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RAISED REAL TERMS OF USE

Last Updated on March 30, 2017

1. Introduction

These Terms of Use (these “Terms”) are a legally binding agreement between you and Frozen Harvest Intelligence, Inc., a Delaware corporation, doing business as Raised Real (“Raised Real,” “we,” or “us”). We offer food and other products for sale by us and from third parties (the “Products”) and services through our SMS text messaging platform, our websites, including our website located at www.raisedreal.com, (collectively, our “Websites”), our mobile device applications, if any (our “Apps”), and application program interfaces and other services we make to interact with you through social networks, such as through Facebook Messenger (such social networks, “Social Networks”; our services that interact with Social Networks, “Social Network Services”; our SMS text messaging platform, our Websites, our Apps, our Social Network Services, and our other services are collectively our “Services”).

These Terms (UNDER THE HEADING “DISPUTE RESOLUTION”) include your agreement to use arbitration on an individual basis to resolve disputes, instead of jury trials or class actions.

Certain features of the Services and your purchase of Products may be subject to additional terms and conditions which will be posted on the Services in connection with those features or provided to you in writing (including by email) when you purchase Products. All such additional written terms and conditions are incorporated by reference into these Terms. If there is a conflict between these Terms and such additional written terms and conditions, those additional terms and conditions will control.

By using the Services (including interacting with Raised Real through Social Networks) or purchasing the Products, you acknowledge that you have read and understand these Terms and agree to be bound by these Terms (on behalf of yourself or the entity that you represent). By using the Services or purchasing the Products, you acknowledge that you have the required capacity to enter into these Terms and that you are at least 18 years old. If you do not agree with these Terms, do not access or use the Services or purchase the Products.

2. Changes to Terms of Use

We may, in our sole discretion and without prior notice, modify these Terms at any time. If we do so, we will notify you by posting the modified Terms at https://www.raisedreal.com and/or through other communications to you. You should review these Terms and our other policies (including our Privacy Policy) periodically to be aware of any changes. By using the Services or purchasing Products after changes to these Terms, you are agreeing to be bound by the changes.

3. Eligibility

You may only use the Services and purchase the Products if you (1) are 18 years or older, (2) are a legal resident of the United States, (3) are capable of forming a binding contract, (4) have not been previously suspended from the Services, (5) do not have more than one Raised Real account, and (6) are not barred from using the Services or purchasing the Products under applicable law.

4. Registration and Accounts

To access and use the Services and to purchase Products, you will have to create an account with Raised Real (an “Account”). Currently, you can create your Account by giving us certain information at https://www.raisedreal.com and confirming your identity and agreement to receive SMS text messages on your mobile phone. Thereafter, ordering and Account management will occur by SMS text messages or emails between us and you. We may also allow the creation and management of Accounts through our App, or by using your account credentials for a Social Network, such as Facebook (your “Social Network Account”). If you create an Account by using your Social Network Account, we will create your Account by extracting personal information from you Social Network Account and/or by gathering personal information directly from you such as your name, phone number, email address, and other personal information as permitted by the privacy settings for your Social Network Account. You must provide us with accurate, complete, and up-to-date information for your Account. If you do not maintain current information with us, we may have to suspend or terminate your Account.

You acknowledge that all information you submit to us is accurate and you will update that information as appropriate. You may delete your Account at any time by emailing us at help@raisedreal.com, by sending us an SMS text message at (415) 233-7672, or by following other instructions posted on our Websites, if any. If you have purchased Products or Services from Raised Real, the deletion of your Account will have no effect on your obligations to pay Raised Real or other obligations in connection with such purchase. If you create a user name and password in connection with your Account, you are entirely responsible for maintaining the confidentiality of your password. You agree to notify Raised Real immediately if you suspect any unauthorized use of your Account, user name, or password. Raised Real will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.

By creating an Account, you are agreeing to receive electronic communications from Raised Real, including by SMS text messages, through Social Networks and by email, and that any notices or disclosures that are sent to you electronically are sufficient written legal notice under this Agreement and as may be required by applicable law. Our communications to you may include information about your Account, the Services, Products you purchase, and promotional information, such as contests, surveys, offers, and other relevant information. If you wish to unsubscribe to all or certain electronic communications you receive from Raised Real, please follow the instructions for how to unsubscribe in the electronic communications.

5. SMS Text Messages

If you provide us with a mobile phone number, you consent to receive SMS text messages from Raised Real and its affiliates and we will communicate with you through SMS text message, in addition to communications by email and Facebook Messenger, to manage your Account, your Subscriptions, and your purchase or Products and to deliver relevant marketing materials to you. If the mobile phone number you provide when creating an Account or ordering Products, you represent and warrant to us that the person or entity to whom the mobile phone number belongs has consented to receive SMS text messages in connection with your Account and your purchase of Products. If you provide us with a mobile phone number, you are authorizing Raised Real to use that mobile phone number to verify your identity, to initiate Subscriptions, subject to these Terms, to initiate the purchase of Products, and to generally manage your Account. Raised Real will not be liable for any loss that you incur as a result of someone else using the mobile phone number you provide to us, either with or without your knowledge. In order to receive SMS text message at the mobile phone number you provide, you will need to confirm your agreement by replying YES to the initial SMS text message you receive from us when creating an Account. Data or messaging rates may apply when sending or receiving SMS text messages. SMS text messaging from us may not be available to you depending on your mobile phone carrier. The frequency of SMS text messages you receive from us will vary based on your interaction with us through SMS text messages and based on the Subscriptions and Products you order. You do not have to agree to receive SMS text messages on the mobile phone number you provide in order to use the Services or purchase Products. You can decline to receive SMS text messages on the mobile phone number you provide by emailing us at help@raisedreal.com or by sending us an SMS text message at [phone number]. You can also text STOP to [phone number] at any time to cancel your authorization to receive of SMS text messages from us. Cancelling your authorization to receive SMS text messages from us does not cancel any pending orders of Products or active Subscriptions (see below) you may have. If you cancel your authorization to receive SMS text messages from us, we will communicate with you about your Account by email or means.

6. Changes to Services and Products

We reserve the right, in our sole and absolute discretion, to change, reformulate, suspend, discontinue, or terminate any of the Services or Products at any time, without prior notice.

7. Terms of Sale
A. Auto-Renewing Subscriptions; Cancellation Policy

Through the Services, we offer subscription plans to various meal ingredients, including ingredients for baby food (each, a “Subscription”), through which we will arrange for the delivery of Products to you on an ongoing basis. We may also offer Products for sale without a Subscription. Each shipment of Products, whether in connection with a Subscription or otherwise, is referred to in these Terms as a “Shipment.” Details concerning pricing, frequency, geographic availability, and dietary information about our Subscriptions are available through our Services. Although you may manage your Subscription and Shipments through SMS text messages, we will send you an email confirming the commencement of any Subscription and the cancellation policy for that Subscription.

BY SIGNING UP FOR A SUBSCRIPTION, YOU ARE AGREEING TO PAY (AND AUTHORIZING RAISED REAL AND OUR THIRD PARTY PAYMENT PROCESSING VENDOR TO CHARGE YOU FOR) AN INITIAL CHARGE FOLLOWED BY RECURRING CHARGES FOR AN INDEFINITE TIME AT THE FREQUENCY YOU CHOOSE AT THE TIME OF SIGNING UP FOR YOUR SUBSCRIPTION (FOR EXAMPLE, WEEKLY, EVERY TWO WEEKS, ETC.) AND TO ACCEPT RESPONSIBILITY FOR ALL RECURRING CHARGES PRIOR TO CANCELLATION. RAISED REAL MAY SUBMIT PERIODIC CHARGES WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE ADVANCE NOTICE THAT YOU WISH TO TERMINATE THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE RAISED REAL REASONABLY COULD ACT. YOU CAN TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, BY SMS TEXT MESSAGE AT [PHONE NUMBER], THROUGH THE SERVICES OR BY EMAILING HELP@RAISEDREAL.COM. AUTO-RENEWAL. FOLLOWING YOUR INITIAL SUBSCRIPTION PERIOD, YOUR SUBSCRIPTION WILL BE AUTOMATICALLY EXTENDED FOR SUCCESSIVE RENEWAL PERIODS OF THE SAME LENGTH, AT THE THEN-CURRENT NON-PROMOTIONAL SUBSCRIPTION RATE. WE MAY ALLOW YOU TO SKIP SHIPMENTS PERIODICALLY AS FURTHER DESCRIBED IN THE SERVICES. CANCELLATION POLICY FOR SUBSCRIPTIONS – YOU MAY CANCEL YOUR SUBSCRIPTION AT ANY TIME BY SENDING A MESSAGE TO US BY EMAIL TO HELP@RAISEDREAL.COM OR BY SMS TEXT MESSAGE AT [PHONE NUMBER] STATING YOUR INTENTION TO CANCEL YOUR SUBSCRIPTION AND PROVIDING ADDITIONAL INFORMATION, AS WE MAY REQUEST. IF WE DESIGNATE A SHIPMENT AS SHIPPED ON THE SERVICES BEFORE RECEIVING YOUR CANCELLATION REQUEST, THAT SHIPMENT CANNOT BE CANCELLED AND WILL BE BILLED AND SHIPPED TO YOU SUBJECT TO THESE TERMS, EVEN IF YOU RECEIVE THAT SHIPMENT AFTER YOU REQUEST A CANCELLATION OF YOUR SUBSCRIPTION. IF YOU CANCEL, YOU MAY USE YOUR SUBSCRIPTION UNTIL THE END OF YOUR THEN-CURRENT SUBSCRIPTION TERM; YOUR SUBSCRIPTION WILL NOT BE RENEWED AFTER YOUR THEN-CURRENT TERM EXPIRES. HOWEVER, YOU WILL NOT BE ELIGIBLE FOR A PRORATED REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD. YOU CAN RE-SUBSCRIBE AT ANY TIME FOLLOWING YOUR CANCELLATION, BUT WE RESERVE THE RIGHT NOT TO PERMIT RE-SUBSCRIPTION WHERE WE HAVE PREVIOUSLY ELECTED TO TERMINATE YOUR SUBSCRIPTION. WE MAY STILL SEND YOU ELECTRONIC COMMUNICATIONS AS DESCRIBED IN THESE TERMS FOLLOWING THE CANCELLATION OF YOUR SUBSCRIPTION.

B. Replacements; Refunds; Credits

As our food Products are perishable, all sales are final and non-returnable. If you are dissatisfied with any Products in a Shipment and you notify us within two (2) days of receiving the Shipment, we have the right, but not the obligation to, in our sole and absolute discretion, (1) ship you replacement Products at our expense, (2) issue you a full or partial refund for the Shipment, or (3) provide you credit on your Account that can be applied to your purchase of other Shipments or Products (“Credits”). We may condition any replacement, refund, or credit to you on receipt of digital images of the Products you are dissatisfied with. Credits may only be redeemed for Shipments and Products, are not transferrable, and cannot be redeemed for cash or other property. If your Account is cancelled, terminated, or suspended, whether by you or by Raised Real, any Credits will immediately expire.

C. Payment; Taxes

To the extent you purchase any Products through the Services, you agree to pay for all goods and services ordered from Raised Real except as set forth in a writing signed by an authorized representative of Raised Real. You shall provide Raised Real with valid and updated credit card or other payment method that we accept. By providing such a payment method, you acknowledge that you are authorized to use such payment method and that you authorize Raised Real and Raised Real third-party payment processing vendor to charge your payment method for all amounts due in connection with your Subscription, any Products purchased separately from a Subscription, including all applicable shipping charges, taxes and other charges. If your payment method cannot be processed or is invalid, your Account, Shipments, and Subscription may be suspended or cancelled. The amount charged to your payment method may vary depending on promotional pricing, changes to your Subscription, or changes in shipping charges, taxes or other applicable charges. We will collect applicable sales tax on Products, if we determine that we are required to collect such taxes.

D. Price; Availability

Prices for Subscriptions and Products shown on the Services are shown in U.S. dollars and may not include all applicable taxes, shipping charges and other applicable charges. Prices for Subscriptions and Products are subject to change, in our sole and absolute discretion, at any time and without notice. The exact amount of shipping charges, taxes and other applicable charges may vary with each Shipment.

Our Subscriptions and Products are subject to availability, based on our supply and your geographic location. We reserve the right to, without prior notice, limit the amount of Products included in each Shipment, to reject all or part of an order you place through the Services, and to substitute certain Products for those displayed on the Services at the time you place an order. For example, if a certain ingredient is unavailable at the time your Shipment is shipped to you, we reserve the right to substitute another ingredient, subject to dietary preferences you may designate on the Services (such as allergies).

E. Shipping Charges

You authorize Raised Real and our third-party payment processing vendor to charge your payment method for all shipping and handling charges incurred in connection with Shipments in connection with your Subscription, the amount which may vary from time to time, and for all shipping and handling charges disclosed at the time you order Products, in the case of Products purchased without a Subscription. We reserve the right to increase and decrease the shipping and handling charges due from time to time, provided that we will use reasonable efforts to notify you of such changes prior to processing your Shipments. Raised Real uses a third-party carrier to ship and deliver all Shipments. Any delivery dates displayed on the Services for your Shipments are estimates and the actual delivery dates may vary.

F. Shipping; Risk; Delivery

Products you purchase on the Services are subject to a “shipment” contract, which means that title and risk of loss passes to you when Raised Real or our third-party fulfillment vendor delivers the Products to the shipping carrier.

We ship (or cause to be shipped by our third-party fulfillment vendor) all food Products frozen in insulated packaging that is kept cool with frozen carbon dioxide (i.e., “dry ice”). WARNING: DO NOT HANDLE DRY ICE WITH BARE HANDS. DO NOT ENCLOSE DRY ICE IN CONTAINERS. DO NOT INHALE VAPORS FROM THE DRY ICE. DO NOT EAT DRY ICE. DO NOT PUT DRY ICE IN DRINKS. KEEP DRY ICE OUT OF REACH OF MINORS. If you are available to personally accept delivery when a Shipment arrives, the shipping carrier may leave the package for you at your door. While Shipments are insulated and packed with dry ice and typically remain frozen for three (3) days following delivery, we cannot guarantee how long your Shipment will remain frozen, due to variability in weather. You are responsible for ensuring that you or someone on your behalf is available to retrieve your Shipments in a reasonable amount of time following delivery.

Upon delivery, you are responsible for inspecting the Products in a Shipment for damage, to ensure that the Products are frozen, and to identify other issues. If Products are delivered to you that are not frozen or if you suspect that the Products are unfit for consumption, contact us immediately at help@raisedreal.com or by SMS text message at (415) 233-7672 and discard those Products. Once you have determined that the Products are frozen and there are no other apparent issues, we recommend that you immediately transfer the Products to a freezer or refrigerator. Whether you freeze or refrigerate the Products delivered to you, we recommend that you follow the USDA recommendations on refrigeration and food safety, which are available at this link, and the USDA recommendations on safe food handling, which are available at this link. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which are available at this link.

In the case of inclement weather or other events beyond our control that interfere with our ability to deliver your Shipment, we will attempt to deliver your Shipment as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. If timely delivery of your Shipment is not feasible, we will cancel that Shipment and issue you a Credit or refund the purchase price of that Shipment.

G. Promotional Products

As a promotion in connection with the sale of our Products, we may offer, from time to time, free gifts, subject to availability. Free gifts with purchase described on our Services are strictly “as is” and come without any warranties. Although we will endeavor to deliver a substantially similar product to those displayed on the Services, free gifts displayed on our Services may differ from the free gift delivered to you, including being of a different size, model, and brand. Free gifts with purchase are limited to one per customer and per household. Free gifts with purchase may not be combined with any other offers or promotions. You may not return or exchange any free gifts delivered to you with the purchase of our Products. There is no charge to you for the shipping and handling of free gifts with purchase, subject to all other terms and conditions relating to shipping and handling under these Terms. Raised Real reserves the right to require a minimum purchase amount to receive a free gift with purchase. If you receive a free gift with the purchase of a Subscription, you may keep the free gift even if you cancel the Subscription. Based on availability, if a free gift ceases to operate, Raised Real shall have the option, but not the obligation, to replace your inoperable free gift.

H. Resale and Export Prohibited

Resale or use of any Products for a commercial purpose is strictly prohibited. Export of any Products is strictly prohibited.

8. Content on the Services; Social Network Terms

All materials provided on the Services, including but not limited to information, documents, products, logos, graphics, sounds, images, compilations, content and services, are provided either by Raised Real or by respective third party users, authors, developers or vendors and are the copyrighted works of Raised Real and/or such third party providers (or is permitted/licensed to be used by such third party providers), unless specifically provided otherwise. Except where expressly provided otherwise by Raised Real, nothing on the Services shall be construed to confer any license or ownership right in or to the materials provided through the Services, under any of Raised Real’s intellectual property rights, whether by estoppel, implication, or otherwise. Subject to your compliance with these Terms, Raised Real grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Services solely in connection with your permitted use of the Services. If you use a Social Network in connection with the Services, you shall comply with all terms of use and privacy policies to such Social Network.

9. User Content

For purposes of these Terms: (a) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services by Raised Real; and (b) “User Content” means any Content that you or other users provide to be made available through the Services. Content includes without limitation User Content.

Raised Real does not claim any ownership rights in any User Content that you make available through the Services and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Raised Real and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Products.

By making any User Content available through the Services, you hereby grant to Raised Real and each of its affiliates a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users. You are solely responsible for all your User Content. You represent and warrant that you own all your User Content or you have all rights that are necessary to grant us the license rights in your User Content under these Terms. You also represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Raised Real or other users on or through the Services will infringe, misappropriate or violate a third party’s intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.

You can remove your User Content by specifically deleting it. However, in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. Neither Raised Real nor its affiliates are responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.

10. Copyright Violations

If you believe that your copyright-protected work was posted to the Services without authorization, please notify us immediately at help@raisedreal.com.

11. User Conduct

Raised Real imposes certain restrictions on your permissible use of the Services. You are prohibited from violating or attempting to violate any security features of the Services, including, without limitation, (a) accessing content or data not intended for you, or logging onto a server or account that you are not authorized to access; (b) attempting to probe, scan, or test the vulnerability of the Services or any associated system or network, or to breach security or authentication measures without proper authorization; (c) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Services, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (d) using the Services to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (e) forging any TCP/IP packet header or any part of the header information in any email or in any posting using the Services; (f) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by Raised Real in providing the Services; or (g) using the Services in connection with the violation of any third party’s intellectual property or proprietary rights, including copyrights, trademarks, or patents. Any violation of system or network security may subject you to civil and/or criminal liability. You shall not post, upload, publish, submit or transmit any Content, or otherwise conduct yourself in connection with the Services in a way, that: (a) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (b) violates, or encourages any conduct that would violate, any applicable law or regulation or would subject Raised Real or any of its affiliates to civil liability; (c) is fraudulent, false, misleading or deceptive; (d) is defamatory, obscene, pornographic, vulgar, or offensive; (e) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (f) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (g) promotes illegal or harmful activities or substances. You shall not use, display, mirror or frame the Services, or any individual element within the Services, the names, trademarks, logos, or other proprietary information of Raised Real or any of its affiliates, or the layout and design of any page or form contained on a page on the Services, without Raised Real’s express written consent. You shall not attempt to access or search the Services or Content or download Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search utilities provided by Raised Real or other generally available third party web browsers. You shall not send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation with the Services. You shall not use any meta tags or other hidden text or metadata utilizing a trademark, logo, URL or product name of Raised Real or any of its affiliates without Raised Real’s express written consent. You shall not use the Services or Content, other than User Content, for any commercial purpose or in any manner not permitted by these Terms. You shall not collect or store any personally identifiable information from the Services from other users without their express permission. You shall not impersonate or misrepresent your affiliation with any person or entity. You shall not violate any applicable law or regulation. You shall not encourage or enable any other individual to do any of the foregoing actions prohibited in this section.

Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

12. Feedback

You may provide us feedback, comments, and suggestions for improvements to the Services and Products (“Feedback”), which are separate from User Content. You grant us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable, and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon, and otherwise exploit the Feedback for any purpose.

13. Third Party Websites

You acknowledge that we have no control over, and no liability for any third party websites or materials, including websites and materials that you may access from links on our Websites, including any Social Networks and websites operated by third-party service providers that we engage to assist us in providing the Services and the Products. Raised Real makes no guarantees about the accuracy, currency, content, or quality of the information provided by such websites, and Raised Real assumes no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful content that may reside on those websites.

14. Term and Termination

These Terms will remain in full force and effect while you use the Services and following your purchase of Products, unless terminated as described in this section. We may terminate or suspend your access to and use of the Services (including your Account), at our sole discretion, at any time and without notice to you. You acknowledge that any termination of your Account may result in the deletion of your User Consent. You hereby waive any claims that you may have against Raised Real in connection with the termination of your Account or the deletion of your User Content. The following sections of these Terms survive termination of your Account or these Terms: “User Content,” “Indemnity,” “Disclaimers,” “Limitation of Liability,” “Dispute Resolution,” and “Entire Agreement; Severability; Waiver.”

15. Indemnity

To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Raised Real, its affiliates, officers, directors, employees, consultants, agents, representatives, predecessors, successors, and assigns (“Raised Real Parties”) from any and all third party claims, losses, liability, damages, and/or costs (including reasonable legal fees and costs) (“Claims”) arising from or related to (1) any access to, use of, or misuse of the Services or Products by you or any third party you authorize to access or use the Services or Products, (2) your violation of these Terms, (3) any User Content you create, post, share, or upload on or through the Services or any Social Network, (4) any Feedback, (5) your violation of the legal rights of a third party, and (6) your infringement, or infringement by any other user of your Account, of any intellectual property or other right of any person or entity. Raised Real will notify you promptly of any such claim, loss, liability, or demand, and will provide you with reasonable assistance, at your expense, in defending any such claim, loss, liability, damage, or cost. You shall promptly notify Raised Real of any Claims alleged by third parties, cooperate with the Raised Real Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, without limitation, all legal fees and costs). The Raised Real Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Raised Real.

16. Disclaimers

YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE PROPER AND SAFE STORAGE, REFRIGERATION AND/OR FREEZING, WASHING, HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS DELIVERED TO YOU. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE AND/OR OUR THIRD-PARTY FULFILLMENT VENDORS STORE, PORTION AND PACKAGE PRODUCTS CONTAINING ALL EIGHT (8) MAJOR U.S. ALLERGENS (MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS AND TREENUTS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS.

WE DO NOT WARRANT OR GUARANTEE THE ACCURACY OF THE INFORMATION ABOUT THE PRODCUTS OR OTHER MATERIALS AND INFORMATION AVAIALBLE ON THE SERVICES, INCLUDING PRICING AND NUTRITIONAL INFORMATION. IF THERE IS AN ERROR OR DISCREPANCY ON OUR SERVICES, IN ANY COMMUNCIATIONS WITH YOU, OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT THAT ERROR AND REVISE ANY SHIPMENTS ACCORDINGLY (INCLUDING CHARGING YOU THE CORRECT PRICE) OR TO CANCEL ANY SHIPMENTS AND ISSUE YOU A REFUND. PRODUCTS MAY VARY FROM THE PRODUCTS DISPLAYED ON THE SERVICES BASED ON LIMITATIONS OF YOUR DEVICE, AVAILABILITY AND SUPPLY CONSTRAINTS, OUR USE OF VARIOUS THIRD-PARTY FULFILLMENT VENDORS, THE VARIABILITY OF PRODUCTS AND THEIR PACKAGING AND PREPARATION. A PRODUCT MAY NOT BE AVAIALABLE FOR ORDER EVEN IF IT IS DISPLAYED ON THE SERVICES.

EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL PRODUCTS AND THE SERVICES AND CONTENT ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. RAISED REAL DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, CONTENT AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SERVICES OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. RAISED REAL DOES NOT WARRANT THAT THE SERVICES OR PRODUCTS WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

We reserve the right to change any and all Content and to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof, or any affiliation therewith, by us.

17. Limitation of Liability

RAISED REAL’S LIABILITY TO YOU IS LIMITED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL RAISED REAL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS TO OR USE OF THE SERVICES OR CONTENT (INCLUDING, BUT NOT LIMITED TO, USER CONTENT, THIRD PARTY CONTENT AND LINKS TO THIRD PARTY SITES), OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT, OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE ON ANY INFORMATION OBTAINED FROM ANY RAISED REAL PARTY, OR FROM EVENTS BEYOND THE RAISED REAL PARTIES’ REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS OR OMISSIONS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO THE RAISED REAL PARTIES’ RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF THE RAISED REAL PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM RAISED REAL EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCTS, OR ACCESS OR USE OF THE SERVICES OR CONTENT, EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE THE RAISED REAL PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), OR ANY OTHER LEGAL OR EQUITABLE THEORY.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE THE RAISED REAL PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH RAISED REAL PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” THE LIMITATIONS SET FORTH IN THIS SECTION TITLED “LIMITATION OF LIABILITY” DO NOT LIMIT OR EXCLUDE LIABILITY FOR PERSONAL INJURY OR PROPERTY DAMAGE DIRECTLY AND PROXIMATELY CAUSED BY PRODUCTS YOU PURCHASE FROM US, OR FOR OUR FRAUD, GROSS NEGLIGENCE, OR INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT.

18. Privacy Policy

Please refer to our Privacy Policy located at https://www.raisedreal.com/privacy for information on how we collect, use, and disclose information about our users.

19. Governing Law

These Terms and any action related to these Terms will be governed by the laws of the United States and the laws of the State of California, without regard to their rules regarding conflicts of law.

20. Dispute Resolution

If you enter into a separate written agreement with us that describes the manner in which any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or the purchase of the Products (collectively, “Disputes”), such separate written agreement will govern the resolution of Disputes and will supersede this section titled “Dispute Resolution.”

A. Disputes between You and a Third Party

Because certain Services and Products are provided by third-parties or involve the utilization of third party service providers or storage facilities, in the event that you have a dispute with a third party in connection with the Services or the Products, we may, in our sole discretion, facilitate communication between you and the third party in connection with such dispute. If such a dispute is unable to be resolved between you and the third party, we may, in our sole discretion, and where feasible, intervene in such dispute and take any actions we deem appropriate.

B. Governing Law

These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.

C. Agreement to Arbitrate

You and Raised Real agree that any Disputes will be settled by binding arbitration, except that each party retains the right: (a) to bring an individual action in small claims court and (b) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (b), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and Raised Real are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Raised Real otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

IF YOU WISH TO OPT OUT OF THE WAIVER TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTIONS OR REPRESENTATIVE PROCEEDINGS, YOU MUST SEND A LETTER REQUESTING AN OPT OUT OF THE CLASS AND REPRESENTATIVE ACTION WAIVER, TO RAISED REAL AT 665 3RD STREET, SUITE 150, SAN FRANCISCO, CA 94107 WITHIN 30 DAYS OF FIRST USING THE SERVICES OR PURCHASING ANY PRODUCTS. YOU ACKNOWLEDGE AND AGREE THAT IF YOU SEND SUCH LETTER, IT WILL BE SENT TO RAISED REAL BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED.

D. Arbitration Rules

The arbitration will be administered by the Judicial Arbitration and Mediation Services (“JAMS”) in accordance with its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures provided in those Rules (the “JAMS Rules”) then in effect (excluding any Class Action Rules). (The JAMS Rules are available at www.jamsadr.com/rules-clauses/ or by calling JAMS at 1-800-352-5267.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

E. Arbitration Process

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules. (JAMS provides a form Demand for Arbitration Before JAMS at http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf.) The parties agree that the arbitration shall take place before one arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from JAMS’ roster of arbitrators. If the parties are unable to agree upon an arbitrator within 7 days of delivery of the Demand for Arbitration, then JAMS will appoint the arbitrator in accordance with the JAMS Rules.

F. Arbitration Location and Procedure

Unless you and Raised Real otherwise agree, the arbitration will be conducted in the City and County of San Francisco, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Raised Real submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the JAMS Rules.

Subject to the JAMS Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

G. Arbitrator’s Decision

The arbitrator will render an award within the time frame specified in the JAMS Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Raised Real will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.

H. Fees

Your responsibility to pay any JAMS filing, administrative and arbitrator fees will be solely as set forth in the JAMS Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your demand for arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

I. Changes to Dispute Resolution Section

Notwithstanding the provisions of the “Changes to Terms of Use” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to help@raisedreal.com) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

21. Entire Agreement; Severability; Waiver

These Terms constitute the entire agreement between you and us regarding the use of our Services and the purchase or Products through the Services. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. No waiver of any breach of any provision of these Terms will constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party. Neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Raised Real’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Raised Real may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.

22. Copyright

All contents of the Websites and other Services are: Copyright © 2017 Frozen Harvest Intelligence, Inc., 401 Francisco Street, San Francisco, CA 94133. All rights reserved. Nothing contained on the Websites should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by Raised Real or by any third party.

23. Contact

To contact us about these Terms, please email us at help@raisedreal.com, message us on Facebook Messenger, send us an SMS text message at (415) 233-7672, or send us your information at:

 

Raised Real
c/o Frozen Harvest Intelligence, Inc.
401 Francisco Street
San Francisco, CA 94133