HarvestPort Input Terms of Service
Last updated: August 8, 2018
PROCUREMENT AGENCY AGREEMENT
This Procurement Agency Agreement (together with the Request Form (as defined below), this “Agreement”) is made as of the date (the “Effective Date”) set forth in the Procurement Agency Request Form (the “Request Form”) to which this Agreement is attached, by and between the person identified as “Grower” in the Request Form (“Grower”) and HarvestPort Exchange Inc. (“HarvestPort”). Grower and HarvestPort are collectively referred to as the “Parties” and each a “Party”.
WHEREAS, Grower wishes to engage HarvestPort as a procurement agent to solicit prices for, and to place orders on behalf of Grower for crop inputs, including fertilizer, chemicals, seed, soil amendments, fuel and oil (the “Products”) on the terms set forth in this Agreement;
WHEREAS, HarvestPort is willing to solicit such prices and place such orders for the Products on the terms set forth in this Agreement;
NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein and other good and valuable consideration, the adequacy and receipt of which is hereby acknowledged, the Parties agree as follows:
Appointment of Non-Exclusive Procurement Agent. Grower hereby appoints HarvestPort as the non-exclusive procurement agent of Grower for the Products. HarvestPort hereby accepts such appointment upon the terms set forth in this Agreement.
Term. This Agreement shall commence on the Effective Date and terminate on the earlier of (a) [180 days] after the Effective Date and (b) the delivery to the Customer of the applicable Products, unless earlier terminated in accordance with Section 8.
Solicitation of Prices; Order Process.
(a) HarvestPort agrees that during the term of this Agreement, HarvestPort shall use its reasonable efforts, as procurement agent of Grower, to solicit prices for Products from suppliers selected by HarvestPort in its sole discretion. HarvestPort will, within a reasonable time following HarvestPort’s receipt of prices for the Products, present such prices to Grower and any other terms and conditions received by HarvestPort from the supplier that are applicable to the Products including, if available, the period of time during which the applicable supplier has offered such prices. Grower may accept or reject all or any portion of the prices presented by HarvestPort. Grower will indicate in writing to HarvestPort the prices accepted by Grower for the Products. HarvestPort will place an order, on behalf of Grower as procurement agent of Grower, with the applicable suppliers for the accepted prices in the quantities indicated by Grower and will request an invoice from such supplier covering such Products. HarvestPort will deliver such invoice, if obtained, to Grower. Such invoice will be directly addressed to Grower. Grower will be solely responsible for payment of such invoice directly to the applicable supplier, including the cost of Products and any applicable taxes and fees, and the supplier will have recourse only to Grower for payment.
(b) Any contract for the purchase and supply of the Products shall be solely between Grower and the applicable supplier. HarvestPort will not be a party to any such contract and will have no responsibility or liability for (i) the fulfillment of any of the terms or conditions of any such contract, or (ii) any acts, errors or omissions of any counterparty to any such contract, whether by implication or otherwise.
(c) HarvestPort does not guarantee that it will be able to obtain prices, or favorable prices, for all or any Products.
(d)HarvestPort may disclose to any supplier the identity of Grower and that HarvestPort is acting as agent for such Grower.
Delivery; Title; Risk of Loss. Title and risk of loss for the Products will pass directly to Grower from the supplier upon the terms and conditions agreed by Grower and the supplier to apply to the order placed with the supplier as provided in the applicable invoice (the “Order Terms”). In no event will HarvestPort take delivery, title or risk of loss of any Products or be responsible for any terms or conditions that may apply to any invoice or Products. As between Grower and HarvestPort, Grower is solely responsible for risk of loss, and for the cost of any insurance coverage desired by Grower. Grower acknowledges that the Order Terms will govern each order placed hereunder.
Procurement Agency Fee. In the event HarvestPort places an order for any Products, Grower will pay to HarvestPort a procurement agency fee in the amount set forth in the Request Form (the “Agency Fee”) [within 30 days following the placement of the first order by HarvestPort].
Non-Exclusivity. The agency relationship created by this Agreement is non-exclusive. Grower may procure Products itself or engage others to procure Products on its behalf. HarvestPort may, either individually or in partnership or jointly or in conjunction with any other individual, person, firm or corporation (“Person”), as principal, agent, sales representative, shareholder, officer, employee, manager or otherwise, carry on or be engaged in or concerned with other businesses or enterprises engaged in or concerned with the provision of any Products. Grower acknowledges that it is HarvestPort’s intention to utilize group purchasing to obtain more favorable prices than would otherwise be available and that Grower may be part of a purchasing group coordinated by HarvestPort in its sole discretion. HarvestPort may perform services of a nature described herein for other Persons with no duty to account to Grower with respect to such services.
Authority of HarvestPort. HarvestPort is an independent contractor and is not an employee of Grower. Except for the purpose of soliciting prices and placing orders as provided herein, HarvestPort is not an agent of Grower. Neither Party shall have the right or authority to make any contract, sale or other agreement in the name of, or for the account of the other Party, or to make any representation, or to assume, create or incur any obligation or liability of any kind, express or implied, on behalf of the other Party.
Termination. Either Party may terminate this Agreement at any time upon 10 days’ written notice to the other Party. Upon termination of this Agreement for any reason, HarvestPort shall be entitled to any Agency Fee then due and owing.
Disclaimer of Warranties. HARVESTPORT MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO ANY PRODUCTS, AND EXPRESSLY DISCLAIMS ANY SUCH WARRANT, EXPRESS OR IMPLIED, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY AGAINST INTERFERENCE; OR (D) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Limitation of Liability. IN NO EVENT SHALL HARVESTPORT BE LIABLE TO GROWER OR ANY OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS OR LOSS OF BUSINESS, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER GROWER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT SHALL HARVESTPORT’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE AGENCY PROCUREMENT FEES ACTUALLY PAID TO HARVESTPORT HEREUNDER IN THE 30 DAYS PRECEDING THE CLAIM.
Indemnification. Grower shall indemnify, defend and hold harmless HarvestPort and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Parties”) 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 (including attorney’s fees) and the cost of pursuing any insurance providers, incurred by any Indemnified Party, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Products or any amounts owing under any invoice for any order placed by HarvestPort on behalf of Grower hereunder, including any applicable taxes or fees. Grower shall not enter into any settlement with respect to any claim subject to indemnification pursuant to this Section 11without HarvestPort’s prior written consent.
Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be deemed given or delivered (i) upon personal delivery, (ii) one business day after being deposited with an overnight courier service (costs prepaid) specifying next business day delivery, with written verification of receipt, (iii) when sent by facsimile or email if sent during the recipient’s normal business hours and on the next business day if sent after the recipient’s normal business hours, or (iv) when received or rejected by the addressee, if sent by certified or registered mail, return receipt requested, postage prepaid, in each case to the addresses, facsimile numbers and email addresses set forth, and addressed to the attention of the person designated (by name or title), on the Request Form, as applicable, as may be changed by notice to the other Party hereto as provided herein.
(a) Governing Law. The validity, interpretation and enforcement of this Agreement, or matters arising out of or relating to this Agreement, its making, performance or breach will be governed by the internal laws of the State of California, without reference to choice of law doctrine. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties hereby agree that any action arising out of this Agreement will be brought solely under the relevant courts located in the in any state or federal court located in San Francisco County, California. Both Parties hereby submit to the jurisdiction and venue of any such court.
(b) Entire Agreement. This Agreement, including the Request Form and any attachments to the Request Form, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior agreements, communications and understandings between the Parties, whether written or oral, relating hereto. No representation, inducement or promise has been made or relied upon by either party, unless expressly set forth in this Agreement.
(c) Amendments. No change, modification, amendment, addition or termination of this Agreement or any part thereof shall be valid unless in writing and signed by an authorized representative of the party to be charged therewith.
(d) No Assignment. Neither this Agreement nor any Party’s rights and obligations hereunder may be assigned by such Party without the prior written consent of the other Party. Any assignment without such consent shall be null and void. Notwithstanding the foregoing, HarvestPort may assign this Agreement without the consent of Grower to any affiliate of HarvestPort or, in connection with any acquisition of all or substantially all of the business or assets of HarvestPort to which this Agreement relates, to any such acquiror or any affiliate of such acquiror.
(e) Survival. The provisions of this Agreement which by their sense and context should survive any termination of expiration of this Agreement, including without limitation Sections 4, 5, 6, 7, 8, 9, 10, 11, 12and 13, shall so survive.
(f) Binding Agreement. This Agreement shall be binding upon the Parties hereto and their heirs, successors and permitted assigns.
(g) Severability. Every provision of this Agreement is intended to be severable, and, if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the validity or legality of the remainder of this Agreement.
(h) No Waiver; Rights Cumulative. No failure or delay by any Party in exercising any right, power or privilege under this Agreement shall operate as a waiver thereof unless in writing and signed by an authorized representative of such Party, nor shall any such waiver, failure or delay be deemed a continuing waiver by such Party in respect of any subsequent breach or default, either of similar or different nature, unless expressly so stated in writing. The rights and remedies of the Parties herein provided shall be cumulative and not exclusive of any rights or remedies provided by law or equity.
(i) Counterparts. This Agreement may be executed in counterparts by facsimile or electronic transmission, each of which shall be deemed an original instrument, but all of which together shall constitute one and the same agreement.
(j) Interpretation. Capitalized terms shall have the meanings as defined herein, and the meaning of defined terms shall be equally applicable to both the singular and plural forms of the terms defined. For purposes of this Agreement, (i) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation,” (ii) the word “or” is not exclusive, (iii) the words “herein,” “hereof,” “hereby,” “hereto,” “hereunder” and words of similar import refer to this Agreement as a whole, and (iv) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding.” Unless the context otherwise requires, references herein: (a) to a Section mean a Section of this Agreement; (b) to agreements, instruments and other documents shall be deemed to include all subsequent amendments, supplements and other modifications thereto; (c) to statutes or regulations are to be construed as including all statutory and regulatory provisions consolidating, amending or replacing the statute or regulation referred to; (d) to any Person includes such Person’s successors and assigns, but, if applicable, only if such successors and assigns are not prohibited by this Agreement; and (e) to any gender includes each other gender. The titles, captions and headings herein are for convenience of reference only and shall not affect the meaning or interpretation hereof. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.