Terms and
Conditions
Thank you for using our services! These
Terms and Conditions (“Terms”) govern your use of our services, including our
website, and any websites (or portions thereof) that are operated by us
(collectively, the “Services”), and are entered into by you and KM Market and Grill Inc. (d/b/a Azhar).
By using the Services, you agree to be
bound by these Terms and acknowledge and agree to the collection, use and
disclosure of your personal information in accordance with our Privacy Policy.
SECTION
7 (“DISPUTES & ARBITRATION”) OF THESE TERMS PROVIDE THAT ANY CLAIMS THAT
YOU AND AZHAR HAVE AGAINST EACH OTHER, INCLUDING, WITHOUT LIMITATION, ANY
CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THESE TERMS,
WILL, WITH LIMITED EXCEPTIONS, BE SUBMITTED TO BINDING AND FINAL ARBITRATION.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT YOU WILL ONLY BE PERMITTED TO
PURSUE CLAIMS AND SEEK RELIEF AGAINST AZHAR ON AN INDIVIDUAL BASIS, NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOU ALSO WAIVE YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY
TRIAL ON YOUR CLAIMS. PLEASE SEE SECTION 7 FOR MORE INFORMATION REGARDING THIS
ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND
HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.
The Services comprise a platform that
presents you with a retailer virtual storefront from which you can select goods
for picking, packing, and delivery by individual personal employees to your
location or, if available, for you to pick up in-store. Picking, packing, or
delivery services will be performed by the retailer or possibly a third party
provider (collectively, “Third Party Providers”).
Delivery may be conducted by each
individual personal employee’s select method of transportation. You acknowledge
that transportation or logistics services are provided by Azhar.
When you use the Services to place an
order for products, you authorize the purchase and delivery of those products
from the retailer. Unless otherwise specified, you acknowledge and agree that
Azhar is acting as your agent in the picking, packing, and/or delivery of goods
purchased by you. You agree that your purchase is being made from the retailer,
that retailer is the merchant of record, and that title to any goods passes to
you when they are purchased at the applicable retailer’s store (Azhar). You
agree that Azhar will obtain a credit card authorization for your credit card
on file with Azhar to cover the cost of the goods you have purchased from them
and any separate Azhar fees, and your card will be charged for the goods
purchased by you and any applicable fees, taxes and/or tips. Your card may be
temporarily authorized for an amount greater than the total amount of the
purchase appearing in the original check out. This higher authorized amount
will be disclosed during the purchase process and is a temporary authorization
charge on your order, to deal with situations where your total purchase amount
turns out to be higher than the original amount due to special requests, added
items, replacement items or weight adjustments.
Unless otherwise indicated, all prices
and other amounts are in the currency of the jurisdiction where the delivery
takes place.
Occasionally there may be information on
the Services that contains typographical errors, inaccuracies, or omissions
that may relate to pricing, product descriptions, promotions offers, and
availability. Azhar reserves the right to correct any errors, inaccuracies or
omissions and to change or update information or refuse or cancel orders if any
information on the Services is inaccurate at any time without prior notice
(INCLUDING AFTER YOU HAVE SUBMITTED YOUR ORDER AND/OR YOUR CREDIT CARD HAS BEEN
CHARGED). Please note that prices of products on the Services may be different
than prices offered for the same products in-store by the same retailer.
1. Your Use of the Services
Azhar grants you a
limited, non-exclusive, non-transferable, and revocable license to use the
Services for their intended purposes subject to your compliance with these
Terms and Conditions and Azhar’s policies. You may not copy, modify,
distribute, sell, or lease any part of the Services. Unless such restriction is
prohibited by law or you have Azhar’s written permission, you may not reverse engineer
or attempt to extract the source code of the Services. You may only access the
Services through the interfaces that Azhar provides for that purpose (for
example, you may not “scrape” the Services through automated means or “frame”
any part of the Services), and you may not interfere or attempt to disrupt the
Services.
Some parts of the
Services may allow you to upload or submit content (such as text, images,
video, recipes, lists, links, and other materials). You retain all rights in
any content that you upload or submit, and are solely responsible for that
content. You grant Azhar a non-exclusive, royalty-free, worldwide,
transferable, sublicensable license to use, store, publicly display, publicly
perform, reproduce, modify, create derivative works from, and distribute any
such content for the purposes of operating, providing, and improving the
Services. Azhar may, in its sole discretion, remove or take down any content
that you upload or submit to the Services for any reason, including violation of
these Terms or any other policies.
Some software, or
portions of software, in the Services may be governed by open source licenses.
In that case, Azhar will make such licenses available to you and, in the case
of conflict between such a license and these Terms, the open source license
will control but only with respect to the software, or portion of the software,
to which it applies.
If you are using Azhar’s
services on behalf of a business or other entity, you represent and warrant
that you have the necessary authority to bind that business or entity to these
Terms and that you are agreeing to these Terms on behalf of that business or
entity.
In order to use the
Services, you may need to create a user account. You agree that you are
responsible for all conduct and transactions that take place on or using your
account and that you will take precautions to keep your password and other
account information secure. You also agree that you will comply with all
applicable laws when accessing or using the Services and you will respect those
who you encounter in your use of the Services, including individuals who
support Azhar’s Help Center. Azhar reserves the right to decline orders, refuse
partial or full delivery, terminate accounts, and/or cancel orders at any time
in its sole discretion.
We’re constantly
modifying and improving the Services. Azhar may introduce new features, change
existing features, or remove features from the Services at any time and without
notice. If you provide Azhar with any feedback on or comments regarding the
Services, you grant Azhar the right to use such feedback or comments for any
purpose without restriction or payment to you.
If you have any requests
for order cancellations, refunds, or returns, please visit your account to
initiate such requests.
2.Azhar Communications
By creating an Azhar user account, you
agree to accept and receive communications from Azhar including via email or
possibly SMS. You understand and agree that you may receive communications
generated by automatic telephone dialing systems and/or which will deliver
pre-recorded messages sent by or on behalf of Azhar, its affiliated companies
including, but not limited to, communications concerning orders placed through
your account on the Services. If you do not wish to receive promotional emails
or other communications, you may opt out of such communications at any time.
3.Coupons/Promo Codes
Azhar Coupons are manufacturer’s coupons
that are automatically applied to qualifying products upon purchase to help
users save money on the products they love. Coupons are available for a limited
time only and may be subject to certain restrictions. Coupons are subject to
change, cancellation, or expiration at any time. If you do not purchase the
qualifying items added to your cart while the Coupon is still in effect, the
Coupon’s offer will not apply. Coupons apply only to qualifying items
displaying the offer and may not be combined with other promotional offers or
mail-in rebates. Coupons are issued and paid by the manufacturer of the
advertised product. The user is required to pay any applicable sales tax
related to use of the Coupon. When Coupons are redeemed, sales tax may be
charged on the undiscounted original price of the product(s). Coupons may not
be sold, copied, modified, or transferred. A Coupon has no cash value. Coupons
are good while supplies last. Void where restricted or prohibited by law.
4. SERVICE PROVIDED
AS-IS AND RELEASE OF CLAIMS
THE SERVICES ARE
PROVIDED "AS IS" AND "AS AVAILABLE." TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, AZHAR DISCLAIMS ALL REPRESENTATIONS, CONDITIONS,
AND WARRANTIES, EXPRESS, LEGAL, IMPLIED, OR STATUTORY, INCLUDING THE IMPLIED
WARRANTIES OR CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR
PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT.
Furthermore, you
expressly waive any rights you may have under California Civil Code Section
1542 (or analogous laws of other jurisdictions), which states: “A general
release does not extend to claims that the creditor or releasing party does not
know or suspect to exist in his or her favor at the time of executing the
release, and that, if known by him or her must, would have materially affected
his or her settlement with the debtor or released party.”
5. LIMITATION OF LIABILITY
THIS PROVISION APPLIES TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW.
IN NO EVENT SHALL AZHAR (INCLUDING ITS
AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE TO
YOU FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES
(INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA,
LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED
OR TRANSMITTED BY THE SERVICES, SERVICE INTERRUPTIONS, OR FOR THE COST OF
PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE
SERVICES, OR THESE TERMS, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF AZHAR
OR AZHAR’S AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT SHALL AZHAR (INCLUDING ITS
AFFILIATES, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, SHAREHOLDERS, RETAIL PARTNERS, LICENSORS, AND SUPPLIERS) BE LIABLE FOR
ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY AND/OR CONSEQUENTIAL
DAMAGES (INCLUDING, BUT NOT LIMITED TO PHYSICAL DAMAGES, BODILY INJURY, DEATH
AND/OR EMOTIONAL DISTRESS AND DISCOMFORT) ARISING OUT OF YOUR USE OF THE SERVICES,
ANY SERVICES PROVIDED BY PERSONAL SHOPPERS OR THIRD PARTY PROVIDERS, OR ANY
PRODUCTS REQUESTED BY YOU OR DELIVERED TO YOU, EVEN IF AZHAR OR AZHAR’S AGENTS
OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
AZHAR, ITS AFFILIATES, RETAIL PARTNERS,
LICENSORS, SUPPLIERS AND DISTRIBUTORS WILL NOT BE LIABLE FOR AGGREGATE
LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES
6. Indemnification
You agree to defend,
indemnify and hold harmless Azhar and its directors, employees, agents, shareholders,
affiliates, and retail partners (each, an "Indemnified Party") from
and against any losses, claims, actions, costs, damages, penalties, fines and
expenses, including without limitation attorneys’ and experts’ fees and
expenses, that may be incurred by an Indemnified Party arising out of, relating
to or resulting from your unauthorized use of the Services or from any breach
by you of these Terms, including without limitation any actual or alleged
violation of any law, rule or regulation.
7. Disputes & Arbitration
If you have a dispute with Azhar arising
out of your use of the Services, this Section 7 applies. You agree to contact
Azhar first and attempt to work out any such dispute amicably.
For
residents of the United States, you agree to the following mandatory
arbitration provisions:
Mandatory Arbitration: If we’re unable to
work out a solution amicably, both you and Azhar agree to resolve any disputes
arising out of your use of the Services or these Terms through binding
arbitration or small claims court.
CLASS ACTION WAIVER: TO THE EXTENT
PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL
CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS,
COLLECTIVE ACTION, OR NON-PAGA REPRESENTATIVE PROCEEDING (COLLECTIVELY “CLASS
ACTION WAIVER”). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S
CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU AGREE THAT, BY ENTERING INTO
THESE TERMS, YOU AND AZHAR ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO
PARTICIPATE IN A CLASS ACTION.
In any lawsuit in which (1) the complaint
is filed as a class action, collective action or non-PAGA representative
action; and (2) the civil court of competent jurisdiction in which the
complaint was filed finds the Class Action Waiver is unenforceable (and such
finding is confirmed by appellate review if review is sought), the Class Action
Waiver shall be severable from this Agreement and in such instances, the class
action, collective action and/or non-PAGA representative action must be
litigated in a civil court of competent jurisdiction and not as a class,
collective or non-PAGA representative arbitration.
PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY
LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD,
OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO
REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION (“PAGA
WAIVER”). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.
In any lawsuit in which (1) the complaint
is filed as a private attorney general action seeking to represent any
individual(s) other than the named plaintiff; and (2) the civil court of
competent jurisdiction in which the complaint was filed finds the PAGA Waiver
is unenforceable (and such finding is confirmed by appellate review if review is
sought), the PAGA Waiver shall be severable from this Agreement and in such
instances, the private attorney general action must be litigated in a civil
court of competent jurisdiction and not as a private attorney general
arbitration.
Notwithstanding any other clause
contained in this Agreement, any claim that all or part of the Class Action
Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or
voidable may be determined only by a court of competent jurisdiction and not by
an arbitrator. The Class Action Waiver and PAGA Waiver shall be severable when
a dispute is filed as an individual action and severance is necessary to ensure
that the individual action proceeds in arbitration.
Opt-out
of Mandatory Arbitration: You can decline this mandatory arbitration provision
within 30 days of accepting these Terms by emailing Azhar at
info@azharhalalmarket.com with your first and last name and stating your intent
to opt-out of the arbitration provision. Note that opting out of this
arbitration provision does not affect any other part of these Terms, including
the provisions regarding controlling law or in which courts any disputes must
be brought.
Arbitration
Procedures and Location: The arbitration shall be administered by JAMS under
its Comprehensive Rules in effect at the time the arbitration demand is made.
The current rules, effective July 1, 2014, can be found here:
http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rules
can be found here: http://www.jamsadr.com/rules-clauses/. In the event of any
conflict between the rules and this Agreement, this Agreement shall apply. The
Parties agree to submit to the jurisdiction of a single neutral arbitrator
selected in accordance with the JAMS Comprehensive Rules.
The
arbitration will be held in the United States county where you live or work,
Tracy, California, or any other location you and Azhar mutually agree upon in
writing.
Arbitration
Fees: The JAMS rules will govern payment of all arbitration fees and each party
will be responsible for their own fees under those rules. However, Azhar will
pay for your reasonable arbitration fees where: (a) the claim for damages does
not exceed $75,000, and (b) the claims are not frivolous under Federal Rule of
Civil Procedure 11(b). Azhar will not seek attorneys’ fees or costs in
arbitration unless the arbitrator determines the claims are frivolous under
Federal Rule of Civil Procedure 11(b).
8. Termination
You can stop using the
Services at any time and without notice to us. Similarly, Azhar may terminate
access to the Services to you or any other users or stop offering all or part
of the Services at any time without notice.
9. Controlling Law
To the extent permitted by applicable
law, these Terms will be governed by the laws of the State of California for
residents of the United States without respect to its conflicts of laws
principles. To the extent permitted by applicable law, any claims arising out
of or relating to these Terms or use of the Services that are not subject to
Section 7 (Disputes & Arbitration) of these Terms shall be brought
exclusively in the federal or state courts of San Joaquin County, California,
USA, for the residents of the United States.
You and Azhar consent to the personal
jurisdiction of those courts.
10. Entire Agreement
& Severability
These Terms, subject to
any amendments, modifications, or additional agreements you enter into with
Azhar, shall constitute the entire agreement between you and Azhar with respect
to the Services and any use of the Services. If any provision of these Terms is
found to be invalid by a court competent jurisdiction, that provision only will
be limited to the minimum extent necessary and the remaining provisions will
remain in full force and effect.
11. No Waiver
Azhar’s failure to monitor or enforce a
provision of these Terms does not constitute a waiver of its right to do so in
the future with respect to that provision, any other provision, or these Terms
as a whole.
12. Assignment
You may not assign any
of your rights, licenses, or obligations under these Terms. Any such attempt at
assignment by you shall be void. Azhar may assign its rights, licenses, and
obligations under these Terms without limitation.
13. Changes to the Terms
We may make changes to these Terms from
time to time. When Azhar does so, Azhar will post the most current version of
the Terms on Azhar’s website and, if a revision to the Terms is material, Azhar
will notify you of the new Terms (for example, by email or a notification on
the Services). Changes to these terms will not apply retroactively. If you do
not agree to the modified terms, you should discontinue your use of the
Services.
14. Copyright and
Trademark Policy
Azhar respects the intellectual property rights of others and
has implemented a copyright and trademark policy in accordance with the Digital
Millennium Copyright Act and other relevant laws.Azhar will respond to valid notices of copyright
infringement and reserves the right to terminate any users, at Azhar’s sole
discretion and without notice, who repeatedly infringe copyrights or other
intellectual property rights.
15. Contact Information
If you have any questions, or comments
about these Terms please contact Azhar at:
Azhar Halal Market &
Grill
2179 W. Grant Line Road
Tracy, CA 95377
(209)-834-5800
For customer service inquiries, please
review your account settings, call our store directly at (209)-834-5800, or
visit the store during our store hours.