Terms & Conditions
TERMS AND CONDITIONS OF USE
Last Updated: February 6, 2017
Specifically, these terms constitute a legal contract (the “Agreement”) between you and FreshRealm, LLC (“FreshRealm”,“we” or “us”) that govern your use of FreshRealm’s websites (including freshrealm.co, the “Site”) and its food marketplace services (together with the Site, the “Service.”)
The terms “you” and “your” will refer to all individuals and entities that access the Service from your account, including anyone who receives food delivered to your account.
Please note that relative to the resolution of any disputes, this Agreement (i) requires all matters to be settled by binding, individual arbitration or via small claims court (if applicable) and (ii) includes a waiver of certain rights, including the ability to form class actions. See “DISPUTE RESOLUTION; ARBITRATION, NO CLASS ACTIONS.”
By accessing, browsing or using the Service, you are agreeing to the terms of this Agreement.
We may modify these terms and post a copy of the amended Agreement at freshrealm.co/legal. You should periodically check these terms for changes. By accessing the Service after updates to the Agreement are posted, you agree to be bound by the updated terms.
You must be at least 18 years old to enter into this Agreement and to register for the Service. By using the Service, you represent that (i) you have read, understood and agree to be bound by this Agreement and (ii) you are at least 18 years old.
Service Access and Registration
To access the Service, you must have a connected device that meets our then-current operating requirements, which will try to update on the Site. To use the Service, you will need to create a Service account and provide certain information to us. You agree that any information that you provide to FreshRealm will be truthful, complete and that you will keep it up to date.
You are responsible for maintaining the confidentiality of your password and account and all activities that occur in connection with these.
You agree to immediately notify us of any suspected unauthorized use of your account or any breach of your account’s or the Service’s security. We may refuse Service membership or access to anyone.
By creating a Service account, you consent to receive service-related communications from us. We may also send you promotional communications via email. If we do, you may opt out of receiving promotional emails and you can also contact our customer care to adjust your messaging preferences.
The Service is limited to sales within the United States and it is currently further limited to certain local delivery zones. We are working to expand our delivery area but you will need to check in via the Service to see if we can deliver to you. We reserve the right to limit the availability of certain items to certain locations and to change availability in general, at our discretion.
The Service provides an online marketplace for the purchase and delivery of fresh food to your home or other location. We mainly sell “meals” that comprise the core, fully prepped ingredients needed for you to cook your own meals. We also offer beverages, snacks and other items. Some meals may require a certain amount of further cooking on your part, while others may simply require you to heat them up and others may be delivered ready-to-eat. Where applicable, we will provide recipe cards or similar materials that provide suggested preparation instructions for the items in your order. We will also generally tell you how many people each meal is meant to serve by referring to “servings” or similar verbiage and we may offer estimated preparation times. Finally, your delivery will include an “eat by date” (or similarly titled date) which tells you the latest date that you should eat your food by before it spoils (the “Eat By Date.”) We offer options to purchase items on an a-la-carte, one-time basis and we offer various recurring, subscription options (see “Meal Plans” below.) Please note:
- the Eat By Date is our best estimate for freshness but if you handle or store the food improperly, the food may not last as long;
- it is always safer to eat food earlier;
- you may need to provide some basic condiments and other ingredients to complete your meals (like salt, pepper, cooking oils...etc.);
- serving sizes are estimates that we or the Tastemakers make–but we do not guarantee that a serving will satisfy any individual’s needs;
- preparation times are estimates–they are not guaranteed and may vary based on your cookware, your cooking environment, the state of the ingredients and your personal taste; and
- any nutritional content provided online or with the food is informational only–we do not provide any medical or dietary advice and we do not guarantee the accuracy of any information or statements made in that regard, so you should not rely upon them
Finally, all items offered on the Service are subject to availability, and we reserve the right to impose limits on any order, to reject all or part of an order, and/or to discontinue offering items without notice. Also, since we try to offer the freshest food possible in an environment where certain market factors can change quickly and beyond our control, so we reserve the right to substitute similar products to the ones you may have ordered for a particular delivery. If you are not satisfied with a substitution, please contact us as described below under “Returns”.
Please see our Help Center for additional information about the Service.
While we offer some meals and items that we’ve developed ourselves, we mainly offer meals that have been developed by or in conjunction with third parties that we call “Tastemakers.” The Tastemakers have agreed to use the Service’s backend platform to source ingredients, define recipes, provide prep instructions and help us to offer meals and products to you that they endorse. Please note that while we have contracted with the Tastemakers for the limited purpose described, we are not otherwise connected to them and vice versa. Each Tastemaker is responsible for ensuring that its meals and recipes have been vetted for taste and preparation instructions but FreshRealm’s responsibility to you is only as set out in this Agreement.
To maximize freshness, all food will be delivered to you using our patent-pending, reusable delivery vessel (the “Vessel”). The Vessel is not yours to keep!
You agree to use it only as directed here and return it to us as set out in our online instructions on the Site and Service (look for “Unpack, Peel, Return” and see our Help Center). If you follow our instructions and set out the Vessel for return, we will have our carrier pick it up automatically. If you do not return your Vessel to us in accordance with our instructions and in good shape, you will be charged. Specifically:
- You agree to try to set the Vessel out in the area where it was delivered to you (such as your porch or stoop) on the day after its delivery (but not sooner);
- If you miss the day after delivery, you will receive an email rescheduling notice from us ;
- If you miss the rescheduled pickup, you will get a second email rescheduling notice from us;
- If you miss the third scheduled pickup, you will receive an email notice from us requesting that you go ahead and re-schedule the pickup yourself (with instructions) and that if you do not do so, we may charge penalty amounts to your account of up to $10 per late week, until you have been charged $100 in total (per Vessel).
You agree that any penalty fees that we charge to you for your late return (or failure to return) a Vessel will be non-refundable. In addition, we reserve the right to suspend or terminate your account if you are delinquent with your Vessel returns. Finally, even if we charge you late payment penalties, the Vessel’s ownership does not transfer to you. We still require that you return it and reserve all of our rights to enforce this requirement.
You agree that you are using the Vessel under a restricted license. You will not disassemble the Vessel, reverse engineer it or otherwise use it other than as described here.
After you unpack your food from the Vessel, you should inspect it for accuracy in contents and freshness then immediately transfer it to your fridge, freezer or other appropriate food storage facilities. While the Vessel is designed to enhance food freshness, you agree to follow proper food inspection, handling, storage and other safety protocols, as set out below under “FOOD SAFETY.”
ORDERING, BILLING AND TERMS OF SALE
We may set minimum order sizes based on dollars spent, order size (by volume or Vessel fullness percentage) or otherwise. We will indicate the applicable minimum in your Cart and at checkout. We may also adjust your shipping costs or eliminate them entirely based on stated order sizes and thresholds. In addition, we do require that certain Meals be ordered in increments of multiple serving sizes (e.g., “Add 2” or “Add 4”). When you complete a Service order, as part of your Cart functionality and at a minimum, prior to checkout, you will be required to select a “delivery on” date, which will be the date that we deliver the Vessel with that order to you. Please note that delivery dates will vary based on your location and other factors and we generally only deliver on certain days. We will communicate the order and shipping cost terms that apply to your orders at the time of order, as part of your order checkout. If you do not agree to them, your only remedy is not to complete the order.
Meal Plan Memberships
In addition to a-la-carte purchases, we offer recurring memberships (“Meal Plans”), where you agree to receive a weekly Vessel delivery that will automatically continue until you cancel your Meal Plan membership. We may offer a variety of Meal Plans, including special promotional plans or memberships with differing conditions and limitations. The mix of items and pricing for your Meal Plan will be communicated to you upon your Meal Plan registration and can be reviewed, edited (as permitted), and/or cancelled at any time by going to the “Meal Plan” tab in your account management area of the Service. You may also opt out of any particular weekly delivery by following instructions in the “Orders” tab in your account management area–but please be aware that opting out of a weekly delivery will not cancel your Meal Plan plan membership, which will continue after the opt-out week.
We reserve the right to modify, terminate or otherwise amend our offered Meal Plans.
Promotions; Partner Meal Plans. We and/or our partners may market discounted or free Meal Plan introductory membership offers. We and/or our partners may also sell or distribute vouchers, codes, hyperlinks or other tools (“Linking Tools”) that allow you to purchase or access a specifically discounted or free introductory Meal Plan membership. We may partner with Tastemakers or other parties to offer market Meal Plans that may be branded or co-branded with them (“Partner Meal Plans”). In certain cases, these partners may have additional requirements, for you to register for their Partner Meal Plans. For example, to access a Weight Watchers Partner Meal Plan, you may be required to input a promotional voucher code that Weight Watchers has sold or provided to you, as well as your Weight Watchers membership number. FreshRealm is not responsible for any claims made by any third party (such as Weight Watchers) who sold or distributed a Meal Plan and/or any Linking Tool to you and, vis-à-vis FreshRealm, your redemption of the same with FreshRealm will solely be governed by this Agreement.
In all cases, regardless of any discounted or free introductory Meal Plan offer that you register for, (i) your Meal Plan will automatically renew on a weekly basis and be charged to you on a weekly basis, at the full, non-discounted, recurring rate communicated to you on the registration page; and (ii) your Meal Plan membership will continue until you cancel, like any other Meal Plan.
By providing a credit card or other payment method that we accept, you authorize us (or our third party payment processor) to charge your payment method for the total amount of your order, including any taxes, shipping or other charges or credits (as part of any promotions) communicated to you on the order confirmation page. We will only charge your account when your order is shipped. However, we may issue a charge authorization after you place your order but before shipment. If your payment method cannot be verified, is invalid or is otherwise not acceptable, your order may be refused, suspended or cancelled. If you want to change or update your payment information, when you make your next purchase, you can choose to add a new card or payment method and swap it at that time. You may also contact our customer care.
Meal Plan Subscription Billing.
All Meal Plans, including but not limited to Partner Meal Plans, are subscription memberships that will be billed to you on a weekly basis (except for weeks that you opt out) and that will automatically continue until you cancel. By joining any Meal Plan, you authorize us to charge your selected payment method on a weekly basis (with timing determined by your billing cycle), until you cancel. Your opting out of any weekly order will not cancel your recurring Meal Plan membership and you will be billed again during the following week.
You acknowledge that the amount billed each week may vary from week to week for reasons that may include differing amounts due to promotional offers, including differing menu item selected for you by FreshRealm for the particular week, your swapping out selected menu items in any given week, promotional offer redemption, and/or changing or adding a plan, and you authorize us to charge your payment method for such varying amounts.
We do not provide refunds or credits for any partial-week membership period or any items delivered to you but not eaten or used.
You may cancel your membership at any time up to the order cutoff date for a particular week, by going to the “Meal Plan” tab in the account management area of the Service or contact our Customer Support. For additional information, see our Help Center
Shipping and Taxes
Our posted product prices exclude shipping and taxes and/or reflect elements of these costs that we have elected to bundle into the price. We may add shipping and/or taxes to your bill and will always communicate these to you as part of your order if we do, adding them to the total. If you do not agree to any shipping or taxes charges added to your order, do not confirm the order and complete the purchase.
Refer A Friend
Through the “Refer A Friend” offer and functionality, you can receive service credit in the dollar amount specified if you send the link or code that we generate for you to a first time, new Service user who validly creates a Service account, places an order and receives delivery of it. The credit you receive will be posted to your Service account and viewable in the “My Credits” area. You can only use the credit as part of the Service and it is not refundable or exchangeable for currency. If we terminate the Service or we or you terminate your Service membership and you have not yet used your your credit, you will lose it. In addition, if your credit does not constitute the necessary amount for a minimum order, you will not be able to use it unless you supplement it with additional credits or actual cash value. Last, please note, you may not use any method, such as multiple accounts, bots or otherwise to try to circumvent these terms. In addition, you may not post your link or code on public sites (like sites were promotional codes are generally posted or advertised) except for those where you have accounts that are personally and publicly connected to you (such as your Facebook or Twitter handles) or otherwise distribute it on a mass basis. Any action by you in violation of the foregoing can, at our discretion, result in your (and your recipients) forfeiting the right to receive the Refer A Friend credit and we reserve all other legal rights. We also reserve the right to reject any new users that you refer for any reason and to turn off the functionality in total or just for you at anytime. If you are the recipient of any Refer A Friend or other promotional code or promotion that relates to our Service, we do not guarantee that the code or promotion will be active or valid.
We generally use carriers like FedEx™ to deliver orders. When your order is shipped, we will email you with the tracking information for it. We will also try to contact you if we need to change its delivery status. However, it is up to you track your package and to be available to receive it.
You should be available to open, inspect and unpack your order by no later than 9pm on the date that it is delivered. However, for certain orders, we may notify you that you need to open it sooner and in those cases, you agree to do so. If weather or other events beyond our control block our ability to deliver your order, we will do so as soon as reasonably possible. If we cannot deliver your order on time, we will try to reschedule it but if we have to cancel, we will issue you a credit or refund of the purchase price.
Once our order is delivered to you, you assume the risk for it. That is, you are responsible for ensuring its safety (we can’t help you if it stolen, lost or damaged on your watch) and it is your job to ensure that you pick up the delivery and move the food to your fridge or freezer before it spoils (see “Food Safety–Handling” below).
Finally, please note that FedEx and other carriers will generally leave products at your doorstep or other delivery spot, even if you are not there. We or they may offer you the ability to set alternate delivery options. In all cases, you agree that any person who accepts delivery of your order at the address you provided to us is doing so on your behalf.
Once we deliver food to you, it is your job and responsibility to handle, store and prepare it safely. This includes:
- Inspection. You agree to inspect all products for freshness and accuracy (i.e., that the right food was delivered at the right temperature). If you have any reason to think that any product in your delivery is not fresh (is too warm, looks or smells wrong or otherwise) or if you think you received the wrong item(s), please (i) do not eat the items and (ii) contact us as described under “Returns”.
- Prompt Opening. If you can’t open the Vessel immediately, you should ensure that you open it by 9pm on the delivery date, at the latest–but earlier if we have told you to for your order. If you wait longer your food safety is likely to be compromised and you will not be eligible for refunds under “Returns” below. Also, although we’ve designed the Vessel to keep food cooled and fresh we cannot guarantee how long it will do so in any particular place. So even if it is before 9pm on the delivery date, always carefully inspect the products after you open them. On warmer days your food may spoil quicker and you should act accordingly.
- Proper Storage; Handling. Once you open a delivery, you agree to store and handle food in accordance with good food safety practices. This means, among other things, promptly refrigerating or freezing any perishable items. We recommend that you follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety.
- Cooking. It is your responsibility to properly prepare and cook your food using good food safety practices. Among other things, you should ensure that all meat, poultry, seafood and other applicable items are cooked to the USDA’s recommended internal temperatures, which can be found here: http://www.fsis.usda.gov/wps/portal/fsis/topics/food-safety-education/get-answers/food-safety-fact-sheets/safe-food-handling/safe-minimum-internal-temperature-chart/ct_index. Also, any recipes we or our Tastemakers provide are meant to be suggestions. It is up to you to adjust them for the nuances of your cookware, taste and environment—and it is up to you ensure that you cook safely. Please be cognizant of any allergies or reactions that you or your guests may have (see “Food Safety–Allergies”).
- Assumption of Risk. In all cases, you hereby agree to assume all risk relating to (i) your improper storage, handling or cooking of any food, and (ii) any allergies or other reactions you may have to the food, including the same risks relating to any person to whom you share your food with.
We store, prep, and package our food in facilities that handle all of the food allergens that are typically considered to be major, including wheat, milk, egg, soy, fish, shellfish, peanuts, and treenuts. There are other food allergens that may also be present in our or our partners’ facilities. We cannot and do not guarantee that cross contamination among products will not occur. So if you are particularly sensitive to any known allergen, you should not order from us.
You may cancel any order up to the order cutoff deadline that we message on the Service. The exact cutoff deadline for any particular order can be found in the “My Orders” section of your account, on the order detail page. Please see more about the order cutoff deadline in our Help Center. Once the order cutoff deadline is passed, you will be charged the full purchase price for your order with no possibility of cancellation for a refund.
If you are unhappy with any item we deliver because (i) it was a substitute (from your order) (ii) you think it is spoiled, rotten or otherwise damaged (iii) it was the wrong item or (iv) you are otherwise dissatisfied with it, you can contact us, before the Eat By Date for the item, at [email protected] or (800) 264-1297 to request a credit or refund. We will review your complaint and either respond with our conclusion, replace the item(s) at issue at our expense or provide you a full or partial credit or refund of the purchase price for the items at issue. We may require the return or photographic documentation of any meal ingredient with which you are dissatisfied to support our decision. The above is your only remedy relative to products that you are dissatisfied with.
Notices From Us
You agree that any notices, agreements or disclosures that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing.
We may provide functionality or areas of our Service or Site that allow you to add reviews or commentary, share links to items we offer with related commentary, “like” or otherwise indicate your approval or feelings about certain items or otherwise interact with us and our products in an interactive fashion. In certain cases, some of this functionality may be offered via plug-ins, widgets, APIs or other functionality provided by or meant to interact with third party sites, such as Facebook, Instagram, Twitter....etc. In all cases, you agree to only provide comments or feedback that are offered within the spirit of our community, for the purpose of providing useful, non-commercial, good-natured feedback relative to the products you are commenting upon or sharing. We reserve the right, in our absolute discretion, to remove, review and/or deny any such posting or action that we believe to be mean spirited, commercial, automatically or fraudulently generated or otherwise in violation of the spirit of our Site and Service. You also agree that your commentary will (i) never include any items that are abusive, violate any party’s intellectual property, personal or privacy rights, (ii) be otherwise in conformance with any guidelines we provide to you, including the rules set forth below under “PROHIBITED USES AND ACTIONS” and (iii) you grant us a continuing license to your commentary, as set forth below under “YOUR LICENSE TO US”.
We may change, adjust, add to or remove elements from the Service at any time. In all cases, your only recourse if you do not agree to any changes is to stop using the Service. We may also terminate our provision of the Service entirely, without any liability to you.
We maintain the Site to provide Service access online (for supported browsers), for marketing and for informational purposes.
PROHIBITED USES AND ACTIONS
You understand and hereby acknowledge and agree that you may not and warrant that you will not:
- use the Service in any way that (i) violates the terms of this Agreement, (ii) is purposefully or otherwise abusive to any third party or (iii) for any purpose other than its intended use;
- impersonate any person or entity or access the accounts of other Service users;
- unless you are an authorized sponsor or other commercial partner of ours, use the Service for any commercial or non-private use;
- intentionally interfere with or damage operation of the Service or Site;
- attempt to gain unauthorized access to the Site or Service, or any part of these, other accounts, computer systems or networks connected to them, or any part of these;
- post any information or material which a reasonable person could deem to be objectionable, libelous, offensive, indecent, pornographic, harassing, threatening, embarrassing, distressing, vulgar, hateful, racially or ethnically offensive, or otherwise inappropriate;
- upload, post, or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” or any other form of solicitation;
- solicit, collect or store (or attempt to) personal information or data about other Service users, or disclose another user’s personal information or data to any third party;
- post, store, send, or disseminate any material which infringes any patents, trademarks, trade secrets, copyrights, or any other proprietary or intellectual property rights.
YOUR LICENSE TO US
You hereby grant to us, to the extent necessary for us to (i) provide the Service to you and/or (ii) as part of our marketing and/or promotional efforts in relation to the Service, to, a royalty-free, fully paid up, perpetual, worldwide, irrevocable, non-exclusive and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, combine with other works, create derivative works from, distribute, perform, edit and display any comments or other content that you upload, publish or otherwise provide to or as part of the Service (“User Content”). The foregoing grant includes, without limitation, any copyrights and other intellectual property rights in and to your User Content.
You hereby represent and warrant to us that: you own the User Content posted by you on or through the Service or otherwise have the right to grant this license; and the posting of your User Content on or through the Service does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person. You agree to pay for all royalties, fees, and any other monies owing any person by reason of any User Content you posted to or through the Service.
SCOPE OF OUR LICENSE TO YOU
The Service is licensed, not sold, to you for use only under the terms of this Agreement. This license granted to you is limited to a non-transferable license to use the Service on any compatible device that you own or control and as permitted herein. You may not rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy (except as expressly permitted by this), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Service or any, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law). If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by us that replace and/or supplement the original version of the Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
If anyone brings a claim against us related to your actions, content or information on the Service (which includes any action, content or information occurring from your account), you will indemnify and hold us (including our affiliates and any of our and their investors, officers, directors and employees) harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.
SUGGESTIONS AND IMPROVEMENTS
By sending us any ideas, suggestions, documents or proposals about our Service or otherwise, including any that may be included as part of Comments or other public areas of the Service (“Feedback”), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback.
THIRD PARTY MATERIALS AND SITE LINKS
You understand that within the Service you may encounter content uploaded by our Tastemakers or by other users in any commentary or similar social areas that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language. Nevertheless, you agree to use the Service at your sole risk and that FreshRealm shall not have any liability to you for content that may be found to be offensive, indecent, or objectionable.
We may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By accessing or using the Service, You acknowledge and agree that FreshRealm is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Third Party Materials and links to other web sites are provided solely as a convenience to you. If you click through any links or use widgets that lead you to third party sites or applications, you understand and agree that (i) FreshRealm does not endorse such sites and apps and is not responsible for their content, and (ii) such sites and apps will be governed by their own terms and conditions and privacy practices, which you should review.
Subject to all of the terms and conditions stated herein and on our Site and Service, we only warrant to you that we will use good faith, reasonable efforts to deliver the products that you have ordered from us to you, in a fresh state, within the timeframes and subject to the parameters and conditions that we have described to you. However, your only remedy relative to any breach of the foregoing by us is to seek a refund or credit for the amount that you have paid to us—and you expressly agree to the limitation of liability set forth under “LIMITATION OF LIABILITY BELOW.” If you do not agree to the foregoing, do not use the Service.
LIMITATION OF LIABILITY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICE (INCLUDING BUT NOT LIMITED TO YOUR (OR ANY PART’YS) CONSUMPTION OF ANY MEALS, INGREDIENTS OR OTHER ITEMS DELIVERED TO YOU) IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THE SERVICE AND ANY PRODUCTS PROVIDED THEREON ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND, APART FROM THE LIMITED WARRANTY DESCRIBED ABOVE, WITHOUT WARRANTY OF ANY KIND. FRESHREALM HEREBY DISCLAIMS ANY OTHER WARRANTIES AND CONDITIONS WITH RESPECT TO THE FOREGOING, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL FRESHREALM BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER PERSONAL OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, INCLUDING ANY PRODUCTS OR SERVICES OFFERED THEREON, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF FRESHREALM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL FRESHREALM’S (INCLUDING ITS AFFILIATES AND THEIR OFFICERS, EMPLOYEES, DIRECTORS AND INVESTORS) TOTAL LIABILITY TO YOU FOR ALL DAMAGES EXCEED AN AMOUNT THAT IS EQUAL TO THE GREATER OF (I) THE AMOUNT YOU PAID TO FRESHREALM AS PART OF THE SERVICE OR (II) $100.00. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE FRESHREALM’S (INCLUDING ITS AFFILIATES AND THEIR INVESTORS, OFFICERS, DIRECTORS AND EMPLOYEES) SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” NO PERSON ACTING ON FRESHREALM’S BEHALF HAS ANY AUTHORITY TO MAKE OR CLAIM ANY REPRESENTATION, TERM, PROMISE, CONDITION, STATEMENT, WARRANTY, OR INDUCEMENT (COLLECTIVELY, “INDUCEMENT”) NOT EXPRESSED HEREIN. BY ACCEPTING THESE TERMS AND CONDITIONS, YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY INDUCEMENT THAT IS NOT EXPRESSED IN THIS AGREEMENT.
Rules For, Contests, Sweepstakes and other Promotions
“FreshRealm” the FreshRealm logo and any other FreshRealm service names, logos or slogans that may appear on the Service and Site are trademarks of FreshRealm and may not be copied, imitated or used, in whole or in part, without our prior written permission. You may not use any metatags or other “hidden text” utilizing “FreshRealm” or any other name, trademark or product or service name of FreshRealm without our prior written permission. In addition, the look and feel of the Site and Service, including, without limitation, all recipes, page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of FreshRealm and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned on the Site or Service, including those of any Tastemakers are the property of their respective owners and may not be copied, imitated or used, in whole or in part, without the permission of the applicable trademark holder.
We respect the intellectual property rights of others and require that Service users do the same. If you believe that your proprietary work has been copied in a way that constitutes copyright infringement, please forward the following information to the Company’s Copyright Agent, designated as such pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 512(c)(2), named below: (a) A physical signature of the person authorized to act on behalf of the owner of the copyright; (b) A description of the copyrighted work that you claim has been infringed; (c) A description of where the material that you claim is infringing is located on the Services; (d) Your address, telephone number, and email address; (e) 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; and (f) 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 authorized to act on the copyright owner’s behalf. Copyright Agent: General Counsel, FreshRealm, LLC, 476 East Main Street, Ventura, CA 93001. E-mail: [email protected], subject line “DMCA TAKEDOWN NOTICE.”
Waiver of Subrogation
You waive any rights your insurance company may have to be reimbursed by FreshRealm or its representatives for money paid to you or on your behalf.
If any provision of the terms of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and shall not affect the validity and enforceability of any remaining provisions of this Agreement.
FreshRealm may, in its sole discretion, subcontract for the provision of services under this Agreement and/or with regard to the development, maintenance and operation of the Service or any components thereof. You acknowledge and agree that the provisions of this Agreement inure to the benefit of and are applicable to any subcontractors engaged by FreshRealm to provide any service set forth herein to you, and bind you to such subcontractor(s) with the same force and effect as they bind you to FreshRealm.
DISPUTE RESOLUTION; ARBITRATION; NO CLASS ACTIONS
To seek arbitration or to file a small claim court action against FreshRealm, you must first send to FreshRealm, by certified mail, a written notice of your claim, including a description of the basis for the claim and the relief being sought, to: General Counsel, FreshRealm, LLC., 100 476 East Main Street, Ventura, CA 93001. If we initiate arbitration, we will send a similar written notice to the email address used for your membership account. Following either party’s receipt of such a written notice, the parties agree to first use reasonable efforts to reach an amicable resolution to the claim. However, if the parties cannot reach an agreement to resolve the claim within 30 days after the notice is received, you or FreshRealm may commence an arbitration proceeding or file a claim in small claims court.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879. You can also write to FreshRealm (including by submitting a request with your written notice for the dispute) and we will provide them to you. The arbitrator will be bound by the terms of this Agreement. All issues will be for the arbitrator to decide, including issues relating to the scope and enforceability of this arbitration agreement. Unless the parties agree otherwise, any arbitration hearings will take place within 100 miles of your residence.
YOU AND FRESHREALM 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.
Further, unless both parties agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim.
YOU AND FRESHREALM AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SERVICE MUST COMMENCE WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION ACCRUES OR THE APPLICABLE STATUTE OF LIMITATIONS PERIOD. OTHERWISE, SUCH CAUSE OF ACTION SHALL BE PERMANENTLY BARRED.
The laws of the State of California, excluding its conflicts of law rules, govern this Agreement and your use of the Service. All claims arising out of or relating to the terms of this Agreement or the Service, to the extent not arbitrated or resolved in small claims court as required herein, will be litigated exclusively in the federal or state courts of California, sitting in Los Angeles County, and you and FreshRealm consent to personal jurisdiction in those courts.
For specific Service support issues, you may contact us at [email protected] or (800) 264-1297. We do not guarantee that we will respond to any emails in a way that satisfies you or at all.