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GENERAL TERMS AND CONDITIONS OF SALE

These General Terms and Conditions of Sale (these “Terms”) apply to all purchases of gift baskets or other products (collectively, the “Goods”) from Lucy’s Market, regardless of whether such purchases are made by phone or online. These Terms may refer to Lucy’s Market as “we” or “us,” and to the customer as “you” or the “Customer.” These Terms may also refer to us or you as a “Party,” or collectively as the “Parties.”

By ordering any Goods from Lucy’s Market, you agree to be bound by these Terms, which form a binding agreement between you and us.

1. Applicability

  1. 1.1  These Terms are the only terms that govern the sale of gift baskets or other products (the “Goods”) from Lucy’s Market.

  2. 1.2  These Terms and any order confirmation or invoice issued by Lucy’s Market (collectively, this Agreement) comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Customers general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customers order does not constitute acceptance of any of Customers terms and conditions and does not serve to modify or amend these Terms.

  3. 1.3  We may change these Terms from time to time. By ordering any Goods after we post any such changes, you accept the Terms as modified.

  1. Delivery of Goods

    1. 2.1  The Goods will be delivered within a reasonable time after the receipt of Customers purchase order. Any stated shipping and delivery dates are estimates only and cannot be guaranteed. Lucy’s Market will not be liable for any delays, loss or damage in transit.

    2. 2.2  Customer will take possession and title to the Goods upon delivery to the carrier. Title and risk of loss passes to Customer upon delivery of the Goods to the carrier.

    3. 2.3  Lucy’s Market may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. In the event of a partial shipment, Customer will pay for all Goods shipped, whether such shipment is in whole or partial fulfillment of Customers purchase order.

  2. Refunds and Cancellation

    1. 3.1  If the Customer cancels a purchase more than 12 hours after placing an order, Customer will be liable for a cancellation fee in the amount of 20% of the purchase price (“Cancellation Fee”).

    2. 3.2  The Goods are non-refundable except as provided in Section 4. Subject to these Terms, Lucy’s Market will accept a return of unopened gift baskets for a refund of Customer’s purchase price, less the original shipping and handling costs, provided such return is made within 30 days of shipment and provided such products are returned in their original condition. In no event will Lucy’s Market accept the return of any individual items that have been opened or damaged.

    3. 3.3  Customer is responsible for all shipping and handling charges on returned items. Customer bears the risk of loss during shipment. All returns are subject to a restocking fee in the amount of 10% of the purchase price (the “Restocking Fee”).

    4. 3.4  Refunds will be processed within approximately 5 business days of our receipt of your merchandise. Your refund (minus the Restocking Fee) will be credited back to the same payment method used to make the original purchase. LUCY’S MARKET OFFERS NO REFUNDS ON ANY PRODUCTS DESIGNATED ON LUCY’S MARKET’S WEBISTE OR ORDER CONFIRMATION AS NON-REFUNDABLE.

    5. 3.5  Subject to these Terms, either Party may cancel any order or terminate this Agreement at any time and for any reason.

  1. Inspection and Rejection of Nonconforming Goods

    1. 4.1  Customer shall inspect the Goods within 24 hours of delivery (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Lucy’s Market in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Lucy’s Market. “Nonconforming Goods” means Goods that, at the time of delivery, are different than those identified in Customers purchase order, including Goods that are damaged, defective, or of incorrect quantity.

    2. 4.2  If Customer timely notifies Lucy’s Market of any Nonconforming Goods, Lucy’s Market will, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, or (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Customer in connection therewith. If Lucy’s Market exercises its option to replace Nonconforming Goods, Lucy’s Market will ship to Customer the replaced Goods in accordance with Section 2.

    3. 4.3  Customer acknowledges and agrees that the remedies set forth in Section 4.2 are Customers exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Sections 3 and 4.2, all sales of Goods to Customer are made on a one-way basis, and Customer has no right to return Goods purchased under this Agreement to Lucy’s Market. Lucy’s Market may, in its sole discretion, agree to accept returns of Goods for reasons other than Lucy’s Market’s fault, but any such returns shall be subject to the Restocking Fee.

  2. Non-delivery

    1. 5.1  Lucy’s Market will not be liable for any non-delivery of Goods (even if caused by Lucy’s Market’s negligence) unless Customer gives written notice to Lucy’s Market of the non-delivery within 10 days of the date when the Goods would in the ordinary course of events have been received.

    2. 5.2  Any liability of Lucy’s Market for non-delivery of the Goods will be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

  3. Customers Acts or Omissions. If Lucy’s Market’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its agents, contractors, consultants or employees (including providing incorrect information concerning delivery), Lucy’s Market will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

  4. Price and Payment Terms

    1. 7.1  The price charged for a product will be the price in effect at the time the order is placed and will be set out in the order confirmation or invoice. All prices posted on the Lucy’s Market website are subject to change without notice. Price increases will only apply to orders placed after such changes. Posted prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to the merchandise total and will be itemized in the order confirmation or invoice. Lucy’s Market is not responsible for pricing, typographical or other errors in any offer, and Lucy’s Market reserves the right to cancel any orders arising from such errors.

    2. 7.2  Terms of payment are within Lucy’s Market’s sole discretion. Unless otherwise agreed by Lucy’s Market in writing, payment must be received before Lucy’s Market accepts an order. If purchase is made by credit card, Customer represents and warrants that (i) the credit card information Customer supplies is true, correct and complete, (ii) Customer is duly authorized to use such credit card for the purchase, (iii) charges incurred by Customer will be honored by Customer’s credit card company, and (iv) Customer will pay charges incurred at the posted prices, including all applicable taxes, if any.

  5. Additional Payment Terms for Purchase on Credit. If Lucy’s Market agrees in writing to ship the Goods to Customer before receiving payment, the following additional terms shall apply:

    1. 8.1  Customer shall pay all invoiced amounts due to Lucy’s Market within 30 days from the date of Lucy’s Market’s invoice.

    2. 8.2  Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Lucy’s Market for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Lucy’s Market does not

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waive by the exercise of any rights hereunder), Lucy’s Market shall be entitled to suspend the delivery of any Goods if Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof. Lucy’s Market also reserves the right to declare all charges and accounts to be immediately due and payable. Customer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Lucy’s Market, whether relating to Lucy’s Markets breach, bankruptcy or otherwise.

9. Warranty Disclaimer

EXCEPT AS PROVIDED IN SECTION 4.2, LUCY’S MARKET MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY, (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (c) WARRANTY OF TITLE, OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

10. Limitation of Liability

  1. 10.1  IN NO EVENT SHALL LUCY’S MARKET BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LUCY’S MARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

  2. 10.2  IN NO EVENT WILL LUCY’S MARKET’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO LUCY’S MARKET FOR THE GOODS SOLD HEREUNDER, AS REFLECTED IN LUCY’S MARKET’S ORDER CONFIRMATION OR INVOICE, WHICHEVER IS LESS.

11. Indemnification. To the fullest extent permitted by law, Customer shall indemnify, defend and hold harmless Lucy’s Market and its officers, directors, employees, agents, affiliates, successors and permitted assigns against any and all losses, liabilities, claims, causes of actions, penalties, costs, or expenses of whatever kind (including reasonable attorneys’ fees) arising out of or occurring in connection with (a) Customer’s purchase of Goods from Lucy’s Market or (b) Customer’s breach of this Agreement.

12. Force Majeure. Lucy’s Market will not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Lucy’s Market including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either Partys workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown, or power outage.

13. Miscellaneous

  1. 13.1  Waiver. No waiver by Lucy’s Market of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Lucy’s Market. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

  2. 13.2  Assignment. Customer will not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lucy’s Market. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.

  3. 13.3  Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture or other

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form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party has authority to contract for or bind the other Party in any manner whatsoever.

  1. 13.4  No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under this Agreement.

  2. 13.5  Governing Law; Submission to Jurisdiction. Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. All disputes arising out of or in connection with this Agreement will be brought in the courts of Cobb County, Georgia or the U.S. District Court for the Northern District of Georgia, and the Parties consent to the jurisdiction of such courts.

  3. 13.6  Notices. All notices and other communications required or permitted under this Agreement must be in writing and must be sent to the Party at that Party’s address set forth below or at whatever other address the Party specifies in writing.

    To Lucy’s Market: Lucy’s Market, LLC
    Andrews Square Shopping Center

    56 E Andrews Drive, NW, Suite 15 Atlanta, GA 30305

    All notices shall be delivered by personal delivery, verified e-mail, or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the notice has complied with the requirements of this Section.

  4. 13.7  Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

  5. 13.8  Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; and (b) the word “or” is not exclusive. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Any order confirmation or invoice issued by Lucy’s Market shall be construed with, and as an integral part of, this Agreement to the same extent as if it was set forth verbatim herein.

  6. 13.9  Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

13.10Clerical Errors. Lucy’s Market reserves the right to unilaterally correct clerical, arithmetical, or stenographic errors or omissions in order confirmations, invoices, or other documents.

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