Henson Heritage Farm Virtual Farmers Market AGREEMENT
NOW, THEREFORE, in consideration of the foregoing promises, the mutual covenants contained herein and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
Section 1. Stock.
(a) each Monday after the Effective Date, Vendor will provide Market quantities and types of food items (the "Products") to be displayed and available for the following week on the website located at www.HensonHeritageFarm.com (collectively, the "Vendor Inventory"). Vendor shall provide all sold Products by Wednesday to be delivered to consumers by the Market. Product will be picked up by the market or delivered at the Vendors expense as agreed upon. By entering into this Agreement, Vendor grants Market the right to use the brand's logos, likeness, product images and other reasonable intellectual property on the Market's website and any marketing materials provided by Market.
(b) The period for any Product in the Vendor Inventory shall commence on each Tuesday and end the following Monday at midnight.
Section 2. Condition Of Vendor Inventory; Acceptance Of Vendor Inventory.
(a) Market will only accept Products that are authentic, clean, and in excellent condition. Any defects should be brought to Market's attention upon delivery of the Products. Vendor agrees that the condition of the Product may affect the value of the Product.
(b) Upon receipt of Vendor Inventory, Market shall evaluate each Product in the Consigned Inventory to determine its quality and authenticity. Any Product that fails to meet Market's quality and authenticity standards will be returned to Vendor, at Vendor's expense. If any Product provided to Market hereunder is found to be counterfeit, Market reserves the right to confiscate such Product and provide the Product and any other information (including, Vendor's personal information) requested by the person, government authority or agency looking to trace the origin of such counterfeit Product.
Section 3. Right To Sell Vendor Inventory.
Vendor hereby grants to Market the right to sell Vendor Inventory on behalf of Vendor pursuant to this Agreement. During this Period, Market shall use commercially reasonable efforts to make available for purchase the Vendor Inventory on Market's website located at www.HensonHeritageFarm.com. Market reserves the right to include Vendor Inventory as part of the sales and promotions that Market offers to its customers.
Section 4. Pricing; Payment.
(a) Vendor's who are participants of Market shall provide Market with a merchandising pricing sheet that lists the sale price for each Product in the Vendor Inventory. Market agrees to maintain the Price, and will accept nothing less than such Price for any Product sold, unless otherwise agreed upon in writing by the parties. Notwithstanding the foregoing, Vendor reserves the right, in its sole discretion, to adjust the sale price of any Product in the Markets Inventory. Prices may only be changed for the following delivery week and will not apply to any orders made for the current delivery cycle.
(b) Upon sale of Product(s) to Market's customers, Market shall remit to Vendor the Price for such Product ("Vendor Share") and retain 20% of the actual price for such Product as set forth herein. Outstanding refunds to customers may also be deducted from payments. All such payments shall be made by a method mutually agreeable to the parties. Notwithstanding the foregoing, in no event shall Market be obligated to make any such payments to Vendor unless and until Market receives the proceeds from any such sale.
Section 5. Title; Risk Of Loss.
All Vendor Inventory shall remain the property of Vendor during the sale and transportation to end customer. Market shall acquire no right, title or interest in the Vendor Inventory other than the right to possess the Vendor Inventory as a Market and sell the Vendor Inventory on behalf of Vendor pursuant to the terms of this Agreement. Market accepts all risk of loss and full responsibility for the Vendor Inventory which may be lost, stolen, damaged or destroyed while in its possession or control with the exception of acts of God or of the public enemy, riots, or public disorders. Market shall use commercially reasonable efforts to (i) identify all Vendor Inventory as being the property of Vendor, (ii) separate Vendor Inventory from other property of Market, and (iii) maintain complete and accurate records concerning the Vendor Inventory.
Section 6. Return Of Vendor Inventory.
Vendor Inventory sent with Market to Events for the purpose of display or sales that have not been used or purchased will be returned to vendor or may be donated to a local charity at the decision of the vendor.
Section 7. Term; Termination.
This Agreement will be effective from the time Vendor signs ("Effective Date") and shall continue in full force and effect thereafter unless sooner terminated as provided for herein. Either party may terminate this Agreement, at any time, without cause, upon Thirty (30) days written notice to the other party. This Agreement may be terminated at any time by either party upon written notice to the other party, if the other party is in material breach of this Agreement and fails to cure such breach within ten (10) days after it receives written notice thereof from such party. All accrued rights or responsibilities will survive termination or expiration of this Agreement. Upon termination of this Agreement, any remaining Vendor Inventory shall be returned to Vendor at Vendor's expense. In the event, Vendor terminates this Agreement while the Vendor Period is in effect, for each Product returned to Vendor, Market shall charge a fee of twenty dollars ($20) per Product to cover Market's inventory holding cost. Termination shall not affect either party's obligations for undisputed payment accrued prior to the effective date of termination or warranties which have not yet expired.
Section 8. Warranty And Disclaimer.
Vendor represents and warrants to Market that during the term of this Agreement (i) Vendor has good title to the Products, free of all liens, claims and encumbrances; (ii) the Products are authentic (iii) the Products will conform in all material respects, with the Product specifications set forth on the labeling of the Product; and (iv) the Products do not violate, infringe or misappropriate any state or federal laws, intellectual property or proprietary rights of any third party. Vendor shall promptly replace, at its sole expense, any Product that does not conform to the foregoing warranties.
Section 9. Limitation Of Liability.
(a) NEITHER PARTY, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OF ANY KIND, OR FOR ANY LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, OR LOSS OF GOODWILL OR REPUTATION, WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PRODUCTS, THE USE THEREOF, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.
(b) IN NO EVENT SHALL Market BE LIABLE, IN THE AGGREGATE, FOR ANY DIRECT DAMAGES ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CAUSE WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY OR TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY IN LAW OR IN EQUITY, IN EXCESS OF THE ACTUAL SALE PRICE RECEIVED BY Market FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM.
(c) To the extent the exclusions and limitations of liability set forth in this Section is not permitted under applicable law, Market's liability in such case will be limited to the greatest extent permitted by law.
Section 10. Indemnification.
Vendor hereby agrees to indemnify, defend and hold harmless Market against any and all claims, demands, actions, losses, expenses, damages, liabilities, costs (including, without limitation, interest, penalties and reasonable attorneys' fees) and judgments arising from a third party claim against Market arising from (i) Market's sale of the Product, or (ii) Vendor's breach of the warranty set forth in Section 8.
Section 11. Independent Contractor.
Vendor and all of Vendor's employees, agents, and contracted staff (collectively "Vendor's Staff") while performing any services pursuant to this Agreement are independent contractors and not employees of Market. Vendor's Staff are not eligible for and may not participate in any Market health, welfare, pension, disability, insurance, leave or any other benefit of employment plan or program. Market will not provide worker's compensation insurance for any Vendor Staff or withhold any taxes or other required withholding to any pay to any Vendor Staff; Vendor is solely responsible for these obligations, if any, to Vendor's Staff.
Section 12. Insurance.
Market shall procure, at its own cost and expense, insurance coverage in amounts as may be expected of a diligent and professional company in the industry, taking properly into account its obligations and liabilities under this Agreement, and shall name Vendor as an additional insured for general liability coverage under this Agreement. Such insurance coverage shall be maintained during the Term of this Agreement. All policies shall contain a minimum of thirty (30) days' notice of cancellation or material change, which notice shall include Vendor. Market shall furnish certificates of insurance upon reasonable request by Vendor and provide renewal certificates at least thirty (30) days' prior to the expiration of the policy.
Section 13. Confidential Information.
Each party hereby acknowledges that it has or may have access to confidential and proprietary information of the other party including, without limitation, business information related to purchasing, supplies, product pricing, vendor identification, and other financial information designated as confidential expressly or by the circumstances in which it is provided ("Confidential Information"). Confidential Information does not include (i) information already known outside the scope of this Agreement, (ii) information in the public domain through no wrongful act of the receiving party, or (iii) information received outside the scope of this Agreement from a third party not under a confidentiality obligation to the disclosing party. The receiving party shall (a) only use the disclosing party's Confidential Information to perform its obligations pursuant to this Agreement, (b) not disclose the disclosing party's Confidential Information to any person or entity, except to its own employees or agents having a "need to know" (and who themselves are bound by similar nondisclosure restrictions). Upon termination, or at any time upon request by the disclosing party, the receiving party shall return all Confidential Information in its possession or control or, at the sole discretion of the disclosing party may otherwise verify its destruction or deletion to the disclosing party.
Section 14. Force Majeure.
If the transportation or delivery of any Product is prevented, restricted or interfered with by reason of any event or cause whatsoever beyond the reasonable control of Vendor including, but not limited to, fire, storm, flood, earthquake, explosion, accidents, acts of God or of the public enemy, riots, public disorders, strikes, labor disputes, transportation embargoes or delays, failure of common carriers, shortages of any Products, or acts or regulations or priorities of the government or branches or agencies thereof, Vendor shall be excused from making deliveries hereunder to the extent of such prevention, restriction or interference.
Section 15. Notices.
Any notice required or allowed by this Agreement shall be in writing and shall be delivered either by hand to a party, by reputable overnight courier, facsimile with proof of confirmation, or by certified mail, return receipt requested at the address set forth below. Any party may change its address by giving written notice of such change in accordance with the provisions of this paragraph: If to Vendor: At the address set forth on Vendor form that is submitted.
If to Market : Henson Heritage Farm .
2918 w 600 s
Section 16. Assignment.
Vendor shall not assign this Agreement or any rights nor delegate obligations hereunder without the prior written consent of the other party, and any such attempted assignment without the prior written consent of Market shall be void and of no force or effect. This Agreement will be binding upon the parties' respective successors and permitted assigns.
Section 17. Miscellaneous.
In the event that any portion of this Agreement is held to be invalid or unenforceable, then such portion shall be construed in accordance with the applicable law as nearly as possible to reflect the original intentions of the parties, and the remainder of this Agreement shall remain in full force and effect. The sections of this Agreement entitled limitation of liability, indemnification, and miscellaneous shall survive the termination of this Agreement. The paragraph headings herein are provided only for reference and shall have no effect in the construction or interpretation of this Agreement. Vendor may not assign this Agreement. No waiver shall be effective unless in writing. Neither the course of conduct between parties nor trade practice shall act to modify any provision of this Agreement. This Agreement and any other agreements between the parties entered into shall be governed by and construed in accordance with the laws of the State of Utah. This Agreement contains the entire agreement of the parties, and supersedes all existing agreements and all other oral, written or other communication between the parties concerning its subject matter. Market may change the terms and conditions of this Agreement from time to time. If Market changes any terms of this Agreement, Market will notify Vendor via email and Vendor will be required to follow the link in the email and click "Agree" to accept the new terms. The most current version of this Agreement will be available at www.hensonheritagefarm.com/pages/vendor-terms
Vendor ACKNOWLEDGES THAT Vendor HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.