FruitStand Marketplace Farm Agreement

(Standard Terms and Conditions for FruitStand Marketplace)

Welcome to the FruitStand Marketplace!

This Marketplace Farm Agreement (“Agreement”) consists of (1) these Standard Terms and Conditions for FruitStand Marketplace (“Terms and Conditions”) and (2) all FruitStand.com polices and guidelines that may be issued to our partner Farms from time to time, (together, the “Policies”), which are incorporated by reference.

Any Farm (“Farm” or “you”) that wants to sell produce (fruit, vegetables, etc.) (“Produce”) in the FruitStand.com FruitStand Marketplace (“FruitStand Marketplace”) through the FruitStand.com site (“FruitStand.com Site” or “Site”), use any e-commerce services, order processing, customer services or other services related to the FruitStand Marketplace provided by FruitStand (“FruitStand Services”), or use any platform, portal, web service, application, interface, or other tool provided by or for FruitStand in connection with the FruitStand Marketplace (“FruitStand Tools”), must accept the terms of this Agreement without change.

By offering any Produce for sale on FruitStand.com Site, using any of the FruitStand Services, or using any of the FruitStand Tools, you agree to be bound by all terms and conditions of this Agreement (including the Policies), as this Agreement (or the Policies) may be updated from time to time in accordance with this Agreement. This Agreement is a legally binding contract between you and FruitStand, LLC (“FruitStand”). You further represent and warrant that you are registering with the FruitStand Marketplace on behalf of a Farm and that you have the requisite right, power, and authority to enter into this Agreement on behalf of the Farm you register with the FruitStand Marketplace.

FruitStand may change these Terms and Conditions or the Policies at any time in its sole discretion. The changes will be effective upon posting of such updates on the FruitStand.com Site or other web-based interface or communication. You are responsible for reviewing such postings and any applicable changes. Your continued participation in the Marketplace Program, including offering any Produce for sale on the FruitStand Marketplace, using any of the FruitStand Services, or using any of the FruitStand Tools constitutes your acceptance of such changes. If you do not agree to any posted changes, do not continue to use the FruitStand Marketplace, the FruitStand.com Site, the FruitStand Services or the FruitStand Tools.

1. FruitStand’s Role. Subject to your compliance with the terms and conditions of this Agreement, FruitStand hereby grants you a non-exclusive, limited, license to access and use the FruitStand.com Site, FruitStand Marketplace, FruitStand Tools and FruitStand Services to enable you to sell your Produce to third party buyers (“Customers”). You may only sell Produce you have the legal right to sell and must do so consistent with the terms and conditions of this Agreement. FruitStand provides the e-commerce platform, advertising and marketing for FruitStand Farm offerings, Farm Finder, collection of payment and customer service. You will be responsible for determining the Produce offerings, the price and fulfillment of Customer Orders (defined below). The Farm will choose what Produce to include in each of the box sizes offered. You acknowledge and agree that FruitStand may contract with third party service providers to provide FruitStand Services, management software and other services for the FruitStand Marketplace.

2. General Product Policy

(a) Abiding by the Law. You will (and you represent and warrant that you will) comply with all applicable “Laws” (meaning all applicable laws, regulations, legal requirements, and generally accepted industry standards and self-regulatory principles), including Laws related to marketing, packaging, consumer and product safety, product testing, labeling, pricing and packaging, in connection with this Agreement; your use of the FruitStand Services, and the FruitStand Tools, and your marketing, promotion, offering for sale, or selling any Produce through the FruitStand Marketplace on the FruitStand.com Site.

(b) U.S. Only. You will only offer Produce for sale on the FruitStand.com Site that may legally be sold and shipped in all U.S. states. You may not offer to sell or sell Produce on the FruitStand.com Site outside of the U.S. You represent and warrant that your principal place of business is in the United States and you will not conduct any operations relating to this Agreement from outside the United States.

3. Farm Content and Trademarks. You may provide certain material and images related to the Farm and other content (together, the “Farm Content”) in connection with this Agreement. You represent and warrant that all Farm Content you provide is truthful and accurate and is in compliance with all Policies and that you will not use Farm Content to redirect Customers or other end users of the FruitStand.com Site to any other sales channels. You hereby grant FruitStand and its affiliates, and its service providers and marketing partners, a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license (a) to publish, reproduce, display, distribute, transmit and otherwise use the Farm’s name, trademarks, service marks, and logos (“Farm Marks”), and (b) to publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise use and commercially exploit all Farm Content, in each case in connection with the FruitStand Marketplace (including without limitation advertising, marketing and promoting the Farm, Produce, or the Marketplace through the FruitStand.com Site).

4. Collection of Payment

(a) Appointment of FruitStand as Limited Collection Agent. You appoint FruitStand as its agent for the limited purpose of receiving, holding, and settling payments to you. FruitStand will settle payments that are actually received by FruitStand to each Farm, less any amounts owed to FruitStand and subject to these Terms and Conditions. Each Farm agrees that a Customer payment received by FruitStand, on behalf of a Farm, satisfies the Customer's obligations to make payment to the Farm, regardless of whether FruitStand actually settles such payment to the Farm. If FruitStand does not settle any such payments as described in these Terms and Conditions to a Farm, such Farm will have recourse only against FruitStand and not the Customer.

(b) Payment. Payments to the Farm will be remitted through an authorized payment system. Customer disputes, chargebacks or other claims may delay payment and payments may be withheld in the event that FruitStand has a reasonable basis to believe that a Farm has breached its obligations under this Agreement or has not complied with these Terms and Conditions. You agree that FruitStand will receive a certain percentage of the price charged to the Customer for FruitStand Marketplace Services. You agree to be paid for Produce sales, less refunds, within thirty (30) days of the end of each calendar month.

5. Customer Service Order Processing, Fulfillment, Shipping and Recalls

(a) Order Process. Customers will place orders (“Orders”) using the FruitStand.com Site’s checkout system and FruitStand will collect all proceeds from such transactions on your behalf. You hereby authorize FruitStand as your authorized agent to accept payment from Customers for remittance to you for the Produce, and as such when a Customer pays FruitStand, it shall be construed as if the Customer will be paying you. The Customer shall never be at risk of loss of funds upon payment to FruitStand on your behalf. FruitStand will electronically transmit to you the Order information that FruitStand determines is necessary to fulfill each Order (the “Transaction Information”). FruitStand will send an automated email message to each Customer confirming receipt of an Order.

(b) Order Fulfillment. Once FruitStand has transmitted an Order to you, you will, at your own expense, be solely responsible for, and bear all liability for, the fulfillment of the Order, including without limitation, packaging and shipping Produce. If you cancel any Order, you will promptly provide Customers with email notification of such cancellation in accordance with applicable Law (including, without limitation, the Federal Trade Commission (“FTC”) “Mail or Telephone Order Merchandise Rule”). You will include information requested by FruitStand, including the Order number, in the cancellation email sent to Customers.

(c) Shipping Options. You are responsible for properly specifying shipping options for all Produce through the FruitStand Marketplace. You may offer shipping, pick-up or local delivery.

(d) Shipping Process. You will be responsible for shipping all Produce purchased by Customers in accordance within the time frame advertised or the processing time specified for such Produce through the FruitStand Tools. You agree to ship all Orders received by 5:00 pm PST the previous day by 5:00 pm PST the next day on Tuesdays and Fridays (Shipping Days). You will be responsible for all shipping charges and for any costs or charges related to shipping-related problems, including without limitation, damaged or lost Produce, late shipments or misdelivery.

(e) Contact and Review. You shall be responsible for providing FruitStand with a Farm member that will be available to answer questions and address Customer issues or concerns. Such Farm member must respond to the FruitStand Marketplace customer service team within 24 hours. Please make FruitStand aware of any discrepancies in Orders or shipping or other related Customer information.

(f) Risk of Fraud or Loss. Please note that, though FruitStand will bear the risk of credit card fraud occurring in connection with an Order, you will bear all other risk of fraud or loss and all costs related thereto. For all credit card chargebacks for which you bear the risk, FruitStand will offset such chargeback amounts against amounts otherwise owed you, or send you an invoice and you will pay such invoice within 30 days of receipt. However, notwithstanding the foregoing, FruitStand will not bear the risk of credit card fraud in connection with any Produce that is not shipped by you to the shipping address specified in the Order as provided through the FruitStand Tool, and you will be responsible for all costs related to such credit card fraud under these circumstances.

(g) Recalls. FruitStand will have no responsibility or liability for any recalls of Produce sold through the FruitStand.com Site. You are solely responsible for any non-conformity or defect in, or any public or private recall of Produce. You will promptly remove any recalled Produce from the FruitStand.com Site. You will notify FruitStand immediately (no less than within 24 hours) of becoming aware of the recall and will promptly provide FruitStand with all information reasonably requested regarding the recall.

6. Reporting and Audit Rights

(a) Reporting. You will, within a reasonable period of time (not to exceed 30 days) following request from FruitStand, provide FruitStand with any reports, information or other documentation relating to your compliance with this Agreement and applicable Law reasonably requested by FruitStand.

(b) Audit Rights. You will keep accurate and complete books, records and accounts related to FruitStand Marketplace Orders, and will allow FruitStand, or its duly authorized representative, the right, upon not less than 5 business days prior written notice, during the term of this Agreement and for 2 years after its termination or expiration, to conduct, during regular business hours, full and independent audits and investigations of all information, books, records and accounts reasonably required by FruitStand to confirm your compliance with the terms of this Agreement and applicable Law.

7. Ownership and Use Rights

(a) Ownership of FruitStand Marketplace. FruitStand, its affiliates, and their service providers and licensors retain all right, title and interest (including all Intellectual Property Rights) in and to (i) the FruitStand Marketplace, the FruitStand.com Site, the FruitStand Tools, and the FruitStand Services, (ii) all data received from you in connection with the foregoing, and (iii) any of their confidential or proprietary information. Except for a limited right for you to access the FruitStand.com Site and FruitStand Tools made available to you in accordance with and subject to all the terms and conditions of this Agreement, FruitStand, its affiliates, and their service providers and licensors, as applicable, retain all rights in the foregoing and grant no other rights or licenses (whether by implication, estoppel, or otherwise) under any of their Intellectual Property Rights under or in connection with this Agreement.

(b) Use of Customer Data. All data collected with respect to a Customer (“Customer Data”) and such Customer’s Order shall be subject to the FruitStand Privacy Policy. You may only use Customer Data to further the transaction, including the Customer Order and shipping or delivery, as the case may be. FruitStand owns all Customer lists containing Customer Data. You will not (i) disclose or convey any Customer Data to any third party (except as necessary for you to perform your obligations under the Agreement); (ii) use any Customer Data for any marketing or promotional purposes other than as permitted under this Agreement; or (iii) use any Customer Data gained through the FruitStand Marketplace to directly solicit such Customers through any other channels.

8. Termination or Suspension; Survival. FruitStand may terminate this Agreement with you at any time in its sole discretion without notice. FruitStand may also immediately terminate or suspend your participation in the FruitStand Marketplace, your access to FruitStand Services or the FruitStand Tools, or remove your offerings at any time in its sole discretion if you violate the terms of this Agreement. Sections 2, 3, 6, 7, 9, 10, 11, and 12, shall survive the expiration or termination of this Agreement for any reason.

9. Indemnification. You will defend (at FruitStand’s option), indemnify and hold FruitStand and its affiliates (and their respective employees, shareholders, directors, agents and representatives) harmless from and against any and all claims, costs, losses, damages (including any indirect, special incidental, or consequential damages), judgments, fines, penalties, penalties, interest, costs, and expenses (including reasonable attorneys' fees and costs of any investigation, defense, and settlement) arising out of any Claims that arise out of or relate to: (i) any breach (or alleged acts or omissions that if true would be a breach) of any of your representations, warranties, or obligations set forth in this Agreement; or (ii) the Produce, Farm Content, the advertisement, offer, sale or return of any Produce, any actual or alleged infringement of any Intellectual Property Rights by you, or the Farm Content, or any taxes owed by you, or the collection, payment or failure to collect or pay such taxes. You will provide all cooperation, documentation, and information reasonably requested by FruitStand in connection with any Claim. FruitStand will have the right, but not the obligation, to control all defense and settlement of Claims. As used herein, “Claim” means any action, allegation, claim, demand, lawsuit, legal proceeding, administrative or other proceedings or litigation, inquiry, audit, or investigation.

10. Limitation of Liability

(a) No Consequential Damages. IN NO EVENT SHALL FRUITSTAND OR ITS AFFILIATES BE LIABLE TO YOU OR ANY THIRD PARTY UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (A) LOST PROFITS, LOST REVENUE, LOSS OF BUSINESS OR LOSS OF DATA, (B) EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR THE LIKE, OR (C) FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER FRUITSTAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b) Monetary Cap. IN NO EVENT SHALL FRUITSTAND’S OR ITS AFFILIATES’ AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY CLAIMS, COSTS, LOSSES, DAMAGES (INCLUDING ANY INDIRECT, SPECIAL INCIDENTAL, OR CONSEQUENTIAL DAMAGES), JUDGMENTS, FINES, PENALTIES, PENALTIES, INTEREST, COSTS, AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND COSTS OF ANY INVESTIGATION, DEFENSE, AND SETTLEMENT) FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY, EXCEED THE TOTAL REVENUES RECEIVED BY FRUITSTAND FROM SALES OF YOUR PRODUCE OVER THE FRUITSTAND.COM SITE PURSUANT TO THIS AGREEMENT DURING THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. THE LIMITATIONS OF LIABILITY REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES.

(c) Survival of Limitations. THE LIMITATIONS SPECIFIED IN THIS SECTION 10 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

11. No Warranties. THE FRUITSTAND MARKETPLACE, THE FRUITSTAND.COM SITE, THE FRUITSTAND SERVICES, AND THE FRUITSTAND TOOLS ARE PROVIDED ON AN "AS IS" BASIS. NEITHER FRUITSTAND NOR ITS AFFILIATES MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (a) THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT; (b) THAT THE FRUITSTAND MARKETPLACE, THE FRUITSTAND.COM SITE, THE FRUITSTAND SERVICES OR FRUITSTAND TOOLS WILL MEET YOUR REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (c) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, FRUITSTAND AND ITS AFFILIATES DISCLAIM ANY AND ALL SUCH WARRANTIES.

12. Miscellaneous

(a) Independent Contractors. You and FruitStand are acting hereunder as independent contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

(b) Governing Law. This Agreement is governed by and will be construed in accordance with the laws of the State of California without regard to its principles of conflicts of law. You agree to exclusive jurisdiction of the federal and state courts located in Los Angeles County, California, and waive any jurisdictional, venue or inconvenient forum objections to such courts.

(c) Assignment. You may not assign this Agreement or any of your rights or obligations hereunder without FruitStand’s prior written consent.

(d) Publicity. Except as otherwise expressly set forth to the contrary in this Agreement, you will not use the name, logo, trademarks or trade names of FruitStand or any of their affiliates or otherwise, directly or indirectly, refer to FruitStand of any of its affiliates in any publicity release, promotional material, customer or partner list, advertising, marketing or business-generating effort, whether written or oral, without the prior written consent of FruitStand.

(e) Confidentiality. You may have entered a separate confidentiality or non-disclosure agreement with FruitStand. This Agreement does not limit your obligations under that agreement. In addition, you will treat as confidential, and may not disclose to any third party, any information or communication from, on behalf of, or with FruitStand regarding your compliance with this Agreement.

(f) Severability. In the event that any provision of this Agreement is determined by a court of competent jurisdiction to be illegal, invalid or otherwise unenforceable, such provision (or part thereof) shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be deleted from this Agreement, while the remainder of this Agreement shall continue in full force and remain in effect according to its stated terms and conditions.

(g) Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

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