Last Updated: January 27, 2021
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. Certain terms will only be applicable if You enter into a Supplier Agreement or Buyer Agreement and are noted below in these TOS.
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].
1.4 If you opt-in to use the automated online payment functionality of our Service, you must open a "Dwolla Platform" account provided by Dwolla, Inc. and you must accept the Dwolla Terms of Service and Privacy Policy . Any funds held in the Dwolla account are held by Dwolla's financial institution partners as set out in the Dwolla Terms of Service . If required, you authorize Full Harvest to collect and share with Dwolla your personal information including full name, date of birth, social security number, physical address, email address and financial information, and you are responsible for the accuracy and completeness of that data. Full Harvest will not retain any of this information. You understand that you will access and manage your Dwolla account through our application, and Dwolla account notifications will be sent by Full Harvest, not Dwolla. Full Harvest will provide customer support for your Dwolla account activity, and can be reached at [email protected] or by reaching out to your primary Full Harvest contact.
2. Definitions.
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.
2.3.1 For Suppliers - For any supplier agreement entered into between Full Harvest and You (hereinafter “Supplier Agreement”) shall be effective for one (1) year from the date of execution by both Parties (the “Initial Term”), at which point, the Agreement shall automatically renew for successive one (1) year periods (a “Supplier 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.
2.3.2 For Buyers - For any buyer agreement entered into between Full Harvest and You (hereinafter “Buyer Agreement”) shall be effective for (12) months from the date of execution by both Parties (the “Initial Term”), at which point, the Agreement 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.
4.4 For Buyers - Delivery; Specifications; Rejection of Deliverable; Payment Terms.
4.4.1 Delivery terms for Seconds Produce shall be defined by the Perishable Agricultural Commodities Act (“PACA”). Delivery terms for other goods outside the scope of PACA shall be determined by mutual agreement of the Parties. The applicable Purchase Order will indicate whether the order is to be picked up by Buyer (“FOB”) or delivered by Full Harvest (“Delivered”). If the product is FOB, the Buyer assumes all risks of loss and damage in transit.
4.4.2 Specifications. Prior to any purchase under this Agreement, Buyer shall have the opportunity to review and agree to specifications for all goods provided by Full Harvest. By making a purchase Buyer acknowledges that it has agreed to the specifications provided by Full Harvest.
4.4.3 Rejection of Deliverables. Buyer shall have 24 hours to accept or reject goods offered in connection with the Services (“Deliverables”) upon Buyer receiving Deliverables. 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 Buyer, 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.
4.4.4 Payment Terms. 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 Agreement will confirm that payment terms for transactions entered into between Full Harvest Technologies, Inc. and Buyer shall be 15 days from receipt of goods.
5. Ownership Rights; Proprietary Information; Photos.
a. 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 accessed, used or modified by Supplier relating to the Services or any Proprietary Information (as defined below).
b. Supplier agrees that all business, technical and financial information (including, without limitation, the identity of and information relating to Buyers, partners, vendors, customers or employees) learned or obtained by Supplier from Full Harvest or its Seconds Produce Platform that relate to Full Harvest’s business or the Services, are “Proprietary Information.” Supplier will hold in confidence and not disclose or use any Proprietary Information, except in performing or receiving performance of the Services. Upon termination or as otherwise requested by Full Harvest, Supplier will destroy all items and copies of Proprietary Information, except that Supplier may keep copies of its commercial records, invoices and this Agreement.
c. Full Harvest may request that from time-to-time Supplier provide a photo, video, or other illustration of Supplier’s goods (collectively, an “Image(s)”) to Full Harvest. By submitting an Image(s) to Full Harvest Supplier hereby: (i) grants Full Harvest permission to use the Image in any publication, including on the Full Harvest Platform, or for any other lawful purpose, without payment or any other consideration; (ii) forever waives any right to royalties or other compensation arising or related to the use of the Image; (iii) authorizes Full Harvest to edit, crop, alter, copy, exhibit, publish or distribute Images in the sole discretion of Full Harvest; (iv) waives the right to inspect or approve the finished Image, including its display on the Full Harvest Platform; (v) acknowledges that Full Harvest, in its sole discretion, may use the Images you provide - but is under no obligation to do so; (vi) releases Full Harvest from all claims, demands, and causes of action which you or your photographer may have related to Full Harvest’s use of the Images; (vii) agrees to indemnify, defend, and hold harmless Full Harvest from and against any claims related to Full Harvest’s use of the Images; (viii) represents and warrants to Full Harvest that (a) the Images you provide fairly and accurately represent the products that you are offering for sale on the Full Harvest Platform, and (b) that you have the authority to grant the rights and agree to the obligations set forth above.
6. Representations and Warranties.
6.1 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.
6.2 For Suppliers - Supplier’s Representations and Warranties; Quality Standards; Compliance with Laws; Labeling Information; Packaging; Recall Procedures.
a. Supplier represents and warrants that all goods that Supplier grows, provides, manufactures, processes, and/or packages under this Agreement shall be:
(i) grown, produced, packed, stored and shipped in accordance with all applicable laws, including all Food Laws. For purposes of this Agreement “Food Laws” means any applicable law, policy or procedure of the U.S. Food and Drug Administration (“FDA”), U.S. Dept. of Agriculture (“USDA”), Federal Trade Commission, State Departments of Agriculture, or other governmental authorities of the U.S. or any jurisdictions in the U.S., including but not limited to The Federal Food, Drug, and Cosmetic Act, as amended, (“FDCA”), the Fair Packaging and Labeling Act, as amended, and any other law or regulations relating to the growing, production, ingredients, manufacture, labeling, advertising, promotion, sale, or safety of the goods, including the common law of any U.S. state or territory, and, if applicable, The Safe Drinking Water and Toxic Enforcement Act of 1986, as amended, promulgated by the State of California (commonly referred to as “Proposition 65”). And;
(ii) manufactured, grown, provided, processed, and packaged strictly in conformity with applicable sanitation standards, such as those set forth by the FDA, the USDA, and any state and local governmental agencies, having jurisdiction, and in any event, in suitable conditions so as to avoid any undue deterioration either in quality, shelf life or freshness; and
(iii) fit and wholesome for human consumption and shall meet all requirements of applicable statutes, rules, and regulations of the United States and any state or local government; and
(iv) unless specifically acknowledged in each instance in writing by Full Harvest, all goods that Supplier grows, provides, manufactures, processes, and/or packages under this Agreement shall be Major Allergen Free (as defined in the Food Allergen Labeling and Consumer Protection Act of 2004); and
(v) not adulterated or misbranded within the meaning of 21 U.S.C. Sections 301, et seq., and not prohibited by any law, including the FDCA, from being introduced into interstate commerce; and
(vi) grown, produced, packed, stored and shipped in accordance with all needed governmental, administrative and other approvals, licenses, permits and other authorizations and registrations necessary for the marketing, distribution and sale of its goods.
b. Supplier further represents and warrants that:
(i) All goods shall be properly labeled by Supplier before shipping with such information as required by and in accordance with all applicable laws (including federal, state and local) and Food Laws relating to each such product;
(ii) Any pesticides or chemicals used by Supplier on said goods shall comply with the rules and regulations of the FDA, the USDA, and all applicable state and federal regulations, and have been used at authorized times and in conformity with applicable regulations and label/use instructions of the manufacturer. Supplier shall ensure and monitor that products prohibited by the FDA shall not be used on its goods, and that residues of acceptable products or contaminants shall not exceed those levels permitted by the FDA, the USDA and all applicable state and federal regulations; and
(iii) Supplier shall maintain an adequate traceability program that will enable Supplier to promptly and accurately trace the goods supplied, or any portion thereof, to its source from any point in the distribution or marketing process;
(iv) Supplier shall maintain written recall procedures that ensure compliance with applicable laws;
(v) Supplier shall maintain for a period of at least one (1) year, or longer if required by Food Laws, and make available to Full Harvest upon request, all records required by Food Laws, as well as all chemical, physical, microbiological, and process tests of the goods, basic ingredients and packaging materials.
c. If Supplier becomes aware of the existence of any quality or technical problem with goods, including but not limited to a shelf life or contamination problem, Supplier shall immediately notify Full Harvest and act in accordance with the procedures mutually agreed by the Parties, and in any event, in accordance with any applicable law, including all Food Laws.
d. Supplier is responsible for any recall related to its goods failing to comply (or allegedly failing to comply) with Food Laws or any laws relating to labeling, the ingredients or any contaminants contained therein. Supplier agrees to indemnify, protect, and hold harmless Full Harvest from any and all demands, claims, actions, losses, costs and expenses, including reasonable attorneys’ fees, which may arise from any recall of Supplier’s goods and from the breach of any of the warranties herein. Supplier assumes all risk of loss due to asserted food safety issues contemplated by this provision and the representations and warranties herein set forth.
e. General Representations and Warranties. Full Harvest represents and warrants that the Services will be performed in a professional and workmanlike manner. Each Party represents and warrants that: (a) they have the full right to perform this Agreement without conflict to any obligation that they may have to others; (b) they will comply with all applicable laws, including Food Laws, in the course of performance under the Agreement (including, without limitation, in the case of Supplier, all applicable food safety handling, labeling, and other applicable food and health related laws and regulations); and (c) if either Party’s performance hereunder requires any license(s) or permit(s), such Party has, and shall maintain, all required licenses and permits.
7. Termination.
a. 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.
b. For Suppliers - Under any Supplier Agreement, if either Party breaches a material provision of the Supplier Agreement, the other Party may terminate this Agreement upon ten (10) days’ notice, unless the breach is cured within the ten (10) days. Full Harvest also may terminate this Agreement at any time, for any reason, without any further liability, upon thirty (30) days’ notice. If such termination occurs, the Parties agree to pay any and all unpaid, undisputed amounts due for the Services completed or in process prior to notice of such termination. All sections of this Agreement and the Supplier Agreement and any remedies for breach of this Agreement or the Supplier Agreement shall survive any termination or expiration.
c. For Buyers - Under any Buyer Agreement, if either Party breaches a material provision of the Buyer Agreement, the non-breaching Party may terminate this Agreement upon ten (10) days’ notice, unless the breach is cured within ten (10) days (except in the case of non-payment by Buyer, in which case Full Harvest shall have the right to terminate within five (5) days of such failure to cure). Full Harvest also may terminate this Agreement at any time, for any reason, without any further liability, upon thirty (30) days’ notice. Upon termination, the Parties agree to pay any and all unpaid, undisputed amounts due for the Services completed or in process prior to notice of such termination. All sections of this Agreement and the Buyer Agreement and any remedies for breach of this Agreement or the Buyer Agreement shall survive any termination or expiration hereof.
8. DISCLAIMER OF WARRANTIES.
a. 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.
b. For Buyers - Full Harvest represents and warrants that the Services will be performed in a professional and workmanlike manner. Each Party represents and warrants that: (a) they have the full right to perform this Agreement without conflict to any obligation they may have to others; (b) they will comply with all applicable laws in the course of performance under the Agreement (including, without limitation, in the case of Buyer, all applicable food safety handling, labeling, and other applicable food and health related laws and regulations); and (c) if either Party’s performance hereunder requires any license(s) or permit(s), such Party has all required licenses and permits and they are in full force and effect.
9. LIMITATION OF LIABILITY.
a. 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.
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.
b. For Buyers -
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL FULL HARVEST BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, OR LOST DATA. FURTHER, IN NO EVENT SHALL FULL HARVEST’S LIABILITY TO BUYER UNDER THIS AGREEMENT EXCEED 100% OF THE AMOUNT PAID BY BUYER TO FULL HARVEST IN THE 12 MONTHS PRIOR TO ANY INCIDENT GIVING RISE TO SUCH LIABILITY OR $25,000.00 - WHICHEVER AMOUNT IS LESS. THE PARTIES ACKNOWLEDGE THAT THE FOREGOING IS A FAIR ASSESSMENT AND ALLOCATION OF RISK BASED UPON THE SERVICES PROVIDED BY FULL HARVEST.
10. Indemnification.
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 10. In such case, you agree to cooperate with any reasonable requests assisting Full Harvest’s defense of such matter.
11. 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.
12. Assignment.
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.
13. Miscellaneous.
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., 345 California St., Suite 600 San Francisco, CA 94104, Attn: Legal Department.
14. 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).
15. Privacy.
Please visit https://app.fullharvest.com/privacy to understand how Full Harvest collects and uses personal information.
COPYRIGHT AND LEGAL NOTICE. Copyright ©2021 Full Harvest Technologies, Inc. All Rights Reserved.
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