Terms of Use

TERMS OF USE AGREEMENT

Last Updated: January 13, 2017

This Terms of Use Agreement is a legal agreement between The Fresh Market, Inc. (“The Fresh Market”) and you and, together with the Privacy Policy (collectively, these “Terms”), governs your access to and use of the website at www.thefreshmarket.com and its associated subdomains (the “Site”). By accessing the Site you agree to be bound by these Terms. These Terms constitute the sole and entire agreement between you and The Fresh Market with respect to the Site and supersede all prior and contemporaneous understandings, agreements, representations, warranties, and covenants, both written and oral, with respect to the Site.

The Fresh Market may change these Terms periodically in its sole discretion. If The Fresh Market revises these Terms, The Fresh Market will post such revised Terms to the Site, and such revised Terms shall be effective immediately upon such posting. Your continued use of the Site after The Fresh Market posts such revised Terms constitutes acceptance of such revised Terms.

The Site is only available to users who are 13 years of age or older. By accessing or using the Site, you represent and warrant that you are 13 years of age or older.

You may use the Site for personal, non-commercial use only.

The Site is available for use only by persons located in the United States. The Fresh Market makes no claims that the Site or any of the Content (as defined below) are accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own risk and are responsible for compliance with applicable laws.

Subject to the terms and conditions of these Terms, you may access and use the Site for your personal, noncommercial use. The Fresh Market reserves the right to withdraw or amend the Site or any portion thereof, in its sole discretion without notice. The Fresh Market shall not be liable if for any reason all or any portion of the Site is unavailable at any time or for any period. From time to time, The Fresh Market may restrict access to some or all of the Site.

1. What You Can Expect – Shopping & Delivery

The Site allows you to purchase a variety of food and food-related items. When you order from the Site, The Fresh Market’s employees will shop and prepare your order for delivery. Prices of items sold in the store may vary from those items sold on the Internet. Delivery will be made by the U.S. Postal Service, Federal Express, or UPS, depending on the shipping option you select. The delivery will be made at the delivery address you specify in your order. Payment must be made at the time you place the order. The Fresh Market shall not be liable, and you agree not to hold The Fresh Market or its employees responsible, for any damage or theft that occurs during delivery.

You acknowledge that The Fresh Market may, prior to delivery, modify, cancel or ship only portions of the product(s) that you order. The Fresh Market will try to notify you of any such changes.

With standard delivery, The Fresh Market endeavors to ship the next business day, with orders arriving in 7-10 business days to most locations.

2. Privacy and Your Personal Information

Privacy Policy: All information The Fresh Market collects through the Site is subject to The Fresh Market’s Privacy Policy. By using the Site, you consent to all actions taken by The Fresh Market with respect to your information in compliance with The Fresh Market’s Privacy Policy.

Email Communications: We may email you about the orders you place on the Site. You may also receive occasional email communications regarding the Site, partner offers, special offers or services, products or newsletters. You may choose to stop receiving these emails by following the instructions in such emails.

3. Registration

Registration is necessary to enjoy all of our products and services and to enhance your online shopping experience. For orders, we request you provide contact information (including your name, billing address, telephone number and email address, and the name and shipping address of the recipient) and financial information (including credit card number and expiration date). This information is used for billing purposes and to fill your orders. If we have trouble processing an order, we will use this contact information to get in touch with you. It is a condition of your access to or use of the Site that all information you provide to The Fresh Market is correct, current, and complete. More information on how to register will be coming soon.

Upon registration, you will be issued a customer identification number and password (your “Credentials”). You must treat your Credentials as confidential, and you must not disclose your Credentials to any other individual or entity. You acknowledge that your account is personal to you and agree not to provide your Credentials to any other person. You agree to notify The Fresh Market promptly of any unauthorized use of your Credentials or any other breach of security. You will remain liable for any unauthorized use of the Site using your Credentials until you notify The Fresh Market of such unauthorized use.

4. Fees, Payment and Access

You are responsible for, and agree to pay promptly, all charges, including applicable taxes and purchases by you or anyone you allow to use your Credentials, including your family, friends or other customers. You shall be responsible and liable for any fees, including attorneys' fees and collection costs, that The Fresh Market may incur in its efforts to collect any unpaid balances from you. Your right to use the Site is also subject to limits established by your credit card issuer.

5. Your Conduct

You agree to use the Site and any Content (as defined below) only for your personal purposes. Except as otherwise expressly stated in these Terms, you may not alter, modify, copy, distribute (for compensation or otherwise), transmit, publicly display, publicly perform, reproduce, reuse, post, republish, license, frame, download, store for subsequent use, create derivative works of, transfer, or sell any of the Content, in whole or in part, without The Fresh Market’s prior written authorization. Any unauthorized use of the Content is a breach of these Terms and may violate United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. If you use any of the Content without authorization, or beyond the scope of your authorization, your right to access and use the Site shall immediately terminate. You may use downloaded material only for your personal use. You may not engage in any conduct or action that is prohibited by law or violates any country, federal, state or local laws.

Any news services, nutritional information, quotes or other content on the Site are provided for informational purposes only. The Fresh Market shall not be responsible or liable for the accuracy, usefulness or availability of any information transmitted or made available via the Site.

6. Termination

The Fresh Market may suspend or terminate your ability to access or use the Site at any time for any reason with or without notice to you.

7. Ownership and Trademarks

Except as otherwise expressly stated, all content, features, and functionality included in or accessible through the Site (including, without limitation, all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, the “Content”) is owned by The Fresh Market, its licensors, or other third-party content providers, and such Content is protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. All rights not expressly granted in these Terms are expressly reserved.

All registered and/or unregistered trademarks and/or service marks (collectively, “Marks”) used or referred to on the Site are the property of The Fresh Market or its licensors, unless otherwise noted. You may not use, copy, reproduce, republish, upload, post, transmit, distribute or modify these Marks in any way without The Fresh Market’s prior written permission. The use of The Fresh Market’s Marks on any other website, without authorization, is prohibited.

8. Links to Third Party Sites

The Site may contain links to third-party websites, which are not under the control of The Fresh Market. The Fresh Market makes no representations whatsoever about any other website to which you may have access through the Site. When you access another website, you do so at your own risk and acknowledge that The Fresh Market is not responsible or liable for any content, advertising, products or other materials available from such third party websites. You also agree that The Fresh Market shall not be liable for any loss or damage of any sort incurred as the result of using any third party’s website. Mention of third-party companies and websites on the Site is for informational purposes only and does not constitute an endorsement or recommendation.

You may link to the homepage of the Site, provided you do so in a way that is fair and legal and does not damage The Fresh Market’s reputation. You may not establish a link to the Site in such a way as to suggest any form of association, approval, or endorsement on The Fresh Market’s part. You agree to cooperate with The Fresh Market in preventing or ceasing any unauthorized framing or linking. The Fresh Market reserves the right to withdraw linking permission without notice.

9. Limitation of Liability

NEITHER THE TFM RELATED PARTIES NOR THEIR RESPECTIVE SUPPLIERS SHALL BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, DIRECT, INDIRECT, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES, ARISING FROM YOUR USE OF, OR INABILITY TO USE, THE SITE, THE INTERNET OR FOR ANY OTHER CLAIMS RELATED IN ANY WAY TO YOUR RELATIONSHIP WITH THE FRESH MARKET. THE TFM RELATED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY INTERCEPTION OF ONLINE COMMUNICATIONS, SOFTWARE OR HARDWARE PROBLEMS (INCLUDING, WITHOUT LIMITATION, VIRUSES, LOSS OF DATA, OR COMPATIBILITY CONFLICTS), OR OTHER CONSEQUENCE BEYOND THE REASONABLE CONTROL OF THE FRESH MARKET. THE TFM RELATED PARTIES’ COLLECTIVE LIABILITY IS LIMITED TO THE LESSER OF (A) CREDITING YOUR ACCOUNT FOR PRODUCTS SOLD BY THE FRESH MARKET AND RETURNED BY YOU, OR (B) FIFTY DOLLARS ($50). THIS LIMITATION IS SUBJECT TO THE PROVISIONS OF ANY APPLICABLE LAW THAT MAY RESTRICT ITS SCOPE.

10. Disclaimer of Warranties

PURCHASING FROM THE FRESH MARKET AND USE OF THE SITE AND THE INTERNET IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS PROHIBITED BY APPLICABLE LAW, THE SITE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, THE FRESH MARKET DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO THE AVAILABILITY, ACCURACY OR CONTENT OF INFORMATION, PRODUCTS OR SERVICES, THAT THE SITE (AND YOUR ACCESS TO OR USE OF THE SITE) IS OR WILL BE SECURE, PRIVATE, ERROR-FREE, UNINTERRUPTED, COMPLIANT WITH LAW, FREE OF HARMFUL OR OFFENSIVE CONTENT OR COMPONENTS, OR INTEROPERABLE WITH ANY THIRD-PARTY DEVICE, CONTENT, OR SERVICE, AND ALL WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FRESH MARKET DOES NOT WARRANT THAT THE FUNCTIONS PROVIDED BY THIS WEB SITE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE WEB SITE OR THE SERVER THAT MAKES IT AVAILABLE IS FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. The information presented on or through the Site is made available solely for general information purposes. The Fresh Market does not represent, warrant, or covenant to the accuracy, completeness, or usefulness of such information. Any reliance you place on such information is strictly at your own risk. The Fresh Market disclaims all liability or responsibility arising from your reliance on such materials. The Site may include content provided by third parties, including materials provided by other users, third-party licensors, syndicators, aggregators, or reporting services. All statements or opinions expressed in such content are solely the opinions and the responsibility of the third party providing such materials. Such materials do not necessarily reflect the opinion of The Fresh Market. The Fresh Market is not responsible or liable to you or any third party for the content or accuracy of any materials provided by any third parties.

11. Indemnification

You agree, at your expense, to indemnify, defend and hold harmless the TFM Related Parties from and against any judgment, losses, deficiencies, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) incurred in connection with or arising from any claim, demand, suit, action or proceeding arising out of your breach of these Terms or in connection with your use of the Site or any product or service related thereto, including, without limitation, your User Contributions and any use of the Content.

12. Arbitration and Governing Law

These Terms and the relationship between you and The Fresh Market shall be governed by and construed in accordance with the laws of the state of North Carolina.

Any controversy or claim arising out of or relating to these Terms or relating to use of the Site and the Content shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

This Section 12 of these Terms will survive the termination of your relationship with The Fresh Market. The Fresh Market’s affiliates and third-party providers are third-party beneficiaries to these Terms (and may enforce any of the provisions and protections hereof, including, without limitation, the foregoing arbitration provision).

THIS SECTION 12 LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN THE AMERICAN ARBITRATION ASSOCIATION’S COMMERCIAL ARBITRATION RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF. OTHER RIGHTS THAT YOU OR THE FRESH MARKET WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

Any legal action or proceeding arising out of or related to your access to or use of the Site or these Terms, except where such legal action or proceeding is submitted to arbitration as described above, shall be instituted exclusively in the applicable state or federal courts of the State of North Carolina, and you agree and hereby submit to the exclusive personal jurisdiction and venue thereof. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR YOUR ACCESS TO OR USE OF THE SITE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. AFTER SUCH PERIOD, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

13. Waiver/Severability

The waiver by either party of a breach or right under these Terms will not constitute a waiver of any subsequent breach or right. If any provision of these Terms is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms, which will otherwise remain in full force and effect.

14. Reservation of Rights

Any rights not expressly granted herein are reserved.

15. Contact The Fresh Market

If you have any questions or concerns about these Terms, please email The Fresh Market at CustomerServiceForms@thefreshmarket.net or write The Fresh Market at 628 Green Valley Road, Suite 500, Greensboro, NC 27408.

All notices of copyright infringement must be sent to The Fresh Market’s copyright agent at: The Fresh Market, Inc., 628 Green Valley Road, Suite 500, Greensboro, NC 27408 Attn: General Counsel. Telephone: (336) 272-1338. Email: LegalNotices@thefreshmarket.net. In accordance with the Online Copyright Infringement Liability Limitation Act of the DMCA, such notices must include the following information:

• Your physical or electronic signature; • Identification of the copyrighted work you believe to have been infringed, or if such notice involves multiple works on the Site, a representative list of such works; • Identification of the material you believe to be infringing in a sufficiently precise manner to allow The Fresh Market to locate such material; • Adequate information by which The Fresh Market can contact you (including your name, physical address, telephone number, and email address); • A statement that you have a good faith belief that use of such material is not authorized by the copyright owner, its agent, or the law; • A statement that the information in the written notice is accurate; and • A statement, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.