Terms

General Terms and Conditions

Effective Date: October 28, 2022

These General Terms and Conditions (these “Terms and Conditions”) govern the access and use of the mobile applications, products, software, websites, APIs, network and services provided by Fresh2 Holding Inc and/or any affiliated companies (“Fresh2”), and, where applicable, services offered through Fresh2’s third-party service providers (collectively, “Services” or our “Platform”). 

By using the Platform, you agree to follow and be bound by these Terms and Conditions and any policies, disclosures and agreements referenced herein, applicable and/or available on our website or Platform, including, without limitation, our Privacy Policy available on our website.

We may modify these Terms and Conditions or any additional terms that apply to the Platform to, for example, reflect changes to the law or changes to the Platform. You should look at these Terms and Conditions regularly and your continued use of the Platform will constitute your acceptance of any revisions to these Terms and Conditions. We will post a notice of modified additional terms in the applicable service. If you do not agree to the modified terms for the Platform or any service we offer, you should discontinue your use of the Platform or that service.

In addition to these Terms and Conditions, your use of certain Fresh2 services, and/or your use of the Platform in a particular region, may also be governed by other applicable terms, disclosures and agreements available on our website or the Platform or delivered to you (collectively, “User Agreements”). In the event of conflict between any User Agreement and these Terms and Conditions, the User Agreement shall control.

When used in these Terms and Conditions, the words “you” or “your” mean the owner of the Account (as defined below)

1. Becoming a User

• In order to use certain Services, you must set up an account as a user (an “Account”). 

• In creating an Account, you will be asked to set up an email and password, and you will be required to set up two-factor authentication (“2FA”). By signing up for our  Services and accepting these terms, by providing a mobile phone number you consent that Fresh2 may contact you by SMS or text message (including by an automatic telephone dialing system) at the mobile phone number you associate with your account for the following:

• Initial phone number verification;
• 2FA via SMS unless you chose an alternative method of 2FA;
• Account management and transactional notifications and communications only. 

Your phone number may be used for marketing messages only if you have expressly consented for such marketing. Your email, password, and 2FA credentials are referred to collectively as “Login Credentials”. You agree that you are responsible for all activities that occur under your Login Credentials. You are responsible for maintaining the confidentiality of your Login Credentials and you agree not to share your Login Credentials with any unauthorized parties. You also agree to notify us promptly of any unauthorized use of your Login Credentials or any other breach of security that you become aware of involving or relating to the Platform by contacting our customer support team. 

1. You can cancel the SMS service at any time. Just text “STOP” to the short code. After you send the SMS message “STOP” to us, we will send you an SMS message with instructions on how to cancel SMS.
2. If you are experiencing issues with the messaging program you can reply with the keyword HELP for more assistance, or you can get help directly at contact@Fresh2.co or by calling (800) 851-5339.
3. Carriers are not liable for delayed or undelivered messages.
4. As always, message and data rates may apply for any messages sent to you from us and to us from you. By providing your consent to the SMS service, you approve any such rates and charges from your mobile provider and agree that Fresh2 is not responsible for such rates and charges. If you have any questions about your text or data plan, please contact your mobile provider. Message frequency is dependent on platform usage and will follow the following methodology- one message per request for 2FA, and one message per account notification. 
5. To the maximum extent permitted by applicable law, you hereby agree that Fresh2, or any third-party service provider that Fresh2 uses to provide the Services, shall not be liable for any direct, indirect, consequential, special, incidental, punitive or any other damages, even if we have been advised of the possibility of such damage or loss, arising or resulting from or in any way relating to your use of the SMS service. Furthermore, Fresh2, or any third-party service provider that Fresh2 uses to provide the Services, shall not be liable for the acts or omissions of third parties, including but not limited to delays in the transmission of messages.
6. If you have any questions regarding privacy, please read our Privacy Policy available on the Fresh2 website.

• We are required to identify users for legal, regulatory and compliance purposes prior to you using our Platform. To ensure we remain in compliance with applicable reporting requirements in the jurisdictions in which we or our partners operate, we may collect and verify your personal information including your legal name, address, government identification, date of birth, Social Security or taxpayer identification number, bank information or credit card information. We may also ask questions and verify information ourselves or obtain personal information from third parties in order to verify your identity, prevent fraud, as well as requesting information from other entities, like banks, for information about you. By agreeing to these Terms and Conditions, you certify under penalty of perjury that the information provided, including your social security or taxpayer identification number, is correct and you agree that we may use the information you provide and other information to verify who you are.

You additionally acknowledge and agree that we may make any inquiries that we consider necessary, either directly or through third parties, concerning your identity including, without limitation, requiring you to take steps to confirm ownership of your email address or financial instruments, ordering a credit report, or verifying information against third party databases or through other sources. These inquiries and verification may involve the sharing of certain aspects of your information with third parties for the limited purpose of completing these inquiries and verification.

• We do not share your information unless required to do so by law, or have your express consent to do so or have another legal basis for sharing such information, e.g., to complete a transaction requested by you, or to prevent fraud. If we share your information with any third party we will do so under our Privacy Policy. 

• If you are setting up an Account on behalf of an entity, you confirm that you are an authorized officer of that entity and have the authority to enter into agreements for and on behalf of that entity. 

• You represent and warrant to us and agree that the following statements are and will remain true: 

• All information you provide to us will be complete and accurate and you commit to keeping all information complete and accurate at all times.
• The information about your address and residency is correct and you will notify us if it changes. 
• You will provide us with your legal identity and any supporting information and documents that we may request.
• You reside in, and will only access the Platform from the United States. 
• Your use of the Platform complies with all applicable laws and regulations. 
• You are at least 18 years old and have the capacity to enter into a legally binding agreement. 
• Any use of our Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and may result in account suspension or termination. You will not engage in any conduct set forth in the Prohibited Uses page on the Fresh2 website.
• You will not access the Platform using automated means of any nature without our prior consent. 
• You will not do anything that could disable, overburden or impair the functionality, rendering or appearance of the Platform, including through denial of service or other attack.

2. Use of the Platform

• We grant you a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Platform solely for informational, transactional, or other approved purposes and reserve all other rights in the Platform, including without limitation, the Fresh2 website, mobile application, APIs and other content. You agree you have no other rights beyond this limited license. You agree you will not copy, transmit, distribute, sell, resell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any content or other part of the Platform for any purpose. You also agree that you will not frame or display any part of the Platform without our prior written permission and that you will not use our trademarks without our permission.

• You understand and agree that the Platform is provided to, and may be used only in the United States.

• You may only create, have, administer and/or control one Account. If you require an additional Account you must first get our written permission to do so. You may request an additional Account through our support contact form with the proposed purpose for an additional Account. We are under no obligation to approve any additional Account. If we find that you have opened, operated and/or are operating an additional Account, or more than one Account at any one time without our permission we reserve all rights, including but not limited to, terminating your Account, revoking your limited license to use the Platform and taking whatever other means we deem necessary to protect our users, us and the Platform.

• Your use of the Platform, or any part thereof, is at your sole risk and we assume no responsibility for the underlying transaction of funds, or the actions or identity of any transfer recipient or sender. If any third party files a claim for a chargeback or we are otherwise informed of a dispute between you and another party, we are not responsible for intermediating, determining the veracity of claims or resolving the dispute, including disposition of any associated economic value of any assets.

3. User experience and restrictions
4. Services. Your Account allows you access to the following Fresh2 Services: (i) view/look up the available food products and details (size/weight/unit) listed on Fresh2 online shopping mall, (ii) mark ‘favorite’, put goods into shopping carts, and make purchase orders of the available food products (“Order”); (iii) manage Orders, meaning edit Order or cancel Order,  as well as view history of Order and details of Order, such as expected delivery time and etc., and (iv) In-App wallet (a “Wallet”) that allow users to prefund the Wallet with funds and use the funds to pay for the ordered goods and services. Fresh2 does not sell alcohol through its Platform.
5. Placing an Order. Orders must be confirmed before the cutoff time. Available delivery dates and delivery fees will be shown during the ordering process. You may modify or cancel orders via your Account before the cutoff time, or by contacting our Customer Service Department at [email protected]
6. Prices. The prices displayed through our Platform may differ from the prices offered by other sellers for the same products, and may not be the lowest prices available. Fresh2 reserves the right to change prices at any time, and to limit your Order or the quantity of a product you may order. If certain products are not priced correctly, Fresh2 may cancel Orders for the products. We will contact you immediately and will issue you a refund for the products.
7. Availability.To provide you the freshest products, we receive goods every day, and products are prepared and packed close to delivery time. On occasion, we may experience disruptions in our supply chain including shortages and quality control concerns. As a result, certain products may become unavailable immediately before the scheduled delivery date. In the event of any supply chain disruption that affects your order, we will deliver the rest of your order and issue you a refund for the unavailable items. In such circumstances, you’ll receive a system notification, and see the unavailable item marked as “Out of Stock” on the invoice. If something is missing from your order, and is marked as “Out of Stock”, please submit a refund request via the the mobile application or the website, or contact our Customer Service Department at [email protected].
8. Cancellations. Before the cutoff time, you may cancel orders. We will charge a fee for cancellations made after the cutoff time. The cancellation fee equals the total amount of the food and any other items that cannot be resold due to the late cancellation and the delivery costs, if Fresh2 delivered products by time of cancellation.
9. Payments. Payments for products or services on Fresh2 Platform may be made through an authorized and unexpired payment card. Fresh2 reserves the right to cancel or amend any Order in the event of an expired, fraudulent, or otherwise suspicious payment method.
10. Account Suspension. Fresh2 reserves the right to close or suspend any Account in the event that the Account is associated with an expired, fraudulent, or otherwise suspicious payment method, any abusive use of our Services, or any violation of breach of these Terms and Conditions.
11. Delivery of Products. We do not require your presence for delivery of products. We will deliver to the address you designate and will leave the package at your door, yard, locker, mailroom, or leasing office. Our delivery personnel follow a designated route and cannot stop to inspect, verify, redirect, delay, or adjust your delivery. In the event we are unable to deliver your package (e.g., incorrect address/missing building, floor, or unit number; no access code, call box number, or buzzer information; no safe drop-off place to protect the package from theft or bad weather) we will attempt to contact you. If we agree on an alternate location and/or time for the re-delivery, a redelivery fee may apply. If we can’t reach you after multiple attempts, or if we are unable to re-deliver the order for any reason, the order will be canceled resulting in a cancellation fee charged to you. In the event you input the wrong address and we successfully deliver to that address, you are responsible for that shipment without refund. Please be careful and input the correct address into each order.

• Delivery Time.We make every effort to deliver on the day you select. If for any reason, we are unable to deliver on the day you select, we may contact you to reschedule your delivery at our cost. At this time, we are unable to confirm a specific delivery time or window due to overwhelming demand. 
• Delivery Delays.In the event of severe traffic, accidents, weather, or other matters that may cause a material delay to delivery, we will contact you with an update via text and/or email. Fresh2 will not be responsible for the delay due to severe traffic, accidents, weather, or other matters that are out of Fresh2 control.
• Delivery Fees & Gratuities.We reserve the right to add a delivery fee in the event of redelivery, special handling concerns, or other costs for your order. This is not a gratuity for delivery personnel. If you wish, you may also give the delivery driver a gratuity.
• Package Theft. You will be solely responsible for the products left at your delivery address in case of a theft. 
• Delivery Temperature Controls.We do our best to keep all of our products at or beyond the minimum recommended or required temperature thresholds. Upon receipt, we recommend you refrigerate or freeze perishable products as soon as you receive the order. Some minimal degree of melt or thawing may occur depending on the temperature and conditions of your delivery address.

 

1. Your Orders.You will receive a text message and/or email with a link to your invoice when your order is delivered. You may access your orders through your Account.
2. Returns & Refunds. If you receive the products that fails to meet our standards for quality, please reach out to us at [email protected]. Our products are subject to the below return policies unless otherwise provided elsewhere in these Terms and Conditions:

• Perishable Products (i.e. fresh food).These products are not eligible for return but may be eligible for refund by making a request within 2 days from delivery. If there is a concern with the product, please document your concerns with pictures and a description of the product concerns, and reach out to us at [email protected].
• Temperature-Controlled Products (i.e., frozen foods, refrigerated foods).These products are not eligible for return but they may be eligible for refund by making a request within 2 days from delivery. If there is a concern with the product, please document your concerns with pictures and a description of the product concern, and reach out to us at [email protected].
• Shelf Stable Food Products (i.e., products that can be safely stored at room temperature for at least 30 days from the date of delivery).These products are not eligible for return but they may be eligible for refund by making a request within 7 days from delivery. If there is a concern with the product, please document your concerns with pictures and a description of the product concern, and reach out to us at [email protected].

To request a refund, visit your account, or contact our Customer Service Department at [email protected]. Unless otherwise noted above, all refund requests must be submitted within 48 hours from the date of delivery.

 

4. Termination or Cancellation

• In the event that you want to stop using the Platform, you can cancel your Account if you are in good standing and compliant with these Terms and Conditions and other applicable Fresh2 policies and agreements. To cancel, simply remove all funds in your Account and visit our cancellation page. Contact Fresh2 support if you are not able to cancel your account.

• In some cases we may terminate, suspend or otherwise restrict your Account and use of the Platform if we suspect your Account is connected to any Prohibited Use, for suspected violation of these Terms and Conditions or any applicable agreements or policies, where required by applicable law, or to otherwise prevent potential loss. Your use of the Platform is a privilege, and not a right, and we reserve our right to terminate, suspend or restrict your access to the Platform, as well as take other actions described in these Terms and Conditions, at any time to protect you, other users and/or us as we deem necessary.

5. Third-Party Services and Applications

• We may, from time-to-time, contract with third parties who may provide services to Fresh2, including financial products and other services in connection with the Platform. To the extent required by applicable law, regulation or any agreement with such providers, we will provide and update a list of relevant financial service partners through the Platform. Contracting with other financial service partners or providers may require us to share your personal information in order for them to provide services to Fresh2. All collection, sharing and use of personal information is subject to our Privacy Policy.

• We may allow you to purchase, receive, or use products, content, information, offers, and services from certain third-parties. When we make these third-party services or products available or partner with them on advertising campaigns, Fresh2 acts only as the link between you and such third-parties, and should not be interpreted as an endorsement. You agree that Fresh2 does not assume responsibility and will have no liability for the purchase, payment, warranty, delivery, or maintenance, of any of these third-party products or services. 

• If you authorize a third-party application to connect to your Account and take actions on your behalf, you assume all risks associated with those connections and actions and you are ultimately responsible to us for those connections and actions. We require developers to list a support or dispute framework in connection with their application that allows prompt resolution of any issues. But, if you have disputes with developers, you will need to resolve it directly with them.

• You also agree that you will not hold us responsible for, and will indemnify us against any liability arising out of or related to any act or omission of any third-party using your Account credentials whether a developer or otherwise. You may remove permissions granted to third parties with respect to your Account at any time through your account settings (authorized applications) page.

6. Electronic Communications

• We may be required to provide certain legal and regulatory disclosures, periodic statements and confirmations, notices and other communications (collectively “Communications”) to you in written form. By agreeing to these Terms and Conditions, you consent to Fresh2 delivering such Communications to you in electronic form. Consent for electronic delivery applies to every year the statements are furnished. If you no longer have access to your account to receive the disclosures in electronic format, then you may request the disclosures in written form.

• By agreeing to these Terms and Conditions, you agree that all Communications from us relating to your use of or access to the Platform may be provided or made available to you electronically by email, text messaging (SMS), “in-app” messaging or by posting a Communication on the Platform, and that you can access the Communications in the designated formats described below. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us and our agents concerning your Platform usage and access.

• Electronic Communications shall be deemed to be received by you upon delivery in the following manner:

• Posting them to your Account on the Platform or in an associated mobile application;
• Posting them on or in a website or mobile application associated with us or the Platform;
• Sending them via electronic mail to the email address you used to register for the Platform; 
• Sending them via text messaging (SMS) to the phone number you used to register for the Platform; or
• Otherwise communicating them to you via the Platform.

• It is your responsibility to open and review Communications that we deliver to you through the methods described above. We may, but are not obligated to provide you with notice of the availability of a Communication that is delivered in one of the methods described above (for example, by informing you of such Communication through a notification sent to your mobile device).

• It is your responsibility to keep your primary email address and mobile number registered with us up to date so that we can communicate with you electronically. You understand and agree that if we send you an electronic Communication but you do not receive it because your primary email address or mobile number registered with us is incorrect, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, we will be deemed to have provided the Communication to you. You can update your primary email address and other contact information by submitting a Support request or by logging into the Platform and navigating to your profile.

• Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you may need to add us to your email address book so that you will be able to receive the Communications we send to you.

• If you are requesting additional copies of Communications or withdrawing your consent, the following additional terms will apply:

• You may contact us, or any applicable service provider, to request another electronic copy of the electronic Communication without a fee;
• You may request a paper copy of such electronic Communication within ninety (90) days of the original Communication issuance date, and we reserve the right to charge a fee to provide such paper copy;
• You may contact us to update your registration information used for electronic Communications or to withdraw consent to receive electronic Communications;
• We reserve the right to terminate your use of the Platform and any associated service provider products and services if you decline or withdraw consent to receive electronic Communications.

7. Platform Accuracy

• Although we intend to provide accurate and timely information on the Fresh2 website, the Platform and, without limitation, any related content, materials and information, including without limitation, all market data (collectively, the “Content”) may not always be entirely accurate, complete or current and may also include technical inaccuracies or typographical errors. 

• To continue to provide you with as complete and accurate information as possible, information may be changed or updated from time to time without notice, including information regarding our policies, products and services. Accordingly, you should verify all information before relying on it, and all decisions based on information contained on the Platform your sole responsibility and we shall have no liability for such decisions. 

• Links to third-party materials (including without limitation websites) may be provided as a convenience but are not controlled by us. You acknowledge and agree that we are not responsible for any aspect of the information, content, or services contained in any third-party materials or on any third-party sites accessible or linked to the Platform.

8. Indemnification; Fresh2’s Rights and Remedies

• If anyone brings a claim against Fresh2, our affiliates or service providers, and/or each of our or their respective officers, directors, agents, joint venturers, employees or representatives, related to your use of the Platform, or any part thereof, including, without limitation, any developer tools or alleged violation of any laws, rules or rights, you indemnify and hold us harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim.

• You are responsible for all claims, fees, fines, penalties and other liability incurred by Fresh2 or a third party caused by or arising out of your breach of these Terms and Conditions or any other applicable Fresh2 policy and agreement, and/or your use of the Platform. You agree to reimburse Fresh2 or a third party for any and all such liability and any fees and expenses incurred in the event that Fresh2 must undertake collection efforts to enforce its rights hereunder.

• If you engage in a Prohibited Use or otherwise violate these Terms and Conditions or any other applicable Fresh2 policy and agreement, including but not limited to chargeback abuse, fraud, money laundering, sale of your login credentials, etc., it may be difficult or impractical to calculate our actual damages. You acknowledge and agree that US$10,000 USD per violation is a reasonable minimum estimate of Fresh2’s actual damages, considering all currently existing circumstances, including the relationship of the sum to the range of harm to Fresh2 that reasonably could be anticipated, and that Fresh2 may recover from you and/or directly from your Account the greater of such amount or the actual damages incurred.

9. Disclaimer

• WE TRY TO KEEP THE PLATFORM UP, BUG-FREE, AND SAFE, BUT YOU USE IT AT YOUR OWN RISK. THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO ANY PART OF THE PLATFORM, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, ERROR-FREE, OR SECURE. OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. WE MAKE NO REPRESENTATIONS OR WARRANTIES CONCERNING THE REAL OR PERCEIVED VALUE OF ANY CURRENCY. WE MAKE NO REPRESENTATION OR WARRANTIES AS TO THE QUALITY, SUITABILITY, USEFULNESS, ACCURACY, OR COMPLETENESS OF THE PLATFORM OR ANY MATERIALS CONTAINED THEREIN. WE WILL MAKE REASONABLE EFFORTS TO ENSURE THAT ANY REQUESTS FOR ELECTRONIC DEBITS AND CREDITS BY ANY MEANS ARE PROCESSED IN A TIMELY MANNER BUT WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING.

• YOU WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST ANY FRESH2 ENTITY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE LEGAL PROCEEDING, INCLUDING, WITHOUT LIMITATION, CLASS OR COLLECTION LITIGATION OR ARBITRATION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT YOU ARE PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE LEGAL PROCEEDING, YOU AGREE THAT: (I) YOU SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) IF YOU INITIATE OR PARTICIPATE AS A MEMBER OF THE CLASS, YOU WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION. 

• WE ARE NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS AND OUR AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

• IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.

• NEITHER WE NOR OUR AFFILIATES, SERVICE PROVIDERS, OR OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR AGGREGATE LIABILITY, AND THAT OF OUR AFFILIATES AND SERVICE PROVIDERS, OR ANY OF OUR OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE ACTUAL FEES PAID TO US BY YOU IN THE PRECEDING THREE (3) MONTHS OR (B) US$100 DOLLARS. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED.

• WE ARE NOT A MEMBER OF ANY FINANCIAL INDUSTRY REGULATORY AUTHORITY, AND YOUR FUNDS ARE NOT PROTECTED OR COVERED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER INSURANCE.

10. Miscellaneous

• Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms and Conditions shall not be construed to waive rights that cannot be waived under applicable consumer protection laws or regulations.

• Unless otherwise agreed in writing, these Terms and Conditions, any other applicable Fresh2 policy and agreement referred to herein or therein, and the terms and conditions contained in your Account statements and confirmations, set forth the entire understanding and agreement between you and us as to the subject matter hereof, and supersedes any and all prior discussions, agreements and understandings of any kind (including without limitation any prior versions of these Terms and Conditions), and of every nature between and among you and us.

• These Terms and Conditions, and any rights, obligations and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by us without notice or restriction, including without limitation to any of our affiliates, parents or subsidiaries, or to any successor in interest. Any attempted transfer or assignment in violation hereof shall be null and void except that, subject to the limits herein, our agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

• If any provision of these Terms and Conditions is held by a court to be invalid or unenforceable, such provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible and any such finding shall not affect the enforceability of any other provision.

• Except as otherwise expressly provided in these Terms and Conditions, there are no third-party beneficiaries to these Terms and Conditions.

• Provisions herein related to suspension, termination, cancellation, debts, general use of the Platform, fees, disputes, your liability, indemnity and general provisions shall survive any termination of these Terms and Conditions.

• Any translation or summary of the Platform, these Terms and Conditions and/or policies is provided solely as a convenience and is not intended to modify the Platform, these Terms and Conditions, and/or any policies. You agree that the English version of the Platform, these Terms and Conditions and/or policies will control in the event of any conflict between the English versions of the Platform, these Terms and Conditions and/or policies and any translated versions of the same.

• You agree that the laws of the State of New York, without regard to principles of conflict of laws, govern these Terms and Conditions and any claim or dispute between you and us except to the extent governed by U.S. federal law. You agree that federal and state courts located in New York. New York shall have exclusive jurisdiction over any disputes arising under these Terms and Conditions and/or any Fresh2 policies and agreements that reference these Terms and Conditions.