Welcome to Fresh.com and our Terms of Use (“Terms”). These Terms are important and affect your legal rights, so please read them carefully.

IMPORTANT NOTICE: THESE TERMS ARE SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION (SECTION 16) BELOW.

Purchases made at Fresh.com, may be returned within 60 days of purchase by filling out a web form on fresh.com here or call (1-833-858-1115). We will provide a return authorization number as well as shipping instructions for your return package. Return shipping and handling charges are the customer’s responsibility.

Purchases made at Fresh.com, may also be physically returned to any Fresh stores within 60 days of purchase for an exchange or a store credit (store credit to be used at a physical Fresh store only), when accompanied by a receipt. The Shipping Confirmation email issued with purchases made at Fresh.com is considered the original receipt.

TERMS OF USE

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 of Use”). By accessing and/or using this Website, you acknowledge and agree to these Terms of Use as well as our Privacy Policy which is incorporated herein by reference for all purposes. By accessing and/or using this Website, you accept without restriction these Terms of Use as well as our Privacy Policy. If you do not agree to these Terms of Use or our Privacy Policy, you may not access or use the Website. Except for the provisions at Section 16, which will only be changed upon your consent, we may change these Terms of Use 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 of Use, 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 inside quotation marks.

1. Orders for Products and Services; Personal Use. The products we make available on this Website, including samples, are for your personal, non-commercial use only. You may not sell or resell any products you purchase or otherwise receive from us. Fresh reserves the right, with or without notice, to cancel or reduce the quantity of any order to be filled or products to be provided to you, as determined by Fresh in its sole discretion. You will only be charged for quantities actually shipped. 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 U.S. 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 of Use presented to you at the time of such purchase.

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 Website 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. You should always check the ingredients for products to avoid potential allergic reactions as Fresh may change ingredients from time to time. 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. Notwithstanding the foregoing, Fresh makes no claim of ownership to User Contributions, as defined below. Your use of the Website does not grant you ownership of any Content on the Website. Subject to these Terms of Use, Fresh grants you a limited, revocable, non-sublicensable and non-transferable license to use the Website and the materials contained therein 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 of Use 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 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.

8. User Information. If you register with this Website, make a purchase via the Website, sign up for e-mails, apply for membership in one of our programs or enter a sweepstakes, contests or promotion, you will be asked to provide personal information to us (“User Information”). Our information collection and use policies with respect to such User Information are set forth in the Website’s Privacy Policy which is incorporated herein by reference for all purposes and available by clicking here. You are responsible for keeping your User Information up to date and accurate.

9. User Comments, Feedback, and Other Submissions. We welcome your suggestions, feedback, ideas and other submissions (collectively “User Contributions”) about the Website, its Content, and our products. If any User Contribution includes ideas, suggestions, documents or proposals to Fresh, you hereby acknowledge and agree that: (a) such User Contributions are not confidential or proprietary and Fresh has no obligation of confidentiality, express or implied, with respect thereto; (b) Fresh may have something similar to the User Contribution already under consideration or development; and (c) you are not entitled to compensation, payment or reimbursement of any kind from Fresh or any of its affiliates for such User Contribution under any circumstances unless you are otherwise notified by Fresh in writing to the contrary. By submitting or sending User Contribution to us, you: (i) represent and warrant that the User Contribution are original to you, that no other party has any rights thereto, and that any "moral rights" in the User Contributions have been waived, and (ii) you grant us and our affiliates a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sublicensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, make, sell and export such User Contributions (in whole or part) and/or to incorporate it in other works in any form, media, or technology now known or later developed, for editorial, commercial, non-commercial, promotional or any other purpose. We cannot be responsible for maintaining any User Contributions that you provide to us, and we may delete or destroy any such User Contributions at any time. Any User Contributions will be deemed not to be confidential or secret, and may be used by us in any manner not inconsistent with these Terms of Use and the Website’s Privacy Policy.

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. Public and Interactive Areas of Our Website; Ratings & Reviews; Guidelines. We may from time to time provide interactive services on our Website, including, without limitation, Ratings & Reviews, blogs, chat rooms, bulletin boards and discussion groups. We are under no obligation to oversee, monitor or moderate any interactive service we provide on our Website, and we expressly exclude all liability for any loss or damage arising from the use of any interactive service by a user, whether the service is moderated or not. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy or reliability of any User Contributions. Similarly, we may or may not exercise editorial control over the User Contributions of any such interactive services. As a result, you may be exposed to User Contributions that is inaccurate, fraudulent or deceptive or that you find offensive or objectionable. However, we reserve the right, but are not obligated, to monitor our interactive services and to pre-screen, remove, condense, refuse to post or alter any User Contributions in our sole discretion. We may restrict, suspend or terminate your use of these services or the Website where we believe that there has been a misuse. Your use of such interactive services are at your own risk. Personal Information that you post on or through the public areas of the Website are generally accessible to, and may be collected and used by, others and may result in unsolicited messages or other contact from others. You should not provide Personal Information about yourself in public or interactive areas of the Website. Such Personal Information is not covered under our Privacy Policy.

You represent and warrant that: (a) you are at least 13 years old; (b) all User Contributions posted by you is original to you and that you are the sole author of such User Contributions, (c) no User Contribution infringes upon, violates or misappropriates a third party's intellectual property rights, (d) no User Contribution will be obscene, libelous, vulgar, offensive, malicious, discriminatory, defamatory or otherwise unlawful, (e) no other party has any rights to such User Contribution, (f) any "moral rights" in your User Contribution have been waived, (g) the User Contribution is not false, inaccurate or misleading in any manner, and (h) you are not being compensated in any manner for your User Contributions from any third party. You may not use our interactive services or any User Contribution to impersonate any person or entity, including, without limitation, any Fresh employee, forum leader, guide or host, or to falsely state or otherwise misrepresent your affiliation with a person or entity. You may not use the interactive services to collect or store personal data about other users. You may not include references to other competitors, websites, addresses, email addresses, contact information or phone numbers.

When writing a review for the Ratings & Review, please consider the following guidelines:

• Focus on the product and your individual experience using it;
• Provide details about why you like or dislike a product; and
• All submitted reviews, comments and questions are subject to these Terms of Use and our Privacy Policy.

You grant us a royalty-free, unrestricted, worldwide, perpetual, irrevocable, non-exclusive and fully transferable, assignable and sub-licensable right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display, make, sell and export any such User Contribution, in whole or part, and/or to incorporate them in other works in any form, media, or technology now known or later developed for editorial, commercial, non-commercial, promotional or any other purpose.

12. Indemnification. You agree to defend, indemnify and hold harmless Fresh, its affiliates, and its and their directors, officers, employees and agents 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, User Contributions, information, software or other materials through the Website, or your breach or violation of the law or of these Terms of Use. 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. THIS PROVISION MAY NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.

13. Digital Millennium Copyright Act

If you believe your work or content has been copied and posted to the Website in a way that constitutes copyright infringement, please provide Fresh's designated copyright agent the following written information in accordance with the Digital Millennium Copyright Act (the "DMCA"):

• A description of the copyrighted work that you claim has been infringed upon;
• A description of where the material that you claim is infringing is located on the Website;
• A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
• An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
• Your name, address, telephone number and email address (if available); and
• A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.

Fresh’s DMCA designated copyright agent for notice of claims of copyright infringement on the Website is our Legal Counsel, Nick Barnhorst, who can be reached as follows:

Fresh, Inc.
Legal Department
130 5th Avenue, 10th Floor
New York, NY 10011
E-mail: legal@fresh.com
Phone: 347.897.6500

14. 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/OR 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.

15. 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, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF DATA, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS, SUCH AS NEW JERSEY, 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 OF USE 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. THIS PROVISION MAY NOT APPLY TO RESIDENTS OF THE STATE OF NEW JERSEY.

16. Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

You and Fresh agree that these Terms may affect interstate commerce and that to the broadest extent permissible under law the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.

This Section is intended to be interpreted broadly and governs any and all disputes between us, including but not limited to claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before these Terms or any prior agreement (including, but not limited to, claims related to advertising, and any content available on or through our Site); and claims that may arise after the termination of these Terms. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.

By agreeing to these Terms, you agree to resolve any and all disputes with Fresh as follows:

Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. You can reach Fresh at legal@Fresh.com. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Fresh, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.

Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms (including the Terms’ or Privacy Policy’s formation, performance, and breach), the parties’ relationship with each other, and/or your use of our App or our Site shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $100,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $100,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms or the Privacy Policy, including but not limited to any claim that all or any part of these Terms or Privacy Policy is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com ); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave. NY Times Building 34th Floor New York, NY 10018 USA; and (c) send one copy of the Demand for Arbitration to Fresh at 130 5th Avenue, 10th Fl, New York, NY 10011 Attention: Legal Department.

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Fresh will pay the additional cost. If the arbitrator finds the arbitration to be non-frivolous, Fresh will pay the fees invoiced by JAMS, including filing fees and arbitrator and hearing expenses. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.

The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

You and Fresh agree that any arbitration will take place in the county of your billing address. You and Fresh further agree to submit to the personal jurisdiction of any federal or state court in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

Class Action Waiver: The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND FRESH AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above (but not the remainder of these Terms of Service) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

Exception for Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending (from the email address you used to create your Account) written notice of your decision to opt out to optout@fresh.com with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of your agreement to these Terms; otherwise, you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Fresh also will not be bound by them.

Changes to This Section: Fresh will provide thirty (30) days’ notice of any changes to this section by posting on the Service, sending you a message, or otherwise notifying you when you are logged into your Account. Amendments will become effective thirty (30) days after they are posted on the Service or sent to you.

Changes to this section will otherwise apply prospectively only to claims arising after the thirtieth (30th) day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection shall be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator shall apply the first Arbitration and Class Action Waiver section in existence after you began using the Service.

Survival: This Arbitration and Class Action Waiver section shall survive any termination of your Account or the Service.

17. 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.

18. Viruses, Hacking And Other Offenses. You must not misuse our Website by knowingly introducing viruses, trojans, worms, logic bombs or other content which is malicious or technologically harmful. You must not attempt to gain unauthorized access to our Website, the server on which the Website is stored or any server, computer or database connected to our Website. You must not attack our Website via a denial-of-service attack or a distributed denial-of-service attack. We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of our Website or to your downloading of any material posted on it, or on any website linked to it.

19. 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 of Use 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.

20. Miscellaneous; Severability. Our failure to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision. If any provision of the Terms of Use 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 of Use remain in full force and effect. Some provisions may not be enforceable against residents of the state of New Jersey. By agreeing to these Terms of Use, residents of the state of New Jersey do not waive any of the rights conferred upon them by the Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA).