Purchase Terms and Conditions

THIS ORDER CONSTITUTES THE ENTIRE INTEGRATED AGREEMENT BETWEEN SELLER AND DAILY HARVEST WITH RESPECT TO SUCH GOODS AND SERVICES PURCHASED HEREUNDER AND SUPERSEDES ALL PRIOR WRITTEN OR ORAL UNDERSTANDINGS OR AGREEMENTS RELATING TO THE SAME. IN THE EVENT OF ANY CONFLICT BETWEEN THESE TERMS AND THE TERMS ON THE FACE HEREOF, THE TERMS ON THE FACE HEREOF WILL GOVERN.  EXCEPT FOR CHANGES DESCRIBED IN SECTION 6, NO MODIFICATION OF THIS ORDER WILL BE BINDING ON DAILY HARVEST UNLESS SET FORTH IN AN AGREEMENT SPECIFICALLY REFERENCING THIS ORDER AND SIGNED BY AN AUTHORIZED PURCHASING AGENT OF EACH PARTY.

2.1 Seller will sell to Daily Harvest the Products (the "Products") and/or provide to Daily Harvest the services (the "Services") shown on the face of this Order. Seller will comply with the quantity and delivery requirements of this Order; however, Daily Harvest will not be bound by any forecasts or other information it may provide to Seller, and any expenditures or commitments by Seller in anticipation of Daily Harvest's requirements will be at Seller's sole risk and expense.

2.2 Prices are stated in U.S. dollars on the face of this Order and are exclusive of freight charges, duty and applicable sales and use taxes, but are inclusive of all other charges including any charges for labeling, packing and crating, any finishing or inspecting fees, any applicable royalties, and all other taxes. However, Daily Harvest will have no liability for any tax for which it has an appropriate exemption.

Shipments are FOB at Daily Harvest’s ship-to location (“Destination”). Title and risk of loss pass to Daily Harvest upon receipt of Products at Destination. Seller will handle, pack, mark and ship the Products in accordance with Daily Harvest’s packing specifications (or, if none are applicable, in accordance with best commercial practice). Except as required by Section 5, shipments will be made by the carrier and method specified in this Order.

4.1 Payment of all undisputed amounts will be due within forty-five (45) days after, and any discounts computed from, the later of (i) Daily Harvest's receipt and acceptance of the Products or Services and (ii) Daily Harvest's receipt of an appropriate invoice to billing@daily-harvest.com. All payments will be made in U.S. currency.

4.2 Daily Harvest, without liability to Seller, may deduct from any amounts due to Seller, any amounts owed to Daily Harvest by Seller or any of Seller’s affiliates under this Order or otherwise, and may withhold any payment without penalty to Daily Harvest if Seller owes any amount of money to Daily Harvest.

Time is of the essence with respect to this Order. Delivery will not be deemed to be complete until Products or Services have been actually delivered to and accepted by Daily Harvest. Seller will not make deliveries later or more than three (3) days earlier than the delivery date required by Daily Harvest (the "Delivery Date"). If Products or Services are delivered more than five (5) days early, Daily Harvest (or its designee) may refuse to accept and may return them, after which they will be redelivered only upon Daily Harvest's instructions, or may store them at Seller's risk and expense and delay processing the corresponding invoice until the Delivery Date.  If it appears that Seller will not meet the specified schedule, Seller will (i) immediately notify Daily Harvest and (ii) ship by air freight or other expedited routing, at Seller's expense, if and in the manner requested by Daily Harvest. If only a portion of the Products are available for shipment to meet the Delivery Date, Seller will notify Daily Harvest and ship the available Products unless otherwise directed by Daily Harvest.  Daily Harvest may return any unauthorized undershipment or any overshipment.

6.1 Daily Harvest may reschedule Delivery Dates, change Destinations, make any other changes (including changes to designs and specifications) with respect to this Order, or may cancel this Order, in whole or in part, by notice to Seller. If Daily Harvest changes or cancels this Order at least thirty (30) days prior to the Delivery Date (the "Modification Date"), Daily Harvest will have no liability to Seller with respect to the change or cancellation except to the extent, if any, that Daily Harvest agrees in writing upon an equitable adjustment for any change that directly affects the price or time for performance under this Order (an "Adjustment"), provided that Daily Harvest will always have the right to require Seller to perform immediately in accordance with the Order as changed.  If Daily Harvest changes or cancels this Order after the Modification Date, the same will not constitute a default by Daily Harvest, and Daily Harvest's sole liability with respect to the same (other than for any Adjustment) will be to reimburse Seller for the actual, reasonable and substantiated costs incurred by Seller as a direct result of the change or cancellation which Seller cannot recover either by shipping the Products to other customers within a reasonable time or by exercising other mitigation measures in a commercially reasonable manner.  If so directed by Daily Harvest, Seller will deliver to Daily Harvest or its designee all materials, work in process or completed items with respect to such Products and Services.

6.2 Seller will not make any changes in material, process or design with respect to any Products or Services.

7.1 Seller will maintain an objective quality program in accordance with, and will otherwise participate in and comply with, Daily Harvest's supplier quality and certification programs, industry best practices, and all applicable regulatory requirements, as in effect from time to time.

7.2 Seller will permit, and cause its subcontractors to permit, Daily Harvest, its direct or indirect customers, their respective representatives and any government representatives ("Representatives") to witness and inspect Products or Services and any or all stages of their production or testing at any time at the facilities of Seller or any of its subcontractors.  Seller will furnish, or cause to be furnished, without charge, all reasonable facilities and assistance for the safety and convenience of such persons in the performance of their duty.

7.3 Seller is responsible for all loss, liability, cost and expense (whether inside or outside the warranty period) with respect to defects caused by design, manufacturing process or material that constitute epidemic defects ("Material Defects").  

7.4 All Products and Services are subject to inspection and acceptance at Destination, notwithstanding any prior payments or inspection. Daily Harvest, or its designee, may reject an entire lot based upon a sampling or inspect all units of the lot.  Any such lot may be returned to Seller for one hundred percent (100%) retesting at Seller’s cost. After the retesting, the lot may be reinspected by Daily Harvest. Daily Harvest's acceptance is always conditional; Daily Harvest may later reject Products or Services that exhibit or develop defects. 

7.5 In the event either party becomes aware that a hazard may exist in any Product and the defect is capable of causing death or bodily injury to any person or property damage (“Hazard”), that party shall immediately notify the other party.  Seller shall be responsible for any and all costs associated with a Hazard including the cost of affecting a recall of the Product including but not limited to the reasonable out-of-pocket costs to Daily Harvest.

8.1 Seller warrants that Daily Harvest will acquire good and marketable title to the Products, and that all Products and Services will be free and clear of all liens, claims, encumbrances and other restrictions. In addition to all warranties available to Daily Harvest under applicable law, Seller warrants that all Products will be new; will be free from defects in materials, manufacturing and design, including cosmetic defects; will conform to specifications, any statements in documentation and packaging, and any approved samples; and for the longer of (i) thirty-six (36) months from the date of delivery to Daily Harvest or (ii) the period specified by Seller, will function properly under ordinary use. Seller warrants that all Services will conform to Daily Harvest’s specifications and all other requirements of this Order and will be performed in a good and workmanlike manner in accordance with highest industry standards.

8.2 If any Product or Service (including any rejected lot) does not conform to the foregoing warranty or the other requirements of this Order ("Noncomplying Product"), Daily Harvest may, at its option, (i) require Seller to deliver replacement or repaired Products or conforming Services to Daily Harvest no later than ten (10) days after Daily Harvest's notice of noncompliance or (ii) repair or replace the Noncomplying Product and recover from Seller Daily Harvest's reasonable expenses of same (and Seller hereby grants Daily Harvest and its designees all rights, and agrees to provide all information and technical data, necessary for any such repair).  If Daily Harvest elects option (i) and Seller fails to replace or repair Noncomplying Products properly and within the time period set forth above, Seller will reimburse Daily Harvest on demand for all amounts paid by Daily Harvest with respect to the Noncomplying Products or Daily Harvest may offset such costs under Section 4.2.  Repaired or replacement Products will be warranted by Seller for the longer of (i) one (1) year from delivery to Daily Harvest or (ii) the remainder of the original warranty period. 

9.1 All tools, dies, specifications, drawings, designs or other property furnished or paid for by Daily Harvest in connection with this Order ("Daily Harvest Property") will (i) be and remain the tangible and intellectual  property of Daily Harvest, marked as such and kept segregated from other property, (ii) be used only by Seller and only in performance of this Order, (iii) not be moved from Seller's premises without Daily Harvest's written consent, (iv) not be affixed to real property, (v) be kept free of all liens, claims, encumbrances and restrictions, and (vi) not be modified or altered by Seller or any other person. Seller will bear all risk of loss or damage to Daily Harvest Property until it is returned to Daily Harvest. Upon Daily Harvest's request Seller will deliver at its expense all Daily Harvest Property in good condition, ordinary wear and tear excepted, to Daily Harvest at any location designated by Daily Harvest.  Seller waives any legal or equitable rights or claims in connection with Daily Harvest Property.

9.2 Seller assigns to Daily Harvest, as a work-for-hire, all rights, title and interest in any and all intellectual property rights with respect to any drawings, information, ideas or expressions of ideas that Seller creates in performing this Order.

Seller will comply with all applicable laws, orders and regulations of any governmental authority with jurisdiction over Seller's activities, and industry best practices, in connection with this Order ("Applicable Laws") and will furnish to Daily Harvest any information required to enable Daily Harvest to comply with Applicable Laws in its use of the Products or Services. Seller will not provide anything of material value to any Daily Harvest employee in order to secure Daily Harvest’s business.

Seller will certify to, and mark Products and packaging with, the country of origin for each Product so as to satisfy the requirements of customs authorities of the country of receipt and any other Applicable Laws. If any Products are imported, Seller will, at Daily Harvest's request, either (i) allow Daily Harvest to be the importer of record or (ii) provide Daily Harvest with any documents required to prove importation and to transfer duty drawback rights to Daily Harvest.

During the term of the Order, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000.00 per occurrence, $2,000,000.00 in aggregate, with financially sound and reputable insurers. Upon Daily Harvest's request, Seller shall provide Daily Harvest with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in this Order. Seller shall provide Daily Harvest with 30 days' advance written notice in the event of a cancellation or material change in Seller's insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Daily Harvest's insurers and Daily Harvest.

Seller will indemnify, defend and hold Daily Harvest harmless from and against any and all claims, demands, damages, losses, liabilities, costs or expenses (including settlement costs and attorneys' fees) (collectively, "Losses") with respect to (i) any violation or alleged violation of any Applicable Laws, or any infringement or alleged infringement of any patent, copyright, trade secret, trademark or other proprietary or intellectual property right, in connection with the Products or Services; (ii) any actual or alleged loss, damage to or destruction of property and/or death, illness or injury to any person arising out of any Material Defects or Hazards, Seller's use of Daily Harvest Property, or Seller's performance of, or failure to perform, any of Seller's obligations; and (iii) any and all claims by or on behalf of Seller's subcontractors, materialmen, suppliers, employees or agents. The foregoing obligations will apply regardless of whether the Loss in question arises in part from any negligent act or omission of Daily Harvest, from strict liability of Daily Harvest, or otherwise. Seller will defend the claim utilizing counsel approved by Daily Harvest. Daily Harvest may participate in the defense without relieving Seller of its obligations, and Seller will at all times consult with and update Daily Harvest regarding any claims. Seller will not settle any claim without the written consent of Daily Harvest. In the event of an infringement claim, Seller will, at Seller's expense, (i) immediately obtain the right for Daily Harvest to continue to sell, distribute and use the Products or Services, or (ii) modify the Products or Services so as to relieve the purported infringement while still complying with all the requirements of this Order.  For purposes of this Section the term "Daily Harvest" also includes any other person or entity directly or indirectly distributing for or otherwise acquiring Products or Services from Daily Harvest and their respective officers, directors, shareholders, employees, representatives and agents.

14.1 The existence and terms of this Order; the relationship between the parties arising hereunder and under any agreement; any data, specifications, drawings, software or other information or materials that are paid for by Daily Harvest with respect to this Order or that relate to the business, technology, prospects, financial condition or other proprietary or confidential information of Daily Harvest which Seller may obtain from Daily Harvest or otherwise discover, and all Seller's information derived from or incorporating any of the foregoing shall be maintained by Seller as confidential using the same degree of care that Seller uses to protect its own confidential information or materials (but no less than reasonable care) and shall be used only for purposes of providing Products or Services pursuant to this Order. Seller agrees not to use the name of Daily Harvest or to quote any Daily Harvest employee in any advertising or otherwise without obtaining the prior written consent of Daily Harvest.

14.2 All data, specifications, drawings, software and other information or materials supplied to Daily Harvest by Seller will be provided to Daily Harvest on a non-confidential basis and may be used and/or disclosed by Daily Harvest without restriction.

EXCEPT AS PROVIDED IN SECTIONS 5, 7, 8.2, 12, 13 AND 16 NEITHER DAILY HARVEST NOR SELLER SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES RELATED TO THIS ORDER, EVEN IF THE PARTY INCURRING SUCH DAMAGES ADVISES THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DAILY HARVEST'S LIABILITY HEREUNDER EXCEED THE TOTAL PRICE ON THE FACE OF THIS ORDER.

Seller will maintain samples as reasonably requested by Daily Harvest, and accurate and legible records in English of, and will grant to Daily Harvest and any Representatives access to and copies of, any information reasonably requested by Daily Harvest with respect to Seller's performance under this Order (including quality programs and test documentation) for three (3) years after the date of this Order or such other time as may be required by applicable law.

17.1 All Noncomplying Products, all Products exhibiting Material Defects, all replacement or repaired products with respect to any of the same, and all overshipments, undershipments, or early or late shipments returned by Daily Harvest to Seller, will be shipped at Seller's risk and expense including packing and freight charges to and from Seller, and Seller will reimburse Daily Harvest for any inspection costs incurred by Daily Harvest with respect to the same.  Notwithstanding anything to the contrary in this Order, in the event (i) Seller fails to comply with any of the terms and conditions herein, (ii) Seller fails to provide Daily Harvest, upon request, with reasonable assurances of performance, or (iii) Seller makes an assignment for the benefit of its creditors, a receiver is appointed for Seller, or any bankruptcy or insolvency proceedings are instituted by or against Seller, Daily Harvest may (x) consider the same a breach of contract by Seller, (y) terminate this Order in whole or in part, without any liability or obligations to Seller, and (z) obtain products or services similar to the Products or Services upon such terms and in such manner as Daily Harvest reasonably deems appropriate, and Seller will reimburse Daily Harvest upon demand for all additional costs, direct or indirect, incurred by Daily Harvest in procuring same. Seller acknowledges that Daily Harvest may have incurred costs in reliance on Seller’s commitment to provide the Products subject to this Order, and in the case Seller fails to provide the Products in whole or in part, Seller will reimburse Daily Harvest for any such costs.

17.2 Except as may be otherwise provided in this Order or any Agreement, the rights or remedies of the parties hereunder are not exclusive, and either party shall be entitled alternatively or cumulatively, subject to the other provisions of this Order, to damages for breach, to an order requiring specific performance, or to any other remedy available at law or in equity. Termination of this Order will not affect any of the parties' rights or obligations that are either (i) vested as of such date or (ii) intended by the parties to survive termination, including Sections 4.2 and 16.1 and Articles 7, 8, 9, 12, 13 and 14.

Seller and Daily Harvest are independent contractors; neither is an agent or employee of the other or has any authority to assume or create any obligation or liability of any kind on behalf of the other. Seller may not assign, delegate or substitute (by operation of law or otherwise) this Order or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Daily Harvest, and any attempt to do so will be void.  No waiver of any term or condition is valid unless in writing, and will be limited to the specific situation for which it is given.  No other action or failure to act (including inspection, failure to inspect, acceptance of late deliveries, or acceptance of or payment for any Products or Services) will constitute a waiver of any rights.  THIS ORDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, U.S.A., EXCLUSIVE OF ANY PROVISIONS OF THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS AND WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. SELLER HEREBY SUBMITS TO THE JURISDICTION OF ALL FEDERAL AND STATE COURTS OF THE STATE OF NEW YORK, U.S.A. AND HEREBY AGREES THAT ANY SUCH COURT SHALL BE A PROPER FORUM FOR THE DETERMINATION OF ANY DISPUTE ARISING HEREUNDER.  Any provision of this Order that is invalid or unenforceable under applicable laws with respect to a particular party or circumstance will be severed from this Order with respect to such party or circumstance without invalidating the remainder of this Order or the application of such provision to other persons or circumstances.  The term “including” means “including without limitation.”  The headings used in this Order have no legal effect.