Transportation Terms

These Transportation Terms (“Terms”) constitute the entire agreement between Daily Harvest, Inc. (“Daily Harvest”) and the party providing transportation services to Daily Harvest (regardless of such party’s registration as either a “Carrier” or a “Broker” with the Federal Motor Carrier Safety Administration) (the “Transportation Provider”), and supersedes all prior written or oral understandings or agreements relating to the same. Transportation Provider acknowledges that acceptance of products for transport constitutes Transportation Provider’s acceptance of these Terms and Transportation Provider agrees to the terms and conditions outlined herein. Each of Daily Harvest and Transportation Provider may be referred to herein as a “party”.

1) Services.

a) Transportation Provider shall provide transportation services (“Transportation Services”) to Daily Harvest for certain goods (“Goods”) in compliance with all applicable laws, regulations, and industry standards, and Daily Harvest’s instructions, including but not limited to temperature and timing of delivery. Each shipment of Goods is referred to herein as a “Shipment”.

b) Transportation Provider shall provide all necessary equipment, maintained in good repair, to enable Transportation Provider to perform the Transportation Services safely. Transportation Provider shall maintain compliance with the Federal Motor Carrier Safety Administration's Compliance, Safety and Accountability safety program (including amendments thereto), and agrees to source transportation resources in a manner that promotes the highest standards of public safety. Transportation Provider must ensure that all vehicles and drivers are properly licensed, insured, and qualified to transport the specified goods. Transportation Provider will exercise reasonable care and diligence in handling the Goods and will ensure that the Goods are adequately protected from damage, theft, or any other risks during transit.

2) Bills of Lading and Proof of Delivery. Each Shipment will be evidenced by a receipt in the form specified by Daily Harvest, which shall be signed by Transportation Provider or its agent or employee showing the kind and quantity of goods received by Transportation Provider at the pick-up location, but the absence or loss of such receipt shall not relieve Transportation Provider of its obligations and responsibilities under these Terms. Upon delivery of each Shipment to the corresponding delivery location, Transportation Provider shall obtain a proof of delivery, showing the kind and quantity of goods delivered to the recipient of such Shipment at the delivery location and the time of such delivery, and Transportation Provider shall cause such receipt to be signed by such recipient or its agent or employee at such destination.

3) Subcontractors.  

a) Transportation Provider may  subcontract with a third-party to perform Transportation Services for Daily Harvest, provided that such third-party shall actually perform the Transportation Services and will not further subcontract the Transportation Services  (each such subcontractor, a "Permitted Subcontractor").

b) Prior to the commencement of any work by any subcontractor, Transportation Provider shall enter into a written agreement with such subcontractor that binds the subcontractor to terms that are at least as protective of the rights and information of Daily Harvest under this Agreement.

c) Transportation Provider's engagement of a Permitted Subcontractor does not relieve Transportation Provider of its obligations under this Agreement. Transportation Provider shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Transportation Provider's own employees. Nothing contained in this Agreement creates any contractual relationship between Daily Harvest and any subcontractor.

4) Risk of Loss and Chargebacks.

a) Transportation Provider shall be liable to Daily Harvest for the full actual loss, damage or injury to the Goods occurring while in the custody, possession or control of Transportation Provider, or resulting from Transportation Provider's performance of or failure to perform the Transportation Services, incurred by Daily Harvest as a result thereof.

b) If a Shipment or any part thereof is lost, damaged, or injured, Transportation Provider shall pay to Daily Harvest the price charged by Daily Harvest to its customers for the kind and quantity of Goods lost, damaged, or injured. Daily Harvest shall deduct from any invoice to Transportation Provider the reasonable salvage value of any damaged Goods that have been returned to Daily Harvest; provided, however, that Daily Harvest shall not be obligated to make any such deduction for, or to surrender to Transportation Provider, any Shipment or portion thereof which Daily Harvest has destroyed or agrees to destroy because the Goods have been rendered unfit or unsuitable for sale, use, or consumption due to spoilage, contamination, or adulteration in transit or a reasonable suspicion thereof.

c) Transportation Provider will reimburse Daily Harvest for any charges levied by any consignee based on Transportation Provider-caused non-compliance, freight damages, (re)scheduling, or early and late delivery fees. 

d) Daily Harvest will work in good faith to collect money owed, but may offset any amounts due Transportation Provider by any amounts Transportation Provider may then owe Daily Harvest.

5) Insurance. Transportation Provider shall procure and keep in force continuously the following types of insurance:

a) Commercial general liability insurance, including blanket contractual coverage, for bodily injury and property damage in the amount of $1,000,000.00 combined single limit per occurrence.

b) Primary cargo insurance in an amount equal to the full value of the maximum quantity of Goods expected to be transported at any one time under this Agreement, but in no event in an amount less than $100,000.00 per shipment, to compensate Daily Harvest for any and all loss or damage to property or from property which was placed in the possession or control of Transportation Provider in connection with the Transportation Services.

c) Worker's compensation with limits no less than the minimum amount required by applicable law.

6) Payment Terms. Net 45 days from receipt of invoice.

7) 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.

8) 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 these Terms. 

9) Miscellaneous.  The relationship between Daily Harvest and Transportation Provider 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. These Terms 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. Transportation Provider 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 these Terms 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 these Terms will be effective unless made in writing and signed by Daily Harvest and Transportation Provider. Any additional, contrary or different terms contained in any Transportation Provider documentation or communication pertaining to the Transportation Services, and any attempt to modify, supersede, supplement or otherwise alter this Agreement, will not modify this Agreement or be binding on the parties.

10) Issuance Date and Amendments. These Terms are issued and effective as of June 12, 2023 and were last updated on October 27, 2023.  These Terms may be updated, revised, and amended by Daily Harvest in the future.