Terms and Conditions - HelloFresh Canada Inc.
1. INFORMATION ABOUT US
1.1 In these terms and conditions, the words “we”, “us”, “our” and similar expressions refer to HelloFresh Canada Inc., a British Columbia company, whose head office address is at 110 Spadina Avenue, Unit 201, Toronto, Ontario, Canada. M5V 2K4.
2. SERVICE AVAILABILITY
2.1 Our Site, web applications and mobile applications are only intended for use by people residing in selected parts of British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland (Serviced Territory). We do not accept orders from individuals outside the Serviced Territory.
3. YOUR STATUS
By placing an order through our Site, web applications or mobile applications, as applicable, you warrant that:
3.1 You are legally capable of entering into binding contracts; and
3.2 You are at least 18 years old;
3.3 You are resident in the Serviced Territory; and
3.4 You are accessing our Site, web applications or mobile applications, as applicable, from the Serviced Territory.
4. HOW THE CONTRACT IS FORMED BETWEEN YOU AND US
4.1 After placing an order through our standard order form on our Site, web applications or mobile applications, as applicable, you will receive an e-mail from us acknowledging that we have received your order (Acknowledgement). Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy Products by subscribing to a Service, subject to these terms and conditions. All orders are subject to acceptance by us, and we will confirm such acceptance to you by sending you an e-mail that confirms that your order has been accepted (Confirmation). We may choose not to accept any orders in our sole discretion. The contract between us (Contract) will only be formed when we send you the Confirmation. Note that the Acknowledgement and the Confirmation may be contained in the same email.
4.2 The Contract will relate only to those Products whose dispatch we have confirmed in the Confirmation. We will not be obliged to supply any other Products that may have been part of your order until the dispatch of such Products has been confirmed in a separate Confirmation.
4.3 THE SUBSCRIPTION PLAN TO OUR SERVICES CONSISTS OF AN INITIAL CHARGE FOLLOWED BY RECURRING PERIOD CHARGES AS AGREED TO BY YOU. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION HAS AN INITIAL AND RECURRING PAYMENT FEATURE AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO DEACTIVATION. HELLOFRESH MAY SUBMIT PERIODIC CHARGES (E.G., WEEKLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE ADVANCE NOTICE THAT YOU WISH TO TERMINATE THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE HELLOFRESH REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, LOG ON TO YOUR HELLOFRESH ACCOUNT OR EMAIL HELLO@HELLOFRESH.CA.
4.4 BY SUBSCRIBING TO OUR SERVICES YOU ARE AGREEING TO PAY RECURRING PERIODIC SUBSCRIPTIONS FOR AN INDEFINITE TIME UNTIL DEACTIVATED BY YOU OR US, ON THE SUBSCRIPTION TERMS SET OUT IN THE APPLICATION FORM YOU HAVE COMPLETED, SUBJECT TO VARIATION IN ACCORDANCE WITH SECTION 4.5 BELOW. YOU CAN DEACTIVATE YOUR SUBSCRIPTION AT ANY TIME, PROVIDED THAT YOU DO SO WITHIN THE APPLICABLE DEACTIVATION NOTICE PERIOD, AS DEFINED IN SECTION 6.1. YOU WILL NOT BE CHARGED FOR ANY DEACTIVATION. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR DEACTIVATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE A SUBSCRIPTION BY YOU.
4.5 AUTO-RENEWAL. FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME LENGTH, AT THE THEN-CURRENT NON-PROMOTIONAL SUBSCRIPTION RATE. TO DEACTIVATE YOUR SUBSCRIPTION, YOU MUST EMAIL HELLO@HELLOFRESH.CA AND WE WILL DO IT FOR YOU. IF YOU DEACTIVATE, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. HOWEVER, YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
4.6 We reserve the right at our absolute discretion not to renew your subscription at any time without giving any reasons for our decision.
5. VOUCHERS AND GIFT CARDS
5.1 We may offer gift cards, discount promotions and other types of voucher (Voucher) which require to be activated by online application in order for the holder of the Voucher (Holder) to receive delivery of Products through a Service. 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 the Holder upon the earlier of (a) payment for the Voucher, if applicable; and (b) when the Holder redeems the Voucher by applying for a Service to commence.
5.2 A Voucher may only be used once by its Holder 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.
5.3 We reserve the right to withdraw or deactivate any Voucher (other than a paid-up gift card) for any reason at any time.
5.4 Vouchers may only be redeemed through our Site, web applications or mobile applications 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.
5.5 Any discounts attached to Vouchers apply to the price of the Products ordered only and not to delivery charges, if any, which will be chargeable at normal rates.
6. CONSUMER RIGHTS
6.1 If you are contracting as a consumer, and select to receive delivery on a weekday, you may deactivate your Contract at any time before Wednesday at 11:59PM ET the week before your next scheduled Monday-Friday delivery. You will receive a full refund of the price paid for the Products in accordance with our refunds policy (set out in clause 10 below). 6.2 To deactivate a Contract, you email Hello@hellofresh.ca stating that you wish to terminate your Contract and your full name and registered email address.
8. RISK AND TITLE
8.1 The Products are sold “FOB Destination, Freight Prepaid and Added”, at your specified delivery address.
8.2 Transfer of title and risk occurs when the Products arrive and are delivered at your specified delivery address.
8.3 The Products will be at your risk from the time of delivery at your specified delivery address.
8.4 To maintain the integrity of Products after delivery, we recommend that you immediately refrigerate or freeze perishable items.
9. PRICE AND PAYMENT
9.1 The price of the Products and our delivery charges, if any, will be as quoted on our Site, web applications or mobile applications from time to time, except in cases of obvious error. We are not responsible for pricing, typographical or other errors in any offer by us and we reserve the right to cancel any orders arising from such errors.
9.2 Product prices include applicable taxes.
9.3 Product prices and delivery charges, if any, are liable to change at any time, but changes will not affect orders in respect of which we have already sent you a Confirmation.
9.4 Payment for all Products and Services must be by credit card or PayPal. We accept payment with American Express, Visa, Mastercard, and via PayPal. We reserve the right to change the payment methods we accept at any time. We will not charge your credit card or PayPal account for a weekly delivery until after the deactivation deadline for such weekly delivery, with the exception of your first delivery under one of our Services which may occur immediately following your initial subscription to said Service.
9.5 You represent and warrant that (i) the payment information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card or PayPal account for your purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including all applicable taxes, if any.
10. OUR REFUNDS POLICY
10.1 If you refuse a Product from us:
10.1.1 Because you have deactivated the Contract between us within the applicable notice period (see clause 6.1 above), we will process the refund due to you as soon as possible and, in any case, within 30 days of the day you gave notice of deactivation. In this case, we will refund the price of the Product in full, and any applicable delivery charges.
10.1.2 For any other reason (for instance, because you have notified us in accordance with clause 21 that you do not agree to a change in these terms and conditions or in any of our policies, or because you consider that the Product is defective), we will notify you of your refund, if any, via phone or e-mail within a reasonable period of time. We will usually process the refund due to you as soon as possible and, in any case, within 30 days of the day we confirmed to you via phone or e-mail that you were entitled to a refund. If all or part of a Product (Defective Item) is defective, we will credit you an amount equivalent to the value of the Defective Item towards a future purchase, including any applicable delivery charges and any reasonable costs you incur in refusing the Defective Item. 10.2 We will usually refund any money received from you using the same method originally used by you to pay for your purchase.
11. LIMITED WARRANTY AND DISCLAIMER
We warrant to you that any Product purchased from us through our Site, web applications or mobile applications will, on delivery, conform with its description, be of satisfactory quality, and be reasonably fit for all the purposes for which products of that kind are commonly supplied.
Our responsibility for defective Products is limited to replacement or refund. Our responsibility for defective Services is limited to re-performance or refund.
THE REMEDIES DESCRIBED ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY, AND WE DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. OUR LIABILITY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT PAID BY YOU FOR THE DEFECTIVE PRODUCT OR SERVICE THAT YOU HAVE PURCHASED FROM US, NOR WILL WE UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES, WHETHER DIRECT OR INDIRECT.
12. OUR LIABILITY
12.1 If we fail to comply with these terms and conditions we shall only be liable to you for, at most, the purchase price of the Products. 12.2 Nothing in this agreement excludes or limits our liability for any matter for which it would be illegal for us to exclude or attempt to exclude our liability.
12.3 You agree to defend, indemnify and hold harmless us, our affiliates and licencors and their respective affiliates, and each of their directors, officers, agents, contractors, partners, representatives and employees, from and against any loss, liability, threatened or actual claim, demand, damages, costs and expenses, including reasonable legal fees, arising out of or in connection with your breach of these terms and conditions or your violation of any law or the rights of any third party with respect to the Site, our web and mobile applications, the Products or the Services. We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you here-under, and you shall cooperate as fully as reasonably required by us.
13. WRITTEN COMMUNICATIONS
Applicable laws require that some of the information or communications we send to you should be in writing. When using our Site, web applications or mobile applications you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website or via our web applications or mobile applications in our sole discretion. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
All notices given by you to us must be given to HelloFresh Canada Inc. at email@example.com. We may give notice to you at either the e-mail or postal address you provide to us when placing an order, or in any of the ways specified in clause 13 above. Notice will be deemed received and properly served immediately when posted on our Site, 24 hours after an e-mail is sent, or on the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
15. TRANSFER OF RIGHTS AND OBLIGATIONS
15.1 The contract between you and us is binding on you and us and on our respective successors and assignees. 15.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent. 15.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract.
15.4 These terms and conditions do not and are not intended to confer any rights or remedies upon any person other than you.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 We are the owner or the licensee of all intellectual property rights in our Site, web applications and mobile applications whether registered or unregistered, and in the material published on it. These works are protected by copyright laws and all such rights are reserved.
16.2 You may print off one copy, and may download extracts, of any pages from our Site, web applications and mobile applications for your personal reference. You must not use any part of our copyright materials for commercial purposes without first obtaining a license to do so from us and our licencors.
16.3 If you post comments or reviews on the Products or Services to any website, blog or social media network (Commentary) you must ensure that such Commentary represents your fairly-held opinions. By subscribing to the Services you irrevocably authorize us to quote from or repost your Commentary on our Site, web applications and mobile applications and in any advertising or social media outlets that we may create or contribute to.
17. EVENTS OUTSIDE OUR CONTROL
17.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (Force Majeure Event).
17.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
17.2.1 Strikes, lock-outs or other industrial action; 17.2.2 Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
17.2.3 Fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
17.2.4 Impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
17.2.5 Impossibility of the use of public or private telecommunications networks; and
17.2.6 The acts, decrees, legislation, regulations or restrictions of any government.
17.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavors to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
17.4 Availability and Delivery. Your order will be fulfilled by the delivery date set out in the Confirmation or, if no delivery date is specified, then within 30 days of the date of the Confirmation, absent the occurrence of a Force Majeure Event. In the event of a Force Majeure Event, we are not liable for the cost of any compromised or failed deliveries; however, we reserve the right to refund you for all or part of any such compromised or failed deliveries as we see fit.
18.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these terms and conditions, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this will not constitute a waiver of such rights or remedies and will not relieve you from compliance with such obligations. 18.2 A waiver by us of any default will not constitute a waiver of any subsequent default. 18.3 No waiver by us of any of these terms and conditions will be effective unless it is expressly stated to be a waiver and is communicated to you in writing in accordance with clause 13 above.
If any of these terms and Conditions or any provisions of a Contract are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
20. ENTIRE AGREEMENT
20.1 These terms and conditions and any document expressly referred to in them constitute the whole agreement between us and supersede all previous discussions, correspondence, negotiations, previous arrangement, understanding or agreement between us relating to the subject matter of any Contract.
20.2 We each acknowledge that, in entering into a Contract, neither of us relies on any representation or warranty (whether made innocently or negligently) that is not set out in these terms and conditions or the documents referred to in them.
20.3 Each of us agrees that our only liability in respect of those representations and warranties that are set out in this agreement (whether made innocently or negligently) will be for breach of contract. 20.4 Nothing in this clause limits or excludes any liability for fraud.
21. OUR RIGHT TO VARY THESE TERMS AND CONDITIONS
21.1 We have the right to revise and amend these terms and conditions from time to time for any reason including to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system's capabilities. 21.2 You will be subject to the policies and terms and conditions in force at the time that you order Products from us, unless any change to those policies or these terms and conditions is required to be made by law or governmental authority (in which case it will apply to orders previously placed by you), or if we notify you of the change to those policies or these terms and conditions before we send you the Confirmation (in which case we have the right to assume that you have accepted the change to the terms and conditions, unless you notify us to the contrary within seven working days of receipt by you of the Products).
22. LAW AND JURISDICTION
Contracts for the purchase of Products from us and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by Ontario law and the federal laws of Canada applicable therein. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the courts of Ontario. You expressly agree: (i) to submit to the exclusive personal jurisdiction of the courts of Ontario; and (ii) that the Products and the Services shall be deemed passive that do not give rise to personal jurisdiction over HelloFresh, either specific or general, in jurisdictions other than Ontario.