Campaign Terms and Conditions

These terms and conditions (“Terms and Conditions”) govern the promotional campaign (the “Campaign”) described in a letter agreement or statement of work (each a “SOW” and referred to collectively with these Terms and Conditions as, this “Agreement”) between between you (“Partner”) and Daily Harvest, Inc. (“Daily Harvest”).  These Terms and Conditions apply when expressly incorporated by reference in an Agreement. Daily Harvest and Partner may be referred to individually as a “Party” and collectively as the “Parties.” 

In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Intellectual Property; License. Each Party will retain all right, title and interest in and to its trademarks, service marks, logos and trade names worldwide, subject to the limited license granted below. Each Party hereby grants to the other a non-exclusive, limited license to use its trademarks, service marks, logos or trade names solely for the purposes described in, and only for the Term of, this Agreement.  All such use shall be in accordance with each Party's policies regarding advertising and trademark usage as reasonably established from time to time. Upon the expiration or termination of this Agreement, each Party will cease using the trademarks, service marks, logos and/or trade names of the other Party. Partner agrees that Daily Harvest may use images, including video, static images and clips thereof, trademarks, service marks, trade names, trade dress and any other content that Partner may provide (collectively, the “Intellectual Property”) in connection with the Campaign. Daily Harvest will own any and all data used, obtained or produced in connection with the Campaign.

2. Term and Termination. Unless otherwise set forth in the SOW, the term shall commence as of the date the SOW is signed and shall continue through the end of the Campaign (the “Term”). In the event of a material breach of this Agreement by either Party, the non-breaching Party shall, in addition to any other rights or remedies available to it at law or in equity, have the right to immediately terminate this Agreement, provided it has notified the breaching Party in writing in a timely manner of the breach and the breaching Party has failed to cure such breach (to the extent capable of being cured) within seven (7) business days following receipt of such notice (it being understood and agreed by Partner that no breach of any applicable exclusivity obligations shall be capable of being cured for purposes hereof). Daily Harvest may terminate this agreement immediately if Daily Harvest reasonably determines that fraudulent Promo Code redemption is occurring.

3. Confidentiality. “Confidential Information” means information about a Party's business or activities that is either designated as proprietary and confidential or information which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as confidential. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving Party lawfully receives from a third party which to the knowledge of the receiving Party was without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving Party knew prior to receiving such information from the disclosing Party or develops independently. Each Party agrees (i) that it will not use or disclose to any third party any Confidential Information disclosed to it by the other Party except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, each Party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors, or (iii) with the other Party’s prior written consent.

4. Representations and Warranties. Each Party hereby represents and warrants to the other Party that (a) the person entering into this Agreement on behalf of such Party has the full power and authority to do so, and all corporate or other actions have been taken, and all approvals obtained, that are necessary to make this Agreement binding and enforceable as against such Party, (b) such Party’s performance of its obligations under this Agreement is not in conflict with, and will not cause a breach or event of default under, any agreement or instrument to which it is a party or by which it is bound, and (c) such Party will perform its obligations under this Agreement in compliance with all applicable laws, rules, and regulations.  Partner further represents and warrants to Daily Harvest that Partner owns or controls or has obtained all rights and necessary authorizations, consents, licenses, sublicenses and releases in connection with any information, data, intellectual property or other materials provided by or on its behalf to Daily Harvest, and has full authority and full power to distribute and use, and to license or otherwise grant to Daily Harvest the right to publish, exhibit, disseminate, display and use, such information, data, intellectual property or other materials, in the manner set forth in this Agreement, and that any such authorized use by Daily Harvest will not infringe or otherwise violate the rights of any third party.

5. Indemnity.Each Party (the “Indemnifying Party”) agrees to defend, fully indemnify and hold harmless the other Party and its subsidiary and affiliated companies, and its and their respective directors, officers, employees, contractors, stockholders, agents and representatives, from and against any and all third party claims, demands, suits, actions, causes of action and/or liability, of any kind whatsoever for damages, losses, costs of settlement and expenses (including, without limitation, reasonable attorney’s fees and expenses) resulting from a breach by the Indemnifying Party of this Agreement. 

6. Non-Disparagement. Partner agrees that it shall not make or authorize any public statements in derogation of Daily Harvest, its brand, products, or personnel, and will not use or depict Daily Harvest, its brand or products in any way intended to or in a manner that is reasonably likely to disparage Daily Harvest, its brand, products or personnel. In addition to the termination rights contained herein, Daily Harvest may terminate this agreement immediately upon notice to Partner if Partner breaches this Section.

7. Notice.  All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) sent by email to the recipient (upon non-automated reply email or other written notice from recipient confirming receipt), or (c) one business day after being sent to the recipient by reputable overnight courier service (charges prepaid). Such notices, demands and other communications shall be sent, if to Daily Harvest, to Daily Harvest, Inc., 99 Hudson St, 11th Floor, New York NY 10013. Attention: Legal Department, Email: legal@daily-harvest.com, and if to Partner, to the address set forth under Partner’s signature block in the SOW or otherwise communicated to Daily Harvest.

8. Miscellaneous.  The relationship between Daily Harvest and Partner is that of independent contractors and neither Party will be considered, or hold itself out as, an agent or representative of the other for any purpose. The Parties agree to do such further acts and things and to execute and deliver such additional agreements and instruments as may be reasonably necessary to give effect to the purposes of this Agreement and the Parties’ agreements hereunder. This Agreement will be binding on and inure to the benefit of the Parties and their respective successors in interest and assigns. Such provisions of this Agreement that by their nature would be expected to survive termination of this Agreement (e.g., without limitation confidentiality and indemnification provisions), shall survive any such termination. This Agreement and the rights and obligations of the Parties will be governed by and construed according to the laws of the state of New York in the United States, without regard to the choice of law provisions that would require the application of the laws of another jurisdiction.  Partner irrevocably submits to the exclusive jurisdiction of courts of the state of New York and of the United States located in the City of New York. The provisions of this Agreement are severable, and in the event that any provision thereof is determined to be invalid or unenforceable, such invalidity or unenforceability will not in any way affect the validity or enforceability of the remaining provisions. Unless otherwise explicitly set forth herein, no amendment, waiver, or discharge of any provision of this Agreement will be effective unless made in writing and signed by Daily Harvest and Partner. This Agreement, including all documents incorporated herein by reference, constitutes the entire agreement among Daily Harvest and Partner with respect to the subject matter thereof and supersedes all prior agreements.