Terms of Sale
1. Agreement. Reference is made to the Sale of Products Agreement entered into by and between Buyer (as defined therein) and Daily Harvest, Inc. (the “Sale of Products Agreement”). Any terms that are capitalized herein and not defined herein have the meaning set forth in the Sale of Products Agreement. The following Terms of Sale and the terms and conditions of the Sale of Products Agreement are referred to herein as the “Agreement” and govern the relationship between Daily Harvest and Buyer. In the event of a conflict between the Sale of Products Agreement and these Terms of Sale the Sale of Products Agreement controls.
2. Delivery.
(a) Seller will deliver the Products to a mutually-agreed location and the cost of such delivery will be communicated to Buyer in advance by Seller. The location of delivery shall be referred to as the “Delivery Point”. If Buyer arranges for shipping, the location that Seller makes the Products available to Buyer may be referred to in the Sale of Products Agreement as the “Pick-up Point”, and all terms in the Agreement that apply to the “Delivery Point”or delivery shall apply to the “Pick-up Point” or pick up.
(b) Seller shall deliver the Products to the Delivery Point using Seller's standard methods for packaging and shipping such Products. Title and risk of loss pass to Buyer upon delivery of the Products at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial deliveries of Products to Buyer. Each delivery will constitute a separate sale, and Buyer shall pay for the quantity shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under this Agreement.
(d) If for any reason Buyer fails to accept delivery of any of the Products on the mutually-agreed delivery date, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Inspection and Rejection of Nonconforming Products.
(a) Buyer shall inspect the Products at the time of delivery and Buyer will be deemed to have accepted the Products unless it notifies Seller at the time of delivery of any Nonconforming Products."Nonconforming Products" means only the following: (i) product shipped is different than identified in this Agreement or (ii) the product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 4(b) are Buyer's exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 4(b) all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Seller.
4. Containers. The dry ice containers furnished to Buyer by Seller (the “Containers”) are and remain Seller’s property and shall be returned to Seller upon Seller’s subsequent delivery of Products to Buyer, or if such delivery is later than 14 days from the date of the previous delivery, upon Seller’s request. Buyer shall not permit Containers furnished hereunder to be filled with any product not furnished by Seller. Buyer shall return, in a good and non-contaminated condition, all Containers, with valves closed, complete with caps and fittings and shall pay Seller: (1) the replacement value of any lost or damaged Containers if the damage cannot be repaired; (2) if damaged and the damage can be repaired, the cost of making such repair; or (3) the replacement value of those Containers not returned to Seller within three months from date of shipment to Buyer. Payment by the Buyer of charges for damaged, lost or destroyed Containers shall not give any ownership interest in the Containers to the Buyer.
5. Price. Buyer shall purchase the Products from Seller at the prices (the "Prices") set forth in Exhibit A. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets. Seller has the right to increase Prices from time to time due to increases in gas prices, labor costs, or any other factor that increases Seller’s cost to produce the Products. Any such increase will be applied to Products sold pursuant to Exhibit A 15 days after Seller notifies Buyer of such increase. If the increase is greater than 10% of the previous Price, Buyer will have 7 days from notice of the increase to reduce the quantity in Exhibit A, or terminate the Agreement.
6. Payment Terms. Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Buyer shall make all payments hereunder by wire transfer or ACH and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
7. Representations and Warranties. THE PRODUCTS ARE PROVIDED AS IS, AND SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Buyer represents, warrants and covenants that (i) Buyer will use the Products in accordance with all applicable laws and regulations and in conformance with recognized industry and professional standards; (ii) Buyer has used its own independent skill and expertise in connection with the selection and use of the Products; (iii) Buyer possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the Products; and (iv) Buyer will ensure that the Products are safe for the intended use and that the Products are handled in a safe and professional manner. BUYER ACKNOWLEDGES THAT THERE MAY BE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS, THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF BUYER TO WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS. BUYER SHALL HAVE THE SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF ANY OF SELLER’S PRODUCTS FOR THE USE CONTEMPLATED BY BUYER.
Buyer’s use of the Products are at Buyer’s own risk, and Buyer shall defend, indemnify and hold harmless Seller from all liability and costs (including court costs and attorneys’ fees) resulting from claims, demands or actions brought against Seller by anyone (including without limitation any injuries or property damage) caused directly or indirectly by (i) Buyer’s breach of this Agreement; (ii) Buyer’s negligence or willful misconduct related to the Products; or (iii) Buyer’s violation of any applicable law related to Products.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE.
9. Compliance with Law. Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Buyer, its employees and agents shall comply with all applicable federal, state and local laws regarding the safe handling, transportation and use of the Products, including without limitation under the Emergency Planning and Community Right-To-Know Act and the Occupational Safety and Health Act. Buyer acknowledges and agrees that Seller has provided Buyer with access to all relevant Safety Data Sheets (SDS). Buyer will familiarize itself with and instruct its employees regarding all information and precautions disclosed in the safety and health information, including without limitation any SDS, transmitted to Buyer by Seller or otherwise available to Buyer from Seller at any other time.
10. Confidential Information. All non-public, confidential or proprietary information of Seller, including, but not limited to, specifications, recipes, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, Seller’s or its suppliers costs, expenses, and relationships, including the names of suppliers (except disclosures required by law) disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
11. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. Seller hereby rejects any additional or different terms, including, but not limited to, those on Seller’s purchase order or other documentation.
12. Survival. Subject to the limitations and other provisions of this Agreement the representations and warranties and confidentiality obligations of the Parties contained herein shall survive the expiration or earlier termination of this Agreement as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
13. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement must be in writing and addressed to the other party at its address set forth (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, email, or nationally recognized overnight courier. Except as otherwise provided in this Agreement, a notice is effective only (a) on receipt by the receiving party and in the case of email, on non-automated confirmation of receipt, and (b) if the party giving the Notice has complied with the requirements of this Section. Notices to Seller will be directed to: Attn: Legal Department, Daily Harvest, Inc., 99 Hudson Street, Floor 11, New York, NY 10013, legal@daily-harvest.com. Notices to Buyer will be directed to the contact listed in the signature page.
14. No Setoff. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller's or its affiliates' breach or non-performance of this Agreement or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
15. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16. Amendments. No amendment to or modification of this Agreement is effective unless it is in writing this Agreement and signed by an authorized representative of each party.
17. Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
18. Assignment. Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer's prior written consent.
19. Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.
20. No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
21. Choice of Law. This Agreement is governed by the laws of New York State, excluding conflicts of laws principles. The parties will resolve any disputes in the state or federal courts located in New York, New York, to whose exclusive jurisdiction and venue the parties irrevocably submit.
22. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
23. Counterparts. This Agreement may be executed electronically and in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
24. Force Majeure. Seller’s performance hereunder is subject to floods, strikes or other labor disturbances, fire, accidents, war, delays of carriers, inability to obtain raw materials, failure or allocation of normal sources of supply, terrorist act, machinery or equipment breakdown, plant shutdown, restraints of government, (whether or not it later proves to be invalid), or any other similar or dissimilar cause beyond Seller’s reasonable control (“Force Majeure Event”). Seller shall not be liable for any damages resulting from a Force Majeure Event, and Buyer waives any right to assert a claim against Seller in respect thereof. Seller will notify Buyer of any Force Majeure Event impacting its ability to deliver Products under this Agreement as soon as reasonably possible.
25. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
26. Issuance Date and Amendments. These Terms of Sale are issued and effective as of September 27, 2024, Daily Harvest reserves the right to update these Terms of Sale, effective upon posting.
