Terms and Conditions of The Fresh Diet
Last updated 10/25/2019
Welcome and thank you for visiting TheFreshDiet.com (“Site”) and our Terms and Conditions (“Terms”).
PLEASE REVIEW THE TERMS CAREFULLY, PARTICULARLY SECTION 5.3 DETAILING THE AUTO-RENEWAL SUBSCRIPTION LANGUAGE, SECTION 21.1 RELATED TO ALLERGENS, AND SECTION 24 RELATED TO BINDING ARBITRATION. IF YOU DO NOT AGREE TO THE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO USE THE FRESH DIET OFFERINGS IN ANY MANNER OR FORM.
The Fresh Diet (“The Fresh Diet,” “We,” “Our,” “Us” or “Company”) operates this Site.You agree to be bound by the following Terms, in their entirety, when you: (1) Use, access, or visit the Site; (2) Purchase or receive any good or service offered through the Site and/or, including, but not limited to, The Fresh Diet Subscription Service as defined in Section 5 (“Products”); (4) Listen to, access, or view any of the text, audio, video, graphics, or other content featured on the Site (“Content”); (5) access links to or view The Fresh Diet social media pages or accounts on third party social media websites, including, but not limited to, Facebook, Instagram, Pinterest, Twitter, Snapchat, and LinkedIn (“Social Media”); (6) Purchase, redeem, or sign up to receive or send The Fresh Diet gift cards or gift certificates (including, for the purposes of these Terms, electronic versions of both) (“Gift Cards”) or Trial Offers, Sweepstakes, Contests, or Promotions(“Vouchers”, as defined in Section 9).
You should print a copy of these terms and conditions for future reference.
Please tick the checkbox in the shopping cart to accept these terms and conditions. Please understand that if you refuse to accept these terms and conditions, you will not be able to order any Products from our Site.
1. INFORMATION ABOUT US
The Fresh Diet, is a general corporation incorporated in the State of Florida with general corporate offices at:
5706 Troost Ave
Kansas City, MO 64110.
2. SERVICE AVAILABILITY AND YOUR STATUS
The Site, and Offerings, are intended for use by individuals in the United States of America (“Serviced Countries”). At this time, we do not accept orders from individuals outside the Serviced Countries. As such, by placing an Order through our Site, you warrant that you: (1) Are legally capable of entering into these Terms; (2) Are at least 18 years old; (3) Are a resident of a Serviced Country; and (4) Are accessing the Site from a Serviced Country.
The latest Terms will be posted on the Site and, and you should review the Terms prior to using any Products offered by The Fresh Diet and from time to time thereafter. By your continued use of The Fresh Diet, you hereby agree to comply with, and be bound by, all of the terms and conditions contained within the Terms in effect at the time you access any Offerings offered by The Fresh Diet (other than for changes to the price/billing or dispute resolution pursuant to the preceding paragraph). All other amendments or modifications to the Terms shall be effective immediately upon publication on the Site.
4. ACCOUNT CREATION
In order to utilize specific features on the Site, individuals will need to create an account withThe Fresh Diet. Should you create an account with The Fresh Diet, you agree to: (1) provide the accurate and up-to- date information, as well as updating the information as necessary; (2) maintain the security of your password and accept the risks associated with access to your account which is not authorized by you; and (3) notify us as soon as possible either at email@example.com or call (786) 202-0463 if you believe there have been any breaches to the security of the Site, or your account information.
5. The Fresh Diet SERVICES
The Fresh Diet Subscription Service. Our Subscription Service is an automatic, recurring weekly subscription to The Fresh Diet Products (“Subscription Service” or “Service”). As part of the Service, we offer a number of subscription options that you may choose from (“Plan”). Each week you will receive a package from The Fresh Diet (your “Meal Box”), including the contents of your chosen Plan (a specific number and type of “Meal Kits”). You can find specific details regarding your Plan and the The Fresh Diet Service by accessing your account details via the Site.
Auto-Renewal Feature. THE SUBSCRIPTION SERVICE CONSISTS OF AN INITIAL CHARGE FOLLOWED BY RECURRING PERIODIC CHARGES AS AGREED TO BY YOU. BY ENTERING INTO THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOUR SUBSCRIPTION HAS AN INITIAL AND RECURRING PAYMENT FEATURE AND YOU ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO DEACTIVATION. IF YOU OPT INTO THE “VIP PROGRAM” PACKAGE (DISCOUNTED VIP RATES) AND WISH TO CANCEL YOUR SUBSCRIPTION BEFORE THE DECLARED END DATE (4, 8 or 12 WEEKS) WE OFFER A COMPLIMENTARY $200 CANCELLATION FEE. IF YOU DO NOT CANCEL AFTER THE INITIAL (4, 8, or 12 WEEKS) YOU WILL CONTINUE TO RENEW THE SUBSCRIPTION ORIGINALLY SELECTED. THE FRESH DIET MEALS MAY SUBMIT PERIODIC CHARGES (E.G., WEEKLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE ADVANCE NOTICE (IN COMPLIANCE WITH THE DEACTIVATION PROCEDURES IN SECTION 10.3) THAT YOU WISH TO TERMINATE THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE THE FRESH DIET MEALS REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, LOG ON TO YOUR THE FRESH DIET MEALS ACCOUNT, EMAIL firstname.lastname@example.org OR CALL (786) 202-0463. IF YOUR PAYMENT DETAILS CHANGE, YOUR CARD PROVIDER MAY PROVIDE US WITH THE UPDATED PAYMENT DETAILS. WE RESERVE THE RIGHT TO USE THESE UPDATED DETAILS FOR FUTURE CHARGES IN ORDER TO HELP PREVENT ANY INTERRUPTION TO THE DELIVERY OF SERVICE.
ADDITIONALLY, BY SIGNING UP FOR OUR SUBSCRIPTION SERVICE YOU ARE AGREEING TO RECURRING PERIODIC PAYMENTS FOR AN INDEFINITE TIME UNTIL DEACTIVATED BY YOU OR US, ON THE SUBSCRIPTION TERMS SET OUT IN THE APPLICATION FORM YOU HAVE COMPLETED, SUBJECT TO VARIATION IN ACCORDANCE WITH THIS SECTION. YOU CAN DEACTIVATE YOUR SUBSCRIPTION AT ANY TIME, PROVIDED THAT YOU DO SO WITHIN THE APPLICABLE DEACTIVATION NOTICE PERIOD, AS DEFINED IN SECTION 10.3. YOU WILL NOT BE CHARGED FOR ANY DEACTIVATION AT THE END OF YOUR SELECTED TERMS. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR DEACTIVATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE A SUBSCRIPTION BY YOU.
FURTHERMORE, FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME LENGTH, AT THE THEN-CURRENT, NON-PROMOTIONAL SUBSCRIPTION RATE. YOU CAN LOG ON TO YOUR ACCOUNT TO DEACTIVATE YOUR SUBSCRIPTION OR EMAIL: email@example.com AND WE WILL DO IT FOR YOU. FULL DETAILS FOR DEACTIVATION PROCEDURES ARE IN SECTION 10.3 OF THESE TERMS. IF YOU DEACTIVATE, 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. YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD.
Price Adjustments. We reserve the right to adjust prices in our sole discretion, at any time and without notice to you; provided, however, that we will provide you with at least ten (10) days’ advance notice of any price changes with your specific Plan rate. Your acceptance of deliveries of the Products after such notice has been delivered to you will constitute your acceptance of such price changes, unless you cancel your subscription to the Service in accordance with these Terms. All prices shown on the Site are in U.S. dollars. Any applicable taxes and other fees or charges are not included and are additional to any prices shown on the Site. Prices, taxes or other fees may vary geographically. The shipment of meal ingredients to you after our delivery of such notice will confirm your acceptance of such changes, unless you cancel your subscription in accordance with the Term’s Deactivation policies, found in Section 10.3.
Plan Add-Ons. Different features and other customized options may become available in addition to your plan, including, but not limited to, premium options, new product add-ons, and modified shipping options. These may change the price of your plan on a recurring basis. Should you have any questions about any of the options available under your plan, please visit www.thefreshdiet.com, email firstname.lastname@example.org or call (786) 202-0463.
7. REPLACEMENT INGREDIENTS IN MEAL KITS AND PROMOTIONAL INCLUSIONS
Given the perishable nature of many of our ingredients, and market conditions and product supply beyond our control, we reserve the right to adjust the quantity of any ingredients in a Meal Kit, to discontinue the use of any ingredient or Product, or to substitute any ingredients or entire Meal Kits, all without notice. While we make every effort to ensure that you are provided with the very best ingredients for our Meal Kits, these switches may occasionally be required. If such a substitution is required, we will make reasonable efforts to notify you prior to shipment. If you have any issues with any substitution, or either an ingredient or a Meal Kit, please contact us at email@example.com or call (786) 202-0463. Additionally, please note that, on occasion, The Fresh Diet will include products from our partners in our meal boxes which may contain some or all of the 8 major allergens (in addition to other ingredients). Please refer to Section 21.1 to review our allergen policy. Additionally, if you have any questions or concerns about any additional products or materials in your Meal Box, please contact Customer Care at firstname.lastname@example.org or call (786) 202-0463.
8. GIFT CARDS
You may purchase and/or otherwise receive Gift Cards through the Site. You must create or have an existing and valid account with The Fresh Diet in order to redeem a Gift Card. All accounts are subject to the Terms in all respects. The Fresh Diet Meals Gift Cards may be redeemed on the Site. Redemption of Gift Cards will result in the application of a credit to your account in the amount of the Gift Card balance. Any Gift Card balance will be applied toward your purchase of The Fresh Diet Meals Offerings until the Gift Card is depleted. Gift Cards are not redeemable for cash or credit, except to the extent required by applicable law. The Fresh Diet is not responsible for lost or stolen Gift Cards. Lost or stolen Gift Cards cannot be replaced (except as required by law). All sales of Gift Cards are final and nonrefundable.
The Fresh Diet may offer discount promotions, free/discounted trials, or other types of vouchers (“Vouchers”). In order to utilize the offer on the Voucher, users need to create an account through the Site and input their information and the code found on the Voucher (“Voucher Code”) to redeem. If you purchase any Voucher, Voucher is deemed to have been sold at the time of payment for it. The discount found on the Voucher only lasts for the first week of your subscription plan, unless it specifically states otherwise on the Voucher or when you sign-up. Similarly, a Voucher may only be used once and may not be copied, reproduced, distributed, or published either directly or indirectly in any form or stored in data retrieval systems without our prior written approval. Additionally, Vouchers are only for first-time users of The Fresh Diet, unless the Voucher states otherwise. The Fresh Diet reserves the right to withdraw or deactivate any Voucher (other than one which has been purchased) for any reason, at any time. For the avoidance of doubt, and in accordance of the foregoing sentence, The Fresh Diet reserves the the right to withdraw or deactivate any of your outstanding referral credits or similar Vouchers in the event your referral code is posted to a third party website (excluding your own social media profile(s) or blogs), or if you otherwise violate these Terms. Vouchers may only be redeemed through our Site, and not through any other website or method of communication. To use your Voucher, you will be required to enter its unique code at the online checkout and use of such code will be deemed to confirm your agreement to these Terms and any special conditions attached to the Voucher.
Please note, pursuant to these Terms, at the expiration of the Voucher, you will be billed the standard rate for your Meal Kit on a recurring, weekly basis, unless you cancel your Plan prior to the end of the Voucher period with proper, advance notice to The Fresh Diet in accordance with these Terms.
As a part of the verification process, The Fresh Diet may require a Customer to provide additional identification information. In addition, as a part of the verification process, the Customer authorizes The Fresh Diet to charge to the Customer’s credit card a $1.00 authorization charge (or such other amount identified to Customer at time of verification by The Fresh Diet), which amount will be refunded following successful authorization.
The Fresh Diet Delivery Week. The start of our Delivery Week means that new Meal Kits are available to be delivered in your Meal Box.
Rolling Basis of Meal Selection. You have the option of selecting the day you would like to receive your Meal Box, and, if your specific subscription allows for Meal Kit selection, you also have the option of selecting the specific Meal Kits you would like to receive, on a weekly basis. The day you select to receive your first Meal Box will be the default. In subsequent weeks, if you do not make a change, your Meal Box will arrive on the day you initially selected every week (unless you pause your order, pursuant to these Terms, or there are extenuating circumstances, detailed in these Terms). If you choose to have your delivery on another day for a specific week, that day will become the default, and subsequent weeks will have your Meal Box arriving on the newly selected day.
Meal Kit selection and delivery day selection is on a rolling basis, and all selections “lock” five days prior to the delivery day. For example, if your subscription allows for Meal Kit selection and you receive your Meal Box on Fridays, you will have to make your selection of Meal Kits you want included in your Meal Box on Sunday by 11:59 PM PST. Your credit card or other payment source will then be charged the following day. Similarly, if you want to change the delivery day, you will have to make your selection five days prior to your new delivery day. For example, if you normally receive your Meal Box on Thursdays, but want to receive your Meal Box on a Monday, you will have to make the change five days prior to Monday, which would be the Wednesday of the previous week.
Please note that the specific days in which a Meal Box can be delivered varies by geographic region, and delivery on each day will not be available in all areas. If you have any questions about your area and delivery, please contact Customer Care at email@example.com or call (786) 202-0463.
Deactivation Procedures. Please note that the ability to change an order locks five days prior to your scheduled delivery date. Therefore, if you wish to deactivate your account and/or cancel or change an order, you must do so before the day and time listed above for your respective delivery date. For example, if you have a scheduled delivery date on Tuesday, you have until Thursday at 11:59 PM PST to cancel your subscription. If you do so after the time listed for your delivery day, you will be charged and receive your Meal Box for that week, and the cancellation will take effect for the following Delivery Week.
To deactivate your account, please call The Fresh Diet Customer Care at (786) 202-0463 or email firstname.lastname@example.org stating that you wish to terminate your account, along with your full name and registered email address.
Pausing your Order. During any production week, Customer has the option of pausing their deliveries. In order to do so, log on to your account page on the Site, select a particular week (by clicking on the delivery day highlighted) and then click on the “Pause Week” button. You will not be charged for any week in which your order is Paused. Please note that this action cannot be taken for any scheduled order which has already “Locked,” pursuant to Section 10.2. Additionally, pausing an order shall only apply to the week in which you pause, and automatic deliveries will commence the following week, unless you choose to pause the following week, subject to the details, above.
Delivery Specifics. In the case of weather which inhibits the ability to make safe deliveries, or other events beyond our control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur on a date other than your scheduled delivery day. If the delivery of your Meal Box is not feasible, we will cancel your delivery for the period so affected and issue you a credit, as determined in our sole discretion, or refund of a part or the whole of the purchase price for that Meal Box.
11. FORCE MAJEURE
We will not be liable or responsible for any failure to perform, or delay the performance of, any of our obligations that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes, but is not limited, to the following: (1) Strikes, lock-outs, or other industrial action; (2) Civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war, or threat or preparation for war; (3) Fire, explosion, storm, flood, earthquake, subsidence, epidemic, or other natural disaster; (4) Impossibility of the use of railways, shipping, aircraft, motor transport, or other means of public or private transport; (5) Impossibility of the use of public or private telecommunications networks; and (6) The acts, decrees, legislation, regulations, or restrictions of any government.
Our performance under these Terms is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable efforts to bring the Force Majeure Event to a close or to find a solution by which our obligations under these Terms may be performed despite the Force Majeure Event.
12. RECEIPT OF THE MATERIALS AND FOOD PREPARATION
The Fresh Diet uses specific materials to refrigerate perishable items and also uses third party delivery companies to deliver Meal Boxes to customers. Please note that you are responsible for reviewing the Meal Box upon delivery and inspecting all of the Products contained within for any defects or other problems upon delivery. If you are not home when your Meal Box is delivered, the Meal Box will be left at your door or in a common area. Upon the completion of your review of the Meal Box, we recommend that you place all perishables in your refrigerator to ensure the ingredients’ integrity. The risk of loss and/or damage passes to you at the time of delivery. We highly recommend that you review the USDA’s instructions on safe food handling, which can be found here. All items are solely at your risk from the time of delivery. As such, you are solely responsible for any preparatory steps, storage of the contents of any Meal Kits, safe washing (we recommend that all fresh produce is washed prior to inclusion in any meal), and the cooking of all the ingredients of the respective Meal Kits. We recommend that you use a thermometer to measure the temperature of any poultry, fish, or meat products that arrive in the insulated portion of the Meal Box, and, pursuant to USDA Guidelines (found here), you should utilize said thermometer to ensure that they are at (or below) 41 degrees Fahrenheit.
The Fresh Diet recommends that all cooking instructions found in the recipe booklet be followed, and all seafood, meats, and poultry should be cooked to the USDA’s recommended internal temperatures (165 degrees Fahrenheit for poultry; 160 degrees Fahrenheit for ground meats; 145 degrees for whole meats; and 145 degrees Fahrenheit for seafood). The Fresh Diet recommends utilizing a food thermometer to verify internal temperatures. For more information, please see the USDA’s website, found here).
13. RECIPE CARDS
Additionally, please note that each Meal Kit will have a corresponding recipe card contained in the Meal Box. If your Meal Box does not contain one or more of the corresponding recipe cards, you can refer to the Site for the week’s recipes. If you have any questions or concerns related to the recipe cards, please contact email@example.com or Customer Care at (786) 202-0463.
14. RETURN AND REFUND POLICY
In the event that you are unhappy with any part of your Meal Box, or a specific Meal Kit, you can reach out to us at firstname.lastname@example.org or call Customer Care at (786) 202-0463 . Please do so within five (5) days of the date you received the unsatisfactory item. If related to ingredients or condition of a Meal Kit, we may give you credit for the individual ingredient or Meal Kit, and in some situations, issue a partial or full refund for the ingredient or the Meal Kit. We reserve the right, however, to require either the return of the unsatisfactory ingredient or Meal Kit, or a photograph of such, before any partial/full refund or credit will be issued.
15. PROPRIETARY RIGHTS
The Fresh Diet is the owner and operator of the Site. Additionally, The Fresh Diet is the owner of, or duly licensed to utilize, all content, features, and functionality (including, but not limited to, all information, text, graphics, software, video, and audio, and the design, selection, and arrangement thereof) published on the Site, or any The Fresh Diet Offerings, all of which is protected by the United States and international copyright, trademark, trade secret, and other intellectual property or proprietary rights laws.
Users are only permitted to use these materials in order to utilize The Fresh Diet Offerings for personal, non-commercial use. Any other use of The Fresh Diet materials, including modification, distribution, or reproduction for purposes other than the personal usage of The Fresh Diet Offerings, without written approval from The Fresh Diet (which can be provided through email) is prohibited.
Trademarks. "The Fresh Diet" all other The Fresh Diet marks and logos, and all titles, characters, names, graphics, and button icons are service marks, trademarks, and/or trade dress of The Fresh Diet or otherwise proprietary to The Fresh Diet and may not be used by you for any reason other than as expressly permitted by the Terms. All other trademarks, service marks, product names, and company names, logos, designs, or slogans appearing by and through the The Fresh Diet Offerings are the property of their respective owners and you do not acquire any ownership rights in or to such marks, logos, or names by using and/or accessing the The Fresh Diet Offerings.
Copyright Policy. The Fresh Diet reserves the right to terminate any end-user’s access to the The Fresh Diet Offerings where that end-user infringes upon third-party copyrights. Please notify us at email@example.com if you believe any infringement has occurred.
16. PROHIBITED USES
You may use The Fresh Diet Offerings only for lawful purposes and in accordance with these Terms and Conditions. You agree not to use the Offerings:
- In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
- For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.
- To send, knowingly receive, upload, download, use, or re-use any material that does not comply with the Content Standards Set out in Section 19.1 of these Terms.
- To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail”, “chain letter”, “spam”, or any other similar solicitation.
- To impersonate or attempt to impersonate, an employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).
- To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Site, or which, as determined by us, may harm The Fresh Diet or users of the Site or expose them to liability.
Additionally, you agree not to:
- Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party’s use of the Site.
- Use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
- Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without our prior written consent.
- Use any device, software, or routine that interferes with the proper working of the Site.
- Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
- Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
- Attack the Site via a denial-of-service attack or a distributed denial-of- service attack.
- Otherwise attempt to interfere with the proper working of the Site.
17. NON-USER THIRD PARTY CONTENT
We may display content, advertisements, and promotions from third parties through the Site, in mailings or emails containing information regarding other companies, or with or contained within The Fresh Diet Offerings (“Third Party Content”). The Third Party Content is not endorsed, adopted by, or controlled by The Fresh Diet, and we make no representations or warranties of any kind regarding such Third Party Content, regarding its accuracy or completeness. You acknowledge and agree that your interactions with third parties providing Third Party Content through or on The Fresh Diet Offerings (including, but not limited to, our Site, Social Media, other Content, or Products) are solely between you and such third parties.
18. USER CONDUCT
You agree that you will not violate any statute, regulation, intellectual property (including, but not limited to, copyright and trademarks), contractual obligations, other third party rights, or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Site. You agree that you will abide by these Terms and will not: (1) display personal or confidential information related to any third party, including, but not limited to, street addresses, email addresses, last names, telephone numbers, and URLs; (2) attempt to access or use another user’s account unless permitted to do so, in writing, from both the user and The Fresh Diet; (3) engage in any behavior which is deemed to be harassment, threatening, stalking or predation of any other person; (4) make any claim, statement, or assertion, or imply, that your claim, statement, or assertion is endorsed by The Fresh Diet without The Fresh Diet express written consent; (5) engage in the commercial solicitation of other end-users; (6) collect or record end-users’ personal information without their prior written consent; (7) develop or use any third party applications that interact with any of The Fresh Diet Content, the Site, without our prior written consent; (8) use the Site in any way that prevents or inhibits other end-users from fully utilizing the Site, or in a way that could overburden or interfere with the functioning of the Site in any manner; (9) use any manual or automatic process, means, or interface (including, but not limited to robot, spider, script or, browser extension), which The Fresh Diet has not authorized to access the Site, to retrieve or index data; (10) decipher or reverse engineer any portion of the Site that may reveal source code or bypass items designed to obstruct, limit, or stop access to any Content, specific site within the Site, or code within the Site; (11) access or attempt to access any portion or feature of the Site which you are not authorized to access, pursuant to these Terms or any subsequent agreements; or (12) use the Site for any illegal purpose.
19. USER CONTENT
Pursuant to the specifications located in these Terms, the Site, or any social media platforms on which The Fresh Diet has an official page or feed, may include, now or in the future, areas (“Interactive Areas”) that allow users to post content, including but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, or other materials (“User Content”). Any User Content you post must, in its entirety, comply with all applicable federal, state, local and international laws and regulations, and these Terms (including, but not limited to, the Prohibited Uses and User Content Standards set out in Sections 16 and 19.1 of these Terms, respectively).
You understand and acknowledge that you are responsible for any User Content you submit or contribute and your use of any Interactive Areas of the Site and/or, and you, not The Fresh Diet, have full responsibility for such content and use, including its legality, reliability, accuracy, and appropriateness. We are not responsible or liable to any third party for the content or accuracy of any User Content posted by you or any other user of the Site. You understand and acknowledge that User Content that you share with a third party through the Site or third party platforms will be viewable by others in accordance with the privacy settings you establish.
User Content Standards. Any User Content you post to the Site will be considered non-confidential and non-proprietary. By providing any User Content on the Website, you represent and warrant that:
- you own or control all rights in and to the User Content and have the right to grant the license granted above to us and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
- you grant The Fresh Diet and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
- all of your User Content does and will comply with these Terms.
By using the Interactive Areas of the Site, you further agree not to create, post, share or store any of the following: (1) Any content that would encourage, either express or implied, conduct that could be deemed a violation of a statute or regulation; (2) Any content that is determined, by The Fresh Diet in its sole determination, to be indecent, obscene, abusive, threatening, pornographic, or harassing; (3) Any content that violates the proprietary rights of a third party; (4) Any content that contains confidential information; (5) Any content that impersonates, or misrepresents your affiliation with, any person or entity without their express permission; (6) Any content that contains any viruses or other computer code, files, or programs designed to harm, inhibit the operative ability of, or destroy part/all of the Site; (7) Any content that contains solicitations, including, but not limited to, any advertisements, promotional materials (other than those directly related to The Fresh Diet), and political campaign requests; (8) Any content that, in our sole judgment, is objectionable or that restricts or inhibits any other person from using or enjoying the Site, Products, or Offerings, or that may expose The Fresh Diet or others to any harm or liability of any type.
Although we are not required to regulate User Content, we reserve the right, in our sole discretion, to monitor, edit or remove User Content posted or stored on the Site for any reason. You are solely responsible for creating backup copies of and replacing any User Content you post or store on the Site at your sole cost and expense.
Rights in User Content. We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Site, to our pages or feeds on third party social media platforms (e.g., The Fresh Diet Facebook page, Instagram page, or Twitter feed), you hereby: (1) grant The Fresh Diet and its affiliates and subsidiaries a nonexclusive, royalty-free, transferable, worldwide, perpetual, irrevocable and fully sub-licensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes; (2) represent and warrant that (a) you own and control all of the rights to the User Content or you otherwise have the lawful right to post such User Content, (b) the User Content is non-confidential and you authorize The Fresh Diet to use such User Content for the purposes described in these Terms, (c) the User Content is accurate and not misleading or harmful in any manner, and (d) the User Content, and your use and posting thereof, does not and will not violate these Terms or any applicable law, rule, regulation or third party right.
You agree to defend, indemnify and hold harmless The Fresh Diet, our affiliates, service providers, and licensors and their respective directors, officers, agents, contractors, partners, licensors, representatives, suppliers and employees, from and against any loss, liability, threatened or actual claim, demand, damages, costs and expenses, (including reasonable legal fees) arising out of or in connection with your use of the Site, the Products or any Offerings, or any information obtained therefor other than as expressly authorized in these Terms. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, and you shall cooperate as fully as reasonably required by us. You agree to promptly notify The Fresh Diet of any third-party claims, cooperate with The Fresh Diet in defending such claims, and pay all fees, costs and expenses associated with defending such claims (including, but not limited to, attorneys’ fees and expenses, court costs, costs of settlement and costs of pursuing indemnification and insurance). This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and The Fresh Diet.
YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE PREPARATION (INCLUDING STORAGE, WASHING, AND COOKING), USE, AND CONSUMPTION OF THE CONTENTS OF THE MEAL BOXES. AS SUCH, ALL CONTENTS OF THE RESPECTIVE MEAL BOXES ARE PROVIDED “AS-IS” AND “AS AVAILABLE,” AND, TO THE FULLEST EXTENT ALLOWABLE UNDER THE APPLICABLE LAW, ALL EXPRESS AND IMPLIED WARRANTIES ARE DISCLAIMED. THIS SPECIFICALLY INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF MERCHANTABILITY, AND WARRANTIES FOR THE NON-INFRINGEMENT OF INTELLECTUAL PROPERTY.
Allergen Information. PLEASE NOTE THAT THE EIGHT MAJOR ALLERGENS, AS DETERMINED BY THE US FOOD AND DRUG ADMINISTRATION, WHICH ARE WHEAT, EGG, SOY, MILK, TREE-NUTS, PEANUTS, FISH, AND SHELLFISH, ARE STORED, PORTIONED, AND PACKAGED IN The Fresh Diet AND OUR SUPPLIER’S FACILITIES. YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE THESE PRODUCTS, AND WHILE The Fresh Diet TAKES PRECAUTIONS TO LIMIT ANY CROSS-CONTAMINATION, CROSS-CONTAMINATION MAY OCCUR BETWEEN FOOD PRODUCTS, AND THUS, THE RESPECTIVE MEAL KITS, OR THE MEAL BOX, MAY CONTAIN SOME OR ALL OF THE ALLERGENS LISTED. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. The Fresh Diet DOES NOT REPRESENT OR WARRANT THAT THE NUTRITION, INGREDIENT, ALLERGEN, AND OTHER PRODUCT INFORMATION ON OUR SITE IS ACCURATE OR COMPLETE SINCE THIS INFORMATION IS PROVIDED BY THE PRODUCT MANUFACTURERS OR SUPPLIERS AND ON OCCASION MANUFACTURERS MAY MODIFY THEIR PRODUCTS AND UPDATE THEIR LABELS. WE RECOMMEND THAT YOU DO NOT RELY SOLELY ON THE INFORMATION PRESENTED ON OUR SITE AND THAT YOU CONSULT THE PRODUCTS LABEL OR CONTACT The Fresh Diet IN ORDER TO PROVIDE INFORMATION TO CONTACT THE MANUFACTURER DIRECTLY IF YOU HAVE A SPECIFIC DIETARY OR ALLERGIC CONCERN OR QUESTION ABOUT A PRODUCT.
Specifications Related to Warranties. WE ATTEMPT TO DISPLAY THE PRODUCTS YOU WILL RECEIVE IN YOUR MEAL KITS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SITE, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AND RELIABLY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION. IN THE EVENT OF AN ERROR, WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION AND SUBJECT TO THESE TERMS, TO CORRECT SUCH ERRORS AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A CREDIT REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SITE DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITE MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT ON THE SITE DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.
We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Site (or any features or functionality of the Site) and the Products at any time without notice and without obligation or liability to you.
22. LIMITATION OF LIABILITY; RELEASE
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, The Fresh Diet, ITS AFFILIATES (INCLUDING, BUT NOT LIMITED TO, THEIR LICENSORS, SERVICE PROVIDERS, DIRECTORS, OFFICERS, AGENTS, PARTNERS, REPRESENTATIVES AND EMPLOYEES) SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY/PUNITIVE DAMAGES. THIS LIMITATION SHALL INCLUDE, BUT IS NOT LIMITED TO, DAMAGES RELATED TO PERSONAL INJURY; PAIN AND SUFFERING; EMOTIONAL DISTRESS; BUSINESS INTERRUPTION; LOSS OF PROFITS, REVENUE, BUSINESS OR ANTICIPATED SAVINGS, USE, GOODWILL, DATA; AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE) BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE.
ADDITIONALLY, IN NO EVENT SHALL THE FRESH DIET BE LIABLE FOR DISPUTES ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE, OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT, CONTENT OF LINKED THIRD PARTY SITES), OR THE ORDERING, RECEIPT, OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO,ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM THE FRESH DIET, OR FROM EVENTS BEYOND THE FRESH DIET REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS,BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE). TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE THE FRESH DIET PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH THE FRESH DIET PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. 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.”
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF THE FRESH DIET SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NEW JERSEY, FOR EXAMPLE, THE FRESH DIET LIABILITY SHALL BE LIMITED TO THE MAXIMUM LIMITATION AVAILABLE UNDER THE NEW JERSEY PUNITIVE DAMAGES ACT, THE NEW JERSEY PRODUCT LIABILITY ACT, THE NEW JERSEY CONSUMER FRAUD ACT, TRUTH-IN-CONSUMER CONTRACT, WARRANTY AND NOTICE ACT, AND OTHER RELEVANT LAWS OR REQUIREMENTS. IF YOU HAVE ANY QUESTIONS PERTAINING TO THE LIMITATIONS OF LIABILITY DESCRIBED IN SECTION 22, PLEASE EMAIL firstname.lastname@example.org.
THE LIMITATIONS SET FORTH IN THIS SECTION 22 SHALL NOT AFFECT LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER THE APPLICABLE LAW/JURISDICTION, SUCH AS LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY OUR ACTS OR OMISSIONS, OR FOR OUR GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT.
23. MODIFICATIONS TO THE SITE AND PRODUCTS
We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Site (or any features or parts thereof) or the rates, delivery, or provision of the Products at any time.
24. DISPUTE RESOLUTION & BINDING ARBITRATION
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH THE FRESH DIET AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
Arbitration Is Binding. YOU AND THE FRESH DIET ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT, OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE, AND EQUITABLE CLAIMS) BETWEEN YOU AND THE FRESH DIET ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OR USE OF PRODUCTS OR OFFERINGS THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
This shall not apply to any disputes arising from Section 18, disputes in which a party seeks to resolve an issue in small claims court, seeks injunctive relief, or other equitable relief related to the use of proprietary rights.
Preliminary Resolution Attempts. You agree to notify The Fresh Diet within forty-five (45) days of the occurrence or alleged occurrence of any dispute that could rise to become a small claim or claim that can be arbitrated according to these Terms. Notification can occur by contacting The Fresh Diet at email@example.com or by mailing us at 5706 Troost Ave Kansas City, MO 64110. Upon receipt of the notification, both parties shall attempt to resolve the issue within thirty (30) days. If we cannot otherwise satisfactorily resolve your dispute and you wish to proceed, you must submit your dispute for resolution by arbitration in accordance with these Terms.
Waiver of Class Actions & Class Arbitrations. To the fullest extent permitted by law, you agree to arbitration on an individual basis, and to give up any rights to bring, join, or participate in any class action or representative action with respect to any claim, dispute or controversy that you may have against The Fresh Diet. In any such dispute, NEITHER PARTIES ARE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Unless both you and The Fresh Diet agree otherwise, the arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. You agree to the entry of injunctive relief to stop such a lawsuit or to remove you as a participant in the suit, and to pay the attorney’s fees and court costs that The Fresh Diet incurs in seeking such relief.
This provision preventing you from bringing, joining, or participating in class action lawsuits and class arbitrations: (A) does not constitute a waiver of any of your rights or remedies to pursue a claim individually and not as a class action in binding arbitration as provided above; and (B) is an independent agreement. The arbitral tribunal has no power to consider the enforceability of this class action and class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. You may opt-out of these dispute resolution provisions, pursuant to Section 24.5.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
Arbitration Proceedings. For claims of Ten Thousand Dollars ($10,000.00) or less, you can choose whether the arbitration proceeds in person, by telephone, or based only on submissions. Nothing contained herein shall be construed to preclude any party from: (i) seeking injunctive relief in order to protect its rights pending an outcome in arbitration; and/or (ii) pursuing the matter in small claims court rather than arbitration. Although we may have a right to an award of attorney's’ fees and expenses if we prevail in arbitration, we will not seek such an award from you unless the arbitrator determines that your claim was frivolous.
The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. If you prevail on any claim that affords the prevailing party attorneys’ fees, the arbitrator may award reasonable fees to you under the standards for fee shifting provided by law. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
Opt Out Rights. You may pursue your claim in small-claims court rather than arbitration (as it pertains to Section 24) if you provide written notice of this intention within sixty (60) days of the day you agreed to (or are determined to have agreed to) these Terms. If you choose to opt out, send written notice to: Compliance, The Fresh Diet, 5706 Troost Ave Kansas City, MO 64110. Please include your name, contact information, and a clear statement that you would like to opt out of the provisions related to binding arbitration. Please note that, all other provisions of the Terms, including Section 25, will still apply. The Arbitration or smalls-claim court proceeding will be limited solely to your individual dispute.
25. GOVERNING LAW AND VENUE
All matters relating to these Terms, your access to and use of the Site, and your order, receipt, and use of the Products, and any dispute or claim arising therefrom or related thereto shall be governed by and construed in accordance with the laws of the State of Missouri, without regard to conflict of law rules or provisions (whether of the State of Missouri or any other jurisdiction). Any dispute arising out of, or related to, these Terms or The Fresh Diet Offerings that is not subject to arbitration or cannot be heard in small claims court, shall be resolved exclusively in the state or federal courts of the State of Missouri and the United States, respectively, sitting in the State of Missouri. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
26. TERMINATION AND SURVIVAL
Notwithstanding anything contained in these Terms, we reserve the right, without notice and in our sole discretion, to terminate or suspend your right to access or use the Site and to order, receive and use the Products, at any time and for any or no reason, including, without limitation, any violation of these Terms. You acknowledge and agree that we shall have no liability or obligation to you in such event and that you will not be entitled to a refund of any amounts that you have already paid to us, for which you have received a corresponding delivery, to the fullest extent permitted by applicable law.
27. SEVERABILITY AND WAIVER
If any of these Terms and Conditions or any provisions of a Contract are determined by any competent jurisdiction to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions, and provisions which will continue to be valid to the fullest extent permitted by law.
No waiver by The Fresh Diet of any provision in these Terms and Conditions shall be deemed a further or continuing waiver of such provision or a waiver of any other provision, and any failure to assert a right or provision under these Terms does not constitute a waiver of such right or provision.
These Terms and any document expressly referred to in them constitute the whole agreement between you and The Fresh Diet, and supersede all previous discussions, correspondence, negotiations, arrangements, understandings, or agreements between us relating to the subject matter of any Contract. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of The Fresh Diet. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.
Contact Customer Care at (786) 202-0463. © 2019 The Fresh Diet