Updated: September 22, 2023

1. Acceptance of Terms

1.1. FreshX, Inc. (“FreshX” or “we”) provides its Services (as defined in Section 2.1 below) to you through its website located at www.freshx.io (the “Site”), subject to this Terms of Service Agreement (“TOS”). By accepting this TOS or by accessing or using the Services or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. You acknowledge that this TOS is a contract between you and FreshX, even though it is electronic and is not physically signed by you and FreshX. If you are entering into this TOS on behalf of a corporation, limited liability company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Services. By entering into this agreement You represent and warrant that You are at least 18 years of age or the age of majority where You reside. In this agreement You and FreshX are referred to individually as a “Party” and collectively as the “Parties.”

1.2. As part of the registration process, you will identify an administrative user name and password for your account (“Account”). Each Account may only have one user.

1.3. Notice to You may be made via email, fax, or certified or registered mail, return receipt requested, to Your most current address on record. FreshX may also provide notices of changes to these Terms of Use or other matters by providing a click through screen on the Systems. At all times, You are responsible for providing FreshX with a valid e-mail address to which notices may be sent. Any notice sent to the e-mail address on file with FreshX will be deemed to be notice properly given to You. You may give notice to FreshX by email at info@freshx.io, or certified or registered mail, return receipt requested, to 1 River Place, Suite 1804, New York, NY 10036.

1.4. FreshX may change this TOS from time to time by providing you ten (10) days prior notice as described in Section 1.3 above. You can review the most current version of this TOS at any time at https://marketplace.freshx.io/terms. The revised terms and conditions will supersede any previously posted terms and become effective ten (10) days after we post or send you notice of such changes, and if you use the Services after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services and send a cancellation email to info@freshx.io.

1.5. If you opt-in to use the automated online payment functionality of our Service, you may be asked to create a user account provided by Stripe, Inc. (“Stripe”). You must accept their Terms and Conditions and Privacy Policy. Any funds held in your Stripe account are held by Stripe’s financial institution partners as set out in Stripe’s Terms of Service. If required, you authorize FreshX to collect and share with Stripe your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. FreshX will not retain any of this information. You understand that you will access and manage your account with Stripe through our application, and Stripe account notifications will be sent by FreshX, not Stripe.

2. Definitions

2.1. “Systems” are any of the existing and future electronic systems, applications, APIs, SMS platforms, and other platforms through which FreshX make the Services available to You.

2.2. The “Services” includes, without limitation, (a) the Site, (b) FreshX’s proprietary platform connecting buyers and sellers of produce and related technologies and services, (c) all software (including the Software, as defined in Section 3.3 below), data, reports, text, images, sounds, video, content, and (d) all notifications and reports, SMS-based preliminary indications, indication acceptances, binding contract offers and acceptances, market data, price information, connectivity, contract confirmation, and messaging made available through any of the foregoing (collectively referred to as the “Content”). By using the Systems and Services, Your own message and data rates may apply.

2.3. Any new features added to or augmenting the Services are also subject to this TOS.

2.4. The “Term” shall commence upon the date that you create an Account, and, unless earlier terminated as provided for herein, shall continue for twelve (12) months (the “Initial Term”), at which point, the TOS shall automatically renew for successive six (6) month periods (a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives notice of its intent not to renew at least thirty (30) day prior to the start of the next Renewal Term.

3. Copyright and Trademark Notice

This Site is owned or controlled by FreshX and is protected by worldwide copyright laws. Content may not be copied or used in any way, except that it may be downloaded only for Your non-commercial, personal use provided that no modification or further reproduction of the content is permitted. Trademarks, trade names, service marks and products in this Site are protected both in the United States as well as internationally. These may not be used without the prior, written authorization of FreshX, except for the purpose of identifying the products or services of FreshX.

4. General Conditions; Access and Use of the Services

4.1. During the Term and for one (1) year thereafter you will not directly or indirectly (i) encourage or solicit any partner, supplier, vendor or customer of FreshX to provide or sell you produce or provide services similar to the Services provided by FreshX (except as contemplated by this TOS and solely in connection with your relationship with FreshX), for any reason; (ii) encourage or solicit any employee or consultant of FreshX to leave FreshX for any reason, or otherwise engage in any activity that is in any way competitive with the business of FreshX. For clarity, unless you first learned of the specific produce opportunity from FreshX or the Site, the prohibitions set forth in subsection (i) of this Section 3.1 shall not apply to the extent you had a prior business relationship with such entities.

4.2. Subject to the terms and conditions of this TOS, you may access and use the Services only for lawful purposes. FreshX owns all right, title and interest (including all intellectual property rights of any sort) relating to any and all designs, know-how, ideas, or any Proprietary Information (as defined in Section 3.4 below). All rights, title and interest in and to the Services and its components will remain with and belong exclusively to FreshX. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services or its components, or (c) modify, adapt or hack the Services to, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies or other notices FreshX provides you or publishes in connection with the Services, and you shall promptly notify FreshX if you learn of a security breach related to the Services.

4.3. Any software that may be made available by FreshX in connection with the Services (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, FreshX hereby grants you a revocable, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by FreshX for use in accessing the Services. Any rights not expressly granted herein are reserved and no license or right to use any trademark of FreshX or any third party is granted to you in connection with the Services.

4.4. You agree that all business, technical and financial information (including, without limitation, the identity of and information relating to partners, suppliers, vendors, customers or employees) learned or obtained by you from FreshX that relate to FreshX’s business or the Services, are “Proprietary Information.” You agree to hold in confidence and not disclose or use any Proprietary Information, except in performing or receiving performance of the Services. Upon termination of this TOS, or as otherwise requested by FreshX, you agree to destroy all items and copies of Proprietary Information, except that you may keep copies of your commercial records, invoices and this TOS.

4.5. You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Services (“Your Content”). For every email sent outside of your organization via the Services, you acknowledge and agree that FreshX shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect you agree to cooperate with and provide reasonable assistance to FreshX in promoting and advertising the Services.

4.6. You are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or Account. FreshX reserves the right to access your Account as we deem appropriate, including in order to respond to your requests for technical support, for reasons related to the review and/or improvement of the Services, and for our own business purposes. By posting Your Content on or through the Services, you hereby do and shall grant FreshX a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Services. FreshX has the right, but not the obligation, to monitor the Services, Content, or Your Content. You further agree that FreshX may remove or disable any Content, and Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities), or for no reason at all.

4.7. Access to and use of the Services is restricted to authorized users only. If You grant third parties (including any of Your directors, officers, employees, consultants, advisors, agents or other representatives) access to Your account or to take any action on Your behalf through Your account, You are solely responsible for the validity of such individuals' access to Your Account, including the provision of valid and accurate e-mail addresses and log-in credentials and the applicable permissions for such individuals, and for all actions taken by such individuals through Your account. Unauthorized individuals attempting to access the Marketplace Platform and Website may be subject to prosecution.

4.8. FreshX shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Your Content, data and data derived therefrom), and FreshX shall be free (during and after the Term) to use such information and data to develop and improve (including for diagnostic and corrective purposes) the Services and other FreshX offerings, and to disclose such data for our business purposes. No rights or licenses are granted except as expressly set forth herein.

4.9. You understand that the operation of the Services, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to FreshX’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. FreshX will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

4.10. You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in FreshX’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.

4.11. FreshX reserves the right to use your name and/or business name as a reference for marketing or promotional purposes on FreshX’s website and in other communication with existing or potential FreshX customers. To decline FreshX this right you need to email info@freshx.io stating that you do not wish to be used as a reference.

4.12. Subject to the terms hereof, FreshX may (but has no obligation to) provide technical support services, through email in accordance with our then-current standard practices.

5. Marketplace

5.1. The Marketplace Website, Systems and Services comprise an online platform (“Marketplace Platform”) through which (i) sellers may be notified of, and accept, offers to purchase crops, (ii) sellers may initiate bids to sell crops, (iii) buyers may be notified of, and accept, offers to sell crops, and (iv) buyers may make bids to purchase crops. FreshX has no control over the conduct of the users of the Website, Systems or Services and disclaims all liability in this regard to the maximum extent permitted by law.

5.2. By participating in or using the Marketplace, You consent to receive text messages sent through an automatic telephone dialing system. You may opt out of receiving text messages by replying with the keyword STOP, STOPALL, UNSUBSCRIBE, CANCEL or END to the FreshX short code from which such text messages are sent.

5.3. Terms Applicable to Sellers. The following provisions contained in this Section 5 apply to the extent You participate in the FreshX Marketplace as a seller or a potential seller of crops (“Seller”). From time to time, a buyer or potential buyer of crops (“Buyer”) may present a bid to purchase from You (a "Buyer Bid"), or You may submit an offer to sell to a Buyer (a "Seller Offer"), a certain quantity of a crop of a certain quality. Any additional terms or conditions, including without limitation price, quality specifications and additional services, will be included In the Buyer Bid or Seller Offer, which shall be on the applicable FreshX Marketplace form provided by FreshX. Each Buyer Bid will remain open until the time at which Buyer issues a cancellation of the Buyer Bid, and each Seller Offer will remain open until the time at which You revoke the Seller Offer or the Seller Offer expires in accordance with its terms. For clarification, any Buyer Bid can be cancelled by Buyer at any time prior to Buyer’s receipt of Your formal acceptance of a Buyer Bid. A Seller Offer submitted by You will become irrevocable upon Buyer’s acceptance of such Seller Offer. If You successfully accept a Buyer Bid or Buyer accepts a Seller Offer, such acceptance will be reflected in a binding written confirmation issued by FreshX. No FreshX Marketplace transaction is binding on either Buyer or Seller until such written confirmation is issued by FreshX, which may be issued or not issued in FreshX's sole discretion. For the avoidance of doubt, on the Marketplace Platform, a Buyer Bid may be referenced to as a "Bid" and a Seller Offer may be referenced to as an "Offer" or any other terms as may be adopted by FreshX, and the use of such alternate terms will not relieve You of the terms, conditions or obligations relating to such Buyer Bid or Seller Offer set forth in these Terms and Conditions or any other agreement between You and FreshX.

5.4. Terms Applicable to Buyers. The following provisions contained in this Section 6 apply to the extent You participate in the FreshX Marketplace as a buyer or a potential buyer of crops. From time to time, You may submit a bid to purchase from Seller (a "Buyer Bid"), or Seller may present an offer to sell to You (a "Seller Offer"), a certain quantity of a crop of a certain quality. Any additional terms or conditions, including without limitation price, quality specifications and additional services, will be included in the Buyer Bid or Seller Offer, which shall be on the applicable FreshX Marketplace form provided by FreshX. Each Buyer Bid will remain open until the time at which Buyer issues a cancellation of the Buyer Bid. Once a Buyer Bid is placed with Seller, You irrevocably commit to purchase the quantity of the crop meeting the terms of Your Buyer Bid upon Seller’s acceptance of such Buyer Bid. For the avoidance of doubt, Seller has full and sole discretion to either accept or reject a Buyer Bid. Each Seller Offer will remain open until the time at which Seller issues a cancellation of the Seller Offer. For clarification, any Seller Offer can be cancelled by Seller at any time prior to the Seller’s receipt of Your formal acceptance of a Seller Offer. If You successfully accept a Seller Offer or Seller accepts Your Buyer Bid, such acceptance will be reflected in a binding written confirmation issued by FreshX. No FreshX Marketplace transaction is binding on either Buyer or Seller until such written confirmation is issued by FreshX, which may be issued or not issued in FreshX's sole discretion. For the avoidance of doubt, on the Marketplace, a Buyer Bid may be referenced to as a "Bid" and a Seller Offer may be referenced to as an "Offer" or any other terms as may be adopted by FreshX, and the use of such alternate terms will not relieve You of the terms, conditions or obligations relating to such Buyer Bid or Seller Offer set forth in these Terms and Conditions or any other agreement between You and FreshX.

5.5. Cancellations; Suspensions. To ensure the integrity of the FreshX Marketplace and the Marketplace Platform, FreshX may, in its sole and absolute discretion, based on numerous factors, including, without limitation, logistics, past experience and performance, credit worthiness, qualifications, or any other relevant consideration, cancel or terminate any Seller Offer or Buyer Bid, or suspend or terminate the participation of any user of the Marketplace Platform or participant in the FreshX Marketplace.

5.6. Updates. FreshX may in its sole discretion make unscheduled deployments of changes, updates or enhancements to the Marketplace Platform at any time, add or remove functionality or features, and may discontinue any or all of the Marketplace Platform altogether, but FreshX is under no obligation to update the Marketplace Platform.

5.7. Violations. We may prevent Your use of, and access to, the Marketplace Platform or may prevent any phone number You use from communicating via SMS or any other means, at any time in our sole discretion for any or no reason, including if, in our opinion, You have violated any provision of these Terms of Use.

5.8. Your Responsibilities. You are responsible for Your use (and the use of Your agents and representatives) of the Marketplace Platform and Website and You must: (i) use a secure and non-obvious password to access them; (ii) treat the user name, password and any other piece of information You receive as part of our security procedures as confidential and not share them with any other person; (iii) notify us immediately of any unauthorized access to or use of Your user name or password or any other breach of security; (iii) periodically change Your password; (iv) log out after each session; (v) install the most recent security patches and updates for Your web browser; and (vi) only use the Marketplace Platform or Website for the sole purpose of soliciting and entering into bona fide transactions on the Marketplace Platform or Website. You are solely responsible for ensuring the security of Your account passwords. You will be solely responsible for any use of or action taken through the use of such passwords on the Marketplace Platform and Website. You agree that You are bound by, and FreshX may rely on, any action taken by any individual that is logged in using correct credentials on Your account. You further agree that You will not: (a) alter, corrupt, hack, or violate any computer code affecting the security and access controls of the Marketplace Platform or Website; (b) knowingly submit false, misleading, or deceptive information for any purpose; (c) use the Marketplace Platform or the Website for fraudulent purposes or to engage in any offense, indecent or objectionable conduct; (d) distribute, sell, assign, encumber, transfer, rent, lease, loan, sublicense or otherwise exploit the Marketplace Platform or Website in any unauthorized manner; (e) copy, reproduce, adapt, localize, translate, create any derivative works of, port or otherwise modify the Marketplace Platform, the Website or any part thereof in any form or manner or by any means; (f) harvest or scrape any content or data from the Marketplace Platform or the Website; (g) decompile, disassemble, reverse compile, reserve assemble, reverse translate or otherwise reverse engineer any part of the Marketplace Platform or the Website (except as, and only to the extent that, the foregoing restriction is prohibited by applicable law or third-party license); (h) circumvent any functionality that controls access to or otherwise protects the Marketplace Platform or the Website; or (i) permit or solicit any third party to engage in any of the foregoing.

5.9. Privacy. To use the Marketplace Platform or access the Website or some of the resources they offer, You may be asked to provide certain registration details or other information. You are responsible for ensuring that all the information You provide to us on the Website is correct, current, and complete. All information we collect, including all information You provide to register or otherwise, including but not limited to the use of any interactive features, is handled in accordance with, and explained in further detail in our Privacy Policy located at https://marketplace.freshx.io/privacy. You also may have certain rights in relation to the information we collect under applicable law as set out in our Privacy Policy.

5.10. Other Sites and Resources. If the Website contains links to other sites and resources provided by third parties, these links are provided for Your convenience only including any links contained in advertisements, banner advertisements and sponsored links. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from Your use of them. If You decide to access any of the third-party websites linked to this Website, You do so entirely at Your own risk and subject to the terms and conditions of use for such websites.

5.11. Proprietary Rights. The Marketplace Platform, Website and their entire contents, data, features, and functionality (including but not limited to their "look and feel" and all information, software, text, displays, logos, images, video, and audio, and the design, selection, and arrangement thereof), and any modifications, improvements, enhancements, or updates thereof, are owned by FreshX, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Any and all suggestions for modifications or improvements to the Marketplace Platform or the Website ("Feedback") are and will remain property of FreshX. FreshX may use any Feedback in any manner and for any purpose whatsoever without further notice or compensation to You and without any retention by You of any proprietary right or claim to the Feedback. You agree to assign, and do hereby assign, to FreshX any right, title and interest You may have to any Feedback. Subject to Your compliance with these Terms of Use, FreshX grants to You a personal, nonexclusive, non-transferable, revocable, non-sublicensable limited license to access and use the Marketplace Platform and Website for the sole purpose of soliciting and entering into transactions using the Marketplace Platform or Website ("Approved Business Purpose"). Approved Business Purpose specifically excludes accessing or using the Marketplace Platform and Website to develop, evaluate, validate or enhance any competitive product or service. Except as expressly authorized by FreshX, You agree not to sell, copy, distribute, or create derivative works based on the FreshX Marketplace Platform or Technology, in whole or in part. The limited rights granted to You comprise a limited license and do not constitute the sale of any software program or any other intellectual property.

6. Delivery; Acceptance/Rejection of Deliverables; Payment

6.1. Delivery terms shall be defined by the Perishable Agricultural Commodities Act (“PACA”). The applicable purchase order, term sheet, or other document will indicate whether the order is to be picked up by you (“FOB”) or delivered by the seller. If the product is FOB, then you assume all risks of loss and damage in transit.

6.2. You shall have 24 hours to accept or reject goods offered in connection with the Services (“Deliverables”) upon your receipt of the Deliverables. Deliverables may include goods of all types, including goods not covered by PACA. Any rejection must be in writing, via an email to your main contact at the seller. Your failure to notify the seller of rejection within 24 hours of receipt shall result in automatic acceptance of the Deliverables. In case of a reasonable rejection of Deliverables by your, the parties agree to work together in good faith to minimize mutual damages and to cure any such non-conformance to the satisfaction of both parties. Since FreshX provides a service to connect suppliers and buyers, the parties agree that FreshX does not take title to the Deliverables.

6.3. Pursuant to PACA regulations and statutory trust provisions, any payment terms beyond ten days must be reflected by a written agreement. You may be required to select a payment option and provide FreshX and any payment processor that FreshX partners with information regarding your credit card or other payment instrument. You represent and warrant to FreshX that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay the seller the amount that is specified in the payment option in accordance with the terms of any payment instrument and this TOS. You hereby authorize FreshX and any payment processor that FreshX partners with to bill your payment instrument in accordance with the terms of the applicable payment option until you terminate your Account, and you further agree to pay any charges so incurred. If you dispute any charges you must let the seller know within seven (7) calendar days after the date of the invoice. You shall be responsible for all taxes and fees associated with Services.

7. Representations and Warranties

You represent and warrant to FreshX that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow FreshX to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Services, and FreshX’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) your use of the Services will comply with all applicable laws, including, without limitation, all applicable food safety handling, labeling and other applicable food and health related laws and regulations; (v) if your participation in buying and selling through the Services requires a license, you have obtained such license and the license is in full force and effect; and (vi) you are eighteen (18) years of age or older.

8. Termination

FreshX may terminate your Account and this TOS at any time in its sole discretion; in such event, FreshX shall endeavor to provide you with prompt notice via the administrative email address associated with your Account. You may terminate this TOS upon thirty (30) days’ notice, if FreshX breaches any of the terms or conditions of this TOS and fails to promptly cure such breach. FreshX reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof). All of Your Content on the Services (if any) may be permanently deleted by FreshX upon any termination of your Account in its sole discretion. All accrued rights to payment and the terms of Sections 3 -13 shall survive termination of this TOS.

9. Disclaimer of Warranties

THE CONTENT ON THIS SITE IS PROVIDED ON AN “AS IS” BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND AND TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NEITHER FRESHX NOR ANY OF OUR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, AGENTS, CONSULTANTS OR LICENSORS (each a “RELATED PARTY”) MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE MARKETPLACE PLATFORM OR WEBSITE AND EACH HEREBY DISCLAIMS AND SHALL HAVE NO LIABILITY FOR ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, LEGAL, OR IMPLIED, INCLUDING WITHOUT LIMITATION TO THE MERCHANTABILITY, QUALITY OF THE MARKETPLACE PLATFORM OR WEBSITE OR THEIR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FRESHX DOES NOT MAKE ANY WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, OR THAT ACCESS TO THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, OR THAT DEFECTS, IF ANY, WILL BE CORRECTED. FRESHX MAKES NO WARRANTIES AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR AS TO THE ACCURACY, QUALITY, OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE.

10. Limitation of Liability

10.1. YOU ACKNOWLEDGE, BY YOUR USE OF THIS SITE: (A) THAT YOUR USE OF THIS SITE IS AT YOUR SOLE RISK; (B) THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ALL NECESSARY REPAIRS OF ANY EQUIPMENT THAT YOU USE IN CONNECTION WITH YOUR USE OF THIS SITE; AND (C) THAT FRESHX WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND RELATED TO YOUR USE OF OR INABILITY TO USE THIS SITE, INCLUDING, WITHOUT LIMITATION, FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, COMPUTER VIRUS, OR NETWORK OR INTERNET FAILURE, OR INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, COMPENSATORY OR CONSEQUENTIAL DAMAGES, LOST PROFITS AND/OR LOSS OF OR DAMAGE TO DATA OR PROPERTY WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER BASIS, EVEN IF FRESHX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOUR USE OF THIS SITE RESULTS IN THE NEED FOR SERVICING, REPAIR OR CORRECTION OF EQUIPMENT OR DATA, YOU ASSUME ANY COSTS THEREOF. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

10.2. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, IN NO CIRCUMSTANCES SHALL FRESHX OR ANY RELATED PARTIES BE LIABLE FOR ANY (A) DELAY, INACCURACIES, ERRORS, OMISSIONS OR INTERRUPTION OF ANY KIND IN RELATION TO THE MARKETPLACE PLATFORM OR WEBSITE OR FOR ANY RESULTING LOSS OR DAMAGE; OR (B) LOSS OR DAMAGE ARISING FROM UNAUTHORIZED ACCESS TO OR MISUSE OF THE MARKETPLACE PLATFORM OR WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF FRESHX OR ANY RELATED PARTIES HEREUNDER EXCEED THE LESSER OF: (A) THE FEES PAID TO FRESHX BY LICENSEE HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; OR (B) FIFTY US DOLLARS ($50), REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. THIS LIMITATION SHALL SURVIVE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDIES THAT MAY BE PROVIDED IN THIS AGREEMENT.

10.3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, FRESHX’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

11. Exclusion of Incidental, Consequential, and Certain Other Remedies

Exclusion of Incidental, Consequential, and Certain Other Remedies. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CIRCUMSTANCES SHALL FRESHX OR ANY RELATED PARTIES BE LIABLE HEREUNDER TO YOU OR TO OTHERS DIRECTLY OR INDIRECTLY MAKING USE OF THE MARKETPLACE PLATFORM OR WEBSITE, FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, ARISING UNDER THESE TERMS OF USE, EVEN IF FRESHX HAS BEEN ADVISED OF THE POSSIBILITY THEREOF AND EVEN IF DUE TO FRESHX'S ERROR, OMISSION, OR NEGLIGENCE.

12. Force Majeure

FreshX shall not be liable for failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to acts of God, natural disaster, fire, flood, strike, war (declared or undeclared), terrorism, embargo, blockade, legal prohibition, governmental action, riot, insurrection, or non-FreshX-specific network or telecommunications failure or congestion that affects a Subscription Service, or any other cause beyond the reasonable control of FreshX.

13. External Links and References

In the event that this Site provides links or references to other sites, FreshX will have no responsibility for the content of such other sites and will have no liability for any damages or injury arising from that content. Such links to other sites are simply provided for the benefit of the users of the Site and are not an endorsement of any such content or information, including without limitation, third party products, services and/or information.

14. Indemnification

You shall defend, indemnify, and hold harmless FreshX, including its affiliates, employees, directors and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Services. FreshX shall provide notice to you of any such claim, suit or demand. FreshX reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 9. In such case, you agree to cooperate with any reasonable requests assisting FreshX’s defense of such matter.

15. Digital Millennium Copyright Act

Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. sec. 512, notifications of claimed copyright infringement should be sent to the designated agent of the Site (as identified below).

In order to receive a response all communications must be filled out according to the process and contain all the information outlined in paragraphs 1-5 below.

If You believe in good faith that Your work has been copied in a way that constitutes copyright infringement, please provide FreshX’s designated agent the following information through the process described below:

1. A listing of the accurate First Name, Last Name, Email Address, and Physical Address of the person authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that You claim has been infringed with an original signature;
3. A description of where the material that You claim is infringing is located on the Site (including a specific link/URL where possible);
4. A statement by You that You have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law, to be included in the complaint, or if using the form; and
5. A statement by You, made under penalty of perjury that the above information in Your notice is accurate and that You are the copyright owner or authorized to act on the copyright owner's behalf, to be included in the complaint letter.

Notices of claimed copyright infringement should be sent to:

Via Email:
info@freshx.io

16. U.S. Government Matters

16.1. You represent that You are not engaged in, and agree not to engage in, any unlawful transaction or business, and agree not to use or knowingly permit anyone to use of FreshX Marketplace, Systems or Services for (a) any purpose or in any manner not authorized by these Terms of Use or (b) for any unlawful purpose or in any manner not in compliance with applicable laws, rules, or regulations of any federal, state, or local governmental entity of the United States or any foreign country, including all United States export laws.

16.2. You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State, or any other United States or foreign agency or authority. You will be responsible for obtaining any license required under Export Administration Regulations (“EAR”), OFAC regulations, or ITAR. You agree to indemnify FreshX for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses and liabilities that may arise as a result of Your breach of this Section.

16.3. As defined in FAR section 2.101, the software and documentation installed by FreshX on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.

16.4. You shall abide by the requirements of 41 CFR §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.

17. Assignment

You may not assign this TOS without the prior written consent of FreshX, but FreshX may assign or transfer this TOS, in whole or in part, without restriction. Notwithstanding any assignment, you shall remain fully liable to FreshX for any payment obligations hereunder.

18. Miscellaneous

If any provision of this TOS is found to be unenforceable, illegal, or otherwise invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. In connection with this TOS, the parties are acting as independent contractors and not as agents or partners. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind FreshX in any respect whatsoever. The failure of FreshX to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. FreshX may provide you with notices in the manner described in Section 1.3 above. All notices under this TOS shall be in writing and shall be deemed given when received if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon delivery from a nationally recognized courier (e.g., UPS, FedEx); or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice. Any notice to FreshX shall include a mandatory copy to: FreshX, Inc., 1 River Place, Suite 1804, New York, NY 10036.

19. Governing Law

This TOS shall be governed by the laws of the State of Delaware without regard to the principles of conflicts of law. Unless otherwise elected by FreshX in a particular instance, the state and federal courts located in Delaware are the exclusive jurisdiction for any disputes and you hereby expressly agree to submit to the exclusive personal jurisdiction of such courts for the purpose of resolving any dispute relating to or in connection with your access to or use of the Services. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees (including appellate proceedings).

20. Privacy

Please visit our Privacy Policy to understand how FreshX collects and uses personal information.

21. Entire Agreement

The Terms of Use are the complete and exclusive statement of the agreement between the Parties and supersedes all prior agreements, oral or written, and all other communications between the Parties concerning the subject matter of this Terms of Use. The failure of either Party to exercise any right or remedy under this Terms of Use or at law shall not prevent any further exercise of that right or remedy. You may not assign these Terms of Use without the prior written consent of FreshX. If any part, term or provision of these Terms of Use is held illegal, invalid or unenforceable, the validity or enforceability of the remainder of these Terms of Use shall not be affected. These Terms of Use and Your use of the Marketplace Platform and Website shall be governed by the internal laws of the State of Delaware, and the federal laws of the United States, without regard to conflicts of laws principles. The language of the Agreement is English and all obligations under and communications relating to these Terms of Use shall be conducted in English. The Parties acknowledge that a material breach relating to certain provisions of these Terms of Use may, by its gravity or nature, cause immediate or irreparable injury to the other Party that cannot be adequately compensated for in damages. Accordingly, notwithstanding anything to the contrary in these Terms of Use, in the event of any such material breach and in addition to all other remedies available herein, the non-breaching Party may seek solely injunctive relief (including a temporary restraining order, preliminary injunction or permanent injunction) from any court of competent jurisdiction, without posting a bond or other security. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Marketplace Platform, Website or these Terms of Use must be filed within one (1) year after such claim or cause of action arose or be forever barred. With respect to an unauthorized user there are no time limitations with respect to any action brought by FreshX other than the applicable statute of limitations.

COPYRIGHT AND LEGAL NOTICE. Copyright © 2020-2023 FreshX, Inc. All Rights Reserved.