THIRD PARTY SERVICE PROVIDERS
PASSWORD AND SITE ACCESS
You are solely responsible for the security of online access to this Site and your Account, and you must take precautions to protect the confidentiality of your password and other login information (collectively, your “Account”). You should not share your password or login information with any other person or entity. You are solely responsible for verifying the accuracy of all transactions placed in your Account and for ensuring that you receive a confirmation for all transactions placed for your Account.
Contact Tom’s immediately if you suspect unauthorized use of your password or login information, or any other unauthorized activity on your Account. You must exit fully out of your account at the end of each session. You are and will be responsible for all activities conducted on and with the Site that make use of your password and/or login information, and for any charges or fees incurred by the use of that password and/or login information, including any use you may subsequently contend was not authorized by you. Tom’s may justifiably assume that any orders or instructions received through any electronic systems and placed under your Account or password were placed or authorized by you.
SITE MATERIALS, SERVICES AND SOFTWARE
Through this Site, Tom’s may make available to you: (a) certain audio and visual articles, text, information, data, images, illustrations, photographs, video, documents and other materials contained or displayed in or made available through the Site (collectively, “Materials”); and (b) various services and functionality (collectively, “Services”).
The Site design, text and graphics, and the selection and arrangement of such elements are copyrighted and are protected by worldwide copyright laws and treaty provisions. Unless otherwise indicated, all product and service marks and logos displayed on the Site are subject to the trademark rights of Tom’s, its affiliates, or its business partners. You shall not: (a) remove or destroy any proprietary rights marks or legends on or in the Site; (b) modify, enhance, adapt, translate, or create derivative works of the Site; (c) republish, post, transmit, transfer, distribute, assign, sublicense, rent, lease or sell the Site; (d) decompile, disassemble or reverse engineer the Site; (e) reproduce or make copies of the Site; (f) “frame” or “mirror” the Site on any other server or Internet-based device; and/or (g) access, view, download, print, use and/or display the Site for any commercial or other money-making purpose; (h) download or copy Account information for the benefit of another merchant; (i) use any data mining, robots, or similar data gathering and extraction tools; or (j) use any meta tags or any other “hidden text” utilizing Tom’s name or trademarks without our express written consent. You acknowledge that certain elements of the Site are, or may in the future be, licensed to Tom’s by third parties and that the availability of such elements may cease automatically, without notice or liability on the part of Tom’s.
The following is a partial list of the trademarks that we or our affiliates own:
Tom’s Food Markets
Failure of a mark to appear on this page does not mean that we do not use or own that mark. Our trademarks cannot be used without an express, written license agreement. Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Tom’s. All other trademarks not owned by Tom’s that appear on this site are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Tom’s.
Tom’s and/or its licensors own and shall retain all rights, title and interests, including all intellectual property rights, in and to the Site, and all elements thereof. Except for the express licenses granted to you herein, you neither have nor acquire any rights, title or interests in or to the Site, or any element thereof.
PRODUCT INFORMATION AND PRICING
All prices are listed in U.S. Dollars. The prices and availability of products are subject to change without notice. If Tom’s discovers an error in either pricing or availability it will seek to correct it. Tom’s reserves the right to revoke any offer and to correct any errors, inaccuracies or omissions (including after an order has been submitted and accepted).
Some products offered on the Site are available for Tom’sXpress pickup at select stores. The Tom’sXpress service is only available at those stores and not all items are available for this service. The Tom’sXpress service is described below.
All purchases are subject to age verification. If you fail to present a valid form of age identification at the time of pickup, your order for products that are subject to age restrictions (such as alcohol, tobacco, certain medications) may be cancelled.
Tom’sXpress cannot accept WIC, food stamps, bottle return slips, Coinstar, coupons, or mobile payments during Tom’sXpress pickup.
You can order up to 7 days in advance and schedule a pickup time based on availability of appointment times at your chosen store.
If you miss your scheduled pickup time, we will hold your order for 24 hours. If your order has not been picked up by that time, your order may be cancelled.
Tom’s reserves the right to discontinue or change any promotion or offer on the Site at any time, for any reason, and without notice. If you attempt to use a promotion or offer that has been discontinued or changed, no discount will be given on the product purchased.
By ordering an item on the Site for Tom’sXpress pickup, you are agreeing to purchase the products selected. Your payment for the products ordered is due at the time you submit your order. When you submit your order, Tom’s will request an authorization hold to be placed on your credit card for the entire amount of the order plus 10% or $5.00, whichever amount is greater. Purchases can be picked up only at the Tom’s location you selected when placing your order. At the time your order is fulfilled, the authorization hold will be removed, and your credit card will be charged the entire amount of your purchase, subject to any changes in product pricing.
Changes and Cancellations
If you need to change or cancel an order you have placed on the Site for Tom’sXpress pickup, you must contact Tom’s Corporate Office at 231-946-6431 or the Market from which you ordered at least 24 hours before the scheduled pick up time. Once an order has been fulfilled, you may not be able to make changes or cancel your order, and you may be charged the full amount for the order.
Some products offered on the Site are available for delivery in select markets through one or more third party service providers. If you choose to use such delivery services and/or provide any personally identifiable information to the delivery service providers, you do so subject to such provider’s terms and policies and at your own risk. Tom’s is not responsible for the third party delivery service or any delivery site or portal.
In certain portions of the Site, users may be allowed to submit information, data, text, software, music, sound, photographs, graphics, video, messages, products, services and/or other materials (individually and collectively, “Content”). All Content is the sole responsibility of the person by whom the Content was posted. This means that you, and not us, are solely responsible for all Content that you upload, post, transmit or otherwise make available through or on this Site. You are also solely responsible for all Content posted under your Account. Tom’s does not control the Content posted on or through this Site and, therefore, Tom’s does not guarantee the accuracy, integrity or quality of such Content. You represent and warrant that (i) you own or otherwise control all of the rights to the Content that you post; (ii) that the Content is accurate; (iii) use of the Content you supply does not violate this policy; (iv) the Content does not infringe any intellectual property or other rights of any third party and does not violate any applicable laws or regulation; and (v) the Content will not cause injury to any person or entity.
Should Content be deemed illegal, Tom’s will cooperate with the proper authorities, including but not limited to submitting all necessary information to them. If we determine, in our sole discretion, that any Content submitted by you is offensive or inappropriate, we may ask you to retract or modify the Content in question. If you fail to meet our request within the time specified, then we may terminate your Account. We have no obligation, however, to restrict or monitor Content in any way.
You may see or read things that you do not like or agree with on our Site. You understand that by using our Site, you may be exposed to Content that is offensive, indecent or objectionable. Under no circumstances will we be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or for any loss or damage of any kind incurred as a result of the use of any Content posted, transmitted or otherwise made available through our Site. You acknowledge that we do not have any obligation to pre-screen Content, although we reserve the right, in our sole discretion, to refuse, move, or delete any Content.
We do not want to receive any confidential or proprietary information from you through this Site or by email. Unless otherwise agreed in writing by an authorized Tom’s employee, any material, information or idea you transmit to Tom’s or the Site by any means may be disseminated or used by Tom’s without compensation or liability to you for any purpose whatsoever, including, but not limited to, developing, manufacturing and marketing products. However, this provision does not apply to personal information that is subject to our Privacy Notice.
We do not claim ownership of the Content you upload, place or post through this Site. You are responsible for protecting your rights in such Content and are not entitled to our help in protecting such Content. By uploading, placing or posting Content through this Site, you grant Tom’s a perpetual, irrevocable, world-wide, royalty-free, non-exclusive and fully sublicensable license to use, distribute, reproduce, modify, adapt, translate, publicly perform, publicly display, and create derivative works from the Content (in whole or in part) and to incorporate such Content into other works in any format or medium now known or later developed, for any purpose associated with the Site. You grant Tom’s and its sub-licensees the right to use the name that you submit in connection with such Content, if Tom’s chooses.
THIRD PARTY INFORMATION
Please be aware that when you are on the Site, you could be directed to other sites that are beyond Tom’s control. Tom’s is not responsible for the content of any linked site or any link contained in a linked site owned or controlled by a third party. Tom’s reserves the right to terminate any link or linking program at any time. Tom’s provides such links only as a convenience to you. Tom’s has not endorsed, tested or verified any information, programs, companies, or products on sites to which it links. If you decide to access any third party sites linked to this Site and/or provide any personally identifiable information to such, you do so subject to the terms and policies applicable to those sites and entirely at your own risk.
Tom’s may provide you information from third parties as part of this Site. Unless expressly stated, Tom’s does not represent, endorse or guarantee the accuracy, completeness, timeliness, reliability or suitability of any information provided by third-parties. You agree that Tom’s is not responsible for third party information accessible through this Site, including opinions, advice, statements, recipes or other health and wellness information and advertisements, and that you use such information at your own risk. Please consult with your doctor before starting a new diet, fitness or supplement regimen.
This Site may present health information in various forms, which is provided for educational purposes only. The health information describes general principles of health care. The information may not be applicable to your personal circumstances. Moreover, like any printed material, the information may become out-of-date over time and may contain typographical errors and inaccuracies. The information is not intended as a tool for self-diagnosis, is not a recommendation of a specific treatment plan or healthcare provider, and is not a substitute for proper medical advice, diagnosis or treatment. Proper treatment of health conditions depends on a number of factors, such as your medical history, diet, lifestyle and the medication that you currently take. Your doctor or other licensed health care provider is in the best position to take these and other factors into account in assessing and addressing your individual health care needs and use of this Site cannot replace medical consultation with a qualified health or medical professional.
Tom’s operates this Site from its office within the United States. Tom’s makes no representation that content and materials on this Site are legal or appropriate for use from outside the United States. Please keep in mind that this Site may not conform with the laws of your country. If you access this Site from outside the United States, you do so at your own risk. You may not use the Site in violation of United States export laws and regulations.
DISCLAIMER OF WARRANTIES
THIS SITE, INCLUDING ALL MATERIALS, SERVICES, SOFTWARE, INFORMATION AND OTHER CONTENT AVAILABLE ON AND/OR THROUGH THIS SITE, IS PROVIDED BY TOM’S “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CONTINUED AVAILABILITY, QUALITY, ACCURACY AND/OR SYSTEM COMPATIBILITY. IN ADDITION, NO WARRANTIES SHALL ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE.
BY USING THIS SITE, YOU ASSUME ALL OF THE RISKS ASSOCIATED WITH SUCH USE, AND YOU EXPRESSLY RELEASE TOM’S, AND ITS THIRD PARTY INFORMATION AND SERVICE PROVIDERS, FROM ANY AND ALL LIABILITY, CLAIMS AND/OR LOSSES ARISING FROM OR CONNECTED WITH SUCH RISKS. YOU ACKNOWLEDGE THAT: THE SITE COULD INCLUDE TECHNICAL OR OTHER MISTAKES, INACCURACIES OR TYPOGRAPHICAL ERRORS; THE SITE MAY BECOME INOPERABLE OR OTHERWISE UNAVAILABLE FOR PERIODS OF TIME; MATERIALS AND/OR SERVICES AT THE SITE MAY BE OR BECOME OUT OF DATE AND TOM’S MAKES NO COMMITMENT TO UPDATE SUCH MATERIALS OR SERVICES. TOM’S ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION, DOCUMENTS, SOFTWARE, MATERIALS AND/OR SERVICES WHICH ARE REFERENCED BY OR LINKED TO THIS SITE. REFERENCES TO THIRD PARTIES, THEIR SERVICES AND PRODUCTS, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
THE INFORMATION PROVIDED ON THIS SITE IS PROVIDED FOR GENERAL CONSUMER UNDERSTANDING AND EDUCATIONAL PURPOSES ONLY AND SHOULD NOT BE INTERPRETED AS A RECOMMENDATION FOR A SPECIFIC TREATMENT PLAN, PRODUCT OR COURSE OF ACTION. THE INFORMATION MAY CONTAIN INACCURACIES AND TYPOGRAPHICAL ERRORS. ADDITIONALLY, MEDICAL INFORMATION CHANGES RAPIDLY. ALTHOUGH TOM’S MAY UPDATE THIS SITE, SOME OF THE INFORMATION MAY BE OUT OF DATE OR CONTAIN OTHER ERRORS. TOM’S DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION POSTED OR ANY OPINION, ADVICE OR STATEMENT DISPLAYED ON THIS SITE. YOU AGREE THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK.
THE INFORMATION CONTAINED ON THIS SITE SHOULD NOT BE RELIED UPON FOR SPECIFIC MEDICAL ADVICE FOR ANY USER. TOM’S AND ITS AGENTS ASSUME NO RESPONSIBILITY FOR HOW YOU USE THE INFORMATION PROVIDED THROUGH THIS SITE. YOU SHOULD ALWAYS SEEK THE ADVICE OF YOUR PHYSICIAN OR OTHER QUALIFIED HEALTH PROVIDER PRIOR TO STARTING ANY NEW TREATMENT OR WITH ANY QUESTIONS YOU MAY HAVE REGARDING A MEDICAL CONDITION.
LIMITATION OF LIABILITY
REGARDLESS OF THE FORM OF ACTION OR THEORY OF RECOVERY, IN NO EVENT SHALL TOM’S, ITS AFFILIATES, ITS LICENSORS AND/OR ITS SERVICE PROVIDERS BE LIABLE OR RESPONSIBLE TO YOU IN ASSOCIATION WITH THE SITE, OR YOUR USE THEREOF, FOR ANY: (A) INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF THEY ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) LOST PROFITS, LOST REVENUE, LOSS OF DATA, LOST EXPECTANCY OR BUSINESS INTERRUPTIONS. ANY CLAIM RELATED TO THE SITE MUST BE INITIATED WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT THAT GAVE RISE TO THE CLAIM.
TOM’S SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DELAY OR FAILURE IN THE SITE, OR ANY COMPONENT THEREOF, OR YOUR ABILITY TO ACCESS OR USE THE SITE, RESULTING FROM CAUSES OUTSIDE OF TOM’S CONTROL, INCLUDING, WITHOUT LIMITATION, POWER OUTAGES, ACCIDENTS, STRIKES, FIRES, WAR OR ACTS OF GOD.
APPLICABLE LAW, SEVERABILITY AND WAIVER
The content of our Site may contain forward-looking statements that are based on management’s beliefs, assumptions, current expectations, estimates and projections about the grocery wholesale distribution, grocery retail and pharmacy industries, the economy, and about Tom’s and its subsidiaries. Words such as “anticipates,” “believes,” estimates,” “expects,” “forecasts,” “intends,” “is likely,” “plans,” “predicts,” “projects,” or variations of such words and similar expressions are intended to identify such forward-looking statements. These statements are not guarantees of future performance and involve certain risks, uncertainties and assumptions (“Risk Factors”) that are difficult to predict with regard to timing, extent, likelihood and degree of occurrence. Therefore, actual results and outcomes may materially differ from what may be expressed or forecasted in such forward-looking statements. Furthermore, We undertake no obligation to update, amend or clarify forward-looking statements, whether as a result of new information, future events or otherwise.
Risk Factors include, but are not limited to, uncertainties relating to changes in demand for our products; changes in consumer preferences or spending patterns; the cost and availability of inventories, services, labor and equipment furnished to the Company; the degree of competition by our competitors; changes in government and regulatory policies; changes in trading policies or import and export regulations; changes in interest rates, tax laws, duties or applicable assessments; technological developments; and changes in domestic or international economic conditions. These matters are representative of the Risk Factors that could cause a difference between an ultimate actual outcome and a forward-looking statement. Other Risk Factors are discussed in the periodic reports we file with the U.S. Securities and Exchange Commission. In particular, please refer to the discussion of “Risk Factors” in Item 1A of our most recent Annual Report on Form 10-K, which is available under the “Investor Relations” section of our website.
SOCIAL NETWORKING ACCOUNTS
In the event Tom’s determines to enable social networking functionality on the Site, the following terms will apply to your use of the Site.
(a) Registration Obligations
To use the social networking functionality of the Site, you must register and open an Account with us. To open the social networking features of an Account, you must select an identity and password for your Account. By opening an Account with us, you promise not to: (a) select or use the identity of another person with the intent to impersonate that person; (b) use a name subject to the rights of any other person without authorization; (c) use an identity that we, in our sole discretion, deem inappropriate or offensive; or (d) breach any representation, warranty or promise made by you in this policy regarding your Account.
Those features requiring registration are intended for adults who are at least 18 years of age and have reached the age of majority under applicable law. In consideration for your use of these features, you represent that you are of legal age to form a binding contract and are legally able to receive services under the laws of the United States. You also agree to: (a) provide true, accurate, current and complete information about yourself as prompted by our registration form, and (b) maintain and promptly update your Account information to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your Account and refuse any and all current or future use of our Site and its related services. Please keep in mind that registering an Account for certain features of our Site may require the submission of information such as your email address or mailing address.
By becoming a user of the social networking features on our Site, certain profile information about you will automatically be displayed, posted, and visible to all members of and visitors to the Site. You can change how this information is displayed though your Account settings. By using our Site, you consent to Tom’s display, disclosure and use of your information and Content as set forth above and you agree to use caution and care in evaluating and selecting your Account settings and information before using this Site and posting any information to it. You, your heirs, executors, administrators and assigns agree not to hold us liable for any and all claims, liabilities and/or damages of any kind whatsoever that arise out of or relate in any way to your interaction with others and/or with Tom’s through this Site.
(b) Your Content
The following is a non-inclusive list of behaviors that are not permitted on the Site. You agree not to:
1. upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy (up to, but not excluding any address, email, phone number, or any other contact information without the written consent of the owner of such information), hateful, or racially, ethnically or otherwise objectionable;
2. harm minors in any way;
3. impersonate any person or entity, including, but not limited to, any of our employees, company officials, directors, shareholders, agents, representatives or users, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Content posted, transmitted or otherwise made available through the Site;
5. upload, post or otherwise transmit any Content that you do not have a right to upload, post or otherwise transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6. upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or other proprietary rights of any party;
7. upload, post, or otherwise transmit unsolicited commercial email or “spam”. This includes unethical marketing, advertising, “chain letters” or any other practice that is in any way connected with “spam”, such as (a) sending mass email to recipients who haven’t requested email from you or with a fake return address, (b) promoting a site with inappropriate links, titles, descriptions, or (c) promoting your site by posting multiple submissions in public forums that are identical;
8. upload, post or otherwise transmit any material that contains software viruses, Trojan horses, malware or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or intercept messages sent from a computer or communications device;
9. interfere with or disrupt the Site, servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Site;
10. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law;
11. “stalk” or otherwise harass another;
12. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
13. offer for sale or sell any item, good or service through our Site;
14. use the Site as a forwarding service to another website;
16. take any steps to interfere with or in any manner compromise any of our security measures;
17. use the Site for fraudulent purposes;
18. harvest or collect any information about or regarding other Account holders, including, without limitation, any personal data or information;
19. sell, lend, lease, trade, rent, barter, sublicense, assign, transfer, or grant rights in any manner to your Account, or password, including, without limitation, on or through the use of any third party web site or service;
20. copy the Site or any portion thereof (other than as provided under United States copyright laws);
21. remove any proprietary notices from this Site;
22. cause, permit or authorize the modification, creation of derivative works, or translation of this Site without Tom’s express permission;
23. sell, assign, rent, lease, act as a service bureau, or grant rights in the Site including, without limitation, through sublicense, to any other person or entity;
24. attempt to decompile, reverse engineer, disassemble, modify or hack this Site or to defeat or overcome any encryption and/or digital rights management technology implemented by Tom’s with respect to this Site and/or data transmitted, processed or stored by Tom’s or this Site;
25. use this Site for any commercial purpose or for the benefit of any third party or in any manner not permitted by this policy, or otherwise exceed the scope of our services that you have signed up for (i.e., by accessing and using the tools that you do not have a right to use).
DIGITAL MILLENNIUM COPYRIGHT NOTICES
Notices and demands made pursuant to the Digital Millennium Copyright Act Section 512(c), 17 U.S.C. § 512(c) should be submitted to:
Tom’s Food Markets
1311 S Division St
Traverse City, MI 49684
Please read through all of the policies posted on our Site. These policies also govern your visit to our Site and are incorporated herein by reference. We reserve the right to change the Site and our policies at any time. If any one of our terms is deemed invalid, void, or unenforceable for any reason, that term shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.
• Our policies are entire and exclusive. No verbal statements or representations are binding on Tom’s.
• You may not change – such as by amendment or modification – any of our policies at all without our prior written consent.
• All references to “us,” “we,” “our,” and this “Site” relate to Tom’s Food Markets, Inc., its affiliates, parents, subsidiaries, directors, successors, officers, assigns, employees, contractors and agents.
COMPLAINTS AND VIOLATIONS
OUR CONTACT INFORMATION
Tom’s Food Markets, Inc. 1311 S. Division St., Traverse City, MI 49684