In order to use our Services, you must agree to these terms and conditions (“Terms“) when you sign-up or first log-in to use the Services. You also warrant that you have the authority to act on behalf of any person for whom you are using our Services and are taken to have agreed to these Terms on their behalf.
These Terms also apply when you access and use the Website, although some of the terms will not be relevant to you unless you use the Services, for example, section 7 ‘Fees and payments’ only applies when you use our Services. We have made it clear throughout these Terms which aspects apply to the Website and which apply to the Services. By accessing or using the Website you agree to be bound by these Terms.
These Terms incorporate all terms and conditions expressly referred to in them, such as the Special Conditions (see section 7 below). Please read them carefully.
We reserve the right to change these Terms from time to time by publishing changes on our Website. Any changes will apply from the date they are published or any later date specified when we publish the changes. You should check the Website regularly to review the current Terms, because they are binding on you. Your continued use of the Website or the Services means that you accept these Terms as changed.
If you do not agree to these Terms or any changes to them then you should stop using the Website and our Services, as applicable.
Any legal contract you enter into for the supply and purchase of services or products with another User through our Services is between you and the other User and is subject to the terms and conditions of sale you have agreed with that other User. We have no control over the acts, omissions, terms or conditions of that other User. We are not able to provide, and have no responsibility or liability for providing, any compensation to you on behalf of any other User. Any problem that you have with another User is a matter for resolution between you and that other User in accordance with the contractual relationship that you have with them.
If the address you used to register as a User is in the United Kingdom or the United States of America, then you acknowledge that our Website and Services are intended for business use only.
In these Terms, the following definitions apply.
“Customer User” means a User that uses our Services to buy products or services from a Supplier User. A Customer User may be a business or, except if you are in the United Kingdom or the United States of America, an individual.
“Intellectual Property Rights” means all and any patents, trade marks, service marks, registered designs, utility models, design rights, rights in inventions, trade secrets and other confidential information, know-how, business or trade names (including internet domain names and e-mail address names), copyright (including copyright in computer software and code, such as, for example, meta data), database rights, semi-conductor topographical rights, and all other intellectual and industrial property and rights of a similar or corresponding nature in any part of the world, whether registered or not or capable of registration or not, and including any right to apply for any of the foregoing rights and the right to sue for infringements of any of the foregoing rights.
“Services” means the software that we make available to you through our Website for publishing, ordering, invoicing, selling, purchasing and communicating about your, or other Users’, products and services for the food, beverage and flower industries, and all related documentation and services that we provide to you. The services will be different depending on whether you elect to use them as a Supplier User or a Customer User or both. The services will develop and change over time.
“Supplier User” means a business User in the food, beverage or flower industry that uses our Services to sell products or services.
“You“, “your” or “User” means any user that uses our Services and, depending on the context, includes any legal entity on whose behalf an individual uses our Services.
“We“, “us” or “our” means the applicable Fresho Party specified in section 13 below.
“Website” means our websites at fresho.com and fresho.com.au (as updated or changed from time to time), any other website that we operate or own and any application through which you access our website or Services.
Terms of permitted use: You are permitted to use the Website and Services, and to print and download extracts from the Website for your own personal, non-commercial use, for lawful purposes only and on the following basis:
(a) you must not use our Website or Services: (i) in any way that breaches any applicable local, national or international law or regulation; (ii) in any way that is unlawful or fraudulent or has any unlawful or fraudulent purpose or effect; (iii) to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam); or (iv) to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-bombs, keystroke loggers, spyware, adware or any other harmful programs or similar computer code designed to adversely affect the operation of any computer software or hardware;
(b) you must not misuse the Website or Services (including by hacking, reverse engineering or ‘scraping’);
(c) you must not access, without authority, interfere with, damage or disrupt: (i) any part of our Website or Services; (ii) any equipment, software or network relating to our Website or Services; and (iii) any equipment or network or software owned or used by any third party;
(d) you must not modify the digital or paper copies of any materials that you print in accordance with this section and you must not use any pictures, photographs or any other graphics, video or audio sequences in any way at all;
(e) you must ensure that our status as the author of the material on the Website is always acknowledged;
(f) you are not allowed to use any of the materials on the Website or the Website itself for commercial purposes without obtaining a licence from us to do so; and
(g) you are not allowed to use the Website or Services in any way that violates, breaches or infringes upon the Intellectual Property Rights of any other User or third party.
Your information: You are required to provide us with certain information in order to set up your account to use the Services. You must ensure that this information is accurate and complete, and must inform us of any changes to it. You acknowledge that we will use this information to give notices to you from time to time under section 12 below.
Login: You must keep your login to access your account confidential and secure. You are responsible for all use and activity carried out using your login regardless of whether you carried it out or authorised it. We are not responsible for unauthorised use of your login or access to your account. In limited circumstances we may provide your password to another User to facilitate the onboarding process, where you are a new User of the Services. We will always notify you that we are doing this to facilitate the onboarding, and advise you to change your password subsequently to prevent the other User from continuing to have access to your account.
Access: You are responsible for making all arrangements necessary for you to access the Website and our Services at your cost, including (without limitation) carrier charges for data, text messaging, wireless access and other services.
Authority: Where an individual uses the Services on your behalf, you represent they are acting with your authority and you indemnify us for any damage, loss, cost(s) (including in respect of any payment(s) due for goods or services ordered using the Services) or harm we may suffer due to a claim by another User or third party in connection with a breach of these Terms by that individual.
Your content: You are responsible for all content and material uploaded, generated, published or transmitted in connection with your account and must ensure that it is accurate and complies with all applicable laws, rules and regulations (including, without limitation, compliance with food labelling regulations). You must ensure that such content and material is not abusive or threatening and does not contain any defamatory material, infringe the Intellectual Property Rights, or any other rights, of any third party or otherwise cause injury to any third party.
Limitation on use: Without limiting the above, the Website may not be used to, and you must not, store, reproduce, distribute, publish, enter into a database, display, modify, create any derivative work from, transmit, exploit in any way or include in any public or private electronic retrieval system or service any part of the Website, without our prior written permission (which may be withheld in our sole and absolute discretion). In particular, but without limiting the foregoing, you must only use the Website and our Services for the intended purpose and you are prohibited from sharing or divulging the Website or Services, any Special Conditions that apply to you, any functionality of the Website or Services and any image or graphic derived from the Website or Services with any person, entity or organisation who or which is not a registered User of the Website and our Services.
Reservation of rights: Any rights not expressly granted in these Terms are reserved.
Modifications: We may modify the Services or the Website at any time for any reason and without notice to you and reserve the right to change or discontinue any aspect or functionality of the Services or the Website.
Removal of content: We may remove content that you upload, generate or publish using our Services (but have no obligation to do so) in our sole and absolute discretion.
Nothing shall affect, or grant any right to, any Intellectual Property Rights owned by and/or licensed to you or us prior to the commencement of the Services other than as expressly set out in these Terms.
All Intellectual Property Rights arising as a result of performance of the Services or use of the Website and associated documentation (including improvements and/or adjustments to the Services, the Website and associated documentation, and any of those suggested by or on behalf of you) shall vest in us, and all such rights to the extent owned by you (both existing and future) are assigned by you to us with full title guarantee. You shall at your cost take all such actions and execute such documents as are requested by us to give effect to this provision.
We grant you a royalty-free, revocable, non-exclusive licence to use our relevant Intellectual Property Rights solely for the purpose of you exercising your rights and/or performing your obligations under these Terms, subject at all times to your compliance with these Terms.
You grant us a royalty-free, perpetual, irrevocable, transferable and non-exclusive licence, with the right to grant sub-licences to third parties, to use your (and any of your third party licensor’s) applicable Intellectual Property Rights: (a) for the purpose of our exercising our rights and/or performing our obligations under these Terms; (b) to promote and market our Website and Services to Users and third parties; (c) to promote and market the Users and their services and products to other Users and third parties; (d) for research and development; (e) to undertake communications and surveys; and (f) to develop statistical information.
You warrant and represent that our use of your (and any of your third party licensor’s) Intellectual Property Rights licensed to us above, including any content which you upload, store or publish using the Services and the Website, shall not infringe the rights, including any Intellectual Property Rights, of any third party and you shall indemnify us in full against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of, or in connection with, the receipt, use or supply of your (and any of your third party licensor’s) Intellectual Property Rights.
Ownership of rights: We own or are licensed to use all the rights, title and interest in the Website and Services, including (without limitation) all Intellectual Property Rights. Unless otherwise stated, the copyright and other Intellectual Property Rights in the Website and Services, and in material published on it (including without limitation photographs and graphical images) are owned by us or our licensors. These works are protected by copyright laws and treaties around the world and all rights are reserved. For the purposes of these Terms, any use of extracts from the Website other than in accordance with this section 4 is prohibited. All content and functionality of the Website and Services is also subject to copyright, to which we own all the rights.
Survival: The obligations in this section 5 continue in full force and effect after the termination of these Terms.
Questions about our Services or the Website: Customer care is important to us. Our Customer Care team will try to assist you where possible if you have a problem with the use of the Services or the Website and you are unable to resolve the problem after using reasonable efforts to do so. You can contact our Customer Care team by emailing us at firstname.lastname@example.org.
Questions about your transactions: If you have a problem with a transaction that you have entered into or intend to enter into with another User using the Services, you should contact that other User directly to resolve the problem.
Fees: You must pay us the fees (“Fees“), if any, identified in the special conditions (“Special Conditions“) by the due date specified. We agree the Special Conditions with you when you register to use the Services and reserve the right to change them from time to time by email notice to you given in accordance with section 12 below. Your continued use of the Services means that you accept the Special Conditions as changed.
The amount of any payment that you charge or pay to another User via our Services is determined according to the contractual terms of the transaction that you agree directly with that other User.
Payment: We use the third party payment provider specified in section 13 below (“Payment Provider“) to provide payment processing services for Users. These payment processing services are provided subject to the agreement specified in section 13 below (“Connected Account Agreement“). If you are a Supplier User, by agreeing to these Terms, you agree to be bound by the Connected Account Agreement, as updated or changed by the Payment Provider from time to time. As a condition of us enabling payment processing services through the Payment Provider, you agree to provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by the Payment Provider.
You also acknowledge the obligations we have under our agreement with the Payment Provider (as updated or changed from time to time by the Payment Provider) available at the link specified in section 13 below (“Platform Agreement“) and agree not to do or fail to do anything that would give rise to a breach by us of our obligations under the Platform Agreement. You agree to indemnify us and hold us harmless against any liability, loss, expense, cost or damage (including any claim by the Payment Provider or a third party) that we suffer in connection with a breach by you of these Terms or the Platform Agreement. Your acceptance of these Terms constitutes your acceptance of and agreement to be bound by the Platform Agreement (as updated or changed from time to time by the Payment Provider).
Taxes: Any Fees that you pay to us are exclusive of applicable federal, state, local or other governmental sales, goods and services or other taxes, fees or charges (“Taxes“). You are responsible for Taxes that apply in connection with your payment of the Fees for your use of our Services. To the extent we are required by applicable law to invoice you the amount of these Taxes, we will determine them based on the billing address that you provide us and they will appear as an additional charge on our invoice to you. If we do not invoice you the amount of these Taxes, then you are responsible for determining and paying them directly to the applicable tax authority.
You are responsible for determining, and paying and reporting to the applicable tax authority, any taxes that apply in connection with a payment you make to or receive from another User as a result of a transaction you enter into with them using our Services.
Payment disputes: If you have an issue regarding your payment to us of any Fees, then you should contact us directly to resolve the issue. If you have an issue regarding a payment due or made as a result of a transaction you have entered into with another User then you should contact that other User directly to resolve the issue. You are liable for any charge that the Payment Provider may apply to handle a payment you dispute.
Returns: Return of products supplied in a User-to-User transaction will be dealt with in accordance with the contract between those two Users and the Supplier User’s returns policy.
Refunds: Refunds of payments made in a User-to-User transaction will be dealt with in accordance with the contract between those two Users and the Supplier User’s refunds policy. Where a Supplier User refunds a payment received from another User, any transaction fees of Payment Provider will be refunded at the sole and absolute discretion of Payment Provider. Fresho will refund Fees if there is a payment error e.g. overpayment. Eligibility for other refunds will be determined on a case by case basis by Fresho at its sole and absolute discretion.
Cancellations: Cancellation of transactions between Users shall be dealt with in accordance with the contract between those two Users. Users’ right to cancel the Services are as set out in Section 11 “Term and Termination” below.
Adjustments: If an adjustment needs to be made to a Customer User’s payment to a Supplier User, whether to correct an error or otherwise, the adjustment will be made in accordance with the contract between those two Users and the Supplier User’s adjustments policy. Any adjustment to the transaction fees of Payment Provider will be made at the sole and absolute discretion of Payment Provider. Fresho will process adjustments to Fees to correct an error. Eligibility for other adjustments will be determined on a case by case basis by Fresho at its sole and absolute discretion.
Links to third party websites on the Website are provided solely for your convenience. If you use these links, you leave the Website. We have not reviewed and do not control any of these third party websites (and are not responsible for these websites or their content or availability). We do not endorse or make any representation about these websites, their content, or the results from using such websites or content. If you decide to access any of the third party websites linked to the Website, you do so entirely at your risk. We are not liable with respect to your use of any third party website.
General disclaimer: Without limiting anything else in these Terms, we provide the Services and the Website on an “as is” and “as available” basis without any warranties of any kind to the fullest extent permitted by law. We make no representation or warranty about the Services or the Website, whether express or implied, including as to merchantability, title, non-infringement, and that the Services or the Website will be fit for a particular purpose, timely or secure.
Content: We are not responsible for the content or material uploaded, generated, published or transmitted in connection with your or another User’s account and do not have any responsibility to ensure that it is accurate or complies with applicable laws, rules and regulations. We do not have any responsibility for any damage, loss, cost or harm that you or another User suffers due to deficiencies in such content or material. You agree to indemnify us for any damage, loss, cost or harm that we may suffer due to a claim by a User or a third party in connection with your content and material.
Quality and suitability of User services and products: You acknowledge and accept that we do not give any warranty or undertaking, or make any representation, that the services or products you purchase from any other User through the Services will be of merchantable quality or fit for a particular purpose and we disclaim any such warranties and representations and accept no liability with respect to such services or products.
Substitutions. Supplier Users may attempt to deliver substitution products in the event that selected products are unavailable. Please contact the applicable Supplier User directly if you have received a substitution that you do not wish to accept. Fresho accepts no liability with respect to substitution products.
EXCLUSION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL LIABILITY TO YOU, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, OR UNDER ANY OTHER THEORY OF LIABILITY, FOR: (A) LOSS OF PROFITS, CONTRACTS, SALES, BUSINESS OR REVENUE; (B) LOSS OR CORRUPTION OF DATA, INFORMATION OR SOFTWARE; (C) LOSS OF BUSINESS OPPORTUNITY; (D) LOSS OF ANTICIPATED SAVINGS; (E) LOSS OF GOODWILL; (F) SPECIAL DAMAGES OF ANY KIND; AND (G) ANY AND ALL INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGES OF ANY KIND.
LIMITATION OF LIABILITY: SUBJECT TO THESE TERMS AND TO THE EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY TO YOU IN RESPECT OF ALL OTHER LOSSES OR DAMAGES ARISING UNDER OR IN CONNECTION WITH THE WEBSITE OR THE SERVICES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE, OR UNDER ANY OTHER THEORY OF LIABILITY, SHALL NOT IN ANY CIRCUMSTANCES EXCEED THE AVERAGE FEES PAID OR PAYABLE TO US TO USE THE SERVICES IN A 3 (THREE) MONTH PERIOD (WHERE, FOR THE PURPOSE OF THIS CALCULATION, THE AVERAGE SHALL BE CALCULATED IN REFERENCE TO EACH WHOLE 3 (THREE) MONTH PERIOD RUNNING CONSECUTIVELY FROM THE POINT THAT YOU COMMENCED USING THE SERVICES.
Additional costs: You assume full and sole responsibility for any additional or associated costs that you may incur in connection with or as a result of your use of the Website or the Services.
Indemnity: You agree to indemnify and hold us and our associates, directors, other officers, employees and agents harmless from and against any claims, demands, proceedings, losses and damages (whether actual, special, economic or consequential) of every kind and nature, known and unknown, including legal fees on a full indemnity basis, made by any other User or other third party due to or arising out of your breach of these Terms or any terms and policies they incorporate by reference or the rights of a third party.
Term: These Terms apply to your use of the Website and any of the content that is available on the Website and apply on an ongoing basis in relation to such use. If you sign-up to use our Services, the relevant sections of these Terms will apply on an ongoing basis until either party terminates your use of the Services in accordance with these Terms and subject to the survival provisions below.
Termination by you: You may terminate your use of the Services at any time by providing us with either (a) at least 30 days’ prior written notice if you are a paying User, as identified in the Special Conditions; or (b) immediately upon written notice if you are a non-paying User.
Termination by us: We may terminate your use of the Services at any time by giving you either (a) at least 30 days’ prior written notice if you are a paying User, as identified in the Special Conditions; or (b) immediately upon written notice if you are a non-paying User. We may also terminate or suspend (at our discretion) your right to access and/or use the Website and our Services immediately and without notice to you if: (x) we believe in our sole discretion that you have breached any of your obligations under section 2 (Conditions of Use), section 4 (Intellectual Property), section 5 (Personal Information and Confidentiality) or section 7 (Payment); (y) you cease or threaten to cease to carry on business; and/or (z) you are declared or become insolvent or bankrupt, have a moratorium declared in respect of any of your indebtedness, enter into administration, receivership, administrative receivership or liquidation or threaten to do any of these things, take or suffer any similar action in any jurisdiction or any step is taken (including, without limitation, the making of an application, the entering into of a board resolution or the giving of any notice) by you or by any other person in respect of any of these circumstances.
Fees following termination: If your use of our Services is terminated, by you or by us, then you will need to pay any Fees you have incurred up to the date of termination.
Rights and obligations on termination: Upon termination or suspension you must immediately cease using the Website and the Services. Upon termination, where reasonably possible, at our discretion, we will give you a reasonable opportunity to remove your content from our Services or store your content for a reasonable period so that you can access it in the future after providing us with reasonable notice of your desire to do so.
No liability: You agree that we are not liable to you or any third party whether in contract, tort (including negligence), equity or under any statute for any termination or suspension of your rights of access and/or use of the Website which occurs under this section 11.
Survival: Despite termination of your access to and use of the Website and our Services, sections 1, 4, 5, 7, 9, 10, 11, 13 and 14 of these Terms will survive any such termination.
When using our Services or the Website, you accept that communication with us will be mainly electronic. We will contact you by email or provide you with information by posting notices on the Website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights. You further agree to update your contact and account information, as applicable, with the current contact email address.
Australia: If the address you used to register as a User is in Australia then the following applies to you.
(a) Fresho Party: The Fresho Party is Fresho Pty Ltd (ACN 605 060 277), a company incorporated in Australia, of Level 1, 49-51 Stead Street, South Melbourne, Victoria, 3205, Australia.
(b) Payment Provider: The Payment Provider is Stripe Payments Australia Pty Ltd (ACN 160 180 343), the Connected Account Agreement is the Stripe Connected Account Agreement which incorporates the Stripe Services Agreement – Australia and the Platform Agreement is the Stripe Connect Platform Agreement which incorporates the Stripe Services Agreement – Australia.
(d) Australian Consumer Law: If you constitute a consumer under the Australian Consumer Law while accessing the Website and Services, nothing in these Terms is intended to remove your rights under the Australian Consumer Law, including to any statutory guarantees that may apply to your use of the Website and the Services. If we are entitled to limit the remedies available to you for breach of such guarantees, we expressly limit our liability to either supplying the affected Services again or paying the cost of supplying the Services again.
(e) Governing Law: The law of the State of Victoria, Australia governs these Terms and the parties submit without objection to the non-exclusive jurisdiction of courts exercising jurisdiction there.
New Zealand: If the address you used to register as a User is in New Zealand then the following applies to you.
(a) Fresho Party: The Fresho Party is Fresho Limited (Company No. 6438152) of 14a Lucerne Road, Remuera, Auckland, 1050, New Zealand.
(b) Payment Provider: The Payment Provider is Stripe New Zealand Limited (NZBN: 9429041687628), the Connected Account Agreement is the Stripe Connected Account Agreement which incorporates the Stripe Services Agreement – New Zealand and the Platform Agreement is the Stripe Connect Platform Agreement which incorporates the Stripe Services Agreement – New Zealand.
(d) Governing Law: The law of New Zealand governs these Terms and the parties submit without objection to the non-exclusive jurisdiction of courts exercising jurisdiction there.
United Kingdom: If the address you used to register as a User is in the United Kingdom then the following applies to you.
(a) Fresho Party: The Fresho Party is Fresho UK Ltd (Company No.12414006) of 10 John Street, London, United Kingdom, WC1N 2EB.
(b) Payment Provider: The Payment Provider is Stripe Payments Europe, Ltd., the Connected Account Agreement is the Stripe Connected Account Agreement which incorporates the Stripe Services Agreement and the Platform Agreement is the Stripe Connect Platform Agreement which incorporates the Stripe Services Agreement – United Kingdom.
(d) Governing Law: The law of England governs these Terms and the parties submit without objection to the non-exclusive jurisdiction of the English courts.
United States of America: If the address you used to register as a User is in the United States of America then the following applies to you.
(a) Fresho Party: The Fresho Party is Fresho LLC (File No.17814147), a Delaware corporation, of c/o Corporation Trust Center, 1209 Orange Street, in the City of Wilmington, Delaware 19801, United States of America.
(b) Payment Provider: The Payment Provider is Stripe, Inc., the Connected Account Agreement is the Stripe Connected Account Agreement which incorporates the Stripe Services Agreement – United States and the Platform Agreement is the Stripe Connect Platform Agreement which incorporates the Stripe Services Agreement – United States.
(d) Governing Law: The law of the State of Delaware governs these Terms and the parties submit without objection to the non-exclusive jurisdiction of courts exercising jurisdiction there.
Force majeure: A party will not be liable to the other for any failure to perform, or delay in performance of, any obligation under these Terms that is caused by events outside the party’s reasonable control. However, this section does not apply to or excuse a party’s obligation to pay monies under these Terms.
Severability: If a provision of these Terms is unlawful or unenforceable in any jurisdiction, the provision will not apply with respect to that jurisdiction to the extent of the unlawfulness or unenforceability. However, the provision with respect to any other jurisdiction, and the remaining provisions, will continue to be valid to the fullest extent permitted by law.
No waiver: Any failure or delay by us in enforcing (in whole or in part) any provision of these Terms will not be interpreted as a waiver of our rights or remedies. A waiver is not effective unless made in writing.
Assignment: You may not assign any of your rights or purport to transfer any of your obligations under these Terms without our prior written consent (which may be withheld in our sole and absolute discretion). We may assign our rights and transfer our obligations under these Terms without your prior written consent.
Third party rights: These Terms control the relationship between us and you. They do not create any rights or benefits for any third party.
Relationship between you and us: Nothing in these Terms is intended or is deemed to constitute a partnership, agency, employer-employee or joint venture relationship between you and us. No party will incur any debts or make any commitments for or on behalf of the other party.
Interpretation: Headings in these Terms are for convenience only and do not affect interpretation, the singular includes the plural and vice versa, a reference to a gender includes all genders and a reference to legislation includes any amendment, modification or re-enactment of or any legislation substituted for that legislation. The language used in all parts of these Terms will be construed in accordance with its fair and common meaning and not strictly for or against either party.