This Terms of Service Agreement (“Agreement”) is a legal agreement between Fresh Technology, Inc. d/b/a Fresh KDS and ToGoTechnologies, its affiliates, or its agents (collectively, “Fresh Technology”) and the users of the Service (“you”, “your”, or “user”) who registered. This Agreement describes the terms and conditions that apply to your use of the website located at www.freshtechnology.com (the “Website”) and the mobile application (each a “Service” and collectively, the “Services”). Fresh Technology offers two restaurant technologies: (1) a tablet-based kitchen display system that improves operational efficiency in food orders while reducing error and increasing revenue (“Fresh KDS”) and (2) a white-label online ordering platform that includes analytics to provide details about customers, navigation tracking, and insights on campaigns (“ToGo Technologies”). All such additional terms, guidelines, and rules (collectively, the “Supplemental Terms”) are incorporated by reference into this Agreement.
PLEASE READ THIS AGREEMENT CAREFULLY. THE SERVICES AND THE INFORMATION IN IT ARE CONTROLLED BY FRESH TECHNOLOGY. THIS AGREEMENT GOVERNS THE USE OF THE SERVICE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE OR USING THE WEBSITE, APPLICATION AND/OR SERVICES. BY ACCESSING OR USING THE SERVICES IN ANY WAY, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR BROWSING THE WEBSITE OR DOWNLOADING FRESH TECHNOLOGY’S MOBILE APPLICATION (THE “APPLICATION”), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FRESH TECHNOLOGY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THIS AGREEMENT. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICES.
IF YOU SUBSCRIBE TO THE SERVICES FOR A TERM (THE “INITIAL TERM”), THEN THE TERMS WILL BE AUTOMATICALLY RENEWED FOR ADDITIONAL PERIODS OF THE SAME DURATION AS THE INITIAL TERM AT FRESH TECHNOLOGY’S THEN-CURRENT FEE FOR SUCH SERVICES UNLESS YOU OPT OUT OF THE AUTO-RENEWAL SUBSCRIPTION IN ACCORDANCE WITH SECTION 7.6 (AUTOMATIC RENEWAL) BELOW.
PLEASE BE AWARE THAT SECTION 14 (DISPUTE RESOLUTION) OF THIS AGREEMENT, BELOW, CONTAINS PROVISIONS GOVERNING HOW DISPUTES THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 1.6 FRESH TECHNOLOGY COMMUNICATIONS OF THIS AGREEMENT, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, TEXT MESSAGE, CALLS AND PUSH NOTIFICATION.
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY FRESH TECHNOLOGY IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Fresh Technology will make a new copy of this Agreement available through the Services. We will also update the “Last Updated” date at the top of the Terms of Use Agreement. Fresh Technology may require you to provide consent to the updated Agreement in a specified manner before further use of the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Services. Otherwise, your continued use of the Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
USE OF THE SERVICES.
Services. Our Services, and the information and content available in the Services (as these terms are defined herein) are protected by copyright laws throughout the world. Unless otherwise specified by Fresh Technology in a separate license, your right to use any and all of the Services is subject to the Agreement.
Application License. Subject to your compliance with the Agreement, Fresh Technology grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of the Application on a single mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store (a “Google Play Sourced Application”), you may have additional license rights with respect to use of the Application on a shared basis within your designated family group.
License to the Software. Use of the Software is subject to any Supplemental Terms, including any payment terms, made available to you in connection with such Software. These license terms may be posted at the Website page where the Software can be accessed. “Software” means Fresh Technology’s proprietary software that powers personalized interactions between Merchants and their end users by tailoring Merchant’s communications to such end users’ preferred messaging platforms. You shall not access, use, download or install any Software (including without limitation any SDK, API, or API key) that is accompanied by or includes a license agreement unless you agree to the terms of such license agreement and this Agreement. At no time will Fresh Technology provide you with any tangible copy of our Software. Fresh Technology shall deliver access to the Software via electronic transfer and shall not use or deliver any tangible media in connection with the (a) delivery, installation, updating or problem resolution of any Software (including any new releases); or (b) delivery, correction or updating of documentation. For the purposes of this section tangible media shall include, but not be limited to, any tape disk, compact disk, card, flash drive, or any other comparable physical medium. Any redistribution of the Software is prohibited except as expressly set forth in the applicable license agreement, including any redistribution or use on a service bureau basis. If there is any conflict between the Agreement and the license agreement, the license agreement shall take precedence in relation to that Software (except as provided in the following sentence). If the Software is a pre-release version, then, notwithstanding anything to the contrary included within an accompanying license agreement, you are not permitted to use or otherwise rely on the Software for any commercial or production purposes. If no license agreement accompanies use of the Software, use of the Software will be governed by the Agreement. Subject to your compliance with the Agreement, Fresh Technology grants you a non-assignable, non-transferable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner contemplated and to the extent permitted by the Agreement. Some Software may be offered under an open source license that we will make available to you. There may be provisions in the OSS licenses that expressly override some of these terms.
Updates. You understand that the Services are evolving. As a result, Fresh Technology may require you to accept updates to the Services that you have installed on your computer or mobile device. You acknowledge and agree that Fresh Technology may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other the Services (including images, text, page layout or form) of Fresh Technology; (c) you shall not use any metatags or other “hidden text” using Fresh Technology’s name or trademarks;(d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Service (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Service for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Fresh Technology, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any of the Service terminates the licenses granted by Fresh Technology pursuant to the Agreement.
Fresh Technology Communications. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, communications concerning promotions run by us or our third-party partners, and news concerning the Fresh Technology and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages that we send. [IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY REPLY TEXT “STOP” TO FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE SERVICES OR RELATED SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM US (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN REPLY TEXT THE WORD “STOP” FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. HOWEVER, YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE SERVICES OR RELATED SERVICES.]
REGISTRATION.
Registering Your Account. In order to access certain features of the Services, you will have to register an account on the Service (“Merchant”) [or have a valid account on the social networking service (“SNS”) through which the user has connected to the Website (each such account, a “Third-Party Account”),]. Whether registering through an account via the Services or a valid SNS account (each, an “Account”), you must provide certain information about yourself as prompted by the Service. You represent and warrant that: (a) all required registration information you submit is true and accurate; and (b) you will maintain and promptly update such information to keep it true and accurate. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fresh Technology has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fresh Technology has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account or use the Services if you have been previously removed by Fresh Technology, or if you have been previously banned from any of the Services. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Fresh Technology.
No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Fresh Technology community, is discontinued by Fresh Technology due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Fresh Technology community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those the Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Fresh Technology reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
RESPONSIBILITY FOR CONTENT.
Types of Content. You acknowledge that all Content, including the Services, is the sole responsibility of the party from whom such Content originated. This means that you, and not Fresh Technology, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (collectively part of “Merchant Content” as defined in Section 4.3), and that you and other Merchants of the Services, and not Fresh Technology, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Fresh Technology has no obligation to pre-screen Content (including, but not limited to, User Content), although Fresh Technology reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Merchant Content, including without limitation chat, text, or voice communications. In the event that Fresh Technology pre-screens, refuses or removes any Content, you acknowledge that Fresh Technology will do so for Fresh Technology’s benefit, not yours. Without limiting the foregoing, Fresh Technology shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Fresh Technology in writing elsewhere, Fresh Technology has no obligation to store any of Merchant Content that you Make Available on the Services. Fresh Technology has no responsibility or liability for the deletion or accuracy of any Content, including Merchant Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of the Services. Certain Services may enable you to specify the level at which such Services restrict access to Merchant Content. You are solely responsible for applying the appropriate level of access to Merchant Content. If you do not choose, the system may default to its most permissive setting. You agree that Fresh Technology retains the right to create reasonable limits on Fresh Technology’s use and storage of the Content, including Merchant Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Fresh Technology in its sole discretion.
OWNERSHIP.
The Services. Except with respect to Merchant Content and User Content, you agree that Fresh Technology and its suppliers own all rights, title and interest in the Services including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Fresh Technology software. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying any the Services.
Trademarks.
and all related graphics, logos, service marks and trade names used on or in connection with any the Services or in connection with the Services are the trademarks of Fresh Technology and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
Merchant Content. Merchant shall be responsible for providing all content necessary to enable Fresh Technologies to perform the Services hereunder, including without limitation: trademarks, logos, branding, artwork, menus, pricing, and other content related to your offerings and restaurant or store (“Merchant Content”). Fresh Technology does not claim ownership of Merchant Content. However, when you as a Merchant post or publish Merchant Content on or in the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Merchant Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Merchant Content.
License to Merchant Content. Subject to any applicable account settings that you select, you grant Fresh Technology a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Merchant Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Merchants. Please remember that other users may search for, see, use, modify and reproduce any of Merchant Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Merchant Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You are responsible for the accuracy of Merchant Content, including without limitation, (i) Merchant Content initially loaded onto the Services and approving the activation of the Merchant Content on the Services and (ii) making all changes to the Merchant Content either through certain administrative tools made available to you via the Services. You agree that you, not Fresh Technology, are responsible for all of Merchant Content that you Make Available on or in the Services.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Fresh Technology through its suggestion, feedback, forum, or similar pages (“Feedback”) is at your own risk and that Fresh Technology has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fresh Technology a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Fresh Technology’s business.
USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) either (a) take any action or (b) Make Available any Content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fresh Technology’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Fresh Technology; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
MERCHANT RESPONSIBILITIES.
You shall be responsible for paying all third-party service fees for services affiliated or integrated into the Services, associated with the hosting, menu management, and maintenance of the e-commerce website.
You further grant Fresh KDS and ToGo Technologies a non-exclusive, royalty-free, irrevocable, worldwide right and license to use and display reference to Merchant in our customer lists and marketing materials as well as to post “Powered by ToGoTechnologies” or “Powered by Fresh KDS” across the Service. You waive any right to payment, royalties, or any other consideration for the use of the images. You waive the right to inspect or approve the finished work product, including written or electronic copy, where your name or logo may appear.
Further, you are solely responsible for:
Fulfilling all food orders (“Orders”) in a timely, accurate and professional manner and shall honor all special offers and promotions that you, your affiliates or agents may make in connection with the Service in accordance with the terms and conditions disclosed to customers and all applicable laws, rules and regulations;
Complying with all federal, state and local laws, rules and regulations, including but not limited to Americans with Disability Act compliance, and other third-party rights with respect to the Merchant Content, in the conduct of your business (including without limitation all alcohol and/or CBD/cannabis sales); applicable health and safety codes; delivery service; computation and payment of sales, use or other taxes to the appropriate taxing authority(ies); and all matters concerning quality and condition of any Order or any menu item purchased in connection therewith;
Maintaining commercial general liability insurance with limits no less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate. Merchant shall provide Fresh Technology with a certificate of insurance upon request, and any certificates of insurance shall provide that thirty (30) days prior written notice to Fresh Technology of cancellation or nonrenewal is required.
Any and all acts and omissions of any of your restaurants, affiliates and providers and expressly acknowledge that a breach of this Agreement by one of Your restaurants or affiliate is a breach by you. Further, we expressly disclaim all responsibility and liability with respect to: (i) customer redemption of or inability to redeem your special offers and promotions; (ii) third party software, add-ons or providers; (iii) fulfillment and delivery of Orders, including without limitation all alcohol or CBD/cannabis sales. You shall not directly or indirectly encourage or solicit customers to bypass use of the Services by placing future Orders through you. You, at your own expense, shall obtain all necessary approvals from governmental, regulatory or other authorities with jurisdiction over your business, facilities and assets to enter in to and perform your obligations under this Agreement.
FEES AND PURCHASE TERMS.
General Purpose of Agreement: Sale of Service, not Software. The purpose of the Agreement is for you to secure access to the Services. All fees set forth within and paid by you under the Agreement shall be considered solely in furtherance of this purpose. In no way are these fees paid considered payment for the sale, license, or use of Fresh Technology’s Software, and, furthermore, any use of Fresh Technology’s Software by you in furtherance of the Agreement will be considered merely in support of the purpose of the Agreement.
Payment. You must provide Fresh Technology with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) or bank account of a payment provider (“Payment Provider”), or purchase order information, as a condition to signing up for the Services. Fresh Technology will not store your payment information. Your Payment Provider agreement governs your use of the designated credit card or bank account, and you must refer to that agreement, not this Agreement, to determine your rights and liabilities. By providing Fresh Technology with your credit card number or bank account and associated payment information, you agree that Fresh Technology is authorized to immediately invoice your Account for all fees and charges due and payable to Fresh Technology hereunder and that no additional notice or consent is required. You agree to immediately notify Fresh Technology of any change in your billing address or the credit card or bank account used for payment hereunder. Fresh Technology reserves the right at any time to change its prices and billing methods, either immediately upon posting on the Services or by e-mail delivery to you.
Service Subscription Fees. You will be responsible for payment of the applicable fee for any Services (each, a “Service Subscription Fee”) at the time you create your Account and select your monthly or annual package (each, a “Service Commencement Date”). Except as set forth in the Agreement, all fees for the Services are non-refundable. No contract will exist between you and Fresh Technology for the Services until Fresh Technology accepts your order by a confirmatory e-mail, text message, or other appropriate means of communication.
Taxes. The payments required under Section 7.3 (Service Subscription Fees) of this Agreement do not include any Sales Tax that may be due in connection with the services provided under this Agreement. If Fresh Technology determines it has a legal obligation to collect a Sales Tax from you in connection with this Agreement, Fresh Technology shall collect such Sales Tax in addition to the payments required under Section 7.3 (Service Subscription Fees) of this Agreement. If any services, or payments for any services, under the Agreement are subject to any Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Fresh Technology, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Fresh Technology for any liability or expense Fresh Technology may incur in connection with such Sales Taxes. Upon Fresh Technology’s request, you will provide it with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
Withholding Taxes. You agree to make all payments of fees to Fresh Technology free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments of fees to Fresh Technology will be your sole responsibility, and you will provide Fresh Technology with official receipts issued by the appropriate taxing authority, or such other evidence as we may reasonably request, to establish that such taxes have been paid.
Automatic Renewal. Your subscription will continue indefinitely until terminated in accordance with the Agreement. After your initial subscription period, and again after any subsequent subscription period, your subscription will automatically commence on the first day following the end of such period (each a “Renewal Commencement Date”) and will automatically renew at Fresh Technology’s then-current price for such subscription. You agree that your Account will be subject to this automatic renewal feature unless you cancel your subscription by logging into and going to the “Billing and Subscriptions” page of your Fresh dashboard. If you do not wish your Account to renew automatically, or if you want to change or terminate your subscription, please contact Fresh Technology at support@freshtechnology or log in and go to the “Cancel” page on your “Account Settings” page. If you cancel your subscription, you may use your subscription until the end of your then-current subscription term; your subscription will not be renewed after your then-current term expires. However, you will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. By subscribing, you authorize Fresh Technology to charge your Payment Provider now, and again at the beginning of any subsequent subscription period. Upon renewal of your subscription, if Fresh Technology does not receive payment from your Payment Provider, (a) you agree to pay all amounts due on your Account upon demand and/or (b) you agree that Fresh Technology may either terminate or suspend your subscription and continue to attempt to charge your Payment Provider until payment is received (upon receipt of payment, your Account will be activated and for purposes of automatic renewal, your new subscription commitment period will begin as of the day payment was received).
Free Trials and Other Promotions. Any free trial or other promotion that provides Merchant level access to the Services must be used within the specified time of the trial. At the end of the trial period, your use of that Service will expire and any further use of the Service is prohibited unless you pay the applicable subscription fee. If you are inadvertently charged for a subscription, please contact Fresh Technology to have the charges reversed.
INDEMNIFICATION. You agree to indemnify and hold Fresh Technology, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Fresh Technology Party” and collectively, the “Fresh Technology Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Merchant Content; (b) your use of, or inability to use, any of the Services; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Merchants; or (e) your violation of any applicable laws, rules or regulations. Fresh Technology reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fresh Technology in asserting any available defenses. This provision does not require you to indemnify any of the Fresh Technology Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SERVICES IS AT YOUR SOLE RISK, AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FRESH TECHNOLOGY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. This Section 9 (Disclaimer of Warranties and Conditions) does not affect in any way our return policy or limited warranty for goods purchased on the Website.
FRESH TECHNOLOGY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SERVICES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SERVICES WILL BE ACCURATE OR RELIABLE.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FRESH TECHNOLOGY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FRESH TECHNOLOGY OR THROUGH SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FRESH TECHNOLOGY PARTIES ARE NOT LIABLE TO YOUR CUSTOMERS FOR ANY ERRORS AND/OR FAILURES OF FULFILLING ORDERS. YOU ARE SOLELY RESPONSIBLE FOR THE SERVICES PROVIDED BY YOU FOR THE BENEFIT OF YOUR CUSTOMERS.
FROM TIME TO TIME, FRESH TECHNOLOGY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT FRESH TECHNOLOGY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FRESH TECHNOLOGY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FRESH TECHNOLOGY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS, INCLUDING THE CUSTOMERS OF YOUR RESTAURANT, OF THE SERVICES. YOU UNDERSTAND THAT FRESH TECHNOLOGY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SERVICES. FRESH TECHNOLOGY MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. FRESH TECHNOLOGY MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY MERCHANT CONTENT AND CONTENT PROVIDED BY MERCHANT’S CUSTOMER THAT IS OBTAINED THROUGH THE SERVICES.
Third-Party Materials. As a part of the Services, you may have access to materials that are hosted by another party. You agree that it is impossible for Fresh Technology to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL FRESH TECHNOLOGY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FRESH TECHNOLOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF SERVICES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE SERVICES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH SERVICES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON SERVICES; OR (e) ANY OTHER MATTER RELATED TO SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A FRESH TECHNOLOGY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FRESH TECHNOLOGY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FRESH TECHNOLOGY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, FRESH TECHNOLOGY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO FRESH TECHNOLOGY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100;OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FRESH TECHNOLOGY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FRESH TECHNOLOGY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A FRESH TECHNOLOGY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. EXCEPT FOR FRESH TECHNOLOGY’S OBLIGATIONS TO PROTECT YOUR PERSONAL DATA AS SET FORTH IN THE FRESH TECHNOLOGY’S PRIVACY POLICY, FRESH TECHNOLOGY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FRESH TECHNOLOGY AND YOU.
MONITORING AND ENFORCEMENT. Fresh Technology reserves the right to: (a) remove or refuse to post any of your Content for any or no reason in our sole discretion; (b) take any action with respect to any of your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for the Fresh Technology; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of this Agreement. Fresh Technology is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Merchant Content, in Fresh Technology’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Merchant Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Fresh Technology, its Merchants or the public, and all enforcement or other government officials, as Fresh Technology in its sole discretion believes to be necessary or appropriate.
TERM AND TERMINATION.
Term. The Agreement commences on the earlier date of (1) when you accept them (as described in the preamble above) or (2) when you first used the Services, and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
Termination of Services by Fresh Technology. Except as set forth above, the Service Subscription Fee for any Service shall be non-refundable. If timely payment cannot be charged to your Payment Provider for any reason, if you have materially breached any provision of the Agreement, or if Fresh Technology is required to do so by law (e.g., where the provision of the Services is, or becomes, unlawful), Fresh Technology has the right to, immediately and without notice, suspend or terminate any Services provided to you. You agree that all terminations for cause shall be made in Fresh Technology’s sole discretion and that Fresh Technology shall not be liable to you or any third party for any termination of your Account.
Termination of Services by You. If you want to terminate the Services provided by Fresh Technology, please contact Fresh Technology at support@freshtechnology or log in and go to the “Billing and Subscriptions” page on your Fresh Dashboard. THE SERVICES WILL CONTINUE AT THE END OF EACH SUBSCRIPTION PERIOD UNLESS YOU CANCEL YOUR SUBSCRIPTION IN ACCORDANCE WITH THE PROCEDURE SET FORTH IN SECTION 7.6 (AUTOMATIC RENEWAL).
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Merchant Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Merchant Content associated therewith from our live databases. Fresh Technology will not have any liability whatsoever to you for any suspension or termination, including for deletion of Merchant Content. All provisions of the Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
INTERNATIONAL USERS. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Fresh Technology intends to announce such Services or Content in your country. The Services are controlled and offered by Fresh Technology from its facilities in the United States of America. Fresh Technology makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
DISPUTE RESOLUTION.Please read the following arbitration agreement in this section (“Arbitration Agreement”) carefully. It requires US users to arbitrate disputes with Fresh Technology and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with Fresh Technology, will be resolved by binding arbitration, rather than in court, except that (a) you may assert claims or seek relief in small claims court if your claims qualify,; and (b) you or Fresh Technology may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent [include name and address of registered agent here]. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Fresh Technology will pay them for you. In addition, Fresh Technology will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fresh Technology. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND FRESH TECHNOLOGY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fresh Technology are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 15.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Other Non-Individualized Relief. ALL DISPUTES, CLAIMS, AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of DELAWARE. All other disputes, claims, or requests for relief shall be arbitrated.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: legal@freshtechnology.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fresh Technology username (if any), the email address you used to set up your Fresh Technology account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. Except as provided in Section 15.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fresh Technology.
Modification.Notwithstanding any provision in this Agreement to the contrary, we agree that if Fresh Technology makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Fresh Technology at the following address: legal@freshtechnology.com.
THIRD-PARTY SERVICES.
Third Party Service Provider. The Fresh Technology uses Chase as the third party service provider for payment services (e.g., card acceptance, merchant settlement, and related services) (a “Third Party Service Provider”). By buying or selling on any of the Services, you agree to be bound by Chase’s Privacy Policy (currently accessible at https://merchantservices.chase.com/online-privacy-policy) and its Terms of Service (currently accessible at https://www.chase.com/digital/resources/terms-of-use and hereby consent and authorize the Fresh Technology and Chase to share any information and payment instructions you provide with one or more Third Party Service Provider(s) to the minimum extent required to complete your transactions.
Accessing and Downloading the Application from the Apple App Store. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
You acknowledge and agree that (i) the Agreement is concluded between you and Fresh Technology only, and not Apple, and (ii) Fresh Technology, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Fresh Technology and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Fresh Technology.
You and Fresh Technology acknowledge that, as between Fresh Technology and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
You and Fresh Technology acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Fresh Technology and Apple, Fresh Technology, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
You and Fresh Technology acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
GENERAL PROVISIONS.
Electronic Communications. The communications between you and Fresh Technology may take place via electronic means, whether you visit the Services or send Fresh Technology e-mails, or whether Fresh Technology posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fresh Technology in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fresh Technology provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fresh Technology’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Fresh Technology shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: support@freshtechnology.com
. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fresh Technology agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Delaware.
Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF DELAWARE, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Choice of Language. It is the express wish of the parties that the Agreement and all related documents have been drawn up in English.
Notice. Where Fresh Technology requires that you provide an e-mail address, you are responsible for providing Fresh Technology with your most current e-mail address. In the event that the last e-mail address you provided to Fresh Technology is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Fresh Technology’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fresh Technology at the following address: support@freshtechnology.com. Such notice shall be deemed given when received by Fresh Technology by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
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