The following terms and conditions (the “Terms and Conditions”) govern your use of the Fairway web sites, web pages, interactive features, applications, blogs, software, tools, mobile applications, Facebook, Twitter or other social networking Fairway sites, and their respective contents, and other online wireless offerings that post a link to these Terms and Conditions, whether accessed via computer, mobile device or other technology (the “Sites”). The Sites are made available by Fairway Group Acquisition Company (“Fairway” or “we” or “us”). We may change the Terms and Conditions from time to time, at any time without notice to you, by posting such changes on the Sites. BY USING THE SITES, YOU ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS AS APPLIED TO YOUR USE OF THE SITES. If you do not agree to these Terms and Conditions, you may not access or otherwise use the Sites.
As between you and Fairway, Fairway owns, solely and exclusively, all rights, title and interest in and to the Sites, all the content (including, for example, audio, photographs, illustrations, graphics, other visuals, video, copy, software, etc.), code, data and materials thereon, the look and feel, design and organization of the Sites, and the compilation of the content, code, data and materials on the Sites, including, but not limited to, any copyrights, trademark rights, patent rights, database rights, moral rights, sui generis rights and other intellectual property and proprietary rights therein. Your use of the Sites does not grant to you ownership of any content, code, data or materials you may access on the Sites. You may view the content on the Sites on your computer or other internet compatible device, and make single copies or prints of the content on the Sites for your personal, internal use only. The Sites and the services offered on or through the Sites, including any content and materials thereon, are only for your personal, non-commercial use. Any commercial distribution, publishing or exploitation of the Sites, or any content, code, data or materials on the Sites, is strictly prohibited, unless you have received the express prior written permission of Fairway or the applicable rights holder. You may not otherwise download, display, copy, reproduce, distribute, modify, perform, transfer, create derivative works from, sell or otherwise exploit any content, code, data or materials on the Sites. If you make other use of the Sites, or the content, code, data or materials thereon, except as otherwise provided above, you may violate copyright and other laws of the United States, other countries, as well as applicable state laws and may be subject to liability for such unauthorized use. Fairway will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution.
The trademarks, logos, service marks and trade names (collectively, the “Trademarks”) displayed on the Sites are registered and/or unregistered Trademarks of Fairway, its affiliates and/or others and may not be used in connection with products and/or services that are not related to, associated with, or sponsored by their rights holders that are likely to cause customer confusion, or in any manner that disparages or discredits their rights holders. Nothing contained on the Sites should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Sites without the written permission of Fairway or the third party that may own the applicable Trademark. Your misuse of the Trademarks displayed on the Sites is strictly prohibited. Fairway will enforce its Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution.
You warrant and agree that you shall not: (a) impersonate any person or entity or misrepresent your affiliation with any other person or entity; (b) upload, post, publish, transmit, reproduce, distribute or in any way exploit any information or other material obtained through the Sites for commercial purposes (other than as expressly permitted by the provider of such information or other material); or (c) attempt to gain unauthorized access to other computer systems through the Sites. You may not: (i) engage in spidering, “screen scraping,” “database scraping,” harvesting of e-mail addresses, wireless addresses or other contact or personal information, or any other automatic means of obtaining lists of users or other information from or through the Sites or the services offered on or through the Sites, including, without limitation, any information residing on any server or database connected to the Sites or the services offered on or through the Sites; (ii) obtain or attempt to obtain unauthorized access to computer systems, materials or information through any means; (iii) use the Sites or the services made available on or through the Sites in any manner with the intent to interrupt, damage, disable, overburden, or impair the Sites or such services, including, without limitation, sending mass unsolicited messages or “flooding” servers with requests; or (iv) use the Sites or the Sites’ services in violation of any applicable law. You further agree that you may not attempt (or encourage or support any one else’s attempt) to circumvent, reverse engineer, decrypt, or otherwise alter or interfere with the Sites or the Sites’ services, or any content thereof, or make unauthorized use thereof. You agree that you will not use the Sites in any manner that could damage, disable, overburden, or impair the Sites or interfere with any other party’s use and enjoyment of the Sites. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through the Sites.
You agree that if you include a link from any other web site to the Sites, such link shall open in a new browser window. You agree not to link from any other web site to the Sites in any manner such that the Sites, or any page of the Sites, are “framed,” surrounded or obfuscated by any third party content, materials or branding. We reserve the right to revoke your right to link to the Sites from your web site at any time upon written notice to you.
You agree to defend, indemnify and hold Fairway and its directors, officers, members, managers, employees, owners and agents harmless from any and all claims, liabilities, costs and expenses, including reasonable attorneys’ fees, arising in any way from your use of the Sites, your placement or transmission of any message, content, information, software or other materials through the Sites, or your breach or violation of the law or of these Terms and Conditions. Fairway reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with Fairway’s defense of such claim.
Orders for Products and Services
We may make certain products available to visitors and registrants of the Sites. You may only order products if, and you hereby represent and warrant that, you are domiciled in the United States and you are 18 years old or older. You agree to pay in full the prices for any purchases you make either by credit/debit card concurrent with your online order or by other payment means acceptable to Fairway. You agree to pay all applicable taxes. If payment is not received by us from your credit or debit card issuer or its agents, you agree to pay all amounts due upon demand by us. You agree that you are not permitted to resell any products purchased through the Sites for commercial purposes.
Third Party Web Sites
You may be able to link from the Sites to third party web sites (“Linked Sites”). You acknowledge and agree that we have no responsibility for the information, content, products, services, advertising, code or other materials which may or may not be provided by or through Linked Sites. Links to Linked Sites do not constitute an endorsement by us of such web sites or the information, content, products, services, advertising, code or other materials presented on or through such web sites.
The inclusion of any links to such web sites on our Sites do not imply Fairway’s endorsement, sponsorship, or recommendation of such web sites. Fairway disclaims any liability for links (1) from another web site to the Sites and (2) to another web site from the Sites. Fairway cannot guarantee the standards of any web site to which links are provided on the Sites nor shall Fairway be held responsible for the contents of such non-Fairway sites, or any subsequent links. For this reason, Fairway does not represent or warrant that the contents of any third party web site is accurate, compliant with state or federal law, or compliant with copyright or other intellectual property laws. Also, Fairway is not responsible for web casting or any other form of transmission received from any linked web site. Any reliance on the contents of a third party web site is done at your own risk and you assume all responsibilities and consequences resulting from such reliance.
DISCLAIMER OF WARRANTIES
THE SITES, INCLUDING, WITHOUT LIMITATION, ALL SERVICES, CONTENT, FUNCTIONS AND MATERIALS, ARE PROVIDED “AS IS,” “AS AVAILABLE”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY FOR INFORMATION, DATA, DATA PROCESSING SERVICES, UPTIME OR UNINTERRUPTED ACCESS, ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, USEFULNESS, OR CONTENT OF INFORMATION, AND ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES, EXPRESS AND IMPLIED. WE DO NOT WARRANT THAT THE SITES OR THE SERVICES, CONTENT, FUNCTIONS OR MATERIALS CONTAINED THEREIN WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. WE MAKE NO WARRANTY THAT THE SITES WILL MEET USERS’ REQUIREMENTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FAIRWAY ALSO ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, OR BROWSING IN THE SITES OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO, OR AUDIO FROM THE SITES. IF YOU ARE DISSATISFIED WITH THE SITES, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITES.
WE TRY TO ENSURE THAT THE INFORMATION POSTED ON THE SITES IS CORRECT AND UP-TO-DATE. WE RESERVE THE RIGHT TO CHANGE OR MAKE CORRECTIONS TO ANY OF THE INFORMATION PROVIDED ON THE SITES AT ANY TIME AND WITHOUT ANY PRIOR WARNING. WE CANNOT, AND DO NOT, GUARANTEE THE CORRECTNESS, PRECISION, THOROUGHNESS OR COMPLETENESS OF ANY OF THE INFORMATION AVAILABLE ON THE SITES, NOR WILL WE BE LIABLE FOR ANY INACCURACY OR OMISSION CONCERNING ANY OF THE INFORMATION PROVIDED ON THE SITES, INCLUDING BUT NOT LIMITED TO TECHNICAL INACCURACIES AND TYPOGRAPHICAL ERRORS.
WITHOUT LIMITATION OF THE ABOVE IN THIS SECTION, FAIRWAY AND ITS AFFILIATES, EMPLOYEES, OWNERS, SUPPLIERS, CONSULTANTS AND LICENSORS MAKE NO WARRANTIES OR REPRESENTATIONS REGARDING ANY PRODUCTS OR SERVICES ORDERED OR PROVIDED VIA THE SITES, AND HEREBY DISCLAIM, AND YOU HEREBY WAIVE, ANY AND ALL WARRANTIES AND REPRESENTATIONS MADE IN PRODUCT OR SERVICES LITERATURE, FREQUENTLY ASKED QUESTIONS DOCUMENTS AND OTHERWISE ON THE SITES OR IN CORRESPONDENCE WITH FAIRWAY OR ITS AGENTS. ANY PRODUCTS AND SERVICES ORDERED OR PROVIDED VIA THE SITES ARE PROVIDED BY FAIRWAY “AS IS”, EXCEPT TO THE EXTENT, IF AT ALL, OTHERWISE SET FORTH IN A LICENSE OR SALE AGREEMENT SEPARATELY ENTERED INTO IN WRITING BETWEEN YOU AND FAIRWAY OR ITS LICENSORS, CONSULTANTS OR SUPPLIERS. WE ARE NOT LIABLE FOR INDIVIDUAL REACTIONS TO ANY PRODUCTS.
LIMITATION OF LIABILITY
IN NO EVENT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL FAIRWAY, ANY MEMBER OF THE FAIRWAY FAMILY, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OWNERS, AGENTS OR CONTENT OR SERVICE PROVIDERS (COLLECTIVELY, THE “PROTECTED ENTITIES”) BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, THE USE OF, OR THE INABILITY TO USE, THE SITES OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, YOUR PROVISION OF INFORMATION VIA THE SITES, LOST BUSINESS OR LOST SALES, EVEN IF SUCH PROTECTED ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROTECTED ENTITIES DO NOT ASSUME ANY LIABILITY FOR INACCURACIES OR MISSTATEMENTS ABOUT PRODUCTS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE PROTECTED ENTITIES BE LIABLE FOR OR IN CONNECTION WITH ANY CONTENT POSTED, TRANSMITTED, EXCHANGED OR RECEIVED BY OR ON BEHALF OF ANY USER OR OTHER PERSON ON OR THROUGH THE SITES. IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE PROTECTED ENTITIES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS AND CONDITIONS OR YOUR USE OF THE SITES EXCEED, IN THE AGGREGATE, THE AMOUNT, IF ANY, PAID BY YOU TO FAIRWAY FOR YOUR USE OF THE SITES OR PURCHASE OF PRODUCTS VIA THE SITES.
HEALTH AND WELLNESS INFORMATION
THE SITES ARE FOR CONSUMER EDUCATIONAL USE ONLY. NOTHING CONTAINED ON THE SITES IS OR SHOULD BE CONSIDERED, OR USED AS A SUBSTITUTE FOR, MEDICAL ADVICE, DIAGNOSIS OR TREATMENT. WE ADVISE USERS TO ALWAYS SEEK THE ADVICE OF A PHYSICIAN OR OTHER QUALIFIED HEALTH CARE PROVIDER WITH ANY QUESTIONS REGARDING PERSONAL HEALTH OR MEDICAL CONDITIONS.
FAIRWAY PROVIDES RECIPES AS SUGGESTIONS ONLY ON THE SITES AND SUCH RECIPES ARE TO BE PREPARED SO “AT YOUR OWN RISK”. FAIRWAY DOES NOT GUARANTEE THAT FAVORABLE RESULTS WILL BE OBTAINED, AND MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE RECIPES. FAIRWAY SHALL NOT BE LIABLE FOR ANY DAMAGE, MEDICALLY OR OTHERWISE, RESULTING FROM THE PREPARATION OF FOOD USING THE INSTRUCTIONS OR RECIPES PROVIDED ON THE SITES. USERS MUST CHECK THE INSTRUCTIONS PROVIDED AND DETERMINE THEIR VALUE AND ANY POSSIBLE MEDICAL CONDITION THAT MAY ARISE FROM THE CONSUMPTION OF THE INGREDIENTS LISTED THEREIN.
FAIRWAY AND ITS AFFILIATES DO NOT RECOMMEND, ENDORSE OR MAKE ANY REPRESENTATION ABOUT THE EFFICACY, APPROPRIATENESS AND/OR SUITABILITY OF ANY SPECIFIC SUGGESTIONS MADE ON THE SITES. THE INFORMATION AND STATEMENTS MADE REGARDING DIETARY SUPPLEMENTS HAVE NOT BEEN EVALUATED BY THE FOOD AND DRUG ADMINISTRATION AND ARE NOT INTENDED TO DIAGNOSE, TREAT, CURE OR PREVENT ANY DISEASE OR HEALTH CONDITION. FAIRWAY ENCOURAGES YOU TO CONSULT WITH YOUR PHYSICIAN REGARDING ALL THE RECOMMENDATIONS AND INFORMATION CONTAINED ON THE SITES. YOU SHOULD NEVER AT ANY TIME DISREGARD PROFESSIONAL MEDICAL ADVICE AND/OR DELAY SEEKING MEDICAL TREATMENT BECAUSE OF SOMETHING YOU HAVE READ ON THE SITES. FOR MEDICAL CONCERNS, INCLUDING DECISIONS AND MEDICATIONS, VITAMINS, SUPPLEMENTS AND OTHER TREATMENTS, YOU SHOULD ALWAYS CONSULT YOUR PHYSICIAN OR, IN SERIOUS CASES, SEEK IMMEDIATE ASSISTANCE FROM EMERGENCY PERSONNEL.
The Sites may contain forward-looking statements made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements involving known and unknown risks and uncertainties and other factors that may cause Fairway’s actual results in current or future periods to differ materially from forecasted results. Food retail is a large and highly competitive industry, and Fairway’s business involves many risks and uncertainties, including, but not limited to: our ability to open new stores on a timely basis or at all; our ability to achieve sustained sales and profitable operating margins at new stores; the availability of financing to pursue our new store openings on satisfactory terms or at all; our ability to compete effectively with other retailers; our ability to maintain price competitiveness; the geographic concentration of our stores; our ability to maintain or improve our operating margins; our history of net losses; ordering errors or product supply disruptions in the delivery of perishable products; restrictions on our use of the Fairway name other than on the East Coast and in California and certain parts of Michigan and Ohio; our ability to retain and attract senior management, key employees and qualified store-level employees; rising costs of providing employee benefits, including increased healthcare costs and pension contributions due to unfunded pension liabilities; our ability to satisfy our ongoing capital needs and unanticipated cash requirements; and other risk factors detailed in our filings with the Securities and Exchange Commission (“SEC”), and available at the SEC’s website at www.sec.gov. You are urged to consider these factors carefully in evaluating the forward-looking statements that may be contained on the Sites and are cautioned not to place undue reliance on such forward-looking statements, which are qualified in their entirety by this cautionary statement.
Fairway may terminate, change, suspend or discontinue any aspect of the Sites or the Sites’ services at any time. Fairway may restrict, suspend or terminate your access to the Sites and/or the Sites’ services if we believe you are in breach of our Terms and Conditions or applicable law, or for any other reason without notice or liability. Fairway maintains a policy that provides for the termination in appropriate circumstances of the use privileges of users who are repeat infringers of intellectual property rights.
Fairway reserves the right, at its sole discretion, to change, modify, add or remove any portion of these Terms and Conditions, in whole or in part, at any time. Changes in these Terms and Conditions will be effective when posted. Your continued use of the Sites and/or the services offered on or through the Sites after any changes to the Terms and Conditions are posted will be considered acceptance of those changes.
The Terms and Conditions and the relationship between you and us shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. You agree that any cause of action that may arise under the Terms and Conditions shall be commenced and be heard in the appropriate court in the State of New York, County of New York. You agree to submit to the personal and exclusive jurisdiction of the courts located within New York County in the State of New York. Our failure to exercise or enforce any right or provision of the Terms and Conditions shall not constitute a waiver of such right or provision. If any provision of the Terms and Conditions is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms and Conditions remain in full force and effect.
Updated: September 2013