Last Updated: April 16, 2020
1. Acceptance of Terms.
1.1 Full Harvest Technologies, Inc. (“Full Harvest” or “we”) provides its Services (as defined in Section 2.1 below) to you through its web site located at https://fullharvest.com (the “Site”), subject to this Terms of Service Agreement (“TOS”). By accepting this TOS or by accessing or using the Services or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. You acknowledge that this TOS is a contract between you and Full Harvest, even though it is electronic and is not physically signed by you and Full Harvest. If you are entering into this TOS on behalf of a corporation, limited liability company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to this TOS, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this TOS, you must not accept this TOS and may not use the Services.
1.2 As part of the registration process, you will identify an administrative user name and password for your account (“Account”). Each Account may only have one user.
1.3 Full Harvest may change this TOS from time to time by providing you ten (10) days prior notice either by emailing the email address associated with your Account or by posting a notice on the Site. You can review the most current version of this TOS at any time at https://app.fullharvest.com/terms. The revised terms and conditions will supersede any previously posted terms and become effective ten (10) days after we post or send you notice of such changes, and if you use the Services after that date, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is stop using the Services and send a cancellation email to [email protected].
2.1 The “Services” includes (a) the Site, (b) Full Harvest’s proprietary platform connecting buyers and sellers of produce and related technologies and services, and (c) all software (including the Software, as defined in Section 3.3 below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting the Services are also subject to this TOS.
2.2 “Seconds Produce” shall mean produce which when sold is imperfect in appearance or surplus produce, and which is wholesome and safe for human consumption; and “Seconds Produce Platform” shall mean any business or platform (whether by website, technology application, direct sales or otherwise) the purpose of which is to connect suppliers and buyers of Deliverables (defined below in Section 4.2) or to distribute Deliverables.
2.3 The “Term” shall commence upon the date that you create an Account, and, unless earlier terminated as provided for herein, shall continue for twelve (12) months (the “Initial Term”), at which point, the TOS shall automatically renew for successive six (6) month periods (a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives notice of its intent not to renew at least thirty (30) day prior to the start of the next Renewal Term.
3. General Conditions; Access and Use of the Services.
3.1 During the Term and for one (1) year thereafter you will not directly or indirectly (i) encourage or solicit any partner, supplier, vendor or customer of Full Harvest to provide or sell you produce (including Seconds Produce) or provide services similar to the Services provided by Full Harvest (except as contemplated by this TOS and solely in connection with your relationship with Full Harvest), for any reason; (ii) encourage or solicit any employee or consultant of Full Harvest to leave Full Harvest for any reason, or (iii) operate a Seconds Produce Platform or otherwise engage in any activity that is in any way competitive with the business of Full Harvest. For clarity, unless you first learned of the specific produce (including Seconds Produce) opportunity from Full Harvest or the Site, the prohibitions set forth in subsection (i) of this Section 3.1 shall not apply to the extent you had a prior business relationship with such entities.
3.2 Subject to the terms and conditions of this TOS, you may access and use the Services only for lawful purposes. Full Harvest owns all right, title and interest (including all intellectual property rights of any sort) relating to any and all designs, know-how, ideas and information relating to Full Harvest’s Seconds Produce Platform or any Proprietary Information (as defined in Section 3.4 below). All rights, title and interest in and to the Services and its components will remain with and belong exclusively to Full Harvest. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use the Services in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services or its components, or (c) modify, adapt or hack the Services to, or otherwise attempt to gain unauthorized access to the Services or its related systems or networks. You shall comply with any codes of conduct, policies or other notices Full Harvest provides you or publishes in connection with the Services, and you shall promptly notify Full Harvest if you learn of a security breach related to the Services.
3.3 Any software that may be made available by Full Harvest in connection with the Services (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, Full Harvest hereby grants you a revocable, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Services, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by Full Harvest for use in accessing the Services. Any rights not expressly granted herein are reserved and no license or right to use any trademark of Full Harvest or any third party is granted to you in connection with the Services.
3.4 You agree that all business, technical and financial information (including, without limitation, the identity of and information relating to partners, suppliers, vendors, customers or employees) learned or obtained by you from Full Harvest or the Seconds Produce Platform that relate to Full Harvest’s business or the Services, are “Proprietary Information.” You agree to hold in confidence and not disclose or use any Proprietary Information, except in performing or receiving performance of the Services. Upon termination of this TOS, or as otherwise requested by Full Harvest, you agree to destroy all items and copies of Proprietary Information, except that you may keep copies of your commercial records, invoices and this TOS.
3.5 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Services (“Your Content”). For every email sent outside of your organization via the Services, you acknowledge and agree that Full Harvest shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect you agree to cooperate with and provide reasonable assistance to Full Harvest in promoting and advertising the Services.
3.6 You are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or Account. Full Harvest reserves the right to access your Account as we deem appropriate, including in order to respond to your requests for technical support, for reasons related to the review and/or improvement of the Services, and for our own business purposes. By posting Your Content on or through the Services, you hereby do and shall grant Full Harvest a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Services. Full Harvest has the right, but not the obligation, to monitor the Services, Content, or Your Content. You further agree that Full Harvest may remove or disable any Content, and Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities), or for no reason at all.
3.7 Full Harvest shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services (including, without limitation, information concerning Your Content, data and data derived therefrom), and Full Harvest shall be free (during and after the Term) to use such information and data to develop and improve (including for diagnostic and corrective purposes) the Services and other Full Harvest offerings, and to disclose such data for our business purposes. No rights or licenses are granted except as expressly set forth herein.
3.8 You understand that the operation of the Services, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to Full Harvest’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Services. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. Full Harvest will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.
3.9 You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with the Services (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in Full Harvest’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.
3.10 Full Harvest reserves the right to use your name and/or business name as a reference for marketing or promotional purposes on Full Harvest’s website and in other communication with existing or potential Full Harvest customers. To decline Full Harvest this right you need to email [email protected] stating that you do not wish to be used as a reference.
3.11 Subject to the terms hereof, Full Harvest may (but has no obligation to) provide technical support services, through email in accordance with our then-current standard practices.
4. Delivery; Acceptance/Rejection of Deliverables; Payment.
4.1 Delivery terms shall be defined by the Perishable Agricultural Commodities Act (“PACA”). The applicable purchase order, term sheet, or other document will indicate whether the order is to be picked up by you (“FOB”) or delivered by Full Harvest. If the product is FOB, then you assume all risks of loss and damage in transit.
4.2 You shall have 24 hours to accept or reject goods offered in connection with the Services (“Deliverables”) upon your receipt of the Deliverables. Deliverables may include goods of all types, including Seconds Produce and goods not covered by PACA. Any rejection must be in writing, via an email to your main contact at Full Harvest. Your failure to notify Full Harvest of rejection within 24 hours of receipt shall result in automatic acceptance of the Deliverables. In case of a reasonable rejection of Deliverables by your, the parties agree to work together in good faith to minimize mutual damages and to cure any such non-conformance to the satisfaction of both parties. Since Full Harvest provides a service and operates the Seconds Produce Platform to connect suppliers and buyers, the parties agree that Full Harvest does not take title to the Deliverables.
4.3 Pursuant to PACA regulations and statutory trust provisions, any payment terms beyond ten days must be reflected by a written agreement. In compliance with these regulations and provisions, this TOS will confirm that payment terms for transactions entered into between you and Full Harvest Technologies, Inc. shall be 15 days from receipt of goods. You may be required to select a payment option and provide Full Harvest information regarding your credit card or other payment instrument. You represent and warrant to Full Harvest that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Full Harvest the amount that is specified in the payment option in accordance with the terms of any payment instrument and this TOS. You hereby authorize Full Harvest to bill your payment instrument in accordance with the terms of the applicable payment option until you terminate your Account, and you further agree to pay any charges so incurred. If you dispute any charges you must let Full Harvest know within seven (7) days after the date that Full Harvest invoices you. You shall be responsible for all taxes associated with Services other than U.S. taxes based on Full Harvest’s net income.
5. Representations and Warranties.
You represent and warrant to Full Harvest that (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow Full Harvest to perform its obligations) in connection with the Services without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Services, and Full Harvest’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) your use of the Services will comply with all applicable laws, including, without limitation, all applicable food safety handling, labeling and other applicable food and health related laws and regulations; (v) if your participation in buying and selling through the Services requires a license, you have obtained such license and the license is in full force and effect; and (vi) you are eighteen (18) years of age or older.
Full Harvest may terminate your Account and this TOS at any time in its sole discretion; in such event, Full Harvest shall endeavor to provide you with prompt notice via the administrative email address associated with your Account. You may terminate this TOS upon thirty (30) days’ notice, if Full Harvest breaches any of the terms or conditions of this TOS and fails to promptly cure such breach. Full Harvest reserves the right to modify or discontinue, temporarily or permanently, the Services (or any part thereof). All of Your Content on the Services (if any) may be permanently deleted by Full Harvest upon any termination of your Account in its sole discretion. All accrued rights to payment and the terms of Sections 3 -13 shall survive termination of this TOS.
7. DISCLAIMER OF WARRANTIES.
The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Full Harvest or by third-party providers, or because of other causes beyond our reasonable control, but Full Harvest shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption HOWEVER, THE SERVICES, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND FULL HARVEST EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT FULL HARVEST DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM FULL HARVEST OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
8. LIMITATION OF LIABILITY.
8.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FULL HARVEST BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION 8 ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
8.2 Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. IN THESE STATES, FULL HARVEST’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless Full Harvest from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Services. Full Harvest shall provide notice to you of any such claim, suit or demand. Full Harvest reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 9. In such case, you agree to cooperate with any reasonable requests assisting Full Harvest’s defense of such matter.
10. U.S. Government Matters.
You may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by Full Harvest on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this TOS and will be prohibited except to the extent expressly permitted by the terms of this TOS.
You may not assign this TOS without the prior written consent of Full Harvest, but Full Harvest may assign or transfer this TOS, in whole or in part, without restriction. Notwithstanding any assignment, you shall remain fully liable to Full Harvest for any payment obligations hereunder.
If any provision of this TOS is found to be unenforceable, illegal, or otherwise invalid, that provision will be limited or eliminated to the minimum extent necessary so that this TOS will otherwise remain in full force and effect and enforceable. In connection with this TOS, the parties are acting as independent contractors and not as agents or partners. No agency, partnership, joint venture, or employment is created as a result of this TOS and you do not have any authority of any kind to bind Full Harvest in any respect whatsoever. The failure of Full Harvest to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. Full Harvest may provide you with notices in the manner described in Section 1.3 above. All notices under this TOS shall be in writing and shall be deemed given when received if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon delivery from a nationally recognized courier (e.g., UPS, FedEx); or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice. Any notice to Full Harvest shall include a mandatory copy to: Full Harvest Technologies, Inc., 560 Sutter Street, Suite 200, San Francisco, CA 94102, Attn: Legal Department.
13. Governing Law.
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by Full Harvest in a particular instance, the state and federal courts located in San Francisco County California are the exclusive jurisdiction for any disputes and you hereby expressly agree to submit to the exclusive personal jurisdiction of such courts for the purpose of resolving any dispute relating to or in connection with your access to or use of the Services. In any action or proceeding to enforce rights under this TOS, the prevailing party will be entitled to recover costs and attorneys’ fees (including appellate proceedings).
Please visit https://app.fullharvest.com/privacy to understand how Full Harvest collects and uses personal information.
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