Last Updated: October 1st, 2018
Welcome to FoodServiceDirect (“FSD”). FSD is a marketplace that allows users to offer, sell and buy a variety of items. The actual contract for sale is directly between the seller and you.
Privacy & Security
Information security is important to FSD. We have established physical, electronic and managerial safeguards designed to protect the information that we collect from or about our users.
Intellectual Property Rights
The Sites contain valuable trademarks and service marks owned and used by FSD, including but not limited to, FSD, the FSD design logo, and the tag lines (collectively, the "FSD Marks"). Any use of the FSD Marks for any commercial purpose without the express prior written permission of FSD is strictly prohibited. The arrangement and layout of the Sites, including but not limited to, the FSD Marks, images, text, graphics, buttons, screenshots, music, digitally downloadable files, and other content or material (collectively, the "Site Content"), are the sole and exclusive property of FSD. You agree not to use the Site Content in any manner that is likely to cause confusion among customers, that disparages or discredits FSD and/or our licensors, that dilutes the strength of FSD’s or our licensors’ property, or that otherwise infringes FSD’s or our licensors’ intellectual property rights. UNAUTHORIZED COPYING, REPRODUCTION, MODIFYING, REPUBLISHING, UPLOADING, DOWNLOADING, POSTING, TRANSMITTING, MAKING DERIVATIVE WORKS OF OR DUPLICATING ALL OR ANY PART OF THE SITES FOR COMMERCIAL USES IS PROHIBITED.
FSD uses a network of independent product and content suppliers, distributors and other such third parties to supply some of the products and content advertised on the Sites. All other trademarks, service marks, product names, package designs and company names or logos associated with these product and content suppliers, distributors and other such third parties that are not owned by us but appear on the Sites are the property of their respective owners.
The Digital Millennium Copyright Act of 1998
The Digital Millennium Copyright Act of 1998 (the "DMCA") provides recourse for a copyright owner who believes that material appearing on the Internet infringes his, her or its rights under U.S. copyright law. FSD complies with the DMCA by responding to notices and counter-notices that meet the then-current DMCA requirements. Please visit http://www.copyright.gov/ for details about current DMCA requirements.
Notification of Alleged Copyright Infringement
If you believe in good faith that material appearing on the Sites infringes your copyright, you (or your agent) may send FSD a written notification pursuant to the DMCA (a "DMCA Notice"). Your DMCA Notice should be sent to our Copyright Agent (identified below), contain all of the information listed below (and as further set forth in 17 U.S.C. § 512(c)(3)) and request that the material be removed or that access to it be blocked. Your DMCA Notice must contain:
- Identification in sufficient detail of the copyrighted work that you claim has been infringed. If multiple copyrighted works on the Site are covered by a single notification, you may provide a representative list of such works on the Site; however, the representative list must still contain sufficient detail of the copyrighted works so that we can identify them;
- Identification of the URL or other specific location on the Site that contains the material that you claim to be infringing your copyright. You must provide us with reasonably sufficient information to enable us to locate the alleged infringing material and comply with your request to remove or deny access to the material;
- Your name, address, telephone number and email address (if available);
- The electronic or physical signature of the owner of the copyright or a person authorized to act on the copyright owner's behalf;
- A statement that you have a good faith belief that use of the material on the Site as you have described in the DMCA Notice is not authorized by the copyright owner or its agent or the law; and
- A statement that you swear under penalty of perjury that the information contained in your notification is accurate and that you are the copyright owner or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You must submit any notification of an alleged copyright infringement to FSD's Copyright Agent by mail or email as set forth below:Food Service Direct Copyright Agent
Attn: Legal Department
2 Eaton Street Suite 805,
Hampton, VA 23669
Email us at email@example.com. (Please reference "FSD DMCA Notice".)
If you fail to comply with all of the above requirements, your DMCA Notice may not be valid. Please note that you may be liable for damages, including court costs and attorneys' fees, if you materially misrepresent that materials on the Site are infringing a copyright.Counter Notification
If you believe in good faith that your own copyrighted material has been removed from the Site as a result of mistake or misidentification, you may submit a written counter notification letter to FSD's Copyright Agent pursuant to Sections 512(g)(2) and (3) of the DMCA. To be an effective counter notification under the DMCA, your written correspondence must include substantially the following:
- Identification of the material that has been removed or disabled and the location at which the material appeared before it was removed or disabled;
- A statement that you consent to the jurisdiction of the Federal District Court in which your address is located or, if your address is outside the United States, in any judicial district in which FSD may be found;
- A statement that you will accept service of process from the party that filed the notification of alleged copyright infringement or the party's agent;
- Your name, address and telephone number;
- A statement that you swear under penalty of perjury that you have a good faith belief that the material in question was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled, or that the material identified by the complaining party has been removed or disabled at the URL or web location and will no longer be shown or accessible; and
- Your physical or electronic signature.
You may submit your counter notification to FSD's Copyright Agent by mail or email as set forth below:Food Service Direct Copyright Agent
Attn: Legal Department
2 Eaton Street Suite 805,
Hampton, VA 23669
Email us at firstname.lastname@example.org. (Please reference "FSD DMCA Notice".)
Upon receipt of a counter notice, FSD's Copyright Agent may send a copy of it to the original complaining party informing that party that FSD may replace the removed content or cease disabling it. Unless the copyright owner files an action seeking a court order against FSD, the removed content may be replaced or access to it restored by FSD.
You acknowledge that if you fail to comply with all of the above requirements, your DMCA counter notification may not be valid. Please note that if you materially misrepresent that the disabled or removed content was removed by mistake or misidentification, you may be liable for damages, including costs and attorneys' fees.
Penalties for False Counter Notice
You should be aware that the DMCA provides substantial penalties for a false counter notice filed in response to a notice of copyright infringement. Claimants who make misrepresentations in their the counter notification statement may be liable for any damages, including costs and attorneys' fees, incurred by any copyright owner or copyright owner's authorized licensee, or by us, if injured by relying upon such misrepresentation in replacing the removed material or ceasing to disable access to it.
From time to time, the Sites permit the submission of content, such as comments, blogs and product reviews, generated by you and other users ("User Content"). FSD is and shall be under no obligation (1) to maintain any User Content in confidence; (2) to pay any compensation for any User Content (unless advertised to be a paid content); or (3) to respond to any User Content.
You are solely responsible for your own User Content and the consequences of posting or publishing it. Any User Content or other material, information or ideas that you submit to or post or publish on the Sites is non-confidential and non-proprietary. For this reason, we ask that you not send us any comments that you do not wish to assign to us, including any confidential information or any original creative materials such as stories, product ideas, computer code or original artwork.
By submitting User Content, you represent and warrant to FSD that: (i) your User Content does not violate any copyright, trademark, trade secret, patent or other intellectual property right, any right of privacy or publicity of any third party or any applicable law, rule or regulation, (ii) you own or have the legal right to use and authorize FSD to use your User Content, including written consent to use of any product or the name, voice, likeness or any other applicable personal rights of each identifiable person featured or referenced in your User Content and (iii) your User Content does not violate FSD's Acceptable Use Policy set forth below.
FSD does not endorse any User Content or any opinion, recommendation, or advice expressed therein. Please note that Site visitors may post content that is inaccurate, misleading, or deceptive. FSD neither endorses nor is responsible for any opinion, advice, information, or statements made by third parties. The opinions expressed by third parties reflect solely the opinions of the individuals who submitted such opinions and may not reflect the opinions of FSD. FSD reserves the right but is not obligated to monitor User Content or other content sent to or through the Sites. FSD has the right to refuse, remove, edit or delete any User Content and/or to terminate any user's access to the Sites for any reason – at FSD’s sole discretion. FSD takes no responsibility for User Content.
Acceptable Use Policy
By submitting User Content and otherwise using the Sites, you agree not to: (i) submit any User Content that is protected by or otherwise subject to any third party intellectual property or proprietary rights (including any privacy and publicity rights) unless you own or have permission from the rightful owner of such rights to post such User Content and to grant FSD all of the rights granted herein; (ii) upload, post, e-mail or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, hateful or racially, ethnically or otherwise objectionable; (iii) use the Sites to harm any person or entity, including FSD; (iv) impersonate any person or entity, including but not limited to, a representative of FSD, or falsely state or otherwise misrepresent your affiliation with a person or entity; (v) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted to or through the Sites; (vi) upload, post, e-mail or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail or any other form of solicitation; (vii) upload, post, e-mail or otherwise transmit any content that contains computer viruses or other computer code, files or programs that interrupt, destroy or limit the functionality of the Sites or any other computer software or hardware or telecommunications equipment; (viii) intentionally or unintentionally violate any applicable local, state, national or international laws, rules or regulations, including but not limited to those promulgated by the U.S. Federal Trade Commission, U.S. Securities and Exchange Commission; (ix) collect, store or use personal information about other users of the Sites without their consent; (x) use the Sites (including through submission of User Content) to disparage or make unsubstantiated claims about any person, third party or its/their products or services; (y) use any of the Sites in any manner that could overburden or impair any of the Sites or the networks or systems connected to the Sites; and/or (z) use any device, software or instrumentality to interfere with the proper working of the Sites or disobey any requirements, procedures, policies or regulations of networks connected to the Sites. You also agree that you will not violate or attempt to violate the security of the Sites. Violations of system or network security may result in civil or criminal liability. FSD reserves the right to investigate occurrences which may involve such violations and may involve and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations.
FSD is a marketplace that allows users to offer, sell and buy a variety of items. The actual contract for sale is directly between the seller and you.
The receipt of an order number or an email order confirmation does not constitute the acceptance of an order or a confirmation of an offer to sell. Each seller reserves the right, without prior notification, to limit the order quantity on any item and/or to refuse service to any customer. Verification of information may be required prior to the acceptance of an order. Prices and availability of products on the Sites are subject to change without notice. Errors will be corrected when discovered and FSD and each seller reserve the right to revoke any stated offer and to correct any error, inaccuracy, or omission (including after an order has been submitted). Certain orders constitute improper use of the Sites. FSD and each seller reserve the right, at its sole discretion, to refuse or cancel any order for any reason. Your account may also be restricted or terminated for any reason, at FSD's sole discretion. Items purchased pursuant to a quantity discount may be re-priced upon cancellation.
About Seller Prices
With respect to items sold by sellers through FSD, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our catalog may be mispriced. If the correct price of an item sold by sellers through FSD is higher than the stated price, we or the seller will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Other merchants may follow different policies in the event of a mispriced item.
Where a product listing on our Site references a higher price, typically denoted by a strikethrough (e.g. "$549"), such higher price represents the retail price suggested by the manufacturer or supplier. In the absence of a price suggested by the manufacturer or supplier, this price represents the highest price at which a seller offered or sold the product at some point in the past. For “Promotional Deals”, where a product is temporarily being sold at a reduced price, an additional strikethrough price is presented that represents the previous price before the Flash Deal promotion. The "Sale" tag on a product listing on our Site signifies that we are selling the product at a discount from a price in the previous 60 days.
When we use the term “Closeout,” we mean either that the product has been permanently reduced and will not return to the original price or that the product is temporarily being sold at a reduced price in order to clear an overstock of supplier inventory. Prices of products listed on our Site as “Closeout” may fluctuate during the “Closeout” promotion period for such products. For temporary “Closeout” pricing, such products may return to prices that are equal to or greater than their original prices upon expiration of the applicable “Closeout” promotion period.
FSD attempts to be as accurate as possible. However, FSD does not warrant that product descriptions or other content of any FSD Website offering is accurate, complete, reliable, current, or error-free.
Certain weights, measures, and related descriptions are approximate and are provided for convenience purposes only.
FSD has made every effort to display as accurately as possible the colors of our products that appear on the Site. However, as the actual colors you see will depend on your monitor, we cannot guarantee that your monitor's display of any color will be accurate.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION CONDUCTED ON THE SITES.
Risk of Loss
All purchases of physical items from FSD are made pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier or shipper of such items.
All returns are subject to our Return Policy.
Links to Other Websites
Mobile Devices and Mobile Applications
You agree that you are solely responsible for all message and data charges that apply to use of your mobile device to access the Sites or use of a mobile application. All such charges are billed by and payable to your mobile service provider. Please contact your participating mobile service provider for pricing plans, participation status and details. You understand that wireless through Wi-Fi or a participating mobile service provider may not be available in all areas at all times and may be affected by product, software, coverage or other service changes made by your mobile service provider or otherwise. Additional terms and conditions may apply to your use of a mobile application, based on the type of mobile device on which you install and use the mobile application.
Notice to California Residents
California Proposition 65 requires that special warnings be provided when products contain chemicals known by the State of California to cause cancer, birth defects, or other reproductive harm if the use of those products may cause exposure to those chemicals above specific limits. Please call us prior to ordering if you have any questions regarding the safety of these products.
Pursuant to California Civil Code Section 1789.3, FSD provides users of the Sites with the following notice: You may report complaints to the Consumer Information Division of the California Department of Consumer Affairs in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
Communications with FSD
For all communications made to or with FSD, including but not limited to feedback, questions, comments, suggestions and the like: (i) you will have no right to confidentiality in your communications and FSD will have no obligation to protect your communications from disclosure; (ii) FSD will be free to reproduce, use, disclose and distribute your communications to others without limitation; and (iii) FSD will be free to use any ideas, concepts, know-how, content or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information.
Legal Notices & Electronic Communications
Except as explicitly stated otherwise, any notices you send to FSD shall be sent by email to email@example.com.
In the case of notices FSD sends to you, you consent to receive notices and other communications by FSD posting notices on the Site, sending you an email at the email address listed in your profile in your account, or mailing a notice to you at your billing address listed in your profile in your account. You agree that all agreements, notices, disclosures, and other communications that FSD provides to you in accordance with the prior sentence satisfy any legal requirement that such communications be in writing.
Disclaimer of Warranties
FSD intends for the information and data contained in the Sites to be accurate and reliable but since the information and data have been compiled from a variety of sources, they are provided ‘AS IS’ and “AS AVAILABLE”. You expressly agree that your use of (or inability to use) the Sites and any information contained therein is at your sole risk. Accordingly, to the extent permitted by applicable law, FSD EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES AND CONDITIONS OF TITLE, NON-INFRINGEMENT, ACCURACY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES AND CONDITIONS THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Some jurisdictions do not allow the disclaimer of warranties, or conditions so such disclaimers may not apply to you.
Limitation on Liability
IN NO EVENT WILL FSD OR ITS PARENTS OR AFFILIATES, NOR THEIR RESPECTIVE OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DISTRIBUTORS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS SITE OR VIA OTHER CHANNELS, INCLUDING BUT NOT LIMITED TO PHONE AND EMAIL, BE LIABLE TO ANY USER OF THE SITES OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SITES OR ANY INFORMATION CONTAINED THEREIN, INCLUDING USER CONTENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF FSD HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; AS A RESULT, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, AND THE FOREGOING PARAGRAPH SHALL NOT APPLY TO A RESIDENT OF NEW JERSEY TO THE EXTENT DAMAGES TO SUCH NEW JERSEY RESIDENT ARE THE RESULT OF OUR NEGLIGENT OR RECKLESS ACTS.
You hereby acknowledge that the preceding limitation on liability will apply to all content, merchandise and services available through the Sites or other channels.
Regardless of the previous paragraphs, if FSD is found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount in dispute not to exceed the total amount which you paid to us in the twelve (12) months prior to the action giving rise to the liability or (b) USD $100.
In resolving a claim for arbitration, the arbitrator shall apply New York State law consistent with the Federal Arbitration Act and applicable statutes of limitations, and shall honor claims of privilege recognized at law. In the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal (other than that claims will not be arbitrated on a class or representative basis), or otherwise conflicts with the rules and procedures established by JAMS, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, the portion that is deemed invalid, unenforceable or illegal is that claims will not be arbitrated on a class, representative, or collective basis, or as a private attorney general on behalf of other persons similarly situated, then the entirety of this arbitration provision shall be null and void, and neither you nor we shall be entitled to arbitrate the dispute. Upon filing a demand for arbitration, all parties to such arbitration shall have the right of discovery, which discovery shall be completed within sixty days after the demand for arbitration is made, unless further extended by mutual agreement of the parties. Disputes regarding the arbitrability of any claim shall be resolved by the arbitrator.
THE ARBITRATION OF DISPUTES PURSUANT TO THIS PARAGRAPH SHALL BE IN YOUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU MAY NOT BRING ANY CLAIM AS A PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHER SIMILARLY SITUATED PERSONS. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED.
BY AGREEING TO THE ARBITRATION OF DISPUTES AS SET FORTH HEREIN, YOU AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND LIMITING YOUR RIGHT TO APPEAL. DO NOT USE THE SITES IF YOU DO NOT AGREE TO THE FOREGOING BINDING ARBITRATION PROVISIONS
Not Intended for Children Under 13
YOU MUST BE AT LEAST AGE 13 TO USE THE SITES. By using the Sites, you affirm that you are over age 13. If you are under age 13, you may not access or use the Sites.
IF YOU ARE A PARENT OR GUARDIAN THAT PROVIDES CONSENT TO YOUR TEENAGER'S REGISTRATION WITH AND USE OF THE SITES, YOU AGREE TO BE BOUND BY THESE TERMS IN RESPECT OF SUCH TEENAGER'S USE OF THE SITES.
Force Majeure and Outages
The Sites are intended only for users in the United States of America. By using the Sites, you agree and acknowledge that the Sites are operated by FSD from its offices in Hampton, Virginia, USA and Englewood Cliffs, New Jersey, USA and that data collected through the Sites will be stored and processed in the United States. If you access and use the Sites outside the United States, please be advised that your use of the Sites is governed by United States law, which may not afford the same level of protection as laws in your country. FSD makes no representations or warranties that the Sites or any materials contained in them are valid, appropriate or available for use outside of the United States. If you access and use the Sites outside the United States, you do so at your own risk and are responsible for compliance with applicable local laws. FSD reserves the right to limit the availability of the Sites and/or the provision of any service, program or other product described thereon to any person, geographic area or jurisdiction, at any time and in our sole discretion. Any software on the Sites is subject to United States export controls and may not be downloaded or otherwise exported or re-exported: (a) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the United States has embargoed goods or which is subject to other applicable U.S. trade sanctions; or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using any software from the Sites, you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list.
If you have questions, comments or complaints about these Terms or the Sites, please contact us at firstname.lastname@example.org (please reference "Questions about the Sites").