) the last written settlement amount offered by Misfits Market in settlement of the dispute prior to the arbitrator's award; or (iii) $1,000.
e. Fees. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Misfits Market for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits.
f. No Class Actions. YOU AND MISFITS MARKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Misfits Market agree otherwise, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding.
g. Modifications to this Arbitration Provision. If we make any future change to this arbitration provision, other than a change to our address for Notice, you may reject the change by sending us written notice to our address for Notice within 30 days of the change, in which case your account with Misfits Market will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected, will survive.
h. Cause of Action. You agree that any cause of action arising out of or related to the products must be commenced by you within one (1) year after the cause of action accrues, otherwise such cause of action is permanently barred.
i. Enforceability. If Section 21(f) is found to be unenforceable or if the entirety of this Section 21 is found to be unenforceable, then the entirety of this Section 21 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.
Our collection and use of information about Users is governed by our Privacy Policy. Be sure to read through it so you understand how we collect and use your information.
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Services or requests to receive further information regarding use of the Services may be submitted by clicking here.
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
The Terms constitute the entire and exclusive understanding and agreement between you and Misfits Market regarding your access to and use of the Products and the Website, and supersede and replace any and all prior or contemporaneous oral or written understandings or agreements between you and Misfits Market and regarding the subject matter hereof.
You cannot assign, transfer or sublicense the Terms without first obtaining our consent. We may assign, transfer, or delegate any of our rights and obligations without your consent.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
Our failure to exercise any right or enforce any obligation under the Terms or to take action with respect to a breach by you or others will not constitute a waiver of such right, obligation or breach. No waiver granted in any instance shall constitute a waiver in any other instance.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
Congratulations! You're almost at the end of our Terms. As a reward, you've unlocked a Misfits Market must-try recipe in the form of a creamy, earthy beet dip.
First, you'll need:
Serve immediately and enjoy!
Now, back to the Terms.
If you have any questions or concerns, please contact Misfits Market by clicking here.
You can also write to us at:
Misfits Market, Inc.
c/o Imperfect Foods, Inc.
16800 SE Evelyn St., Suite 140
Clackamas, OR 97015
Attn: Legal Department
