Terms of service

Effective Date: July 15, 2024

Welcome to Daily Harvest. Please read on to learn the rules and restrictions that govern your use of our website(s) and mobile applications (“Applications”), products, or services (collectively, the “Services”), including, without limitation, any request to receive information about, or to purchase any of the products made available through our website(s) (each, a “Product”), and your purchase of Products.

YOU MUST BE A LEGAL ADULT IN THE JURISDICTION WHERE YOU LIVE (i.e. 18 or over in most U.S. states) TO AGREE TO THESE TERMS. IF YOU ARE NOT AN ADULT, YOU MAY NOT PROCEED AND YOUR PARENT OR GUARDIAN MUST AGREE TO THESE TERMS. IF YOU PURCHASE DAILY HARVEST PRODUCTS THAT WILL BE CONSUMED BY OTHERS IN YOUR HOUSEHOLD, YOU ARE AGREEING TO THESE TERMS—INCLUDING THE REQUIREMENT TO RESOLVE DISPUTES IN ARBITRATION RATHER THAN IN COURT—ON BEHALF OF THOSE OTHER MEMBERS OF YOUR HOUSEHOLD, AND THEY WILL BE BOUND BY THESE TERMS TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW.

These Terms of Service (“Terms”) are a binding contract between you and Daily Harvest, Inc. and/or our subsidiaries or other affiliates (collectively, “Daily Harvest,” “we,” “us” or “our”). These Terms include the provisions in this document as well as those in the Privacy Policy and any other privacy notice on our website. Your (1) purchase of any Products will also be governed by any other terms made available by us to you during the sales process and (2) participation in any referral or promotion program, including receipt of any rewards or incentives for referring others to the Services, will also be governed by any other terms made available by us to you during the sales process, including, but not limited to the Referral Program Terms and Conditions, all of which are hereby incorporated into these Terms. These Terms are important and affect your legal rights, so please read them carefully. If you do not agree to these Terms, you may not access or use the Services or order, receive, or use Products made available through the Services or otherwise from us. Your use of or participation in certain Services may also be subject to additional policies, rules and/or conditions (“Additional Terms”), which are incorporated herein by reference, and you understand and agree that by using or participating in any such Services, you agree to also comply with those Additional Terms. If you are using the Services on behalf of any entity, you represent and warrant that you are authorized to accept these Terms on such entity’s behalf and that such entity agrees to be responsible to us if you or such entity violates these Terms.

PLEASE READ THESE TERMS CAREFULLY. These Terms include information about future changes to these Terms, automatic renewals, limitations of liability, a class action waiver, and a requirement to resolve disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.

ARBITRATION NOTICE AND CLASS ACTION WAIVER: NOTE THAT SECTION 18 OF THESE TERMS OF USE CONTAINS A REQUIREMENT TO RESOLVE MOST DISPUTES BETWEEN US IN ARBITRATION RATHER THAN IN COURT. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND DISCOVERY AND APPELLATE RIGHTS MAY BE MORE LIMITED IN ARBITRATION THAN IN COURT. ARBITRATION MUST BE CONDUCTED ON AN INDIVIDUAL BASIS AND BOTH YOU AND DAILY HARVEST AGREE NOT TO BRING OR PARTICIPATE IN A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER. YOU HAVE A TIME-LIMITED RIGHT TO OPT OUT OF THE ARBITRATION REQUIREMENT. SEE SECTION 18 FOR DETAILS.

We are constantly striving to improve our Products and Services, so these Terms may change along with our Products and Services. We reserve the right to change the Terms at any time. If we do this, we will post the changes on the page and will indicate the date of last revision. We will also notify you of any material changes either through a pop-up notice, e-mail or through other reasonable means. If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you don’t agree with the new Terms, you may cancel your Account and cease using the Services, in which case you will not be bound by the new Terms. If you use the Services in any way after a change to the Terms is effective, that constitutes your agreement to the new Terms.

THESE TERMS REPLACE AND SUPERSEDE ALL PRIOR VERSIONS OF DAILY HARVEST, INC. TERMS.

1. Description and Use of the Services

Daily Harvest Services include the marketing, offer, sale, production, and delivery of frozen and other food items.

2. Eligibility

Our Applications are not targeted toward or intended for use by anyone under the age of 18. By using our Applications, you represent and warrant that you (a) are 18 years of age or older, (b) are a legal resident of the United States, (c) have not been previously suspended or removed from the Services, or engaged in any activity that could result in suspension or removal from the Services, (d) do not have more than one Account or Plan (each as defined below), and (e) have full power and authority to enter into these Terms and in so doing will not violate any other agreement to which you are a party.

3. Community Guidelines

Daily Harvest’s community, like any community, functions best when its people follow a few simple rules. By accessing and/or using the Applications, you hereby agree to comply with these community rules and that:

You will not use the Applications for any unlawful purpose;
You may not use the Applications to engage in any commercial activities, including, without limitation, raising money; advertising or promoting a product, service, or company; or engaging in any pyramid or other multi-tiered marketing scheme;
You will not upload, post, e-mail, transmit, or otherwise make available any User Content (as defined in Section 11) that:

is false, deceptive, misleading, deceitful, or misinformative;
Infringes any copyright, trademark, trade secret, right of publicity, or other proprietary rights of any person or entity;
is threatening, tortious, defamatory, libelous, indecent, obscene, pornographic, invasive of another’s privacy, or promotes violence; or
discloses any sensitive information about another person, including that person’s e-mail address, postal address, phone number, credit card information, or any similar information;

You will not access or use the Services to collect any market research for or otherwise assist a competing business;
You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity;
You will not take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our technical infrastructure;
You will not use automated means, including spiders, robots, crawlers, data mining tools, or the like to download or scrape data from the Applications, except for Internet search engines (e.g., Google) and non-commercial public archives (e.g., archive.org) that comply with our robots.txt file;
You will not cover, obscure, block, or in any way interfere with any advertisements and/or safety features (e.g., report abuse button) on the Services; and
You will not interfere with or attempt to interrupt the proper operation of the Applications through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords through hacking, password, or data.

Please let us know about inappropriate content. If you find something that violates our community guidelines, let us know, and we’ll review it. We reserve the right, in our sole and absolute discretion, to deny you access to the Services, or any portion of the Services, without notice, and remove or edit any User Content that does not adhere to these guidelines.

4. Account Creation, Account Security, and Communication Preferences

4.1 Account Creation. To access and use certain areas or features of the Applications, you may need to register for a Daily Harvest account (your “Account”). By creating an Account, you agree to (a) provide accurate, current, and complete Account information, (b) maintain and promptly update from time to time as necessary your Account information, (c) maintain the security of your password and accept all risks of unauthorized access to your Account and the information you provide to us, and (d) immediately notify us if you discover or otherwise suspect any security breaches related to the Applications or your Account.

4.2 Account Security/Acceptance of Responsibility for Uses of Your Account. You must maintain the confidentiality of your login information. If you permit any other person, including your minor child(ren), then to the fullest extent allowed by applicable law, you agree to these Terms on that person’s behalf. You understand and agree that you will be responsible for all uses of your Account by any person you give access to it, including purchases that person may make, regardless of whether any particular use or purchase was expressly authorized by you.

4.3 Consent to receive electronic communications. By using the Services, you consent to receive electronic communications from Daily Harvest (e.g., via email or by posting notices to the Services) at any time, including between the hours of 8:00 pm and 8:00 am your local time. These communications may include notices about your Account (e.g., payment authorizations, password changes and other transactional information) and are part of your relationship with us. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including, but not limited to, that such communications be in writing. You should maintain copies of electronic communications from us by printing a paper copy or saving an electronic copy. We may also send you promotional communications via email, including, but not limited to, newsletters, special offers, surveys and other news and information we think will be of interest to you. You may opt out of receiving these promotional emails at any time by following the unsubscribe instructions provided therein.

4.4 SMS Terms of Service. As part of the Services, you may receive communications through the Services, including messages that Daily Harvest sends you (for example, via email or SMS). When making a purchase through the Applications or creating an Account, you may receive a welcome message and instructions on how to stop receiving messages. By making a Purchase through the Applications and providing us with your wireless number, you confirm that you want Daily Harvest to send you information that we think may be of interest to you, which may include Daily Harvest using automated dialing technology to text you at the wireless number you provided. You agree to receive communications from Daily Harvest, and you represent and warrant that each person you register for the Services or for whom you provide a wireless phone number has consented to receive communications from Daily Harvest. You agree to indemnify and hold Daily Harvest harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) arising from or in any way related to your breach of the foregoing. When you opt-in to marketing messages via SMS, we will send you an SMS message to confirm your signup. When you opt in to messages with our customer support team, you will receive messages regarding the support you requested or question you asked. Messages from the customer support team will cease after the conversation is resolved. 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 to confirm that you have been unsubscribed. After this, you will no longer receive SMS messages from us. If you want to join again, just sign up as you did the first time, and we will start sending SMS messages to you again. 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 hello@daily-harvest.com. Personal information collected solely through SMS messages won’t be shared, sold, or rented to third parties for their own marketing purposes. Carriers are not liable for delayed or undelivered messages. As always, message and data rates may apply for any messages sent to you from us, and to us from you. SMS consent is not a condition of purchase. You will receive SMS messages only after initiating contact with us. Message frequency varies. If you have any questions about your text plan or data plan, please contact your wireless provider. For all questions about the services provided by this short code, you can send an email to hello@daily-harvest.com. If you have any questions regarding privacy, please read our Privacy Policy and the Twilio privacy policy.

4.5 Recording and retaining communications. All communications with us, in any form (including your keystrokes when interacting with us online), are subject to being recorded and retained by us for our business purposes. Any use by us of recording or retained communications is subject to the Terms. By communicating with us in any manner, you consent and agree to such recordings and retention, subject to the Terms.

4.6 Mobile Application.

You acknowledge and agree that the availability of our mobile application is dependent on the third party stores from which you download the application, e.g., the App Store from the Apple, Inc. (“Apple”) or the Android app market from Google (each an “App Store”). Each App Store may have its own terms and conditions to which you must agree before downloading mobile applications from such store, including the specific terms relating to Apple App Store set forth below. You agree to comply with, and your license to use our application is conditioned upon your compliance with, such App Store terms and conditions. To the extent such other terms and conditions from such App Store are less restrictive than, or otherwise conflict with, the terms and conditions of these Terms, the more restrictive or conflicting terms and conditions in these Terms apply.

Through our mobile applications, you may be able to purchase (“In-App Purchase”) certain goods or features designed to enhance the performance of the Services. When you make an In-App Purchase, you are doing so through either the Apple iTunes service or the Google Play service and you are agreeing to their respective Terms and Conditions, available at http://www.apple.com/legal/internet-services/itunes/us/terms.html and http://play.google.com/intl/en_us/about/play-terms.html. Daily Harvest is not a party to any In-App Purchase.

These Terms apply to your use of the Services, including our iOS applications (the “iOS Application”) available via the Apple App Store, but the following additional terms also apply to the Application:

Both you and Daily Harvest acknowledge that the Terms are concluded between you and Daily Harvest only, and not with Apple, and that Apple is not responsible for the iOS Application or the Content;
The iOS Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
You will only use the iOS Application in connection with an Apple device that you own or control;
You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application;
In the event of any failure of the iOS Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
You acknowledge and agree that Daily Harvest, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the iOS Application;
You acknowledge and agree that, in the event of any third-party claim that the iOS Application or your possession and use of the iOS Application infringes that third party’s intellectual property rights, Daily Harvest, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
Both you and Daily Harvest acknowledge and agree that, in your use of the iOS Application, you will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
Both you and Daily Harvest acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third-party beneficiary hereof.

5. Terms of Product Sale and Use

These Terms, including the below Terms of Product Sale and Use govern the sale and your purchase of Daily Harvest’s Products from Daily Harvest. Please read these Terms of Product Sale and Use carefully. They cover important information about purchases, subscriptions, and automatic renewals.

5.1 Continuous Purchase Plans and Recurring Billing; Cancellation Policy

5.1.1 Overview. We offer different ways to purchase our Products, including continuous purchase plans, consisting of an initial period for which there is a one-time charge, followed by recurring period charges for additional Products as agreed to by you (each, a “Plan”). By choosing a Plan, you acknowledge that such Products have an initial and recurring payment feature, and you accept responsibility for all recurring charges prior to cancellation. Each week, month or other recurring time period specified in your Plan (excluding those you choose to skip), you will be deemed to have placed an order to purchase Products (an “Order”), and you will receive a package from Daily Harvest including the contents of your Order (each a “Delivery”). You can find specific details regarding your plan by accessing your Account. WHEN YOU REGISTER FOR A PLAN, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) DAILY HARVEST (OR OUR THIRD PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU AUTOMATICALLY ON A WEEKLY, MONTHLY OR OTHER RECURRING BASIS FOR YOUR PLAN (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR PLAN CONTINUES, AND (B) YOUR PLAN IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE SERVICES OR PRODUCTS IN ACCORDANCE WITH THESE TERMS. YOU ACKNOWLEDGE AND AGREE THAT DAILY HARVEST WILL NOT OBTAIN ANY ADDITIONAL AUTHORIZATION FROM YOU FOR SUCH AUTOMATIC, RECURRING ORDERS AND PAYMENTS. YOU MAY SKIP AN ORDER AS OFTEN AS YOU’D LIKE BY MANAGING YOUR DELIVERY SCHEDULE THROUGH YOUR ACCOUNT.

5.1.2 Cancellation Policy. TO CANCEL YOUR PLAN, CHANGE YOUR ORDER CADENCE, OR SKIP ORDERS, YOU MUST CREATE AN ACCOUNT AS OUTLINED IN SECTION 4.1. UNLESS YOU CANCEL YOUR PLAN, WHICH CAN BE DONE THROUGH YOUR PLAN SETTINGS, WHICH MAY BE REFERRED TO AS “MY PLAN”, YOUR PLAN WILL AUTOMATICALLY RENEW FOR THE SAME DURATION AS THE TERM ORIGINALLY SELECTED, UNTIL YOU CANCEL OR SKIP A DELIVERY BEFORE THE CUTOFF PERIOD. AFTER YOUR FIRST ORDER AND AFTER YOU CREATE AN ACCOUNT, YOU MAY CANCEL IN YOUR PLAN SETTINGS. IF YOU DO NOT CREATE AN ACCOUNT, YOU WILL NOT BE ABLE TO CHANGE YOUR ORDER CADENCE OR SKIP ORDERS, AND YOU MUST CONTACT US AT 1-888-302-0305 OR HELLO@DAILY-HARVEST.COM TO CANCEL YOUR PLAN. YOU MAY CANCEL AT ANY TIME, BUT IF YOUR ACCOUNT IS CANCELED AFTER THE CUTOFF DAY AND TIME FOR AN ORDER AS INDICATED IN YOUR PLAN SETTINGS YOU WILL STILL RECEIVE, AND BE CHARGED FOR, THE NEXT DELIVERY IF YOU SCHEDULED A DELIVERY (PLACED AN ORDER) FOR THAT WEEK. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED FOR ALL ORDERS PRIOR TO THE CANCELLATION OF YOUR PLAN.

In the event you cancel your Plan, please note that we may still send you promotional communications about Daily Harvest, unless you opt out of receiving those communications by following the unsubscribe instructions provided therein.

5.2. Individual Purchases. We may offer you the ability to make a one-time individual Order for the purchase of Products. Please refer to the order page and any referenced terms and links, as well as these Terms, for all terms and conditions for individual purchases.

5.3. Orders for Other Recipients

You may have the ability to Order and purchase a box or multiple boxes for other recipients through the Services. These options may be referred to as the Corporate Gifting program, Gift Boxes, or other names, whereby one or multiple boxes are purchased for recipients other than you, but are referred to herein as “Gift Boxes”. Gift Boxes are eligible for purchase if the recipient resides within our delivery zone.

You certify that you have the authority to provide all information of the Gift Box recipient to Daily Harvest, including but not limited to any personally identifiable information. You further authorize Daily Harvest to contact each recipient in connection with the delivery (pre and post) and for other reasons, including but not limited to promotions. You understand that Daily Harvest will not verify any addresses prior to shipment and that you are responsible for the accuracy of each recipient’s shipping information. Daily Harvest Products are perishable; orders cannot be rescheduled and you are responsible for verifying that the recipient will be available to receive the shipment. You are not an agent of Daily Harvest, and will not reference Daily Harvest in any promotion or other manner or use Daily Harvest trademarks, without prior written approval in each instance, which if granted, may be revoked at any time.

5.4. Gift Cards

5.4.1 Redemption; Balance. Daily Harvest may sell or otherwise provide gift cards to purchase certain Products (“Gift Cards”). The terms and conditions applicable to Gift Cards will be those set forth on the Gift Card or in terms that are specifically referred to in connection with the offer or sale such Gift Card or promotion, as well as these Terms (collectively, the “Gift Card Terms”). Gift Cards may not be reloaded, resold, transferred or valued, or redeemed for cash, unless otherwise required by applicable law. No portion of the balance on your Gift Card may be transferred to another Daily Harvest Account. Restrictions may apply.

Gift Cards may require the recipient to set up a Daily Harvest Account. In such cases, the recipient of a Gift Card will be required to provide a credit card (or other approved payment method) when redeeming the Gift Card to cover any fees that exceed the amount of the Gift Card in addition to any applicable taxes and other charges. No taxes are charged on the purchase of Gift Cards. Applicable taxes may be charged when Gift Cards are redeemed.

Unless otherwise expressly indicated, purchases made with your Gift Card will be deducted from amounts you owe Daily Harvest for the purchase of Products or services, if any. If a purchase exceeds your Gift Card balance, you must pay the remaining amount with a credit card (or other approved payment method).

5.4.2. Limitations; Restrictions; Risk of Loss. Gift Cards are non-refundable except to the extent required by law. We are not responsible for any lost, stolen or destroyed Gift Card or use by someone other than yourself or the intended Recipient. Gift Card terms are subject to change without notice at any time and in our sole discretion. Gift Cards are void where prohibited.

Use of Gift Cards for unauthorized advertising, marketing, sweepstakes or other promotional or commercial purposes is strictly prohibited. Gift Cards may not be combined with certain promotional offers. We reserve the right to refuse Gift Card sales or redemption to anyone and limit how many Gift Cards an individual may purchase or redeem. If we suspect that a Gift Card is obtained, used, or applied to a Daily Harvest Account fraudulently, unlawfully, or otherwise in violation of Gift Card Terms, we reserve the right to void Gift Cards or any component of your Gift Card balance, close your Account, and bill alternative forms of payment.

TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO GIFT CARDS OR YOUR GIFT CARD BALANCE, INCLUDING WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULL EXTENT PERMISSIBLE BY LAW, IN THE EVENT A GIFT CARD IS NON-FUNCTIONAL, YOUR SOLE REMEDY, AND OUR SOLE LIABILITY, WILL BE THE REPLACEMENT OF THAT GIFT CARD.

5.4.3. Expiration. Gift Cards do not expire or decrease in value prior to use. However, in certain states, after a period of time, we may remit the cash associated with unused Gift Card balances to certain states pursuant to their abandoned property laws. Once we have remitted such cash to a state, if someone tries to redeem the Gift Card, it may no longer be redeemed, and we may direct them to that state’s government instead. For the avoidance of doubt, other promotions, discounts, credits, and coupons may have expiration dates. No fees apply. We do not charge activation, service charges or dormancy fees.

5.5. Promotional Benefits

From time to time, we may offer or send you "rewards," "promotional” gift cards, "credits", "vouchers" or similar physical or electronic promotions that are provided free with a purchase, distributed as a reward, incentive, as part of a marketing, promotional or customer loyalty program or otherwise (collectively, "Promotions"). All terms and conditions that are affixed to or otherwise provided in connection with such Promotions shall apply, including any expiration dates, delayed activation dates or any other additional conditions, restrictions or exemptions as provided on the Promotions themselves or any packaging or other written materials that accompany such Promotions or any applicable law. To the extent terms and conditions are not provided in connection with such terms and conditions, the Gift Card Terms shall apply to such Promotions.

5.6. Payment and Billing Information

By providing a credit card or other payment method that we accept, you represent and warrant that you are an authorized user of the designated payment method and you authorize us (or our third party payment processor) to charge your payment method for the total amount of your Order or other purchase (including any applicable taxes and other charges). If the payment method cannot be verified, is invalid, or is otherwise not acceptable, your Order may be suspended, cancelled and unfulfilled. You must resolve any problem we encounter in order to proceed with your Order. In the event you want to change or update payment information associated with your Account, you can do so at any time by logging into your Account and editing your payment information.

You acknowledge that the amount billed may vary due to promotional offers, changes to your Plan or changes in applicable taxes or other charges, including shipping and handling, and you authorize us (or our third party payment processor) to charge your payment method for the corresponding amount.

At this time, we use third-party payment processors to bill you through a payment account linked to your Account on the Services. The processing of payments will be subject to the terms, conditions, and privacy policies of our payment processors in addition to these Terms. Currently, we use Shopify Payments, Stripe, Inc., Square, Inc., and Square Capital, LLC. You can access Shopify Payment’s Terms of Service here and their Privacy Policy here, Stripe’s Terms of Service here and their Privacy Policy here, and Square’s Terms of Service here and Privacy Policy here. We are not responsible for any error by, or other acts or omissions of, any third party payment processor. We reserve the right to correct any errors or mistakes that the payment processor makes even if it has already requested or received payment.

5.7. Pricing and Availability

All prices are shown in U.S. dollars, and applicable taxes and other charges, if any, are additional. We reserve the right to adjust prices and fees as we may determine in our sole discretion. The placement of an Order following a price or fee change constitutes your acceptance of the new prices and/or fees.

All of our Products are subject to availability, and we reserve the right to impose quantity and/or dollar limits or thresholds on any Order, to reject all or part of an Order, to discontinue offering certain Products and to substitute Products (including, but not limited to, specific ingredients or entire items) in our discretion and without prior notice. We strive to provide you with high-quality Products, and given the perishable nature of certain Products and market conditions beyond our control, we may be required to make substitutions from time to time. If you are not satisfied with a substitution, please contact us at hello@daily-harvest.com.

5.8. Taxes

We will collect estimated or actual applicable sales or other taxes on Products shipped to the shipping destinations, and/or services we may provide, for which we determine we have a duty to collect sales or other taxes. If an item is subject to sales or other taxes, you agree that the amount of taxes shown at checkout may be adjusted. Several factors may cause this, such as variances between processor programs and changes in tax rates. Daily Harvest uses commercially reasonable efforts to ensure full compliance with sales tax laws and regulations in each jurisdiction where we sell products. In the event we inadvertently charge you sales tax for a non-taxable item, and remit the taxes to the relevant taxing authorities, then to the fullest extent allowed by applicable law, you agree to hold Daily Harvest harmless for this error and to seek recourse only against the taxing authority.

5.9. Shipping and Handling

You agree to pay any shipping and handling charges shown at the time you place an Order. We reserve the right to increase, decrease, add, or eliminate shipping and handling charges from time to time, but we will provide notice of the charges applicable to you prior to or at the time of your Order. Generally, shipping is handled by a third party courier. Actual delivery dates may vary. You agree that you will not obtain, or direct shipment of, a Product for export. All Products purchased from us are made pursuant to a shipment contract. This means that title to and the risk of loss of such Products passes to you upon our delivery of the Product to the third party courier.

5.10. Deliveries; Inspection

You are responsible for inspecting all Products you receive from us for any damage or other issues upon delivery. In addition, you are solely responsible for confirming that the Products you receive are frozen. Each box is packaged to stay frozen until the time of delivery, but you should always inspect your delivery to confirm the Products arrived frozen. To maintain the highest quality and integrity of your Products after delivery, you should immediately place the items into frozen storage (< 0° F) when you receive them and follow the U.S. Department of Agriculture’s (“USDA”) instructions on frozen food storage and food safety. From the time of delivery, the condition and consumption of the Products are solely at your risk, and you are solely responsible for the proper and safe handling, storage, cooking, use and consumption of the Products following delivery. We recommend that you follow the USDA’s instructions on safe food handling. If at any time you believe that the Product in your delivery is not suitable for consumption, contact us at hello@daily-harvest.com.

If you are not at home when your delivery arrives, the courier will generally leave the package for you at your door. Our Products are packaged with insulated liners and dry ice and are designed to be delivered frozen under normal shipping and delivery conditions. However, depending on the season and temperature in your geographic area at the time of delivery, you should make advance plans for proper receipt and storage of your Products prior to consumption. Any individual at the delivery address who accepts a delivery is presumed to be authorized to receive such delivery. In cases in which you have designated an alternative receiver, such person shall accept the delivery under all the same terms and conditions that would apply had you accepted the delivery yourself.

In the case of inclement weather, supply chain disruptions or other events beyond our reasonable control that interfere with our ability to deliver your Order, we will attempt to deliver your Order as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. In the event that timely delivery of your Products is not feasible, as determined in our sole discretion, we may cancel your delivery and issue you a credit or refund of the purchase price for that delivery.

5.11. No Resale, Use & Enjoyment of Products

You are not permitted to resell or otherwise use the Products for commercial purposes. Products are intended for individual use. Please follow the handling, storage, preparation, and consumption instructions carefully, found on our website, the Product packaging and these Terms. Our website and Product packaging also contain important content and nutritional information.

PLEASE REFER TO ALL PRODUCT INFORMATION PRIOR TO PREPARATION, USE AND ENJOYMENT.

5.12. Returns and Refunds

If you are dissatisfied with your Order for any reason, please contact us immediately following delivery at hello@daily-harvest.com or via alternative channels listed on the Services. Depending on the details, in our sole discretion, we may replace, credit, or refund you in whole or in part, or otherwise address your dissatisfaction (each, an “Accommodation”). However, unless we failed to deliver the Products in your Order, we assume no obligation to provide an Accommodation. In the event we offer an Accommodation, we may require a return of the Product(s), photographic documentation or other information for quality control or other purposes, prior to providing an Accommodation. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, ALL ACCOMMODATIONS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, AND DAILY HARVEST DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

6. License to Access and Use Our Services and Content

Unless otherwise indicated in writing by us, the Services and all content and other materials contained therein, including, without limitation, the Daily Harvest logo and all designs, text, graphics, pictures, information, data, software, sound files, User Content, other files and the selection and arrangement thereof (collectively, “Content”) are the proprietary property of Daily Harvest or our licensors or users, as applicable, and are protected by U.S. and international copyright laws.

You are hereby granted a limited, nonexclusive, nontransferable, nonsublicensable license to access and use the Services and Content. However, such license is subject to these Terms and does not include any right to (a) sell, resell or use commercially the Services or Content, (b) distribute, publicly perform or publicly display any Content, (c) modify or otherwise make any derivative uses of the Services or Content, or any portion thereof, (d) use any data mining, robots or similar data gathering or extraction methods, (e) download (other than the page caching) any portion of the Services or Content, except as expressly permitted by us, and (f) use the Services or Content other than for their intended purposes. Any use of the Services or Content other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws, including, without limitation, copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated by us, nothing in these Terms shall be construed as conferring any right or license to any patent, trademark, copyright, or other proprietary rights of Daily Harvest or any third party, whether by estoppel, implication or otherwise. This license is revocable at any time for any reason.

Notwithstanding anything to the contrary in these Terms, the Services and Content may include software components provided by Daily Harvest or a third party that are subject to separate license terms, in which case those license terms will govern such software components.

6.1 Repeat Infringer Policy; Copyright Complaints

In accordance with the Digital Millennium Copyright Act, we have adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members, or users and (2) remove and discontinue service to repeat offenders.

Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to Daily Harvest’s Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):

A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
Identification of works or materials being infringed;
Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Daily Harvest is capable of finding and verifying its existence;
Contact information about the notifier including address, telephone number and, if available, email address;
A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.

Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:

remove or disable access to the infringing material;
notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
terminate such content provider's access to the Services if he or she is a repeat offender.

Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:

A physical or electronic signature of the content provider;
Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Designated Agent, Daily Harvest may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Daily Harvest may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.

Please contact Daily Harvest’s Designated Agent at the following address:

Daily Harvest, Inc., Attn: DMCA Designated Agent 99 Hudson Street, 11th Floor, New York, NY 10013

Email: legal@daily-harvest.com

7. Trademarks

“Daily Harvest,” the Daily Harvest logo and any other Daily Harvest Product or service names, logos or slogans that may appear on the Services or Products are trademarks of Daily Harvest, are protected under United States and foreign intellectual property registration and other laws, and may not be copied, imitated, or used, in whole or in part, without our prior written permission. You may not use any meta tags or other “hidden text” utilizing “Daily Harvest” or any other name, trademark or Product or service name of Daily Harvest without our prior written permission. In addition, the look and feel of the Services and Products, including, without limitation, all page headers, custom graphics, button icons and scripts, constitute the service mark, trademark or trade dress of Daily Harvest and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, Product names and company names or logos mentioned on the Services or Products are the property of their respective owners and may not be copied, imitated, or used, in whole or in part, without the permission of the applicable trademark holder. Reference to any Products, services, processes or other information by name, trademark, manufacturer, supplier or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by Daily Harvest.

8. Hyperlinks

You may be granted a limited, nonexclusive, nontransferable right to create a text hyperlink to the Services for noncommercial or promotional or marketing purposes. You shall not make or allow to be made any false, misleading, or disparaging remarks about Daily Harvest or any of our affiliated individuals or organizations or our products of services, and you agree that such hyperlink will not portray Daily Harvest or any of our Products in a false, misleading, derogatory, or otherwise defamatory manner, and that the linking site will not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time by Daily Harvest for any reason. You may not use a Daily Harvest logo or other proprietary graphic of Daily Harvest to link to the Services without our express written permission, which, if granted, may be condition or revoked in our sole discretion, for any reason. Further, you may not use, frame, or utilize framing techniques to enclose any Daily Harvest trademark, logo, or other proprietary information, including the images found on the Services or Products, the content of any text or the layout or design of any page, or form contained on a page, on the Services without our express written consent.

Daily Harvest makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature, or reliability of third party websites accessible by hyperlink from the Services or of websites linking to the Services. Such websites are not under our control, and we are not responsible for the contents of any linked website, any link contained in a linked website, or any review, changes, or updates to such websites. We provide these links to you only as a convenience, and the inclusion of any link does not imply our affiliation, endorsement or adoption of any website or any information contained therein. When you leave the Services, you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any website to which you navigate from our website.

9. Third Party Content

We may display content, advertisements, and promotions from third parties through the Services or in shipments with Products (collectively, “Third Party Content”). We do not control, endorse, or adopt any Third-Party Content, and we make no representations or warranties of any kind regarding such Third-Party Content, including, without limitation, regarding its accuracy or completeness. All third party content is provided “as is.” You acknowledge and agree that your interactions with third parties providing Third Party Content are solely between you and such third parties, and that Daily Harvest is not responsible or liable in any manner for such interactions or Third-Party Content.

10. User Conduct

You agree that you will not violate any law, contract, intellectual property or other third party right or commit a tort, and that you are solely responsible for your conduct, while accessing or using the Services. You agree that you will abide by these Terms and will not:

Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
Use or attempt to use another user’s Account without authorization from such user and Daily Harvest;
Use the Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying the Services or that could damage, disable, overburden, or impair the functioning of the Services in any manner;
Reverse engineer any aspect of the Services or do anything that might discover source code or bypass or circumvent measures employed to prevent or limit access to any Content, area, or code of the Services;
Attempt to circumvent any content-filtering techniques we employ or attempt to access any feature or area of the Services that you are not authorized to access;
Develop any third party applications that interact with User Content or the Services without our prior written consent;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data, or otherwise interfere with or modify the rendering of Services pages or functionality;
Use any robot, spider, crawler, scraper, script, browser extension, offline reader or other automated means or interface not authorized by us to access the Services, extract data, or otherwise interfere with or modify the rendering of Services pages or functionality;
Use the Services, or any information on the Services or in your Account for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates the Terms or other agreements with or rules of Daily Harvest.

11. User Content

The Services may include interactive features and areas that allow users to create, post, share or store content, including, but not limited to, recipes, reviews, photos, videos, music, sound, text, graphics, code, items, or other materials (collectively, “User Content”). In the event you decide to share User Content with others through the Services or third party platforms, you understand that this User Content will be viewable by others in accordance with the privacy settings you establish. You agree that you are solely responsible for your User Content and for your use of any interactive features and areas of the Services.

By using the interactive features and areas of the Services, you further agree not to create, post, share or store any of the following:

User Content that is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
User Content that would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party, or otherwise create liability or violate any local, state, national or international law;
User Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party;
User Content that contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
User Content that impersonates, or misrepresents your affiliation with, any person or entity;
User Content that references or depicts Daily Harvest or our Products but fails to disclose a material connection to us, if you have one (for example, if you are a Daily Harvest employee or influencer);
User Content that contains any unsolicited promotions, political campaigning, advertising or solicitations;
User Content that contains any private or personal information of a third party without such third party’s consent
User Content that references alcohol irresponsibly, such as references to overconsumption or use by minors;
User Content that contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
User Content that would be considered objectionable by a reasonable person or that restricts or inhibits any other person from using or enjoying the Services or Products, or that may expose Daily Harvest or others to any harm or liability of any type.

We are not responsible or liable for any User Content. Although we have no obligation to screen, edit or monitor User Content, we reserve the right, and have absolute discretion, to remove, screen or edit User Content posted or stored on the Services at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store on the Services at your sole cost and expense.

12. Rights in User Content

We do not claim any ownership interest in your User Content. However, by uploading, posting or submitting User Content to the Services or to our pages or feeds on third party social media platforms (e.g., Daily Harvest’s Facebook page, Instagram page or Twitter feed), you hereby grant Daily Harvest a nonexclusive, royalty-free, worldwide, perpetual, irrevocable and fully sublicensable right and license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and publicly display your User Content, in whole or in part, and your name, likeness, voice and persona in any manner or media and for any purpose whatsoever at our sole discretion, including, without limitation, for publicity, promotional, advertising, trade, business, illustration, artistic and other commercial and noncommercial purposes.

By uploading, posting or submitting User Content to Daily Harvest through the Services or through our pages or feeds on third party social media platforms, you represent and warrant that (a) such User Content is nonconfidential, subject to Daily Harvest’s Privacy Policy, (b) you own and control all of the rights to the User Content or you otherwise have all necessary rights to post such User Content, (c) you authorize Daily Harvest to use such User Content for the purposes described in these Terms, (d) the User Content is accurate and not misleading or harmful in any manner, and (e) the User Content, and your use and posting thereof, does not and will not violate or infringe these Terms or any applicable law, rule, regulation or third party right.

13. Feedback

Separate and apart from User Content, you may have the opportunity to submit to Daily Harvest via email, chat, or any other method, questions, comments, suggestions, ideas, original or creative materials or other evaluation data, information, reports and feedback about Daily Harvest, the Services, or the Products, including, but not limited to ingredients, names, techniques, or recipes (collectively, “Feedback”). Feedback shall become the sole property of Daily Harvest and you shall and hereby do assign any rights in such Feedback to Daily Harvest. Daily Harvest shall own exclusive rights, including, without limitation, all intellectual property rights, in and to such Feedback and shall be entitled to the unrestricted use and dissemination of this Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You further represent that any Feedback you provide is your own and does not infringe or misappropriate the rights of anyone, or otherwise breach any obligations you may have to anyone.

14. Indemnification

To the fullest extent permitted by applicable law, you agree to indemnify, defend and hold harmless Daily Harvest, and our respective past, present and future employees, officers, directors, contractors, consultants, equity holders, suppliers, vendors, service providers, parent companies, subsidiaries, affiliates, agents, representatives, predecessors, successors and assigns (individually and collectively, the “Daily Harvest Parties”), from and against all actual or alleged Daily Harvest Party or third party claims, damages, awards, judgments, losses, liabilities, obligations, penalties, interest, fees, expenses (including, without limitation, attorneys’ fees and expenses) and costs (including, without limitation, court costs, costs of settlement and costs of pursuing indemnification and insurance), of every kind and nature whatsoever, whether known or unknown, foreseen or unforeseen, matured or unmatured, or suspected or unsuspected, in law or equity, whether in tort, contract or otherwise (collectively, “Claims”), including, but not limited to, damages to property or personal injury, that are caused by, arise out of or are related to (a) your use or misuse of the Services, Content or Products, (b) any User Content you create, post, share or store on or through the Services or our pages or feeds on third party social media platforms, (c) any Feedback you provide, (d) your violation of these Terms, (e) your violation of the rights of a third party, and (f) any third party’s use or misuse of the Services or Products provided to you. You agree to promptly notify Daily Harvest of any third party Claims and cooperate with the Daily Harvest Parties in defending such Claims. You further agree that the Daily Harvest Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and Daily Harvest.

15. Disclaimers & Important Product Information

15.1 The Daily Harvest Parties make no representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, or any Products, and the Daily Harvest Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of the Products or Services or in any way related to your participation in the Services. The Daily Harvest Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Products. Products and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS-IS” and without any warranty of any kind from the Daily Harvest Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES, CONTENT, AND PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. DAILY HARVEST DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE SERVICES, CONTENT, AND PRODUCTS, ANY WARRANTIES THAT ARISE FROM TRADE USAGE OR CUSTOM, AND ANY WARRANTIES THAT THE SERVICES, CONTENT, OR PRODUCTS WILL BE FREE AND CLEAR FROM ANY ADVERSE LIEN OR SECURITY INTERESTS. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Daily Harvest reserves the right to change any and all Content and to modify, suspend or stop providing access to the Services (or any features or functionality of the Services) and the Products at any time without notice and without obligation or liability to you. Reference to any products, services, processes or other information by trade name, trademark, manufacturer, supplier, vendor or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof, or any affiliation therewith, by Daily Harvest.

15.2 YOU ARE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE HANDLING, PREPARATION, STORAGE, COOKING, USE AND CONSUMPTION OF THE PRODUCTS YOU RECEIVE FROM US. PLEASE FOLLOW DIRECTIONS CAREFULLY. YOU ARE ALSO SOLELY RESPONSIBLE FOR KNOWING ABOUT ANY FOOD ALLERGIES YOU MAY HAVE AND VERIFYING THE PRODUCTS AND THEIR CONTENTS BEFORE HANDLING, PREPARING, USING OR CONSUMING SUCH PRODUCTS. FURTHER, YOU UNDERSTAND, ACKNOWLEDGE AND AGREE THAT WE STORE, PORTION AND PACKAGE PRODUCTS CONTAINING MAJOR ALLERGENS (INCLUDING BUT NOT LIMITED TO MILK, WHEAT, EGG, SOY, FISH, SHELLFISH, PEANUTS, TREENUTS AND SESAME SEEDS) AND CANNOT GUARANTEE THAT CROSS-CONTAMINATION WILL NOT OCCUR BETWEEN PRODUCTS. OUR PRODUCTS CONTAIN (AMONG OTHER INGREDIENTS) UNALTERED FRUITS AND VEGETABLES, WHICH, AS A RESULT OF THE MANNER OF THEIR PRODUCTION, MAY CONTAIN UNDESIRABLE OR FOREIGN OBJECTS. WHILE EFFORTS ARE MADE TO REMOVE SUCH MATERIALS, THERE CAN BE NO ASSURANCE THAT ALL WILL BE REMOVED. PLEASE INSPECT YOUR PRODUCTS CAREFULLY PRIOR TO PREPARATION AND CONSUMPTION, AND DO NOT PREPARE OR CONSUME ANYTHING THAT APPEARS UNAPPEALING OR HARMFUL. PREPARATION AND COOKING PROCEDURES VARY FOR EACH PRODUCT. PLEASE READ AND FOLLOW THE INSTRUCTIONS CAREFULLY. SOME PREPARATION INVOLVES USE OF EQUIPMENT THAT IF USED INCORRECTLY OR UNATTENDED, MAY CAUSE INJURY OR PROPERTY DAMAGE. PLEASE FOLLOW MANUFACTURER INSTRUCTIONS FOR USE OF ALL EQUIPMENT, INCLUDING WARNINGS. FOLLOWING PREPARATION, SOME PRODUCTS MAY BE HOT. PLEASE HANDLE AND ENJOY CAREFULLY. FROZEN PRODUCTS DELIVERED TO YOU ARE INTENDED TO REMAIN FROZEN UPON ARRIVAL. IF YOU RECEIVE PRODUCTS THAT WERE FROZEN BUT ARE NO LONGER FROZEN, PLEASE CONTACT US IMMEDIATELY AND DO NOT REFREEZE, PREPARE OR CONSUME THE PRODUCTS. IF PRODUCTS ARE OTHERWISE DAMAGED, INCLUDING THEIR CONTAINERS, PLEASE CONTACT US. DELIVERIES MAY CONTAIN DRY ICE. DRY ICE MAY CAUSE BURNS TO SKIN OR OTHER DAMAGE. DO NOT TOUCH OR CONSUME DRY ICE AND HANDLE IN ACCORDANCE WITH PACKAGING INSTRUCTIONS. WE ATTEMPT TO DISPLAY THE PRODUCTS AND OTHER MATERIALS AND INFORMATION YOU VIEW ON THE SERVICES, INCLUDING PRICING AND NUTRITIONAL INFORMATION, AS ACCURATELY AS POSSIBLE. HOWEVER, WE DO NOT GUARANTEE THE ACCURACY OF SUCH MATERIALS AND INFORMATION AND ARE NOT RESPONSIBLE FOR ANY CLAIMS ARISING OR RESULTING FROM YOUR RELIANCE THEREON. IN THE EVENT OF AN ERROR ON OUR SERVICES, IN AN ORDER CONFIRMATION, IN PROCESSING OR DELIVERING AN ORDER OR OTHERWISE, WE RESERVE THE RIGHT TO CORRECT SUCH ERROR AND REVISE YOUR ORDER ACCORDINGLY (INCLUDING CHARGING THE CORRECT PRICE) OR TO CANCEL YOUR ORDER AND ISSUE YOU A REFUND. YOU FURTHER AGREE THAT THE PRODUCTS AND OTHER MATERIALS YOU RECEIVE IN YOUR ORDER MAY VARY FROM THE PRODUCTS AND MATERIALS DISPLAYED ON THE SERVICES DUE TO A NUMBER OF FACTORS, INCLUDING, WITHOUT LIMITATION, SYSTEM CAPABILITIES AND CONSTRAINTS OF YOUR COMPUTER, MANUFACTURING PROCESS OR SUPPLY ISSUES, THE AVAILABILITY AND VARIABILITY OF PRODUCTS, DISTINCT COOKING OR OTHER PREPARATION METHODS AND VARIABILITY OF COOKING EQUIPMENT AND APPLIANCES. THE SITES MAY CONTAIN INFORMATION ABOUT PRODUCTS THAT ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR THE SERVICES DOES NOT IMPLY OR GUARANTEE THAT IT IS OR WILL BE AVAILABLE IN YOUR LOCATION OR AT THE TIME OF YOUR ORDER.

16. Limitation of Liability; Release

THIS ENTIRE SECTION WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: DAILY HARVEST OR ANY OF THE OTHER DAILY HARVEST PARTIES SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE ACCESS OR USE OF THE SITES OR CONTENT OR THE ORDER, RECEIPT OR USE OF ANY PRODUCT OR OTHERWISE RELATED TO THESE TERMS (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM DAILY HARVEST, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, 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 DAILY HARVEST’S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE). THE MAXIMUM AGGREGATE LIABILITY OF DAILY HARVEST AND THE OTHER DAILY HARVEST PARTIES (JOINTLY) ARISING OUT OF OR IN ANY WAY RELATED TO (A) THE ORDER, RECEIPT OR USE OF PRODUCTS PURCHASED FROM THE DAILY HARVEST MARKET EXCEED THE AMOUNT PAID FOR SUCH PRODUCTS; AND (B) THE ORDER, RECEIPT OR USE OF PRODUCT, OR ACCESS OR USE OF THE SERVICES OR CONTENT, SHALL NOT EXCEED THE GREATER OF $250 OR THE AMOUNT YOU PAID TO US IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH YOUR CLAIM AROSE. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IN THE EVENT YOUR REMEDIES HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE, AND THE FOREGOING SHALL CONSTITUTE DAILY HARVEST AND THE OTHER DAILY HARVEST PARTIES’ SOLE LIABILITY AND OBLIGATION IN RESPECT HEREOF, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE, OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.

YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE DAILY HARVEST AND THE OTHER DAILY HARVEST PARTIES FROM AND AGAINST, AND COVENANT NOT TO SUE ANY SUCH DAILY HARVEST PARTY FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “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.”

ACCESS TO THE DAILY HARVEST OFFERINGS AND/OR ANY OTHER CONTENT, INFORMATION, PRODUCTS AND/OR SERVICES OFFERED BY AND/OR THROUGH SAME WOULD NOT BE PROVIDED TO YOU WITHOUT SUCH LIMITATIONS. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS ON LIABILITY AND IN SUCH JURISDICTIONS THE LIABILITY OF DAILY HARVEST SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW

17. Modifications to the Services and Products

We reserve the right in our sole discretion to modify, suspend or discontinue, temporarily or permanently, the Services (or any features or parts thereof) or the provision of the Products at any time and without liability therefor.

18. Arbitration and Dispute Resolution

This agreement to arbitrate applies to any “Dispute” between you and Daily Harvest (and/or the Daily Harvest Parties), other than those expressly excepted below, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory for which either of us seeks legal recourse. We also expressly agree that an arbitrator will decide any dispute between us regarding the validity, enforceability, or scope of this agreement to arbitrate or any portion of it.

The exceptions to this arbitration requirement are: (i) claims that can be brought as individual actions in small-claims court; (ii) pursuit of enforcement actions through a government agency if the law allows; (iii) an action to compel or uphold any prior arbitration decision; (iv) your or Daily Harvest’s right to seek injunctive relief in a court of law to preserve the status quo while an arbitration proceeds; (v) claims of intellectual property infringement; (vi) claims that are the subject of a proposed class or collective action settlement in any court; (vii) the enforceability of the requirement that arbitrations must be conducted on an individual rather than a class basis. Those claims, and certain other issues expressly specified for judicial resolution in the terms below, will be decided in court, but all other issues will be decided in arbitration in the manner specified below.

18.1 Informal Resolution. Most questions or concerns can be resolved quickly and satisfactorily by emailing us (hello@daily-harvest.com) or contacting us via another means as specified on our Services. You and we will make a good-faith effort to negotiate the resolution of any Dispute (“Informal Resolution”) for at least 30 days from the day you or Daily Harvest receives a written notice of a dispute from the other party (a “Notice of Dispute”) in accordance with these Terms. (If Daily Harvest has a dispute with you, we will send it to your registered email address and to any mailing address you have provided us). The Notice of Dispute sent by either party must include the sender’s name, address, and other contact information, a description of the Dispute, and what resolution to the Dispute is being sought. These Informal Resolution and Notice of Dispute requirements are designed to allow Daily Harvest or you to make a fair, fact-based offer of settlement if you or we choose to do so. You or Daily Harvest cannot proceed to arbitration unless all required information has been provided. If you or Daily Harvest commences an arbitration without having provided a compliant Notice of Dispute and completed Informal Resolution, disputes over compliance with these pre-filing requirements will be decided by a court with appropriate jurisdiction, and that court may enjoin arbitration proceedings unless and until these requirements are met. The court also may order a party that has filed an arbitration demand without having completed these requirements to reimburse the other party for any arbitration fees and costs, including attorneys’ fees, already incurred.

18.2 Small Claims Court. You and Daily Harvest agree that notwithstanding the obligation to arbitrate Disputes, Disputes that qualify for small claims court in either the county where you live or New York County, New York may be brought as individual actions in such small claims courts. Daily Harvest hopes you will try Informal Resolution first, and you must do so before commencing an arbitration, but you do not have to complete the Informal Resolution process before going to small claims court.

18.3 Binding Individual Arbitration. ARBITRATION PROCEEDINGS WILL BE CONDUCTED ON AN INDIVIDUAL BASIS ONLY. Under no circumstances does Daily Harvest consent to have any Disputes arbitrated using class action procedures, even if the arbitration provider has rules permitting class arbitrations. Arbitrations will be conducted by Judicial Arbitration and Mediation Services (“JAMS”), in the English language, in accordance with the Federal Arbitration Act (“FAA,” 9 U.S.C. § 1, et seq.) and pursuant to the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with experience appropriate to resolving the Dispute at issue. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction. The Rules, as well as the procedures for commencing an arbitration, can be found on the JAMS website, www.jamsadr.com, or by calling JAMS at 1-800-352-5267. “Binding” means that both you and Daily Harvest will have to live with the arbitrator’s decision, except to the limited extent appeals to a court are permitted under the FAA. As limited by the FAA, these Terms, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator will have authority to award temporary, interim, or permanent injunctive relief or relief providing for specific performance of these Terms, but (as provided above) only to the extent necessary to provide relief to a party in arbitration warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction.

18.4 Consumer Arbitration Fees. The terms of this paragraph only apply to you if you are a consumer. (For non-consumer disputes, fees shall be assessed by JAMS pursuant to its rules for such disputes.) If you, as a consumer, start an arbitration against Daily Harvest, you will pay the JAMS filing fee required for consumer arbitrations. If you demonstrate that arbitration fees will be prohibitive compared to litigation filing fees, Daily Harvest will pay as much of your arbitration fees as the arbitrator finds is necessary to prevent arbitration from being cost-prohibitive (as compared to the cost of litigation). Daily Harvest will not pay a consumer’s fees if the claimant is represented by the same common or coordinated counsel as other claimants with similar claims. If Daily Harvest starts an arbitration against you, Daily Harvest will pay all filing fees. If you choose to be represented by an attorney, you will pay your own attorneys’ fees and costs unless the applicable law provides otherwise. If applicable law allows an award of attorneys’ fees to the prevailing party, such laws are enforceable in arbitration.

18.5 Time Limit To Assert Claims. To the fullest extent permitted by applicable law, you or Daily Harvest must start arbitration of a Dispute within one (1) year from when the Dispute first arose. If applicable law requires you or Daily Harvest to assert a Dispute sooner than one year after the Dispute first arose, that shorter deadline applies instead. The failure to begin arbitration regarding a Dispute within the time frames described in this paragraph, if enforceable under applicable law, shall bar the Dispute.

18.6 Hearing Location (If Necessary). For Disputes in which the claimant seeks less than $10,000, the arbitrator will decide the matter solely on the basis of written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For matters in which the claimant seeks $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings shall be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required, and you reside in the United States, the hearing will take place in New York County, New York, unless the arbitrator determines that this would pose a hardship for the you, in which case the in-person hearing may be conducted in your state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.

18.7 Coordinated Filings. If 25 or more Disputes are initiated with the arbitrator that raise similar claims, and counsel for the claimants are the same or coordinated, these will be considered “Coordinated Cases.” Claimants will be responsible for their share of those fees as set by the Rules and JAMS’ fee schedule for mass arbitrations. Applicable statutes of limitations will be tolled for all claimants who have provided compliant Notices of Dispute to Daily Harvest, but demands for arbitration in Coordinated Cases shall only be filed with JAMS as permitted by the bellwether process set forth below, and Daily Harvest shall not be required to pay any fees associated with cases that this agreement does not allow to be filed.

Once all Notices of Dispute have been provided to Daily Harvest for Coordinated Cases, counsel for claimants and counsel for Daily Harvest shall confer in good faith regarding the number of cases that should proceed as bellwethers, to allow each side to test the merits of its arguments, before the remainder of claims may be filed with JAMS. Any number chosen must be an even number so as to allow each side to designate its half of the cases selected for bellwether trials. If counsel for claimants and for Daily Harvest do not agree on the number of bellwethers, the number shall be chosen by JAMS as an administrative matter (or, in JAMS’ discretion, by a process arbitrator). Factors that JAMS or the process arbitrator may consider in making this decision include the complexity of the dispute and differences in facts or applicable laws among various claims. Once the number of bellwethers is fixed, by agreement or by the arbitration provider, each side shall select half that number from among the claimants who have provided compliant Notices of Dispute, and only those chosen claims may be filed with the arbitration provider. You agree that if your case is not among the cases chosen for this bellwether process, resolution of your claim may be delayed. A single arbitrator shall preside over each Coordinated Case chosen for a bellwether proceeding, and only one Coordinated Case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise. Once all bellwether trials have concluded (or sooner if the counsel for the claimants in the Coordinated Cases and Company agree), the parties must make a good-faith effort to resolve all remaining cases that were not chosen for a bellwether proceeding by engaging in a single mediation of all remaining cases. Each side shall pay half the applicable mediation fee. Counsel for claimants in the Coordinated Cases and for Daily Harvest must agree on a mediator within 30 days after the conclusion of the last bellwether trial. If counsel for claimants in the Coordinated Cases and for Daily Harvest cannot agree on a mediator within 30 days, JAMS will appoint a mediator as an administrative matter. Counsel for the claimants in the Coordinated Cases and for Daily Harvest will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.

If the mediation does not yield a global resolution, then claimants in Coordinated Cases who provided compliant Notices of Dispute, but whose claims were not resolved in bellwether proceedings, shall no longer have the requirement or the right to arbitrate their Dispute. Instead, outstanding claims from such cases in which a compliant Notice of Dispute was provided must be pursued in court. To the extent you are asserting the same claims as other persons and are represented by common or coordinated counsel, you agree to waive any objection that the joinder of all such persons into a single action is impracticable. If a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Company reserves the right to contest class certification at any stage of the litigation and on any available basis.

A court shall have authority to enforce this bellwether process and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.

18.8 Exclusive Venue for Claims Not Subject to Arbitration/Jury Trial Waiver. Disputes exempted from the arbitration requirement, Disputes brought by one who has opted out of the arbitration requirement, Disputes that cease to be arbitrable pursuant to the procedures above for Coordinated Cases, and any other Dispute deemed not to be arbitrable, may be filed only in the state courts in New York County, New York, or if federal jurisdiction exists, in the United States District Court for the Southern District of New York, and you consent as part of these Terms to venue such cases exclusively in these courts. Nothing in this paragraph shall be construed as prohibiting either you or Daily Harvest from removing a case from state to federal court if removal is allowed under applicable law. To the fullest extent permitted by applicable law, Daily Harvest and you waive the right to trial by jury.

18.9 Class Action Waiver. To the maximum extent permitted by applicable law, you and Daily Harvest agree to bring disputes, claims, or controversies between Company in an individual capacity only and shall not seek to bring, join, or participate in any class or representative action, collective or class-wide arbitration, or any other action where another individual or entity acts in a representative capacity (like private attorney general actions); or consolidate or combine individual proceedings or permit another to do so without the express consent of all parties to these Terms. The sole exception, set forth above in Section 18.7, is that if a formerly arbitrable Dispute is brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in the Coordinated Cases who provided compliant Notices of Dispute, and Daily Harvest reserves the right to contest class certification at any stage of the litigation and on any available basis.

18.10 Continuation in Effect. The dispute resolution process set forth in this agreement survives the termination of any other agreement between you and Daily Harvest.

18.11 30-Day Opt-Out Right. You have the right to opt out of requirement to arbitrate disputes (but not the class action waiver provisions of this Section) by sending written notice of your decision to opt out to the following address: Daily Harvest, Inc. Attention: Legal; 99 Hudson Street, Floor 11; New York, NY 10013 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your Account, and (iii) a clear statement that you want to opt out of the arbitration requirement.

18.12 Future Terms Changes. Although Daily Harvest may revise these dispute resolution terms in its discretion, Daily Harvest does not have the right to alter this agreement, or the arbitration rules specified herein, with respect to any Dispute once that Dispute arises if such change would make arbitration procedures materially less favorable to the claimant. The question of whether a change is materially less favorable to the claimant shall be decided by the arbitration provider as a process matter.

18.13 Severability. If any provision of this Section 18 is found invalid, unenforceable, or illegal, then you and Daily Harvest agree that the provision will be severed, and the rest of these terms shall remain in effect and be construed as if any severed provision had not been included. The sole exception is that if the prohibition on class arbitrations is found invalid, unenforceable, or illegal, you and Daily Harvest agree that this entire agreement to arbitrate (but not the separate class action waiver) will be void and unenforceable and any dispute will be resolved in court subject to the venue and choice of law clauses specified herein.

19. Accessibility. Daily Harvest is committed to making its website usable by all people, including those with disabilities. We strive to make our website an equal experience for everyone, and continue to monitor our website to make sure that all content provided is accessible to all visitors. If you are having problems using this website, please contact us at 1-888-302-0305 or hello@daily-harvest.com for assistance.

20. Miscellaneous

These Terms constitute the entire agreement between you and Daily Harvest relating to your access to and use of the Services and your order, receipt and use of Products. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without the prior written consent of Daily Harvest. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of New York, without regard to the conflicts of laws provisions thereof. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Daily Harvest’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.

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