TERMS & CONDITIONS
Effective Date: December 17, 2015.
YOUR USE OF OUR SERVICES IS GOVERNED BY THESE TERMS & CONDITIONS
All right, title and interest in the Service, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Whole Foods or its licensors. Nothing in these Terms & Conditions or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part.
In using the Service, you must respect the intellectual property and other rights of Whole Foods and others. Your unauthorized use of Content (defined below) may violate copyright, trademark, privacy, publicity, communications, and other laws, and any such use may result in your personal liability, including potential criminal liability. Whole Foods respects the intellectual property rights of others. If you believe that your work has been infringed by means of an improper posting or distribution of it via the Service, then please see the Section entitled “DMCA NOTICE - NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT” below. These Terms & Conditions and any applicable Additional Terms include only narrow, limited grants of rights to Content and to use and access the Service. No right or license may be construed, under any legal theory, by implication, estoppel, industry custom, or otherwise. All rights not expressly granted to you are reserved by Whole Foods and its licensors and other third parties. Any unauthorized use of any Content or the Service for any purpose is prohibited.
The Service (including past, present, and future versions) and all content included on the Service, such as recipes, menus, meal planners, guides, shopping lists, sales flyers, text, graphics, logos, images, button icons, audio clips, video, photographs, data, music, software, and other material (collectively “Content”) are owned or licensed property of Whole Foods or its suppliers or licensors and are protected by copyright, trademark, patent, trade secret or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and Whole Foods owns a copyright in the selection, compilation, assembly, coordination, arrangement and enhancement thereof. All Content is also protected by U.S. and international trademark, trade dress, patent and/or other intellectual property and unfair competition rights and laws to the fullest extent possible.
LICENSE AND ACCESS
Subject to your strict compliance with these Terms & Conditions and the Additional Terms, Whole Foods grants you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to access and make personal use of the Service and the Content for noncommercial purposes only and only to the extent such use does not violate these Terms & Conditions including, without limitation, the prohibitions listed in the “UNLAWFUL OR PROHIBITED USES” section of these Terms & Conditions. You may download, print, and copy Content for personal, noncommercial purposes only, provided you do not modify or alter the Content in any way, delete or change any copyright or trademark notice, or violate these Terms & Conditions in any way. Accessing, downloading, printing, posting, storing, or otherwise using the Service or any of the Content for any commercial purpose, whether on behalf of yourself or on behalf of any third party, constitutes a material breach of these Terms & Conditions. The foregoing limited license (i) does not give you any ownership of, or any other intellectual property interest in, any Content, and (ii) may be immediately suspended or terminated for any reason, in Whole Foods’s sole discretion, and without advance notice or liability. In some instances, we may permit you to have greater access to and use of Content, subject to certain Additional Terms.
Whole Foods and other related marks, design marks, product names, feature names and related logos used in the Service are trademarks of Whole Foods and may not be used, copied or imitated, in whole or in part, without the express prior written permission of Whole Foods. In addition, the look and feel of the Service constitutes the service mark, trademark and/or trade dress of Whole Foods and may not be copied imitated or used, in whole or in part, without the express prior written permission of Whole Foods. Whole Foods’ trademarks and trade dress may not be used in connection with any product or service in any manner that is likely to cause confusion among customers, or in any manner that disparages Whole Foods or suggests a sponsorship, affiliation or endorsement by Whole Foods.
All other trademarks, service marks, logos, slogans, domain names and trade names are the properties of their respective owners.
UNLAWFUL OR PROHIBITED USES
The Service may only be used for lawful purposes in accordance with the terms of the license granted in these Terms & Conditions. As a condition of your use of this Service, you warrant to Whole Foods that you will not use the Service for any purpose that is unlawful or prohibited by these Terms & Conditions. Whether on behalf of yourself or on behalf of any third party, unless you have the express prior written consent of Whole Foods, YOU MAY NOT:
(a) Make any commercial use of the Service or its Content, including making any collection or use of any product listings, descriptions, prices, or images;
(b) download, copy, or transmit any Content for the benefit of any other merchant;
(c) use or attempt to use any engine, software, tool, agent, data, or other device or mechanism (including browsers, spiders, robots, avatars, or intelligent agents) to navigate or search the Service;
(d) frame, mirror, or use framing techniques on any part of the Service;
(e) make any use of data extraction, scraping, mining, or other data gathering tools, or create a database by systematically downloading or storing Service content, or otherwise scrape, collect, store, or use any Content, product listings, descriptions, prices, or images, except pursuant to the limited license granted by these Terms & Conditions;
(f) use any meta tags or any other hidden text utilizing Whole Foods’ name or trademarks;
(g) misrepresent the identity of a user, impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Service, or express or imply that we endorse any statement you make;
(h) use a buying agent to conduct transactions on the Service;
(i) conduct fraudulent activities on the Service;
(j) violate or attempt to violate the security of the Service, including, without limitation: (i) accessing data not intended for you or logging onto a server or an account that you are not authorized to access; (ii) trying to change the functionality of the Service; (iii) attempting to probe, scan, or test the vulnerability of a system or network, or to breach security or authentication measures; (iv) attempting to interfere with service to any user, host, or network, including, without limitation, via means of submitting malware to the Service, overloading, “flooding,” “spamming,” “mailbombing”, or “crashing”; (v) forging any header or any part of the header information in any e-mail or posting; or (vi) forging communications on behalf of the Service (impersonating the Service) or to the Service (impersonating another user);
(k) send unsolicited or unauthorized email on behalf of Whole Foods, including promotions and/or advertising of products or services;
(l) tamper with the Service or use or attempt to use any device, software, routine, or data that interferes or attempts to interfere with the working or functionality of the Service or any activity being conducted on the Service;
(m) use the Service to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including others’ privacy rights or rights of publicity;
(n) harvest or collect personally identifiable information about other users of the Service;
(o) restrict or inhibit any other person from using the Service (including, without limitation, by hacking or defacing any portion of the Service);
(p) use the Service to advertise or offer to sell or buy (other than from Whole Foods) any goods or services;
(q) reproduce, duplicate, copy, sell, resell, or otherwise exploit for any commercial purposes any portion of, use of, or access to the Service;
(r) modify, adapt, translate, reverse engineer, decompile, or disassemble any portion of the Service; or
(s) remove any copyright, trademark, or other proprietary rights notice from the Service or materials originating from the Service.
You may be required to register with Whole Foods in order to access certain services or areas of the Service. If you are under the age of thirteen (13), then you are not permitted to register as a user, or otherwise use the Service or submit personal information to us. If you are required to register with Whole Foods, we may not be able, or we may refuse, to provide you the user name you request. Your user name and password are for your personal use only. If you use the Service, you are responsible for maintaining the confidentiality of your account and password and for restricting access to your computer, and you agree to accept responsibility for all activities that occur under your account or password. You will immediately notify us of any unauthorized use of your account, password, or username, or any other breach of security; and you will not sell, transfer, or assign your account or any account rights. In addition to all other rights available to Whole Foods including those set forth in these Terms & Conditions, Whole Foods reserves the right, in its sole discretion, to terminate or suspend your account, refuse service to you, or cancel orders.
Digital coupons (e.g., coupon codes) may be made available via our Service (or otherwise by us), which shall be subject to applicable Additional Terms. We reserve the right not to honor coupons if we suspect the applicable Additional Terms or these Terms have been violated or that the coupon has been tampered with, manipulated, misused, duplicated or if we otherwise suspect fraud or inappropriate activity. Unless otherwise stated in the applicable Additional Terms, limit one coupon per purchase of specified product(s) per individual. Some products may not be available in all stores and coupons may be limited to specific stores or regions. Coupons are non-transferrable and have no monetary or property value. Coupons offers are revocable upon posting of notice on our Service and are subject to correction of errors. Coupons are void if altered, transferred, reproduced, exchanged, sold, or purchased. Valid only in the USA, but void where prohibited or restricted by law. Coupons subject to expiration as stated in the applicable Additional Terms.
MODIFICATION AND TERMINATION
Whole Foods may at any time in its sole discretion without notice or liability: (i) modify, suspend or discontinue any part of the Service; or (ii) offer opportunities to some or all Service users. Whole Foods reserves the right to make changes to these Terms & Conditions at any time, and such changes will be effective immediately upon being posted on the Service. Each time you use the Service, you should review the current Terms & Conditions. Your continued use of the Service will indicate your acceptance of the current Terms & Conditions; however, any material change to these Terms & Conditions after your last usage of the Service will not be applied retroactively. Except for such material changes, the Terms & Conditions that were in effect at the time any claim or dispute arose between you and us will be applied.
Whole Foods reserves the right, without notice and in its sole discretion, to suspend or terminate your account or your use of the Service and to block or prevent future access to and use of the Service (i) if you violate any of these Terms & Conditions, (ii) for any other reason, or (iii) for no reason. Upon any such termination, your right to use the Service will immediately cease.
You agree that we shall not be liable to you or any third party for any suspension or termination of your access to the Service. Upon termination, all provisions of these Terms & Conditions which are by their nature intended to survive termination, all representations and warranties, all limitations of liability, and all indemnities shall survive such termination.
If the Service allows you to submit ideas, photographs, user profiles, writings, music, video, audio recordings, computer graphics, pictures, data, questions, comments, suggestions or other content, including personal information (“User Content”) through or to the Service, Whole Foods welcomes such User Content as long as the User Content submitted by you complies with these Terms & Conditions.
You agree that any User Content that you submit: (i) will be accurate; (ii) will not violate or facilitate the violation of any law or regulation; (iii) will not violate any right of a third party, including copyright, trademark, privacy, or publicity rights; (iv) will not cause injury to any person or entity; and (v) will not contain, or provide links to, obscene, profane, or threatening language, malware, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam”, or any material that could be considered harmful, sexually explicit, indecent, lewd, violent, abusive, or degrading. You are solely responsible for the User Content you submit, and Whole Foods assumes no liability for any User Content submitted by you. You acknowledge and agree that we reserve the right (but have no obligation) to do any or all of the following, in our sole discretion without notice or any liability to you or any third party: (i) monitor, review, display, post, store, maintain, accept or otherwise make use of User Content; (ii) alter, remove, reject, delete, move, re-format or refuse to post or allow to be posted any User Content; and/or (iii) disclose any User Content, and the circumstances surrounding its transmission, to any third party. Without limitation, we may do so to address content that comes to our attention that we believe is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal or otherwise objectionable or inappropriate, or to enforce the rights of third parties or these Terms & Conditions or any applicable Additional Terms. Such User Content submitted by you or others need not be maintained on the Service by us for any period of time and you will not have the right, once submitted, to access, archive, maintain, or otherwise use such User Content on the Service or elsewhere, except that California minors have certain rights to have certain content about them that they have themselves posted on the Service prospectively removed from public display.
You agree that (a) your User Content will be treated as non-confidential and non-proprietary by us – regardless of whether you mark it “confidential,” “proprietary,” or the like – and will not be returned, and (b) to the maximum extent not prohibited by applicable law, Whole Foods does not assume any obligation of any kind to you or any third party with respect to your User Content. Upon Whole Foods’s request, you will furnish us with any documentation necessary to substantiate the rights to such content and to verify your compliance with these Terms & Conditions or any applicable Additional Terms. You acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of User Content may not be secure, and you will consider this before submitting any User Content and do so at your own risk.
In your communications with Whole Foods, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for websites, apps, books, or otherwise (collectively, “Unsolicited Ideas and Materials”). Any Unsolicited Ideas and Materials you submit are deemed User Content and licensed to us as set forth below. In addition, Whole Foods retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. Whole Foods’s receipt of your Unsolicited Ideas and Materials is not an admission by Whole Foods of their novelty, priority, or originality, and it does not impair Whole Foods’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
For any User Content you submit, you grant to Whole Foods a non-exclusive, unrestricted, unconditional, unlimited, worldwide, sub-licensable, fully paid-up, perpetual, irrevocable, royalty-free and cost-free, transferable right and license to use, display, publicly perform, transmit, copy, modify, delete, adapt, publish, translate, create derivative works from, sell, distribute, record, reproduce, disclose, re-sell, sublicense (through multiple levels), broadcast, and otherwise use and exploit in any manner whatsoever, all or any portion of such User Content (and derivative works thereof) for any purpose whatsoever in all formats, on or through any form, means, or medium now known or hereafter developed, and with any technology or devices now known or hereafter developed, throughout the world, and to advertise, market, and promote the same, all without compensation to you. For this reason, do not send us any User Content that you do not wish to license to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork. In addition, you grant to Whole Foods the right, without any obligation, to include the name provided along with the User Content submitted by you. In order to further effect the rights and license that you grant to Whole Foods to your User Content, you also hereby grant to Whole Foods, and agree to grant to Whole Foods, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, and likeness in connection with any User Content, without any obligation or remuneration to you.
Without limitation, the granted rights include the right to: (a) configure, host, index, cache, archive, store, digitize, compress, optimize, modify, reformat, edit, adapt, publish in searchable format, and remove such User Content and combine same with other materials, and (b) use any ideas, concepts, know-how, or techniques contained in any User Content for any purposes whatsoever, including developing, producing, and marketing products and/or services. You understand that in exercising such rights metadata, notices and content may be removed or altered, including copyright management information, and you consent thereto and represent and warrant you have all necessary authority to do so. We are not responsible for the use or disclosure of any personal information that you voluntarily disclose in connection with any User Content you submit. You represent and warrant that you have all rights necessary for you to grant the licenses granted in this section. You further irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law under any legal theory, even if it is altered or changed in a manner not agreeable to you. To the extent not waivable, you irrevocably agree not to exercise such rights (if any) in a manner that interferes with any exercise of the granted rights.
Each time you submit any User Content, you represent and warrant that you are at least the age of majority in the jurisdiction in which you reside or are at least thirteen (13) years of age and have all proper consents from your parent or legal guardian. In addition, you represent and warrant that you are the parent or legal guardian, or have all proper consents from the parent or legal guardian, of any minor who is depicted in or contributed to any User Content you submit, and that, as to that User Content, you are the sole author and owner of the intellectual property and other rights to the User Content, or you have a lawful right to submit the User Content and grant Whole Foods the rights to it that you are granting by these Terms & Conditions and any Additional Terms, all without any Whole Foods obligation to obtain consent of any third party and without creating any obligation or liability of Whole Foods.
You grant us the right to protect and enforce our rights to your User Content, including by bringing and controlling actions in your name and on your behalf (at Whole Foods’s cost and expense, to which you hereby consent and irrevocably appoint Whole Foods as your attorney-in-fact, with the power of substitution and delegation, which appointment is coupled with an interest).
Content is also provided by third party visitors to the Service. Please note that visitors to the Service may post content that is inaccurate, misleading, or deceptive. Whole Foods neither endorses nor is responsible for any opinion, advice, information, or statements made by third parties. Whole Foods will not be liable for any loss or damage caused by your reliance on such information or materials. The opinions expressed by third parties reflect solely the opinions of the parties who submitted such opinions and may not reflect the opinions of Whole Foods.
You are solely responsible for your interaction with other users of the Service, whether online or offline. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. Exercise common sense and your best judgment in your interactions with others (e.g., when you submit any personal or other information) and in all of your other online activities.
DMCA NOTICE - NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
Whole Foods’s policy is to respond to notices of alleged infringement that comply with the Digital Millennium Copyright Act (“DMCA”). Copyright-infringing materials found on the Service can be identified and removed using the process listed below, and you agree to comply with such process in the event you are involved in any claim of copyright infringement to which the DMCA may be applicable.
If you believe in good faith that your work has been copied in a way that constitutes copyright infringement, please provide Whole Foods’s copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Whole Foods that your copyrighted material has been infringed. Whole Foods does not and will not make any legal decisions about the validity of your claim of infringement or the possible defenses to a claim. When a clear and valid notice is received pursuant to the guidelines set forth below, Whole Foods will respond by either taking down the allegedly infringing content or blocking access to it. Whole Foods may contact the notice provider to request additional information. Under the DMCA, Whole Foods is required to take reasonable steps to notify the user who posted the allegedly infringing content (“Alleged Infringer”). The Alleged Infringer is allowed under the law to send Whole Foods a counter-notification. Notices and counter-notices are legal notices distinct from regular Service activities or communications. We may publish or share them with third parties in our sole discretion (in addition to producing them pursuant to a subpoena or other legal discovery request). Anyone making a false or fraudulent notice or counter-notice may be liable for damages under the DMCA, including costs and attorneys’ fees. Any person who is unsure of whether certain material infringes a copyright held by such person or a third party should contact an attorney.
To file a DMCA notice, the copyright owner must send in a written letter by fax, regular mail, or email only. We reserve the right to ignore a notice that is not in compliance with the DMCA, and we may, but are not obligated to, respond to a non-compliant notice.
A DMCA notice must:
- Identify specifically the copyrighted work(s) believed to have been infringed (for example, “My copyrighted work is the picture that appears at [list location where material is located].”);
- Identify the Content that a copyright owner claims is infringing upon copyrighted work. The copyright owner must provide information reasonably sufficient to enable us to locate the item on the Service. The copyright owner should provide clear screenshots of the allegedly infringing materials for identification purposes only. The information provided should be as detailed as possible;
- Provide information sufficient to permit us to contact the copyright owner directly: name, street address, telephone number, and email (if available);
- If available, provide information sufficient to permit us to notify the Alleged Infringer (email address preferred);
- Include the following statement: “I have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”;
- Include the following statement: “I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed”;
- Be signed; and
- Be sent to our DMCA designated agent at the following address:
DMCA Designated Agent:
Whole Foods Market Services, Inc.
550 Bowie Street
Austin, TX 78703
LINKS TO, AND DEALINGS WITH, THIRD PARTIES
The Service may contain links and interactive functionality interacting with third parties, including social media applications and product manufacturers’ applications (collectively, “Third Party Applications”). Whole Foods is not responsible for and has no liability for the functionality, actions, inactions, privacy settings, privacy policies, terms, or content of any such Third Party Applications. Before enabling any sharing functions of the Service to communicate with any such Third Party Application or otherwise visiting any such Third Party Application, Whole Foods strongly recommends that you review and understand the terms and conditions, privacy policies, settings, and information-sharing functions of each such Third Party Application. The links and interactive functionality for Third Party Applications on the Service do not constitute an endorsement by Whole Foods of such Third Party Application. Other Third Party Applications may link to the Service with or without our authorization, and we may block any links to or from the Third Party Applications, in our sole discretion. YOUR USE OF THIRD PARTY APPLICATIONS AND RESOURCES IS AT YOUR OWN RISK.
Any interactions, correspondence, transactions, and other dealings that you have with any third parties found on or through the Service (including on or via Third Party Applications or advertisements) are solely between you and the third party (including issues related to the content of third party advertisements, payments, delivery of goods, warranties (including product warranties), privacy and data security, and the like). Whole Foods disclaims all liability in connection therewith.
LINKS BY YOU TO THE SERVICE
We grant you a limited, non-exclusive, revocable, non-assignable, personal, and non-transferable license to create hyperlinks to the Service, so long as: (a) the links only incorporate text, and do not use any trademarks, (b) the links and the content on your website do not suggest any affiliation with Whole Foods or cause any other confusion, and (c) the links and the content on your website do not portray Whole Foods or its products or services in a false, misleading, derogatory, or otherwise offensive matter, and do not contain content that is unlawful, offensive, obscene, lewd, lascivious, filthy, violent, threatening, harassing, or abusive, or that violate any right of any third party or are otherwise objectionable to Whole Foods. Whole Foods reserves the right to suspend or prohibit linking to the Service for any reason, in its sole discretion, without advance notice or any liability of any kind to you or any third party.
WIRELESS, MESSAGING AND LOCATION-BASED FEATURES
The Service may offer certain features and services that are available to you via your wireless device. These features and services may include the ability to access the Service’s features and upload content to the Service, receive messages from the Service, and download applications to your wireless device (collectively, “Wireless Features”). You agree that as to the Wireless Features for which you are registered, we may send communications via such features or apps to your wireless device regarding us or other parties. Further, we may collect information related to your use of the Wireless Features. If you have registered via the Service for Wireless Features, then you agree to notify Whole Foods of any changes to your wireless contact information (including phone number) and update your accounts on the Service to reflect the changes. The Service includes push notifications or other mobile communication capability and you hereby approve our delivery of electronic communications directly to your mobile device. These notifications, including badge, alert or pop-up messages, may be delivered to your device even when it is running in the background. You may have the ability, and it is your responsibility, to control the notifications you do, or do not, receive via your device through your device settings. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Your carrier may prohibit or restrict certain Wireless Features and certain Wireless Features may be incompatible with your carrier or wireless device. Contact your carrier with questions regarding these issues.
You may be given opportunities to subscribe to various text marketing or other text messaging programs and by doing so, you consent to receive ongoing text alerts (including by auto-dialers) from us related to our various businesses and affiliates, which may include co-promotions with or about other parties, except that if the scope of your consent for a particular subscription is limited that subscription will be so limited. For each subscription, text “HELP” for help and text “STOP” to terminate (i.e., opt-out) of that subscription. Subsequent or different subscriptions will be unaffected by an opt-out. You consent to receive a text confirming any opt-out as well as non-marketing administrative or transactional messages. For subscriptions to recurring text messages, you may receive up to the number of text messages per month specified in your consent, or to which you later consent. Alerts auto-renew unless otherwise specified when you consented. Your consent to receive text messages is not a condition of purchase, and no purchase is necessary. You understand that we will send mobile text messages using automated technology. If you subscribe to text messages you represent that you are at least the age of majority in the jurisdiction in which you reside or are at least thirteen (13) years of age and have all proper consents from your parent or legal guardian. Standard message, data and other fees may be charged by your carrier, and carriers may deduct charges from pre-paid amounts or data allowances, for which you are responsible. Contact your carrier for details. If we are charging a premium rate for text messages, that will be explained in the applicable subscription consent. Not all phones and/or carriers are supported. We are the sponsor of our text messages and may be contacted regarding them at firstname.lastname@example.org.
You may cancel or modify our e-mail marketing communications you receive from us by following the instructions contained within our promotional e-mails. This will not affect subsequent subscriptions and if your opt-out is limited to certain types of e-mails the opt-out will be so limited. Please note that we reserve the right to send you certain communications relating to your account or use of our Service, such as administrative and service announcements and these transactional account messages may be unaffected if you choose to opt-out from receiving our marketing communications.
DISCLAIMERS OF WARRANTIES
Whole Foods cannot and does not represent or warrant that the Service or its server will be error-free, uninterrupted, free from unauthorized access (including third party hackers or denial of service attacks), or otherwise meet your requirements.
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE SERVICE AND ALL INFORMATION, CONTENT, MATERIALS , PRODUCTS, SERVICES, AND USER CONTENT INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SERVICE (COLLECTIVELY, THE “SERVICE CONTENTS”) ARE PROVIDED BY WHOLE FOODS ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. Therefore, to the fullest extent permissible by law, Whole Foods and its direct and indirect parents, subsidiaries, affiliates and each of their respective employees, directors, officers, members, managers, shareholders, agents, vendors, licensors, licensees, suppliers, contractors, customers, successors, and assigns (collectively, “Whole Foods Parties”) hereby disclaim and make no representations, warranties, endorsements, or promises, express or implied, as to: (a) the Service (including the Content and the User Content); (b) the functions, features, or any other elements on, or made accessible through, the Service; (c) any products, services, or instructions offered or referenced at or linked through the Service; (d) security associated with the transmission of your User Content transmitted to Whole Foods or via the Service; (e) whether the Service or the servers that make the Service available are free from any harmful components (including viruses, Trojan horses, and other technologies that could adversely impact your device); (f) whether the information (including any instructions) on the Service is accurate, complete, correct, adequate, useful, timely, or reliable; (g) whether any defects to or errors on the Service will be repaired or corrected; (h) whether the Service will be compatible with any other specific hardware, software or service; (i) whether your access to the Service will be uninterrupted; (j) whether the Service will be available at any particular time or location; and (k) whether your use of the Service is lawful in any particular jurisdiction.
WHOLE FOODS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICE, THE ACCURACY OR COMPLETENESS OF THE SERVICE CONTENTS, OR THAT EMAILS SENT FROM WHOLE FOODS ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. WHOLE FOODS WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THE SERVICE OR THE SERVICE CONTENTS INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE AGREED BY Whole Foods IN WRITING. TO THE FULL EXTENT PERMITTED BY LAW, WHOLE FOODS DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE SERVICE AND THE SERVICE CONTENTS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION, FREEDOM FROM COMPUTER VIRUS, AND FITNESS FOR A PARTICULAR PURPOSE OR USE. Some jurisdictions limit or do not allow the disclaimer of implied or other warranties so the above disclaimers may not apply to the extent such jurisdictions’ laws are applicable, and you may have additional rights.
IF PRODUCTS ARE PROVIDED BY THIRD PARTIES THROUGH THE SERVICE, THOSE THIRD PARTIES MAY SEPARATELY PROVIDE LIMITED REPRESENTATIONS AND/OR WARRANTIES REGARDING THEIR PRODUCTS. THIS DISCLAIMER DOES NOT APPLY TO SUCH PRODUCT REPRESENTATIONS OR WARRANTIES, BUT ANY SUCH REPRESENTATIONS OR WARRANTIES ARE PROVIDED SOLELY BY SUCH THIRD PARTY PROVIDER AND NOT BY WHOLE FOODS.
IF NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION IS PROVIDED THROUGH THE SERVICE, WHOLE FOODS DOES NOT REPRESENT OR WARRANT THAT SUCH INFORMATION IS ACCURATE OR COMPLETE. ON OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS AND UPDATE THEIR LABELS. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON OUR SERVICE AND THAT YOU CONSULT THE PRODUCT’S LABEL OR CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY CONCERN OR QUESTION ABOUT A PRODUCT.
Third party names, marks, products, advertisements, or services or pop-up texts or links to third party applications may appear on the Service. IN NO EVENT WILL WHOLE FOODS BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE, OR RELIANCE ON ANY ADVERTISEMENT DISPLAYED ON THE SERVICE, ANY PRODUCTS, SERVICES, OR OTHER MATERIALS RELATING TO ANY SUCH ADVERTISEMENT, ANY LINKED THIRD PARTY APPLICATION, OR ANY LINK CONTAINED IN A LINKED APPLICATION. If you decide to link to any such third party application, you do so entirely at your own risk.
The Service is controlled and operated by Whole Foods from the United States, and is not intended to subject Whole Foods to the laws or jurisdiction of any state, country or territory other than that of the United States. Whole Foods does not represent or warrant that the Service or any part thereof is appropriate or available for use in any particular jurisdiction other than the United States and, in some cases, the United Kingdom. In choosing to access the Service, you do so on your own initiative and at your own risk, and you are responsible for complying with all local laws, rules and regulations. We may limit the Service’s availability, in whole or in part, to any person, geographic area or jurisdiction we choose, at any time and in our sole discretion.
IF THE SERVICE INCLUDES HEALTHCARE INFORMATION, THAT INFORMATION IS INTENDED FOR EDUCATIONAL PURPOSES ONLY. IT IS NOT INTENDED AS MEDICAL ADVICE FOR INDIVIDUAL CONDITIONS OR TREATMENT, IT IS NOT A SUBSTITUTE FOR A MEDICAL EXAM, AND IT DOES NOT REPLACE THE NEED FOR SERVICES PROVIDED BY MEDICAL PROFESSIONALS. TALK TO YOUR DOCTOR OR PHARMACIST BEFORE TAKING ANY MEDICATION (INCLUDING ANY HERBAL MEDICINES OR SUPPLEMENTS). ONLY YOUR DOCTOR OR PHARMACIST CAN PROVIDE YOU WITH ADVICE ON WHAT IS SAFE AND EFFECTIVE FOR YOU.
IF THE SERVICE INCLUDES INFORMATION ABOUT HERBAL THERAPIES AND OTHER DIETARY SUPPLEMENTS YOU SHOULD BE AWARE THAT SUCH INFORMATION IS NOT REGULATED IN THE UNITED STATES BY THE FOOD AND DRUG ADMINISTRATION. ADDITIONALLY, THE MANUFACTURE AND DISTRIBUTION OF HERBAL SUBSTANCES IS NOT REGULATED IN THE UNITED STATES, AND NO QUALITY STANDARDS CURRENTLY EXIST. BECAUSE OF THE UNREGULATED NATURE OF THE HERBAL MEDICINE AND SUPPLEMENT INDUSTRY, YOU SHOULD DISCUSS USE OF THESE SUBSTANCES WITH YOUR DOCTOR OR PHARMACIST.
We provide information through the Service for your information and enjoyment. Your use of the Service is strictly voluntary. Because some of the information in the Service may relate to modifications to your diet, you agree to use your good judgment and reasonable care prior to making any changes to your lifestyle. By using the Service, you assume the risks associated with the activities in which you will be participating. Such risks may include, but are not limited to, the risk of physical injury or other harm. You, and you alone, are solely responsible for taking proper care to limit your risk.
You knowingly, and voluntarily do hereby indemnify, release, acquit, waive, forever discharge, and covenant not to sue Whole Foods, its employees, agents, any related affiliate and/or subsidiary entities from and against any and all liabilities, costs and expenses (including without limitations, any reasonable fees and expenses of its attorneys and consultants) relating to or arising out of any claims, demands or causes of action of every kind and character (including, without limitation, personal injury and property damage claims) as a result of the Content, information and materials offered by Whole Foods through the Service.
LIMITATION OF LIABILITY
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES SHALL ANY WHOLE FOODS PARTIES BE RESPONSIBLE OR LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH (A) THE SERVICE (INCLUDING THE CONTENT AND THE USER CONTENT); OR (B) YOUR ACCESS TO, USE OF OR INABILITY TO ACCESS OR USE THE SERVICE, OR THE PERFORMANCE OF THE SERVICE. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER IN CONTRACT OR TORT, EVEN IF WHOLE FOODS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. EACH PROVISION OF THESE TERMS & CONDITIONS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN YOU AND WHOLE FOODS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND WHOLE FOODS. THE LIMITATIONS IN THIS SECTION WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE(S). IF YOU ARE DISSATISFIED WITH THE SERVICE, ANY CONTENT ON THE SERVICE, OR THESE TERMS & CONDITIONS, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE. YOU ACKNOWLEDGE, BY YOUR USE OF THE SERVICE, THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OF LIABILITY SET FORTH ABOVE, SO THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU, AND YOU MAY HAVE RIGHTS ADDITIONAL TO THOSE CONTAINED HEREIN.
WAIVER OF INJUNCTIVE OR OTHER EQUITABLE RELIEF
TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR USE OF THE SERVICE, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE DEEMED IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY WEBSITE, APPLICATION, CONTENT, USER-GENERATED CONTENT, PRODUCT, SERVICE, OR INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY WHOLE FOODS (INCLUDING YOUR USER CONTENT) OR A LICENSOR OF WHOLE FOODS.
INDEMNIFICATION AND DEFENSE
As a condition of the use of the Service, you agree to defend, indemnify, and hold harmless Whole Foods Parties from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs, and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (each, a “Claim”) arising out of or otherwise relating to your access to or use of the Service, including without limitation any User Content submitted by you and Claims alleging facts that if true would constitute a breach by you of these Terms & Conditions. You will cooperate as fully required by Whole Foods Parties in the defense of any Claim. Notwithstanding the foregoing, Whole Foods Parties retain the exclusive right to settle, compromise, and pay any and all Claims. Whole Foods Parties reserve the right to assume the exclusive defense and control of any Claims. You will not settle any Claims without, in each instance, the prior written consent of an officer of a Whole Foods Party.
NOTICES AND ELECTRONIC COMMUNICATIONS
In the case of notices Whole Foods sends to you, you consent to receive notices and other communications by Whole Foods posting notices on the Service, sending you an email at the email address listed in your profile in your account, or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures, and other communications that Whole Foods provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing. Notice shall be deemed given (i) 24 hours after the notice is posted on the Service or an electronic message is sent, unless the sending party is notified that the message did not reach the recipient, or (ii) in the case of mailing, three days after the date of mailing. You agree that a printed version of these Terms & Conditions and/or any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms & Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
RULES FOR PROMOTIONS
NOTICES FOR CALIFORNIA RESIDENTS
Under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: If you have a question or complaint regarding the Service, please send an email to email@example.com. You may also contact us by writing to 550 Bowie St, Austin, TX 78703 (Attention: Legal Counsel), or by calling us at (512) 477-4455. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Any California residents under the age of eighteen (18) who have registered to use the Service, and who have posted content or information on the Service, can request that such information be removed from the Service by contacting us at the e-mail or address set forth in the “Contact
Us” section below making such a request, stating that they personally posted such content or information and detailing where the content or information is posted. We will make reasonable good faith efforts to remove the post from prospective public view or anonymize it so the minor cannot be individually identified. This removal process cannot ensure complete or comprehensive removal. For instance, third-parties may have republished the post and archived copies of it may be stored by search engines and others that we do not control.
APPLICABLE LAW; ARBITRATION OF DISPUTES; CLASS ACTION WAIVER
Certain portions of this Section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Whole Foods agree that the parties intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
If any controversy, allegation, or claim rising out of, related to, or connected in any way to your use of the Service (collectively, “Dispute”), then you agree the Dispute shall be submitted to confidential arbitration in Travis County, Texas, except that, to the extent you have in any manner violated or threatened to violate our intellectual property rights, we may seek injunctive or other appropriate relief in any state or federal court in the State of Texas. You agree that all Disputes will be governed by the laws of the State of Texas without regard to Texas' choice of law principles. You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Texas. Arbitration under these Terms & Conditions shall be conducted pursuant to the Commercial Arbitration Rules then prevailing at the American Arbitration Association. The arbitrator's award shall be final and binding and may be entered as a judgment in any court or tribunal with jurisdiction over the parties. YOU AND Whole Foods AGREE THAT EACH MAY BRING CLAIMS OR CAUSES OF ACTION ARISING OUT OF, RELATED TO, OR CONNECTED IN ANY WAY WITH YOUR USE OF THE SERVICE IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected in any way with your use of the Service must be filed within one (1) year after such claim or cause of action arose or be forever banned. Any and all claims, judgments, and awards will be limited to actual third-party, out-of-pocket costs incurred (if any), but in no event will attorneys' fees be awarded or recoverable.
Software related to or made available by the Service may be subject to export controls of the U.S.A. To the extent permissible under applicable domestic laws, no software from the Service may be downloaded, exported, or re-exported (i) into (or to a national or resident of) any country or other jurisdiction to which the U.S.A. has embargoes, or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (iii) to anyone on the U.S. Department of Commerce’s Bureau of Industry and Security Entities List as published in the Export Administration Regulations (including entities engaged in weapons of mass destruction proliferation in various countries and persons and entities that are suspected of diverting U.S. origin items to embargoed countries or terrorist end-uses). You are responsible for complying with all applicable trade regulations and laws both foreign and domestic. Except as authorized by law, you agree and warrant not to export or re-export the software to any county, or to any person, entity, or end-user subject to U.S. export controls or sanctions, including, without limitation, as set forth in subsections (i) – (iii) above.
DEVICES AND CONNECTIVITY
You are responsible for obtaining and maintaining all devices and other equipment and software, and all internet service provider, mobile service, and other services needed for your access to and use of the Service and you will be responsible for all charges related to them. You further agree to look solely to the entity that manufactured and/or sold you the device for any issues related to the device and its compatibility with the Service.
By using the Service, you agree that Whole Foods may change, alter, or modify the settings or configurations on your device in order to allow for or optimize your use of the Service (e.g., save content, access data, enable services, etc.). For instance, the Service may access and read accounts, data and/or content on your device, add content to your device, and change settings of your device, for reasons such as showing you the location of things near you; saving Service images, sound files and writing usage logs to the device; sending Facebook and Twitter messages you initiate; sending and receiving data needed for Service operations; and to provide you notice when you are not connected to a network. You consent to these activities by installing or otherwise using the Service. Your device settings may enable you to disable, change or limit some of these activities, and you can disable all of them associated with the Service by uninstalling the Service.
Whole Foods makes no representations or warranties about the quality of your Service experience on your device or the ability of any device to access or display the Content.
TERMS APPLICABLE FOR APPLE IOS
If you are accessing or using the Service through an Apple device, the following applicable Additional Terms and conditions are applicable to you and are incorporated into the Terms & Conditions by this reference:
(i) You acknowledge that these Terms & Conditions are entered into between you and Whole Foods and, that Apple, Inc. (“Apple”) is not a party to these Terms & Conditions other than as third-party beneficiary as contemplated below.
(ii) The license granted to you in these Terms & Conditions is subject to the permitted Usage Rules set forth in the App Store Terms of Service (see: http://www.apple.com/legal/itunes/us/terms.html) and any third party terms of agreement applicable to the Service.
(iii) You acknowledge that Whole Foods, and not Apple, is responsible for providing the Service and Content thereof.
(iv) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance or any support services to you with respect to the Service.
(v) To the maximum extent not prohibited by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Service.
(vi) Notwithstanding anything to the contrary herein, and subject to the terms in these Terms & Conditions, you acknowledge that, solely as between Apple and Whole Foods, Whole Foods and not Apple is responsible for addressing any claims you may have relating to the Service, or your possession and/or use thereof, including, but not limited, to: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(vii) Further, you agree that if the Service, or your possession and use of the Service, infringes on a third party’s intellectual property rights, you will not hold Apple responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claims.
(viii) You acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms & Conditions, and that, upon your acceptance of these Terms & Conditions, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms & Conditions against you as a third-party beneficiary thereof.
(ix) When using the Service, you agree to comply with any and all third-party terms that are applicable to any platform, website, technology or service that interacts with the Service.
These Terms & Conditions, including policies and information linked from or incorporated herein, constitute the entire agreement between you and Whole Foods with respect to the Service and supersede all prior or contemporaneous communications, agreements, and proposals with respect to the Service. No provision of these Terms & Conditions shall be waived except pursuant to a writing executed by the party against whom the waiver is sought. No failure to exercise, partial exercise of, or delay in exercising any right or remedy under these Terms & Conditions shall operate as a waiver or estoppel of any right, remedy, or condition. If any provision of these Terms & Conditions is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not be affected or impaired. You may not assign, transfer, or sublicense any of your rights or obligations under these Terms & Conditions without our express prior written consent. Whole Foods may assign its rights and obligations under these Terms and any applicable Additional Terms, in whole or in part, to any party at any time without any notice. We will not be responsible for failure to fulfill any obligation due to causes beyond our control. Whole Foods reserves the right to prosecute any suspected breaches of these Terms & Conditions or the Service. Whole Foods may disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
If you have any concerns about Whole Foods or your use of the Service, please contact us at:
Whole Foods Market, Inc.
550 Bowie Street
Austin, TX 78703-4644, United States
(Attention: Legal Counsel)