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MYORCHARD INC. TERMS OF USE

MyOrchard Inc. (“MyOrchard”) is the owner of a grocery delivery service (the
“Service”). In order to use the Service, MyOrchard requires that you agree to all the terms and conditions in the Terms of Use. In accessing the Service, you agree to be bound by these Terms of Use. If you do not agree with these Terms of Use, you may not use the Service.

The Service

The Service is comprised of a website and mobile application (collectively, the “App”). The Service allows users to select and purchase groceries and related products from specified stores, including _____________, using the App and have the items delivered to your door for a fee.

Term

These Terms of Use shall commence on your first use of the Service or as otherwise provided in these Terms of Use and shall continue for the duration of your use of the Service. MyOrchard, in its sole discretion, may terminate your right to use the Service at any time for any reason. These Terms of Use shall survive the termination of your right to use the Service.

Registration

During registration process, you agree to provide accurate and current information as requested by MyOrchard and to promptly update such information to ensure that it is kept accurate and complete. You further agree to be responsible for the accuracy of all information provided to us, the confidentiality of any passwords or other account information that you choose or that are otherwise provided to you as a result of any registration or purchase made through the App, and all activities that occur under your account. You further agree to notify MyOrchard of any unauthorized use of your account which you become aware of. You acknowledge and agree that MyOrchard shall not be liable, directly or indirectly, in any way for any loss or damage of any kind suffered as a result of your failure to comply with this section or for any delay in closing your account after you have advised us of any unauthorized use.

MyOrchard bears no responsibility of any cancellation or error in order delivery due to wrong information provided by the customer before submitting an order.

Placing Orders

By submitting an order through our App, you agree to pay the prices of the items selected as listed, including shopping fees, delivery fees, and taxes as applicable. Payment shall be made by credit card. You agree to provide MyOrchard with authorization to process your credit card and charge the amounts as incurred on the App. MyOrchard reserves the right to change the permitted methods of payment at any time. When you submit your order, your credit card will be validated for sufficiency of funds prior to the transaction being approved. Once approved, MyOrchard will prepare the order for delivery. We reserve the right to charge amounts incurred with respect to your order directly to the credit card as provided by you at the time you submitted your order. You agree that you are liable for any fees, including legal fees, that MyOrchard may incur in its efforts to collect any unpaid amounts from you. You may be required to provide additional information prior to MyOrchard processing your order. If you do not properly complete your order, it may not be processed.

You may cancel or modify your order via the website or application up until 24 hours prior to the delivery date selected without penalty. If you cancel or modify an order after this time, MyOrchard reserves the right to charge a cancellation fee of 15% of the value of the original order. If you attempt to make any modifications after this time, MyOrchard cannot guarantee that the modification will be made prior to delivery date.

Order placed for same day delivery can not be cancelled without a $20 cancellation fee. It’s because of our swift operations of making purchases and assigning time slots to our shoppers and drivers.

Please note that all dollar amounts on the website are in Canadian dollars.

Service Availability

MyOrchard will make best efforts to provide the Service 24 hours/day, 7 days/week and 365 days/year but does not guarantee the availability of the Service or the App at any given time and you acknowledge that the Service or the App may be affected by unforeseen circumstances. MyOrchard does not make any representations or warranties with respect to the availability of the Service or the App.

Conditions of Use

All material on the App is owned by MyOrchard and is intended for customers in Ontario only. The App and Services may not be accessed by persons under the age of 16. MyOrchard makes no representation or warranty that the information presented on the App is appropriate for use by individuals outside of Ontario.

You acknowledge and agree that subject to MyOrchard’s Privacy Policy, any material you publish on the website or application will not be considered confidential or proprietary and may be reproduced or published by MyOrchard for any purpose.

You further acknowledge and agree that you are prohibited from publishing on the App or through the Service any criminal, unlawful, threatening, defamatory, scandalous, inflammatory, obscene, pornographic or profane material or any material that could constitute or encourage criminal conduct or a violation of the laws of the Province of Ontario or the federal laws of Canada applicable therein.

You acknowledge and agree that any items purchased from the App are not intended for resale after delivery.

Intellectual Property

MyOrchard is the owner of the copyright in the App design, text, photos, graphics, and the selection and arrangement of such elements on the App as part of the Service. You acknowledge and agree that you are prohibited from reproducing, distributing, publishing, posting, or transmitting the Service in any form or by any means without the express prior written consent of MyOrchard.

MyOrchard grants to you as a customer of the Service permission to lawfully access and use the Service on the App and to download, archive and print portions of the App for personal use subject to the condition that you do not modify the materials contained therein. You acknowledge and agree that you are strictly prohibited from selling, advertising, marketing, or otherwise commercializing any downloaded, archived or printed portions of the App.

You acknowledge and agree that your permission under this section will terminate immediately without notice if you breach any of these Terms of Use.

You acknowledge and agree that the MyOrchard domain name, logos, all page headers, custom graphics and icons are common law marks owned by MyOrchard. You further acknowledge and agree that there are additional common law marks, product names, company names and/or logos indicated on the App that are the property of their respective owners. You acknowledge and agree that you are prohibited from using any such materials on the App without the prior written consent of MyOrchard.

No Warranties or Representations

You hereby acknowledge and agree that your use of the Service and App is at your sole risk. MyOrchard does not warrant or guarantee the accuracy, adequacy or completeness of the information and materials on the Service and App, and expressly disclaims liability for any errors and/or omissions in this information and materials. MyOrchard disclaims all express and implied warranties, including merchantability, fitness for a particular purpose, title, compatibility, security, accuracy, non-infringement and usefulness with respect to the Service and App, which is provided on an “as is” and “as available” basis. MyOrchard does not warrant or represent that the Service or the App will be in good repair, uninterrupted or error-free and you acknowledge that delays, omissions, interruptions, or inaccuracies may exist with respect to any component of the Service or the App. MyOrchard further does not warrant or represent security of accounts, or that the Service or App is free from viruses, hacks, or other technical breaches when downloaded onto your mobile phone. MyOrchard disclaims all liability for any damage to your mobile phone for use of the Service or App. You agree to assume full responsibility and risk of loss for using the Service and App and MyOrchard is not liable for any claim attributable to the above.

You acknowledge and agree that items listed on the App may not be available at all times for purchase and that items purchased may not appear exactly as shown on the App. You further acknowledge and agree that selection and availability of items may vary and are subject to change without notice. MyOrchard shall not be responsible for any loss or damages arising from such updates or changes. MyOrchard reserves the right to correct any pricing errors on the App.

Where items have a variable weight (such as fresh meats or produce or other items that are otherwise priced by weight), the price indicated on the App is estimated based on the weight you select. The final price of the item will be based on the same price per weight indicated on the App when you submit your order but the final price is determined once we have prepared and weighed your order and will appear on the invoice at the time of delivery. The price you pay is based on the actual weight of the item delivered.

Without limiting the generality of the forgoing, MyOrchard disclaims any and all warranties and representations, express or implied, and MyOrchard shall not be held responsible for the quality of any merchandise displayed on the App or in stores.

Pharmaceutical Products

MyOrchard advertises for purchase and will deliver over-the-counter drugs but not prescription drugs. MyOrchard is not a pharmacy and does not provide any medical or pharmacy advice. If you require medical or pharmacy advice, please consult a physician. If you are experiencing a medical emergency, please call 911 immediately.

Promotions and Special Offers

MyOrchard may make promotional offers from time to time on the App. Such offers may be only may available on the App and not available in-store. Conversely, not all offers available in store may be available on the App unless expressly stated.

MyOrchard may also offer coupons or gift cards from time to time. If you redeem any coupons or gift cards, this will be reflected at checkout and is subject to validation and any redemption requirements. Coupons from manufacturers and third parties are the responsibility of those parties and not MyOrchard. If MyOrchard inadvertently makes an error on any gift card, coupon, or other promotional offer, MyOrchard reserves the right to suspend redemption or terminate the offer.

Agency Relationship

You acknowledge and agree that the relationship between the parties is that of an agency relationship and that MyOrchard acts as your agent with respect to the Service. You hereby grant MyOrchard the right to select the driver, shopper, and deliverer of the items with respect to the Service. You further acknowledge and agree that as agent, MyOrchard does not own the items but instead the items are managed by the supermarket or grocery store indicated on the App. MyOrchard, as agent, only selects the items in the store based on your purchase and delivers the item to your door pursuant to these Terms of Use.

Nothing in these Terms of Use authorizes or shall be construed to create an employment relationship, partnership, joint venture, cooperative, or any other form of business organization under any applicable laws nor shall either party claim such a relationship publicly or otherwise.

Termination

You may terminate your use of the App and Service at any time provided that no refund will be provided to you and that any hold on your credit card may remain for up to ten (10) days following the termination of the App and Service. You may continue to be charged any additional fees following termination in accordance with these Terms of Use.

Release and Indemnity

In consideration for use of the App and Service, you hereby agree to fully and forever release, indemnify and hold harmless MyOrchard, including all of its directors, officers, shareholders, employees, agents, representatives, affiliates, successors and assigns from all claims, injuries, demands, liabilities, actions, causes of action, proceedings, obligations, debts, liens, fines, charges, penalties, promises, costs, expenses damages or losses that arise from or relate to your use of the App and Service except for those caused by MyOrchard’s gross negligence or wilful misconduct. MyOrchard may rely on such release and indemnity as a complete defence to any claim brought by you. This provision shall survive the termination of this these Terms of Use.

Limitation of Liability

You hereby acknowledge and agree that MyOrchard, including its directors, officers, shareholders, employees, agents, representatives, affiliates, successors and assigns, are not responsible or liable for any damages, including without limitation any and all direct or indirect, special, incidental, compensatory, exemplary or consequential damages, losses or expenses, including without limitation lost or incorrect orders, lost profits, lost registrations and passwords, or loss of data, howsoever caused and under any theory of liability arising out of or in connection with: (i) the use of the Service or App by you or any party; (ii) any error, omission, interruption, defect, delay in operation or transmission of the Service or App; (iii) line or system failure or the introduction of a virus or other technical breaches; (iv) your use of, or inability to use, the Service or App; (v) your breach of these Terms of Use or your violation of any law; (vi) any negligence, misconduct or other action or inaction by you; (vii) any negligence, misconduct or other action or inaction of any third party. You hereby waive all claims with respect to any of the foregoing. MyOrchard’s total liability for all claims is limited to the sum of $100.00.

Reservation of Rights

MyOrchard reserves the right to amend, modify or revise these Terms of Use from time to time in its sole discretion without notice. You agree to be bound by all such amendments, modifications and revisions in continuing to use the App and Service. You must review these Terms of Use on a regular basis as to be aware of all amendments, modifications and revisions to these Terms of Use. MyOrchard will post notifications on the App whenever a change is made to these Terms of Use.

Representations

You represent and warrant that you have the legal power and authority to enter into these Terms of Use and agree to undertake and perform all duties and obligations hereunder. You further represent and warrant that there is no other contract or other legal restrictions that prevent you from entering into these Terms of Use or performing all of the duties and obligations hereunder.

Notices

Any notices required under these Terms of use shall be given to MyOrchard via email to ______________________.

Non-Waiver

The failure by a party in one or more instances to require the performance of any provision in these Terms of Use or to exercise any rights or privileges conferred in these Terms of Use or to seek the enforcement of any of the terms, covenants or conditions of these Terms of Use shall not constitute a waiver of any of the terms, covenants or condition of these Terms of Use but the same shall continue and remain in full force and effect as if no such failure or forbearance had occurred. No waiver of the terms, covenants or conditions of these Terms of Use shall be effective unless it is in writing and signed by the waiving party.

No Assignment or Transfer

The Terms of Use, Service, and App are personal between you and MyOrchard and may not be assigned or transferred without the prior written consent of MyOrchard.

Dispute Resolution

If there is a dispute with respect to these Terms of Use, either party may provide a Notice of Dispute to the other setting out particulars of the dispute. Either party may wish to resolve the dispute by way of mandatory mediation by providing written notice to the other party within ten (10) days of the written Notice of Dispute. The mandatory mediation must take place within 60 days of the Notice of Dispute. If the parties do not resolve their dispute through mediation, either party may commence litigation by way of action against the other party in Ontario Superior Court.

Governing Law

These Terms of Use are governed and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. Each party attorns to the jurisdiction of the courts of the Province of Ontario in the City of Toronto.

Severability

In case any one or more of the provisions contained in these Terms of Use are for any reason held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of these Terms of Use but these Terms of Use shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein.

Entire Agreement

These Terms of Use contain the entire agreement and understanding among the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. The express terms hereof control and supersede any course of performance and/or usage of the trade inconsistent with any of the terms hereof. These Terms of Use may not be modified or amended other than by an agreement in writing subject to MyOrchard’s reservation of rights above.

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