Welcome to 49th Fresh (www.49thfresh.com). These Terms of Service (“Terms”) govern your use of the website, any associated services, systems, applications, offers and content (collectively, “Services”). Throughout these Terms, the words “we,” “us,” and “our” refer to 49th Fresh. By accessing, searching, selecting, purchasing, creating an account, providing your contact details or otherwise engaging with the Services, you agree to be bound by these Terms, including Terms that may be hyperlinked and incorporated by reference herein. If you do not agree with all these Terms, do not access, engage or use the Services.
Section 1. Use of the Services
The Services are provided as-is for your noncommercial, personal use. With respect to all content, including, but not limited to, photographs, videos, text, code, audio and the look and feel of the content, 49th Fresh, its licensors or third party providers own the intellectual property rights to such content.
We grant you a non-exclusive, non-assignable, non-sublicensable, limited license to access and use the Services for the purposes outlined in these Terms. You are prohibited from using the services for any unlawful purpose, including, but not limited to, engaging in activity that infringes the intellectual property or privacy rights of any third parties, is defamatory, obscene, pornographic, unlawfully threatening, harassing or humiliating, hateful, racially or ethnically offensive, or impersonates any person, thing or entity, or creates a risk to anyone’s safety or privacy, including accessing anyone else’s account without their permission or disrupting the Services.
Section 2. Visitors and Account Creation
We reserve the right, at our sole discretion, to revise any part of these Terms or update the Services at any time. You acknowledge that you are responsible for periodically checking our website for revisions and that your continued use of, or access to, the Services constitutes acceptance of the revised Terms of Service and updated Services.
Section 3. Account Types, Product Information, Shipping and Return Policy
Section 3.1. Account Types
We may offer different types of Accounts, including a regular Account, and subscription-based Membership Accounts (“Accounts”) featuring additional benefits. Upon creating a Membership Account, payment for the chosen membership duration will be due immediately and shall renew on the anniversary of your membership purchase date for the same duration. If you cancel your Membership Account before the end of the membership period, you will retain access to the Services for the remainder of the membership period and will not be entitled to any partial refund. If at renewal we are unable to charge your payment method for your Membership Account, we will notify you and attempt to process the payment again shortly thereafter. If after a reasonable time we are unable to process your payment, your Membership Account will be canceled and Membership benefits will no longer be accessible.
You agree to maintain the security of your Account at all times, including login and password information. You understand that you cannot assign your Account to any third party, and while you may opt out of marketing updates, you expressly consent to receiving texts, emails and other communications from us regarding Account updates necessary to your use of the Services, including but not limited to, billing, payments, stock levels, orders, shipping and delivery details. You acknowledge that your phone service carrier may charge text and data charges.
Section 3.2. Products Information
Every effort is made to present accurate information regarding the Services, however, you acknowledge that information is constantly changing, and that we are neither liable for any errors or omissions, nor any damages or loss you may incur. We reserve the right to update the Services, processes or pricing at any time. Your access and/or use of the Services is voluntary and you assume full responsibility for your use or non-use of the Services and agree that we are not guaranteeing a specific personal or health result.
The Services are for informational purposes only, and not intended as a substitute for health advice that can be provided by a relevant and recognized (e.g. licensed) health industry professional. You acknowledge that you are responsible for understanding any food allergies you and other relevant consumers may have, and for the safe handling, storage, preparation, cooking, consumption and disposal of the product.
Due to the perishable nature of our products, we do not allow or accept returns. Please review the product description and/or relevant FAQs prior to purchase in order to determine whether a product is right for you. If after reviewing these resources, you have general product questions, please contact us at support@49thFresh.com prior to purchase.
Section 3.3. Shipping and Return Policy
We carefully pack and secure the products prior to the shipping and delivery process. Once we have turned over the product to the shipping carrier, you understand that we are no longer responsible for delivery. If you ship to an address other than your own, or otherwise designate someone to receive the product on your behalf, the designee will be subject to these Terms also.
In the event of a shipping delay, undeliverable or returned product due to inaccurate shipping information provided by you, we will dispose of the product and you will not receive a refund. If a shipping delay is caused by inclement weather or an event outside our control, we will attempt to deliver your order as soon as it is reasonably possible and safe to do so. You should always inspect the products upon arrival to ensure its condition is safe for handling and consumption per the guidelines available from the United States Department of Agriculture (“USDA”). For frozen products we recommend using a thermometer to ensure the temperature is at 40 degrees Fahrenheit or below. If upon arrival you do not believe the product is safe to handle or consume, please contact us at support@49thFresh.com, and provide clear photographs of the product so that we may further assist you. In the unlikely event that a product was delivered according to schedule, and does not appear suitable for handling or consumption upon arrival, we may issue you a credit for use on a future order.
Section 4. Third Party Businesses, Personal Information and Legitimate Business Reasons
We may from time to time provide links to third parties for informational reasons, and doing so is not an admission of partnership, affiliation or endorsement by us. We recommend you review all third party Terms of Service carefully. Should a question, issue or dispute arise between you and a third party, you acknowledge that we will have no obligation to intervene or otherwise become involved with the matter.
Section 5. User-generated Content and Intellectual Property
Regarding intellectual property, you retain the rights to the content you provide to us, whether online or offline. However, to the extent that you provide us with content, including text, testimonials, photographs, images or other works of authorship, you grant us a worldwide, non-exclusive, assignable, sublicensable, royalty-free, perpetual, irrevocable, unlimited license to copy, display, reproduce, perform, use and create derivative works from such content without any further notice or obligation to you or any third parties. You also acknowledge that we are under no obligation to use, or compensate you for such content. You also agree not to use our trademarks in any way that would suggest a partnership, affiliation, sponsorship, endorsement or other business relationship between us.
Section 5.1. Digital Millennium Copyright Act (“DMCA”)/Safe Harbor
We respect intellectual property rights and may terminate the Accounts of users who infringe the intellectual property rights of others. If you believe that your intellectual property rights are being infringed by a user of our Services, you may write to our Designated Agent at support@49thFresh.com and provide the following information:
Please note that we may provide a copy of your DMCA notice or counter notice to the other parties concerned. You acknowledge that we are not in a position to arbitrate disputes between third parties, and that we reserve the right to remove or disable access to any content in violation of these Terms or applicable law.
You may be liable for damages if you knowingly misrepresent that your intellectual property rights have been infringed or that content was removed or disabled by mistake. If you are unsure whether your intellectual property rights have been infringed, please contact an attorney for further guidance prior to contacting us. For more information on copyright visit the United States Copyright Office at http://www.copyright.gov and http://www.copyright.gov/circs/.
Section 6. Disclaimer of Warranties, Limitation of Liability, Indemnification
Section 6.1. Limitation of Liability & Warranties
WE DO NOT GUARANTEE, REPRESENT OR WARRANT THAT YOUR USE OF OUR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE. THE SERVICES ARE PROVIDED ‘AS IS’ AND ‘AS AVAILABLE’ FOR YOUR USE, WITHOUT ANY REPRESENTATION, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, TITLE, AND NON-INFRINGEMENT. IN NO CASE SHALL WE, OUR PARENT, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT OR TORT, STRICT LIABILITY OR OTHERWISE, ARISING FROM YOUR USE OR NON-USE OF ANY OF THE SERVICES, OR FOR ANY OTHER CLAIM INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF USE OF THE SERVICES, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Section 6.2. Indemnification
You agree to indemnify, defend and hold us and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, suppliers, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of these Terms of Service or the documents they incorporate by reference, or your violation of any law or the rights of a third party.
Section 7. Governing Law, Arbitration and Dispute Resolution
This Agreement shall be governed by the laws of the State of Alaska. Any dispute arising from this Agreement shall first be addressed by the parties through informal dispute resolution procedures conducted in good faith. If the parties do not resolve the dispute within thirty (30) days of the date of the first dispute resolution meeting, the parties agree to mediate the dispute in a mutually agreed-upon place with a mutually agreed-upon mediator, the costs of which shall be borne equally by the parties. In the event the dispute is not resolved through mediation, the dispute shall be settled by binding arbitration before a single arbitrator in Anchorage, Alaska in accordance of the rules of the American Arbitration Association, and the parties agree that judgment upon the award rendered by the arbitrator shall be entered in a court of competent jurisdiction sitting in Anchorage, Alaska.
Section 8. Severability and Entire Agreement
In the event that any provision of these Terms of Service is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms of Service, and such determination shall not affect the validity and enforceability of any other remaining provisions.
These Terms constitute the entire Agreement and understanding between you and us and supersedes any prior or contemporaneous communications, whether oral or written. Should we fail to exercise or enforce any right or provision of these Terms, such failure shall not constitute a waiver of such right or provision. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party.