Terms of Use

Welcome to FoodServiceDirect ('FSD'). FSD is a marketplace that allows users to offer, sell and buy a variety of items. The actual contract for sale is directly between the seller and you.

This site and its related services and applications (collectively, this "Service") is being offered by FSD. FSD may, in its sole discretion and at any time, modify, suspend or discontinue this Service or specific portions of it.

PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THE SERVICES.

Agreement to Be Bound; Termination

Your access to and use of this Service constitutes your agreement with FSD to be bound by, and to act in accordance with, these Terms of Use. From time to time, FSD may make available as part of this Service or through another platform, specific features that may require you to download content, software and/or agree to additional terms and conditions, policies and disclaimers. Unless otherwise expressly set forth in such additional terms and conditions, any additional terms or conditions are incorporated by reference into these Terms of Use. If there is a conflict between these Terms of Use and any additional terms and conditions, the additional terms and conditions will control with respect to the specific feature.

You may terminate your use of this Service at any time. FSD may suspend, discontinue or terminate your access to or use of this Service at any time immediately and without prior notice or obligation to you (i) if you violate any of the terms contained in these Terms of Use as determined by FSD in its sole discretion, or (ii) for any other reason in FSD's sole discretion. FSD may notify you of any such suspension, discontinuance or termination by posting a notice on this Service, on any webpage opened when using this Service, by email to an email address you provided to FSD upon enrollment or thereafter, or otherwise. Upon your receipt of such notice, you will immediately discontinue use of this Service during the period of suspension (for a suspension) or permanently (for a discontinuance or termination). Upon any discontinuance or termination of your use of this Service, you must uninstall any Software (as defined below) downloaded from this Service and promptly destroy all Materials (as defined below) obtained through this Service, as well as any copies of such Materials. You agree that FSD shall not be liable to you for any suspension, discontinuance, termination, change or modification of your use of or access to this Service.

If you do not agree to be bound by ALL of these Terms of Use, or if these Terms of Use are not enforceable where you are located, you may not use the Service. We would not provide the Service without the conditions herein. If you later seek to repudiate these Terms of Use or any aspect thereof, you agree that such action would constitute a breach of these Terms of Use, prohibiting you from enforcing any aspect of the Terms of Use and entitling us to damages resulting from your breach. AS SUCH, IF YOU DO NOT AGREE TO ANY ASPECT OF THE TERMS OF USE, PLEASE DO NOT USE THE WEBSITE OR THE SERVICE.

If you are an individual using the Service on behalf of, or for the benefit of, any corporation, partnership, or other entity with which you are associated (an "Organization"), then you are agreeing to these Terms of Use on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms of Use. In that case, references to "you" and "your" in these Terms of Use will refer to both the individual using the Service and to any such Organization.

If you register an account on the Service (an "Account"), you:

• must not allow any third party to access the Service using the email address you provided during the registration process ("Log-in ID") and password;
• are prohibited from using anyone else's Log-in ID and password to access the Service;
• are responsible for any use of the Service by any third party who accesses the Service using your Log-in ID and/or password;
• will notify FSD immediately if you suspect any unauthorized use of the Service or of your Log-in ID and/or password; and
• are responsible for ensuring that any information that you provide to FSD as part of the account registration process is accurate and is kept up to date at all times, and you will notify FSD immediately of any changes to this information.

We may change or revise these Terms of Use from time to time by updating this posting, so please visit this area each time you visit the Service to keep up to date with the current terms regarding your use of the Service. To the fullest extent permitted under all applicable laws, rules, regulations and requirements (collectively, "Applicable Laws"), your use of the Service reaffirms your continuing agreement to the then-current Terms of Use.

For information on how FSD uses and protects the personal information you may provide on this Service, please read the Privacy Policy at: https://www.foodservicedirect.com/privacy. The Privacy Policy is incorporated into these Terms of Use and explains FSD's privacy practices. By using the Service, you agree to the terms of the Privacy Policy.

All right, title and interest in and to this Service, including all text, designs, images, videos, graphics, Software and other content and materials on the Service (collectively, "Materials"), are owned by FSD and its licensors. FSD also owns or has a right to use all trademarks, service marks, logos, and trade names used on this Service (collectively, "Trademarks").

FSD grants to you a limited, revocable, non-exclusive, non-sublicenseable and otherwise non-transferable license to access and use this Service (including any Materials) and to download one copy of the Materials on any single computer or device for your own personal, non-commercial home use strictly in accordance with these Terms of Use. FSD may in its sole discretion suspend, discontinue or terminate this license at any time for any reason.

No part of the Service may be copied, reproduced, republished, uploaded, posted, transmitted, distributed, stored or incorporated into any information retrieval system in any way, except that you may download one copy for your personal, non-commercial home use only, provided you keep intact all copyright, trademark and other proprietary notices on the materials. In addition, you may not rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer this Service or any portion thereof.

You may not use any device, software or routine to interfere or attempt to interfere with the proper working of this Service or any portion thereof and you may not take any action that imposes an unreasonable or disproportionately large burden on this Service, as determined by FSD in its sole discretion.

Any modification of the Materials or use of the Materials for any other purpose is a violation of FSD's or its licensors' copyright and other proprietary rights. The use of any such Materials on any other service or computer network without FSD's written consent is strictly prohibited. Your use of the Trademarks in any manner other than as authorized in these Terms of Use, or as authorized in writing by FSD, is strictly prohibited. All rights not expressly granted to you are reserved by FSD or its licensors.

From time to time FSD may make available as part of the Materials on this Service particular software including files, images and data relating to the software (the "Software"). You do not own the downloaded software, and FSD does not transfer ownership of the Software to you, but merely grants you the limited rights set forth in these Terms of Use. FSD retains full ownership of and title to the downloaded Software and all intellectual property rights in and related to the Software. You may not redistribute, sell, decompile, reverse engineer, disassemble, or otherwise reduce the Software to a human-perceivable form. Software that is downloaded through this Service is subject to United States export control laws. If you download Software from this Service, you represent and warrant to FSD that you are not acting in violation of those laws.

In using or accessing this Service, you agree, without limitation:

• not to use this Service in breach of these Terms of Use;
• not to use this Service for commercial purposes;
• not to "spam" others or "phish" for others' personal information;
• not to disrupt or interfere with the security of, or otherwise abuse, this Service, or any part this Service;
• not to upload, post or otherwise transmit through or on this Service any viruses or other harmful, disruptive or destructive files;
• not to use, frame or utilize framing techniques to enclose any part of this Service without FSD's express prior written consent;
• not to use meta tags or any other "hidden text" utilizing any Trademark without FSD's express prior written consent;
• not to "deeplink" to this Service without FSD's express prior written consent;
• not to create or use a false identity on this Service;
• not to collect or store personal data about others;
• not to attempt to obtain unauthorized access to this Service or portions of this Service that are restricted from general access;
• not to transmit any material that is false and/or defamatory, inaccurate, abusive, vulgar, hateful, harassing, obscene, profane, sexually oriented, threatening, invasive of a person's privacy, violates any third party proprietary rights, or is in violation of any law or regulation;
• not to post any copyrighted, trademarked, or other proprietary material unless you own the copyright, trademark, right of publicity and/or other applicable proprietary rights, or you have all necessary rights to do so and to grant the Licensed Parties (as defined below) the rights set forth in these Terms of Use;
• not to use the features of this Service at any website other than a merchant, retail or social networking website as permitted under these Terms of Use. Such restricted websites shall include, without limitation, blogs and other online publications;
• not to use this Service in breach of any Third Party Site's (as defined below) terms and conditions; and
• not to use the Service for any commercial or for-profit manner or purpose, including, but not limited to, for the purpose of, or with the intention of initiating, future litigation or arbitration, including using the Service in order to trigger or induce an alleged violation of any law.

In addition, you agree that you will comply with all Applicable Laws that relate to your use of or activities in connection with this Service. You also agree to act consistent with the requirements set forth in these Terms of Use and the requirements of FSD.

You agree to immediately notify FSD if you suspect illegal, fraudulent or abusive activity, or any activity in violation of these Terms of Use, including any unauthorized access to your Account. If you so notify FSD, or we otherwise suspect such activity, you agree to cooperate with FSD in any investigation and to use any prevention measures we prescribe.

Certain portions of the Service may permit you to submit post, transmit or upload content created by you ("User Submissions"), which may include, without limitation, photographs, information, text, images, graphics, video, comments, suggestions, ideas (including product and advertising ideas), posts to blogs/ social networks/ discussion forums, and communications with other Service users.

In connection with User Submissions, you agree that you will not submit User Submissions that: include material that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights (including, without limitation, trademark, privacy and publicity rights) unless you are the owner of such rights or have express permission from their rightful owner to post the material and to grant the rights granted herein; include any material that by itself, or by its use as permitted in these Terms of Use, infringes upon, misappropriates or violates the rights of any person or entity or any Applicable Laws; are unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law or is otherwise inappropriate; contain advertisements or solicitations of any funds, goods or services; is a communication by a user impersonating another user; contains personal information, such as messages which identify telephone numbers, social security numbers, account numbers or addresses; or could be considered bulk unsolicited communications.

By submitting, transmitting, posting, uploading, modifying or otherwise providing any User Submissions to FSD through this Service, whether solicited or unsolicited, you agree that you are granting FSD, its third-party service providers who provide the Service, and retail partners (collectively, the "Licensed Parties") a royalty-free, fully paid, non-exclusive, irrevocable, perpetual, unrestricted, worldwide, sub-licensable, transferable license to use, reproduce, broadcast, publish, transmit, perform, display, create derivative works from, translate, adapt, modify, distribute, exhibit, disseminate and otherwise exploit (collectively, "Use") such User Submissions for any purpose, including, without limitation, advertising, marketing and promotional purposes, in any media, now or hereafter known, even if these Terms of Use are later modified or terminated.

No credit, approval or compensation is due to you for any such Use of User Submissions you may submit. The Licensed Parties also have the right, but not the obligation, to Use your username (and real name, image, likeness, caption, location information or other identifying information, if provided in connection with User Submissions), in connection with broadcast, print, online or any other Use of your User Submissions. All User Submissions become the unrestricted licensed property of the Licensed Parties.

By submitting, posting, transmitting or uploading User Submissions through or to the Service, you authorize the Licensed Parties to make copies thereof and retain such User Submissions and copies as the Licensed Parties deem necessary to facilitate the Use of the User Submission.

You represent and warrant that neither the User Submissions, nor the Use of the User Submissions as permitted in these Terms of Use, will infringe upon, misappropriate or violate the intellectual property, privacy, publicity, statutory, contractual, personal or other rights of any person or entity or any Applicable Laws, and that you have obtained all necessary rights for the grants to the Licensed Parties, including without limitation, written releases of all rights of privacy and publicity from all individuals included in any way in the User Submissions. All User Submissions must comply with the User Code of Conduct set forth above.

Although the Licensed Parties are under no obligation to review or monitor User Submissions, the Licensed Parties reserve the absolute right to do so in their sole discretion. In addition, the Licensed Parties reserve the right to alter, edit, refuse to post or remove any User Submissions, in whole or in part, for any reason or for no reason. FSD also reserves the right to terminate your Account if you violate any of these Terms of Use or our policies, as determined in our sole discretion. You agree that FSD does not have any obligation to use or respond to any User Submissions. The Licensed Parties have no control over whether such User Submissions are of a nature that you might find offensive, distasteful or otherwise unacceptable and, accordingly, the Licensed Parties expressly disclaim any responsibility for User Submissions.

If you are aware of any User Submissions on this Service which violate these Terms of Use, please contact us by emailing us at customerservice@foodservicedirect.com. Please provide as much detail as possible, including a copy of the underlying material, the location where FSD may find it, and the reason such User Submissions should be removed. Please note that filing a complaint will not guarantee its removal; FSD will only remove User Submissions if FSD believes the measure is necessary, in our sole discretion. To the extent any notice is based on an alleged copyright violation, please follow the instructions set forth in the section below entitled "Copyright Agent." In no event does FSD assume any liability for failing to either monitor or remove specific User Submissions.

FSD will fully cooperate with any law enforcement authorities or court order requesting or directing FSD to disclose the identity of anyone posting User Submissions that violate these Terms of Use or any law or regulation. FSD may also disclose such information if it has a good faith belief that such disclosure is reasonably necessary to protect the rights, property, or personal safety of FSD, its customers or the public.

The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information:

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

(b) a description of the copyrighted work or other intellectual property that you claim has been infringed;

(c) a description of where the material that you claim is infringing is located, with enough detail that we may find it;

(d) your address, telephone number, and email address;

(e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;

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

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon us actual knowledge of facts or circumstances from which infringing material or acts are evident. Our copyright agent for notice of claims of copyright or other intellectual property infringement can be reached as follows:

Cristina A. Carvalho
ArentFox Schiff LLP
1717 K Street NW
Washington, DC 20006 United States
P: 202.857.6000 F: 202.857.6395
cristina.carvalho@afslaw.com

We suggest that you consult your legal advisor before filing a notice with our copyright agent.

We may, in appropriate circumstances and in our sole discretion, prohibit users who may be repeat infringers from accessing the Service or making submissions.

FSD is a marketplace that allows users to offer, sell and buy a variety of items. The actual contract for sale is directly between the seller and you.

The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Each seller reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. Prices and availability of products on the Service are subject to change without notice. Errors will be corrected when discovered and FSD and each seller reserve the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). Certain orders constitute improper use of the Services. FSD and each seller reserve the right, at its sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at FSD's sole discretion. Items purchased pursuant to a quantity discount may be re-priced upon cancellation.

With respect to items sold by sellers through FSD, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by sellers through FSD is higher than the stated price, we or the seller will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.

Where a product listing on our Services references a higher price, typically denoted by a strikethrough (e.g. '$549'), such higher price represents the retail price suggested by the manufacturer or supplier. In the absence of a price suggested by the manufacturer or supplier, this price represents the highest price at which a seller offered or sold the product at some point in the past. For 'Promotional Deals', where a product is temporarily being sold at a reduced price, an additional strikethrough price is presented that represents the previous price before the Flash Deal promotion. The 'Sale' tag on a product listing on our Service signifies that we are selling the product at a discount from a price in the previous 60 days.

When we use the term 'Closeout,' we mean either that the product has been permanently reduced and will not return to the original price or that the product is temporarily being sold at a reduced price in order to clear an overstock of supplier inventory. Prices of products listed on our Services as 'Closeout' may fluctuate during the 'Closeout' promotion period for such products. For temporary 'Closeout' pricing, such products may return to prices that are equal to or greater than their original prices upon expiration of the applicable 'Closeout' promotion period.

FSD attempts to be as accurate as possible. However, FSD does not warrant that product descriptions or other content of any FSD Website offering is accurate, complete, reliable, current, or error-free.

Certain weights, measures, and related descriptions are approximate and are provided for convenience purposes only.

FSD has made every effort to display as accurately as possible the colors of our products that appear on the Service. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.

YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION CONDUCTED ON THE SERVICE.

All purchases of physical items from FSD are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier or shipper of such items.

All returns are subject to our Return Policy.

For your convenience and enjoyment, this Service may provide links to other third party web sites on the World Wide Web that are not operated by FSD ("Third Party Site"). FSD has no control over these Third Party Sites and is not responsible or liable for the availability, security, content, or resources of such Third Party Sites. FSD may provide such links to Third Party Sites to you only as a convenience, and the inclusion of any link does not imply a referral by FSD to, or an endorsement by FSD of, the linked Third Party Site or any products or services, or other materials on or available from such Third Party Site. FSD is not responsible for webcasting or any other form of transmission received from any linked Third Party Site. In addition, FSD is not liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with your use of such content, information, products, goods or services available on or through any such Third Party Sites.

If you determine to share any information about any FSD products through a social network platform, including through links provided by FSD through the Service, you may be able to post such information directly to your profile at the social networking platform without leaving the Service. Some social networking platforms enable functionality that allows a user to receive and transmit data to the social networking platform through use of overlays or other technology. Although it may appear that the data is collected by FSD, the data is in fact collected directly by the social networking platform and/or a third-party service provider. Your use of a social network platform to share any information is subject to, and you must comply with, the terms, conditions and restrictions of that social network platform.

If permitted or available through the Service, to (a) upload content to the Service via your mobile device and/or tablet, (b) receive and reply to messages, or to access or make posts using text messaging, (c) browse the Service from your mobile device and/or (d) to access certain features through a mobile application you have downloaded and installed on your mobile device (collectively the "Mobile Services"), you must have a mobile communications subscription (or have the consent of the applicable subscriber, to the extent permitted under the applicable subscription) with a participating carrier or otherwise have access to a mobile communications network for which FSD makes the Service available as well as any carrier services necessary to download content, and you must pay any service fees associated with any such access (including text messaging charges for each text message you send and receive on your mobile device). In addition, you must provide all equipment and software necessary to connect to the Service, including, but not limited to, if the Service contains a mobile element, a mobile hand set or other mobile access device that is in working order and suitable for use in connection with the Service. You are responsible for ensuring that your equipment and/or software does not disturb or interfere with operations of the Service. Any equipment or software causing interference will be immediately disconnected from the Service and FSD will have the right to immediately terminate this Agreement. If any upgrade in or to the Service requires changes in your equipment or software (including the operating system for your Device), you must effect these changes at your own expense. Unless explicitly stated otherwise, any new or additional features that augment or enhance the current Service, including the release of new products and services, will be subject to the terms and conditions of this Agreement.

By opting into SMS/MMS marketing communications from FoodServiceDirect, you agree to receive text messages (SMS and MMS) regarding our products, services, and promotions, including special offers and updates. The number of messages you receive may vary depending on your interactions with us and your preferences.

Opt-In: You can opt into our SMS/MMS marketing communications by subscribing through our website or by other means as we may provide. By opting in, you represent that you are the owner of the mobile number provided and that you are authorized to consent to receive text messages at that number.

Message Frequency: The frequency of messages varies.

Charges: Message and data rates may apply. Please check with your mobile carrier for details.

Opt-Out: You can opt out of receiving SMS/MMS messages at any time by replying STOP to any message you receive from us. Upon receiving your opt-out request, we will send you one final message to confirm that you have been unsubscribed. After this, you will no longer receive SMS/MMS messages from us.

Support: For help with our SMS/MMS messages, reply HELP to any message, or contact customerservice@foodservicedirect.com.

Data Privacy: We respect your privacy. Our use of your personal information in connection with SMS/MMS marketing is governed by our Privacy Policy. We will not share or use your mobile number for other purposes without your consent.

Changes to Terms: We reserve the right to modify these SMS/MMS marketing terms and conditions at any time. Any changes will be effective immediately upon posting the revised version on our Services. Your continued participation in our SMS/MMS marketing program following such changes constitutes your acceptance of those changes.

THE MATERIALS IN THIS SERVICE (INCLUDING ANY GRAPHICS, SOFTWARE, RECOMMENDATIONS OR OTHER MATERIALS) AND ANY MATERIALS MADE AVAILABLE THROUGH THIS SERVICE ARE PROVIDED "AS IS" AND "AS-AVAILABLE", AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FSD DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FSD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. THE MATERIALS IN THIS SERVICE COULD INCLUDE TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. THESE MATERIALS COULD BE INACCURATE OR BECOME INACCURATE AS A RESULT OF DEVELOPMENTS OCCURRING AFTER THEIR RESPECTIVE DATES. FSD UNDERTAKES NO OBLIGATION TO VERIFY OR MAINTAIN THE CURRENCY OF SUCH INFORMATION.

IN ADDITION, YOU UNDERSTAND AND AGREE THAT WHEN USING THIS SERVICE, YOU WILL BE EXPOSED TO USER SUBMISSIONS POSTED AND/OR SUBMITTED BY USERS. FSD IS NOT IN ANY MANNER RESPONSIBLE FOR THE USER SUBMISSIONS, AND FSD DOES NOT GUARANTEE THE ACCURACY, INTEGRITY, QUALITY, OR INTELLECTUAL PROPERTY RIGHTS OF OR RELATING TO SUCH USER SUBMISSIONS. IN ADDITION, FSD CANNOT ASSURE THAT HARMFUL, INACCURATE, DECEPTIVE, OFFENSIVE, THREATENING, DEFAMATORY, UNLAWFUL OR OTHERWISE OBJECTIONABLE USER SUBMISSIONS WILL NOT APPEAR ON THIS SERVICE. YOU ACKNOWLEDGE THAT BY PROVIDING YOU WITH THE ABILITY TO ACCESS AND VIEW USER SUBMISSIONS ON THIS SERVICE, FSD IS MERELY ACTING AS A PASSIVE CONDUIT FOR SUCH DISTRIBUTION AND IS NOT UNDERTAKING ANY OBLIGATION OR LIABILITY RELATING TO ANY USER SUBMISSIONS OR ACTIVITIES OF USERS ON THIS SERVICE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, YOU ACKNOWLEDGE AND AGREE THAT THE INFORMATION, MATERIALS AND OPINIONS EXPRESSED OR INCLUDED IN ANY USER SUBMISSIONS ARE NOT NECESSARILY THOSE OF FSD OR ITS AFFILIATED OR RELATED ENTITIES OR SERVICE PROVIDERS.

FSD ENDEAVORS TO MAINTAIN THIS SERVICE AND ITS OPERATION, BUT IS NOT, AND CANNOT BE, RESPONSIBLE FOR THE RESULTS OF ANY DEFECTS THAT MAY EXIST IN THIS SERVICE OR ITS OPERATION. AS TO THE OPERATION OF THIS SERVICE, FSD EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FSD MAKES NO WARRANTY THAT (I) THE OPERATION OF THIS SERVICE WILL MEET THE USER'S REQUIREMENTS; (II) ACCESS TO THIS SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER HARMFUL COMPONENTS, OR FREE OF DEFECTS OR ERRORS; (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THIS SERVICE WILL BE ACCURATE OR RELIABLE; OR (IV) DEFECTS WILL BE CORRECTED. YOU (AND NOT FSD) ASSUME THE ENTIRE COST OF ALL SERVICING, REPAIR, OR CORRECTION THAT MAY BE NECESSARY FOR YOUR COMPUTER EQUIPMENT OR MOBILE DEVICE AND SOFTWARE AS A RESULT OF ANY VIRUSES, ERRORS OR ANY OTHER PROBLEMS WHATSOEVER YOU MAY HAVE AS A RESULT OF VISITING THIS SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU FURTHER AGREE THAT THIS SERVICE IS PROVIDED FOR INFORMATIONAL AND ENTERTAINMENT PURPOSES ONLY OVER THE PUBLIC INTERNET, AND ANY DATA OR OTHER INFORMATION OBTAINED BY FSD OR THIRD PARTIES FROM YOUR USE OF THE SERVICE HAS NO VALUE TO YOU, AND NO INJURY CAN RESULT FROM YOUR USE OF THE SERVICE.

UNDER NO CIRCUMSTANCES SHALL FSD, ITS PARENTS, SUBSIDIARIES AND AFFILIATED COMPANIES AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS, LICENSEES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE "FSD PARTIES") BE LIABLE FOR ANY DAMAGES OR INJURY, INCLUDING ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR OTHER DAMAGES, THAT MAY RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE SERVICE OR ANY MATERIALS IN THIS SERVICE, WHETHER IN AN ACTION BASED ON CONTRACT, NEGLIGENCE, STATUTE, OTHER TORTIOUS ACTION OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THIS SERVICE OR INFORMATION AVAILABLE ON OR SHARED THROUGH THIS SERVICE, INCLUDING INFORMATION SHARED TO THIRD PARTIES. THE FSD PARTIES SHALL NOT BE LIABLE EVEN IF FSD OR A FSD AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE INCLUDE BUT ARE NOT LIMITED TO DAMAGES OR INJURY CAUSED BY ERROR, OMISSION, INTERRUPTION, DEFECT, FAILURE OF PERFORMANCE, DELAY IN OPERATION OR TRANSMISSION, LINE FAILURE OR COMPUTER VIRUS, WORM, TROJAN HORSE OR OTHER HARMFUL COMPONENT.

Applicable Laws may not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations or exclusions may not apply to you. However, in no event shall the FSD Parties' total liability to you for damages, losses, and causes of action (whether in contract, tort (including, but not limited to, negligence, or otherwise) exceed the amount paid by you, if any, for accessing this Service. You understand the sections referenced in this subtitle are an essential aspect of our ability to provide the Service to you, and that we would not be able to do so without these provisions. If you do not intend to honor these provisions, do not use the Service.

You hereby agree to indemnify and hold the FSD Parties harmless from and against any and all claims, actions or proceedings of any kind and from any and all damages, judgments, losses, liabilities, costs and expenses, including reasonable attorney's fees and expenses incurred from counsel selected by FSD in our sole discretion (including any incurred in enforcement of this provision), relating to or arising out of your use of this Service, your User Submissions, your breach or alleged breach of these Terms of Use, including any of your warranties, representations or agreements hereunder, your violation of Applicable Laws, or your violation of any rights of another person or entity.

Separately, if you initiate (or threaten to initiate) any litigation, arbitration, or otherwise assert any claim against the FSD Parties that is based or relies, in whole or in part, upon a repudiation or breach of any promises, representations, warranties, agreements, or consents that you have made to or with FSD pursuant to these Terms of Use (collectively "Prohibited Legal Actions"), you agree to indemnify and hold the FSD Parties harmless from any and all liabilities, claims, demands, damages, costs, and expenses (including reasonable attorneys' fees of counsel selected in our sole discretion and other legal costs) that arise from or relate to the Prohibited Legal Action, regardless of the legal theory of the Prohibited Action and whether it is brought or asserted individually or as part of a collective.

PLEASE READ THE FOLLOWING SECTIONS CAREFULLY. THEY AFFECT YOUR LEGAL RIGHTS. FSD is committed to customer satisfaction, so if you have a problem or dispute, we will try to resolve your concerns. FSD's Customer Service Representatives are ready to assist you and address your concerns. If our customer service team is unable to resolve your concern, you may pursue disputes as detailed in the sections below.

A. Pre-Arbitration Claim Resolution - For all disputes, you must first give FSD an opportunity to resolve the dispute by writing us at 111 River Street, Hoboken, New Jersey, 07030, and providing the following information: (1) your name, (2) your address and email address, (3) a written description of your claim, expressly including any available documentation supporting or otherwise evidencing your claim that is in your possession or available to you through a third party, and (4) a description of the specific relief you seek, the damages and/or injury you suffered, and a calculation for any such damages (a "Dispute Notice"). Each Dispute Notice is limited to a single Dispute between you and FSD. As such, your dispute and the disputes of other parties may not be combined into a single Dispute Notice.

Within 60 days after receiving a complete Dispute Notice, the parties are required to conduct an individual meet-and-confer in person, or via teleconference or videoconference, that addresses only the Dispute between you and FSD (the "Conference"). If you are represented by counsel, your counsel may participate in the Conference, but you will also need to participate. FSD will participate in the Conference through one or more representatives, which may include our counsel.

Both you and FSD agree that the foregoing dispute resolution procedure (the "Pre-Arbitration Claim Resolution Procedure") is a condition precedent that must be satisfied before initiating any arbitration or litigation or otherwise filing any claim against the other party. If any aspect or requirement of the Pre-Arbitration Claim Resolution Procedure has not been completed or satisfied, the parties agree that (i) a court of competent jurisdiction can enjoin the filing or prosecution of any arbitration or litigation and (ii) unless prohibited by law, no arbitration administrator shall accept or administer any arbitration or demand fees in connection with the dispute.

B. Arbitration Agreement, Class Action Waiver, Punitive Damages Waiver - Any claim between you and FSD related to these Terms of Use or your use of this Service, if unresolved through informal pre-arbitration discussions, will be resolved by binding arbitration, except to the extent either party elects to resolve a dispute subject to the jurisdiction of a small claims court.

You and FSD further agree that any dispute, whether at law or equity, arising out of or relating in any way to these Terms of Use or your use of the Service, by whatever means, between you and FSD, shall be resolved in its entirety on an individual basis (not class-wide or collective) through binding arbitration. Any dispute regarding the scope of this Arbitration Agreement shall be decided by the arbitrator.

You and FSD agree that any arbitration under this Arbitration Agreement will take place on an individual basis, except as otherwise provided below, and that proceedings as a private attorney general are not permitted.

C. Arbitration Procedures - If any dispute between you and FSD is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or FSD may initiate arbitration proceedings. Any controversy or claim arising out of your use of this Service or these Terms of Use shall be settled by binding arbitration before Judicial Arbitration and Mediation Services ("JAMS"), in a location determined by the arbitrator as set forth herein (provided that such location is reasonably convenient for claimant), or at such other location as may be mutually agreed upon by the parties, in accordance with the procedural rules for commercial disputes set forth in the Comprehensive Arbitration Rules and Procedures of JAMS ("JAMS Rules and Procedures") then prevailing, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. You agree that FSD accommodating any location request for your convenience will not subject FSD to personal jurisdiction in such forum. The arbitrator shall be selected pursuant to the JAMS Rules and Procedures. Please go to www.jamsadr.com to see a complete copy of the JAMS Rules and Procedures or to submit a claim for arbitration. In resolving a claim for arbitration, the arbitrator shall apply New York State law consistent with the Federal Arbitration Act and applicable statutes of limitations and shall honor claims of privilege recognized at law. If any part of this arbitration provision is deemed to be invalid, unenforceable, or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal, or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable, or illegal is that claims will not be arbitrated on a class, representative, or collective basis, or as a private attorney general on behalf of other persons similarly situated, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made and all initial filing requirements are met, unless further extended by mutual agreement of the parties. Disputes regarding the scope of this agreement to arbitrate shall be resolved by the arbitrator.

THE ARBITRATION OF DISPUTES PURSUANT TO THIS SECTION SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU MAY NOT BRING ANY CLAIM AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS. However, notwithstanding the above, if you file a demand for arbitration that is one of fifty (50) or more similar demands for arbitration filed against FSD by parties represented by the same law firm or law firms acting in coordination ("Mass Arbitration"), the arbitration of the Dispute, and all other Disputes constituting the Mass Arbitration, shall be conducted in accordance with the JAMS Mass Arbitration Procedures and Guidelines, including the JAMS Mass Arbitration Fee Schedule (the "Mass Arbitration Procedures"), or any successor rules or procedures intended to or having the effect of reducing the cost of Mass Arbitration. The Mass Arbitration Procedures are available at www.jamsadr.com/mass-arbitration-procedures.

You and FSD agree that, in the event of a Mass Arbitration, any issues arising under or relating to (a) the interpretation, applicability, enforceability, or formation of these Terms of Use, including any claim that all or any part of these Terms of Use are void or voidable or (b) the jurisdiction of the arbitrator, including any objections with respect to the existence, scope, or validity of this Section, or the arbitrability of any claim or counterclaim, shall be decided by a court of competent jurisdiction.

DO NOT USE THE SERVICE IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS.

D. Other Dispute Resolution Terms - In the event of any dispute between the parties, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with the dispute. As in court, you and FSD agree that any counsel representing someone in arbitration certifies that they will comply with the requirements of Federal Rule of Civil Procedure 11, including a certification that the claim or the relief sought is neither legally or factually frivolous, nor brought for an improper purpose.

You acknowledge that if you are in breach of any provisions of these Terms of Use, you shall not have the right to enforce any of the provisions herein. This includes, but is not limited to, any rights or remedies that would otherwise be available to you under these Terms of Use.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO YOUR USE OF THIS SERVICE OR THESE TERMS OF USE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

FSD controls and operates this Service from within the United States of America. While you may access the Service from anywhere within the United States of America, you understand and agree that FSD is not purposefully directing, or otherwise aiming, any activity to where you may be located through its operation of the Service, the use of which the parties agree is exclusively subject to New York law. Unless otherwise specified on or by this Service, this Service is intended to promote only those FSD products that are sold generally by FSD in the United States and its territories and possessions, not targeted to any such particular jurisdiction, and FSD makes no representation that materials in this Service or the products described thereby are appropriate or available for use in other locations. All visitors to this Service are responsible for compliance with all local laws applicable to them with respect to the content and operation of this Service.

Your use of this Service, these Terms of Use and any disputes arising under or related to these Terms of Use or related to use of this Service (whether for breach of contract, tortious conduct or otherwise) will be governed by the laws in effect in the State of New York, without reference to its conflicts of law principles.

Any disputes not subject to arbitration pursuant to Section "Disputes", shall be resolved by a court located in New York and you agree and submit to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action. You further agree that, to the extent permitted by law, (a) any such claims will be brought and maintained solely on an individual basis and not as part of any class, consolidated, collective, or representative capacity.

FSD AND YOU ALSO WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE, DEFEND OR INTERPRET ANY RIGHT OR REMEDIES UNDER, OR ARISING IN CONNECTION WITH OR RELATING TO, THESE TERMS OF USE.

If any provision of these Terms of Use shall be found to be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these Terms of Use and shall not affect the validity and enforceability of any remaining provisions.

No failure on the part of FSD to enforce any part of these Terms of Use shall constitute a waiver of any of FSD's rights under these Terms of Use whether for past or future actions on the part of any person. Neither the receipt of any funds by FSD nor the reliance of any person on FSD's actions shall be deemed to constitute a waiver of any part of these Terms of Use. Only a specific, written waiver signed by an authorized representative of FSD shall have any legal effect whatsoever.

The paragraph titles in these Terms of Use are for convenience only and have no legal or contractual effect. To return to the site you were visiting, press the back button on your browser.