FOOD SERVICE EXCHANGE
TERMS OF SERVICE
Last Updated: January 18, 2022
By accessing the Website, you agree to be bound by this Agreement WITHOUT ANY MODIFICATIONDO NOT ACCESS THE WEBSITE, PURCHASE PRODUCTS THROUGH THE WEBSITE, OR USE THE WEBSITE IN ANY WAY IF YOU DO NOT AGREE TO THIS AGREEMENT. IF YOU ARE ACCESSING AND USING THE WEBSITE ON BEHALF OF AN ENTITY, YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO ACT ON BEHALF OF SUCH ENTITY AND TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT.
IMPORTANT NOTICE: YOUR USE OF THE WEBSITE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 13, REQUIRING ALL CLAIMS TO BE RESOLVED VIA INDIVIDUAL BINDING ARBITRATION.
Food Service Exchange provides a platform that connects buyers and sellers of food service equipment. Except as otherwise described in these Terms, if a buyer purchases a product from a seller, the resulting agreement is solely between the buyer and the seller, and not with Food Service Exchange. However, if you are a buyer that purchases a product from a seller through the Website after July 1, 2020, such product will also come with the FSX Warranty (as defined in Section 7(F) of this Agreement).
The seller, and not Food Service Exchange, is responsible for the description, sale, and fulfillment of its products. Any disputes between a buyer and seller must be resolved between buyer and seller, except as covered by the FSX Warranty or as otherwise set forth in Section 7(D)(ii) of this Agreement. The terms of a buyer’s purchase of products from a seller are subject to any transaction-specific terms and conditions contained on the listing or order page, including shipping, freight, and warranties, if any. Food Service Exchange does not warrant any product purchased from a seller through the Website other than the FSX Warranty.
Food Service Exchange may facilitate the transactions between buyers and sellers by, among other things, facilitating payment through a third-party payment processor, arranging for freight services, or through the provision of other related services in our sole discretion.
Food Service Exchange may from time to time sell new products directly to buyers. If the product is identified as being in Brand-New Condition, then the product is sold by Food Service Exchange and the resulting agreement is between the buyer and Food Service Exchange.
2. Registration and Eligibility for Services
In order to utilize some of the Website’s features, you must register and create an account. In order to create an account, you must complete the registration process by providing Food Service Exchange with complete and accurate information as prompted by the registration form, including contact information, a username, and password. You shall protect your password and take full responsibility for your own and third-party activities that occur under your account. You agree to notify Food Service Exchange immediately of any unauthorized use of your account or any other breach of security. If you create an account on behalf of an entity, this Agreement binds both you and the entity. To be eligible to purchase or sell products through the Website, you must be located in the United States. If you create an account and participate in the FSX Rewards Program, your participation in the FSX Rewards Program is governed by the FSX Rewards Program Terms and Conditions, in addition to this Agreement.
B. Refusal of Service
Food Service Exchange reserves the right, with or without notice, to terminate the account of, or refuse service to, any persons that violate this Agreement, violate any party’s intellectual property rights, abuse other users of the Website, misuse the Website, or otherwise engage in inappropriate conduct, as determined by Food Service Exchange in its sole discretion.
C. Information Submission and Age Restriction
By submitting any information, including any User Content as defined below, through the Website, you represent and warrant that you are 18 years of age or older, and, if under the age of majority in your state, you are either an emancipated minor, or have obtained the legal consent of your parent or legal guardian to enter into this Agreement and use the Website. Food Service Exchange does not intend to use the Website to collect any information from children under age 18. Pursuant to 47 U.S.C. § 230(d), you are notified that parental control protections (such as computer hardware, software, or filtering services) are commercially available that may assist you in limiting access to material that is harmful to minors. For information on providers of such services, contact your information technology professional.
3. Revisions to this Agreement
We may revise and update this Agreement from time to time, and will post the updated Agreement to the Website. Unless otherwise stated in the amended version of the Agreement, any changes to this Agreement will apply immediately upon posting. Other than updating the date at the top of the Agreement, we are not obligated to provide you with notice of any changes, but reserve the right to do so. Your continued use of this Website will constitute your agreement to any new provisions within the revised Agreement.
4. Website Ownership and Proprietary Rights; Access to the Website
All written content prepared and posted by Food Service Exchange (not including User Content), and the Website design, layout, look, appearance, and graphics, as well as the trademarks, service marks, and logos contained on our Website (collectively, “Food Service Exchange Content”) are owned by or licensed to Food Service Exchange and are subject to copyright, trademark, and other intellectual property rights under the United States and foreign laws and international conventions. Food Service Exchange reserves all rights not expressly granted in, and to, the Website and the Food Service Exchange Content.
B. Access and Use of the Website
Subject to, and in accordance with, this Agreement, Food Service Exchange permits you to access and make personal use of the Website for yourself or your organization. Food Service Exchange reserves all rights not expressly granted to you hereunder. Your authorization to access and use the Website is automatically revoked if you violate any of this Agreement. Food Service Exchange reserves the right to revoke your authorization to access or use the Website at any time for any reason. Except as otherwise provided in this Agreement, no part of the Website and no Food Service Exchange Content may be copied, reproduced, uploaded, posted, publicly displayed, transmitted, or distributed in any way to any other computer, server, website, or other medium for publication or distribution or for any commercial use without Food Service Exchange’s prior express written consent. Your access to this Website is provided on a temporary basis with no guarantee for future availability.
C. Restrictions on Use of Website
In addition to complying with other terms and conditions applicable to your use of the Website, you agree that when using the Website, you will not:
Use the Website or any Food Service Exchange Content in any way or for any purpose that would violate, or would have the effect of violating, any applicable laws, rules or regulations or any rights of any third parties, including without limitation, any law or right regarding any copyright, patent, trademark, trade secret, or other proprietary or property right, false advertising, telemarketing, unfair competition, defamation, invasion of privacy, rights of celebrity, or other federal or state law, rule, or regulation;
Delete, modify, or attempt to change or alter any of the Food Service Exchange Content or notices on the Website;
Introduce into the Website any virus, rogue program, time bomb, drop dead device, back door, Trojan horse, worm or other malicious or destructive code, software routines, denial of service attack, or equipment components designed to permit unauthorized access to the Website, or to otherwise harm other users, Food Service Exchange Content, or any third parties, or perform any such actions;
Use the Website to commit fraud or conduct other unlawful activities;
Access or attempt to access any other person’s account, information, or content without permission;
Copy, modify, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which the Website is based;
Use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or scraping the information contained on the Website for any reason;
Frame or mirror any part of the Website;
Connect to or access any Food Service Exchange computer system or network without authorization; or
Use the information in the Website to create or sell a similar service.
In order to protect the integrity of the Website, Food Service Exchange reserves the right at any time in its sole discretion to block users from certain IP addresses from accessing the Website. You may not use any technologies or processes to circumvent any IP blocks or other mechanism put in place by Food Service Exchange to limit, restrict, or prevent access to the Website.
D. Website Availability
There may be times when the Website is unavailable due to technical errors or for maintenance and support activities. We do not represent, warrant, or guarantee that the Website will always be available or is completely free of human or technological errors. You must provide the equipment and Internet connections necessary to access the Website at your own expense. We do not guarantee that the Website will operate with your computer, mobile device, internet service plans, or mobile provider service plans or with any particular computer or other piece of hardware, software, equipment, or device you install on or use with your computer.
5. User-Generated Content
The Website includes features that allow you to upload, submit, or send content through the Website (e.g., user reviews, ratings, photos, or comments) (“User Content”). This Section provides the terms and conditions governing your use of such features.
A. User Obligations and License; Intellectual Property
You alone own and are solely responsible for all User Content you post, upload, or otherwise transmit (collectively “Post”) through the Website and once Posted, it cannot always be withdrawn. You agree not to Post through the Website any User Content which is false, defamatory, infringes upon another party’s intellectual property, or is otherwise illegal. By Posting User Content on the Website, you warrant and represent that you have the right to post such information and that such information is truthful and accurate.
B. License to User Content
By submitting User Content to the Website, you grant, and represent and warrant that you have the right to grant, Food Service Exchange a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license to use, reproduce, distribute, create derivative works of, adapt, display, and perform User Content in all media now known or hereafter created without attribution for any purpose. You hereby waive all moral rights to User Content.
C. Prohibited Content
You agree that you will not use the Website to send, Post, or publish:
Any content that is obscene, defamatory, threatening, harassing, abusive, slanderous, racially or ethnically offensive, hateful, or embarrassing to any other person or entity;
Any content that displays, describes or encourages usage of any product that is contrary to any instructions or warnings relating to the product;
Any review or rating of a product, buyer, or seller that does not reflect your lawful, honest, and good faith opinion or discloses any material conflict of interest or relationship that might influence your opinion (e.g., if you are a paid endorser of a product that you review);
Any message, data, code, or software that would violate our, or any third party, proprietary, or intellectual property rights, including unauthorized copyright text, images, programs, trade secrets, or other confidential or proprietary information, or use trademarks or service marks in an infringing fashion;
Any personal information of a third party, or images that include a third party or depict a third party’s likeness, without the third party’s consent;
Any advertisements or solicitations of business, chain letters, pyramid schemes, or bulk e-mail lists or upload;
Any materials that violate, could cause us or a third party to violate, or encourage us or a third party to violate any applicable law, statute, ordinance, or regulation; or
Any content or communications intended to impersonate someone else.
D. Your Responsibility for User Content
Your User Content is your sole responsibility and you assume all risks associated with your Posted User Content. Under no circumstances will we be liable in any way for User Content or for any loss or damage of any kind incurred as a result of the use of any of User Content. Food Service Exchange further reserves the right to monitor, delete or modify any User Content that it deems offensive, inappropriate, advertising, illegal, off-topic or which otherwise violates this Agreement.
E. Communications Decency Act
As provided in 47 U.S.C. § 230(c)(1), Food Service Exchange is only a distributer, and not the publisher or speaker, of any User Content. As such, Food Service Exchange cannot be held liable for making available any User Content which may be false or inaccurate. Any information or opinions contained in the User Content made available through the services are those of their respective authors alone. Food Service Exchange does not guarantee the accuracy, completeness, or truthfulness of any User Content. Under no circumstances will Food Service Exchange be responsible for any loss or damage resulting from any person’s reliance on any User Content.
F. Reservation of Rights
Subject to Section 13 below regarding the DMCA, Food Service Exchange reserves the right to remove or not remove any User Content from the Website for any reason or no reason at all, in Food Service Exchange’s sole discretion. This reservation includes the exclusive right to decide whether to publish, withdraw, postpone, or alter any User Content. Food Service Exchange reserves the right, but does not undertake any affirmative obligation, to screen, monitor, or filter User Content.
G. Information Storage and Access
H. Your Suggestions
We welcome your comments regarding the Website and Food Service Exchange Content, and our services. In addition to the license you grant to us, above, for User Content, if you elect to provide or make available suggestions, comments, ideas, improvements, or other information or materials (collectively, “Suggestions”) to us in connection with or related to the Website, Food Service Exchange Content or our services (including any related technology), whether you send such Suggestions to us through the Website or through a separate communication channel, you grant us a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, sub-licensable, and transferable license under any and all rights in and to the Suggestions to use, reproduce, distribute, create derivative works of, adapt, display, perform, and otherwise exploit, and to make, have made, sell, offer to sell, and import any products and services incorporating or based on, Suggestions in any manner. Please do not send us such information or materials if you do not wish to grant us the rights set forth in this Section.
6. User Privacy
7. Product Listings and Purchases
The following terms apply when you purchase a product through the Website.
A. Transactions Between Buyer And Seller; Release
Food Service Exchange provides a platform that connects buyers and sellers of food service equipment. Except as described in Section 7(I) for sales of certain new products directly by Food Service Exchange, if a buyer purchases a product from a seller, the resulting agreement is solely between the buyer and the seller, and not with Food Service Exchange. However, if you are a buyer that purchases a product from a seller through the Website after July 1, 2020, such product will also come with the FSX Warranty. The seller, and not Food Service Exchange, is responsible for the description, sale, and fulfillment of its products. Any disputes between a buyer and seller must be resolved between buyer and seller, except as covered by the FSX Warranty or as set forth in Section 7(D)(ii) of this Agreement. Any claims (other than a claim under the FSX Warranty) or disputes relating to any product purchased using the Website must be resolved between buyer and seller or the applicable manufacturer of the product, except as set forth in Section 7(D)(ii) of this Agreement. The terms of a buyer’s purchase of products from a seller are subject to all terms and conditions contained on the order page, including any terms related to pricing, shipping, freight, or warranties offered by the seller, if any. Food Service Exchange does not warrant any product purchased from a seller through the Website other than the FSX Warranty. Review the terms of your purchase prior to placing your order.
Except for what is expressly set forth in the FSX Warranty in Section 7(F) of this Agreement, Food Service Exchange will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands, injuries, losses or damages, direct or indirect, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any product sold by a seller to a buyer through the Website. By using the Website, you represent, understand, and expressly agree to release and hold Food Service Exchange harmless from any claim (other than a claim under the FSX Warranty), demand, injuries, losses or controversy that may arise from any products or services purchased by buyer and from any disputes between you and any other user(s) of the Website.
It shall be the sole and absolute responsibility and decision of the buyer and seller to determine the nature, type, and quantity of products to be sold by the seller to the buyer, if any, and the price and payment terms for such products. Food Service Exchange shall have no role or responsibility whatsoever with regard thereto. Whether a buyer chooses a particular product is the buyer’s decision. Food Service Exchange does not endorse or recommend any particular buyer, seller or product. Except for what is expressly set forth in the FSX Warranty in Section 7(F) of this Agreement and as set forth in Section 7(D)(ii) of this Agreement, Food Service Exchange does not provide, and is not responsible for, any refunds, rebates, credits, technical support, installation, training, maintenance, repair, return, exchange or other service with respect to any product purchased through the Website. Food Service Exchange does not provide any warehousing or storage service. Except for what is expressly set forth in the FSX Warranty in Section 7(F) of this Agreement and as set forth in Section 7(D)(ii) of this Agreement, any refund or credit with respect to any product purchased through the Website solely shall be between seller and buyer, and will not involve Food Service Exchange in any capacity.
No buyer or seller is an agent or representative of Food Service Exchange. No buyer or seller has any authority to bind Food Service Exchange to any agreement, commitment or representation of any kind.
B. Seller’s Acceptance of Buyer’s Offer to Purchase
A transaction is not binding until a seller accepts a buyer’s offer to purchase. Sellers place listings on the Website for the Seller’s available inventory of products. The Website allows buyers to make an offer to purchase the seller’s product. After the buyer submits an offer to purchase a product, the Seller can either accept or reject the offer (even if the offer is made for the product’s listing price). A transaction is not binding on the buyer and seller until the buyer makes an offer to purchase and the seller accepts the buyer’s offer. The buyer’s payment method is charged upon making an offer and, if the seller rejects the offer, the buyer receives a refund.
C. Payment Processing Account
D. Return and Refund Policy; Customer Service
(i) Food Service Exchange does not guarantee any refunds. Except for what is expressly set forth in Section 7(D)(ii) and in the FSX Warranty in Section 7(F) of this Agreement, all returns, requests for refunds, and any other dispute regarding a product or service, must be resolved directly between the buyer and the applicable seller. The seller may provide a refund policy on the applicable listing or order page. In addition to any refund that may be provided pursuant to the FSX Warranty, if the seller determines that a full or partial refund is appropriate, the seller will process that refund through Food Service Exchange’s third-party payment processor.
(ii) Within the first ninety (90) days (or one hundred eighty (180) days for FSX Pro subscribers) following a buyer’s receipt of product that is purchased through the Website after July 1, 2020, a buyer shall contact the customer service group at Food Service Exchange to (1) make any complaint regarding the delivery of such product, including to report any damage or loss during shipment, (2) report any damage or defect in such product, (3) request to return such product to the seller, including pursuant to a request for a refund or replacement, (4) raise any dispute or complaint regarding the seller with respect to such product, or (5) make any warranty claim with respect to such product, whether under the FSX Warranty or otherwise (collectively a “Customer Service Request”). Buyer shall not communicate with the shipper, the seller or any third party regarding any Customer Service Request without the prior written consent from Food Service Exchange. Buyer shall comply with all procedures established by Food Service Exchange for the processing of any Customer Service Request. Subject to buyer’s compliance with the terms of this Section 7(D)(ii), Food Service Exchange will work with the seller to attempt to resolve buyer’s Customer Service Request; provided, however, if the seller does not cooperate with Food Service Exchange’s attempts to resolve the Customer Service Request, buyer shall have no recourse against Food Service Exchange and Food Service Exchange shall have no liability to buyer related to such Customer Service Request, and in such event, Food Service Exchange may in its sole discretion (but is not obligated to) offer buyer a proposed resolution to such Customer Service Request. If Food Service Exchange offers buyer such proposed resolution, buyer shall accept such resolution pursuant to the terms and conditions offered by Food Service Exchange or reject such resolution and forfeit any further right to receive assistance from Food Service Exchange with respect to such Customer Service Request. Notwithstanding anything to the contrary in this Section 7(D)(ii), if Food Service Exchange determines in its sole discretion that a Customer Service Request is without merit, Food Service Exchange will notify buyer of such determination, and after giving such notice Food Service Exchange shall have no further obligation to buyer pursuant to this Section 7(D)(ii) with respect to such Customer Service Request and buyer thereafter may communicate with the shipper, seller or any third party to pursue resolution of the subject matter of such Customer Service Request.
Inventory is subject to change and Food Service Exchange does not guarantee that any items posted on the Website are available.
F. Installation, Warranties
Unless expressly offered by seller in the product listing, and except for any original warranties provided by the manufacturer, if any, no warranties (other than the FSX Warranty) or installation services are included in the listed product price. Sellers may choose to provide warranties or other services with their products. Except for the FSX Warranty, all product warranties are made solely by Seller, third-party warranty companies, and/or the manufacturer and not by Food Service Exchange. All installation services are offered by the seller or other third parties and not by Food Service Exchange. Without limiting the foregoing sentences in this Section 7(F), each product that a buyer purchases from a seller through the Website after July 1, 2020 (an “Eligible Product”), will come with the warranty described at https://www.fsxmarket.com/warranty (the “FSX Warranty”).
Food Service Exchange may offer freight services for selected transactions through one or more third-party carriers in Food Service Exchange’s sole discretion. If freight services are offered, they may be subject to additional fees and subject to terms and conditions imposed by the third-party carrier.
H. Coupons and Discounts
While supplies last. (Must enter unique coupon code at checkout.) Offer may not be combined with other promotional offers or discounts. (Maximum discount is 25% off the total purchase price). Offer not valid on previous purchases and may not be valid on all items. Offers valid only on https://www.fsxmarket.com through the date and time presented. Terms and conditions of each offer are subject to change at the sole discretion of Food Service Exchange. Void where restricted or prohibited by law. Discount is offered by Food Service Exchange and not by any individual seller. In the event a partial or full refund is obtained, the discount will be subtracted from the refund value. Buyer may be required to pay applicable sales tax related to the use of the coupon. One coupon per person. Void if altered, copied, sold or transferred. Not redeemable for cash. Coupon redemption information may be disclosed to Food Service Exchange partners.
I. Purchase of New Products from Food Service Exchange; Release
Food Service Exchange may from time to time sell new products directly to buyers. If the product is identified as being in Brand-New Condition, then the product is sold by Food Service Exchange and the resulting agreement is between the buyer and Food Service Exchange. The terms of a buyer’s purchase of products from Food Service Exchange are subject to all terms and conditions contained on the order page, including any terms related to pricing, shipping, freight, or warranties offered by the manufacturer, if any. Food Service Exchange does not warrant any product purchased through the Website other than the FSX Warranty. Review the terms of your purchase prior to placing your order.
Except for what is expressly set forth in the FSX Warranty in Section 7(F) of this Agreement, Food Service Exchange will not be held responsible and expressly disclaims any liability whatsoever for any claims, demands, injuries, losses or damages, direct or indirect, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any product sold by Food Service Exchange through the Website. By using the Website, you represent, understand, and expressly agree to release and hold Food Service Exchange harmless from any claim (other than a claim under the FSX Warranty), demand, injuries, losses or controversy that may arise from any products or services purchased by buyer and from any disputes between you and any other user(s) of the Website.
Except for what is expressly set forth in the FSX Warranty in Section 7(F) of this Agreement and as set forth in Section 7(D)(ii) of this Agreement, Food Service Exchange does not provide, and is not responsible for, any refunds, rebates, credits, technical support, installation, training, maintenance, repair, return, exchange or other service with respect to any product purchased through the Website. Food Service Exchange does not provide any warehousing or storage service.
8. FSX Pro Subscription.
Food Service Exchange may from time to time allow users to subscribe to a premium program that provides subscribers additional benefits in exchange for a fee (“FSX Pro”). Subject to, and in accordance with, this Agreement, and contingent upon all required payments, Food Service Exchange agrees to provide you with a non-exclusive, non-transferable account enabling you to access to the FSX Pro features described below. Your participation in the FSX Pro program is automatically revoked if you violate any of this Agreement or if you fail to make any required payments. Food Service Exchange reserves the right to revoke your FSX Pro subscription at any time for any reason.
B. Payment; Automatic Renewal
In order to enroll in the FSX Pro program, you must commit to a 12 month subscription and pay the required annual fee. You can choose to pay the annual fee once per year at $180.00 or you can choose to make monthly payments of $19.99 per month. All FSX Pro subscriptions are 12 months in duration, regardless of whether the annual fee is paid monthly or annually. Subscription fees are paid via credit card or other approved payment method. Food Service Exchange expressly reserves the right to change the fees at any time, upon notice to you or by posting such change in fees on Food Service Exchange Website or advertising materials, effective as of the beginning of your next renewal period. If you do not cancel your FSX Pro subscription at least thirty (30) days before your annual anniversary date, your subscription will be automatically renewed for another annual subscription period at the current subscription price unless and until terminated pursuant to this Agreement. The renewal fee will automatically be charged to your credit card or other payment type on file with Food Service Exchange. Food Service Exchange does not guarantee refunds for lack of usage or dissatisfaction with the FSX Pro program. In the event of a failed attempt to charge to your credit card (e.g. if your credit card has expired), we reserve the right to retry billing your credit card. In the event that you or we (through our payment service providers) update your payment method to remedy a change in validity or expiration date, we will automatically resume billing you for your subscription to FSX Pro. We may suspend or cancel your FSX Pro subscription if we are unable to successfully charge a valid payment method.
If you want to cancel your FSX Pro subscription, you may do so by calling Food Service Exchange at 888-635-6552, emailing Food Service Exchange at firstname.lastname@example.org, or chatting with a customer service representative online at www.fsxmarket.com. Cancellations are effective once your current annual subscription period has ended.
D. Program Benefits
FSX Pro subscribers will receive additional benefits, including the following:
1. 48 hour exclusive access to new products listings on the Website before the listings are released to non-FSX Pro subscribers;
2. Extended one hundred eighty (180) day FSX Warranty on all products that would otherwise be covered by the standard ninety (90) day FSX Warranty;
3. A 3% discount on all products purchased through the Website while signed in as an FSX Pro subscriber;
4. FSX Pro subscribers receive 3% back in FSX Dollars through the FSX Rewards Program, increased from the standard 2% back in FSX Dollars, to be used on future purchases; and
5. FSX Pro subscribers have the opportunity to obtain 30 day payment terms for purchases .
FSX Pro subscribers have the opportunity to obtain 30 day payment terms for
FSX Pro benefits are subject to change upon notice to you or by posting such change in fees on Food Service Exchange Website or advertising materials. The FSX Rewards Program is governed by the FSX Dollars Reward Program Terms and Conditions.
9. Third Party Websites and Services
The Website may use or provide access to one or more third parties to process payments, process account or user registrations, or provide other services. Your interactions with any of these third parties is controlled by the terms and conditions imposed by those third parties. Except as provided in Section 7(D)(ii), any disputes regarding a third party’s services must be resolved directly between user and the third party. Food Service Exchange disclaims all warranties or representations regarding any third-party services. Food Service Exchange, in its sole discretion, and without notice to you or any user, may subcontract any services related to the Website to be performed by a third party.
10. Disclaimer of Warranties
EXCEPT AS WE OTHERWISE EXPRESSLY PROVIDE IN THIS AGREEMENT, THE WEBSITE AND ALL RELATED SERVICES OF FOOD SERVICE EXCHANGE ARE PROVIDED “AS IS”. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS PARTNERS DO NOT WARRANT OR MAKE ANY PROMISES REGARDING THE CORRECTNESS, USEFULNESS, ACCURACY, AVAILABILITY, OR RELIABILITY OF: (i) YOUR USE OR THE RESULTS OF YOUR USE OF THE WEBSITE; (ii) ANY ADVICE YOU GLEAN FROM THE WEBSITE WHETHER PROVIDED BY US OR A THIRD PARTY; OR (iii) ANY OTHER CONTENT AVAILABLE THROUGH THE WEBSITE. WE DO NOT PROMISE THAT THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY DEFECTS WILL BE CORRECTED. WE GIVE NO WARRANTY OF ANY KIND, INCLUDING ANY WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. WE, OUR THIRD-PARTY LICENSORS, AND BUSINESS PARTNERS WILL HAVE NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MISDELIVERY, OR FAILURE TO STORE ANY COMMUNICATION, OR CONTENT. We do not make any representation or warranty concerning errors, omissions, delays, or defects in the Website or any information supplied to you via the Website, or that files available through Website are free of viruses, worms, Trojan horses, or other code that include or manifest contaminating or destructive characteristics.
B. Products and Sellers
FOOD SERVICE EXCHANGE DOES NOT MANUFACTURE ANY OF THE PRODUCTS LISTED ON OR SOLD THROUGH THE WEBSITE. EXCEPT FOR PRODUCTS SOLD IN “BRAND-NEW CONDITION,” All products and services made available through the Website are sold by independent sellers and not sold by Food Service Exchange. FOOD SERVICE EXCHANGE DOES NOT ENDORSE ANY SELLER AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO ANY SELLER. EXCEPT FOR THE FSX WARRANTY, Food Service Exchange expressly disclaims any representation or warranty relating to any products or services displayed, described, advertised, sold, offered, reviewed, recommended, linked to, or pictured on or through the Website. EXCEPT FOR THE FSX WARRANTY, Food Service Exchange does not endorse any such products or services and does not warrant that any such products or services are available, will meet the user’s needs, are appropriate for any particular use, or are of any certain quality. Food Service Exchange does not guarantee that any product or service descriptions, reviews, portrayals, specifications, or the like are accurate. Under no circumstances will Food Service Exchange be responsible for any loss or damage resulting from any person’s reliance on any such product or service descriptions, reviews, or specifications contained on the Website. PRODUCTS MAY NOT BE IN theIR ORIGINAL PACKAGING AND MAY NOT COME WITH ANY WARRANTY from seller or the original manufacturer.
EXCEPT as expressly set forth in THE FSX WARRANTY, AS BETWEEN YOU AND FOOD SERVICE EXCHANGE, THE PRODUCTS YOU BUY THROUGH THE WEBSITE ARE PROVIDED “AS IS” AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY FOOD SERVICE EXCHANGE EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO SUCH PRODUCTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BETWEEN YOU AND FOOD SERVICE EXCHANGE BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE.
THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THESE DISCLAIMERS MAY NOT APPLY TO YOU. ALL PRODUCTS YOU PURCHASE THROUGH THE WEBSITE ARE SOLD BY THE SELLER AND NOT BY FOOD SERVICE EXCHANGE.
FOOD SERVICE EXCHANGE EXPRESSLY DISCLAIMS ANY LIABILITY WHATSOEVER FOR ANY CLAIMS, MISSTATEMENTS, AND/OR MISREPRESENTATIONS MADE BY SELLERS AND ALL OTHER USERS OF THE WEBSITE. ALL USERS HEREBY REPRESENT, UNDERSTAND AND AGREE TO HOLD FOOD SERVICE EXCHANGE HARMLESS FROM ANY CLAIMS, MISSTATEMENTS, AND/OR MISREPRESENTATIONS MADE BY ANY SELLER AND ALL OTHER USERS OF THE WEBSITE. FOOD SERVICE EXCHANGE DOES NOT ADOPT, ENDORSE OR ACCEPT RESPONSIBILITY FOR THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE, OR STATEMENT MADE BY ANY SELLER OR USER.
11. Limitation of Liability
A. Website and Related Conduct
NEITHER FOOD SERVICE EXCHANGE, NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, CONTRACTORS, BUSINESS PARTNERS, LICENSORS, EMPLOYEES, ASSIGNEES, AND SUCCESSORS-IN-INTEREST (COLLECTIVELY, THE “FOOD SERVICE EXCHANGE PARTIES”), WILL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, DIRECT OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, RELATING TO THIS AGREEMENT, YOUR USE OF THE WEBSITE, YOUR PURCHASE OR USE OF ANY PRODUCT, OR ANY INFORMATION YOU OBTAIN ON IT, OR ANY OTHER INTERACTION WITH THE WEBSITE, AND YOU VOLUNTARILY AND UNEQUIVOCALLY WAIVE ANY LIABILITY OF THE FOOD SERVICE EXCHANGE PARTIES. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE WEBSITE WILL BE TO STOP USING THE WEBSITE. A buyer’s sole and exclusive remedy with respect to, and Food Service Exchange’s sole liability to buyer for, any Eligible Product that does not Function As Intended for the first ninety (90) days (or one hundred eighty (180) days for FSX Pro subscribers) following buyer’s receipt of such Eligible Product from a seller shall be as set forth in Section 7(F) of this Agreement.
B. Food Service Exchange’s Maximum Liability for Any Claim
IN ANY EVENT, THE MAXIMUM TOTAL LIABILITY OF THE FOOD SERVICE EXCHANGE PARTIES, FOR ANY CLAIM WHATSOEVER (other than as expressly provided in Section 7(F) of this Agreement) RELATING IN ANY WAY TO THIS AGREEMENT OR YOUR USE OF THE WEBSITE OR PURCHASE OF A PRODUCT THROUGH THE WEBSITE OR YOUR USE OF ANY SUCH PRODUCT, INCLUDING CLAIMS FOR BREACH OF CONTRACT, TORT (INCLUDING, NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, AND YOUR SOLE REMEDY, SHALL BE AN AWARD FOR DIRECT, PROVABLE DAMAGES NOT TO EXCEED ONE THOUSAND U.S. DOLLARS ($1000.00 USD).
C. State Law Waiver
In entering into this release you expressly waive any protections (whether statutory or otherwise), including Section 1542 of the California Civil Code if applicable (and any other comparable statute), that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Section 1542 of the California Civil Code reads as follows: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
To the fullest extent permitted by applicable law, you agree to hold harmless, indemnify, and defend the Food Service Exchange Parties from and against any and all claims (including liabilities, fines, damages, losses, costs, expenses, and reasonable attorneys’ fees) arising out of or relating to (i) your breach of any term or condition of this Agreement, (ii) your Posting of User Content (including any claims that such User Content violates or infringes any third party’s intellectual property, proprietary or privacy rights or rights of publicity), (iii) your acts or omissions during use of the Website, (iv) your unauthorized acts or omissions during use of the Website, (v) your purchase, sale, or use of any product or service purchased through the Website, (vi) any dispute involving you and any seller or other user of the Website, (vii) any dispute involving you and any third-party payment processor arising out of or relating to your Payment Processing Account, (viii) any dispute involving you and any manufacturer of any product you purchased through the Website, (ix) any dispute involving you in connection with any product purchased through the Website, including, without limitation, with respect to delivery, installation, insurance, returns, rebates, recalls, defects, damage, maintenance, service, support, warranties (offered by a seller or any third party) or repairs, and (x) any damage to property or injury or illness to any person (up to and including death), arising out or relating to or caused in whole or in part by any product you purchased through the Website or the acts or omissions of you or anyone acting on your behalf or at your direction.
You will have the right to defend and compromise such claim at your expense for the benefit of the Food Service Exchange Parties; provided, however, you will not have the right to obligate the Food Service Exchange Parties in any respect in connection with any such settlement without the written consent of the indemnified party; provided, further, Food Service Exchange will have the right to participate in the defense of such claim at its expense using counsel of its choice. Notwithstanding the foregoing, if you fail to assume your obligation to defend or if Food Service Exchange elects to defend such claims itself, the Food Service Exchange Parties may do so to protect their interests and you will reimburse all costs incurred by the Food Service Exchange Parties in connection with such defense.
13. Agreement to Arbitrate and Prohibition on Class Actions
A. Choice of Law
The validity, construction, and effect of this Agreement will be governed by the laws of the state of Illinois, without giving effect to that state’s conflict of laws rules.
B. Arbitration Procedure
All disputes arising out of, or relating to, this Agreement (including formation, performance, breach, enforceability, and validity of this Agreement), our operation of the Website, or a purchase made through the Website shall be resolved by final and binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association. The arbitration will be held in Cook County, Illinois or another location if Food Service Exchange consents to such other location, which consent may be withheld in the sole discretion of Food Service Exchange. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable.
C. Waiver of Class Actions; Jury Trials
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. Class actions and class arbitrations are prohibited. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
D. Injunctive Relief
Without prejudice to the agreement to resolve disputes in binding arbitration set forth in the previous paragraph, either party to this Agreement may obtain preliminary injunctive relief in a court of competent jurisdiction, for the purpose of enforcing any of the terms of this Agreement pending a final determination in arbitration or permanent relief for the purpose of enforcing arbitral awards.
14. Digital Millennium Copyright Act Procedure
Food Service Exchange respects the intellectual property rights of others and complies with safe harbor provisions of the Digital Millennium Copyright Act (“DMCA”). Anyone who believes that their work has been reproduced on the Website in a way that constitutes copyright infringement may notify Food Service Exchange’s designated copyright agent in accordance with Title 17, United States Code, Section 512(c)(2), by providing the following information:
1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
2. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material;
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted;
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Notifications of claimed infringement should be forwarded to Food Service Exchange’ designated agent as follows:
Food Service Exchange LLC
2201 Long Prairie Rd.
Flower Mound, TX 75022
Alternate names the public may be likely to use to search for our designated agent include: Food Service Exchange and www.fsxmarket.com.
After receiving a valid DMCA notification of claimed infringement, we will process and investigate the claim and will take appropriate actions under the DMCA, including expeditiously removing or disabling access to any material claimed to be infringing or claimed to be the subject of infringing activity. We will take reasonable steps promptly to notify the user who submitted the material that we have removed or disabled access to such material.
Counter-Notification. If you posted or submitted material to Food Service Exchange which Food Service Exchange removed or disabled access to pursuant to a DMCA notification of claimed infringement, and you believe your material is not infringing and the material was removed or disabled as a result of a mistake or misidentification, you may send a counter-notification containing the following information in writing to Food Service Exchange’ designated agent listed above:
1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement under penalty of perjury that the you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; and
4. Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the your address is outside of the United States, for any judicial district in which Food Service Exchange may be found, and that you will accept service of process from the person who provided the notification of claimed infringement or an agent of such person.
If a valid counter-notification is received by our designated agent, we will send a copy of the counter-notification to the original complaining party informing that person that we will replace the removed material or cease disabling access to it in 10 business days. Unless our designated agent first receives notice from the original complaining party that such party has filed an action seeking a court order to restrain the alleged infringement, we will replace or restore access to the material in 10 to 14 business days after our designated agent’s receipt of the counter-notification, at our sole discretion.
Food Service Exchange reserves the right, in its sole discretion, to terminate accounts for users that are deemed to be repeat copyright infringers.
16. Miscellaneous Terms
A. Term and Termination
B. Complete Agreement
C. Force Majeure
Food Service Exchange shall not be liable for any failure to perform any services or other obligation related to this Agreement or the Website to the extent that performance of its obligations are delayed or prevented by reason of any act of God, fire, natural disaster, pandemics or public health emergencies, accident, riots, acts of government, shortage of materials or supplies, or any other cause beyond the reasonable control of Food Service Exchange.
If any portion of this Agreement is ruled invalid or otherwise unenforceable, it shall be deemed amended in order to achieve as closely as possible the same effect as originally drafted. Any invalid or unenforceable portion should be construed as narrowly as possible in order to give effect to as much of the Agreement as possible.
E. No Waivers
Our failure to enforce or exercise any provision of this Agreement or related right will not constitute a waiver of that right or provision. This Agreement shall not be modified by any course of performance or course of dealing.
F. No Assignments and Transfers
No rights or obligations under this Agreement may be assigned or transferred by you, either voluntarily or by operation of law, without our express prior written consent and in our sole discretion.
G. No Third Party Beneficiaries
Subject to Sections 10 and 11, nothing in this Agreement will confer upon any person or entity, other than the parties, any rights, remedies, obligations, or liabilities whatsoever.
You shall provide any notices to us under this Agreement by e-mail or mail using the contact information provided below. Unless you tell us otherwise, or the law requires otherwise, you agree to receive all communications from us by e-mail or through posting notices to your account. You are responsible for providing Food Service Exchange with up-to-date contact information, which you may do by updating your account information through the Website or by sending a message to us via the contact information provided below. You agree that all communications that we send to you electronically satisfy any legal requirement that a communication be in writing. You may print the communications for your records.
17. Contact Us.
If you have any questions or need to contact us for any reason relating to this Agreement, please e-mail: email@example.com
You may also send us mail at the following address:
Food Service Exchange, LLC
2201 Long Prairie Road
Flower Mound TX 75022