Terms of Use.

Important: please read these Terms of Use carefully before using this website. By accessing or using this website, you agree to be bound by these Terms of Use and all applicable laws and regulations. If you do not agree with any of these terms, you are prohibited from using or accessing this website.

1. Acceptance of Terms

These Terms of Use (“Terms”) constitute a legally binding agreement between you (“User,” “you,” or “your”) and The SmAll Market Technologies LLC., doing business as The Small Market or TSM (“Company,” “we,” “us,” or “our”), governing your access to and use of the website located at www.thesmallmarket.com, including any subdomains, mobile applications, and all related services, features, content, and functionality offered on or through the website (collectively, the “Site”).

By accessing, browsing, or using the Site, you acknowledge that you have read, understood, and agree to be bound by these Terms, as well as our Privacy Policy, which is incorporated herein by reference. If you are using the Site on behalf of an organization, you represent and warrant that you have the authority to bind that organization to these Terms.

We reserve the right to modify, amend, or update these Terms at any time in our sole discretion. Any changes will be effective immediately upon posting the revised Terms on the Site, with the updated “Effective Date” indicated at the top of this page. Your continued use of the Site following the posting of changes constitutes your acceptance of such changes. It is your responsibility to review these Terms periodically for updates.

2. Eligibility

The Site is intended for users who are at least eighteen (18) years of age, or the age of majority in your jurisdiction of residence, whichever is older. By using the Site, you represent and warrant that you meet this eligibility requirement. If you are under the age of eighteen (18), you may only use the Site under the supervision of a parent or legal guardian who agrees to be bound by these Terms.

In compliance with the Children’s Online Privacy Protection Act (“COPPA”), we do not knowingly collect, use, or disclose personal information from children under the age of thirteen (13). If we become aware that we have collected personal information from a child under 13 without verifiable parental consent, we will take steps to delete such information promptly. If you believe that we may have collected information from a child under 13, please contact us immediately using the information provided in Section 22.

3. User Accounts

Certain features of the Site, including but not limited to online ordering, loyalty or rewards programs, and the TSM mobile application, may require you to create an account. When creating an account, you agree to provide accurate, current, and complete information and to update such information to keep it accurate, current, and complete.

You are solely responsible for maintaining the confidentiality of your account credentials, including your password, and for all activities that occur under your account. You agree to notify us immediately of any unauthorized use of your account or any other breach of security. We will not be liable for any loss or damage arising from your failure to comply with this Section.

We reserve the right to suspend, disable, or terminate your account at any time, with or without notice, for any reason, including but not limited to a violation of these Terms.

4. Permitted Use and Restrictions

Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-transferable, revocable license to access and use the Site for your personal, non-commercial purposes.

4.1 Prohibited Conduct

You agree not to engage in any of the following prohibited activities:

1. (a)Using the Site for any unlawful purpose or in violation of any applicable federal, state, local, or international law or regulation;
2. (b)Reproducing, duplicating, copying, selling, reselling, or otherwise exploiting any portion of the Site, or access to the Site, without our express written permission;
3. (c)Using any automated means, including robots, spiders, crawlers, scrapers, or similar technologies, to access, monitor, or copy any content or data from the Site;
4. (d)Attempting to probe, scan, or test the vulnerability of the Site or any related system or network, or to breach any security or authentication measures;
5. (e)Interfering with or disrupting the integrity or performance of the Site or the servers or networks connected to the Site;
6. (f)Impersonating any person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity;
7. (g)Collecting or harvesting any personally identifiable information from the Site without authorization;
8. (h)Transmitting any viruses, worms, defects, Trojan horses, or other items of a destructive nature;
9. (i)Using the Site to send unsolicited communications, promotions, or advertisements, or to engage in spamming in violation of the CAN-SPAM Act of 2003 (15 U.S.C. § 7701 et seq.);
10. (j)Engaging in any conduct that restricts or inhibits any other user’s use or enjoyment of the Site.

5. Intellectual Property Rights

5.1 Ownership

The Site and its entire contents, features, and functionality, including but not limited to all text, graphics, logos, icons, images, audio clips, video clips, data compilations, software, and the design, selection, and arrangement thereof (collectively, “Content”), are the exclusive property of TSM, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.

5.2 Trademarks

The TSM name, logo, and all related names, logos, product and service names, designs, and slogans are trademarks or trade dress of TSM or its affiliates or licensors. You must not use such marks without our prior written permission. All other names, logos, product and service names, designs, and slogans on the Site are the trademarks of their respective owners.

5.3 Limited License

You may access, download, or print content from the Site solely for your personal, non-commercial use, provided that you keep all copyright, trademark, and other proprietary notices intact. No right, title, or interest in or to the Site or any Content is transferred to you. Any use of the Site not expressly permitted by these Terms constitutes a breach of these Terms and may violate copyright, trademark, and other laws.

6. Digital Millennium Copyright Act (DMCA) Policy

We respect the intellectual property rights of others and expect our users to do the same. In accordance with the Digital Millennium Copyright Act of 1998 (17 U.S.C. § 512) (“DMCA”), we will respond expeditiously to claims of copyright infringement committed using the Site if such claims are reported to our designated copyright agent.

6.1 Filing a DMCA Notice

If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on the Site, you may notify our designated copyright agent. For your complaint to be valid under the DMCA, you must provide the following information in writing:

1. (a)A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright interest;
2. (b)Identification of the copyrighted work claimed to have been infringed;
3. (c)Identification of the material that is claimed to be infringing and information reasonably sufficient to permit us to locate the material on the Site;
4. (d)Your contact information, including address, telephone number, and email address;
5. (e)A statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
6. (f)A statement, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

6.2 Designated Copyright Agent

DMCA notices should be sent to our designated copyright agent at the contact information provided in Section 22. Please mark all DMCA notices with the subject line: “DMCA Copyright Infringement Notice.”

6.3 Counter-Notification

If you believe that your content was removed or disabled by mistake or misidentification, you may submit a counter-notification in accordance with 17 U.S.C. § 512(g). A valid counter-notification must include: identification of the material that was removed; a statement under penalty of perjury that you have a good faith belief that the material was removed by mistake; your name, address, and telephone number; and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or if outside the United States, any judicial district in which the Company may be found.

6.4 Repeat Infringers

In appropriate circumstances, we will disable and/or terminate the accounts of users who are repeat infringers.

7. User-Generated Content

Certain areas of the Site may allow you to post, submit, publish, display, or transmit content, including but not limited to reviews, comments, photographs, feedback, and suggestions (collectively, “User Content”). All User Content must comply with these Terms.

7.1 License Grant

By posting or submitting User Content to the Site, you grant TSM a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, transferable, and sublicensable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, and display such User Content in any media now known or hereafter developed, for any purpose, including commercial purposes, without compensation to you.

7.2 Representations

You represent and warrant that you own or control all rights in and to your User Content; that all User Content complies with these Terms and all applicable laws; and that the User Content will not infringe, misappropriate, or violate any third party’s intellectual property rights, rights of publicity or privacy, or any other proprietary rights.

7.3 Monitoring and Removal

We are not obligated to monitor User Content. However, we reserve the right (but not the obligation) to review, screen, edit, or remove any User Content at our sole discretion, for any reason or no reason, without notice. We assume no liability for any User Content posted by you or any third party.

8. Online Orders and Transactions

The Site, point of Sale, Digital Application or other Digital and physical means may offer the ability to place orders for food and beverage products through ordering functionality, including through the TSM mobile application. We reserve the right to refuse or cancel any order for any reason, including but not limited to product availability, errors in product or pricing information, or suspected fraud.

Prices and availability of products are subject to change without notice. All prices are displayed in U.S. dollars unless otherwise indicated. You agree to pay all charges incurred by you or on your behalf through the Site, including applicable taxes and any delivery or service fees. Payment processing is handled by third-party payment processors. We do not store your full credit card or payment information on our servers.

By placing an order, you represent that you are legally capable of entering into binding contracts under applicable law. The receipt of an order confirmation does not constitute acceptance of your order. We reserve the right to limit quantities purchased per person, per household, or per order.

9. Operators, Franchise Locations and Independent Operators

Many TSM locations may be independently owned and operated by individual operators or franchisees. Each franchisee is an independent business operator and is solely responsible for its own operations, employees, and compliance with applicable laws and regulations. We do not control and are not responsible for the actions, omissions, products, or services of any franchisee. References to “TSM” on the Site may refer to the franchisor, one or more franchisees, or both, as the context may require.

10. Third-Party Links and Services

The Site may contain links to third-party websites, applications, or services that are not owned or controlled by us. We have no control over, and assume no responsibility for, the content, privacy policies, or practices of any third-party websites or services. You acknowledge and agree that we shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods, or services available on or through any third-party websites or services. We strongly recommend that you read the terms and conditions and privacy policies of any third-party websites or services that you visit.

11. Privacy

Your use of the Site is also governed by our Privacy Policy, which is available at www.thesmallmarket.com/privacy and is incorporated into these Terms by reference. Please review the Privacy Policy carefully for information on how we collect, use, share, and protect your personal information. Our Privacy Policy is designed to comply with applicable federal and state privacy laws, including but not limited to the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020 (collectively, “CCPA/CPRA”); the Virginia Consumer Data Protection Act (“VCDPA”); the Colorado Privacy Act (“CPA”); the Connecticut Data Privacy Act (“CTDPA”); the Utah Consumer Privacy Act (“UCPA”); the Texas Data Privacy and Security Act (“TDPSA”); the Oregon Consumer Privacy Act (“OCPA”); the Montana Consumer Data Privacy Act (“MTCDPA”); the Iowa Consumer Data Protection Act; the Indiana Consumer Data Protection Act; the Tennessee Information Protection Act (“TIPA”); and other applicable state privacy and data protection laws as they may be enacted or amended.

12. Electronic Communications and Consent

By using the Site, creating an account, or providing your email address or phone number to us, you consent to receive electronic communications from us, including but not limited to emails, text messages, push notifications, and in-app messages. You agree that all agreements, notices, disclosures, and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing, in accordance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001 et seq.) (“E-SIGN Act”) and the Uniform Electronic Transactions Act (“UETA”) as adopted by applicable states.

You may opt out of receiving promotional communications from us at any time by following the unsubscribe instructions in each communication or by contacting us. Please note that even if you opt out of promotional communications, we may still send you transactional or administrative communications related to your account or orders.

12.1 SMS/Text Messaging Terms

By verbally agreeing during a recorded phone call with our team, you consent to receive text messages from The Small Market at the mobile number you provide. Message frequency varies (typically 1–2 messages per request). Message and data rates may apply. Reply HELP for help or contact us at lucas@thesmallmarket.com. Reply STOP at any time to opt out; you will receive one final message confirming your unsubscription, and no further messages will be sent unless you opt back in by replying START. Carriers are not liable for delayed or undelivered messages.

13. Disclaimers

THE SITE AND ALL CONTENT, PRODUCTS, AND SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE COMPANY AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, AND FRANCHISEES (COLLECTIVELY, THE “COMPANY PARTIES”) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

THE COMPANY PARTIES DO NOT WARRANT THAT THE SITE, ITS CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE SITE OR THE SERVERS THAT MAKE IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THE COMPANY PARTIES DO NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE NUTRITIONAL CONTENT, ALLERGEN INFORMATION, HEALTH BENEFITS, OR SAFETY OF ANY FOOD OR BEVERAGE PRODUCTS DESCRIBED ON THE SITE. ACTUAL PRODUCT OFFERINGS AND INGREDIENTS MAY VARY BY LOCATION. YOU SHOULD VERIFY ALL PRODUCT INFORMATION, INCLUDING ALLERGENS, DIRECTLY WITH THE APPLICABLE LOCATION BEFORE CONSUMING ANY PRODUCTS.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN SUCH CASES, THE ABOVE EXCLUSIONS SHALL APPLY TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.

14. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SITE OR ANY CONTENT, PRODUCTS, OR SERVICES OBTAINED THROUGH THE SITE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, EVEN IF THE COMPANY PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF THE COMPANY PARTIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR INABILITY TO USE THE SITE SHALL NOT EXCEED THE GREATER OF: (A) ONE HUNDRED U.S. DOLLARS ($100.00); OR (B) THE AMOUNTS PAID BY YOU TO THE COMPANY FOR THE USE OF THE SITE DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM AROSE.

SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

15. Indemnification

You agree to defend, indemnify, and hold harmless the Company Parties from and against any and all claims, damages, obligations, losses, liabilities, costs, or expenses (including but not limited to reasonable attorneys’ fees) arising from or related to: (a) your use of the Site; (b) your violation of these Terms; (c) your violation of any third-party right, including any intellectual property, proprietary, or privacy right; (d) any User Content you post or submit; or (e) your violation of any applicable law, rule, or regulation. This indemnification obligation shall survive the termination of these Terms and your use of the Site.

16. Dispute Resolution and Binding Arbitration

16.1 Informal Resolution

Before initiating any formal dispute resolution proceeding, you agree to first contact us and attempt to resolve any dispute informally for at least thirty (30) days. Informal negotiations begin upon receipt of written notice from one party to the other.

16.2 Binding Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT. If we are unable to resolve a dispute through informal negotiations, either party may elect to have the dispute finally and exclusively resolved by binding arbitration. The arbitration shall be administered by the American Arbitration Association (“AAA”) in accordance with its Consumer Arbitration Rules then in effect. The arbitration shall be conducted by a single arbitrator, and the seat of arbitration shall be in Miami-Dade County, Florida, unless the parties mutually agree otherwise, or the arbitrator determines that such a location would impose an undue burden on you, in which case the arbitration may be conducted remotely or in another mutually agreeable location.

The arbitrator’s decision shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the authority to award any remedy that a court of competent jurisdiction could award, including injunctive or declaratory relief, but only to the extent required to satisfy your individual claim. Each party shall bear its own costs and attorneys’ fees, unless the arbitrator determines otherwise.

You agree that this arbitration agreement is made pursuant to a transaction involving interstate commerce, and the Federal Arbitration Act (9 U.S.C. § 1 et seq.) shall govern the interpretation and enforcement of this arbitration provision.

16.3 Class Action and Jury Trial Waiver

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AND THE COMPANY EACH WAIVE THE RIGHT TO A JURY TRIAL AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. You may only resolve disputes with us on an individual basis. Claims may not be brought as a plaintiff or class member in any purported class, consolidated, or representative proceeding.

16.4 Exceptions

Notwithstanding the foregoing, either party may bring an individual action in small claims court for disputes within the court’s jurisdiction. Additionally, either party may seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement or misappropriation of intellectual property rights.

16.5 Opt-Out Right

You have the right to opt out of binding arbitration within thirty (30) days of first accepting these Terms by sending written notice of your decision to opt out to the contact address provided in Section 22. Your notice must include your name, address, and a clear statement that you wish to opt out of the arbitration provision.

16.6 Mass Arbitration Procedures

If twenty-five (25) or more similar claims are asserted against the Company by the same or coordinated counsel, and the parties cannot resolve the dispute within the informal resolution period, the parties agree that all such claims shall be resolved through a bellwether arbitration process in accordance with the AAA’s then-applicable mass arbitration procedures or supplementary rules.

17. Governing Law and Jurisdiction

These Terms and any dispute arising out of or related to these Terms or the Site shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. To the extent that any claim or dispute is not subject to arbitration as set forth in Section 16, you and the Company irrevocably consent to the exclusive jurisdiction and venue of the state and federal courts located in Miami-Dade County, Florida, for the adjudication of any such claim or dispute.

Notwithstanding the foregoing, nothing in these Terms shall limit the rights of consumers under mandatory consumer protection statutes of the state in which they reside, to the extent such statutes are applicable and cannot be waived or modified by contract.

18. Accessibility

We are committed to ensuring that the Site is accessible to all users, including individuals with disabilities. We strive to conform to the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA, as well as applicable requirements under the Americans with Disabilities Act (“ADA”) and Section 508 of the Rehabilitation Act, to the extent applicable. If you experience difficulty accessing any content on the Site or have suggestions for improving accessibility, please contact us using the information in Section 22.

19. Allergen and Nutritional Information Disclaimer

Information regarding allergens, ingredients, and nutritional content provided on the Site is intended for informational purposes only and may not reflect the exact composition of products prepared at individual locations. Products may be prepared in facilities that also process common allergens, including but not limited to tree nuts, peanuts, milk, eggs, wheat, soy, fish, and shellfish. Cross-contact may occur.

We make no guarantees regarding the accuracy, completeness, or timeliness of allergen or nutritional information. Consumers with food allergies, sensitivities, or dietary restrictions should verify product ingredients directly with the applicable location prior to purchase or consumption. We disclaim all liability related to allergic reactions or adverse health effects resulting from the consumption of any product.

20. Termination

We may terminate or suspend your access to the Site, in whole or in part, at any time, with or without cause, with or without notice, effective immediately. Upon termination, your right to use the Site will immediately cease. All provisions of these Terms that by their nature should survive termination shall survive, including but not limited to ownership provisions, warranty disclaimers, indemnification obligations, limitations of liability, and dispute resolution provisions.

21. General Provisions

21.1 Entire Agreement

These Terms, together with the Privacy Policy and any other legal notices published by us on the Site, constitute the entire agreement between you and the Company concerning the Site and supersede all prior or contemporaneous understandings, agreements, representations, and warranties, both written and oral.

21.2 Severability

If any provision of these Terms is found to be unlawful, void, or unenforceable by a court of competent jurisdiction or an arbitrator, that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions.

21.3 Waiver

No waiver by the Company of any term or condition set forth in these Terms shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.

21.4 Assignment

You may not assign or transfer your rights or obligations under these Terms without our prior written consent. We may freely assign our rights and obligations under these Terms without restriction. These Terms shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

21.5 Force Majeure

The Company shall not be liable for any failure or delay in performing its obligations under these Terms where such failure or delay results from circumstances beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, epidemics, war, terrorism, riots, government actions, power failures, internet or telecommunications failures, or supply chain disruptions.

21.6 No Third-Party Beneficiaries

These Terms do not confer any rights, remedies, or benefits upon any third party, except as expressly provided herein.

21.7 Headings

The headings in these Terms are for convenience only and shall not affect the interpretation of these Terms.

21.8 California Residents – Notice Under Civil Code Section 1789.3

Under California Civil Code Section 1789.3, California residents are entitled to the following consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, California 95834, or by telephone at (800) 952-5210 or (916) 445-1254.

21.9 New Jersey Residents

If you are a New Jersey resident, notwithstanding any provisions of these Terms to the contrary, the limitations of liability, indemnification, and disclaimer provisions in these Terms do not limit your rights as a consumer under New Jersey law, and the provisions of these Terms are intended to be only as broad and inclusive as permitted by the laws of the State of New Jersey.

21.10 Export Controls

You agree that you will not export or re-export any content or technology from the Site in violation of the export control laws and regulations of the United States, including the Export Administration Regulations.

22. Contact Information

If you have any questions, concerns, or complaints regarding these Terms of Use or the Site, please contact us at: