Terms and Conditions-2023
PICK AND PACK SERVICES TERMS AND CONDITIONS
These PICK AND PACK SERVICES TERMS AND CONDITIONS (“Terms and Conditions”) are agreed to by and between Healthy Goodness LLC (“Provider”) and the “Customer” identified on the accepted Proposal to which these Terms and Conditions are attached and is effective as of the “Effective Date” stated on the Proposal. Customer is entering into this Agreement on behalf of itself and its affiliated entities that are directly or indirectly controlling or controlled by or under direct or indirect common control with Customer. Acceptance by Customer of a Proposal shall entitle it to use the services offered by Provider as described in the Proposal, subject to the terms and conditions stated herein and the Proposal (collectively, the “Agreement”). “Parties” and “Party” shall refer to Provider and to Customer.
1. SERVICES; WAREHOUSE.
1.1 Services. During the Term, Provider shall perform certain services for Customer, including, without limitation, product receipt, put away, storage, order selection, shipment, related customer service and administrative functions and other services (collectively, the “Services”), as described in the Proposal, for the products described in the Proposal (“Products”). Provider shall accept for delivery, store, rework, pick, pack and ship all Products in the Warehouse (as hereafter defined) in accordance with the Proposal and Customer’s written shipping instructions to the extent that Customer has made adequate quantities of the Products available in the Warehouse and Provider has sufficient packaging and shipping materials (based on accurate forecasts provided by Customer). Provider shall furnish all personnel, materials, equipment, supplies and other accessories necessary to perform safely and efficiently the Services as set forth in the Proposal. The Services shall be performed by Provider in a commercially reasonable, professional manner.
1.2 Warehouse. During the Term of this Agreement, and as more specifically set forth in the Proposal, Products will be shipped by Customer at its sole cost and expense to, and will be stored by Provider, at the warehouses of Provider as designated by Customer (each, a “Warehouse”). Provider shall be responsible for all operating expenses in connection with the operation of each Warehouse. Provider shall maintain each Warehouse in a good and orderly condition. Provider shall promptly notify Customer of any condition respecting a Warehouse which would prevent or otherwise inhibit its performance of the Services. Except as set forth in the Proposal, Customer shall, at its sole cost and expense, be responsible for administering and managing the shipment and delivery of the Products to the Warehouse and for all freight, handling and importation costs incurred in delivering the Products to the Warehouse. If, as a result of the quality or conditions of Products, Products are unfit for sale or a hazard to other property, the Warehouse or persons, Provider shall immediately notify Customer who shall thereupon claim its interest in such Products and remove them from the Warehouse at Customer expense.
1.3 Forecasts. Quarterly during the Term of this Agreement, Customer shall provide Provider in writing with rolling 6- month projections of anticipated shipments and deliveries of the Products. Customer shall also provide Provider with prompt notice of any material changes in the volume of orders that it anticipates.
1.4 Software. Any and all software provided to Customer by Provider in connection with the Services, including but not limited to any integration bridge, API or the like shall be owned by Provider and licensed on a non-exclusive basis to Customer only for the Term of this Agreement. Upon the expiration or termination of this Agreement for any reason, any and all such software licensed by Provider shall be removed from all of Customer’s computer systems.
2. FEES AND CHARGES; PAYMENT. Fees and charges for the Services are as set forth in the Proposal. Fees and charges will be invoiced by Provider weekly and shall be paid by Customer within seven (7) days after receipt of the invoice. Provider shall have the right to charge interest on any late payments at the rate of one (1.0%) per month or partial month during which any sums under any such payment invoices were owed and unpaid, or the highest rate permitted by law, whichever is lower, from the date such amount is due until finally paid. Customer grants to Provider a warehouseman’s lien on all property stored in Provider’s Warehouses, which is perfected by Provider’s possession of such property, with all rights in respect thereof under applicable state law. In addition, in the event that an invoice is not paid within fourteen (14) days after the date when due, Provider shall have the right, effective immediately upon written notice to Customer, to suspend its obligation to provide Services pursuant to this Agreement until the outstanding balance of all invoices is paid in full. For any services not specified in the Proposal, Customer shall pay to the Provider such consideration as may be mutually agreed upon in advance in writing or, absent such agreement, Provider’s then prevailing standard rates.
3. OWNERSHIP; LOSSES; INSURANCE.
3.1 Ownership. Provider acknowledges that, as between it and Customer, all of the Products are owned by Customer, subject to the warehouseman’s lien granted herein.
3.2 Risk of Loss. The Provider shall notify Customer of any loss or damage, howsoever caused, to Products stored or handled, promptly after it learns of such loss or damage. Notwithstanding anything to the contrary in this Agreement, Provider shall not be liable for any loss or damage to any Products unless such loss or damage arises from Provider’s failure to exercise the level of care called for by its standard practices and, in such event, the liability of Provider for such loss or damage shall be limited to Customer’s replacement costs of such Products that were lost or damaged, as evidenced by commercial invoice, as well as the costs of re-shipping of those Products to the Warehouse. Except in such cases, Customer will bear all risk and liability of loss, damage or destruction for the Products, commencing at the time Products are delivered to a Warehouse and terminating when the Product is delivered to the end customer.
3.3 Insurance. During the Term, each Party shall maintain, at its expense, a commercial general liability insurance policy and products liability coverage with limits of at least $2,000,000 in the aggregate, employer’ liability coverage of at least $1,000,000 (with Provider listed as an additional insured on each of Customer’s policies). Customer shall be responsible for maintaining replacement cost insurance coverage on its inventory of Product and any of its other property that is under the care, custody and control of Provider during the Term.
4. RECORD KEEPING. Provider shall maintain complete and accurate books and records, recording all inbound and outbound shipments, so as to produce a continuous balance that shows the number of pieces and/or cases of each Product that should be in the Warehouse, based on the Provider’s count, at any given time. Provider shall provide online access to Customer to such records.
5. CONFIDENTIAL INFORMATION. Each Party agrees that it shall not disclose to any third party (excepting their employees, consultants and professional advisors who are bound by similar confidentiality obligations) any information concerning the customers, business information, trade secrets, methods, processes or procedures or any other confidential or proprietary information of the other Party which it learns during the course of its performance of this Agreement (“Confidential Information”). The Parties agree that the terms of the Proposal shall be the Confidential Information of Provider. The receiving Party shall only use the Confidential Information of the disclosing Party for the performance of its duties, and the exercise of its rights, under this Agreement. “Confidential Information” shall only include information that is (a) provided in writing or other tangible form and marked with a “Confidential” or “Proprietary” legend; or, (b) reasonably understood to be confidential or proprietary in light of the nature of the information and the circumstances of disclosure. “Confidential Information” shall in no event include that which (i) is or was known to a Party prior to receipt hereunder; (ii) at the time of disclosure to either Party by the other Party was generally available to the public, or which after disclosure hereunder becomes generally available to the public through no fault attributable to either Party; (iii) is hereafter made available to either Party for use or disclosure from any third party having a right to do so, (iv) is independently developed by the receiving Party, (v) is provided by the disclosing Party to a third party and not under any obligation of confidentiality, or (vi) is required to be disclosed by court order or by operation of law, so long as the disclosing Party has received prior notice from the receiving Party and has had an opportunity to seek a protective order. This obligation will survive the termination of this Agreement for a period of two (2) years after the date of termination.
6. REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party that: (a) It has the power and authority to enter into this Agreement and to perform hereunder; (b) It is duly organized, validly existing and in good standing under the laws of its state of organization; (c) The execution and delivery of this Agreement and the performance of its obligations in this Agreement have been duly and validly authorized by all necessary company action; (d) The performance of its obligations in this Agreement will not conflict with or violate any provision of its organization documents or violate any provision of any agreement to which it is a party or by which it is bound; (e) its products and services related to this Agreement do not and shall infringe upon, misappropriate, or otherwise knowingly violate the intellectual property rights of any third party; and (f) its performance of its obligations under this Agreement does not and will not violate any law, rules or regulation in any U.S. or international jurisdiction. THE PARTIES MAKE NO OTHER REPRESENTATION, WARRANTY OR GUARANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO THE PRODUCTS OR THE SERVICES PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, THE PARTIES MAKE NO WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INDEMNIFICATION. Each Party shall indemnify, defend and hold harmless the other Party, its officers, agents and employees from and against any and all losses, liabilities, claims, suits, judgments, damages, costs and expenses, including reasonable attorneys' fees and costs associated therewith which may accrue against, be charged to, incurred by or recoverable from, its officers, agents and employees as a result of performance, non-performance, or improper performance of the
indemnifying Party under this Agreement or which arise out of or are relate to the goods or services of the indemnifying Party under this Agreement. Additionally, Customer shall indemnify, defend and hold harmless Provider, its officers, agents and employees from and against any and all losses, liabilities, claims, suits, judgments, damages, costs and expenses, including reasonable attorneys' fees and costs associated therewith which may accrue against, be charged to, incurred by or recoverable from, its officers, agents and employees which arise out of or are relate to the any defects directly or indirectly related to the manufacturing, preparation, or shipping of unfrozen Products which are subsequently frozen by Provider upon arrival at Provider’s facility. To assert its rights of indemnification under this Section 7, an indemnitee shall promptly notify the indemnifying Party in writing of any claim or legal proceeding which gives rise to such right, afford the indemnifying Party the opportunity to participate in, or fully control, any proceeding and compromise, settlement, resolution or other disposition of the claim or proceeding so long as the settlement involves the payment of money damages only and the indemnitee is provided with a general release from the claimant and indemnifying Party. Each Party agrees to cooperate fully with the other in any proceeding for which an indemnification claim is made.
8. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOSS OF USE, COSTS OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. PROVIDER SHALL HAVE NO LIABILITY FOR ANY DEFECTS DIRECTLY OR INDIRECTLY RELATED TO THE MANUFACTURING, PREPERATION, OR SHIPPING OF UNFROZEN PRODUCTS WHICH ARE SUBSEQUENTLY FROZEN BY PROVIDER UPON ARRIVAL AT PROVIDER’S FACILITY AND CUSTOMER HEREBY ASSUMES ALL SUCH LIABILITY. IN NO EVENT SHALL PROVIDER'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. Nothing in this Section 8 shall limit a Party’s liability for (a) death or personal injury caused by a Party’s negligence, (b) for fraud or fraudulent misrepresentation, or (c) for a breach of confidentiality obligations.
9. TERM AND TERMINATION
9.1 Commencement. The term of this Agreement shall commence on the date set forth in the Proposal (or, absent such
date, the date Customer accepts the Proposal) and terminate as provided herein.
9.2 Termination for Cause. Either Party may terminate this Agreement if the other Party has failed to perform any material term, condition or obligation hereof to the satisfaction of the terminating Party and has failed to correct the same within thirty (30) days after receipt of written notice of such failure given by such terminating Party. Either Party may terminate this Agreement if the other Party (1) fails to vacate an involuntary bankruptcy, insolvency, or reorganization petition for an agreement or composition with creditors filed against such Party within sixty (60) days after the date of such filing, or files such petition on a voluntary basis; (2) makes an assignment or transfer for the benefit of creditors; (3) fails to vacate the appointment or a receiver or trustee for such Party or for any interest in such Party’s business within sixty (60) days after such appointment; or (4) permits an attachment to be levied against and remain outstanding on the Provider for more than sixty (60) days
9.3 Termination for Convenience. Either Party may terminate this Agreement for convenience at any time on no less than sixty (60) days prior written notice to the other Party.
9.4 Effect of Termination. Upon any termination of this Agreement, Customer shall, at its sole cost and expense, be responsible for the removal of all Products from the Warehouse and for the shipment of such Products to such destination as is designated by Customer. If Customer shall make all payments for Services provided up to the date of termination and, upon such payment in full, Provider agrees to use its reasonable efforts to pack and ship (at Customer’s expense) all Products to Customer, or such other person as Customer shall direct in writing. If payment is overdue, then Provided will have all of the rights and remedies available under applicable state law in respect of its warehouseman’s lien. In the event that Customer has not removed all of its Products from the Warehouse prior to the effective date of termination, Provider shall have the right, without giving prior notice to Customer, to remove from the Warehouse, and to dispose of in such manner (including, without limitation, destruction) as it deems appropriate, the Products which remain in the Warehouse as of the effective date of the termination of the Term; and, in such event Provider shall have the right to invoice Customer for, and Customer shall be obligated to reimburse Provider for, all costs and expenses incurred by Provider in removing from the Warehouse, and disposing of, such Products.
9.5 Survival. Upon any termination of this Agreement, each Party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, provided that the provisions of Sections 2, 5, 7, 8, 9, and 10, and any other provisions that by their nature survive termination, will survive. Termination will not relieve either Party from any liability arising from any breach of this Agreement, and termination of this Agreement by a Party will be without prejudice to any other right or remedy of such Party under this Agreement or applicable law.
10. MISCELLANEOUS PROVISIONS
10.1 Compliance with Laws. Each Party shall comply with all laws, ordinances, rules and regulations of federal, state,
local and other governmental authorities and entities applicable to its performance under this Agreement.
10.2 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either Party, in connection with a merger, reorganization, or sale of all or substantially all of the assets or equity of such Party, may assign this Agreement in its entirety to such Party’s successor without the other Party’s consent. Any attempted assignment in breach of this Section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.3 Force Majeure. Excepting provisions of this Agreement relating to payments, if the performance or observance of this Agreement or of any obligation herein is prevented or delayed by reason of an act of God, epidemic, civil commotion, storm, fire, riots, strikes, shortages of supplies and materials, legal moratorium, war, revolution, action by government, communication line or power failures or by any other causes beyond its reasonable control, the Party so affected shall be excused from such performance or observance to the extent of such prevention or during the period of such delay, provided that the Party so affected shall use reasonable efforts to avoid or remove the cause or causes of non-performance and observance.
10.4 Ambiguities. Each of the Parties acknowledges that they have reviewed this Agreement, have had the opportunity to have their counsel review, and have had the right to suggest changes to its language. Therefore, any rule of construction that any ambiguity shall be construed against the drafter of this Agreement shall not apply in interpreting the provisions of this Agreement.
10.5 Governing Law. This Agreement and all relations, disputes, claims and other matters arising hereunder (including non-contractual disputes or claims) shall be governed exclusively by, and construed exclusively in accordance with, the laws of the State of California, without regard to its conflicts of laws provisions. The state and federal courts located in San Jose, California shall have exclusive jurisdiction to adjudicate any dispute or claim arising out of or relating to this Agreement (including non-contractual disputes or claims). Each Party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums. The Parties agree that the United Nations Convention on Contracts for the International Sale of Products will not apply to this Agreement.
10.6 Alternative Dispute Resolution; Arbitration. Before either Party initiates any proceeding, the matter in controversy will first be referred to the chief executive officers or other appropriate officers of the Parties. Such officers shall take all reasonable steps to attempt to resolve the matter within four (4) weeks of the date of referral. If they do not reach a resolution within such period, then, upon notice by either Party to the other, all disputes, claims, questions, or differences shall be finally settled by binding arbitration in San Jose, CA before one arbitrator. The arbitration will be administered by the JAMS in San Jose, California in accordance with the provisions of JAMS’ Streamlined Arbitration Rules and Procedures, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The decision of the arbitrator shall be binding, final and conclusive, and the right to appeal is hereby waived. The arbitrator shall not have the power or authority to award any amount in the nature or character of punitive or exemplary damages, but shall have the power to issue an award for compensatory damages, shall have the power and authority to issue an injunction or make any award in the nature or character of equitable relief, and shall have the power to award the prevailing Party its reasonable attorneys' fees and arbitration expenses. The Parties confirm that this agreement to arbitrate is irrevocable. This clause shall not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
10.7 Attorneys Fees. In the event legal action is required to enforce or interpret any terms and conditions of this Agreement, the substantially prevailing Party in such legal action shall recover all reasonable costs and expenses, including attorney’s fees, incurred in connection with such action.
10.8 Entire Agreement. This Agreement, together with the exhibits hereto and any accepted Proposal hereunder, constitutes the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written agreements, representations and negotiations. In the event of any conflict between these Terms and Conditions and any Proposal, the terms in the Proposal shall govern. Customer agrees that any terms and conditions in any purchase order or other document submitted by Customer to Provider are for Customer’s own internal purposes and are superseded and replaced by these Terms and Conditions, and such Customer purchase order terms and conditions shall have no force or effect. Any modification of this Agreement must be in writing and signed by an authorized representative of Provider and Customer.
10.9 Third Party Rights. This Agreement does not confer any rights on any person or party (other than the Parties to this Agreement and (where applicable) their successors and permitted assigns).
10.10 Severability If any provision of this Agreement does not comply with any law, ordinance or regulation, such provision, to the extent possible, shall be interpreted in such a manner so as to comply with such law, ordinance or regulation, or, if such interpretation is not possible, it shall be struck and the Agreement construed in accordance with the remaining provisions of the Agreement. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision.
10.11 Notices. Except as otherwise provided herein, all notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been give upon: (i) personal delivery, (ii) the second business day after mailing, (iii) email, or (iv) the first business day after sending by reputable overnight courier. Notices shall be sent to the Parties at the addresses listed on the Proposal.
10.12 No Partnership. The Parties are independent contractors. Nothing contained in this Agreement shall be construed to place Customer and Provider in a relationship as partners, joint venturers, employer/employee or principal/agent, nor shall Provider be considered in any sense an affiliate or subsidiary of Customer. Neither Party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other Party. All of Provider’s personnel shall be considered employees or contractors of Provider and under no circumstances shall they be construed or considered to be employees or agents of Customer. Provider shall pay and discharge, at its expense, any and all expenses, charges, fees and taxes arising out of or incidental to the carrying on of its business including, without limitation, workmen’s compensation, unemployment insurance and social security taxes levied or assessed with respect to employees of Provider.
10.13 Waiver. A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the Party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
4891-2909-0864, v. 6