Farmer’s Fridge Wholesale Agreement
Effective Date: July 16, 2020. Last Updated July 16, 2020
This Wholesale Agreement (the “Agreement”) is an agreement between you (“Customer” or “you”) and Romaine Empire, Inc., d/b/a Farmer’s Fridge, a Delaware corporation (“Farmer’s Fridge”), entered into on the date on which you provided affirmative electronic consent to this Agreement, on file with Farmer’s Fridge (the “Effective Date”). This Agreement sets forth the parties’ rights and obligations regarding the sale of prepared food items and non-alcoholic beverages (the “Product(s)”) to Customer by Farmer’s Fridge.
Delivery. Farmer’s Fridge shall have the right to deliver Products to Customer at the “Location(s)” (as defined below) in accordance with the terms of one or more (i) order forms, (ii) emails from Customer outlining order details, and/or (iii) emails from Farmer’s Fridge confirming order details that were relayed by Customer to Farmer’s Fridge over the phone, via email, or through an order form (each of clauses (i) – (iii) an “Order”). Delivery dates will be mutually agreed to by the parties, from time to time. If an agreed upon delivery date cannot be met, Farmer’s Fridge may cancel at any time and will reschedule the date as soon as possible, thereafter, as is practicable.
Orders. The Order shall be deemed accepted by Farmer’s Fridge upon Farmer’s Fridge issuing electronic confirmation, a written acceptance, or upon delivery of the Products. Each accepted Order shall be a binding agreement for the purchase, sale, and delivery of the Products listed therein, according to the terms of such Order and subject to the terms hereof, and each shall be incorporated herein and become a part of this Agreement. Customer shall be under no obligation to purchase, and Farmer’s Fridge shall be under no obligation to sell, any Products hereunder other than that which is agreed upon in an Order. Any requests for changes to the Order must be made in writing two (2) business days prior to the requested delivery date.
Payment Obligations and Terms. The payment obligations between the parties, along with terms of payment, shall be as set forth in the relevant Order or Payment Information Form and become binding upon acceptance of the Order by Farmer’s Fridge. Forms of approved payment will also be set forth in the Payment Information Form. Farmer’s Fridge will charge Customer for all Products delivered to Customer at rates to be mutually agreed to from time to time.
TERM AND TERMINATION
Term. This Agreement shall begin on the Effective Date and continue for a period of one (1) year (the “Term”). This Agreement may be terminated by either party, for any reason, upon fifteen (15) days’ prior written notice. This Agreement shall also terminate if no Order has been issued by Customer (or confirmed by Farmer’s Fridge, as the case may be) after six (6) months from the previous Order. Absent any such termination, the Term will automatically renew for successive one (1) year periods.
FARMER’S FRIDGE RESPONSIBILITIES
Farmer’s Fridge’s Representations and Warranties. Farmer’s Fridge represents and warrants to Customer that Farmer’s Fridge has the authority to enter into this Agreement and to perform its obligations hereunder.
Compliance with Laws. Farmer’s Fridge shall comply with all applicable laws, codes, rules, regulations, and other governmental and municipal requirements (collectively, “Applicable Laws”) in connection with the Products provided hereunder.
Customer’s Representations and Warranties. Customer represents and warrants to Farmer’s Fridge that (i) Customer has full right and authority to grant Farmer’s Fridge the rights described in Section 1 and (ii) Customer has the authority to enter into this Agreement and to perform its obligations hereunder.
Inspection and Storage. Customer shall inspect all Products at the time of delivery by Farmer’s Fridge to ensure the Products are not adulterated, spoiled, or otherwise harmful. Customer agrees to accept all such Products as-is, and such acceptance shall be considered final upon delivery of the Products and absent any complaint by Customer at delivery and upon such inspection. Customer shall properly handle, refrigerate (where applicable), and store all Products.
Compliance with Laws. Customer shall comply with all Applicable Laws in connection with its operation of the handling and storage of the Products provided hereunder.
Customer’s Other Obligations. During the Term, Customer shall (i) reasonably facilitate the delivery of Products by Farmer’s Fridge at the location(s) (“Locations”) set forth in the applicable PO and (ii) provide a contact for the Locations.
Intellectual Property. Neither party transfers to the other any ownership of any intellectual property rights in connection with this Agreement. Each party reserves and retains all right, title, and ownership in and to its respective proprietary or intellectual property rights, including but not limited to trade secrets and recipes. For the avoidance of doubt, Farmer’s Fridge retains all ownership in all of the intellectual property rights in the Products.
Licenses. Farmer’s Fridge hereby grants Customer the revocable, non-exclusive, nontransferable, non-sublicensable license (the “License”) and right to use the Products, logos, and trademarks as provided by Farmer’s Fridge to Customer for the sale of Products to customers at the Locations, and to display logos and trademarks in marketing or on Products. No other use is authorized. The License permits Customer to use the Products, logos, and trademarks only during the Term, subject to, and upon all the terms, covenants, and conditions contained in this Agreement. The License shall not, under any circumstances, be coupled with an interest in the Products, logos, trademarks, trade secrets, or other intellectual property.
Customer Name and Logo. Farmer’s Fridge may use Customer’s name and logo to identify Customer as a customer of Farmer’s Fridge and/or in marketing materials. Farmer’s Fridge’s use of the name and logo does not create any ownership right therein and all rights not granted to Farmer’s Fridge are reserved by Customer.
Customer. Customer agrees to indemnify, defend, and hold harmless Farmer’s Fridge, its parent, subsidiaries and affiliated companies, and its and their respective directors, officers, employees, and agents, from and against any and all third party claims, liabilities, losses, damages, injuries, demands, and expenses, including reasonable attorneys’ fees (collectively, “Claims”) to the extent arising out of or related to (i) any violation by Customer of any Applicable Law, (ii) the distribution or serving of any adulterated, spoiled, or otherwise harmful Products, or (iii) any breach of a representation, warranty, or covenant made by Customer in this Agreement.
Farmer’s Fridge. Farmer’s Fridge agrees to indemnify, defend and hold harmless Customer, its parent, subsidiaries and affiliated companies, and its and their respective directors, officers, employees, and agents, from and against any and all Claims to the extent arising out of or related to: (i) any violation by Farmer’s Fridge of an Applicable Law, or (ii) a breach of any warranty or representation made by Farmer’s Fridge herein.
LIMITATION OF LIABILITY
Except for a breach of its confidentiality obligations set forth herein, in no event will Farmer’s Fridge be liable for any damages in connection with this Agreement, and regardless of the basis for liability (e.g., at law or in equity) and whether or not Farmer’s Fridge has been advised of the possibility of such damages, to the extent they: (i) are indirect, incidental, consequential, special damages (including lost profits) or punitive damages and/or (ii) exceed the amounts paid by the Customer to Farmer’s Fridge pursuant to this Agreement in the twelve (12) months prior to the event giving rise to such liability.
Non-exclusivity. Farmer’s Fridge has granted no exclusive rights to Customer; and Farmer’s Fridge is free to enter into the same or similar agreements with other customers.
Title and Risk of Loss. Title to and risk of loss of each Product will pass to Customer upon the delivery of such Product to Customer.
Confidentiality. All pricing and related financial information related to sales hereunder shall be Farmer’s Fridge “Confidential Information” and Customer shall use reasonable efforts to maintain the confidentiality of such information. Farmer’s Fridge shall use commercially reasonable efforts to maintain the confidentiality of any information that can be reasonably deemed confidential supplied by Customer. The parties’ obligations under this Section are subject to the standard confidentiality exceptions (e.g., previously known, disclosure required by applicable law).
Farmer’s Fridge Insurance. Farmer’s Fridge will maintain the following insurance during the Term of this Agreement:
commercial general liability including premises operations, independent contractors completed operations, broad form property damage, personal injury and blanket contractual liability with a minimum combined single limit for bodily injury and property damage per occurrence of $2,000,000, which can be achieved through a combination of primary and excess liability (umbrella) policies;
business automobile policy including owned, hired, and non-owned automobiles, with limits of liability for bodily injury and property damage per occurrence and per annual aggregate of not less than Farmer’s Fridge’s liability insurance requirements; and
statutory worker’s or workmen’s compensation including occupational disease with an employer’s liability limit of at least $1,000,000.
Upon Customer’s written request, Customer shall be named as an additional insured under the above insurance policies, and such additional insured status shall be evidenced by an additional insured endorsement on a certificate of insurance.
Customer Insurance. Customer will maintain the following insurance during the Term of this Agreement:
business automobile policy including owned, hired, and non-owned automobiles, with limits of liability for bodily injury and property damage per occurrence and per annual aggregate of not less than Customer’s liability insurance requirements; and
statutory worker’s or workmen’s compensation including occupational disease with an employer’s liability limit of at least $1,000,000.
Customer shall have Romaine Empire, Inc., d/b/a Farmer’s Fridge named as an additional insured under the above insurance policies, and such additional insured status shall be evidenced by an additional insured endorsement on a certificate of insurance.
Force Majeure. Neither party will be liable for or be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond such party’s reasonable control (other than an obligation for the payment of money), including severe weather events, acts of government, civil unrest, acts of terror, strikes, or other labor problems.
Relationship of Parties. Farmer’s Fridge is an independent contractor, and nothing herein shall create an agency, partnership, joint venture, or any other form of legal association between the parties. Neither party may represent itself as an agent, partner, or joint venture of the other or otherwise incur any expense or other obligation on behalf of the other party.
Assignment. Neither party may assign or otherwise transfer this Agreement to any third party without the prior written consent of the other party, provided however, that either party may assign any of its rights under this Agreement, without the prior written consent of the other party, to any entity that controls or is under common control with such party.
Notice. All notices, requests, demands, and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) when received if delivered personally, (ii) when sent by electronic mail (which is confirmed by the intended recipient), or (iii) when sent by overnight courier service or when mailed by certified or registered mail, return receipt requested, with postage prepaid to the parties at the following addresses (or at such other address for a party as shall be specified by like notice): If to Farmer’s Fridge: 2000 W. Fulton Street, Suite F-310, Chicago, IL 60612, Attn: Legal Department. If to Customer: the address listed on the applicable PO.
Integration; Amendment. This Agreement, including all PO’s and accompanying Payment Information Forms hereto, constitutes the complete and final agreement of the parties, and supersedes all prior agreements, understandings, negotiations, and discussions. The parties represent that they have not relied upon any representation or warranty not expressly set forth in this Agreement (and they agree that any such reliance would be unreasonable). This Agreement, and any POs hereto, may be modified by a written amendment signed by both parties.
No Waiver. No waiver by either party shall be effective unless in writing. Any waiver by either party of any default, delinquency, or other breach by the other party shall not be deemed to be a waiver of any other or subsequent default, delinquency, or breach. Further, no delay on the part of any party to exercise any right that it has or may have under this Agreement will operate as a waiver of any such right.
Governing Law; Venue. This Agreement will be governed by the laws of the State of Illinois (without regard to conflict of law provisions). Any legal actions relating to this Agreement shall be exclusively brought by any party in a federal or state of court of competent jurisdiction in Cook County, Illinois. The parties consent to the jurisdiction of such courts.