Welcome to Fresh.com (the “Website”), the public, e-commerce website for Fresh, Inc. (“Fresh,” “We,” or “Us”). The Website is provided as a service to our customers and your use of this Website is governed by these terms and conditions (these “Terms and Conditions”). By using this Website, you acknowledge and agree to these Terms and Conditions. If you do not agree to these Terms and Conditions, you may not access or use the Website. We may change these Terms and Conditions at any time, without notice to you. Such changes are effective when they are posted to this Website and your continued use of the Website after any such changes are posted will be considered acceptance of such changes. Capitalized words used in these Terms and Conditions, other than those capitalized only for grammatical purposes, shall have, in both their singular and plural forms, the meaning ascribed to them where the capitalized words appear in bold text inside quotation marks.
1. Orders for Products and Services. The products We make available on this Website are for your personal, non-commercial use only. You may only order products if you are domiciled in the United States and you are 18 years old or older. Unless otherwise indicated, all prices on the Website are in US Dollars. You agree to pay in full the prices for any purchases you make either by credit or debit card concurrent with your online order or by other payment means acceptable to Fresh. You agree to pay all applicable taxes. If payment is not received by Us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by Us. Certain products that you purchase on this Website may be subject to additional terms and conditions presented to you at the time of such purchase. We reserve the right to cancel or reduce the quantity of your order, without notice and at our discretion, and you will only be charged for quantities actually shipped.
2. Website Content. The Content (as defined below) presented on this Website is intended for educational or informational purposes only. Such information is not meant to serve as a substitute for professional medical advice. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information available on or received from this Website. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. In addition, the statements made about products have not been evaluated by the U.S. Food and Drug Administration and the results reported, if any, may not necessarily occur in all individuals. Please consult with your own physician or health care practitioner regarding the use of any goods, products or information received from this Web site before using or relying on them. Your physician or health care practitioner should address any and all medical questions, concerns and decisions regarding the possible treatment of any medical condition. Fresh does not give or intend to give any answers to medical-related questions and this Website does not replace any medical professional or medical resource. Fresh does not represent itself as a physician nor is this implied. No prescription medications or medical treatments are intentionally provided on this Website. IF YOU ARE IN NEED OF MEDICAL ATTENTION, CALL 911 OR YOUR PHYSICIAN IMMEDIATELY.
3. Product Information and Pricing. We cannot guarantee the accuracy of the product descriptions, product images, pricing, promotions, availability, ingredients or other information or content on the Website. Any orders placed via the Website are not considered accepted until We have shipped the order. We cannot confirm the price of an item until an order has shipped. We reserve the right to correct any errors or inaccuracies on the Website, to change or update information or to cancel orders if any such information is inaccurate. We will not charge your credit card until your order enters the shipping process. If We cancel any orders after your credit card has been charged, We will issue a credit to your account in the amount charged.
4. Colors. We try to accurately display the colors of the products you see on the Website. However, We cannot guarantee that the colors you see on your monitor will be accurate.
5. Website Content; License. Fresh and/or its licensors own all right, title and interest in and to the Website, all text, graphics, photographs, audio, video, logos, artwork, data, computer code and other materials contained or displayed on the Website (“Content”), as well as the look and feel and the design of the Website and the organization of the Content on the Website, including but not limited to any copyrights, Trademarks (as defined below), patent rights and other intellectual property and proprietary rights therein. Your use of the Website does not grant you ownership of any Content on the Website.
Subject to these Terms and Conditions, Fresh grants you a limited, revocable, non-sublicensable and non-transferable license to use the Website and the materials contained thereon only for your personal, non-commercial use.
6. Trademarks. The trademarks, logos, service marks and trade names (individually, a “Trademark” and collectively, the "Trademarks") displayed on the Website or on content available through the Website are registered and unregistered Trademarks of Fresh and others and may not be used unless authorized by the Trademark owner. All Trademarks not owned by Us that appear on the Website or on or through the Website’s services, if any, are the property of their respective Trademark owner. Nothing contained on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Website without our written permission or that of the third party Trademark owner. Your misuse of the Trademarks displayed on the Website is strictly prohibited.
7 Prohibited Customer Activity. Unless expressly permitted in these Terms and Conditions or with Fresh’s written consent, you may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works from, transfer, sell or in any way exploit the Contents of this Website. Fresh will aggressively enforce its intellectual property rights to the fullest extent of the law. You shall not: (i) engage in spidering, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of accessing, logging-in or registering on the Website or for any services or features offered on or through the Website, or obtaining lists of users or obtaining or accessing other information or features on, from or through the Website or the services offered on or through the Website, including, without limitation, any information residing on any server or database connected to the Website or any services offered on or through the Website; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials, information or any services made available on or through the Website through any means; (iii) use the Website or the services made available on or through the Website in any manner with the intent to interrupt, damage, disable, overburden, impair the Website or such services, or interfere with any other party’s use and enjoyment of the Website including, without limitation, sending mass unsolicited messages or “flooding” servers with requests; (iv) use the Website or the Website’s services or features in violation of Fresh’s or any third party’s intellectual property or other proprietary or legal rights; or (v) use the Website or the Website’s services in violation of any applicable law. You further agree that you may not attempt (or encourage or support any one else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Website and the Content, or make unauthorized use thereof. You may not obtain or attempt to obtain any materials or information through any means not intentionally made publicly available or provided for through the Website.
10. Links to and from the Website. If you link from any other website to this Website, such link shall open in a new browser window or tab and shall link to the full version of the Website. You are not permitted to use any linking method whereby the Content is hosted by Us but displayed on another web site (this practice is sometimes referred to as “in-line” linking). You may not to link from any other web site to this Website in any manner such that the Website, or any page of the Website, is “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve all of our rights under the law to insist that any link to the Website be discontinued, and to revoke your right to link to the Website from any other website.
You may be able to link from the Website to third-party websites and third-party websites may link to the Website (“Linked Sites”). You acknowledge and agree that We have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites, even if they are owned or run by affiliates of Fresh. Links to Linked Sites do not constitute an endorsement or sponsorship by Fresh of such websites or the information, content, products, services, advertising, code or other materials presented on or through such websites. Fresh is not responsible for any content that originates from any Linked Site and that is embedded or otherwise transmitted through the Website.
11. Indemnification. You agree to defend, indemnify and hold Fresh, its affiliates, and its and their directors, officers, employees and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys' fees, arising in any way from your use of the Website, your placement or transmission of any message, content, information, software or other materials through the Website, or your breach or violation of the law or of these Terms and Conditions. Fresh reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Fresh’s defense of such claim.
12. DISCLAIMER OF WARRANTIES. THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, IS PROVIDED "AS IS," "AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT THAT THE WEBSITE OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE WEBSITE WILL MEET USER’S REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FRESH ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE WEBSITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE WEBSITE. IF YOU ARE DISSATISFIED WITH THE WEBSITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE WEBSITE.
WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, FRESH DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE WEBSITE, AND HEREBY DISCLAIMS, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE WEBSITE OR IN CORRESPONDENCE WITH FRESH OR ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE WEBSITE ARE PROVIDED BY FRESH “AS IS.” THE FOREGOING DISCLAIMERS DO NOT APPLY TO THE EXTENT, IF AT ALL, OF ANY PRODUCT WARRANTY OFFERED BY THE MANUFACTURER OF A PRODUCT OR AS OTHERWISE SPECIFICALLY SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND FRESH OR ITS LICENSOR OR SUPPLIER.
13. LIMITATION OF LIABILITY. IN NO EVENT, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL FRESH, ANY OF ITS AFFILIATED COMPANIES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE WEBSITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, THE PRODUCTS OR SERVICES AVAILABLE ON THE WEBSITE, YOUR PROVISION OF INFORMATION VIA THE WEBSITE, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE WEBSITE. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THESE TERMS AND CONDITIONS OR YOUR USE OF THE WEBSITE OR ANY PRODUCT ORDERED VIA THE WEBSITE EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO FRESH FOR YOUR USE OF THE WEBSITE OR PURCHASE OF PRODUCTS VIA THE WEBSITE.
14. Applicable Laws. This Agreement is governed by the laws of the United States and the State of New York, without regard to its conflict of law provisions. You agree that any cause of action that may arise under this Agreement will be brought in the appropriate court in New York County and You agree to submit to the personal and exclusive jurisdiction of the courts located in New York County.
15. Termination. We may change, suspend or discontinue this Website at any time. We may restrict, suspend or terminate your access to the Website and/or its services if We believe you are in breach of our terms and conditions or applicable law, or for any other reason without notice or liability. We will revoke the Website use privileges of users who are repeat infringers of intellectual property rights.
16. Miscellaneous. Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect.