Terms - Martha Stewart & Marley Spoon

Martha Stewart & Marley Spoon Terms and Conditions

Last Updated: December, 19th. 2022

Welcome to MarleySpoon.com and our mobile application (collectively the “Site”). Please read the following terms and conditions carefully before using any aspect of the Site. In particular, Section 17 of these terms and conditions require the use of arbitration on an individual basis to resolve disputes rather than jury trials or class actions and Section 19 contains information about continuous and automatic renewal subscriptions. You should also carefully review our Privacy Policy.

The site is an internet property of MMM Consumer Brands, Inc. (“Marley Spoon,” “we,” “our” or “us”). Each end-user visitor to the Site agrees to the following Marley Spoon terms and conditions (“terms and conditions”), in their entirety, when she/he:

a. accesses or uses the Site;

b. accesses and/or views any of the video, audio, stories, text, photographs, graphics, artwork and/or other content featured on the Site (collectively, “content”);

c. signs up to receive the Marley Spoon food delivery service, which includes processing and delivery of orders (the “Marley Spoon service”);

d. accesses links to Marley Spoon’s social media pages/accounts on third party social media websites, such as Facebook®, Instagram®, Pinterest®, Twitter® and Youtube® (collectively, “Social Media Pages”);

e. enters one of the sweepstakes, contests and/or promotions offered by Marley Spoon from time-to-time (“promotions”); and/or

f. utilizes the Site’s many interactive features designed to facilitate interaction between the end-user, Marley Spoon and other Site users including, but not limited to, blogs and associated comment sections located in designated areas of the Site (collectively, the “interactive services” and together with the Site, content, Marley Spoon service, social media pages and promotions, the “Marley Spoon offerings”).

g. The following terms and conditions are inclusive of the Marley Spoon privacy policy (“privacy policy”), the contest rules applicable to the promotions (“contest rules”) and any and all other applicable Marley Spoon operating rules, policies, price schedules and other supplemental terms and conditions or documents that may be published from time to time, which are expressly incorporated herein by reference (collectively, the “Agreement”). By using and/or accessing the Marley Spoon offerings, you agree to comply with and be bound by the Agreement in its entirety. Please review the terms of the Agreement carefully. If you do not agree to the Agreement in its entirety, you are not authorized to use the Marley Spoon offerings in any manner or form.

If you have any questions about the Agreement or the Site please access our Frequently Asked Questions or call our Customer Service team at 866-228-4513.

1. Modification

1.1 We may amend the Agreement from time to time in our sole discretion, without specific notice to you; provided, however, that:
a. any amendment or modification to the provisions applicable to dispute resolution (collectively, “Dispute Resolution Provisions”) shall not apply to any disputes incurred prior to the applicable amendment or modification; and
b. any amendment or modification to pricing and/or billing provisions (“Billing Provisions”) shall not apply to any charges incurred prior to the applicable amendment or modification.

1.2 The latest Agreement will be posted on the Site, and you should review the Agreement prior to using the Marley Spoon Offerings. By your continued use of any of the Marley Spoon Offerings, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Agreement effective at that time (other than with respect to disputes arising prior to the amendment or modification of the Dispute Resolution Provisions, or charges incurred prior to the amendment or modification of the Billing Provisions, which shall be governed by the Dispute Resolution Provisions and/or Billing Provisions then in effect at the time of the subject dispute or incurred charges, as applicable).

2. Marley Spoon Satisfaction Guarantee

2.1 All of our products and services are backed by a freshness and quality guarantee for 4 days after the receipt of your box. If for any reason you are not satisfied with a meal ingredient please call us at 866-228-4513 or contact us via e-mail at contact@marleyspoon.com within seven (7) days of the delivery of your box. Depending on the circumstances, we may provide you with credits for meal ingredients that will automatically be applied to future deliveries under your Meal Subscription or we may, in our sole discretion, provide you a full or partial refund of the purchase price of that meal or meal ingredient

2.2 Marley Spoon may require the return or photo documentation of the product with which you are dissatisfied before we substitute an acceptable item, issue a credit voucher or give you cash back.

3. Ordering Through The Site

3.1 Orders must be received before the posted cutoff time for a given delivery (see next paragraph and Delivery of Products below for details). Available delivery windows and associated delivery charges and promotions will be shown as you proceed through the ordering process.

3.2 You can skip or make changes to your order up until the cutoff time for that order. The cutoff time for your order is dependent on the zip code of your delivery address and it may be up to 6 or 7 days before the date of delivery. The hour of the cutoff time is 11:59pm in the time zone in which you are located.

3.3 Cancellation or pausing of your membership after the required cutoff time will result in a full charge for unskipped orders.

3.4 We reserve the right to extend the cutoff time by up to 48 hours for certain periods throughout the calendar year, in particular to manage the workload around national public holidays. We will give you at least 7 days’ advance notice of such extension before the first effected cutoff time.

4. Market Items

4.1 For a given week, you may choose to supplement your order by adding one or more individual items from the ‘Market’ section of our Site (if available for your zipcode) (“Market Items”).

4.2 Market Items are only available as additions to a Meal Subscription order; they cannot be purchased as standalone items.

4.3 Any Market Items added by you form part of your order for the relevant week.

4.4 Market Items will be delivered with your order during the relevant week only; they do not form part of your Meal Subscription and will not be delivered on a recurring basis.

4.5 The price charged to you in respect of any Market Items will be added to the price of your order for the relevant week.

4.6 The addition of any Market Items to your order will not result in additional delivery charges.

4.7 The rules set out in these terms and conditions regarding cutoff times, skips, changes, cancellations and pauses for an order apply equally to any Market Items included in that order.

5. Price and Availability

5.1 All prices shown on the Site are in U.S. dollars. Unless expressly stated otherwise, any applicable taxes and other fees or charges are not included and are additional to any prices shown on the Site. Prices, taxes or other fees may vary geographically.

5.2 At Marley Spoon we believe in offering our customers the best product at the best price. We strive to provide you with great prices compared to the competition near your delivery address. We receive fresh products every day to assure you the highest quality. Although our goal is to fulfill 100% of each order, given the perishable nature of our products, from time to time products may be unavailable due to market conditions beyond our control or to quality that is below our standards. At times when we have an item that’s very similar to the item you ordered, we may make a substitution. If you’re not happy with the replacement, please email us at contact@marleyspoon.com.

Please note: We reserve the right to limit your order or the quantity of a particular product that you may order.

6. Delivery of Products

Marley Spoon uses refrigerated shipping solutions to maintain the quality and integrity of your products. Marley Spoon uses third-party delivery companies to deliver meal ingredients to its customers. We carefully package each delivery to ensure that food products will remain fresh in your unopened delivery box at room temperature (i.e., 78 degrees Fahrenheit) for six (6) hours from the time of delivery. However, you as the customer are the ultimate arbiter of freshness and should always inspect your delivery boxes to confirm the contents arrive in a cool, refrigerated condition and use a thermometer to ensure that the internal temperature of any meat and fish products is and remains at or below 41 degrees Fahrenheit.

To maintain the integrity and quality of food products, we strongly recommend that you immediately refrigerate all perishable items upon delivery. In the unlikely event a fresh food product arrives at a temperature above 41 degrees Fahrenheit, you should contact our customer service and discard the item.

Products are solely at your risk from the time of delivery. You, and not Marley Spoon, are solely responsible for the proper and safe washing, preparation, storage, and cooking of the meals following delivery. Marley Spoon recommends that all cooking instructions specified be followed, and that all meats, poultry, and seafood are cooked to the USDA recommended internal temperatures (165 degrees Fahrenheit for poultry; 160 degrees Fahrenheit for ground meats; 145 degrees Fahrenheit for whole meats; 145 degrees Fahrenheit for seafood). Additionally, all fresh produce should be washed prior to using.

To receive delivery, you must live in a residential apartment or home, or receive permission from employer or business owner to receive shipments from a business address. Shipments may not be scheduled to business addresses for Saturday deliveries. Additionally, after your second order with Marley Spoon you may elect an alternate receiver located within or near your building or home to accept your delivery. This alternate receiver may accept your goods when you are not present at the time for delivery and shall accept the goods under all of the same terms and conditions that would apply had you accepted the delivery yourself. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. If you, your doorman, and your alternate receiver are not present, we will use commercially reasonable efforts to contact you. In certain areas, Marley Spoon may offer unattended delivery.

If something is missing from your order, please call our Customer Service department at 866-228-4513 or email us at contact@marleyspoon.com.

In the case of inclement weather or unforeseen delivery complications, it may be necessary to make adjustments to our delivery schedule, which will cause us to suspend chosen delivery dates and times. If there will be a significant delay, a customer service representative may call or e-mail you to let you know the status of your delivery time. We will deliver your order as quickly as possible when the conditions permit. If your designated delivery location (i.e., street, avenue) or day is inaccessible, rendering us unable to make the delivery, we will contact you to determine the best alternate location and/or date.

7. Product Substitutions

At times, Marley Spoon may substitute meal ingredients due to market conditions outside of our control or product quality that is below our standards. In cases of ingredient substitutions, any modifications to cooking instructions will be communicated to the customer.

8. Dietary Preferences and Restrictions

Marley Spoon does not guarantee the accuracy of any nutritional information provided by Marley Spoon. Marley Spoon will not be responsible for any loss or damage resulting from your reliance on nutritional information, nor for ensuring that whatever foods you purchase, prepare, and consume are in accordance with your respective dietary needs or restrictions. Marley Spoon stores, portions, and packs meals containing all eight (8) major US allergens (milk, wheat, egg, soy, fish, shellfish, peanuts, and treenuts). Although Marley Spoon takes precautions to limit the potential for cross-contamination, cross-contamination may occur between food products, allowing meals to contain any or all of these allergens.

9. Credit Card Payment

Marley Spoon reserves the right to execute a $1 authorization or temporary charge on your credit card to verify that your account is valid and that the information you provide to Marley Spoon is correct. This authorization does not cost you anything and will expire in a few days (debit card authorizations typically expire in 24-48 hours depending on your bank’s rules). If you experienced trouble enrolling with Marley Spoon, you may see multiple $1 authorizations. These multiple charges (up to $5) will expire in a few days.

Your credit/debit card will be charged for your order immediately upon checkout. Marley Spoon will not process orders that attempt to use an incorrect, expired, or over-the-limit credit card. We will make our best efforts to contact you if this occurs. However, in the event such an order is processed, Marley Spoon reserves the right to collect funds for any uncollected transactions owed to it. Marley Spoon may charge a fee of $2 per order should a payment made via credit card be declined resulting in the need for alternate payment or exception processing. If you fail to pay any fees or charges when due or if a redelivery fee or restocking fee is imposed, Marley Spoon may charge such amount directly to the credit card identified in your Customer Account Information and Marley Spoon may suspend or terminate your access to the Marley Spoon Service. You shall be responsible and liable for any fees, including attorneys’ fees and collection costs, that Marley Spoon may incur in its efforts to collect any unpaid balances from you. Your right to use the Marley Spoon Service is subject to limits established by Marley Spoon and/or by your credit card issuer.

Marley Spoon is unable to accept checking account transactions, paper checks, food stamps, or third-party coupons at this time.

10. Third-Party Information Providers and Merchants

In certain cases, the Marley Spoon Service may permit you to order and receive products, information, and services from businesses that are not owned or operated by Marley Spoon. In such instances, Marley Spoon acts only as the link between you and such businesses. The purchase, payment, warranty, guarantee, delivery, maintenance, and all other matters concerning the merchandise, services, or information ordered or received from such businesses are covered by their customer agreement and policies and solely between you and such businesses. Marley Spoon makes no representations or warranties of any kind, express or implied, regarding the merchandise, services, or information received from such third parties and the fact that Marley Spoon makes such products, information, and services available should not be construed as an endorsement of the businesses or the products, services, and information they provide.

11. Promotions

From time-to-time, Marley Spoon offers Promotions by and through the Site, Marley Spoon food truck(s) or other means. By providing true and accurate information in connection with the applicable Promotion registration form(s) and agreeing to the Contest Rules applicable to each Promotion, end-users can obtain, or attempt to obtain, a chance to win the prize(s) and other awards offered through each Promotion, if any. Each end-user understands and agrees that Marley Spoon shall not be liable to such end-user or any third party for any claim in connection with that end-user’s participation in any of the Promotions.

12. Vouchers and Gift Cards

12.1 We may offer gift cards, discount promotions and other types of vouchers (Voucher) which require to be activated by email application in order for the holder to commence delivery of Products. If paid for, the Voucher is deemed to have been sold at the time of payment for it. All of these terms and conditions shall become applicable as between us and you when you redeem the Voucher by purchasing a Product.

12.2 Any Voucher may only be used once by you and may not be copied, reproduced, distributed or published either directly or indirectly in any form or stored in a data retrieval system without our prior written approval. Only one voucher is allowed to be applied per order.

12.3 We reserve the right to withdraw or cancel any Voucher (other than a paid-up gift card) for any reason at any time.

12.4 Vouchers may only be redeemed through the Site and not through any other website or method of communication. To use your Voucher you will be required to enter its unique code at the online checkout and use of such code will be deemed to confirm your agreement to these terms and conditions and any special conditions attached to the Voucher.

12.5 Any discounts attached to Vouchers apply to the price of the Products ordered only and not to delivery charges, which will be chargeable at normal rates.

12.6 We reserve the right to exclude the use of voucher codes on specific products.

13. License and Proprietary Rights

13.1 Copyright and Ownership.
All Site Content, design, text, graphics, and interfaces; the collection, selection, and arrangement thereof; and all software are the property of, or duly licensed to, Marley Spoon. Consent is granted to view, electronically copy, and print in hard copy portions of this Site for the sole purpose of placing an order with Marley Spoon for your use. Any other use of materials on this Site, including modification, distribution, or reproduction for purposes other than those noted above, without the prior written permission of Marley Spoon is strictly prohibited. You acknowledge that Marley Spoon and/or third-party content providers remain the owners of such material and that you do not acquire any of those ownership rights by downloading copyrighted material. Marley Spoon reserves the right to revoke this authorization at any time, and any use shall be discontinued immediately on written notice from Marley Spoon.

13.2 Trademarks
“Marley Spoon,” all Marley Spoon logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of MMM Consumer Brands Inc. or its affiliates or otherwise proprietary to MMM Consumer Brands Inc. or its affiliates and may not be used by you for any reason other than as expressly permitted by the Agreement. All other trademarks, service marks, product names, and company names or logos appearing by and through the Marley Spoon Offerings are the property of their respective owners and you do not acquire any ownership rights in such marks, logos, or names by using this Site or the Marley Spoon Service.

14. Access to the Marley Spoon Service

14.1 Access
You will provide all equipment and services and be responsible for all data, telephone and other charges necessary to access the Marley Spoon Service and the Site. You agree to comply with all laws applicable to your activities on the Marley Spoon Site and with the terms of the Agreement. You hereby represent that you are an adult (18 years or older) and have the power and authority to enter into the Agreement and perform your obligations hereunder.

You acknowledge that from time to time the Marley Spoon Service or this Site may be inaccessible or inoperable for any reason, including, without limitation:

i. equipment malfunctions;
ii. periodic maintenance procedures or repairs which Marley Spoon may undertake from time to time; or
iii. causes beyond the control of Marley Spoon or which are not reasonably foreseeable by Marley Spoon.

14.2 ID Number and Passwords
Access to the Marley Spoon Service is accomplished through the use of a registered email address and a password that you choose upon registration.You are solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility of the upkeep and maintenance of an accurate and active email address for access to the Site and receipt of transactional or marketing email communication. You agree to bear all responsibility for the confidentiality of your password and all use or charges incurred from use of the Marley Spoon Service with your password. You agree to notify Marley Spoon promptly of any unauthorized use of your password and you will remain liable for any use of the Marley Spoon Service until you notify Marley Spoon.

14.3 Your Account
You are responsible for, and agree to pay promptly, all charges to your account, including applicable taxes and purchases by you or anyone you allow to use your account and password to access the Marley Spoon Service. You agree and accept responsibility for keeping all your account information current, including address, payment information, telephone number, e-mail address, and, if applicable, alternate receiver for your order. You can update your information in the Account area on our Site or contact our Customer Service department. Please do not send credit card or other payment information via email. You agree that you will not provide fraudulent information and that you are solely responsible for any information you provide to Marley Spoon, and accept responsibility for all activities that occur under your account or password and for restricting access to your computer. You will comply with all laws applicable to your activities associated with the Marley Spoon Offerings and with the Agreement.

Marley Spoon’s secure server encrypts your payment information so that it cannot be read as the information travels over the Internet. Once we receive your payment information, it is stored in our secure data center. Marley Spoon will exercise commercially reasonable efforts to ensure that your payment information remains confidential, and is available only to personnel who have a need to know such information in connection with providing you the Marley Spoon Service. When our registration/order form asks users to enter sensitive information (such as credit card number), that information is encrypted and is protected with encryption software. Our Site encrypts your credit card and bank account number prior to transmission over the Internet using secure socket layer (SSL) encryption technology.

14.4 Corrections
If you would like to update or correct information previously provided to us, please send an e-mail with your new information to contact@marleyspoon.com, or you may update your account information yourself by going to your Account page on the Marley Spoon Site. Please do not send credit card or other payment information via email.

14.5 Privacy Policy
Please review our Privacy Policy, which also governs your visit to the Marley Spoon Site and use of the Marley Spoon Service, to understand our practices.

15. Acceptable Use Policy

You are solely responsible for any and all acts and omissions that occur under your account or password, and you agree not to engage in unacceptable use of the Marley Spoon Service, which includes, without limitation, use of the Marley Spoon Service to:

a. disseminate or transmit unsolicited messages, chain letters, or unsolicited commercial e-mail;
b. disseminate or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, grossly offensive, vulgar, threatening, or malicious;
c. disseminate or transmit files, graphics, software, or other material that actually or potentially infringes the copyright, trademark, patent, trade secret, or other intellectual property right of any person;
d. create a false identity or otherwise attempt to mislead any person as to the identity or origin of any communication;
e. export, re-export, or permit downloading of any message or content in violation of any export or import law, regulation, or restriction of the United States and its agencies and authorities, or without all required approvals, licenses, or exemptions;
f.interfere with, disrupt, or attempt to gain unauthorized access to other accounts on the Marley Spoon Service or any other computer network;
g. disseminate or transmit viruses, Trojan horses, or any other malicious code or program; or
h. engage in any other activity deemed by Marley Spoon to be in conflict with the letter or intent of the Agreement.

16. Warranty Disclaimer; Limitation of Liability; Indemnification

YOU EXPRESSLY AGREE THAT USE OF THE MARLEY SPOON SERVICE, THE SITE, AND THE INTERNET IS ENTIRELY AT YOUR OWN RISK. THE MARLEY SPOON SERVICE, THE SITE, AND ITS CONTENTS ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, MARLEY SPOON DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE MARLEY SPOON SERVICE, THE SITE, OR ITS CONTENTS OR WITH RESPECT TO ANY INFORMATION, SERVICES, AND PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THE MARLEY SPOON SERVICE; MARLEY SPOON DOES NOT ADOPT ANY REPRESENTATION OR WARRANTY OF ANY MANUFACTURER OR MERCHANT OF ANY SUCH INFORMATION, SERVICE, OR PRODUCTS. MARLEY SPOON MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND AS TO THE AVAILABILITY, ACCURACY, OR CONTENT OF ANY INFORMATION, SERVICES, OR PRODUCTS OBTAINED THROUGH THE SITE OR THE MARLEY SPOON SERVICES. MARLEY SPOON DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

NEITHER MARLEY SPOON NOR ANY OF ITS DIRECTORS, EMPLOYEES, SHAREHOLDERS, AFFILIATES, AGENTS, REPRESENTATIVES, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS, OR LICENSORS (COLLECTIVELY, “MARLEY SPOON PARTIES”) SHALL BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, COMPENSATORY, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES; LOSS OF DATA, INCOME, OR PROFIT; OR LOSS OR DAMAGE TO PROPERTY, ARISING OUT OF OR IN CONNECTION WITH THE USE OF, OR THE INABILITY TO USE, THE SITE, THE MARLEY SPOON SERVICE, OR THE INTERNET. MARLEY SPOON’S LIABILITY SHALL BE LIMITED TO PROVIDING YOU WITH A REFUND FOR ANY PRODUCT THAT IS RETURNED. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE MARLEY SPOON SERVICE AND TO TERMINATE THE AGREEMENT. MARLEY SPOON RESERVES THE RIGHT TO LIMIT YOUR ORDER OR THE QUANTITY OF A SPECIFIC PRODUCT YOU MAY ORDER. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES OR OF IMPLIED WARRANTIES, IN SUCH STATES AND JURISDICTIONS LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

The material in the Site is provided for lawful purposes only. Marley Spoon operates this Site for use in specific jurisdictions where it provides its Services, and makes no representation that these materials are appropriate or available for use in other locations. If you use the Site from other locations, you are responsible for compliance with applicable local laws. Price and availability information is subject to change without notice and may vary geographically.

You agree to defend, indemnify, and hold Marley Spoon Parties harmless from any and all suits, actions, legal or administrative proceedings, claims, demands, damages, liabilities, and expenses, including attorney’s fees and costs, arising in connection with a violation of the Agreement by you or through use of your account.

17. Dispute Resolution Provisions; Waiver of Class Actions, Class Arbitrations and Representative Actions

This Agreement is governed by the internal substantive laws of the State of New York, without respect to its conflict of laws provisions. You expressly and irrevocably agree:

a. to submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of New York; and
b. that the Platform and the Services shall be deemed passive that do not give rise to personal jurisdiction over Marley Spoon, either specific or general, in jurisdictions other than the State of New York.

YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE MEALS, THE PLATFORM, OR THE SERVICES MUST BE COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Payment,” “Intellectual Property,” “Communications to Us; User Content,” “Warranty Disclaimer and Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” and “Miscellaneous.”

Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, this Agreement constitutes the entire Agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

For any dispute arising from or relating in any way to the Site, content, products or offerings by Marley Spoon, you and Marley Spoon agree that such dispute will be resolved through arbitration on an individual basis, and you and Marley Spoon give up any right to bring such dispute as a class action, class arbitration or other representative action. Neither you nor Marley Spoon are entitled to join or consolidate claims by or against other individuals in court or in arbitration or otherwise participate in any claim or dispute as class representative or representative of another individual or group of individuals, or in a private attorney general capacity. The arbitrator has no power to consider the enforceability of this class action waiver and any challenge to the class action waiver may only be raised in a court of competent jurisdiction. The interpretation and enforceability of this Section will be governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq., to the fullest extent permitted by law.

18. Miscellaneous

Termination. The Agreement is effective upon your acceptance as set forth herein and shall continue in full force and effect until terminated. Marley Spoon may suspend or terminate the Agreement or the Marley Spoon Service or remove or disable access to any portion of the Marley Spoon Service at any time for any reason with or without notice to you. You may terminate your Marley Spoon Service account at any time for any reason by delivering notice in the manner provided below, which termination will be effective the day notice is received or such later date specified in the notice. Marley Spoon reserves the right to collect fees and charges incurred before you cancel your Marley Spoon Service account. In addition, you are responsible for any charges incurred to third-party vendors or content providers prior to your cancelation.

Notices. Marley Spoon may give notice to you of any change or any other communication related to the Agreement through a general posting on the Marley Spoon Site, by electronic mail, or by conventional mail to your address contained in the Customer Registration Data. You may give notice to Marley Spoon by telephone at 866-228-4513, by electronic mail (as specified in the “About” section of the Marley Spoon Web site), or by conventional mail to:

MMM Consumer Brands, Inc., 519 8th Avenue, 19th floor, New York, NY 10018, Attention: CUSTOMER CARE.

Entire Agreement. The Agreement represents your entire agreement with Marley Spoon regarding the use of the Marley Spoon Service and the Marley Spoon Site. You agree that the Agreement is not intended to confer and does not confer any rights or remedies upon any person other than you, Marley Spoon, and Marley Spoon Parties. If any portion of the Agreement is held invalid or unenforceable, that portion shall be construed in accordance with applicable law as nearly as possible to reflect the original intention of the parties, and the remainder of the Agreement shall remain in full force and effect. The failure of either party to insist upon strict performance of any provision of the Agreement shall not be construed as a waiver of any provision or right. The Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws rules. You expressly agree that exclusive jurisdiction for any claim or dispute with Marley Spoon or relating in any way to your use of the Marley Spoon Service or the Marley Spoon Site resides in the federal and state courts of New York and you further expressly consent and agree to personal jurisdiction by the state and federal courts sitting in the State of New York in connection with any such dispute, including any claim involving Marley Spoon Parties. Any cause of action by you must be instituted within one year after the claim or cause of action has arisen, or it shall be barred.

Third-Party Beneficiaries. The provisions of the Agreement are for the benefit of Marley Spoon Parties, and each shall have the right to assert and enforce the provisions directly on their own behalf. The Agreement and all obligations and restrictions placed upon you or your permitted users by the Agreement shall survive termination of the Agreement and your Marley Spoon Service account.

Promotional Emails. As a registered Marley Spoon user, you agree to receive promotional emails from Marley Spoon. These promotional emails may include but are not limited to: weekly menus, promotional offers, membership information or affiliate offers. Marley Spoon will never sell, rent or share your email address except to the limited extent set forth in the Privacy Policy or otherwise in the Agreement.

19. ADDITIONAL TERMS FOR CUSTOMERS ENROLLED IN AUTOMATIC SHIPMENTS ONLY

a. Automatic Shipments

i. Ongoing Automatic Shipments. Your Marley Spoon automatic shipments, which may start with a free trial, will continue week-to-week unless and until you cancel your automatic shipment subscription or we terminate it. You must have Internet access and provide us with a current, valid, accepted method of payment (as such may be updated from time to time, “Payment Method”) to enroll in the Marley Spoon automatic shipment service. We will bill the weekly shipments to your Payment Method.

ii. Differing Memberships. We may offer a number of membership plans, including special promotional plans or memberships with differing conditions and limitations. Any materially different terms from those described in the Agreement will be disclosed at your sign-up or in other communications made available to you. You can find specific details regarding your membership with Marley Spoon by visiting our Site and visiting your Account page. Some promotional memberships are offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties. We reserve the right to modify, terminate or otherwise amend our offered membership plans.

b. Free Trials

i. Your Marley Spoon membership may start with a free trial. The free trial period of your membership lasts for one week, or as otherwise specified during sign-up. Free trials may not be combined with any other offers. Free trials are for new and certain former members only. Marley Spoon reserves the right, in its absolute discretion, to determine your free trial eligibility and will notify offenders of any perceived fraudulent activity which may result in, but is not limited to, order and/or membership cancelation.

ii. We will begin billing your Payment Method for weekly automatic shipment fees at the end of the free trial, or as specified at the beginning of your enrollment, unless you cancel prior to the end of the free trial period. Marley Spoon will send email communication 10 days prior to your billing date. We reserve the right to authorize your Payment Method through various methods, including authorizing it up to approximately one month of service as soon as you register. In some instances, your available balance or credit limit may be reduced to reflect the authorization during your free trial period.

In the event that the email address provided is inaccurate or outdated, you will not receive a notice from us that your free trial period has ended or that the paying portion of your membership has begun. Click on your account page at www.marleyspoon.com to find cancellation instructions or email our customer service department at contact@marleyspoon.com. We will continue to bill your Payment Method on a monthly basis for your membership fee until you cancel. Providing a full and accurate email address to receive notifications is your responsibility, and Marley Spoon is not liable for any fees incurred due to undelivered email communication.

c. Billing

i. Recurring Automatic Shipment Billing. By starting Marley Spoon automatic shipments, you authorize us to charge you a weekly fee at the then current rate, and any other charges you may incur in connection with your use of the Marley Spoon service to your Payment Method. You acknowledge that the amount billed each month may vary from month to month for reasons that may include differing amounts due to promotional offers and/or changing or adding additional plates to automatic shipments, and you authorize us to charge your Payment Method for such varying amounts, which may be billed weekly in one or more charges.

ii. Weekly Order Processing. When you sign up for automatic shipments, your payment method will automatically be billed each week until you cancel it, and you are enrolled to receive shipments each week (“Weekly Delivery”). You may skip a Weekly Delivery or cancel your membership at any time (see Cancellation below). You are fully responsible for all activities that occur under your account, and you agree to be personally liable for all charges incurred under your account. Your liability for such charges shall continue after termination of the Agreement. Skipping Weekly Deliveries and/or order cancellation requests require advanced notice to Marley Spoon, as set forth more specifically via email communication. If you miss these deadlines, you will be responsible for paying the applicable amount, and the cancellation will take effect the next week.

iii. Price Changes. We reserve the right to adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in the Agreement, any price changes to your service will take effect following notice to you such as – for instance – by email or a notice posted on our Site. Your continued ordering after the date of such notice will be deemed acceptance of such changes.

iv. Billing Cycle. The automatic shipment fees for our service will be billed at the beginning of the paying portion of your enrollment and each week thereafter unless and until you cancel your frequency preferences. We automatically bill your Payment Method every 7 days. Automatic shipment fees are fully earned upon payment. We reserve the right to change the timing of our billing, in particular, as indicated below, if your Payment Method has not successfully settled, or if we change the cutoff time as described at section 3.4. If we change the time of our billing for the latter of these two reasons, we will give you 7 days’ advance notice before the first effected cutoff time. Visit our Site and click on the “Membership” link on the “Your Account” page to see the next delivery date. We may authorize your Payment Method in anticipation of membership or service-related charges. As used in these Terms of Use, “billing” shall indicate a charge, debit or other payment clearance, as applicable, against your Payment Method. Unless otherwise stated differently, month or monthly refers to your billing cycle.

v.Payment Methods. You may edit your Payment Method information by visiting our Site and “My Account”, available at the top of the pages of the Site. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your account (see, “Cancellation” below), you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates.

vi. Cancellation. You may cancel your Marley Spoon automatic shipment enrollment at any time. To cancel, go to the “Settings” link on your Account page and select “Stop subscription” or email us at contact@marleyspoon.com.

20. ADDITIONAL TERMS FOR CORPORATE SERVICES CUSTOMERS ONLY

This section applies to Marley Spoon Corporate Services Customers only; if any terms in this section are inconsistent with any terms above, the terms of this section shall apply with respect or Corporate Services Customers. All other terms of the Customer Agreement, above, apply to Corporate Services Customers.

20.1 Marley Spoon Service
Ordering through the Site. Delivery is available on select holiday weekdays, depending on your shipping zip code. Orders must be received before the posted cutoff time for a given delivery. Available delivery windows and associated delivery charges and promotions will be shown as you proceed through the ordering process. Subject to our cutoff extension right pursuant to Section 3.4, you can (a) place your order any time, up to 5 days before your delivery date and (b) modify an existing order (including the addition or deletion of items, a change in the time or delivery date, and the cancellation of your order) via the Web (in the “My Account” section of the Site) up until the posted cutoff time for that delivery. You may cancel orders via the “My Account” section of the Site or by contacting Customer Care at 866-228-4513 during posted hours. Please see the Help section of the Site for Customer Care hours. However, modified orders are subject to price changes and a change of a delivery date may not guarantee the availability of your desired items. Cancellation of orders after the required cut-off time will result in a restocking fee equal to the fees described in the main Customer Agreement.

To receive delivery, your requested delivery destination must be in a commercial building where Marley Spoon is permitted to make deliveries and you or an alternate receiver must be present to receive your order from our driver during your selected delivery window. This alternate receiver can accept your goods when you are not present at the time you had selected for delivery and shall accept the goods under all of the same terms and conditions that would apply had you accepted the delivery yourself. Anyone at the delivery address who receives the delivery is conclusively presumed to be authorized to receive the delivery. If you and your alternate receiver are not present during your selected delivery window, we will use commercially reasonable efforts to contact you and reschedule delivery for that day. In such case, if we are unable to redeliver the order to you for any reason, the order will be canceled and you will be charged a fee as described above.

20.2 Access to the Marley Spoon Service
ID Number and Passwords. Access to the Marley Spoon Service is accomplished through the use of a user name and a password that will be issued to you upon registration. If you are a Corporate Services customer, before your registration is complete, Marley Spoon will need to verify your address for delivery. You are solely responsible for any authorized or unauthorized access to your account by any person. You agree to bear all responsibility for the confidentiality of your password and all use or charges incurred from use of the Marley Spoon Service with your password. You agree to notify Marley Spoon promptly of any unauthorized use of your password and you will remain liable for any use of the Marley Spoon Service until you notify Marley Spoon of the unauthorized use of your password.