Supplier Terms and Conditions

Reference is made to the Supplier Agreement (the “Supplier Agreement”) entered into by and between Supplier (as defined therein) and Daily Harvest, Inc. (“Daily Harvest”).  Any terms that are capitalized herein and not defined herein have the meaning set forth in the Supplier Agreement. The following Supplier Terms and Conditions (“Terms & Conditions”), the terms and conditions of the Supplier Agreement, the terms of any and all purchase orders issued hereunder (each, a “PO”) and the terms of all other documents incorporated by reference herein (the “Other Terms” and together with the Terms & Conditions, the Supplier Agreement and any POs, this “Agreement”) govern the relationship between Daily Harvest and Supplier.  In the event of a conflict between the Supplier Agreement, these Terms & Conditions, the Other Terms, and any PO, the order of controlling documents is as follows: the Supplier Agreement, these Terms & Conditions, the PO, and lastly the Other Terms.  Daily Harvest reserves the right to change these Terms & Conditions, effective upon posting. Supplier should regularly visit this website and review these Terms & Conditions to ensure it is complying with the most recent version.

1. Supplier Onboarding. Supplier agrees to follow Daily Harvest onboarding requirements as set forth herein and as may be provided by Daily Harvest from time to time. Onboarding requirements may be updated by Daily Harvest upon notice to Supplier. 

a. Supplier Management System. As a part of Daily Harvest’s onboarding requirements, Supplier must electronically connect to the operative Daily Harvest supplier management system (the “Supplier Management System”). Supplier will upload to the Supplier Management System all required food safety, quality and regulatory documentation related to each unique ingredient, the primary processing location of each ingredient, and any required reports. Supplier will ensure that all documentation in the Supplier Management System is up to date at all times.

b. Quality Standards & Procedures.  Supplier shall adopt, maintain and comply with written quality assurance procedures and perform periodic quality control tests adequate to ensure that all Ingredients supplied hereunder conform to the Specifications and all applicable laws, regulations or requirements of any Governmental Authority, including those of the USDA and FDA, as applicable (collectively the “QA Procedures”). Supplier shall promptly submit to Daily Harvest in writing a description of its QA Procedures and shall adopt and incorporate in the Specifications such additional quality control procedures provided by Daily Harvest (which shall be included in the definition of QA Procedures) as Daily Harvest shall reasonably determine to be required by applicable law or regulation or to improve materially the quality of the Ingredients. Supplier will provide to Daily Harvest a Generally Recognized as Safe (GRAS) statement for each unique Ingredient.

2. Contents of POs. Each PO shall contain the following information: quantities and types of Ingredients; required delivery dates; shipping instructions, including place of delivery; and a reference to this Agreement as governing other terms and conditions. The exclusive terms and conditions of purchase and sale of any Ingredient during the Term shall be as set forth in this Agreement and the applicable PO, and in the event of a conflict between this Agreement and a PO, the terms of this Agreement shall control.  Any preprinted terms or conditions appearing on Supplier’s order acknowledgment forms or invoices, or on any other documentation exchanged in the course of the administration and operation of this Agreement that attempts to alter, amend, modify, or is in addition to, or is contrary to the terms and conditions of this Agreement, shall be null and void and shall have no legal force or effect.

3. Specifications.  All Ingredients provided by Supplier hereunder shall be in strict accordance with the product specifications, including testing requirements, and comply with all product claims, including without limitation allergen requirements and organic claims agreed to by Supplier and Daily Harvest in the Supplier Management System (the “Specifications”). Supplier will upload to the Supplier Management System all required proof of certification for any designations listed in the Specifications that require certification (e.g., organic). In addition to any requirements set forth in the Specifications, all suppliers and manufacturers used by Supplier in connection with this Agreement will be subject to Daily Harvest’s prior written approval. 

a. Daily Harvest Changes.  Daily Harvest may make commercially reasonable changes to any Specifications at any time prior to the supply of the affected Ingredient, and Supplier shall implement such changes in accordance with the instructions received from Daily Harvest as soon as reasonably practicable.  Supplier must provide Daily Harvest, as soon as reasonably practicable, notice of any changes in pricing resulting from such changes (either up or down).   

b. Supplier Changes.  Supplier shall not make any change or alteration (each, a “Change”) to the Specifications, the manufacturer, or the source or the supply of any Ingredients without Daily Harvest’s prior written consent.  If a Change is required in order to correct a defect in, or a nonconformity to, the Specifications of any Ingredients (whether such defect or nonconformity is discovered by Daily Harvest, Supplier or a third party), then subject to compliance with Section 13, Supplier shall make such Change and shall bear any supply costs incurred in making such Change. In addition, to the extent that such Change affects Ingredients that have been shipped to Daily Harvest, they shall be considered to be Non-conforming Ingredients (as defined below), and Daily Harvest shall be entitled to replacement Ingredients, or credits or reimbursements, at its option, as provided in Section 13, within thirty (30) days.

4. Delivery.  Unless otherwise agreed upon between Supplier and Designee, Ingredients will be FOB pick-up location, which, unless otherwise agreed by Daily Harvest, shall be a location in the United States.  If Supplier becomes aware of a potential delay in delivery of the Ingredients, Supplier shall timely notify Daily Harvest, in writing, giving pertinent details. This notification shall not change any obligations to conform to the agreed-upon delivery schedule

5. Time of Essence.  Time shall be of the essence of each PO’s performance hereunder, including Supplier’s delivery of Ingredients on the dates specified in the PO delivered hereunder.  

6. Prices; Payment.

a. Price.  The price for the Ingredients purchased hereunder shall be as set forth in the applicable Schedule A. All prices are inclusive of taxes, duties, and fees, except as may otherwise be specified in Schedule A. Upon request, Daily Harvest will furnish Supplier with any resale certificate or similar documents reasonably requested by Supplier to comply with applicable sales and use tax laws or to claim any available exemption from such taxes.

b. Invoices; Payment; Right to Offset.  As soon as practicable following shipment of Ingredients by Supplier, but in any event no later than thirty (30) days after shipment, Supplier will send an invoice for the Ingredients to the party who issued the applicable PO, with a copy to Daily Harvest in each case that a Designee issued such PO.  Payment shall be made to Supplier in United States Dollars, and for POs issued by Daily Harvest payment terms shall be net 30 from date of receipt of invoice.  For POs issued by a Designee, the payment terms shall be as set forth in the PO. In the event of any unpaid past due balance, Supplier may impose on Designee a finance charge pursuant to Supplier’s contractual terms with Designee. Daily Harvest or its Designee, as applicable, may offset any amounts due Supplier by any amounts Supplier may then owe Daily Harvest or its Designee, as a credit, damage or any other monetary obligation.

7. Preferred Customer.  Supplier agrees that in the event it supplies substantially similar ingredients to other customers at the time it is supplying Ingredients to Daily Harvest, it will use commercially reasonable efforts to treat Daily Harvest as favorably as its other customers with respect to both quantity allocation and price.  

8. Shipping, Testing, Inspection and Acceptance.

a. Shipping.  Supplier shall package and load the Ingredients according to the Specifications for pick-up by Daily Harvest or Designee, and shall provide all necessary shipping documentation. 

b. Testing.  Supplier shall test all Ingredients in accordance with the testing protocol set forth in the Specifications. Prior to making Ingredients available for pickup, Supplier shall send via email to the applicable Designee, with a cc to Daily Harvest to COA-DoNotReply@daily-harvest.com, or to such other email address provided by Daily Harvest, an electronic version of the certificate of analysis (“CoA”) for each unique lot code. Ingredients without a CoA or with a CoA that does not meet Specifications will be rejected by Daily Harvest or Designee.   

c. Inspection and Acceptance.  All Ingredients shall be subject to Daily Harvest’s inspection and acceptance at Daily Harvest’s or its designated facilities.  Daily Harvest or its Designee will inspect Ingredients for conformance with the Specifications, and may reject any Ingredients that do not conform to the Specifications or are defective (“Non-conforming Ingredients”).  Acceptance of deliveries does not alter or amend any rights that Daily Harvest may have under this Agreement. If Supplier delivers Non-conforming Ingredients, Daily Harvest may exercise any and all remedies available to it.  No inspection or other action by Daily Harvest shall in any way obligate Daily Harvest to purchase any Non-conforming Ingredients or to retain any Ingredients which, upon subsequent to inspection or use, prove to be Non-conforming Ingredients.  

9. Compliance with Laws; Approvals.  In performing its obligations under this Agreement, Supplier shall comply with Daily Harvest’s Supplier Code of Conduct located at https://daily-harvest.com/offers/supplier-code-of-conduct and all applicable federal, state and local laws, regulations, ordinances and administrative orders or rules, and specifically including without limitation all FDA current Good Manufacturing Practices regulations, and the Food Safety Modernization Act of 2011, its Foreign Supplier Verification program, its supply chain security requirements and all implementing regulations. Supplier shall obtain all required governmental or other registrations, approvals, licenses, permits and other authorizations necessary for the operation and conduct of its business, including the labeling and production of the Ingredients.  For all organic ingredients, Supplier shall comply with all USDA National Organics Program and certification regulations and requirements. 

10. Inspections and Audits.  Upon advanced notice to Supplier, and, if applicable for third parties, upon the execution of confidentiality agreements, representatives of Daily Harvest (or their designees) may (but shall not be obligated to), during normal business hours, visit and inspect Supplier’s facilities, or the facilities of any third parties with whom Supplier works to fulfill its obligations under this Agreement (“Processor”), and perform such quality control testing and/or inspect business records as Daily Harvest determines to be reasonably necessary or desirable to ensure Supplier’s compliance with the provisions of this Agreement. If Daily Harvest or its designee requests an inspection of a Processor’s facility, Supplier will assist Daily Harvest or its designee in arranging the visit and will provide any logistical support reasonably requested by Daily Harvest.  Records of all quality control inspection work performed by Supplier or any third party, and any other records relevant to this Agreement and Supplier’s obligations hereunder, shall be kept complete and available to Daily Harvest. When any inspection of Supplier or Processor is performed by a regulatory body or other third party, Supplier will provide to Daily Harvest a copy of such inspection report within fourteen (14) days of receipt.

11. Product Labeling.  All Ingredients shall be labeled by Supplier as required by applicable law, this Agreement, and the Specifications, and shall include, but not be limited to: (i) lot numbers or other identifying codes that shall enable the Supplier to identify the production location, line and date of production; (ii) appropriate expiration dates or best-by dates, if applicable; (iii) appropriate storage instructions to maintain taste and quality; (iv) an ingredient statement and a list of any allergens therein; and (v) the country of origin.

12. Warranty.  Supplier warrants that the Ingredients sold under this Agreement, together with all related packaging, labeling and other printed matter and all related marketing and advertising:

a. have been sourced and produced in compliance with, and will comply with all applicable federal, state and local laws, ordinances and regulations and the Specifications and, to the extent greater than applicable Law, industry standards,

b. are of merchantable quality, as determined solely in the discretion of Daily Harvest, and otherwise free from impurities or defects, whether latent or patent,

c. do not bear any illegal, misleading, untrue or unsubstantiated labeling or other claims, statements or depictions,

d. are consistent with any samples provided to and approved by Daily Harvest, as determined by Daily Harvest in its sole discretion,

e. are not adulterated or misbranded, within the meaning of applicable Law, and are not articles which may not, under provisions of section 404, 505 or 512 of the Federal Food Drug and Cosmetic Act, be introduced into interstate commerce,

f. are generally recognized as safe (GRAS),

g. are and will be safe, fit for use and consistent with their original quality at all times during designated shelf life, 

h. are free and clear of all liens, encumbrances, security interests, or adverse claims from original manufacturers, inventors, licensing agents, or any other entity or third party, 

i. do not contain any pesticide, preservative or color that is not allowed under the Specifications, and

j. if an Ingredient is labeled kosher, halal, organic or contains any other specified food labeling claims, designation or certification, the Supplier is certified by a reputable third-party certifying agent and has complied with all requirements established by the certifying agent, and Supplier has and will maintain adequate certification and any other documentation required to fully support, substantiate and establish any such claim and will provide it to Company upon request.

13. Non-Conforming Ingredients. Daily Harvest shall give Supplier notice that Ingredients are Non-conforming Ingredients within thirty (30) days after Daily Harvest discovers the non-conformity or defect in the individual Ingredient or as a result of finished good testing (“Notice of Non-Conformance”).  Supplier or its duly authorized representative shall have fifteen (15) days after Notice of Non-Conformance to inspect the Ingredients in question, or take possession of any Non-conforming Ingredients, subject to applicable law and at its sole expense, and will cooperate with any root cause investigation as requested by Daily Harvest. Supplier will notify Daily Harvest promptly if it disputes any determination by Daily Harvest that such Ingredients are non-conforming or defective, and the Parties will work in good faith to resolve any such dispute.  If the Parties fail to resolve such dispute, Supplier shall submit the Ingredients for testing to a commercially reasonable testing laboratory chosen by Daily Harvest and reasonably acceptable to Supplier for analysis. If the Ingredients are found to be defective or non-conforming, Supplier shall be responsible for all charges and costs incurred in connection with such testing. Otherwise, Daily Harvest shall be responsible for the fees of the testing laboratory.  

a. Replacement of Non-Conforming Ingredients.  Daily Harvest shall be entitled to replacement Ingredients or credit or reimbursement, at its option, for Non-conforming Ingredients. Supplier shall make any such reimbursement, credit or replacement within thirty (30) days after Notice of Non-conformance. Supplier shall bear the cost of shipping replacement Ingredients, if applicable.     

b. Disposal of Non-Conforming Ingredients.  Supplier shall bear the cost of transporting, packaging, storing and disposing of Non-conforming Ingredients, as well as the costs to provide Daily Harvest with replacement Ingredients, if applicable.  Thirty (30) days after giving Supplier the Notice of Non-Conformance, Daily Harvest shall be entitled to dispose of any Non-conforming Ingredients in its reasonable discretion, and subject to applicable law, at the expense of Supplier, and without any penalty or obligation to Daily Harvest.  Any Non-conforming Ingredients or recalled Ingredients that are returned to Supplier shall be disposed of by Supplier at its expense in a manner that ensures that defective Ingredients are not transferred to any other person.  The Parties shall not dispose of Non-conforming Ingredients when there is a duty to maintain them under applicable law.   Acceptance of Ingredients does not alter or amend any rights that Daily Harvest may have under this Agreement, including without limitation those set forth in Section 14 below.        

14. Recall.  

a. Each party agrees to notify the other party immediately in the event it becomes aware that any Ingredient or component thereof is or may become harmful to persons or property, that the Ingredients are defective in any manner which is or may become harmful to persons or property, that the Ingredients may be mislabeled or otherwise not in compliance with the recipe, formula, or applicable law, or of any recall of any Ingredient (whether voluntary, required by the FDA or another governmental authority, or resulting from any notification or safety alert) (“Recall”).  Supplier shall bear the costs of materials and labor relating to the replacement of Products incorporating Ingredients that are subject to the Recall, and all other costs and expenses, including any costs associated with the shipment of recalled Products from Daily Harvest’s customers to Daily Harvest. Supplier shall use commercially reasonable efforts to review all processes and correct, as promptly as is practicable, problems or other issues which result in a Recall. 

b. In the event of a Recall, Supplier shall provide Daily Harvest with all relevant information with respect thereto and any other information reasonably requested by Daily Harvest.  In such event, Supplier shall give and permit immediate, reasonable access to all or any of its premises or the premises of any Processor to any Daily Harvest or authorized representative of Daily Harvest and shall give reasonable assistance to Daily Harvest.  Daily Harvest shall determine in its sole discretion whether or not to undertake a market withdrawal or recall of any Products and shall make or direct to be made any filings and reports with the applicable government agencies to effectuate the same in accordance with applicable law.  Notwithstanding any other provision in this Agreement, Supplier will be solely responsible for and promptly reimburse Daily Harvest  for all of Daily Harvest’s damages and losses associated with any Recall, including without limitation (i) those associated with customer notification and communication, recalled product retrieval, transport, storage and disposal, testing, customer complaints or claims, customer refunds or payments, customer communications, investigations of any governmental authority, unsold products, recalled product replacement and attorney fees, and (ii) any damages and losses incurred by Daily Harvest in connection with such Recall, including indirect, incidental, special, consequential, exemplary or punitive damages, including loss of revenue, income or profits, loss or diminution in value of assets or securities or damages for business interruption to the extent related to or arising from any defect or recall resulting from any breach of any representation, warranty or obligation in this Agreement by Supplier. 

15. Confidentiality and Feedback. “Confidential Information” means any information or data disclosed or made available prior to the Effective Date or during the Term by either party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is either marked or identified in writing as confidential or that under the circumstances a reasonable person would consider confidential, including but not limited to information related to a Disclosing Party’s present or future business plans, strategies, recipes, formulas, or technology (including, with respect to Daily Harvest as the Disclosing Party, the Specifications and any forecasts or POs delivered to Supplier hereunder), provided further that the terms hereof will be deemed Confidential Information of each party.  The Receiving Party will:  (i) not use the Disclosing Party’s Confidential Information except for the exercise of its rights or performance of its obligations hereunder; (ii) not disclose such Confidential Information to any party, other than (a) its employees and consultants who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) investors, prospective investors, prospective acquirers, and professional advisers; provided that such employees and consultants, investors, prospective investors, prospective acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.  If the Receiving Party is required by law to make any disclosure of such Confidential Information, the Receiving Party will first give written notice of such requirement to the Disclosing Party, and will permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection.  Information will not be deemed Confidential Information hereunder if such information:  (1) is known or becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party prior to receipt from the Disclosing Party from a source other than one having an obligation of confidentiality to the Disclosing Party; (2) becomes publicly known, except through a breach hereof by the Receiving Party; or (3) is independently developed by the Receiving Party, which can be shown by written evidence. If Supplier or any of its employees, contractors, or agents sends or transmits any communications or materials to Daily Harvest or a Designee by mail, email, telephone, or otherwise, suggesting or recommending changes or improvements to Daily Harvest Products or processes or any comments, questions, suggestions related thereto ("Feedback"), Daily Harvest is free to use such Feedback and Supplier hereby assigns to Daily Harvest on its behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Daily Harvest is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Daily Harvest is not required to use any Feedback.

16. Indemnification.

a. Indemnification by Supplier.  Supplier hereby agrees to indemnify, defend and hold Daily Harvest, each of its affiliates, and each Designee, and its and their respective directors, representatives, officers, employees, direct and indirect beneficial owners, agents, attorneys, successors and assignees (collectively, the “Daily Harvest Indemnified Parties”), harmless from and against, and in respect of, any and all third party claims, losses, damages, costs, expenses, obligations, liabilities, charges, actions, suits, proceedings, deficiencies, interest, penalties and fines (including costs of collection, attorney’s fees of an attorney of Daily Harvest’s selection and other costs of defense, costs of enforcing indemnification provisions, and expenses of investigation) (collectively, “Third Party Damages”) imposed on, sustained, incurred or suffered by or asserted against any of them, as and when the same are incurred by any Daily Harvest Indemnified Party, directly or indirectly, but only in respect of an allegation or claim of: (i) any injury to persons or property arising out or directly relating to Supplier’s negligence, willful misconduct, or fraud in the performance by  Supplier of its obligations hereunder; and/or (ii) to the extent related to Supplier’s failure to supply Ingredients that conform to all then current and applicable Specifications and applicable law. Supplier acknowledges and agrees that its indemnification obligations under the Agreement will not in any way be altered or limited by Daily Harvest’s extension of warranties to its customers, if any, or by any approval, act or omission of Daily Harvest, and that such indemnification obligations are independent from and will not be capped by any insurance limits.

b. Indemnification by Daily Harvest.  Daily Harvest hereby agrees to indemnify, defend and hold Supplier, each of its affiliates, and their respective directors, representatives, officers, employees, direct and indirect beneficial owners, agents, attorneys, successors and assignees (collectively, the “Supplier Indemnified Parties”), harmless from and against, and in respect of, any and all Third Party Damages imposed on, sustained, incurred or suffered by or asserted against any of them, as and when the same are incurred by any Supplier Indemnified Party, directly or indirectly, but only in respect of: any injury to persons or property to the extent that it arises out of or is directly related to Daily Harvest’s gross negligence, willful misconduct, or  fraud.

17. Additional Representations and Warranties.  Supplier represents and warrants to Daily Harvest: (i) that Supplier has and will have sufficient capacity to provide Ingredients as required to comply with its obligations set forth herein; (ii) that Supplier and Supplier’s employees are subject to no conflicting obligations with respect to discoveries, confidentiality or non-competition which could affect the supply or sale of Ingredients for Daily Harvest; (iii) that Supplier has all necessary permits and approvals and is FDA registered, and will maintain such permits, approvals and registration in good standing; (iv) that Supplier will comply with all applicable laws and regulations in connection with the supply and sale of the Ingredients; and (v) that Supplier has full corporate power and authority, and has received all required corporate and other approvals, to permit it to enter into this Agreement and to carry out the provisions of this Agreement.

18. Survival of Representations and Warranties. Notwithstanding any investigation conducted before or after the Effective Date, and notwithstanding any knowledge or notice of any fact or circumstance that either Supplier or Daily Harvest may have as the result of such investigation or otherwise, Supplier and Daily Harvest shall each be entitled to rely upon the representations, warranties and covenants of the other in this Agreement. 

19. Insurance. During the term of this Agreement, and for at least two years thereafter, Supplier shall procure and maintain in full force and effect, and without expense to Daily Harvest the following insurance in the amounts and with the conditions set forth below:

a. Commercial General Liability Insurance with combined single limit of not less than $1,000,000 per occurrence, $2,000,000 aggregate for bodily injury and property damage liability combined, including coverage for liabilities arising out of premises, operations, independent contractors, products liability, completed operations, personal and advertising injury and liability assumed under an insured contract. Such insurance shall: (1) contain coverage for Contractual Liability; (2) provide that defense costs will not apply against coverage limits; (3) contain a waiver of any right of subrogation the insurer may have against Daily Harvest or Indemnified Parties; (4) provide that such insurance is primary, non-contributory, and not excess coverage; (5) provide coverage for claims occurring worldwide; and (6) name Daily Harvest and its affiliates as additional named insured parties. 

b. Umbrella/Excess Liability Insurance covering excess exposure over the Commercial General Liability Insurance identified above, which coverage will be on a follow-form basis with a drop down provision where primary coverage is aggregated, occurrence form, with limits of not less than $4,000,000.

c. Recall or Product Contamination Insurance that provides coverage to Daily Harvest for commercial losses and damages, including lost profits, resulting from a recall or withdrawal of any Product, with limits not less than $5,000,000. Such insurance shall: (1) contain a waiver of any right of subrogation the insurer may have against Daily Harvest or the Indemnified Parties; and (2) provide that such insurance is primary, non-contributory, and not excess coverage.

d. Each insurance policy shall be issued by a company with an AM Best Financial Strength Rating of A- or better and an AM Best Financial Size Category Rating of VII or better, and a complete copy of the policy must be provided to the Company upon request. If at any time during the term of coverage, an insurer’s AM Best Financial Strength Rating is downgraded to below B, Supplier shall, at its sole cost and expense, procure new coverage meeting the above criteria with an insurer meeting the preceding minimum requirements for Financial Strength and Financial Size Category Ratings.

e. Each insurance policy must be occurrence-based.

f. Supplier must provide, upon Daily Harvest’s request, current Certificates of Insurance and copies of pertinent policy endorsements verifying Supplier’s compliance with the insurance requirements above.  The Certificates of Insurance must provide that the policies cannot be canceled or materially changed for any reason or expire unless Daily Harvest is given at least thirty (30) days advance written notice. Supplier hereby agrees that if it fails to furnish the required policy endorsements or the Certificates of Insurance, or if Daily Harvest receives notice that any policy of insurance issued to Supplier has been canceled or no longer meets the requirements of this Section 19, then the Daily Harvest may (i) suspend this Agreement until insurance is obtained; (ii) terminate this Agreement immediately for cause; or (iii) obtain forced placement insurance that meets the requirements of this Section 19 at Supplier’s sole expense.

g. Supplier’s insurance requirements shall not be construed as limiting in any way: (i) the extent to which Supplier may be liable or held responsible for the payment of losses or damages to any person, including Daily Harvest, resulting from its operations, the Ingredients, or activities; or (ii) any contractual duties or obligations Supplier may have to indemnify and hold Daily Harvest harmless pursuant to this Agreement.

20. Miscellaneous.

a. Assignment.  Supplier shall not assign or delegate performance of this Agreement or any right or obligation hereunder, voluntarily or by operation of law, without the prior written consent of Daily Harvest, which consent may be withheld for any reason. Daily Harvest may assign its rights under this Agreement and delegate its obligations hereunder, in whole or in part, to any person.  Any attempted assignment or delegation in violation of this Section shall be null and void.  

b. Construction.  If any provision is invalid or unenforceable, the Agreement shall be reformed and enforced to the maximum extent possible.    

c. Notices.  All notices and other communications hereunder shall be in writing and shall be deemed effective when delivered by hand; by first class mail, postage prepaid; electronic facsimile transmission (with confirmation of receipt); electronic mail (with a confirmation of delivery); or by overnight courier service, to the Parties at the addresses listed on the signature page (or at such other address for a party as shall be specified by written notice).  

d. Governing Law; Venue and Jurisdiction. This Agreement, and any claims or causes of action that relate to or arise from it, shall be governed by, and construed and enforced in accordance with, the laws of the State of New York without regard to its choice of laws or conflict of laws rules. The Parties agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in United States District Court in the Southern District of New York, and the Parties consent to submit to the exclusive jurisdiction of that court. The substantially prevailing party in any such Action shall be entitled to recover its legal fees and costs from the other party.  

e. Dispute Resolution. The Parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiations between executives who have authority to settle the controversy.  Any party may give the other party written notice of any dispute not resolved in the normal course of business.  Within twenty (20) days after delivery of said notice, executives of both parties shall meet at a mutually acceptable time and place and thereafter as often as they reasonably deem necessary to exchange relevant information and to resolve the dispute.  The parties agree that all aspects of the meeting shall be confidential and all information and discussions shall be treated as compromise and settlement discussions for purposes of the applicable Rules of Evidence and shall be done without prejudice to any subsequent court or other proceedings. Once the executive of either party determines that additional meetings are not likely to resolve the dispute, each of the parties shall be entitled to terminate such meetings. If the representatives of such party do not agree upon a resolution within thirty (30) calendar days after first meeting to resolve such dispute, then either party may refer the matter to litigation

f. Force Majeure.  Except for the obligation to make payments for Ingredients delivered hereunder, nonperformance or delay in performance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, or any other reason where failure to perform is beyond the reasonable control of such party.

g. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the Parties relating to the subject matter herein and merges and supercedes all discussions, representations, covenants, promises, discussions, negotiations, and exchanges between them with respect thereto. 

h. Modification and Waiver.  No modification of or amendment to this Agreement shall be effective unless in writing signed by both Parties. No waiver of any rights is to be charged against any party unless such waiver is in writing signed by an authorized officer of the party so charged. 

i. Survival.  The provisions of this Agreement that by their nature should reasonably survive termination or expiration of this Agreement shall survive such expiration or termination of this Agreement including, without limitation, Sections 12 (Warranty) 13 (Non-Conforming Ingredients), 14 (Recall), 15 (Confidentiality and Feedback), 16 (Indemnification), 17 (Additional Representations and Warranties) and 19 (Insurance).

j. Relationship of the Parties.  This Agreement shall not be interpreted to mean that Supplier is the agent or legal representative of Daily Harvest for any purpose whatsoever, and Supplier shall not hold itself out as an agent of Daily Harvest.  This Agreement creates no relationship of joint venturers, partners, associates, employment or principal and agent between the Parties, and both Parties are acting as independent contractors.  Neither Supplier nor Daily Harvest is granted herein any right or authority to, and shall not attempt to, assume or create any obligation or responsibility for or on behalf of the other. Neither Supplier nor Daily Harvest shall have any authority to bind the other to any contract, whether of employment or otherwise, and Supplier and Daily Harvest shall bear all of their respective expenses for their operations, including the compensation of their employees and the maintenance of their offices and service facilities.  Supplier and Daily Harvest shall each be solely responsible for their own employees and for their acts and the things done by them. Except as expressly set forth in this Agreement, Daily Harvest will not be responsible for the acts or omissions of any Designee.

k. No Trademark Rights Granted.  Nothing in this Agreement shall operate to confer on Supplier the right to use any trademark, service mark, trade name or logo identification now or hereafter used by Daily Harvest, whether or not registered, without the written consent of Daily Harvest.

l. Use of Subcontractors and Agents. To the extent that either party (the “Delegating Party”) should at any time use a subcontractor or non-employee agent to perform any services, undertake any tasks or otherwise fulfill any obligations under this Agreement, the Delegating Party agrees to ensure that all representations and warranties and all covenants that would be applicable to the Delegating Party under this Agreement or any other related document if the Delegating Party were to perform the service, undertake the task or fulfill the obligation itself shall be binding on each such agent or subcontractor. The Delegating Party shall cause the other party to be made a third party beneficiary of all relevant agreements with agents and subcontractors so that such other party shall have the right (but not the obligation) to enforce any such representation, warranty or covenant directly as against such agent or subcontractor. Except as expressly as expressly set forth in this Agreement, this Section shall not apply to any Designee.