Terms and conditions

Last revised: 19 March 2024

Please carefully read the following terms and conditions of use (these “Terms” or this “Agreement”) before using the Freshii website (the “Site”), the Freshii mobile application (the “App”) or accessing or using any service where these Terms are posted (collectively, with the Site and the App, the “Services”, which, as used herein, may refer to any one or more of the Services depending on the context). This Agreement is a legal contract between you and Freshii Inc. (“Freshii”, “we” or “us”). By accessing or using the Services (including downloading, installing or using the App), you (i) acknowledge that you have read, understood and agree to be bound by this Agreement, and (ii) represent that you have authority to enter into this Agreement personally and, if applicable, on behalf of any entity on whose behalf you use the Services and to bind that entity to this Agreement. If at any time you do not agree to be bound by this Agreement, you may not access or use the Services or any of the Freshii Content (as defined below).

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, THIS AGREEMENT CONTAINS, AMONG OTHER THINGS, DISCLAIMERS OF WARRANTIES, DISCLAIMERS AND LIMITATIONS OF LIABILITY AND AN EXCLUSIVE REMEDY, AND A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. PLEASE READ THEM CAREFULLY.

The Services are directed to persons 18 years of age or older. The Services and Freshii do not knowingly collect information from persons under age 18 or children under age 13. If you are between the ages of 13 and 18 years of age, you may visit, browse and use the information on the Services subject to the terms of this Agreement under the supervision of a parent or legal guardian who agrees to be bound by this Agreement, but you may not submit any content or personally identifiable information to the Services. If you are under age 13, you are not permitted to use the Services or to submit any content or personally identifiable information to the Services or to Freshii.

Freshii may from time to time modify or revise this Agreement, and may provide notices, disclosures and amendments in respect of this Agreement by electronic means, including by posting revisions or revised terms on any one or more of the Services (such as the App and/or the Site). Your use of the Services following any such change constitutes your agreement to follow and be bound by the then-current version of this Agreement. If any change is unacceptable to you, your only recourse is to discontinue your use of the Services.

additional definitions

“Freshii Content” means any all designs, text, graphics, pictures, information, data, software, sound files, other files and all content, code, software and any other materials (including the Freshii Marks) that are part of the Services (other than Your Content) and the selection and arrangement thereof.

“Freshii Marks” means the Freshii name, the Freshii logo, the names and logos of Freshii’s affiliates, the names and logos of Freshii’s and its affiliate’s proprietary products and services, and other Freshii proprietary materials, trademarks, service marks, trade dress, graphics and logos used in connection with the Services.

“Freshii Parties” means Freshii, its parents, subsidiaries (wholly and partially owned) and affiliates and their respective officers, directors, employees, franchisees, licensees, shareholders and agents.

“Products” means any and all products (including food, beverages and merchandise) and services made available or offered through any one or more of the Services.

“Your Content” means any of your content or materials uploaded, posted, transmitted, distributed, submitted or otherwise made available by you to or through the Services.

privacy

By accessing or using the Services, including downloading, installing, accessing or using the App, or continuing to do any of the foregoing, you acknowledge that you have reviewed and understand our privacy policy available at https://orders.freshii.com/en/privacy-policy (the “Privacy Policy”), as may be amended from time to time, and you consent to the practices described in the Privacy Policy.

user registration, use of the Services and conducta. Services and Content ownership. The Services and the Freshii Content are the sole and exclusive property of Freshii. You agree not to reproduce, duplicate, copy, sell, resell or exploit for any commercial purpose, any portion of the Services or the Freshii Content other than as expressly authorized by Freshii in writing. Use of the Services or the Freshii Content in any way that is not expressly permitted by these Terms is prohibited and may be actionable under Canadian, U.S. or international law.b. Registration. When using the Services and/or registering an account for the Services (an “Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data ”) and to promptly update the Registration Data thereafter as necessary to keep it current. You consent to Freshii’s use of such Registration Data in accordance with the Privacy Policy.

You agree (i) to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password(s) with anyone, (ii) to notify Freshii immediately of any unauthorized use of your password(s) or any other breach of the security of your Account and to exit from your Account at the end of each session, (iii) not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services, (iv) that you will not maintain more than one Account at any given time. Freshii reserves the right to (i) ban you from using an Account and/or any one or more of the Services, and (ii) remove or reclaim any usernames at any time and for any reason. You acknowledge and agree that you have no ownership or other property interest in your Account and that all rights in and to your Account are owned by and inure to the benefit of Freshii.

c. Your content. Subject to any applicable Account settings, you grant Freshii and its affiliates a perpetual, irrevocable, worldwide, royalty-free right and licence to use, copy, reproduce, modify, adapt, publish, translate, create derivative works of, distribute, publicly perform, publicly display, develop, manufacture, advertise, market, sublicense and otherwise use and exploit (commercially or non-commercially), in any way and in any form or media (including forms and media now known or later developed), as determined by Freshii, in its sole and absolute discretion, any of Your Content (in whole or in part) and any related copyrights or other intellectual property rights therein. You hereby waive any moral rights (or similar rights) you may have in Your Content in favour of Freshii. You represent and warrant that Your Content is compliant with the terms of this Agreement and is not subject to any confidentiality obligations and that you own and control all of the rights to Your Content, have the lawful right to distribute and produce Your Content, and otherwise have the right to grant the rights to Freshii and its affiliates that you grant herein. Freshii has no obligation to treat Your Content as confidential or to compensate you in any manner for Your Content. You agree that you have no right or title in or to any display or appearance of Your Content on the Services. You acknowledge that other users of the Services may search for, see, use, modify and reproduce Your Content that you submit to any “public” area of the Services.

Freshii shall have the right, in its sole and absolute discretion (and without notice), but has no obligation, to pre-screen, approve, monitor, edit or remove any of Your Content (or the content or materials of other users of the Services). The Freshii Parties assume no responsibility for the timeliness, deletion, mis-delivery, loss or failure to store, and, without limitation, are not liable for preparing backup copies or replacing, any of Your Content, your communications or your Account settings.

Subject to applicable law, we also have the right to disclose your identity to any third party who is claiming that any of Your Content constitutes a violation of a third party’s intellectual property rights, of a third party’s right to privacy, or of any other applicable local, provincial, state, national or international law.

d. Ownership of the Services and licence to use. Freshii and its affiliates own all rights, title and interest in and to the Services. The Services are protected by intellectual property laws and other applicable laws as further described below in Section 4. Subject to this Agreement, Freshii grants you a limited, personal, non-transferable, non-exclusive and revocable license to use the Services solely for your personal purposes and for the purpose of your purchase of Products. Freshii and its affiliates reserve all rights not expressly granted in this Agreement.

e. Use of the Services. You are solely responsible for all access to and use of the Services and your Account, including Your Content and all obligations (including financial obligations) incurred through such access or use, by you or anyone using your Account, whether or not authorized by you.

f. Restrictions on use. You agree not to use the Services for any purpose prohibited by this Agreement or by applicable law. While using the Services, you shall not (and shall not permit any third party) to upload, post, transmit, distribute, submit or otherwise make available through the Services any content or materials (including Your Content), or to take any action, which may: (i) be unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive or profane; (ii) restrict or inhibit any other user from using or enjoying the Services; (iii) constitute or encourage conduct that would constitute a criminal offense or give rise to civil liability; (iv) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail or install a computer or mobile program on another user’s computer or mobile device; (v) involve commercial activities and/or sales without Freshii’s prior written consent, including contests, sweepstakes, barter, advertising, or pyramid schemes; (vi) impersonate any person or entity, including any employee or representative of Freshii; (vii) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; or (viii) collect, transmit, store or otherwise make available private information or personal information of any third party.

You agree that you shall not: (i) license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Services or any portion of the Services; (ii) obtain or attempt to obtain unauthorized access to the computer systems, materials, information, data, files or passwords or any services related to the Services, including by hacking, password or data mining, or any other means available on or through the Services; (iii) frame or utilize framing techniques to enclose any of the Freshii Marks or the Freshii Content; (iv) use any metatags or other “hidden text” using Freshii’s name or trademarks, including the Freshii Marks; (v) modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services; (vi) use any manual or automated software, devices or other processes (including spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape”, harvest or download data from the Services; (vii) access the Services in order to build similar or competitive products or services; (viii) except as expressly stated herein, copy, reproduce, distribute, republish, download, display, post or transmit in any form or by any means any part of Services or the Freshii Content; (ix) remove, modify or destroy any acknowledgments, credits, legal notices, copyright notices or other proprietary markings contained on or in Services or the Freshii Content; (x) circumvent, remove, alter, deactivate, degrade, or thwart any of the protections of the Services; (xi) take any action that imposes or may impose (in our sole and absolute determination) an unreasonable or disproportionately large load on our technical infrastructure; and (xii) interfere with or attempt to interrupt the proper operation of the Services through any virus, device, information collection or transmission mechanisms, software or routine.

copyright and trademark noticea. Ownership of the Freshii Content and Freshii Marks. You acknowledge and agree that all right, title, and interest in and to the Services and the Freshii Content, including any patents, copyrights, trademarks, trade secrets, inventions, know-how, and all other intellectual property rights are owned exclusively by Freshii or its third party licensors and are protected by intellectual property laws and other applicable laws. The Services, the Freshii Content and other materials therein may not be used without permission of Freshii, including in connection with any third-party products or services. You may not copy, reproduce, distribute, publish, enter into a database, display, perform, modify, create derivative works from, transmit or in any way use or exploit any part of the Freshii Content. Subject to the terms of this Agreement and provided you are in compliance with this Agreement, you may print copies of the Freshii Content without modification, solely for your non-commercial, informational and personal use. See Section 3(d) above which contains a limited license to use the Services.

The Freshii Marks are trade names, trademarks or registered trademarks of Freshii or its affiliates. The Freshii Marks may not be copied, imitated or used, in whole or in part, without the prior written permission of Freshii. The Services and the Freshii Content are protected by copyright, trademark, patent, trade secret, provincial, state and federal laws, international treaties and/or other proprietary rights and also may have security components that protect digital information only as authorized by Freshii or the owner of the applicable content. All rights not expressly granted are reserved. Unless explicitly stated otherwise herein, nothing in this Agreement shall be construed as conferring in any manner, whether by implication, estoppel or otherwise, any title or ownership of, or use-rights (exclusive or otherwise) to, any intellectual property or other right and any goodwill associated therewith, including in respect of the Freshii Marks and the Freshii Content.

b. Claimed infringement of your copyright. If you believe content posted on the Services infringes your copyright rights, please provide our Legal Department with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Correspondence to our Legal Department regarding notice of claims of copyright infringement should be addressed to: Freshii, 1027 Yonge Street, 3rd Floor, Toronto, Ontario M4W 2K9, Attn: Legal.

If you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs, fees and expenses of counsel, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.

third party content and links

The Services may contain links to third party services (including websites, applications or advertisements), may incorporate functionality from third party services, software, technology, data, and/or other content, including delivery services offered in respect of purchases made through one or more of the Services (the “Delivery Services”) as provided by one or more third party service providers of Freshii (each, a “Delivery Provider”), or may allow you to transmit content via third-party social networking services (each and all of the foregoing collectively, “Third Party Services”). When you click on such links or functionality, or so transmit content, Freshii will not warn you that that you have left the Services and you may become subject to alternative terms and conditions of use, as may be specified by such Third Party Service, which will govern your use of such Third Party Service. Freshii does not control and is not responsible for the Third Party Service. Freshii provides these links, functionality and transmission capability only as a convenience, and your use of Third Party Services is at your own risk. Freshii does not review, approve, monitor, endorse, warrant or make any representation with respect to Third Party Services (or any content, products or services accessible therein). There may be costs, fees and charges applicable to the use of Third Party Services. The Freshii Parties disclaim all liability with regard to your access to, use of, reliance on or transactions with a Third Party Service or any content accessed through or provided to a Third Party Service.

We may incorporate Third Party Services, or any part thereof, either independently or in connection with various programs, features, or functions available through the Services. Your use of Third Party Services or any third party materials incorporated into the Services may be subject to terms of use other than this Agreement and as may be set forth by third party providers, as applicable. You agree that the Freshii Parties assume no liability with respect to your use of such Third Party Services or third party materials incorporated into the Services, whether you are aware of their use or not and whether or not the use of such materials is recommended by Freshii.

In respect of certain Third Party Services, such as the Delivery Services, Freshii may charge you a fee to use such Third Party Service as determined between Freshii and the provider of such Third Party Service. You acknowledge and agree that, subject to any prohibition or limitation under applicable law and as otherwise set out in this agreement, notwithstanding any such fee charged by Freshii, the Freshii Parties shall assume no liability in respect of such Third Party Service or any refund therefor.

your comments and transmissions

We appreciate your comments, remarks, feedback suggestions, ideas, inventions, artwork developments, concepts and other types of communications and submissions you disclose or transmit to us (collectively, ‘Submissions’). Excluding personally identifiable information, Freshii is free to use, but is not obligated to use, the Submissions for any purpose whatsoever. By making a submission, you (i) grant Freshii and its affiliates a perpetual, irrevocable, worldwide, royalty-free right and licence to use, reproduce, modify, adapt, publish, translate, create derivative works of, distribute, publicly perform, publicly display, develop, manufacture, advertise, market, sublicense and otherwise use and exploit (commercially or non-commercially, as determined by Freshii) your Submissions and any related copyrights other intellectual property rights therein. You hereby waive any moral rights (or similar rights) you may have in any Submission in favour of Freshii. Freshii has no obligation to treat a Submission as confidential or to compensate you in any manner for the Submission.

By making a Submission, you represent and warrant that your Submission is true, is not defamatory, is your own original work, and does not infringe any third party’s rights. Furthermore, you represent and warrant that you and any other person mentioned or shown in your Submission, release any and all claims concerning Freshii’s (or Freshii’s affiliates’) use, modification or distribution of the Submission or any part thereof. You must own all rights, including copyright, to your Submission, and must hold all necessary releases concerning the contents of your Submission. You agree that you must evaluate, and bear all risks associated with, your disclosure of any Submission.

You hereby waive any right to inspect such use and any claims based on privacy, publicity, defamation, misappropriation, intellectual property or similar claims for any use of your Submission.

location-based services

If you enable location-based services on your device, including computer, in connection with your use of the Services, you expressly consent to Freshii collecting the geolocation (which may include specific longitude and latitude) of such device. This information will be used as set forth in the Privacy Policy, including to identify your local Freshii restaurant, to provide personalized messaging or content and/or for marketing purposes by email, push notifications, online or in-app advertising or otherwise. Please see the Privacy Policy for further information and for details on how to opt-out of location collection.

disclaimer and limitation of liabilitya. Disclaimer. THE SERVICES, ITS CONTENTS, FUNCTIONS AND ALL INFORMATION, PRODUCTS AND SERVICES CONTAINED IN OR OFFERED THROUGH THE SERVICES ARE PROVIDED ON AN ‘AS IS’ AND ‘AS AVAILABLE’ BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FRESHII PARTIES EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITATION, THE FRESHII PARTIES DO NOT WARRANT, REPRESENT, OR MAKE ANY CONDITION, THAT (I) THE SERVICES OR ITS CONTENTS WlLL BE COMPLETE, ACCURATE, TIMELY, UNINTERRUPTED, SECURE OR ERROR FREE, OR THAT DEFECTS WlLL BE CORRECTED, (II) THE SERVICES WILL MEET YOUR REQUIREMENTS, OR (III) THAT THE USE OF THE SERVICES BY YOU OR OTHER USERS IS IN COMPLIANCE WITH LAWS APPLICABLE TO YOU OR SUCH OTHER USERS, AS APPLICABLE. ALL INFORMATION ON THE SERVICES IS SUBJECT TO CHANGE WITHOUT NOTICE.

THE LAWS OF CERTAIN JURISDICTIONS (INCLUDING THE PROVINCE OF QUEBEC) MAY NOT ALLOW OR MAY LIMIT THE EXCLUSION OR LIMITATION OF CERTAIN REPRESENTATIONS, WARRANTIES OR CONDITIONS, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. IN SUCH CASE, THE ABOVE EXCLUSION OR LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT CONSISTENT WITH SUCH APPLICABLE LAW.

b. Limitation of Liability; Sole remedy. SUBJECT TO ANY PROHIBITION OR LIMITATION UNDER APPLICABLE LAW (INCLUDING WITH RESPECT TO LIABILITY FOR PERSONAL INJURY OR NON-WAIVABLE STATUTORY RIGHTS UNDER NEW JERSEY LAW), IN NO EVENT (INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OF FRESHII) SHALL THE FRESHII PARTIES (A) BE LIABLE WITH RESPECT TO USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION PARTICIPATION IN SCAN TO PAY OR MOP OR THE DELIVERY SERVICES, THE CONTENT OR THE MATERIALS CONTAINED IN OR ACCESSED THROUGH THE SERVICES (INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM YOUR, OR ANY OTHER USER’S, RELIANCE ON ANY INFORMATION OBTAINED FROM FRESHII), OR ANY DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO FRESHII’S RECORDS, PROGRAMS OR SERVICES; AND (B) BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS OR REVENUE, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION OR ANY OF ITS FEATURES, DEVICE FAILURE OR MALFUNCTION, OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, EVEN IF FRESHII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOUR SOLE REMEDY AGAINST THE FRESHII PARTIES IS TO CEASE USE OF THE SERVICES OR TO CEASE PARTICIPATION IN SCAN TO PAY, MOP OR THE DELIVERY SERVICES, AS APPLICABLE.

IF YOU RESIDE IN A JURISDICTION OTHER THAN NEW JERSEY, YOUR JURISDICTION (INCLUDING THE PROVINCE OF QUEBEC) MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, LOSSES OR LIABILITY, SO SOME OR ALL OF THE FOREGOING LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. IN SUCH CASE, EXCLUSIONS AND LIMITATIONS WILL APPLY TO THE GREATEST EXTENT CONSISTENT WITH APPLICABLE LAW. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSQUENTIAL DAMAGES, FRESHII’S LIABILITY IN SUCH JURISDICTIONS FOR SUCH DAMAGES SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW.

c. Fundamental elements. The limitations of liability set forth above are fundamental elements of the basis of the bargain between Freshii and you and are material inducements for the provision of the Services by Freshii and/or its service providers.

indemnification

You agree to defend, indemnify and hold each of the Freshii Parties, harmless from and against any and all claims, suits, losses, damages, liabilities, fines, penalties, costs and expenses, including reasonable fees and expenses of counsel, relating to or arising from (i) your connection to or use of the Services or the Freshii Content, (ii) your violation of any of this Agreement or the rights of Freshii or any third party, (iii) any of Your Content or any other content or materials uploaded, posted, transmitted, distributed, submitted or otherwise made available through the Services by you or your Account, (iv) your misuse of the Services, including, but not limited to, Scan to Pay, MOP or the Delivery Services, (v) your violation of any rights of any third party (or any other party), including any other users of the Services, or (vi) your violation of any applicable laws, rules or regulations. Freshii reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Freshii in asserting any available defenses of Freshii’s choosing. You agree that this Section will survive any termination of this Agreement or your access to, or use of, the Services.

modifications to the services

Freshii reserves the right, for any reason, at any time, to modify or discontinue, temporarily or permanently, the Services, or any portion thereof, including the Freshii Content, features or hours of availability, with or without notice. Freshii may impose limits on certain features of the Services or restrict your access to part or all of the Services without notice or penalty. You agree that the Freshii Parties shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services.

ordering and paymenta. Orders. Freshii reserves the right to deny any order for any reason, including if: (i) we discover an error in pricing and/or other information about the Product ordered or receive insufficient or erroneous billing, payment, and/or delivery information, (ii) we suspect an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. We may also refuse any order that is connected with a previous payment dispute. If any Product is discontinued or otherwise becomes unavailable, Freshii reserves the right to cancel your order and provide you a refund for the amount paid for the Product. Freshii reserves the right to revoke any stated offer.

b. Prices and payments. Prices are subject to change without notice. You agree to pay all prices, fees and charges in connection with all orders made from your Account in accordance with the prices, fees, charges and billing terms in effect at the time the order is made, regardless of whether you actually receive the applicable Product. You also agree to pay all applicable taxes in connection with such orders. You acknowledge and agree that all prices, fees and charges in connection with any order made from your Account shall be in the currency ordinarily used by the applicable Freshii location from which the order is made. You acknowledge and agree that you must provide valid payment information (such as a credit card, debit card and/or Freshii Card (as defined below)) in order to make an order from an Account and such payment information may be saved or stored within the Services for future use. You acknowledge and agree that, without limitation, an App command, SMS command, web browser command or other similar command in respect of placing an order that originates from your Account constitutes an authorization for the Services to charge the applicable amounts and you assume all liability for and shall promptly pay any and all such amounts.

There may be data usage or other like fees owed to your mobile, internet or network provider resulting from use of the Service. You are responsible for such fees, and you are responsible for payment of any items purchased through the Services. All prices, fees and charges paid are non-refundable, except as approved by Freshii in its sole and absolute discretion, or, if such refund request is in respect of the Delivery Services and is referred to a Delivery Provider by Freshii, in such Delivery Provider’s sole and absolute discretion.

Payment processing. Payments through the Services are processed using a third-party platform and payment processor, as provided by our service provider(s). By making an order through the Services, you also agree: (i) to be bound by such third-party platform’s and payment processor’s terms of service and privacy policy, (ii) the payment method(s) you provide and select on the Services will immediately be charged for all fees and taxes applicable to your order, (iii) payment information and instructions required to complete the payment transactions may be stored by and shared between Freshii, its Rewards and payment processing service providers, and any of their respective service providers or subcontractors (such as providers of credit card transaction processing, merchant settlement and related services), and (iv) no additional notice or consent is required for the foregoing authorizations. You agree to immediately update your Account in the event of any change in your payment information. Freshii reserves the right at any time to change its prices and billing methods. For certain additional information, please refer to the terms of service and privacy policy of CardConnect and AWS.

You hereby acknowledge and agree that when you save or store a valid credit card or Visa debit card as a payment method in your Account, Freshii or its payment processor may verify such credit card or Visa debit card, as applicable, by applying a $0.01 charge on such credit card or Visa debit card, as applicable, followed by a refund of the same amount within a reason time thereafter.

In the event that you make an order from your Account from of a Freshii location that transacts in a currency other than the default currency applicable to your chosen payment method, the amounts charged to such payment method may be subject to the currency exchange rate use by the provider of such payment method and you may be subject to additional fees and charges from the provider of such payment method. In the event that the foregoing payment method is a Freshii Card, the payment will be subject to the currency exchange rate used by the provider of Freshii Cards as set out in the Freshii Card Terms (as define below).

c. Promotions. Freshii may, in its sole and absolute discretion, create discounts and promotional codes or other features or benefits, subject to any additional terms that we establish on a per promotion basis (“Promo Codes”). Unless otherwise expressly stated on the applicable Promo Code, Promo Codes may only be used once per person. Only Promo Codes sent to you through communications channels authorized by Freshii are valid. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner, (ii) may not be duplicated, sold, or transferred in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly permitted by Freshii, (iii) may be disabled by Freshii at any time for any reason without liability for any of the Freshii Parties, (iv) may only be used pursuant to the specific terms that Freshii establishes for such Promo Code, (v) are not redeemable for cash (unless otherwise required by the laws of the jurisdiction applicable to you), and (vi) may expire prior to your use. Unless otherwise stated at the time of issuance, all Promo Codes expire 7 days after issuance.

Special terms may apply to some products or services offered on the Services, or to any sweepstakes, contests or promotions that may be offered by Freshii. Such special terms (which may include official rules) may be posted in connection with the applicable product, service, sweepstakes, contest, promotion, feature or activity. Any such special terms are in addition to this Agreement and, in the event of a conflict, any such terms shall prevail over this Agreement solely in respect of the subject matter of such special terms.

d. Freshii Cards and Account Balances. Freshii may allow you to purchase physical or virtual stored value cards (each a “Freshii Card”). The terms and conditions of Freshii Cards are provided within the applicable terms below (the “Freshii Card Terms”). Additionally, Freshii may provide other means by which an amount may be associate with your Account, such as referral rewards and other benefits. Amount balances remaining on Freshii Cards, or any other balances associated with your Account (including, but not limited to, referral rewards and other benefits), are not redeemable for cash, unless the laws of the jurisdiction applicable to you require that that a balance of an amount prescribed by such laws (or any lesser amount) be redeemable for cash, in which case you may redeem a balance of such prescribed amount (or such lesser amount) that is required by such law to be redeemable for cash by making a request to so redeem the applicable amount to [email protected]. Where such laws provide more than one prescribed amount, the prescribed amount applicable to this Agreement shall be the lowest prescribed amount that may be properly applied in accordance with such laws.

e. Rewards Program. If you register for an Account, you must agree to the terms and conditions of the Freshii Rewards Program available below within the applicable terms (the “Rewards Program”). If you do not agree to the Rewards Program, you may not participate in the Freshii Rewards Program.

f. Scan to Pay. If you download the App to a device, you may also elect to participate in certain functionality of the App which will allow you to use a device to purchase Products at participating locations by applying your selected payment method (such as credit card, debit card or Freshii Card) by use of barcode, NFC or similar methods, as available at the applicable location (“Scan to Pay”). Scan to Pay is accepted at all company operated Freshii locations and some Freshii licensed or franchised locations. Freshii reserves the right at any time to discontinue Scan to Pay, to change the locations that offer Scan to Pay and/or to change the payment methods that may be used in connection with Scan to Pay.

g. In-App Mobile Ordering and Payment. If you download the App to a device, you may also elect to participate in certain functionality of the App which will allow you, in respect of certain Freshii locations and in certain markets, to use the App to order and pay for certain Products made available by such Freshii location prior to arrival at the store (“MOP”). Freshii reserves the right at any time to discontinue MOP, to change the location of stores or markets offering MOP, to change or limit the ordering options and limitations for items available through MOP and/or to change the payment methods that may be used in connection with MOP.

12 communications

a. Email communications. If you sign up for an Account, you may choose to opt in to receive promotional email communications from Freshii, and you may also receive email communications relating to your Account and your transactions (collectively, “Email Communications”). You may, at any time, opt out of receiving promotional Email Communications from Freshii by selecting the unsubscribe link contained within a promotional Email Communication (and completing any subsequent steps indicated within such link). If you opt out of receiving promotional Email Communications from us, we may still send you Email Communications regarding your Account and your transaction, including, but not limited to, emails about changes to your Account preferences or summaries of your purchases.

b. Push notifications. The App includes push notifications from Freshii to your device, which may include promotional communications, offers, messages relating to your orders (including, but not limited to, confirmations, receipts and notifications regarding the status, delivery updates and/or pickup location, as applicable), customer service communications, and account-related and system messages (“Push Notifications”). You may, at any time following download of the App, opt out of receiving all Push Notifications by disabling the App’s Push Notifications within the device’s notification settings. Opting out of Push Notifications will not affect User settings with respect to Email Communications.

c. In-App messaging. By using the App, in-app messages will automatically be displayed to you via the App display. Such messages may include promotional communications and offers. If you do not wish to see or receive such messages, you must cease use of the App.

d. Contacting other users. If you choose to use App features that allow you to send messages or digital Freshii Cards to third parties, you must obtain the third party’s permission to provide his or her personal information, such as name or email address, to Freshii and the App, and such third party must agree to this Agreement, and all other Freshii terms and policies incorporated herein. You may only send messages or Freshii Cards to third parties with whom you have had a voluntary two-way communication and with whom who you have a personal relationship, or to family members to whom you are related by blood relationship, marriage, a common-law partnership, or adoption.

e. Calls, SMS and similar communications. Freshii may offer communications via calls, SMS text messages or similar technology (including via automatic telephone dialing equipment) and you hereby consent to receiving such communications and, if necessary, will provide any other such consents required by applicable law. These communications may be sent or initiated by Freshii or any of its service providers, including any Delivery Provider, such as when such parties send you text messages to confirm, process and notify you about the status, delivery updates and/or pickup location, as applicable, of an order you place with us, provide you with a receipt, or for any customer service, account-related or marketing purposes. Message and data rates may apply. Message frequency may vary according to how you interact with the Services. To stop receiving text messages from a short code operated by Freshii, reply STOP to any message you receive from such short code. You agree we may send you a message to confirm your receipt of your STOP request. You acknowledge and agree that our platform may not recognize and respond to texted unsubscribe requests that do not include the STOP keyword and agree that the Freshii Parties will have no liability for failing to honor such requests. For assistance with any text message issues, reply HELP to any text message you receive. You can also opt out or request assistance by contacting our customer assistance team at [email protected] with your request and mobile telephone number. To stop receiving text messages from Freshii’s service providers, you may need to contact such service provider’s customer support. Not all mobile devices may be supported and text messaging may not be available in all areas. Freshii and the mobile carriers supported and used by the Services and any Delivery Provider are not liable for delayed or undelivered text messages. You represent that all information you provide through the Services (including but not limited to your telephone number(s) and other contact information) will be accurate, current and truthful to the best of your knowledge. You consent to Freshii’s use of such information in accordance with the Privacy Policy.

f. Telephone calls with Freshii. You acknowledge and agree that any telephone calls between you and Freshii representatives may be recorded and/or monitored for training, quality assurance or other business purposes.

13 governing laws and dispute resolution

Except where prohibited by applicable law, which may include the Province of Quebec, the following terms apply to this Agreement and all legal disputes between you and Freshii.

a. Applicable law. This Agreement is governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any principles of conflicts of law or any other principles that provide for the application of the law of another jurisdiction. Except where prohibited by applicable law, which may include the Province of Quebec, by using the Services, you waive any claims that may arise under the laws of other states, provinces, countries, territories or jurisdictions. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

You acknowledge and agree that the Services are controlled within Canada. Those who choose to access the Services from locations outside of Canada do so on their own initiative and are responsible for compliance with local laws if and to the extent local laws are applicable. Freshii does not represent or warrant that the Services or Content are appropriate outside Canada.

b. Submission to jurisdiction. In the event that a dispute cannot, by applicable law, be subject to binding arbitration (as set forth below), the parties hereto irrevocably submit to the jurisdiction of the courts of the Province of Ontario, in the City of Toronto, except where prohibited by applicable law, which may include the Province of Quebec.

c. Negotiation and arbitration. Except where prohibited by applicable law, which may include the Province of Quebec, with respect to any and all disputes arising out of or relating to the Services or this Agreement (including the Privacy Policy), Freshii and you agree to negotiate in good faith to achieve a mutually satisfactory resolution. Except where prohibited by applicable law, which may include the Province of Quebec, all disputes arising under this Agreement that cannot be settled through informal negotiation will be settled exclusively through confidential binding arbitration in accordance with the Arbitrations Act (Ontario) as modified by this agreement. Unless you and Freshii agree otherwise, any arbitration will take place in Toronto, Ontario, and will be conducted in the English language. The arbitrator’s award shall be binding and may be entered as a judgment in a court of competent jurisdiction. You agree that Freshii may seek any interim or preliminary relief from a court of competent jurisdiction, necessary to protect its rights or property pending the completion of arbitration. All administrative fees and expenses of an arbitration will be divided equally between you and Freshii. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.

No arbitration or proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.

d. Class action waiver and jury waiver. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR FRESHII WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NEITHER YOU, NOR ANY OTHER USER, MAY ACT AS A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. IF FOR ANY REASON A CLAIM PROCEEDS TO COURT RATHER AN THROUGH ARBITRATION, YOU AND FRESHII EACH WAIVER ANY RIGHT TO A JURY TRIAL.

e. Limitations period. To the maximum extent permitted by applicable law, you permanently and irrevocably waive the right to bring any claim, motion, proceeding or other form of action in any forum unless you provide Freshii with written notice of the event or facts giving rise to such claim, motion, proceeding or other form of action within six (6) months of their occurrence.

14 general provisions

a. Entire agreement. The terms contained in this Agreement (which is supplemented by and incorporates other Freshii terms and policies, including the Privacy Policy, the Rewards Program and the Freshii Card Terms, posted on one or more of the applicable Services) constitute a binding agreement between you and Freshii and supersedes all prior agreements between the you and Freshii regarding the subject matter herein. In the event of a conflict or inconsistency between this Agreement and any other Freshii terms and policies incorporated herein, this Agreement shall prevail except as otherwise stated herein or therein.

b. Severability and construction. If any provision of this Agreement shall be found by a court of competent jurisdiction to be unlawful, invalid, void, or for any reason unenforceable then that provision shall be deemed to be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and if no such construction is possible, shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions, and shall not affect the construction, validity and enforceability of such construed or severed provision in any other jurisdiction. Headings are for reference only and in no way define, limit, construe or describe the scope or extent of such section. All references to “include” or “including” in this Agreement shall be interpreted as “include, without limitation,” or “including, without limitation,”, as applicable. All of your obligations contained herein shall be without limitation to any of your other obligations herein. It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

c. Assignment and waiver. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Freshii’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of the same or any other provision on any other occasion.

d. Applicability and reservation of rights. Any future release, update or other addition to the Services shall be subject to this Agreement. Freshii reserves all rights not granted in this Agreement. Any unauthorized use of Services terminates the licenses granted by Freshii pursuant to this Agreement. Notwithstanding anything else contained herein, Freshii reserves all rights or remedies that may be available to Freshii under law, equity or otherwise. All references to rights or remedies of Freshii contained herein shall be cumulative with and shall not limit any other rights or remedy available to Freshii.

e. Termination and survival. Freshii reserves the right, at its sole and absolute discretion, immediately and without notice, to restrict, suspend or terminate your access to the Services (or any one of them) and/or your Account, for any reason, including, without limitation, any breach by you of this Agreement or fraudulent conduct. You agree that the Freshii Parties shall not be liable to you or any third party for any such restriction, suspension or termination.

This Agreement is effective until terminated by Freshii, which Freshii may do at any time, without notice, in its sole and absolute discretion. If you become dissatisfied with the Service, your only recourse is to immediately discontinue use of the Services. All provisions of this Agreement regarding representations, warranties, indemnification, disclaims, and limitations of liability, and any other terms which, to give proper effect, should reasonably survive termination, shall survive the termination of this Agreement.

f. Force Majeure. The Freshii Parties shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.

g. Notices and electronic communication. Where Freshii requires that you provide an email address, you are responsible for providing Freshii with your most current email address. In the event that the last email address you provided to Freshii is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Freshii’s dispatch of the email containing such notice will nonetheless constitute effective notice. You may give notice to Freshii at the following address: Freshii, 1027 Yonge Street, 3rd Floor, Toronto, Ontario M4W 2K9, Attn: Legal. Such notice shall be deemed given when received by Freshii by letter delivered by nationally (or internally, as applicable) recognized overnight delivery service or first class postage prepaid mail at the above address. Other communications between you and Freshii use electronic means, whether you use the Services or send Freshii emails, or whether Freshii posts notices on the Services or communicates with you via email. For contractual purposes, you (1) consent to receive communications from Freshii in an electronic form; and (2) agree that all terms and conditions, agreements, notices (including those referred to above), disclosures, and other communications related to this Agreement that Freshii provides to you electronically satisfy any legal requirement that such communications would satisfy if they were made in writing in a physical document. The foregoing does not affect your statutory rights.

h. Export control. You may not use, export, import, or transfer Services except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Services, and any other applicable laws. In particular, but without limitation, Services may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Services, you represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.

i. Complaint (California). In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

15 for more information

If you have any questions, complaints or comments about this Agreement, please email us at [email protected] or contact us by using another method included in the “Contact Us” pages on the Site or the App.

freshii cards terms and conditions

This Freshii Card Agreement (“Agreement”) is between you and Freshii Inc. (“Freshii”, “we” or “us”) and describes the terms and conditions that apply to Freshii virtual and physical stored value cards (“Freshii Cards”). By purchasing, loading, accepting or using a Freshii Card, you agree to the terms and conditions contained in this Agreement. If you do not agree with this Agreement, do not purchase, load, accept or use a Freshii Card. All defined terms used in this Agreement but not defined herein shall have the meanings given to them in the terms and conditions of the Services (as defined therein) available at terms and conditions of use (the “Terms”). All dollar values referred to herein shall refer to the Card Currency (as defined below) applicable to the relevant Freshii Card.

You agree that we may provide notices, disclosures and amendments to this Agreement, and other information relating to your Freshii Card by electronic means, including posting such materials on any one or more of the Services (as defined in the Terms).

Your Freshii Card

A Freshii Card allows you to load a dollar value onto your Freshii Card for use at participating Freshii locations in Canada and the United States. The dollar value that you load onto your Freshii Card is a prepayment only for the goods and services of such participating Freshii locations. No deposit account, credit line or overdraft protection is associated with a Freshii Card, and no interest, dividends or any other earnings on funds deposited onto a Freshii Card will accrue or be paid or credited to you by Freshii or its affiliates. Unless otherwise required by law or permitted by this Agreement, the dollar value on your Freshii Card is non-refundable and may not be redeemed for cash. The value on your Freshii Card is not insured by the Canadian Deposit Insurance Corporation (CDIC) or the Federal Deposit Insurance Corporation (FDIC).

We reserve the right to not accept, load, re-load, issue, transfer or re-issue any Freshii Card or to otherwise limit the use of a Freshii Card for any reason in our sole and absolute discretion.

Certain Freshii-branded locations may not permit you to use the Freshii Card for payment, including some airport, kiosks, stadiums and other locations.

Freshii Cards are not targeted towards, nor intended for use by, anyone under the age of 13. If you are between the ages of 13 and 18, you may only use Freshii Cards under the supervision of a parent or legal guardian who agrees to be bound by this Agreement.

Registering Your Card

Once you have purchased or received your Freshii Card you can register it by entering the Freshii Card number into the corresponding section of the Freshii mobile app (the “App”) or selecting the link and following the instructions included in an email containing a Gift Card (as defined below) in order to link such Freshii Card to your account and to access the additional features that may be made available by Freshii from time to time. After your Freshii Card has been registered and linked to your Account, you will receive emails from us for purposes of (a) establishing, administering and safeguarding your Account, including confirmation of re-loads and verification of Accounts; (b) offering you rewards, offers or other products and services Freshii feels you may wish to receive; and (c) such other purposes as set out in Freshii’s privacy policy available at https://orders.freshii.com/en/privacy-policy (the “Privacy Policy”)..

If we suspect that you have not provided truthful or accurate information or updated such information in the registration of your Account or your Freshii Card, we shall have the right, in our sole and absolute discretion, to disable your Freshii Card. You are responsible for the accuracy of all information that you provide to us and maintaining the confidentiality and security of your Freshii Card information.

Loading Value on Your Card

In Canada and the United States, you can load and re-load value on your (i) virtual Freshii Card by visiting any participating Freshii location or by going online to orders.freshii.com or the applicable section of the App and using a valid payment method associated with your Account, or (ii) physical Freshii Card, in person at a participating Freshii location. There may be a delay from the time you pay the amount to be loaded onto your Freshii Card and those funds being available for use.

Currently, at a participating Freshii location, online, or through the App, you may load or re-load an amount of $0.01 or greater, provided that the maximum amount of value that may be associated with your Freshii Card at any one time is $250.00, and therefore you may not load or re-load any amount that would result in a greater amount of value being associate with your Freshii Card. The minimum amount of value that may be associated with your Freshii card at any one time is $0.00. We may change any of the foregoing amounts at any time without notice to you.

All amounts loaded on your Freshii Card are held and denominated in the currency of the country in which the Freshii Card was sold or received, or in the case of Gift Cards (as defined below), the currency chosen by the purchaser (in either case, the “Card Currency”). Freshii Cards bought in Canada may be used in the United States, and Freshii Cards bought in the United States may be used in Canada. When you make a purchase in country that ordinarily uses a currency other than the Card Currency, the transaction total is converted from the local currency of that country to the Card Currency and deducted from the account. No fees or other charges are made to your Freshii Card for the conversion. However, note that your bank or card provider may charge you a separate fee if you are using a credit or debit card or other accepted payment method to load or re-load your Freshii Card, if such payment method is based in a currency other than the Card Currency. Although the actual balance of your Freshii Card is held in the Card Currency, in the case of a physical Freshii Card, the balance shown on your receipt will be in the local currency of the Freshii location, and in the case of a virtual Freshii Card, the balance will be shown in the Card Currency in the applicable section of the App. Currency conversions are based on applicable currency exchange rates used and determined by Freshii’s service provider for Freshii Cards, Givex.

Automatic reload is also available online through your Account (available on the Freshii website and through the App). You can set up automatic re-load by accessing the applicable settings within your Account settings, selecting your valid payment method for automatic re-loading, and indicating the balance at which you want to re-load and the amount of each such re-load. Your valid payment method will be billed according to the schedule and in the amounts selected by you in accordance with the foregoing instructions. We will send you an email confirming the automatic re-load transaction terms and will also send you an email after each re-load transaction occurs. You can change your re-load preferences at any time, but changes may take up to forty-eight (48) hours to go into effect.

To stop the automatic re-load feature, you must log-in to your Account at orders.freshii.com or in the App, at least forty-eight (48) before the next scheduled re-load. Once the dollar value is loaded, the re-load transaction cannot be reversed.

Freshii Gift Cards

The Gift Card program allows you to purchase and send a virtual Freshii Card via email to another person (such Freshii Cards also referred to herein as “Gift Cards”). You may choose the dollar value (within certain limits), currency (if sending to an individual in another country) and complete your purchase using a credit card or Visa debit card. Other applicable payment methods may be accepted at participating Freshii locations that permit the purchase of Gift Cards. You will need the email address for the recipient of your Gift Card. You may choose when to have your Gift Card delivered, either the same day, provided that your form of payment is approved, or at a future date. You authorize us to charge your applicable payment method at the time you purchase your Gift Card regardless of the date you choose for delivery.

On the requested delivery date, we will send the recipient of your Gift Card an email notifying them that they have received a Gift Card from you. He or she will have the option of printing out the Gift Card and bringing it into a participating Freshii location to make a purchase (by providing the applicable Freshii Card number or by scanning the quick response (QR) code) or loading the Gift Card into the App’s digital wallet to be used in the same manner as other Freshii Cards contained in the digital wallet. The recipient will also have the option to register the Gift Card for use with the App. A Gift Card is like any other Freshii Card and should be treated like cash by the recipient. All terms and conditions applicable to Freshii Cards are also applicable to Gift Cards.

Each Gift Card has a unique Freshii Card number associated with it. Unless otherwise required by law or permitted by this Agreement, Gift Cards are non-refundable and may not be redeemed for cash.

Promotional Programs

From time to time, we may, in our sole discretion, run promotional programs associated with the Freshii Card program (“Promotions”). Such Promotions are subject to this Agreement, as well as additional terms as indicated in connection with the Promotions. We reserve the right to modify the terms and conditions of any Promotion at any time, including and up to terminating the Promotion. In the event of a conflict between the terms and conditions of any Promotion and this Agreement, the terms and conditions of the Promotion shall prevail only in respect of such Promotion and in respect of such conflict.

Fees and Expiration of Balances

We do not charge any fees for the issuance, activation or use of your Freshii Card. Your Freshii Card has no expiration date nor does the value on your Freshii Card ever expire.

Receipts and Transaction History

Holders of Freshii Cards are not sent statements of itemized transactions from a Freshii Card, however, you can find the receipt for each transaction conducted through the App, including those using a Freshii Card, in the Order History section of the App, which will indicate that the specific purchase was made using a Freshii Card. You can check the remaining balance of your Freshii Card at a participating Freshii location and, if Freshii determines to offer such functionality, in the applicable section of the App and/or at orders.feshii.com. If a purchase is made with a physical Freshii Card, your receipt from a point-of-sale register will indicate that the purchase was made using a Freshii Card. You should retain your receipts and check your online transaction history regularly to ensure that your transaction history and account balance are correct.

Billing Errors, Corrections

We reserve the right to correct the balance of your Freshii Card if we believe that a clerical, billing or accounting error occurred. We shall have no liability for any billing error unless you provide us notice within sixty (60) days of the date of the transaction in question, and if any such liability applies, such liability shall be limited to correcting such error.

Fraud with Freshii Cards

We reserve the right to not accept any Freshii Card, or limit use of any Freshii Card or its balance, if we reasonably believe that the use is unauthorized, fraudulent or otherwise unlawful, and we consider such action appropriate to limit our risk. Freshii does not control who may sell pre-loaded Freshii Cards, nor can we control the price or pre-loaded denominations offered by independent sellers. Freshii has no liability to you for any third party fraud or unlawful activity associated with any Freshii Card or its balance. We may cancel any impacted Freshii Cards and retain the balances of such Freshii Cards without notice if we determined (in our sole and absolute discretion) that such Freshii Cards or balances were derived from unauthorized, fraudulent or otherwise unlawful means. We may use retained Freshii Card balances for any purpose we deem appropriate.

Liability for Unauthorized Transactions

You should treat your Freshii Card like cash and not disclose your Freshii Card information to anyone. If your Freshii Card or associated information is lost or stolen, anyone who obtains possession of either may use your Freshii Card. You are responsible for all transactions on your Freshii Card, including unauthorized transactions. However, if your Freshii Card is lost, stolen or destroyed, your Freshii Card can be replaced with the balance remaining on it at the time you contact us, but only if you have previously registered it with us.

If your registered Freshii Card becomes lost, stolen or damaged, contact us immediately by emailing [email protected] or by contacting us using another method included in the “Contact Us” page of the Freshii website or the App. Your registered Freshii Card balance is protected only from the time you notify us. We will freeze the remaining balance on your Freshii Card at the time you notify us and will load that remaining balance on a replacement Freshii Card.

Privacy Policy

Please review the Privacy Policy carefully to understand how Freshii collects, uses and discloses information about customers, how to update or change your personal information and how we communicate with you. If you wish to withdraw your consent to email communications containing rewards, offers or other products and services Freshii feels you may wish to receive, you may contact us at [email protected], or by another method included in the “Contact Us” page of the Freshii website or the App or, as applicable, you can follow the “unsubscribe” link included in the applicable email. You can use the foregoing contact information to request we mail you a copy of the Privacy Policy.

Amendments

We may from time to time modify or revise this Agreement, and may provide notices, disclosures and amendments in respect of this Agreement by electronic means, including by positing the revisions or revised Agreement on any one or more of the Services (as defined in the Terms). Other than as prohibited or limited by applicable law, any change, addition or deletion will become effective at the time we post the revision or revised Agreement to such Services. Unless we state otherwise, the change, addition or deletion will apply to your future and existing Freshii Cards. You are deemed to accept the changes, additions or deletions if: (1) you do not notify us to the contrary in writing within 20 days of the date of our posting of the revisions or revised Agreement or such other time as may be specified by us in such posting; or (2) you use any of your Freshii Cards after such notice period. If you notify us that you do not accept the changes, additions or deletions, we may cancel your Freshii Cards and, subject to the terms of this Agreement, refund any remaining balance to you.

Suspension or Termination

We may suspend or terminate this Agreement and revoke or limit any or all of the rights and privileges granted to you at any time, with or without reason, and without notice or liability. Termination may result from your fraudulent or unauthorized use of Freshii Cards including: (i) your failure to provide valid information, or (ii) sending Gift Cards to other Accounts solely for the purpose of obtaining rewards that may be associated with such Gift Cards. If we terminate this Agreement without cause, we will refund or issue store credits equal to the balance on your cancelled Freshii Card(s), less any amounts that you may owe us.

Governing Law

This agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without giving effect to any principles of conflicts of law or any other principles that provide for the application of the law of another jurisdiction.

Arbitration

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS RIGHTS THAT YOU MAY OTHERWISE HAVE. IT PROVIDES FOR RESOLUTION OF MOST DISPUTES THROUGH ARBITRATION INSTEAD OF COURT TRIALS AND CLASS ACTIONS. ARBITRATION IS FINAL AND BINDING AND SUBJECT TO ONLY VERY LIMITED REVIEW BY A COURT. THIS ARBITRATION CLAUSE SHALL SURVIVE TERMINATION OF THIS AGREEMENT.

Binding Arbitration

This provision is intended to be interpreted broadly to encompass all disputes or claims arising out of the relationship between you and Freshii. Any dispute or claim made by you against Freshii or its parents, subsidiaries (wholly or partially owned) or affiliates arising out of or relating to this Agreement or the use of a Freshii Card (whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory) will be resolved by binding arbitration except that you or Freshii may choose to pursue claims in court if the claims relate solely to the collection of any debts you owe to Freshii or its affiliates or franchisees. In respect of any claim that may be made in court, you and Freshii both waive any claims for punitive damages and any right to pursue claims on a class or representative basis.

Arbitration Procedures

Prior to initiating any formal proceedings, you must first present any claim or dispute you may have to Freshii by contacting [email protected] and cooperating in good faith to resolve such claim or dispute. If such claim or dispute is not resolved within sixty (60) days, you may request arbitration. The arbitration of any such claim or dispute shall be conducted in accordance with the Arbitrations Act (Ontario) as modified by this agreement. Unless you and Freshii agree otherwise, any arbitration will take place in Toronto, Ontario, and will be conducted in the English language. An arbitrator may not award relief in excess of or contrary to what this Agreement provides, order consolidation or arbitration on a class wide or representative basis, or award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award on an individual basis damages required by statute and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute. Any arbitration shall be confidential, and neither you nor Freshii may disclose the existence, content or results of any arbitration, except as may be required by applicable law or for purposes of enforcement of the arbitration award. Judgment on any arbitration award may be entered in any court having proper jurisdiction. If any portion of this arbitration clause is determined by a court to be inapplicable or invalid, then the remainder shall still be given full force and effect.

Costs of Arbitration

All administrative fees and expenses of an arbitration will be divided equally between you and Freshii. In all arbitrations, each party will bear the expense of its own counsel, experts, witnesses and preparation and presentation of evidence at the arbitration.

Class Action Waiver and Jury Waiver.

EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, WHICH MAY INCLUDE THE PROVINCE OF QUEBEC, ANY PROCEEDINGS TO RESOLVE OR LITIGATE ANY DISPUTE WILL BE CONDUCTED SOLELY ON AN INDIVIDUAL BASIS. NEITHER YOU NOR FRESHII WILL SEEK TO HAVE ANY DISPUTE HEARD AS A CLASS ACTION OR IN ANY OTHER PROCEEDING IN WHICH EITHER PARTY ACTS OR PROPOSES TO ACT IN A REPRESENTATIVE CAPACITY. NEITHER YOU, NOR ANY OTHER USER, MAY ACT AS A CLASS REPRESENTATIVE, CLASS MEMBER OR OTHERWISE PARTICIPATE IN A CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. IF FOR ANY REASON A CLAIM PROCEEDS TO COURT RATHER AN THROUGH ARBITRATION, YOU AND FRESHII EACH WAIVER ANY RIGHT TO A JURY TRIAL.

Disclaimers and Limits of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, FRESHII, ITS PARENTS, SUBSIDIARIES (WHOLLY AND PARTIALLY OWNED) AND AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, FRANCHISEES, LICENSEES, SHAREHOLDERS AND AGENTS (THE “FRESHII PARTIES”) EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

THE LAWS OF CERTAIN JURISDICTIONS (WHICH MAY INCLUDE THE PROVINCE OF QUEBEC) MAY NOT ALLOW OR MAY LIMIT THE EXCLUSION OR LIMITATION OF CERTAIN REPRESENTATIONS, WARRANTIES OR CONDITIONS, SO SOME OR ALL OF THE FOREGOING DISCLAIMERS MAY NOT APPLY TO YOU. IN SUCH CASE, THE ABOVE EXCLUSION OR LIMITATIONS SHALL APPLY TO YOU TO THE FULLEST EXTENT CONSISTENT WITH SUCH APPLICABLE LAW.

IN THE EVENT THAT ANY FRESHII PARTIES ARE FOUND LIABLE TO YOU, YOU SHALL ONLY BE ENTITLED TO RECOVER ACTUAL AND DIRECT DAMAGES AND SUCH DAMAGES SHALL NOT EXCEED THE LAST BALANCE HELD ON YOUR FRESHII CARD PRIOR TO THE TIME AT WHICH SUCH DAMAGES AROSE. SUBJECT TO ANY PROHIBITION OR LIMITATION UNDER APPLICABLE LAW (INCLUDING WITH RESPECT TO LIABILITY FOR PERSONAL INJURY OR NON-WAIVABLE STATUTORY RIGHTS UNDER NEW JERSEY LAW), IN NO EVENT (INCLUDING WITHOUT LIMITATION THE NEGLIGENCE OF FRESHII) SHALL THE FRESHII PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS OR REVENUE, LOSS, THEFT OR CORRUPTION OF USER INFORMATION, THE INABILITY TO USE THE APPLICATION OR ANY OF ITS FEATURES, DEVICE FAILURE OR MALFUNCTION, OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT (INCLUDING FUNDAMENTAL BREACH), WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY, EVEN IF FRESHII HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE FRESHII PARTIES HAVE ANY LIABILITY FOR UNAUTHORIZED ACCESS TO, OR ALTERATION, THEFT OR DESTRUCTION OF A FRESHII CARD THROUGH ACCIDENT, MISUSE, OR FRAUDULENT MEANS OR DEVICES BY YOU OR ANY THIRD PARTY, OR AS A RESULT OF ANY DELAY OR MISTAKE RESULTING FROM ANY CIRCUMSTANCES BEYOND THEIR CONTROL.

Assignment

Freshii may assign all or part of this Agreement without notice to you. In the event of such assignment by Freshii, Freshii shall be released from all liability. You may not assign this Agreement without Freshii’s prior written consent and any attempted assignment without such consent will be null and void.

Entire Agreement, Construction

The terms contained in this Agreement (which is supplemented by and incorporates the Terms and other Freshii terms and policies, including the Privacy Policy and terms and conditions of the Freshii Rewards Program available within the applicable terms below, in each case as may be posted on one or more of the applicable Services (as defined in the Terms)) constitutes a binding agreement between you and Freshii and supersedes all prior agreements between you and Freshii regarding the Freshii Cards. In the event of a conflict or inconsistency between this Agreement and the Terms, this Agreement shall prevail solely to the extent such that the applicable matter relates to Freshii Cards, and in all other respect the Terms shall prevail. If any provision of this Agreement shall be found by a court of competent jurisdiction to be unlawful, invalid, void, or for any reason unenforceable then that provision shall be deemed to be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and if no such construction is possible, shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions, and shall not affect the construction, validity and enforceability of such construed or severed provision in any other jurisdiction. Headings are for reference only and in no way define, limit, construe or describe the scope or extent of such section. All references to “include” or “including” in this Agreement shall be interpreted as “include, without limitation,” or “including, without limitation,”, as applicable. All of your obligations contained herein shall be without limitation to any of your other obligations herein.

It is the express wish of the parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que cette convention ainsi que tous les documents qui s’y rattachent soient rédigés en anglais.

For More Information

If you have any questions, complaints or comments about this Agreement, please email us at [email protected] or contact us using another method included in the “Contact Us” page of the Freshii website or the App.

Read our Rewards policy