FreshGuide - FreshGuide - Terms of Use and Sale

Last updated March 1, 2010

IMPORTANT READ CAREFULLY: IF YOU (“YOU” OR “YOUR”) DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT ACCESS OR USE THE SERVICE. BY VIEWING OR USING ALL OR ANY PART OF THE SERVICE, DOWNLOADING ANY MATERIALS OR BY COMPLETING THE REGISTRATION PROCESS, YOU AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT.

WHEN YOU CLICK ON THE "I AGREE TO THE TERMS OF USE AND SALE" BUTTON OR WHEN YOU OTHERWISE USE OR ACCESS OR TRANSMIT OR DOWNLOAD ANY PART OF THE SERVICES (DEFINED BELOW) YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO (OR CANNOT COMPLY WITH) ALL OF THE TERMS OF THIS AGREEMENT, THEN, YOU WILL NOT BE AUTHORIZED TO USE OR ACCESS THE SERVICES. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF COMPANY SHALL BE CONSTRUED AS AN INFERENCE TO THE CONTRARY. IF THIS AGREEMENT IS CONSIDERED AN OFFER BY COMPANY, YOUR ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.

I. Terms of Use

1. ACCEPTANCE OF TERMS; MODIFICATIONS TO TERMS

Company provides the Service(s) (defined below) to you, subject to your acceptance without modification of all of the terms and conditions contained herein (including all policies referenced herein), as those terms are modified from time to time (collectively the "Agreement"). Company reserves the right to modify this Agreement and/or our Privacy and Security Policy (which is incorporated herein by reference) at any time by providing you notice (in writing or electronically). Such changes may include, but are not limited to, the adding of certain fees or charges. You shall be responsible for reviewing and becoming familiar with any such modifications. If Company makes changes to this Agreement and you continue to use our services, you are impliedly agreeing to the Agreement expressed herein. Any such deletions or modifications shall be effective immediately upon Company’s posting thereof. Your use of the Services (defined below) after such changes shall be deemed to constitute your acceptance of such modifications.

2. THE SERVICE(S); RIGHT OF ACCESS OR USE; SECURITY; MODIFICATION/TERMINATION OF SERVICE(S)

Company provides an interactive online service consisting of information services, content and transaction capabilities (the “Services”) provided by Company, affiliates of Company and other third parties.

Unless explicitly stated otherwise, you agree and understand that any new or different features that enhance or change the then-current Service(s) which are made available to you shall also be deemed ("Service(s)") and shall be subject to the terms of this Agreement. Company reserves the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Service(s) (or any portion thereof) with or without notice to you.

In order to use the Service(s), you understand and agree that you must obtain access to the World Wide Web (at your own cost), either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must provide all equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access devices.

Company will use reasonable efforts to maintain the security and integrity of information you provide to us. However, you acknowledge and agree that Company cannot fully eliminate security risks and cannot guarantee that unauthorized access to your information will never occur.

Subject to your compliance with all the terms of this Agreement, you are granted a limited right and license to access and use the Service(s) for the purposes authorized by Company in writing from time to time during the course of this Agreement.

Except as expressly provided herein, Company and its licensors shall retain all right, title and interest in and to the Service(s).

3. REGISTRATION OBLIGATIONS

The Service is available to individuals who are at least 13 years old and a resident of the United States and to entities incorporated in the United States. If you do not so qualify, do not attempt to register for or use the Service. Company may refuse to offer the Service to any person or entity and may change its eligibility criteria, at any time, in its sole discretion. Accounts registered by .bots. or other automated methods are not permitted. If you are agreeing on behalf of an entity, you certify that you have the proper legal authority to do so.

4. ACCOUNT, PASSWORD AND REGISTRATION OBLIGATIONS

In order to take advantage or use the Service(s), you will be required to register and/or create an account with the Company. By creating an account, you agree to take full responsibility for maintaining the account username, password, and all related activity that occurs under your account username. Company reserves the right to refuse services to any person or entity at any time and close your account at any time for any reason or no reason, in its sole discretion.

In consideration of your use and/or access to Service(s), you agree to (a) provide accurate, current and complete information as may be prompted by any registration forms associated with the Services; (b) maintain the security of your user identification and password; (c) maintain and promptly update your registration data, and any other information you provide to Company, to keep it accurate, current and complete; and (d) be fully responsible for the confidentiality, security and use of your user identification, password, and your account for any actions that take place using your user identification, password, and/or account. Your failure to comply with any of the forgoing shall constitute a material breach of this Agreement, which may result in immediate termination of your account and access to the Service(s).

You agree to notify Company immediately if there is unauthorized access or use of your account and/or your password. By obtaining a password, you authorize Company to honor instructions from any person using that password as if you had given the instructions. All actions taken by use of your password will be your responsibility. You may change your password at any time.

5. COMMUNICATIONS

You understand and agree that in connection with the provision of Service(s) or enhance or new services, Company may communicate with you electronically and/or by telephone; Examples of such communications include, but are not limited to, service announcements, status reports, administrative messages and newsletters. These communications are considered part of Company Service(s) and (except as prohibited by applicable law) you may not be able to opt out of receiving such communications. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect your non-waivable rights. You may also receive a copy of this Agreement by accessing the Company website (the “Site”). Company may also, from time-to-time, send you certain promotional emails/communications. For more information see Company’s Privacy and Security Policy.

6. COMPANY PRIVACY POLICY

Our privacy policy describes the personally identifiable information we collect, use and/or share. By agreeing to the terms of this Agreement, you agree to the terms of our Privacy and Security Policy available at http://www.freshguide.com/index.html?view=privacy.

7. CONTENT, RESPONSIBILITY, MONITORING, USER CONTENT

You understand that all information, data, text, software, music, sound, photographs, graphics, video, messages, lists or other materials accessed through the Service(s) ("Content"), whether publicly posted or privately transmitted, are the sole responsibility of the person from which such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, transmit or otherwise provide via the Service(s). Company does not control the Content uploaded, posted, transmitted or provided by any third parties and, as such, does not guarantee the accuracy, integrity or quality of such Content, including but not limited to business endorsements and commentary. You understand that by using the Service, you may be exposed to Content that is illegal, offensive, indecent or otherwise objectionable.

Company does not endorse, verify or take responsibility for any Content uploaded, posted, transmitted or provided via the Service(s). You agree to use, rely on and/or accept any and all Content at your own risk. Company and its affiliates and contractors will not be liable for any losses or damages incurred by you or others while using, accessing or relying on any Content. While Company holds no obligation to monitor the Content, we reserve the right to monitor the Content if we so choose and to remove or edit all or part of such Content at our discretion at any time if it violates this Agreement, is harmful, unproductive or objectionable in any way, or for any other reason we in our sole discretion deem reasonable.

Company does not claim ownership of the Content you upload, post, transmit or otherwise provide ("User Submission"). By uploading, posting, transmitting or otherwise providing a User Submission of any kind you:

(a) Grant to Company, its affiliates and their assignees the perpetual, irrevocable, non-exclusive, royalty-free right to use, reproduce, display, perform, adapt, modify, distribute, make derivative works of and otherwise exploit such content in any form for the purpose of providing the Services to you or others, including without limitation, any concepts, ideas or know-how embodied therein;

(b) Represent and warrant to Company that you own or otherwise control all rights to such User Submission and that disclosure and use of such User Submission by Company as described herein (including without limitation, publishing the User Submission) will not infringe or violate the rights of any third party; and

You agree not to provide Company with any confidential or proprietary information that you desire or are required to keep secret.

You agree to abide by any restrictions contained in any Content accessed through the Services.

You may not use, modify, publish, transmit, participate in the transfer or sale of, reproduce (except as provided herein), copy, store, create derivative works based on, distribute, perform, display, or in any way exploit, any of the Content obtained through the Services in whole or in part, except as expressly authorized by Company or its Content licensors. You shall not store any significant portion of any Content in any form. All web pages which are part of the Services are protected by copyright as a collective work and/or compilation, pursuant to U.S. copyright laws, international conventions, and other intellectual property laws.

8. NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT

Company respects the intellectual property of others, and we ask our users to do the same. Company may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be repeat infringers. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide Company's Copyright Agent the following information:

1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;

2. a description of the copyrighted work or other intellectual property that you claim has been infringed;

3. a description of where the material that you claim is infringing is located on the Site;

4. your address, telephone number, and email address;

5. a statement by you that you have a good faith belief that the disputed use is not authorized by the intellectual property right owner, its agent, or the law;

6. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Company's Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:

By mail:

By email: legal@freshguide.com (Preferred method of communication)

9. LINKS; THIRD PARTY RESOURCES

Service(s) may provide, or third parties may provide, links to other World Wide Web sites or third party content or resources (collectively "Third Party Resources"). You acknowledge and agree that Company is not responsible for the availability, functionality, legality, and/or accuracy of such Third Party Resources, and does not endorse and is not responsible or liable for any content, advertising, promotions, products, services or other materials on or available through such Third Party Resources. You further acknowledge and agree that Company shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, advertising, promotions, products, services or other materials on or available through any such Third Party Resources.

10. COMMUNICATION PRIVACY

You acknowledge that all discussion for ratings, comments, bulletin board service, chat rooms and/or other message or communication facilities (collectively “Communities”) are public and not private communications, and that, therefore, others may read your communications without your knowledge. Company does not control or endorse the content, messages or information found in any Community. Therefore, Company specifically disclaims any liability concerning the Communities and any actions resulting from your participation in any Community, including any objectionable content. Generally, any communication which you post to Company (whether in chat rooms, discussion groups, message boards or otherwise) is considered to be non-confidential. If particular web pages permit the submission of communications that will be treated by Company as confidential, that fact will be stated on those pages. By posting comments, messages or other information on the Site, you grant Company the right to use such comments, messages or information for promotions, advertising, market research or any other lawful purpose. For more information see Company’s Privacy and Security Policy.

11. ELECTRONIC COMMUNICATIONS PRIVACY ACT NOTICE

Electronic Communications Privacy Act Notice (18 USC 2701-2711): COMPANY MAKES NO GUARANTY OF CONFIDENTIALITY OR PRIVACY OF ANY COMMUNICATION OR INFORMATION TRANSMITTED VIA THE SERVICE OR ANY WEB-SITE LINKED TO THE SERVICES. Company will not be liable for the privacy of e-mail addresses, registration and identification information, disk space, communications, confidential or trade-secret information, or any other Content stored on Company's equipment and transmitted over networks accessed by the Services, or otherwise connected with your use of the Services.

12. RESTRICTIONS AND PROHIBITED ACTIVITIES

You agree that you will not and you will not permit or assist any third party in:

(a) Interfering with, disrupting, or creating an undue burden on the Services (including the associated technology, software, hardware, platform, communications and web pages of the Service(s)) or the networks associated with Service(s); (b) attempting to or actually impersonating another person or entity, or falsely stating or otherwise misrepresenting your affiliation with a person or entity; (c) selling or otherwise transferring to another your user id or password or account; (d) harming minors or others in any way; (e) posting, uploading, transmitting, distributing, providing or otherwise making available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable; (f) posting, uploading, transmitting, distributing, providing or otherwise making available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (g) posting, uploading, transmitting, distributing, providing or otherwise making available Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements); (h) posting, uploading, transmitting, distributing, providing or otherwise making available any Content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; (i) disobeying any requirements, procedures, policies or regulations of networks connected to the Service(s), including using any device, software or routine to bypass our robot exclusion headers; (j) forging headers or otherwise manipulating identifiers in order to disguise the origin of any Content transmitted through the Service or developing restricted or password-only access pages, or hidden pages or images (those not linked to or from another accessible page); (k)"stalking" or otherwise harassing another using any component of the Services; (l) collecting or storing personal data about other users of the Service(s) other than for users who willingly provide such information in order to explore bona fide business opportunities or connections; (m) intentionally or unintentionally violating any applicable local, state, national or international law; (n) creating or submitting unwanted email or messaging ('Spam') to any other user of the Services; and/or (o) modifying any hyperlinks and other offers comprising the Service may not be modified from the original form in which such hyperlinks and other offers are generally made available by Company; (p) Reproducing, duplicating, copying, selling, reselling or exploiting any portion of the Service(s) except to the extent permitted or authorized by Company; and/or (q) using the Service(s) to create and/or provide competing product(s) and/or service(s); (r) using the Service(s) on behalf of any third party in a service bureau arrangement or otherwise lending, renting, selling, leasing or transferring the Service(s) to any third party or using it on behalf or for the benefit of a third party or reverse engineering, reverse assembling or compiling or otherwise deriving or attempting to derive the source code or structure of the Service(s); (s) modifying, reproducing, or creating any derivative works of the Service(s); (t) removing any copyright or other proprietary notices contained in the Service(s); (u) disclosing the performance results for the Service(s) to any third party except as expressly authorized by Company; and/or (v) modifying, publishing, transmitting, participating in the transfer or sale of, reproducing (except as provided herein), copying, storing, creating derivative works based on, distributing, performing, displaying, or in any way exploiting, any of the Service(s), except as expressly authorized by Company or its licensors; and/or (w) using the Service(s) to for any illegal or unlawful purpose.

For the avoidance of any doubt, any restrictions specified with respect to Service(s) herein shall apply to the Service(s) as a whole or any component or portion of the Service(s).

13. TERMINATION

You agree that Company, in its sole discretion, may terminate your account, for cause, including, without limitation, for lack of use or if Company believes that you have violated or acted inconsistently with the letter or spirit of the Agreement. Company may also in its sole discretion and at any time terminate this Agreement with thirty (30) days notice. You agree that upon any breach of this Agreement by you (or your employees where relevant), Company may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service(s). Further, you agree that Company shall not be liable to you or any third-party for any termination of your access to the Service(s) or any portions thereof by a third party provider. The restrictions and prohibitions on use and access and the warranty disclaimers and liability limitations and any other terms which by their nature survive the termination of this Agreement, shall survive the termination or expiration of this Agreement.

14. INDEMNITY

You agree to indemnify and hold Company, and its subsidiaries, affiliates, officers, agents, partners, and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your User Submissions, your use of the Service(s), your connection to the Service, your violation of the Agreement, or your violation of any rights of another.

15. ADVERTISEMENTS

Company may run advertisements and promotions on web pages associated with Service(s). By creating your account, you agree that Company has the right to run such advertisements and promotions on any web page associated with the Service(s). The manner, mode and extent of advertising by Company are subject to change in the sole discretion of Company.

16. BUSINESS DEALINGS

Your correspondence or business dealings with other users of the Service(s), merchants, restaurants, advertisers, service providers or your customers, including disputes regarding payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such other user, merchant or advertiser, service provider, or customer. You agree that Company shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings. Company retains the right to delete identifiable information about any user of the Services from any account if requested by such user.

17. COMPANY PROPRIETARY RIGHTS; UNAUTHORIZED SOLICITATIONS AND REMEDIES

You agree that all Content and materials delivered via the Service(s) or otherwise made available by Company are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws. Except as expressly authorized by Company in writing, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from such materials or content. However, you may print or download a reasonable number of copies of the materials or content at the Site for your internal business purposes; provided, that you retain all copyright and other proprietary notices contained therein. Systematic retrieval of data or other content from the Site to create or compile, directly or indirectly, a collection, database or directory without written permission from Company is prohibited. Any third party that contacts Company users for commercial reasons, including to solicit users or to sell users products or services, is in violation of these terms, such third party agrees that each individual violation of this provision is subject to $3,000 in penalties per instance.

Reproducing, copying or distributing any content, materials or design elements available on the web pages associated with the Service(s) for any other purpose is strictly prohibited without the express prior written permission of Company. Use of the content or materials for any purpose not expressly permitted in this Agreement is prohibited. Any rights not expressly granted herein are reserved.

You acknowledge and agree that the Service and any necessary software used in connection with the Service ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. To the extent any Software is provided to you, Company grants you a non-transferable and non-exclusive right and license to use the object code of its Software on a single computer in connection with your authorized used of Service(s); provided that you do not (and do 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, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You agree not to modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You agree not to access the Service by any means other than through the interface that is provided by Company for use in accessing the Service.

18. DISCLAIMER OF WARRANTIES

YOU EXPRESSLY UNDERSTAND AND AGREE THAT:

YOUR USE OF THE SERVICE(S) AND CONTENT IS AT YOUR SOLE RISK. THE SERVICE AND THE CONTENT IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

COMPANY MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (V) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.

ANY CONTENT AND ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.

19. LIMITATION OF LIABILITY

IN NO EVENT SHALL COMPANY (OR ITS AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE TO YOU CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) AMOUNTS IN THE AGGREGATE GREATER THAN THE FEES YOU HAVE PAID FOR SERVICES IN THE PRIOR SIX (6) MONTHS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF CERTAIN LIABILITIES. ACCORDINGLY, TO THE MINIMUM EXTENT REQUIRED UNDER SUCH LAWS, SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 (AND ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION) WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” COMPANY IS NOT RESPONSIBLE FOR ANY CONTENT THAT A USER, SUBSCRIBER, OR AN UNAUTHORIZED USER MAY POST ON THIS SITE OR ANY AFFILIATED SITE. ANY CONTENT THAT IS POSTED OR UPLOADED THAT IS OR MAY BE DEEMED UNSUITABLE CAN AND MAY BE TAKEN DOWN BY COMPANY. MOREOVER, COMPANY RESERVES THE RIGHT TO EDIT, CHANGE, ALTER, DELETE AND PROHIBIT ANY AND ALL CONTENT THAT IT DEEMS UNSUITABLE.

20. NOTICE

Notices to you may be made via either email or regular mail at the email/address you provided during registration. Company may also provide general notices regarding changes to the Service(s) on the web pages associated with the Service(s).

All notices to Company (including notices of termination) must be delivered via regular mail to:

Hourtown, Inc. d.b.a. FreshGuide 217 South B Street, Suite 5 San Mateo, Ca 94401 Attention: Legal

Please report any violations of the terms of this Agreement to us at legal@freshguide.com

21. MISCELLANEOUS.

The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Company shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Company's reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Company's prior written consent. This Agreement shall be governed by and construed in accordance with the laws of the state of California without regard to the conflict of laws provisions thereof. You and Company agree to submit to the personal and exclusive jurisdiction of the courts located within Santa Clara County, California. Both parties agree that this Agreement (including the privacy policy and any other policies referenced herein) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and you do not have any authority of any kind to bind Company in any respect whatsoever.

This Agreement and the rights granted hereunder are not assignable, transferable or sublicensable by you except with Company's prior written consent. Company may assign, transfer or delegate any of its rights and obligations hereunder without consent. You also may be subject to additional terms and conditions that may apply when you use third-party content, technology, services or software. The failure of Company to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect. The section titles in the Agreement are for convenience only and have no legal or contractual effect.

You agree that you are legally able to accept this Agreement. You affirm that you are either more than 18 years of age, or an emancipated minor, or possess legal parental or guardian consent, and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in this Agreement, and to abide by and comply with this Agreement. You affirm that you are, in any case, 13 years of age or older. If you are not 13 years of age or older, please leave the Site.

II. Terms of Sale

By placing an order, you make an offer to Company to purchase the voucher you have selected on the terms and conditions stated below. If Company is unable to process your payment, Company will notify you by email. You will be given one (1) business day from time of notification to fix the problem. If you are unable to remedy the problem and Company cannot process payment within one (1) business day from notification, Company will cancel the order. No charge will be made to your account and you will not have purchased the offer.

You are required to create an account in order to purchase any product. This is required so Company can provide you with easy access to print your orders, view your past purchases, modify your preferences, and to ensure permissible use of the product.

The voucher (“Voucher”) you purchase is redeemable for goods or services by the seller of such goods and services (“Merchant”) or participating restaurant (“Restaurant”). The Merchant and Restaurant, not Company, is the seller of the goods and services. Company sells a Voucher on behalf of the Merchant or Restaurant that can be redeemed in connection with your purchase of the goods or services from Merchant or Restaurant.

1. GENERAL TERMS AND CONDITIONS FOR ALL COMPANY PRODUCTS

All Vouchers printed from the Site or any website associated with Company are promotional vouchers that are offered to customers below their face value and shall be subject to the terms and conditions of Company and the participating Restaurant or Merchant. The Merchant or Restaurant is the seller of the goods or services which you are purchasing.

The holder and issuer of a Voucher issued by a Restaurant is the Restaurant. The holder and issuer of a Voucher issued by a Merchant is the Merchant. As a holder and issuer of the Voucher, the Restaurant or Merchant shall be fully responsible for any and all injuries, illnesses, damages, claims, liabilities and costs suffered by or in respect of a customer, caused in whole or in part by the Restaurant or the Merchant, as well as for any unclaimed property liability arising from unredeemed Vouchers. Vouchers are redeemable in their entirety only and may not be redeemed incrementally. All Vouchers printed from the Site are promotional certificates that are offered to you below their face value and shall be honored only in combination with additional consideration and subject to the terms and conditions of Company and the participating Restaurant or Merchant. Vouchers do not provide customers with an absolute right to redeem a deal for its full value without such additional consideration.

According to the laws of the respective states in which you purchased the Voucher, and in which you wish to redeem the Voucher, the Merchant or Restaurant is responsible for allowing you to redeem the Voucher for the cash value based on the money you actually paid for the Voucher (i.e. if you paid $10 for a Voucher which gives you $30 of value to the Merchant, the cash value that you paid is $10, not $30), for a period of time that may extend beyond the expiration date on the Voucher. While the expiration date on the Voucher dictates the last date that you can use the Voucher for the promotional offer which is stated on the Voucher, state laws (which vary state-by-state, and which are generally made available by each State on the web) may provide that the Merchant or Restaurant is responsible for honoring the cash value that you paid for the Voucher for a period of time beyond the expiration date stated on the Voucher. If applicable, this is a statutory provision which applies to the Merchant or Restaurant, and it is the sole responsibility of the Merchant or Restaurant (and in no way the responsibility of Company, as Company is not the Merchant or Restaurant, has no obligations of the Merchant or Restaurant, and is merely selling the Voucher on behalf of the Merchant or Restaurant) to comply with such applicable laws and statutes which may govern the Merchant or Restaurant. Specific Vouchers may also contain additional terms and conditions.

2. ADDITIONAL TERMS AND CONDITIONS FOR RESTAURANT VOUCHERS

For this section, Restaurant shall be defined as a merchant who offers food and beverage for sale in its regular business operations, and is making such food and beverages available to purchasers of Vouchers. The following provisions describe your relationship to Restaurant. Redemption frequency is determined by Restaurant, and shall be contained in the Voucher offer. Use of Vouchers for alcoholic beverages is at the sole discretion of the Restaurant. Restaurant agrees to comply with all state laws pertaining to the sale of alcoholic beverages. It is at the discretion of the Restaurant to determine whether Vouchers can be combined with any other restaurant certificates, third party certificates, coupons, or promotions. Vouchers cannot be used for taxes, tips or prior balances, unless permitted by the Restaurant. No cash back upon redemption of the Voucher or at any other time. Valid for dine in only unless otherwise stated. The issuing of restaurant credit is at the sole discretion of the Restaurant unless otherwise required by law. Neither the Company nor the Restaurant is responsible for lost or stolen Vouchers or Restaurant Voucher reference numbers. Reproduction, sale or trade of Voucher is prohibited unless done in compliance with the law. Any attempted redemption not consistent with this Agreement will render the Voucher void. Void to the extent prohibited by law. Vouchers expire on the date specified on the Voucher, except where otherwise prohibited by law.

3. ADDITIONAL TERMS AND CONDITIONS FOR MERCHANT VOUCHERS

Vouchers sold by Merchants may be applied only to merchandise sold by Merchants, and may not be applied to shipping or handling charges. Limit one (1) Voucher per redemption. Only one (1) Voucher can be used per order unless otherwise specified by Merchant. No cash back upon redemption or at any other time. The issuing of credit is at the sole discretion of the Merchant unless otherwise required by law. Neither the Company nor the Merchant is responsible for lost or stolen Vouchers or voucher reference numbers. Voucher cannot be combined with any other gift certificates, third party certificates, coupons, or promotions, unless otherwise specified by merchant. Reproduction, sale or trade of Vouchers is prohibited unless done so in compliance with the law. Any attempted redemption not consistent with these terms and conditions will render the Voucher null and void. Void to the extent prohibited by law. Vouchers expire on the date specified on the Voucher, except where otherwise prohibited by law.