This Business Purchase Agreement (“Agreement”) is entered into by and between Factor and Business Purchaser (each a “Party” and collectively “Parties”), as identified on the applicable Statement of Work (“SOW”) (or if there is no applicable SOW then “you” are Business Purchaser), and governs the sale of products provided by Factor to Business Purchaser. This Agreement is made effective as of the date the applicable SOW is signed by Business Purchaser, or the date you agreed to these terms and conditions by using our online portal (“Effective Date”).
WHEREAS, Factor is an e-commerce provider of chef-prepared meals (“Products”), delivered to customers’ homes throughout the United States and shall be referred to as “Factor” throughout this Agreement and any applicable SOW; and
WHEREAS, Business Purchaser is the entity receiving Products from Factor, and wishes to offer employees, volunteers, and other end users the Products from Factor (each an “End Recipient”), and shall be referred to as “Business Purchaser” throughout this Agreement and any applicable SOW; and
NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Sale of Products.
On the terms and subject to the conditions set forth in this Agreement, Factor shall sell to Business Purchaser, and Business Purchaser shall purchase from Factor, the Products for the fees described in one or more SOW’s to be entered into between Factor and Business Purchaser from time to time during the Term (as defined below). If Business Purchaser signs up online directly, a SOW will not be applicable. Subject to compliance with applicable laws, Products provided to Business Purchaser may include Factor’s standard advertising inserts. Each SOW shall: (i) refer to and incorporate by reference the terms and conditions set forth in this Agreement; (ii) constitute a separate and distinct agreement for the purchase of Products between Factor and Business Purchaser; and (iii) be in writing and duly executed by an authorized representative of each of Factor and Business Purchaser. In the event of a conflict between this Agreement and any SOW, the terms and conditions of this Agreement shall control, unless the applicable SOW expressly and specifically states otherwise and clearly identifies such conflicting terms and/or verbiage.
2. Orders and Shipping.
Business Purchaser agrees that all orders shall be placed on Factor’s online ordering portal. Business Purchaser is solely responsible for placing its orders on the portal each week, and Factor will in no way be liable to Business Purchaser for failure to place its orders in a timely manner. Business Purchaser may request its account manager at Factor to place its orders on behalf of Business Purchaser. If Business Purchaser makes this request, Business Purchaser shall provide to its account manager its meals selection for the week by the ordering deadline (which shall be provided by the account manager). Factor will then ship meals provided for that week in the selected category, if applicable, but cannot guarantee shipment of specific meals for the week, and Factor shall not be liable to Business Purchaser for meal selection as long as the meals provided are within the category requested by Business Purchaser. Factor may accept or deny Business Purchaser’s request to place its orders on behalf of Business Purchaser at Factor’s sole and absolute discretion. Business Purchaser shall distribute the Products to End Recipients before the expiration date provided on the Products’ labels.
Factor agrees to ship Products to Business Purchaser at the designated address provided by the Business Purchaser and shall not be liable for any failed delivery based on incorrect addresses provided by Business Purchaser. Factor agrees to work in good faith to correct any errors resulting from the foregoing, provided that Factor shall not incur any additional costs or expenses in correction of Business Partner’s error. If Business Purchaser changes, adds, or deletes a delivery address (either a corporate address or an End Recipient address), Business Purchaser shall provide Factor with at least thirty (30) days’ prior notice of the address change, addition, or deletion. Factor retains the right to refuse delivery service to any address at any time and for any reason. Business Purchaser understands that delivery days of the week may vary by geographical location and holiday schedule. Business Purchaser understands that Factor may use third-party delivery services to fulfill certain of its obligations.
Any damages or losses incurred by Business Purchaser due to delivery or meal-related issues credited back to Business Purchaser on the next monthly invoice or refunded back to the credit card on file. To receive a credit, Business Purchaser must notify Factor of any damages, losses, or issues within ten (10) days of Business Purchaser becoming aware of the issue by emailing Factor at business-support@factor75.com.
3. Fees and Payment Terms.
Business Purchaser shall prepay for all Products via credit card at the time of ordering and prior to any shipment, unless offered payment terms as described herein. Upon receipt of full payment, Factor shall issue the Products to Business Purchaser in the amounts and for the values as set forth in the applicable SOW. If Business Purchaser is offered payment terms, Business Purchaser shall pay for Products in accordance with the specified payment terms provided on the SOW. All Payments shall be made in accordance with the details provided on the invoice and the following shall apply: (i) all late payments will accrue interest at a rate of 1.5% per 30 day period; (ii) If Business Purchaser fails to pay any amounts owed under this Agreement within five (5) days of the applicable due date, in addition to the amounts due thereunder, Business Purchaser shall be liable for any and all costs incurred by Factor to collect such amounts including, but not limited to, attorneys’ fees and collection agency fees regardless of whether or not a lawsuit is commenced as part of the collection process; (iii) Business Purchaser shall also be responsible for any and all costs, expenses and attorneys’ fees incurred in filing suit, mediation, appellate, bankruptcy and post judgment proceedings except to the extent such costs, fees or expenses are prohibited by law; and (iv) all overdue amounts as well as costs of collection shall bear the highest interest rate permitted by applicable law until paid.
4. Taxes and Legal Compliance.
Business Purchaser shall be responsible for the payment of all sales and use taxes associated with its purchase of the Products. Any taxes due and payable on Products distributed to an End Recipient shall be Business Purchaser's sole responsibility. Business Purchaser acknowledges that Factor does not provide tax, legal or compliance advice and that it is responsible for making its own assessment of any legal and regulatory requirements and whether the proposed distribution or use of the Products meets any legal requirements. Any assistance provided by Factor to Business Purchaser does not limit Business Purchaser’s responsibilities or obligations under this Agreement and does not create any cause of action against Factor.
5. Term and Termination.
This Agreement shall commence on the Effective Date and shall continue until either Party provides at least ten (10) days’ written notice of termination without cause to the other Party (the “Term”), or unless earlier terminated as provided for herein. If Business Purchaser terminates this Agreement without cause as set forth above, Business Purchaser shall be responsible to pay Factor the full value for all weekly deliveries during the ten (10) day notice period. Factor may terminate this Agreement as set forth above without cost or liability.
In addition, either Party may terminate this Agreement or any SOW with fourteen (14) days’ written notice to the other Party if (i) the other Party has not performed or complied with any of the material terms in this Agreement, the company Terms and Conditions (as defined below), or the applicable SOW, and such breach cannot be cured in fourteen (14) days; (ii) the other Party becomes insolvent, is generally unable to pay, or fails to pay, its debts as they become due, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (iii) if a Force Majeure Event (defined below) affecting either Party's performance of this Agreement continues for more than fifteen (15) consecutive business days.
Either Party may immediately terminate or suspend the Agreement (including any SOW), if it reasonably believes (a) that any of the Products, are being, have been, or may be used for fraudulent, illegal, or unauthorized activities; or (b) that the distribution of Products would violate applicable law, rules or regulations or present a risk to the Factor brand, reputation, or goodwill or a risk to the health of End Recipients.
Should Business Purchaser have access to or control over any Products, then Business Purchaser shall ensure that all such Products are properly secured and stored in a temperature-controlled environment, and upon termination of the Agreement, Business Purchaser will immediately cease all distribution of Products. To the extent that Business Purchaser has remaining inventory of Products, if Factor terminated without cause, Business Purchaser may distribute remaining inventory of Products to originally intended recipients in accordance with this Agreement for up to three (3) days, or such longer period as permitted by Factor in its sole discretion. After ten (10) business days from the effective date of termination of this Agreement, all rights granted to Business Purchaser, including access to the online ordering portal if applicable, will terminate and Business Purchaser will cease all uses of the Factor trademarks and logos in connection with this Agreement.
Any termination or expiration of this Agreement shall not terminate or affect the obligations of the Parties under any outstanding SOW, and such SOW shall continue in full force and effect and shall continue to be governed by the terms of this Agreement until their expiration or completion, or unless and until any such SOW is terminated pursuant to this Agreement.
6. Intellectual Property.
“Factor IP” means any and all registered and unregistered rights granted, applied for, comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; and (iv) Product labels, branding, and artwork; however arising, in connection with Factor’s Products. Factor grants to Business Purchaser a fully paid-up, non-exclusive, non-transferable, non-sublicensable, revocable, non-assignable right and limited license during the Term to use the Factor IP solely in connection with the distribution of the Products. Except as expressly provided in the Agreement, Business Purchaser may not use any Factor IP, and all goodwill arising out of Business Purchaser’s use of the Factor IP will inure to the sole benefit of Factor. For clarity, Factor IP shall not be used in any Business Purchaser’s advertising, publicity, or marketing communications, including Factor’s name, trademarks, or any other intellectual property, or any subsidiaries intellectual property, without Factor’s written permission in each instance.
7. Warranties.
Each Party represents and warrants to the other that as of the date hereof such Party: (i) is duly organized and validly existing under the laws of its jurisdiction of organization or incorporation; (ii) is in good standing under such laws; (iii) is in compliance with and shall comply with all applicable laws, regulations, and ordinances (including, in the case of Factor, all applicable laws, regulations, and ordinances related to food safety, packaging, and labeling, and in the case of Business Purchaser, all applicable laws, regulations and ordinances related to privacy); (iv) has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement;
(v) has full power and authority to execute, deliver and perform its obligations under this Agreement; and (vi) such Party's execution, delivery, and performance of this Agreement will not result in a breach of any provision of (A) such Party's organizational documents, (B) any statute, law, order, rule or regulation of any governmental authority applicable to such Party, or (C) any contract, agreement, understanding or other instrument by which such Party may be bound. Notwithstanding anything to the contrary above, Factor disclaims any and all warranties as they may relate to any End Recipient’s allergies or food sensitivities. Factor shall in no way be responsible or liable for any damages or losses that result from any End Recipient’s food allergies or food sensitivities. Factor does not make any claims, here or anywhere else, that any of its food products or meals are allergen-free (including but not limited to, nut-free, gluten-free, sesame-free, and/or coconut-free), as Factor’s facilities use and contain allergens. By signing this Agreement, Business Purchaser agrees and acknowledges that its End Recipients have been informed of this disclaimer and that all of its End Recipients have agreed to assume full responsibility for checking all food labels and packaging and knowing what food products an End Recipient may be allergic or sensitive.
Business Purchaser further represents and warrants to Factor that: (i) all End Recipients provided with Factor Products will be governed by Factor’s Terms and Conditions and Privacy Policy, as provided herein; (ii) in the event of a food safety notification by Factor, Business Purchaser shall immediately provide Factor with all End Recipients’ contact information (including, without limitation, email address and phone number), no later than twenty-four (24) hours of the request; (iii) all information regarding End Recipients provided to Factor shall be sent using industry standard encryption; (iv) Business Purchaser has the right to share all information regarding End Recipients provided to Factor hereunder; and (v) Business Purchaser shall not attempt to resell or offer Products for sale.
THE FOREGOING WARRANTIES ARE THE PARTY’S ONLY WARRANTIES CONCERNING THE PRODUCTS OR THIS AGREEMENT, AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE.
8. Indemnification.
Business Purchaser shall indemnify, defend and hold harmless Factor and its parent company, affiliates and subsidiaries, and each of their officers, directors, employees, and agents, against any and all losses, damages, liabilities, 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 and the cost of pursuing any insurance providers, arising out of or occurring in connection with Business Purchaser's: (i) negligence or willful misconduct, or (ii) actual or anticipated breach of this Agreement (including any SOW).
Factor shall indemnify, defend and hold harmless Business Purchaser and its parent company, officers, directors, employees, agents, and affiliates against any and all losses, damages, liabilities, 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 and the cost of pursuing any insurance providers, arising out of or occurring in connection with Factor’s: (i) negligence or willful misconduct, or (ii) actual breach of this Agreement (including any SOW).
A Party claiming indemnification under this Agreement must (i) promptly notify the other Party in writing of any demand letter, summons, complaint, or other notice of proceeding; (ii) allow the indemnifying Party to control the settlement and/or defense of any such matter, including selection of counsel (except that the indemnifying Party shall not settle any matter if such settlement requires the indemnified Party to pay any sums of money or perform (or refrain from performing) any acts without the written consent of the indemnified Party); and (iii) reasonably cooperate in the settlement and/or defense of any such matter. In no event shall either Party be required to indemnify the other Party for the other Party’s own negligence or intentional misconduct.
9. Confidential Information.
All non-public, confidential, or proprietary information of the Parties, including, but not limited to, specifications, samples, designs, plans, drawings, documents, data, business operations, Personal Information, customer lists, pricing, discounts, or rebates, disclosed by either Party, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement (“Confidential Information”) is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by the disclosing Party in writing. Upon the disclosing Party’s request, the receiving Party shall promptly return all Confidential Information of the disclosing Party. Either Party shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; or (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party. If Confidential Information is required to be disclosed pursuant to an order or requirement of a court, administrative agency or governmental body, the receiving Party shall promptly notify the disclosing Party of the facts thereof to enable the disclosing Party to seek a protective order or otherwise prevent or restrict disclosure of such information, and upon request of the disclosing Party, shall reasonably cooperate with the disclosing Party to obtain such protective order or other appropriate remedy. In the event that no such protective order or other remedy is obtained, or the disclosing Party waives compliance (in whole or in part) with the terms and conditions of this Agreement, the receiving Party shall disclose only that portion of the Confidential Information that is required to be disclosed and shall use all reasonable efforts to ensure that all Confidential Information that is disclosed shall be accorded confidential treatment.
10. Entire Agreement/Amendments.
This Agreement, including and together with any related SOWs, and attachments constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter. No amendment to, or modification of, this Agreement or any SOW is effective unless it is in writing and signed by each Party.
11. Survival.
Subject to the limitations and other provisions of this Agreement, the: (i) representations and warranties of the Parties; (ii) indemnification obligation of the Parties; and (iii) confidentiality obligations of the Parties contained herein shall survive the expiration or earlier termination of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
12. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address set forth on an applicable SOW (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all Notices must be delivered by electronic mail, with a copy of the notice also sent by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving Party; and (b) if the Party giving the Notice has complied with the requirements of this Section.
13. Severability.
If any term or provision of this Agreement or any SOW is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or such SOW or invalidate or render unenforceable such term or provision in any other jurisdiction.
14. Waiver.
No waiver by any Party of any of the provisions of this Agreement or any SOW shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement or any SOW shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Force Majeure.
Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include, without limitation, natural disasters, pandemics, embargoes, explosions, riots, wars, or acts of terrorism) (each, a "Force Majeure Event"). Each Party shall give the other Party prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event.
16. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, or employment or between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
17. Assignment.
The Parties shall not assign, transfer, subcontract or pledge any interest, rights or obligations under this Agreement, in whole or part, or delegate any rights hereunder, in whole or part, to any third parties without the prior written consent of the other Party. Any purported assignment or delegation in violation of this Section shall be null and void and shall be deemed to be a material breach. No assignment or delegation shall relieve that Party of any of its obligations hereunder. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
18. Choice of Law/Jurisdiction.
This Agreement and all related documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and shall be construed in accordance with, the laws of the State of New York, without giving effect to the conflict of law provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. The Parties agree to submit to the personal and exclusive jurisdiction of the state and federal courts located in the State of New York, New York County, for purposes of determining all disputes arising out of or relating to this Agreement and irrevocably waive any and all objections to venue or inconvenient forum in those courts.
19. Factor Terms and Conditions and Privacy Policy.
Business Purchaser is subject to Factor’s Privacy Policy found at https://www.factor75.com/privacy-policy, which shall be incorporated into this Agreement by reference. Factor may update the Factor Privacy Policy at any time without notice. Factor recommends that Business Purchaser check periodically for changes.
20. Publicity. By signing this Agreement, Business Purchaser grants Factor permission to use in advertising, publicity, or marketing communications Business Purchaser’s name, trademarks, or other intellectual property for promotional purposes.
21. Modifications.
Factor may add, modify, or delete any terms and/or conditions contained in this Agreement at any time. Factor will provide Business Purchaser with advance notice of all changes to the Agreement that are materially adverse to Business Purchaser stating the effective date on which the updated Agreement will become applicable. Factor may provide Business Purchaser with notice of non-material changes in its sole discretion. Business Purchaser’s continued acceptance of Products after the Agreement has been updated means that Business Purchaser has accepted the updated Agreement. If Business Purchaser refuses to accept the updated Agreement, Business Purchaser must pause deliveries as from the effective date of the updated Agreement until a new Agreement has been executed between the Parties.
22. Insurance.
Both Parties shall obtain and maintain the following insurance policies: (a) Workers Compensation insurance as required by law and Employer’s Liability with minimum limits of one million dollars ($1,000,000) per occurrence and disease for each employee and policy limit; and (b) Commercial General Liability insurance with minimum limits of two million dollars ($2,000,000) for each occurrence, including coverage for products liability and operations liability. All policies may be met with a combination of general liability and excess/umbrella policies and must be with carriers with an A- or better rating through Bests Cumulative Rating. The Parties shall each provide a copy of its certificate of insurance evidencing the above coverages to the other Party on a Party’s reasonable request.
23. Counterparts/Consent to Electronic Signatures.
This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. The Parties acknowledge that a signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.