By using the Site, you agree to be bound by these Terms of Use for the Site (the “Terms”), including the Privacy Policy and all other terms and policies referenced or hyperlinked herein. Please read these Terms carefully before accessing or using our website (the “Site”), which is operated by FreshGains, LLC (“FreshGains,” “we”, “us” and “our” refer to FreshGains, LLC). FreshGains offers this Site, including all information, tools, products, and services available from this Site or any part or content thereof (the “Services”) to you, the user, whether a browser, vendor, customer, merchant, content contributor, or otherwise, and your use conditioned upon your acceptance of these Terms. If you do not agree to all the Terms, then you may not access or use the Site or Services.
Automattic, INC. (“WordPress”) hosts our online store and provides the online ecommerce platform to sell products and services to you. Any interaction with the WordPress platform subjects you the Terms set forth by WordPress.
SECTION 1 – YOU REPRESENT THAT YOU ARE THE AGE OF MAJORITY
You represent that you are at least the age of majority in your state or province of residence, or that you are the age of majority in your state or province of residence and you have given us your consent to allow any of your minor dependents to use this Site.
SECTION 2 – SERVICES
We reserve the right to refuse Service to anyone for any reason at any time. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without express written permission by us. You understand that your content (not including credit card information), may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices. We encrypt your credit card information during transfer over networks, if any.
SECTION 3 – ACCURACY, COMPLETENESS AND TIMELINESS OF INFORMATION
We are not responsible if information made available on this Site is not accurate, complete, or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk and such information is provided by us and accepted by you AS IS AND WHEREAS. This Site may contain certain historical information, which is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site.
SECTION 4 – MODIFICATIONS TO THE SERVICE AND PRICES
Prices for our products are subject to change without notice. We reserve the right at any time to modify or discontinue the Service without notice. We are not liable to you or to any third party for any modification, price change, suspension, or discontinuance of the Service.
SECTION 5 – PRODUCTS OR SERVICES
Certain products or services may be available exclusively online through the Site. These products or services may have limited quantities and are subject to return or exchange only according to our Return Policy. We have made every effort to display as accurately as possible the colors and images of our products that appear at the store. We cannot guarantee that your computer monitor’s display of any color will be accurate. We may limit or discontinue any product or service at any time, including the sale of our products or Services to any person, geographic region, or jurisdiction. We reserve the right to limit the quantities of any products or services that we offer. All descriptions of products or product pricing are subject to change without notice at our sole discretion. Any offer for any product or service made on this site is void where prohibited.
We may refuse any order you place with us, or limit or cancel quantities purchased per person, per household, or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, or orders that use the same billing or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the email or billing address/phone number provided at the time the order was made. We may limit or prohibit orders that, in our sole judgment, appear to be placed by dealers, resellers or distributors.
SECTION 6 – ACCURACY OF BILLING AND ACCOUNT INFORMATION
You agree to provide current, complete, and accurate purchase and account information for all purchases made at our store. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
For more detail, please review our Returns Policy.
SECTION 7 – OPTIONAL TOOLS
We may provide you with access to third party tools over which we neither monitor nor have any control nor input. You acknowledge and agree that we provide access to such tools ”AS IS” and “AS AVAILABLE” without any warranties, representations, or conditions of any kind and without any endorsement. We shall have no liability whatsoever arising from or relating to your use of optional third party tools. Any use by you of optional tools offered through the Site is entirely at your own risk and discretion and you should ensure that you are familiar with and approve of the terms on which tools are provided by the relevant third party provider(s). We may also, in the future, offer new services or features through the site (including, the release of new tools and resources). Such new features or services shall also be subject to these Terms.
SECTION 8 – THIRD PARTY LINKS
Certain content, products, and services available via our Service may include materials from third parties. Third party links on this Site may direct you to third party websites that are not affiliated with us. We are not responsible for examining or evaluating the content or accuracy, and we do not warrant and will not have any liability or responsibility for any third party materials or websites, or for any other materials, products, or services of third parties.
We are not liable for any harm or damages related to the purchase or use of goods, services, resources, content, or any other transactions made in connection with any third party websites. Please review carefully the third party’s policies and practices and make sure you understand them before you engage in any transaction. Complaints, claims, concerns, or questions regarding third party products should be directed to the third party.
SECTION 9 – USER CONTENT AND MATERIAL
We do not claim ownership of user-generated content and material. Any and all photographs, articles, images, graphics, videos, sounds, music, audio recordings, text, files, profiles, communications, comments, feedback, suggestions, ideas, concepts, questions, data or other content that you (i) submit or post on the Site, on any of our blogs, social media accounts or through tools or applications we provide for posting or sharing such content with us; or (ii) have posted or uploaded to your social media accounts, including but not limited to Instagram, Twitter, Facebook, TikTok, Snapchat, YouTube, Reddit, Tumblr and Pinterest, which are tagged with #FRESHGAINS, #FRESHGAINS, or any other FreshGains-promoted hashtag or similar social media tag (collectively “User Content”) shall be deemed non-confidential and non-proprietary. By submitting or posting any User Content, you grant to FreshGains and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sub-licensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the User Content. We will be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including but not limited to developing, manufacturing and marketing products that incorporate or otherwise rely upon such information. We shall have no obligation to monitor User Content, use or display User Content, compensate you for submitting User Content or respond to any User Content. We retain the right, in our sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the User Content. By submitting or posting User Content on the Site, on your social media accounts or through any tools or applications we provide for posting or sharing your User Content with us, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by us, you will furnish us any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the User Content and you hereby agree to indemnify and hold us and our affiliates, and our and our affiliates’ respective officers, directors, members, managers, employees, agents, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party. We do not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by you or anyone else. By submitting or posting the User Content you fully and unconditionally release and forever discharge us and our affiliates, as well as our and our affiliates’ respective members, managers, officers, directors, employees, licensees, and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and one or more users or any other person or entity, or (ii) the use by us or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that we have no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. We act as a passive conduit for User Content and have no obligation to screen or monitor User Content. If we become aware of any User Content that allegedly may not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to take action in accordance with these Terms. We have no liability or responsibility to Users for performance or nonperformance of such activities. WE HAVE THE ABSOLUTE RIGHT TO REMOVE AND/OR DELETE WITHOUT NOTICE ANY USER CONTENT WITHIN OUR CONTROL THAT WE DEEM OBJECTIONABLE. YOU CONSENT TO SUCH REMOVAL AND/OR DELETION AND WAIVE ANY CLAIM AGAINST US FOR SUCH REMOVAL AND/OR DELETION. WE ARE NOT RESPONSIBLE OR LIABLE FOR FAILURE TO STORE POSTED CONTENT OR OTHER MATERIALS YOU TRANSMIT THROUGH THE SITE OR ANY OTHER SITES OR PLATFORMS. YOU SHOULD TAKE MEASURES TO PRESERVE COPIES OF ANY DATA, MATERIAL, CONTENT OR INFORMATION YOU POST ON THE SITE OR ANY OTHER SITES OR PLATFORMS.
SECTION 10 – PERSONAL INFORMATION
Your submission of personal information through the store is governed by our Privacy Policy.
SECTION 11 – ERRORS, INACCURACIES AND OMISSIONS
Occasionally there may be information on our site or in the Service that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, promotions, offers, product shipping charges, transit times, and availability. We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information or cancel orders if any information in the Service or on any related website is inaccurate at any time without prior notice (including after you have submitted your order). We undertake no obligation to update, amend, or clarify information in the Service or on any related site, including without limitation, pricing information, except as required by law.
SECTION 12 – PROHIBITED USES
In addition to other prohibitions set forth in the Terms, you are prohibited from using the Site or its content: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate our intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Service or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Service or any related website, other websites, or the Internet. We reserve the right to terminate your use of the Service or any related website for violating any of the prohibited uses.
SECTION 13 – DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
THE PRODUCTS AND SERVICES ON THIS SITE ARE PROVIDED “AS IS WHERE AS.” FRESHGAINS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY, OR VIOLATION OF ANY OTHER RIGHT.
We do not warrant that the quality of any products, services, information, or other material purchased or obtained by you will meet your expectations, or that any errors in the Service will be corrected. We do not guarantee, represent or warrant that your use of our Service will be uninterrupted, timely, secure or error-free. We do not warrant that the results that may be obtained from the use of the Service will be accurate or reliable. You agree that from time to time we may remove the service for indefinite periods of time or cancel the service at any time, without notice to you.
You expressly agree that your use of, or inability to use, the Service is at your sole risk. The Service and all products delivered to you through the Service are (except as expressly stated by us) provided ‘AS IS’ and ‘AS AVAILABLE’ for your use, without any representation, warranties, or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, or non-infringement.
In no case shall FreshGains, our directors, officers, employees, affiliates, agents, contractors, interns, suppliers, service providers, or licensors be liable for any injury, loss, claim, or any direct, indirect, incidental, punitive, special, or consequential damages of any kind, including, without limitation lost profits, lost revenue, lost savings, loss of data, replacement costs, or any similar damages, whether based in contract, tort (including negligence), strict liability or otherwise, arising from your use of any of the Service or any products procured using the Service, or for any other claim related in any way to your use of the Service or any product, including, but not limited to, any errors or omissions in any content, or any loss or damage of any kind incurred as a result of the use of the Service or any content (or product) posted, transmitted, or otherwise made available via the Service, even if advised of their possibility. Because some states or jurisdictions do not allow the exclusion or the limitation of liability for consequential or incidental damages, in such states or jurisdictions, our liability shall be limited to the maximum extent permitted by law.
SECTION 14 – INDEMNIFICATION
You agree to indemnify, defend, and hold harmless FreshGains and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, arising out of your breach of these Terms or your violation of this Agreement or any law or the rights of a third party.
SECTION 15 – SEVERABILITY
In the event that any provision of these Terms is determined to be unlawful, void, or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law or the unenforceable portion shall be deemed to be severed from these Terms. Any such determination will not affect the validity and enforceability of any other remaining Terms.
SECTION 16 – TERMINATION
For any transaction or Service performed, the obligations and liabilities of You and Us according to these Terms at the time of the transaction shall apply. These Terms will survive the termination of this agreement by either you or us. You may cease using our Site at any time, and we may terminate or deny your access to the Services without notice; however, you will remain liable for all Services and amounts due through the date of termination.
SECTION 17 – ENTIRE AGREEMENT
The failure of us to exercise or enforce any right or provision of these Terms shall not constitute a waiver of such right or provision. These Terms and any policies or operating rules posted by us on this Site constitute the entire agreement and understanding between you and us and govern your use of the Service, superseding any prior or contemporaneous agreements, communications and proposals, whether oral or written, between you and us (including, but not limited to, any prior versions of the Terms). Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party. The headings used in this agreement are included for convenience only and will not limit or otherwise affect these Terms.
SECTION 18 – GOVERNING LAW
These Terms are governed by and construed in accordance with the laws of the Commonwealth of Kentucky, including the Section 20 – Dispute Resolution and Arbitration.
SECTION 19 – CHANGES TO TERMS
You can review the most current version of the Terms at any time at this page. We reserve the right, at our sole discretion, to update, change or replace any part of these Terms by posting updates and changes to our Site. It is your responsibility to check our Site periodically for changes. Your use of or access to our site or the Service following the posting of any changes to these Terms constitutes acceptance of those changes.
SECTION 20 – DISPUTE RESOLUTION AND ARBITRATION
Any party with a dispute related to the Products or Services shall send notice to the Company by electronic mail to hello@freshgains.com and allow 15 days for a response. If a compromise cannot be reached and the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to these Terms shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator, unless the claim amount exceeds $50,000, in which case the dispute shall be heard by a panel of three arbitrators. The arbitration shall be governed by the laws of the Commonwealth of Kentucky. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential or incidental damages in any arbitration initiated under this section. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
SECTION 21 – CLASS ACTION WAIVER
YOU AGREE THAT ANY CLAIM YOU MAY HAVE AGAINST FRESHGAINS SHALL BE BROUGHT INDIVIDUALLY THROUGH ARBITRATION CONDUCTED PURSUANT TO SECTION 20 AND YOU SHALL NOT JOIN ANY ACTION WITH CLAIMS OF ANY OTHER PERSON OR ENTITY OR BRING, JOIN, OR PARTICIPATE IN A CLASS ACTION SUIT AGAINST FRESHGAINS.
SECTION 22 – MOBILE TERMS OF SERVICE
If you elect to receive marketing and support text messages from us, either via our website or by sending a text message indicating your consent, you are providing your prior express written consent to receive recurring marketing or promotional and support text messages from us (each, a “Text Message”) sent through an automatic telephone dialing system. These may include cart abandon messages. Message frequency varies. This service is optional and is not a condition for purchase. You can opt out of receiving any further Text Messages from us at any time by replying “STOP” to any Text Message you receive from us. For help, reply “HELP” to any Text Message you receive from us or email textsupport@wunderkind.co.
In addition to any fee of which you are notified, your mobile provider’s message and data rates may apply to our confirmation Text Message and all subsequent Text Message correspondence according to your individual rate plan provided by your wireless carrier. Please consult your mobile service carrier’s pricing plan to determine the charges for browsing data and sending and receiving Text Messages.
Under no circumstances will we or our affiliates be responsible for any Text messaging or wireless charges incurred by you or by a person that has access to your wireless device or telephone number. If your carrier does not permit Text messages, you may not receive the Text Messages. Neither we nor the wireless carriers (such as T-Mobile) will be liable for any delays in the receipt of, or failure to deliver, any Text Messages, as delivery is subject to effective transmission from your network operator.
Text Message services are provided on an “AS IS” basis. Data obtained from you in connection with any Text Message services may include your cell phone number, your provider’s name and the date, time and content of your text messages. We may use this information in accordance with our Privacy Policy to contact you and to provide the services you request from us. For more information on how we use telephone numbers, please read our Privacy Policy.
SECTION 23 – CONTACT INFORMATION
Questions about the Terms should be sent to us at hello@freshgains.com
