Last Updated on September 27th, 2009
PLEASE READ THE TERMS OF SERVICE CAREFULLY. YOUR USE OF THE SITE CONSTITUTES YOUR ACCEPTANCE OF THE TERMS OF SERVICE. DO NOT USE THE SITE IF YOU ARE UNWILLING OR UNABLE TO BE BOUND BY THE TERMS OF SERVICE.
A "user" is someone who accesses, browses, crawls, scrapes, or in any way uses the Site. The terms "you" and "your" refer to you, as a user of the Site. The terms "we", "us", "our", and "WhatIsFresh" refer to WhatIsFresh, Inc., a Delaware corporation.
"Content" means text, images, photos, audio, video, and all other forms of data or communication. "Your Content" means Content that you submit or transmit to or through the Site, such as information that you display as part of your account profile. "User Content" means Content that users submit or transmit to or through the Site. "WhatIsFresh Content" means Content that we create and make available on the Site. "Third Party Content" means Content that is made available on the Site by parties other than WhatIsFresh or its users, such as data providers who may, from time to time, license data to WhatIsFresh for use on the Site. "Site Content" means all of the Content that is made available on the Site, including Your Content, User Content, Third Party Content, and WhatIsFresh Content.
You must be at least 18 years old and a resident of the United States. All others are prohibited from using the Site. If you use the Site on behalf of a company, entity, or organization, you must be an authorized representative with the authority to bind it to the Terms of Service (which authority you hereby exercise).
We may modify the Terms of Service from time to time. When changes are made, we will notify you by making the revised version available on this webpage and will indicate at the top of this page the date that revisions were last made. You should revisit these Terms of Service on a regular basis as revised versions will be binding on you. Any such modification will be effective upon our posting of new Terms of Service. Your continued use of the Site after any posted modification to the Terms of Service indicates your acceptance of the modification.
To use some of the features on the Site, you may be required to create an account and provide information about yourself to us. You are responsible for maintaining the confidentiality of your account password. You are also responsible for all activities that occur in connection with your account. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason. There is currently only one type of account, but we may create additional types of accounts in the future, including accounts for consumer or personal use. At present, the following is the only account available:
A "Business Account" is an account to be used solely for the purpose of representing your business on the Site. In creating or updating a Business Account, you must be an authorized representative of the business in question, and you must provide complete and accurate information about yourself and the business you represent. You may not provide an email address that is not your own or create multiple Business Accounts for the same business.
We grant you permission to use the Site subject to the restrictions in these Terms of Service. In using the Site, you may be exposed to Content that is offensive, indecent, inaccurate, objectionable, or otherwise inappropriate. WhatIsFresh does not endorse such Content, and cannot vouch for its accuracy.
You agree that you will not, and will not assist or enable others to:
use the Site to threaten, stalk, defraud, incite, harass, or advocate the harassment of another person, or otherwise interfere with another user's use of the Site;
use the Site to submit or transmit spam, chain letters, contests, junk email, pyramid schemes, surveys, or other mass messaging, whether commercial in nature or not;
use the Site for promotional or commercial purposes, except as expressly allowed in writing by WhatIsFresh;
use the Site in a manner that may create a conflict of interest, such as trading reviews with other business owners or writing or soliciting shill reviews;
use the Site for keyword spamming or to otherwise attempt to manipulate natural search results;
use the Site to promote bigotry or discrimination against protected classes;
use the Site to violate any third-party right, including any breach of confidence, copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
use the Site to submit or transmit pornography or illegal content;
use the Site to solicit personal information from minors or to harm or threaten to cause harm to minors;
use the Site in violation of the Terms of Service or any applicable law;
modify, adapt, appropriate, reproduce, distribute, translate, create derivative works or adaptations of, publicly display, sell, trade, or in any way exploit the Site or Site Content (other than Your Content), except as expressly authorized by WhatIsFresh;
reverse engineer any portion of the Site, except as may be permitted under the law;
remove or modify any copyright, trademark or other proprietary rights notice on the Site or on any materials printed or copied off of the Site
record, process, or mine information about other users;
use any robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape, or index the Site or any Site Content;
access, retrieve or index the Site to for purposes of constructing or populating a searchable database of business reviews;
reformat or frame any portion of the Site;
take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on WhatIsFresh's technology infrastructure;
attempt to gain unauthorized access to the Site, user accounts, computer systems or networks connected to the Site through hacking, password mining or any other means; use the Site or any Site Content to transmit any computer viruses, worms, defects, Trojan horses or other items of a destructive nature (collectively, "Viruses"); use any device, software or routine that interferes with the proper working of the Site, or otherwise attempt to interfere with the proper working of the Site; make excessive traffic demands; use the Site to violate the security of any computer network, crack passwords or security encryption codes; disrupt or interfere with the security of, or otherwise cause harm to, the Site or Site Content; remove, circumvent, disable, damage or otherwise interfere with any security-related features of the Site, features that prevent or restrict the use or copying of Site Content, or features that enforce limitations on the use of the Site.
We may use Your Content in a number of different ways, including displaying it on the Site, reformatting it, incorporating it into other works, creating derivative works from it, promoting it, distributing it, and allowing others to do the same in connection with their own websites and media platforms ("Other Media"). As such, you irrevocably grant us permission to use Your Content for any purpose. You also irrevocably grant the Site's users and the users of any Other Media the right to access Your Content in connection with their use of the Site and any Other Media. Finally, you irrevocably waive, and cause to be waived, any claims and assertions of moral rights or attribution with respect to Your Content.
You alone are responsible for Your Content. You assume all risks associated with Your Content, including anyone's reliance on its accuracy, completeness or usefulness, or any disclosure by you of information in Your Content that makes you personally identifiable. You represent that you own, or have the necessary permissions to use, and authorize the use of, Your Content as described herein. You may not imply that Your Content is in any way sponsored or endorsed by WhatIsFresh.
You may expose yourself to liability if, for example, Your Content violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; contains material that is false, intentionally misleading, or defamatory; contains material that is unlawful, including illegal hate speech or pornography; exploits or otherwise harms minors; or violates or advocates the violation of any law or regulation.
We may remove or reinstate User Content from time to time at our sole discretion. For example, we may remove a review if we believe it violates our content guidelines. We have no obligation to retain or provide you with copies of Your Content, nor do we guarantee any confidentiality with respect to Your Content.
WhatIsFresh and its licensees may display advertisements and other information adjacent to or included with Your Content on the Site and Other Media. You are not entitled to any compensation for such advertisements. The manner, mode and extent of such advertising are subject to change without specific notice to you.
We have has adopted the following policies and procedures toward copyright infringement in accordance with Title 17, United States Code, Section 512(c), which is part of the Digital Millennium Copyright Act ("DMCA"). The address of WhatIsFresh's Designated Agent to Receive Notification of Claimed Infringement ("Designated Agent") is provided at the bottom of this section. It is WhatIsFresh's policy to (i) respond to notices of alleged copyright infringement that comply with the DMCA; and (ii) terminate the accounts of those determined by WhatIsFresh to be "repeat infringers".
Procedure for Reporting Copyright Infringements. If you are a copyright owner or agent thereof, and believe that your copyright is being infringed in connection with the Site, please send a written notification to the Designated Agent detailing the alleged infringement. Your written notification must include:
Identification of the copyrighted work that you claim has been infringed;
Identification of the Content on the Site that allegedly infringes upon the copyrighted work at issue, and information reasonably sufficient to permit WhatIsFresh to locate such Content;
A statement by you that you have a good faith belief that the use of the Content identified in your notice in the manner complained of is not authorized by the copyright owner, its agent, or the law;
A statement by you that you attest, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf; and
Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
Please note that WhatIsFresh may, at its sole discretion, send a copy of such notices to third parties for publication. For example, your letter (with personal information removed) may be forwarded to Chilling Effects (http://www.chillingeffects.org) for publication. Please note that you may be subject to liability under Section 512(f) of the DMCA if you materially misrepresent that content on the Site infringes your copyright.
Procedure to Supply a Counter-Notice to the Designated Agent. If you believe that Content has been mistakenly removed from the Site pursuant to this DMCA policy, you may send a written counter-notice to the Designated Agent including the following:
Identification of the Content that was removed, and the location on the Site where it would have been found prior to its removal;
A statement under penalty of perjury that you have a good faith belief that the Content was removed as a result of a mistake or misidentification;
A statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located, or if your address is located outside the United States, for any judicial district in which WhatIsFresh is located, and that you will accept service of process from the person who provided notification under 512(c)(1)(C) or an agent of such person; and
Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
Address for Designated Agent. Please contact the Designated Agent at the following address:Michael Horn
The Designated Agent should only be contacted in connection with the issues raised in this Section. All other inquiries directed to the Designated Agent will not be responded to; instead, such inquiries should be made through the procedures referenced in Sections 15 or 22 below.
We make some of the Site Content (the "Feed Content") available via Real Simple Syndication and Atom feeds (the "Feeds"). You may access and use the Feeds in order to display Feed Content on your personal computer, website, or blog, provided that (a) your use of the Feeds is for personal, non-commercial purposes only, (b) your display of the Feed Content links back to the relevant pages on the Site and attributes WhatIsFresh as the source of the Feed Content, (c) your use or display of the Feed Content does not suggest that WhatIsFresh promotes or endorses any third party causes, ideas, web sites, products or services, (d) you do not redistribute the Feed Content, and (f) your use of the Feeds does not overburden WhatIsFresh's systems. WhatIsFresh reserves all rights in the Feed Content and may terminate the Feeds at any time. Please select "Partnerships" on our contacts page here to inquire about other possible uses of the Feeds.
We reserve the right to modify, update, or discontinue the Site at our sole discretion, at any time, for any or no reason, and without notice or liability.
We reserve the right to exercise whatever lawful means we deem necessary to prevent unauthorized access to or use of the Site, including, but not limited to, technological barriers, IP mapping, and contacting your Internet Service Provider (ISP) regarding such unauthorized use.
Dissatisfaction. If you are dissatisfied with the Site, please provide feedback through our contacts page here. Your only other remedy with respect to any dissatisfaction with (i) the Site, (ii) the Terms of Service, (iii) any policy or practice of WhatIsFresh in operating the Site, or (iv) any content or information transmitted through the Site, is to terminate the Terms of Service and your account.
Suggestions and Improvements. By sending us any ideas, suggestions, documents or proposals ("Feedback"), you agree that (i) your Feedback does not contain the confidential or proprietary information of third parties, (ii) we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (iii) we may have something similar to the Feedback already under consideration or in development, and (iv) you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, publish, distribute and sublicense the Feedback.
We may terminate or suspend your account or ability to use the Site, in whole or in part, at our sole discretion, for any or no reason, and without notice or liability of any kind. For example, we may terminate or suspend your account or ability to use the Site if you breach the Terms of Service or are suspected of involvement in illegal activity. Any such termination or suspension could prevent you from accessing your account, the Site, Your Content, Site Content, or any other related information.
You may terminate the Terms of Service at any time by closing your account, discontinuing your use of any and all parts of the Site, and providing WhatIsFresh with a notice of termination here under the drop-down heading "Help me use WhatIsFresh" with the sub-topic "Close my account". If you close your account, we will use commercially reasonable efforts to stop displaying your account profile on the Site, but may continue to display Your Content where it implicates other users (e.g., compliments that you have sent to other users and comments that you have posted to WhatIsFresh Talk).
In the event of any termination, whether by you or us, Sections 7, 9, 10, 14, 15, 16, 17, 18, 19, and 21 of the Terms of Service will continue in full force and effect, including our right to use Your Content as detailed in Section 7.
We own the WhatIsFresh Content, including but not limited to visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate user review ratings, and all other elements and components of the Site excluding User Content and Third Party Content. We also own the copyrights, trademarks, service marks, trade names, and other intellectual and proprietary rights throughout the world (the "IP Rights") associated with the WhatIsFresh Content and the Site, which are protected by copyright, trade dress, patent, trademark laws and all other applicable intellectual and proprietary rights and laws. As such, you may not modify, reproduce, distribute, create derivative works or adaptations of, publicly display or in any way exploit any of the WhatIsFresh Content in whole or in part except as expressly authorized by us. Except as expressly and unambiguously provided herein, we do not grant you any express or implied rights, and all rights in and to the Site and the WhatIsFresh Content are retained by us.
THE SITE AND ALL SITE CONTENT IS MADE AVAILABLE TO YOU ON AN "AS IS" BASIS. WhatIsFresh MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS OF ANY KIND, EXPRESS, STATUTORY OR IMPLIED AS TO (1) THE OPERATION AND FUNCTIONALITY OF THE SITE, (2) THE ACCURACY, INTEGRITY, COMPLETENESS, QUALITY, LEGALITY, USEFULNESS, SAFETY, AND IP RIGHTS OF ANY OF THE SITE CONTENT, INCLUDING BUT NOT LIMITED TO THE ACCURACY OF BUSINESS REVIEWS AND BUSINESS INFORMATION LISTED ON THE SITE, AND (3) THE PRODUCTS AND SERVICES ASSOCIATED WITH THE SITE OR SITE CONTENT, INCLUDING BUT NOT LIMITED TO THE PRODUCTS AND SERVICES SOLD BY BUSINESSES LISTED ON THE SITE. WhatIsFresh FURTHER DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, THAT YOU OBTAIN FROM WhatIsFresh OR THE SITE SHALL CREATE ANY WARRANTY, REPRESENTATION, OR CONDITION NOT EXPRESSLY STATED HEREIN.
WhatIsFresh DISCLAIMS ALL LIABILITY FOR ANY (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, RELIANCE, OR CONSEQUENTIAL DAMAGES, (B) LOSS OF PROFITS, (C) BUSINESS INTERRUPTION, (D) LOSS OF OR DAMAGE TO REPUTATION OF WhatIsFresh OR ANY THIRD PARTY, OR (E) LOSS OF INFORMATION OR DATA.
WhatIsFresh FURTHER DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR USE OF THE SITE AND SITE CONTENT. YOUR USE OF THE SITE AND SITE CONTENT IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY RESULTING LOSS OR DAMAGE, INCLUDING BUT NOT LIMITED TO ANY LOSS OF DATA OR DAMAGE TO YOUR COMPUTER FROM VIRUSES THAT MAY BE DOWNLOADED TO YOUR COMPUTER IN THE COURSE OF USING THE SITE.
WhatIsFresh ALSO DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF YOUR COMMUNICATIONS OR DEALINGS WITH ANY OF THE BUSINESSES, ADVERTISERS, OR USERS ON THE SITE. YOUR COMMUNICATIONS OR DEALINGS WITH SUCH BUSINESSES, ADVERTISERS, AND USERS ARE SOLELY BETWEEN YOU AND THEM, THOUGH WhatIsFresh RESERVES THE RIGHT TO MONITOR DISPUTES BETWEEN YOU AND THEM.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU RESIDE IN SUCH A JURISDICTION, THE ABOVE LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
WhatIsFresh'S MAXIMUM AGGREGATE LIABILITY TO YOU FOR ANY CAUSES WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION (WHETHER SUCH LIABILITY ARISES DUE TO NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR FOR ANY OTHER REASON), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO WhatIsFresh IN CONNECTION WITH THE SITE IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY OR (II) US$100.00.
You agree to indemnify and hold WhatIsFresh, its parents, subsidiaries, affiliates, any related companies, suppliers, licensors and partners, and the officers, directors, employees, agents and representatives of each of them harmless, including costs, liabilities and legal fees, from any claim or demand made by any third party due to or arising out of (i) your access to or use of the Site, (ii) your violation of the Terms of Service, or (iii) the infringement by you, or any third party using your account, of any intellectual property or other right of any person or entity. WhatIsFresh reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of WhatIsFresh. WhatIsFresh will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
The Site may include links to other websites (each, a "Third Party Site"). We do not control or endorse any Third Party Site, and you agree that we are not responsible for the availability or contents of such Third Party Sites.
Some of the Third Party Content, including some of the business listing information and business photos on the Site, is the proprietary and copyrighted work of The Local Data Company Limited and 118 Data Resource Limited. Your may not distribute, sell, rent, sublicense, or lease such Third Party Content, in whole or in part to any third party; and you may not use it for any other purpose other than your personal, non-commercial use.
Some of the Third Party Content was licensed from Acxiom Corporation. For all such information, the following applies: "This information is proprietary to Acxiom Corporation and is protected under U.S. copyright laws and international treaty provisions. This information is licensed for your personal or professional use and may not be resold or provided to others. You may not distribute, sell, rent, sublicense, or lease such information, in whole or in part to any third party; and you will not make such Acxiom information available in whole or in part to any other user in any networked or time-sharing environment, or transfer the information in whole or in part to any computer other than the PC used to access this information."
If there is any dispute about or involving the Site or WhatIsFresh, you agree that any such dispute will be governed by the laws of the State of California without regard to its conflict of law provisions. You agree to personal jurisdiction by and venue in the state and federal courts in San Francisco County, California.
No agency, partnership, joint venture, or employment is created as a result of the Terms of Service, and you do not have any authority of any kind to bind us in any respect whatsoever.
We may provide you with notices, including those regarding changes to the Terms of Service by email, regular mail or postings on the Site.
Except as otherwise stated in Section 20 above, nothing herein is intended, nor will be deemed, to confer rights or remedies upon any third party.
The Terms of Service contain the entire agreement between you and us regarding the use of the Site, and supersede any prior agreement between you and us on such subject matter. The parties acknowledge that no reliance is placed on any representation made but not expressly contained in these Terms of Service.
Any failure on our part to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder.
If any provision of the Terms of Service is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Service shall otherwise remain in full force and effect and enforceable.
The Terms of Service are not assignable, transferable or sublicensable by you except with WhatIsFresh's prior written consent, but may be assigned or transferred by us without restriction. Any assignment attempted to be made in violation of the Terms of Service shall be void.
The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.
Please contact us with any questions regarding the Terms of Service. Please report any violations of the Terms of Service to our legal department through the contacts page here.
WhatIsFresh and the WhatIsFresh logo are proprietary service marks of WhatIsFresh Inc.