Farmshelf Terms and Conditions
1. Order Forms. Buyer shall initiate all Order Forms in written form via email or other electronic means designated by Farmshelf. By placing an Order Form, Buyer makes an offer to purchase the Goods pursuant to the terms and conditions of this Agreement and on no other terms. Neither Party is obligated to purchase or sell any annual minimum quantities of Farmshelf Units under this Agreement.
2. Seed Pod Subscription. Buyer is only permitted to use materials provided by Farmshelf in connection with the Farmshelf Unit, including the seed pods and nutrient solution provided with the Seed Pod Subscription. Any other materials used with the Farmshelf Unit will invalidate the Limited Warranty.
3. Farmshelf's Right to Accept or Reject Order Form. Farmshelf has the right, in its sole discretion, to accept or reject any Order Form. Farmshelf may accept any Order Form by email confirmation to Buyer. No Order Form is binding on Farmshelf unless accepted by Farmshelf as provided in this Agreement.
4. Cancellation of Individual Transactions. Farmshelf may, in its sole discretion, without liability or penalty, cancel any Individual Transaction if Farmshelf determines that: (a) Buyer is in violation of its payment obligations, (b) has engaged or is engaging in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or Farmshelf, including improper care of the Farmshelf Unit, or (c) pursuant to Farmshelf's rights under Section 12 (Credit Status).
5. Shipment. The shipping method will be set forth on the Order Form. Farmshelf shall select the shipment method and the carrier for, the Seed Pod Packages and the Farmshelf Units.
6. Delivery. Farmshelf shall deliver the Goods to the Delivery Location in the Order Form, using Farmshelf's standard methods for packaging and shipping such Goods. Any time quoted by Farmshelf for delivery is an estimate only.
7. Inspection. Buyer shall inspect the Goods within forty-five (45) days of receipt ("Inspection Period") of the Goods and either accept (“Acceptance”) or, if such Goods are do not materially confirm with the Product Specifications (“Nonconforming Goods”), reject such Goods. Buyer will be deemed to have accepted the Goods unless it notifies Farmshelf in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Farmshelf. If Buyer timely notifies Farmshelf of any Nonconforming Goods, Farmshelf shall remedy the Nonconforming Goods per the Farmshelf Limited Warranty.
8. Limited Right of Return. Except as provided under the Farmshelf Limited Warranty, Buyer has no right to return Goods purchased under this Agreement to Farmshelf.
9. Title/Risk of Loss. Title to Goods ordered under any Order Form passes to Buyer upon delivery of such Goods to the Delivery Location set forth in the Order Form. Risk of loss to all Goods ordered under any Order Form passes to Buyer upon (a) for the Farmshelf Units, Farmshelf's delivery to the Delivery Location, and (b) for the Seed Pod Packages, provision of the Seed Pod Packages to the express mail carrier for delivery to Buyer.
10. Price. Buyer shall purchase the Goods from Farmshelf at the prices set forth in the Order Form ("Prices"). All Prices include shipping charges, insurance, and Taxes related to the Goods, and any duties of any kind.
11. Payment Terms. Farmshelf shall issue a monthly invoice for each item set forth in an Order Form entered into during the applicable month. Buyer shall pay all invoiced amounts due to Farmshelf within 30 days from Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith.
12. Credit Status. All financial information that it has provided to Farmshelf is true and accurate and fairly represents Buyer's financial condition. Buyer shall notify Farmshelf immediately of any and all events that may have a material adverse effect on Buyer's business or financial condition.
13. Invoice Disputes. Buyer shall notify Farmshelf in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within 10 days from the date of such invoice. Buyer will be deemed to have accepted all invoices for which Farmshelf does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices within the period set forth in Section 11. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under this Agreement during any such dispute, including, without limitation, Buyer's obligation to pay all due and undisputed invoice amounts.
14. Late Payments. Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments, calculated daily and compounded [monthly/bi-monthly/quarterly] 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 also reimburse Farmshelf for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under this Agreement or at Law (which Farmshelf does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any amounts when due under this Agreement, Farmshelf may (a) suspend the delivery of any Goods, (b) reject Buyer's Order Forms pursuant to the terms of Section 3, (c) cancel accepted Order Forms pursuant to the terms of Section 3, or (d) terminate this Agreement pursuant to the terms of Section 19.
15. Security Interest. Buyer hereby grants Farmshelf a security interest in all Goods purchased hereunder (including Goods and Nonconforming Goods) to secure Buyer's payment obligations under this Agreement. Farmshelf may file a financing statement for such security interest and Buyer shall execute any such statements or other documentation necessary to perfect Farmshelf's security interest in such Goods.
16. Certain Buyer Obligations. Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the Goods; (b) not engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or Farmshelf, including improper care of the Farmshelf Unit.
17. Intellectual Property Ownership. Buyer acknowledges and agrees that (a) any and all Farmshelf's Intellectual Property Rights are the sole and exclusive property of Farmshelf or its licensors; and (b) Buyer shall use Farmshelf's Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Farmshelf.
18. Confidential Information. Except as otherwise provided herein, the parties hereto agree to hold in confidence all confidential or proprietary information (collectively, “Confidential Information”) that is disclosed by one party to the other party and treat such Confidential Information with at least the same degree of care as it would treat its own confidential information but no less than reasonable care.
19. Term. The term of this Agreement commences on Order Acceptance Date and continues for a period of two (2) years unless and until earlier terminated as provided under this Agreement (the “Term”).
20. Either Party’s Right to Terminate. Either Party may terminate this Agreement upon written notice to the other Party: (a) if a Party materially breaches any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching Party within 30 days after such Party’s receipt of written notice of such breach (other than for a Payment Failure); (b) if a Party (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) is directly impacted by a bankruptcy proceeding, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or (v) without cause with 60 days prior written notice to the other party.
21. Farmshelf's Right to Terminate. Farmshelf may terminate this Agreement upon written notice to Buyer: (a) if Buyer fails to pay any amount when due ("Payment Failure"); (b) if within any here six (6) month period, three (3) Payment Failures occur; or (c) if Buyer has engaged or is engaging in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or Farmshelf, including improper care of the Farmshelf Unit.
22. Effects of Termination. Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Farmshelf. With respect to any Goods that are still in transit upon termination of this Agreement, Farmshelf may require, in its sole and absolute discretion that all sales and deliveries of such Goods be made on either a cash-only or certified check basis. If Farmshelf terminates this Agreement under Section 19, Buyer will cease use of the Farmshelf Unit immediately upon notice of termination and Farmshelf will have the right to repossess the Farmshelf Unit at no cost or liability to Farmshelf.
23. Representations and Warranties. Each party represents to the other that: (a) it is a legal entity that is duly organized, validly existing, and in good standing; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (c) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the Party; (e) when executed and delivered by each of Farmshelf and Buyer, this Agreement will constitute the legal, valid and binding obligation of each Party to the other, enforceable against each Party in accordance with its terms; (f) it is in material compliance with all applicable Laws relating to this Agreement, the Goods (including their use) and the operation of its business; (g) it is not insolvent and is paying all of its debts as they become due.
24. Third-Party Products. Products manufactured by a third party ("Third Party Product") may contain, be contained in, incorporated into, attached to or packaged together with the Goods. Third Party Products are not covered by the Limited Warranty. For the avoidance of doubt, Farmshelf makes no representations or warranties with respect to any Third Party Product.
25. Disclaimer. EXCEPT FOR THE FARMSHELF LIMITED WARRANTY, FARMSHELF MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, 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 ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY FARMSHELF, OR ANY OTHER PERSON ON FARMSHELF'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THE FARMSHELF LIMITED WARRANTY.
26. Indemnification. Subject to the terms and conditions of this Agreement, each Party (as "Indemnifying Party") shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), arising out or resulting from : (a) material breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Indemnifying Party or Indemnifying Party's Personnel; (b) any negligent act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Indemnifying Party or its Personnel; or any failure by Indemnifying Party or its Personnel to comply with any applicable Laws; or (d) specifically for Buyer as the Indemnifying Party: (i) any herb, flower, fruit, vegetable or other plant or part thereof of any kind grown from any seed pod or grown through use of the Farmshelf Unit (whether in whole or in part), including without limitation any such plants the growth of which may be restricted by applicable laws; (ii) Buyer’s sale of any of the foregoing to any third-party purchaser; or (iii) Buyer’s use of any of the foregoing for any purpose, including without limitation Buyer’s use of the foregoing in the course of preparing and serving food to consumers or for any purpose that may be restricted by applicable laws. Farmshelf will not be obligated to indemnify Buyer for any claim arising out of Buyer’s use of the Goods in any manner not otherwise authorized under this Agreement or that does not materially conform with any usage instructions provided by Farmshelf.
27. Farmshelf Intellectual Property Indemnification. Subject to the terms and conditions of this Agreement, the Farmshelf Limited Warranty, Farmshelf shall indemnify, defend and hold harmless Buyer and its Representatives (collectively, the "Buyer Indemnitees") from and against all Losses awarded against any Buyer Indemnitee in a final non-appealable judgment arising out of any Claim of a third party alleging that any of the Goods or Buyer's receipt or use thereof infringes any Intellectual Property Right of a third party, provided, that, the Claim is not due to Buyer’s use of the Goods that is not authorized by this Agreement. If the Goods, or any part of the Goods, becomes, or in Farmshelf's opinion is likely to become, subject to a Claim of a third party that qualifies for intellectual property indemnification coverage under this Section 26, Farmshelf shall, at its sole option and expense, notify Buyer in writing to cease using all or a part of the Goods, in which case Buyer shall immediately cease all such use of such Goods on receipt of Farmshelf's Notice.
28. Limitation of Liability. (A) NEITHER PARTY NOR ITS REPRESENTATIVES IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, INCLUDING LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
29. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY FARMSHELF, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS. BUYER EXPRESSLY ACKNOWLEDGES RECEIPT OF THE FARMSHELF HACCP PLAN AND UNDERSTANDING OF THE INFORMATION THEREIN, INCLUDING THE RISKS, PRECAUTIONS, AND INSTRUCTIONS RELATED TO THE PRODUCTS AND SERVICES PROVIDED. BUYER ASSUMES ALL RISKS SET FORTH IN THE FARMSHELF HACCP PLAN.
30. Miscellaneous. This Agreement, including all related exhibits, schedules, attachments and appendices, together with the Order Form, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Any provision of this Agreement that contemplates or governs performance or observance subsequent to termination or expiration of this Agreement will survive the expiration or termination of this Agreement for any reason and remain in effect until fulfilled, and apply to respective successors and permitted assigns. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address first set forth above (or to such other address that the receiving Party may designate from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. If any part of this Agreement shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby and shall be enforced to the maximum extent permitted by Applicable Law. If any remedy set forth in this Agreement is determined to have failed of its essential purpose, then all other provisions of this Agreement, including the limitations of liability and exclusion of damages, shall remain in full force and effect. This Agreement constitutes the entire understanding of the Parties with respect to its subject matter, and supersedes all prior or contemporaneous written and oral agreements with respect to its subject matter. Except as provided expressly herein, this Agreement shall not be modified, amended, or in any way altered except by a writing executed by both of the Parties. The Parties agree that this Agreement shall not be supplemented, amended or otherwise modified by any acknowledgement, invoice, provision of or use of any website or Software operated by or for, or provided by, Consultant or otherwise by any electronic or online agreement regardless of its terms. No waiver of, breach of, or default under, any provision of this Agreement, or of any rights or obligations of any Party hereunder, (a) will be effective unless in writing and signed by the Party waiving compliance or (b) will be deemed a waiver of any other provision, or of any subsequent breach or default of the same provision hereof. The rights and remedies of the Parties are cumulative and not alternative. 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. The provisions of the Agreement shall be effective in all cases unless otherwise prohibited by Applicable Laws. The provisions of the Agreement are separate and severable. The invalidity of any Section, provision, paragraph, sentence or portion of the Agreement shall not affect the validity of the remainder of the Agreement. This Agreement may be executed in counterparts and delivered by means of an electronic image scan (such as a PDF file), each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Buyer is an independent contractor pursuant to this Agreement. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
31. Assignment. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Farmshelf. Farmshelf may assign any of its rights or delegate any of its obligations to any Person or to any Person acquiring all or substantially all of Farmshelf's assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
32. Choice of Law/Venue. This Agreement shall be interpreted, construed, and governed by the laws of the State of New York without regard to conflict of law principles; to the extent such principles would require or result in the application of another state’s laws. The parties agree to sole jurisdiction and venue in any state or federal court located in the State of New York. The prevailing Party shall be entitled to recover reasonable attorneys’ fees and costs incurred, in addition to any other damages.
33. Force Majeure. Farmshelf shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other Party under this Agreement)], when and to the extent such failure or delay is caused by or results from acts beyond the affected Party's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; and [(i) shortage of adequate power or transportation facilities (each a "Force Majeure Event").
FARMSHELF LIMITED WARRANTY
1. General. The “Limited Warranty” set forth in this document applies to your purchase of the plant growing unit (“Unit”), the accompanying seed pods and nutrient solution (“Seed Pods”) from Farmshelf Corporation (“Farmshelf”) and any services rendered by Farmshelf to you in connection with the Unit and the Seed Pods. The Units and the Seed Pods are collectively referred to as “Goods,” and more specifically described in the Farmshelf Product Specifications. “Nonconforming Goods” means Goods that do not conform to the Farmshelf Product Specifications. “You” refers to a purchaser of the Goods through a Purchase Order that has been accepted and executed by Farmshelf. This Limited Warranty forms part of the Agreement entered into by you and Farmshelf Corporation for the purchase of Goods.
2. Limited Warranty. Farmshelf warrants to Buyer that: (a) no Goods will be Nonconforming Goods; (b) for a period of two (2) years from the date of shipment of the Goods (the "Warranty Period"), such Goods will materially conform to the Product Specifications and will be free from significant defects in material and workmanship. Goods that do not conform to the warranties in this Section 2 are “Nonconforming Goods.”
3. Warranty Limitations. The warranties under Section 2 do not apply where the Goods have: (a) been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Farmshelf; (b) been reconstructed, repaired, or altered by persons other than Farmshelf or its authorized representative; or (c) been used with any third-party product, hardware or product that has not been previously approved in writing by Farmshelf.
4. Buyer's Exclusive Remedy for Nonconforming Goods. This Section 4 contains Buyer's exclusive remedy for Defective Goods. During the Warranty Period, with respect to any allegedly Defective Goods: (a) Buyer shall notify Farmshelf, in writing, of any alleged claim or defect within 45 Days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period); (b) Buyer shall ship, at Farmshelf's expense, such allegedly Defective Goods to Farmshelf's facility located at 19 Morris Avenue, Building 128, Brooklyn, NY 11205 for inspection and testing by Farmshelf; and (c) If Farmshelf's inspection and testing reveals, to Farmshelf's reasonable satisfaction, that such Goods are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 3, Farmshelf shall in its sole discretion, and at its expense (i) for the first twelve (12) months from the purchase date of the Goods (A) repair or replace such Defective Goods, or (B) credit or refund the Price of such Defective Goods less any applicable discounts, rebates or credits; and (ii) for the period from thirteen (13) months through twenty-four (24) months, provide the cost of the parts needing replacement at the Service Fees (see Exhibit A) rate set forth in the Purchase Order. If Farmshelf exercises its option to repair or replace Goods, Farmshelf shall, after receiving Buyer's shipment of such Defective Goods, ship to Buyer, Farmshelf's expense, the repaired or replaced Goods to a location designated by Farmshelf.
5. SECTION 4 SETS FORTH THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND FARMSHELF'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
6. Services. Services provided by Farmshelf under any Purchase Order are subject to the terms and conditions of the Farmshelf Limited Warranty except as otherwise provided in the “Farmshelf Terms and Conditions”. Farmshelf will charge Buyer for any repairs or other services for a Unit(s) that do not qualify for such limited warranty (due to an expiration of the Warranty Period or otherwise) at the Service Fees (see Exhibit A) rate set forth in the Purchase Order. Buyer shall (i) cooperate with Farmshelf in all matters relating to the Services and provide access to Buyer's premises for the purposes of performing the services; (ii) respond promptly to any Farmshelf request to provide direction, information and approvals; and (iii) provide such customer information as Farmshelf may reasonably request.