This Fresco Market User Agreement ("Agreement") is between Fresco Market California corporation Fresco Market and the person, or the entity represented by the person, who is using this website ("Website"), referred to as "you," "your" or "yours." This Agreement describes the terms under which you may use this Website. By continuing on with this Website via reading its content and clicking through its pages, you are agreeing to comply with and be bound by all the terms of this Agreement.
YOU REPRESENT THAT YOU ARE A NATURAL PERSON OVER EIGHTEEN (18) YEARS OF AGE. YOU FURTHER REPRESENT THAT YOU RESIDE IN THE UNITED STATES OF AMERICA, THAT YOU MAY LEGALLY ENTER INTO THIS AGREEMENT AND THAT YOU AGREE WITH ALL THE TERMS OF THIS AGREEMENT.
ARTICLE I. USE OF THE WEBSITE.
A. Content and Trademarks. The Website contains many features, including the capability to download certain artistic and photographic content ("Content"), and also artwork containing Fresco Market trademarks and service marks ("Trademarks"). Fresco Market allows you to download such Content and Trademarks only as follows, and under no other terms, express or implied:
1. Content. Content may be downloaded only in the following capacity: (A) you are a writer, blogger or journalist; or (B) you are an educator or student. In each case, you may use and distribute Content solely: (X) in or together with articles or other materials created by you, and in no event separately; (Y) in or together with educational or academic materials created by you, and in no event separately; and (Z) with proper identification, notices and ownership attribution as required by Fresco Market.
2. Trademarks. You may download Trademarks only if: (A) you are a writer, blogger or journalist; or (B) you are an educator or student. In each case, you may use the Trademarks: (X) in or together with articles or other materials created by you, and in no event separately; (Y) in or together with educational or academic materials created by you, and in no event separately; and (Z) with proper identification, notices and ownership attribution as required by Fresco Market. Vendors who seek use of the Fresco Market logo should contact the Fresco Market Marketing Department. YOU UNDERSTAND AND AGREE THAT YOU SHALL NOT USE THE TRADEMARKS ON OR WITH ANY GOODS OR SERVICES, AND SHALL NOT USE THE TRADEMARKS TO INDICATE THE SOURCE OF ANY GOODS OR SERVICES. YOU FURTHER AGREE NOT TO ALTER THE TRADEMARKS IN ANY WAY – FOR EXAMPLE, BY CHANGING THE COLORS OR DIMENSIONS OF THE Fresco Market LOGO. If so required by Fresco Market, you shall use the Trademarks only together with such notices of ownership as Fresco Market may from time to time require, including without limitation the ® or the ™ symbols.
3. Scope. You understand and agree that the rights granted herein are fully revocable by Fresco Market upon notice. If Fresco Market revokes your rights, or terminates this Agreement, your rights with respect to Content and Trademarks are hereby immediately terminated. In such case, you shall immediately cease any use, copying or distribution of the Content or Trademarks, you shall promptly remove Content and Trademarks from any materials in your possession or control, and you shall promptly confirm to Fresco Market in writing that you have done all of the foregoing.
ARTICLE II. LIMITATIONS.
Your use of the Website must conform to the following:
A. You will not redistribute any part of the Website or any materials appearing on or visible through the Website (including without limitation any Content or Trademarks), except as otherwise expressly permitted by this Agreement.
B. You will not change, remove or add to any part of the Website.
C. You agree that your use of the Website shall be for your own personal, non-commercial use, except as otherwise expressly permitted by this Agreement.
D. Unless you operate a legitimate internet search engine, you agree not to use or launch any automated system, including without limitation, "robots," "spiders," or other automated programs to access the Website. You will not obtain or attempt to obtain any personally identifiable information from any other users or third parties from the Website.
E. You agree that Fresco Market may add to, delete from or modify the Website at any time without notice and without permission from you or any third party.
F. You agree that the Content and Trademarks are owned by or licensed to Fresco Market, subject only to the rights expressly granted to you in this Agreement. There are no implied rights or licenses in this Agreement.
G. You agree not to circumvent, disable or otherwise interfere with security-related features of the Website, and you will not impersonate any third party or interfere with any third party's use of the Website.
H. You understand and agree that when using the Website you may be exposed to information from a variety of sources, and that Fresco Market is not responsible for the accuracy, content, usefulness, safety, or intellectual property rights of or relating to such information. You agree to defend, indemnify and hold harmless Fresco Market, its officers, directors, employees and agents, from and against any and all claims, damages, threats, suits, proceedings, losses and liabilities (including attorneys' fees) arising from or related to: (i) your use of and access to the Website; (ii) your violation of this Agreement; or (iii) your violation of any third party right, including without limitation any copyright, property or privacy right. This defense and indemnification obligation will survive the expiration or termination of this Agreement.
ARTICLE III. CONTENT AND DMCA.
B. The Digital Millennium Copyright Act (DMCA).
1. Notices. If you are a copyright owner or an agent thereof and believe that any portion of this Website (including any Content) infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act by providing Fresco Market Copyright Agent (identified below) with the following information in writing:
a. A signature (physical or electronic) of a person authorized to act on behalf of the owner of the work that is allegedly infringed;
b. Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are the subject of a single notification, a representative list of such works at the Website;
c. 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 Fresco Market to locate the material;
d. Information (such as an address, telephone number or email address) to permit Fresco Market to contact you;
e. A statement that you have 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
f. A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
2. Copyright Agent. The designated Copyright Agent to receive notifications of claimed infringement for Fresco Market is: firstname.lastname@example.org. Only claimed infringement notifications may be sent to the Copyright Agent.
ARTICLE IV. CONDUCT.
You understand and agree that perfect security does not exist anywhere, and you will therefore protect your personal information in a reasonable way at all times.
ARTICLE V. TERM.
The term of this Agreement will continue until terminated by you or Fresco Market. You or Fresco Market may terminate this Agreement at any time and for any reason or no reason.
ARTICLE VIII. LIMITATION OF LIABILITY.
IN NO EVENT SHALL FRESCO MARKET BE LIABLE TO YOU OR ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER AND WHEREVER ARISING. IN NO EVENT SHALL THE TOTAL LIABILITY OF FRESCO MARKET UNDER THIS AGREEMENT OR REGARDING THE WEBSITE EXCEED FIVE HUNDRED DOLLARS ($500). Some jurisdictions do not allow certain limitations of damages so the foregoing may not apply to you.
ARTICLE IX. ARBITRATION, JURISDICTION AND VENUE.
A. Arbitration. You agree that any dispute, controversy or claim arising out of, or relating to, this Agreement shall be settled by confidential arbitration in Santa Clara County, California, in accordance with the American Arbitration Association's ("AAA") Commercial Arbitration Rules (including without limitation the Supplementary Procedures for Consumer-Related Disputes) then in effect. A single arbitrator with knowledge of electronic commerce will conduct the arbitration and that arbitrator may grant injunctions or other relief in such dispute or controversy. The parties will mutually agree upon such arbitrator, but if the parties have not agreed on an arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, the AAA will select the arbitrator from its list of commercial arbitrators. The arbitrator will conduct a single hearing no longer than one (1) day in duration for the purpose of receiving evidence and will render a decision within fifteen (15) days after the conclusion of the hearing. The decision of the arbitrator will be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator's decision in any State or Federal court. The cost of the arbitrator shall be shared equally, and all other expenses of arbitration will be paid by the party who incurred them. You further agree that you will not participate in any way in any class action in connection with any such dispute, controversy or claim, either as a class representative plaintiff or as a member of a putative class.
B. Jurisdiction and Venue. This Agreement provided hereunder will be governed by the laws of the State of California, without regard to any laws that would direct the choice of another state's laws and, where applicable, to be governed by the federal laws of the United States. Subject to Section IX(A) (which provides for arbitration of claims between you and Fresco Market to the maximum extent possible), you irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the federal or state courts in the State of California for any dispute or litigation arising out of, or relating to, the use of this Website, and you waive any objection to the laying of venue of any such litigation in California courts and agree not to claim that such litigation brought therein has been brought in an inconvenient forum; in other words, if you and Fresco Market have a dispute, you agree to resolve it in an California court. The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed.
ARTICLE X. DISCLAIMER.
FRESCO MARKET PROVIDES THE WEBSITE AND ALL GOODS AND SERVICES ON AN "AS IS" BASIS, WITHOUT ANY WARRANTY. FRESCO MARKETHEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY, ARISING FROM COURSE OF DEAL, USAGE OR TRADE, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR TITLE.
ARTICLE XI. GENERAL.
Neither this Agreement, nor any rights hereunder, may be assigned by operation of law or otherwise, in whole or in part, by you without the prior, written permission Fresco Market. Any purported assignment without such permission shall be void. This Agreement may be assigned by Fresco Market in whole or in part without notice. Any waiver of any rights of Fresco Market under this Agreement must be in writing, signed by Fresco Market, and any such waiver shall not operate as a waiver of any future breach of this Agreement. In the event any portion of this Agreement is found to be illegal or unenforceable, such portion shall be severed from this Agreement, and the remaining terms shall be separately enforced. Your use of the Website shall at all times comply with all applicable laws, rules and regulations. This Agreement is the entire agreement between the parties with respect to this subject matter, and supersedes any and all prior or contemporaneous or additional communications, negotiations or agreements with respect thereto. You will indemnify and hold Fresco Market, (and Fresco Market officers, directors, agents, subsidiaries, joint ventures, licensees and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or regulation, or the rights of any third party. You agree that: (i) the Website shall be deemed solely located in California; and (ii) the Website is and shall be deemed a passive website that does not give rise to personal jurisdiction over Fresco Market, either specific or general, in jurisdictions other than California.
YOU AND FRESCO MARKET AGREE THAT ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Fresco Market and the Fresco Market logo are trademarks of Fresco Market, a California corporation, and may not be used without prior written permission. If you have any questions or comments about Fresco Market or this Agreement, you may contact Fresco Market at:
2217 Quimby Road
San Jose, CA 95122