About The Popcorn Factory

Terms of Use
Last Updated April 14,2011

The Popcorn Factory® welcomes you to our Web Site located at www.thepopcornfactory.com (the "Web Site"). The goal of the Web Site is to provide access to our wide selection of popcorn, gourmet food, and gift products and services, as well as, information and ideas, to as wide an audience as possible. To ensure a safe, pleasant environment for all of our users, we have established these Terms of Use. In this way, you will know what you can expect from us and what we expect from you.

Note: You must be 21 years or older to use, subscribe, or register as a member the Web Site.

Some of the products marketed by The Popcorn Factory® contain wine (alcoholic beverage) products. You must be an adult (21 years or older) to place a request for a wine product order which we will then forward to our designated licensed retailer or winery for acceptance, sale and processing of your order. Similarly, the recipient of your wine product order must be 21 years or older to accept delivery. The shipping carrier shall require identification, age verification and signature of an adult at the time of delivery. By placing your request for a wine product order you certify under penalty of law that you and the intended recipient are at least 21 years old. Any willful misrepresentation of your, or the recipient's age, in order to unlawfully obtain alcoholic beverage is a crime and The Popcorn Factory® will cooperate with authorities to prosecute you and the recipient to the fullest extent of the law.

THESE TERMS OF USE APPLY TO ALL MERCHANDING CHANNELS OF THE COMPANY AND ITS AFFILIATES INCLUDING, BUT NOT LIMITED TO, THE INTERNET, TELEPHONE, CATALOG, RADIO, TELEVISION, MOBILE DEVICE AND PARTICIPATING RETAIL STORES. BY ACCESSING ANY OF THE COMPANY MERCHANDING CHANNELS, AND ANY AREAS OF THE WEB SITE, YOU AGREE TO BE LEGALLY BOUND, AND TO ABIDE BY, THESE TERMS OF USE.

Ownership and Trademarks

The Popcorn Factory® and the Web Site are owned by 1-800-FLOWERS.COM, INC. with offices at One Old Country Road, Suite 500, Carle Place, New York 11514 (the "Company"). The Popcorn Factory® and the below listed trademarks are owned by 1-800-FLOWERS.COM, INC. or one of its Affiliates. "Affiliates" are those persons or entities directly or indirectly controlling, controlled by, or under common control with the Company. All other 3rd party trademarks, product names, and company names and logos appearing on this Web Site are the property of their respective owners.

  • AIR-RANGEMENT®
  • AMBROSIA®
  • AMERICA'S BUSINESS FLORIST®
  • APPLE MARTINI BOUQUET®
  • BALLOON BOUTIQUE®
  • BIRTHDAY FLOWER CAKE®
  • BLOOMLINK®
  • BLOOMLINK® (& Design)
  • BLOOMNET®
  • BLOOM OF THE MONTH®
  • BRING YOUR MOM TO WORK DAY®
  • CAFE BOUQUET®
  • CALL 1-800-FLOWERS®
  • CELEBRATE DELICOUSLY®
  • CELEBRATIONS®
  • CHERYL&CO®
  • CHERYL&CO® (& Design)
  • CHERYL'S COOKIES®
  • CIDER HOUSE®
  • CONROY'S FLOWERS® (Stylized logo with Conroy's in the Flower box logo design)
  • CONROY'S FLOWERS®
  • CONROY'S 1-800-FLOWERS® (stylized Flower box logo design)
  • COOKIE JOYS®
  • COOKIES FOR A'S®
  • COOK IT! CLUB®
  • COSMOPOLITIAN BOUQUET®
  • CRISPIE JOYS®
  • DEBUTANTES®
  • DESIGNPAC®
  • DIRECT FROM THE TASTING ROOM TO YOU®
  • DOGGONE GOOD!®
  • 800-BASKETS®
  • 800-CANDIES®
  • 800-FLORIST®
  • 800-FLOWERS®
  • 800-GOODIES®
  • 800-GROWERS®
  • E-MMEDIATE GIFT®
  • EXPRESSIONS EXCHANGE®
  • EXPRESSIONS OF FLOWERS®
  • FANNIE MAY®
  • FANNIE MAY® (Stylized)
  • FANNIE MAY KITCHEN FRESH CANDIES®
  • FANNIE FARMER®
  • FANNY FARMER®
  • FANNY FARMER® (w/ portrait design)
  • FF® (Stylized)
  • FIELDS OF THE WORLD®
  • FLEUR DE CHOCOLATE®
  • FLORAVERSITY®
  • FLOWER COUNTRY®
  • FLOWER COUNTRY USA®
  • FLOWERS®
  • FRESH®
  • FRESH CONNECTION®
  • FRESH FORUM®
  • FRESH FROM OUR GROWERS®
  • FRESH REWARDS®
  • FRESH REWARDS® (& Design)
  • FRESH TALK®
  • FRESH THOUGHTS®
  • FRESH UNIVERSITY®
  • FRESHNESS CARE SYSTEM®
  • FUN IN A CAN®
  • GET IT TOGETHER & CELEBRATIONS®
  • GIFT CONCIERGE SERVICE®
  • GIFT WELL LIVE WELL®
  • GOURMET CLASSICS®
  • GREATFOOD.COM®
  • GREAT FOOD ONLINE®
  • GREAT PERKS®
  • GREETING CANS®
  • HARRY LONDON®
  • HOLIDAY FLOWER TREE®
  • IT'S YOUR DAY BOUQUET®
  • JULEP CUP BOUQUET®
  • JUST CALL OUR NAME®
  • KEY TO MY HEART®
  • KUDOS BOUQUET®
  • LOTSA LOVE®
  • LOVE POTION®
  • MAD LAB®
  • MAMA MOORE'S BAKESHOP®
  • MARGARITA BOUQUET®
  • MINI MARGARITA BOUQUET®
  • MUGABLES®
  • OCCASSIONS®
  • OLDE SWEET SHOPPE®
  • 1-800-BASKETS.COM®
  • 1-800-CANDIES.COM®
  • 1-800-FLEURISTE®
  • 1-800-FLOWERS®
  • 1800FLOWERS®
  • 1-800-FLOWERS® (Stylized logo design w/ flower box)
  • 1-800-FLOWERS® (with Tulip Design)
  • 1800FLOWERS.BIZ®
  • 1-800-FLOWERS.BIZ®
  • 1-800-FLOWERS.CA®
  • 1800FLOWERS.COM®
  • 1-800-FLOWERS.COM®
  • 1-800-FLOWERS.COM® (Stacked Logo in color)
  • 1-800-FLOWERS.COM® (Linear Logo in color)
  • 1-800-FLOWERS.MOM®
  • 1-800-GIFTHOUSE®
  • 1-800-GOODIES.COM®
  • 1800GREETINGS.COM® (& Design)
  • 1-800-GREETINGS.COM®
  • 1-800-GROWERS.COM®
  • 1-800-LAS FLORES.COM®
  • 1-800-LAS FLORES.COM® (Stylized logo design)
  • 1-800-THE-ROSE®
  • 1-888-FLOWERS®
  • PECAN DIXIES®
  • PIXIES®
  • PREMIUM SELECT®
  • PRETZEL JOYS®
  • PRIVATE TASTING®
  • PURCHASENET®
  • REWARDING OTHERS®
  • SEND-A-MESSAGE®
  • S'MORESVILLE®
  • SNACK OF THE MONTH®
  • SNACK TO SCHOOL®
  • SNACK OF THE MONTH®
  • SNACK TO SCHOOL®
  • SNOW VALLEY®
  • STRAWBERRY FLORAL MARGARITA®
  • SWEET PERSUASION®
  • TASTING PANEL®
  • TELEVERSITY®
  • THE GREAT KERNAL®
  • THE ONE 800 NUMBER FOR FLOWERS®
  • THE ONE 888 NUMBER FOR FLOWERS®
  • THE PINK RIBBON BOUQUET®
  • THE POPCORN FACTORY®
  • THE POPCORN FACTORY® (Stylized logo)
  • TIMELESS TULIPS®
  • TRINIDAD®
  • TRINIDADS®
  • TRUFFLE FONDUE®
  • TULIP® (Design)
  • TUXEDO CHOCOLATE BOX® (Design)
  • VINTNER'S SELECT®
  • WILDERNESS GOURMET®
  • WINE GLASS® (Design)
  • WINETASTING® (& Design)
  • WINETASTING.COM® (& Design)
  • WINETASTING NETWORK®
  • WORLD'S FAVORITE FLORIST®
  • YOUR FLORIST OF CHOICE®
  • YOUR TRUSTED GUIDE TO GIFTING®
  • 1800BASKETS.COM (& Design)sm and the following are service marks or trademarks of the Company:
  • EVERY MOM COUNTSsm
  • EVERY MOM COUNTSsm (logo)
  • FLORIOLOGYsm
  • FRESH GIFTsm
  • KULTURAL KUDOSsm
  • LOTSA LOVE™
  • 1800BASKETS.COMsm
  • PEPPERMINT PARADE™
  • SPOT A MOMsm

Disclaimers and Limitation of Liability

YOU EXPRESSLY AGREE THAT USE OF THE WEB SITE IS AT YOUR SOLE RISK. NEITHER THE COMPANY, NOR ITS AFFILIATES, NOR ANY OF ITS OFFICERS, DIRECTORS, OR EMPLOYEES, AGENTS, THIRD-PARTY SERVICE OR CONTENT PROVIDERS ("PROVIDERS"), MERCHANTS ("MERCHANTS"), SPONSORS ("SPONSORS"), LICENSORS ("LICENSORS"), OR THE LIKE (COLLECTIVELY, "ASSOCIATES"), WARRANT THAT THE WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEB SITE, OR AS TO THE ACCURACY, RELIABILITY, OR CURRENCY OF ANY INFORMATION CONTENT, SERVICE, OR MERCHANDISE PROVIDED THROUGH THE WEB SITE; EXCEPT THAT THE COMPANY DOES GUARANTEE (THROUGH ITS "100% SATISFACTION GUARANTEE") THAT OUR FOOD STUFF PRODUCTS WILL BE WHOLESOME AND FREE OF SUBSTANTIAL DEFECTS, AND IF THEY ARE NOT, THE COMPANY'S SOLE MAXIMUM LIABILITY WILL BE, WITHIN ITS SOLE DISCRETION, NOT MORE THAN TO EITHER REFUND THE ACTUAL PURCHASE PRICE PAID BY THE CUSTOMER, OR TO REPLACE AND DELIVER AN EQUIVALENT PRODUCT AS SOON AS REASONABLY PRACTICABLE.

THE WEB SITE IS PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS AND THE COMPANY SPECIFICALLY DISCLAIMS WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL ADVICE OR WRITTEN OR ELECTRONICALLY DELIVERED INFORMATION GIVEN BY THE COMPANY OR ITS AFFILIATES, OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PROVIDERS, MERCHANTS, SPONSORS, LICENSORS, OR THE LIKE, SHALL CREATE ANY WARRANTY WHATSOEVER.

UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS AFFILIATES, NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, MANUFACTURING, DISTRIBUTING, MARKETING, OR SELLING THE POPCORN FACTORY® PRODUCTS, SERVICES OR THIS WEB SITE, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS THAT RESULT FROM THE USE OF OR INABILITY TO USE THE WEB SITE, INCLUDING BUT NOT LIMITED TO RELIANCE BY YOU ON ANY INFORMATION OBTAINED FROM THE POPCORN FACTORY® OR THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, 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 COMPANY'S RECORDS, PROGRAMS, OR SERVICES.

UNLESS OTHERWISE SPECIFICALLY STATED TO THE CONTRARY, ALL PRICES AND DISCOUNTS FOR ANY AND ALL PRODUCTS OR SERVICES OFFERED FOR SALE ("OFFERS') ARE EXCLUSIVE OF APPLICABLE SERVICE AND SHIPPING CHARGES AND FEDERAL, STATE AND LOCAL TAXES. PRODUCTS AND OFFERS MAY VARY AND ARE SUBJECT TO AVAILABLITY, DELIVERY RULES AND TIMES. OFFERS CANNOT BE COMBINED, ARE NOT AVAILABLE ON ALL PRODUCTS AND SERVICES AND ARE SUBJECT TO RESTRICTIONS, LIMITATIONS AND BLACKOUT PERIODS. PROMOTIONAL OFFERS (AS DEFINED BELOW) ARE LIMITED TO ONE PER CUSTOMER ORDER, ARE NON-TRANSFERABLE, ARE NOT FOR RESALE AND MAY NOT BE REDEEMED FOR CASH. PRICES AND CHARGES ARE SUBJECT TO CHANGE WITHOUT NOTICE. VOID WHERE PROHIBITED.

THE COMPANY RESERVES THE RIGHT, WITHIN ITS SOLE DISCRESTION, TO REFUSE TO ACCEPT AND PROCESS ANY AND ALL CUSTOMER ORDERS AND TO SUSPEND, DISCONTINUE, AND REFUSE THE USE OR ACCEPTANCE OF ANY AND ALL OFFERS, PROMOTIONS, DISCOUNTS, INCLUDING BUT NOT LIMITED TO, ANY AND ALL SAVINGS PASSES, REWARD PASSES, FRESH REWARDS, POINTS, AWARD CARDS, APPRECIATION AWARDS, GIFT CARDS, GIFT CERTIFICATES, AND ANY AND ALL OTHER SIMILAR DEVICES AND PROMOTIONAL OFFERS OR CAMPAIGNS ("PROMOTIONAL OFFERS") IN THE EVENT OF ADVERTISING ERRORS AND/OR THE ACTUAL OR SUSPECTED MISUSE, FRAUD OR ABUSE ASSOCIATED WITH SAID PROMOTIONAL OFFERS OR CUSTOMER ORDERS.

YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL PRODUCTS, SERVICES AND CONTENT AVAILABLE THROUGH ALL MERCHANDING CHANNELS OF THE COMPANY AND ITS AFFILIATES INCLUDING, BUT NOT LIMITED TO, THE INTERNET, TELEPHONE, CATALOG, RADIO, TELEVISION, MOBILE DEVICE AND PARTICIPATING RETAIL STORES, AND THIS WEB SITE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.

CONTENT

Proprietary Rights

You acknowledge that the Web Site contains information, data, software, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material (collectively "Content") that are protected by copyrights, trademarks, or other proprietary rights, and that these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Content is copyrighted as a collective work under the U.S. copyright laws, and the Company or its Affiliates or other third party licensors may own a copyright in the selection, coordination, arrangement, and enhancement of such Content. You may not modify, remove, delete, augment, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Content, in whole or in part. If no specific restrictions are displayed, you may use the content only for your personal non-commercial use and make copies of select portions of the Content, provided that the copies are made only for your personal use and that you maintain any notices contained in the Content, such as all copyright notices, trademark legends, or other proprietary rights notices. Except as provided in the preceding sentence or as permitted by the fair use privilege under the U.S. copyright laws (see e.g. 17 U.S.C. Section 107), you may not upload, post, reproduce, or distribute in any way Content protected by copyright, or other proprietary right, without obtaining permission of the owner of the copyright or other propriety right. In addition to the foregoing, use of any software Content shall be governed by the software license agreement accompanying such software.

Third Party Content on the Web Site

The Company is a distributor and not a publisher of the Content supplied by third parties on the Web Site. The Company does not have editorial control over such Content. Any opinions, advice, statements, services, offers, or other information that constitutes part of the Content expressed or made available by third parties, including Providers, Merchants, Sponsors, Licensors, or any user of the Web Site, are those of the respective authors or distributors and not of the Company or its Affiliates or any of its officers, directors, employees, or agents. NEITHER THE COMPANY NOR ITS AFFILIATES, NOR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY THIRD PARTY, INCLUDING ANY PROVIDER, MERCHANT, SPONSOR, LICENSOR, OR ANY OTHER USER OF THE WEB SITE, GUARANTEES THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY CONTENT, NOR ITS MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.

In many instances, the Content available through the Web Site represents the opinions and judgments of the respective Provider, Merchant, Sponsor, Licensor, subscriber, customer, or user, whether or not under contract with the Company. The Company neither endorses nor is responsible for the accuracy or reliability of any opinion, advice, submission, posting, or statement made on the Web Site by anyone other than authorized Company employees. Under no circumstances shall the Company, or its Affiliates, or any of their respective officers, directors, employees, or agents, be liable for any loss or damage caused by your reliance on any Content or other information obtained through the Web Site. It is your responsibility to evaluate the information, opinion, advice, or other Content available through the Web Site.

Copyright Agent

The Popcorn Factory® respects the rights of all copyright holders and in this regard it has adopted and implemented a policy that provides for the termination of user privileges and membership in appropriate circumstances of users who infringe the rights of copyright holders. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide The Popcorn Factory's Copyright Agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. 512:

  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 copyright 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 us to locate the material;
  4. Information reasonably sufficient to permit us to contact the complaining party;
  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;
  6. A statement that the information in the notifications 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.

The Company's Copyright Agent for notice of claims of copyright infringement on or regarding this site can be reached as follows:

Copyright Agent

Attn: Gerard M. Gallagher, Esq.
1-800-FLOWERS.COM, Inc.
One Old Country Road
Suite 500
Carle Place, NY 11514
Telephone: 516.237.6087
Facsimile: 516.237.6101
Email: jgallagher@1800flowers.com

User Submissions

The Company does not claim ownership of any Content you submit or make available for inclusion on the Web Site. However, with respect to all such Content, including, without limitation, creative ideas, suggestions, content, postings, artwork, material or other submissions whether via email, feedback, a public forum or otherwise (collectively, "User Submissions"), you grant the Company and its Affiliates the worldwide, perpetual, royalty-free, irrevocable, non-exclusive right to use, communicate, reproduce, publish, display, perform, modify, alter, adapt, translate, sublicense, distribute, create derivative works from and exploit such User Submissions in any manner, including on the Web Site or any other web sites, in television programs, on radio, in books, magazines, articles, commentaries, and in any other medium now known or later developed without your consent. You also warrant that you own or otherwise control all of the rights to any User Submissions you submit or post on or to the Web Site or otherwise transmit to the Company and that our public posting and other public or private use of such User Submissions will not infringe the rights of any third party. You acknowledge that you are not entitled now, or in the future, to any compensation for any User Submissions you may submit or post and you waive the benefits of any provisions of law known as "droit moral" (moral rights) or any similar laws.

No User Submissions, regardless of how they may be marked, will be received by us in confidence, nor shall they be subject to any express or implied obligation of confidentially. Neither the Company, or its Affiliates, nor their respective officers, directors, agents or employees shall be liable for any use or disclosure of any User Submissions.

You and your successors and assigns hereby waive any and all rights and remedies you may have against the Company, or its Affiliates, or any of their respective officers, directors, employees, or agents now or in the future, and hereby release the Company, its Affiliates, and any of their respective officers, directors, agents and employees from any and all claims, demands, actions, causes of action, damages, obligations, losses and expenses of whatever kind, (collectively "Claims") relating to providing, posting, transmitting or making available through the Web Site the User Submissions to the Company, or the Company receiving, evaluating, and utilizing the User Submissions. You further agree to indemnify, defend and hold harmless the Company, its Affiliates, and any of their respective officers, directors, agents and employees from and against any and all Claims, including, without limitation, Claims that any User Submissions misappropriate or infringe upon the rights of any third party, and reasonable attorneys' fees and expenses, which result or arise from, or are based on, the receipt, evaluation or use of User Submissions by the Company, its Affiliates or its third party licensees.

In addition, the Company may, in our sole discretion, at any time and without prior notice to you, suspend or terminate any public forum, any other portion of the Web Site, or the subscription or registration of any user who violates any of these terms and conditions of use, any of the rules, regulations or guidelines or for any other behavior that we in our sole discretion believe is inappropriate.

Use of Public Forums

A "public forum" means any publicly accessible message board, chat room, discussion group, folder, survey, contest, sweepstakes, user review and rate forum, or other interactive service or promotion on or accessible via the Web Site , and includes both public boards and folders. You must use, subscribe, or register in accordance with instructions that you will find on the Web Site in order to participate or contribute to any public forum. You may not submit or post on any public forum, or send to any other public forum user or our employees, any material that is unlawful, harmful, threatening, abusive, harassing, defamatory, invades a person's privacy, violates any intellectual or other property rights, or is vulgar, obscene, sexually explicit, profane, hateful, racially, ethnically, or otherwise objectionable, including but not limited to any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any applicable local, state, national, or international law. You agree not to use any false e-mail address, impersonate any person or entity, or otherwise mislead as to the origin of a communication or other Content, or attempt to do any such acts. You may not use any public forum in a commercial manner. You may not submit or post material that solicits funds, or that advertises or solicits goods or services. You may not submit or post any User Submissions or material that you know, or should have known, to be false. You may not submit or post messages regarding stocks or other securities. You may not submit, post, or transmit any information, software or other material that contains a virus or other harmful component.

The Popcorn Factory® is not responsible for any User Submissions or material appearing in any public forum on the Web Site, except for Content signed by one of our identified authorized representatives. We do not screen User Submissions for libel, obscenity, invasion of privacy, copyright or trademark infringement, accuracy, or for any other reason. We retain, however, the rights set forth below in The Company's Rights section.

Distribution/Uploading by Users of Third Party Content

Except as otherwise set forth in these Terms, you agree not to upload to or otherwise distribute on the Web Site any Content created or owned by others which is subject to any copyright or other proprietary rights of any third party. The unauthorized submission or distribution of copyrighted or other proprietary third party Content is illegal and could subject you to criminal prosecution as well as personal liability for damages. You, not the Company, or its Affiliates, or any of their respective officers, directors, agents, employees, Merchants, Providers, Sponsors, Licensors, or the like, will be liable for any damages resulting from any infringement of copyrights or proprietary rights, or from any other harm arising from such submission.

Compliance with Laws and Export Regulations

You agree to use the Content and this Web Site in compliance with all applicable laws, rules and regulations and in a manner that does not, in the sole judgment of the Company, negatively reflect on the goodwill or reputation of the Company or any of its Affiliates.

The U.S. export control laws regulate the export and re-export of technology originating in the United States. This includes the electronic transmission of information and software to foreign countries and to certain foreign nationals. You agree to abide by these laws and their regulations, including but not limited to the Export Administration Act and the Arms Export Control Act, and not to transfer, by electronic transmission or otherwise, any Content derived from the Web Site to either a foreign national or a foreign destination in violation of such laws.

The Company's Rights

The Company is not responsible for screening, policing, editing, or monitoring Content (including User Submissions). The Company (or its Affiliates) may elect, but is not obligated, to monitor, electronically or otherwise, areas of the Web Site and may disclose any Content (including User Submissions), records, or electronic communication of any kind and information you provide to the Company or its Affiliates, through the Web Site or otherwise, including all merchandising channels, (i) when we believe disclosure to be appropriate to comply with any law, regulation, or government or law enforcement request or to comply with judicial process; or (ii) if such disclosure is necessary or appropriate to operate the Web Site and/or the overall business of the Company and its Affiliates; or (iii) to protect the rights or property of the Company, users of the Web Site, Affiliates, subscribers, customers, recipients, Sponsors, Providers, Licensors, or Merchants. Subject to the "Copyright Agent" provisions above, if notified of allegedly infringing, defamatory, damaging, illegal, or offensive Content, the Company may investigate the allegation and determine in its sole discretion whether to remove or request the removal of such Content from the Web Site.

The Company reserves the right to prohibit or remove conduct, communication, or Content (including User Submissions) that it deems in its sole discretion to be harmful to users of the Web Site, subscribers, customers, recipients, Providers, Merchants, Sponsors, or Licensors, content or service providers, the Company or its Affiliates, or any rights of the Company or any third party, or to violate any applicable law. Notwithstanding the foregoing, neither the Company, nor its Affiliates, Providers, Merchants, Sponsors, or Licensors can ensure prompt editing or removal of questionable Content after online posting. Accordingly, neither the Company, nor its Affiliates, nor any of their respective officers, directors, employees, agents or employees, nor any Provider, Merchant, Sponsor, or Licensor shall assume liability for any action or inaction with respect to conduct, communication, or Content (including User Submissions) on the Web Site.

Online Conduct

Any conduct by you that in the Company's sole discretion restricts or inhibits any other user from using or enjoying the Web Site will not be permitted. You agree to use the Web Site in accordance with these Terms of Use and only for lawful purposes.

You agree that you will not use the Web Site to send unsolicited advertising, promotional material, or other forms of solicitation to other users, except in specified areas, if any, that are specifically designated for such a purpose. The provisions of these Terms of Use are for the benefit of the Company, its Affiliates and the Web Site Providers, Merchants, Sponsors and Licensors, and each shall have the right to assert and enforce such provisions directly against the violator on its own behalf.

Privacy Policy

We recognize and respect the importance of maintaining the privacy of our users, customers and subscribers and have established a privacy policy as a result. In our Privacy Policy, which constitutes part of these Terms of Use, we describe why we gather information from users, customers, and subscribers, what information we collect, how we collect it, what we use the information for and how you can instruct us if you prefer to limit the use of information about you. We encourage you to carefully read our Privacy Policy. To link to our Privacy Policy click below:

Your Privacy and Security

Loyalty Programs and Promotion Offers

From time to time, the Company and its Affiliates offer Loyalty Programs and Promotional Offers under various names to our customers, members, visitors and users. In addition to the terms and conditions set forth in the Terms of Use, these Loyalty Programs and Promotional Offers may be subject to their own specific and additional terms and conditions displayed on the marketing materials and also at www.freshrewards.com and www.freshgift.com. Please be sure you have read and understand all of the terms and conditions of the Loyalty Programs and Promotional Offers before you purchase any of the products or services offered in association with these Loyalty Programs and Promotional Offers.

Indemnity

You agree to indemnify, defend and hold harmless the Company, its Affiliates and any of their respective officers, directors, agent or employees, from and against any and all liability, claims, costs and expenses (including without limitation reasonable legal fees and expenses), brought by any third party alleging, arising, related or resulting from your use (or use by any third party using your account) of the Web Site in violation or breach of the Terms of Use.

Termination of Usage

The Company may terminate your access, or suspend your access to all or part of the Web Site, without notice, for any conduct that the Company, in its sole discretion, believes is a violation or breach of these Terms of Use, is in violation of any applicable law or is harmful to the interests of another user, customer, recipient, subscriber, a third-party Provider, Merchant, Sponsor, Licensor, content or service provider, the Company or its Affiliates.

Severability

If any term or other provision of these Terms of Use are deemed by a final court of competent jurisdiction to be invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other terms, conditions and provisions of this these Terms of Use shall nevertheless remain in full force and effect to the maximum extent permitted by law. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the court shall modify only the affected term, condition or provision to effect the original intent of the parties as closely as possible so that the contemplated transactions are fulfilled and the Company and its Affiliates are protected to the greatest extent possible.

Governing Law & Arbitration

The Web Site is controlled by the Company from its offices within the United States of America. The Company makes no representation that this Web Site or the Content is appropriate or available for use in other locations, and access to them from territories where Content is illegal is prohibited. Those persons and entities that choose to access this Web Site from other locations do so on their own initiative and are responsible for compliance with applicable local laws.

You agree that any and all claims, disputes, controversies, actions or proceedings relating to, or arising out of, the creation, production, manufacture, distribution, promotion, marketing, advertising (including oral and written statements), use of or sale of any and all products and services of the Company and its Affiliates, through all merchandising channels, including but not limited to, the internet, this Web Site, telephone, catalog, radio, television, mobile device and participating retail stores or the Content (collectively referred to as "Claims"), shall be governed by the internal substantive laws of the State of New York without regard to its conflict of laws principals and that any and all Claims shall be resolved exclusively by final and binding arbitration administered by the American Arbitration Association ("AAA") or by a state small claims court of competent jurisdiction over the Claim and the parties.

You agree that: (i) the arbitration shall be conducted before a single arbitrator pursuant to the applicable Rules and Procedures established by the AAA; (ii) the arbitration shall be held telephonically or at a location determined by the AAA pursuant to the Rules and Procedures of the AAA; (iii) the arbitrator shall have the authority to award actual damages only and no authority to issue any fines, penalties nor award punitive damages; (iv) EXCEPT AS SET FORTH BELOW IN SUBPART (vi), THERE SHALL BE NO RIGHT TO LITIGATE YOUR CLAIM IN COURT AND NO RIGHT TO A JURY TRIAL, (v) your claim shall be arbitrated on an individual basis, and that you shall not have the right to participate in a representative capacity, or as a member of any class of claimants pertaining to any Claim subject to arbitration, and that the arbitrator shall have no authority to consolidate or join the Claims of other persons or parties who may be similarly situated and may only resolve Claims, and render awards between you and the Company and its Affiliates alone; and (vi) you may elect to bring your Claim in a state small claims court of competent jurisdiction over the Claim and the parties. With the exception subpart (v) above, if any part of this arbitration provision is deemed invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures of the AAA, then same shall be stricken and the balance of this arbitration provision shall remain in effect and construed accordingly. For more information on the AAA and its Rules and Procedures, you may visit the AAA website at http://www.adr.org.

Acknowledgment and Changes

This Agreement represents the entire understanding between you and the Company regarding your relationship with the Company and supersedes any prior statements or representations. YOU AGREE TO BE BOUND BY THESE TERMS OF USE by accessing any areas of the Web Site, or using the telephone, catalog, radio, television, mobile device and participating retail stores.

We reserve the right to change the Terms of Use at any time. If we make any change to the Terms of Use, we will post those changes on this, or any other appropriate page, and they will become effective upon the later of 1) the date specified by the Company, if any, or 2) the posting. By accessing the Web Site after changes are made to the Terms of Use and posted on the Web Site, you agree to be legally bound and to abide by the amended terms.

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