STANDARD SERVICE TERMS FOR VENDORS
Welcome to Pod Foods and our Terms of Service for Vendors (these “Terms”)
1. DEFINED TERMS.
In addition to any terms defined elsewhere in this Agreement, as used in this Agreement, and unless indicated to the contrary herein, the following words shall have the following definitions:
A. “Warehouse” shall mean any warehouse contracted by Pod Foods for the holding of products on consignment.
B. “Retail Account” shall mean any individual store location of a Customer.
C. A “Region,” or collectively “Regions,” shall be defined as any geographic area serviced by one Pod Foods distribution center. Pod Foods distributes products in multiple Regions.
D. The “Territory” shall be all retail outlets to which Pod Foods is distributing at the time the Terms are accepted by Vendor.
2. ACCEPTING THE POD FOODS SERVICE TERMS
By using or accessing the Pod Foods website (“Site”) and/or the other domains, products, and/or content or services provided by Pod Foods Co. including without limitation the selection of distribution and warehousing services (collectively, the “Services”), Vendor, corporate parent and/or its representatives (collectively referenced herein as “Vendor” or “You”) agree to be bound by Pod Foods’s Terms. Details of Pod Foods’s general service offerings and pricing can be found on the Site and will be agreed to as part of Vendor’s account creation. Any non-standard, customized Vendor services and pricing will be negotiated and agreed to in writing signed by both parties.
3. MODIFICATIONS TO THE POD FOODS TERMS
Pod Foods reserves the right, in its sole discretion, to modify the Terms and conditions for the Services by providing notice to Vendor that the Terms have changed, either by email, or through the Services (such as through a notification in the Vendor’s account dashboard). Vendor is responsible for reviewing and becoming familiar with any modifications to the Terms. Modifications are effective when posted, and Vendor’s use of the Services following any such posted modification and notice of same constitutes Vendor’s acceptance of the Terms and conditions as modified.
4. USE OF THE SERVICES
RIGHT TO USE SERVICES SUBJECT TO CONTINUING VENDOR APPROVAL: Prior to using the Services, you must be approved as a Vendor based upon completion of the Pod Foods Vendor Checklist, submission of appropriate supporting documentation identified on the Pod Foods Vendor Checklist, and, if deemed applicable in the sole and exclusive discretion of Pod Foods, submission of a properly executed Sanitary Transport Agreement. Once approved, Pod Foods grants Vendor a nonexclusive, non-transferable, right to use the Services. Pod Foods does not transfer any right, title, or ownership interest of any kind in the Services. Vendor has an affirmative duty to ensure that the information and documents provided to Pod Foods are up to date, and accurately reflect the information for products. At any time, Vendor may be asked to revise, update, or resubmit the Pod Foods Vendor Checklist and any appropriate supporting documentation to requalify as a Vendor. Failure to timely submit the Pod Foods Vendor Checklist, supporting documents, or Sanitary Transport Agreement; making any misrepresentation or false statement in the Vendor Checklist, supporting documents, or Sanitary Transport Agreement; failure to timely update or submit new documentation due to changes in the products; or in Pod Food’s sole and exclusive discretion, failure to submit adequate supporting documents requested by Pod Foods personnel may result in the immediate termination of the right to use the Services.
SERVICE CHANGES AND LIMITATIONS: The Services currently consist of, but are not limited to, the opportunity to list products produced by the Vendor, for sale to retail, wholesale, and other customers of Pod Foods (“Customers”) through the Site, and depending on the Vendor Services package chosen, the Vendor may also access distribution services and warehousing on consignment. The Services may change frequently, and their form and functionality may change without prior notice to Vendor. Pod Foods retains the right to create limits on and related to use of the Services in its sole discretion at any time with or without notice or liability. Pod Foods may also impose limits on certain Services or aspects of those Services or restrict Vendor’s access to parts or all of the Services without notice or liability. Pod Foods may change, suspend, or discontinue any or all of the Services at any time, including the availability of any service, feature, database, or content (“Pod Foods Content”). Pod Foods may also suspend accounts (as defined below) at any time, in its sole discretion.
MAINTENANCE AND SUPPORT: Pod Foods is solely responsible for providing any maintenance and support services with respect to the Services, with the exception of Warehouse consignment services, or as required under applicable law. Any questions, complaints or claims with respect to the Services should be directed to Pod Foods Vendor Service at the following email address: firstname.lastname@example.org.
LIMITATIONS ON AUTOMATED USE: Vendor may not do any of the following while accessing or using the Services: (a) access, tamper with, or use non-public areas of the Services, or the computer or delivery systems of Pod Foods and/or its service providers; (b) probe, scan, or test any system or network (particularly for vulnerabilities), or otherwise attempt to breach or circumvent any security or authentication measures; (c) access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Pod Foods (and only pursuant to those terms and conditions), unless Customer has been specifically allowed to do so in a separate agreement with Pod Foods, or unless permitted by Pod Foods’s robots.txt file or other robot exclusion mechanisms; (d) scrape the Services, and particularly scrape Pod Foods Content from the Services, without express prior written consent from Pod Foods; (e) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code; (f) use the Services to send altered, deceptive, or false source-identifying information, including without limitation by forging TCP-IP packet headers or e-mail headers; or (g) interfere with, or disrupt, (or attempt to do so), the access of any end-user, other licensee host or network, including, without limitation, by sending a virus to, spamming, or overloading the Services, or by scripted use of the Services in such a manner as to interfere with or create an undue burden on the Services.
5. POD FOODS SERVICED AND GENERATED BUSINESS Vendor agrees that during the Term of this agreement, Pod Foods shall have the sole right to distribute its products to Retail Accounts serviced and generated by Pod Foods, regardless of whether Pod Foods originally generated the Retail Account, or if Vendor transferred account to Pod Foods for servicing. If Vendor intends to transfer any Retail Account from Pod Foods such that another distributor would service the account during the Term, Vendor must provide 60 days written notice. Vendor recognizes that Pod Foods invests considerable resources in generating and servicing Retail Accounts, with the anticipation of continued and growing Vendor business with such Retail Accounts. Because the expanding and growing nature of such business is difficult to estimate, Vendor acknowledges that the following provisions are a fair and reasonable pre-estimate of the harm and damages likely to be incurred to Pod Foods because of its breach of this Section 5.
A. REGIONAL LIQUIDATED DAMAGES
In the event that Vendor should breach these Terms in any Region or Regions located within the Territory, Pod Foods may immediately collect “Regional Liquidated Damages,” as calculated in accordance with the following formula:
Regional Liquidated Damages = R * 2
Where, R = the highest total commission earned by Pod Foods from the sale of all Vendor products in the Region or Regions in which Section 5 is breached during one calendar month.
Pod Foods shall be permitted to collect Regional Liquidated Damages immediately upon (a) the breach of Section 5 within a Region or Regions by Vendor without 60 days’ notice (as required by Section 20 of these Terms) or (b) discovery of actual termination of actual breach of Section 5 within a Region or Regions by Pod Foods and the provision of written notice to Vendor.
B. TOTAL LIQUIDATED DAMAGES
Pod Foods shall be permitted to collect “Total Liquidated Damages” immediately upon the termination of the Terms by Vendor without 60 days notice (as required by Section 20 of these Terms) and the provision of written notice to Vendor, as a payment in the amount calculated in accordance with the following formula:
Total Liquidated Damages = T * 2
Where, T = the highest total commission earned by Pod Foods from the sale of all Vendor products in the Territory during one calendar month.
C. CUMULATIVE LIQUIDATED DAMAGES
In the event of a breach of Section 5 in multiple Regions at different times during the Term, or later termination of these Terms, nothing within this Section 5 shall prohibit Pod Foods from exercising its ability to collect additional Regional Liquidated Damages for the new loss of exclusivity or any Total Liquidated Damages under Section 5.B, less any Regional Liquidated Damages due and owing to Pod Foods pursuant to this Section 5.A.
6. POD PLUS VENDORS From time to time, and upon written request of the Vendor to email@example.com and subject to the sole and exclusive discretion of Pod Foods, certain Vendors may be granted Pod Plus Vendor Status. Pod Plus Vendor Status accords increased opportunities for exposure to “National Accounts” (retail accounts that span two or more Regions). To be eligible for Pod Plus Vendor Status, a Vendor must be able to service National Accounts in all regions in which the National Account is present. If Vendor cannot service a National Account in all regions, Pod Foods may choose not to grant Pod Plus Vendor Status, or revoke Pod Plus Vendor Status immediately upon written notice to Vendor.
7. INVENTORY REPLENISHMENT Upon the written request of Pod Foods, Vendor must replenish inventory in a timely manner. Failure to timely replenish inventory may result in termination of these Terms by Pod Foods, consistent with Section 20 of these Terms.
8. REGISTRATION, POD FOODS URLS, SECURITY, PRIVACY
As a condition to using certain of the Services, Vendor may be required to create an account and select a password and Pod Foods username (collectively referred to as “User Account”). A User Account encompasses enterprise admin accounts as well as any enterprise individual user accounts. Vendor should provide Pod Foods with accurate, complete, and updated registration information, particularly Vendor’s e-mail address. Failure of Vendor to maintain accurate, up to date information in its User Account profile may result in suspension of Vendor’s User Account. Vendor agrees that in forming its User Account, it shall not select or use a name of another person or entity with the intent to impersonate that person or entity or with the intent to otherwise cause confusion as to the origin or provenance of Vendor’s Account. Pod Foods reserves the right to refuse registration of, cancel, or modify a User Account in its sole discretion.
A. ACCESS AND PASSWORDS: As part of the User Account creation process for the Services, Vendor has selected or been assigned a particular password and Pod Foods ID in accordance with Pod Foods’s password and Pod Foods ID guidelines. If Vendor loses its password, please use the password recover feature in the Application.
VENDOR AGREES THAT IT IS THE ONLY VENDOR ENTITLED TO ACCESS THE SERVICES USING VENDOR’S PASSWORD OR POD FOODS ID, AND VENDOR AGREES NOT TO PERMIT OTHERS TO ACCESS THE SERVICES USING VENDOR’S PASSWORD OR POD FOODS ID.
Vendor agrees that all actions taken by Vendor, or any other user that accesses the Services using Vendor’s Pod Foods ID, at or through the Services will be attributed to and legally bind Vendor, even with respect to acts for which the user had no actual authority or made an error. Vendor assumes all resulting liability from use of the Services and any use by Vendor or others using Vendor’s password or Pod Foods ID.
9. COMPLIANCE WITH LAWS
Vendor represents and warrants that it manufactures, labels, advertises, stores, assembles, handles, prepares, packages, holds, transports, and maintains appropriate records for Products in compliance with all applicable local, state and federal laws and regulations, including without limitation applicable federal laws, state laws for the production of hemp products, state and municipal food codes, employee hygiene, employee illness reporting requirements, federal labor laws, state labor laws, local and state public health orders, food handler food safety training and/or certifications, menu labeling and allergen labeling requirements (“Applicable Food Laws”). Vendor further represents and warrants that:
- products, at their time of delivery will be merchantable and fit for their intended purposes, will be free from impurities, contamination, and defects and fit for use as food
- product labels, at the time of their delivery will be complete and accurate, will comply with all Applicable Food Laws and will disclose all Allergens (as defined under 21 USC 321 (qq)) in the product,
- all production facilities involved in the manufacture of products will have been evaluated annually by a third party auditor, and Vendor;
- at all times during the production of the products, Vendor will ensure that the products are manufactured in compliance with all Applicable Food Laws, following Current Good Manufacturing Practices, and if applicable, a food safety plan that evaluates and controls for any identified hazard(s), as required by the Federal Food Drug and Cosmetic Act (the “FDCA”) defined by the U. S. Food and Drug Administration (the “FDA”) or a HACCP plan and under the inspection of a United States Department of Agriculture (the “USDA”) inspector pursuant to the Federal Meat Inspection Act (“FMIA”); Egg Products Inspection Act (“EPIA”); and/or Federal Poultry Products Inspection Act (“PPIA”) as appropriate for USDA regulated products;
- if a Product is a fresh or frozen produce Product, all produce will be grown and harvested according to Good Agricultural Practices (“GAP”), as defined by the FDA or the USDA and the Produce Safety Rule as required by the FDCA, and the FDA’s Guide to Minimize Microbial Food Safety Hazards for Fresh Fruits and Vegetables;
- if a Product is labeled organic, all parties required by law to be certified have been certified by a third party organic certifying agent recognized by the USDA, and all such parties will have complied with all applicable requirements established by the certifying agent and the USDA;
- if any Product is labeled kosher, all parties required by law to be certified have been certified by a reputable third party kosher certifying agent and have complied with all requirements established by the certifying agent, and Vendor has registered the Product as a kosher product with the Department of Agriculture and Markets in New York State;
- if any Product is labeled Non-GMO, that it either be certified Non-GMO by Non-GMO Project Verified, NSF, or another third-party vendor approved by Pod Foods in writing;
- all products required to bear a Proposition 65 Warning pursuant to California’s Safe Drinking Water and Toxic Enforcement Act of 1986, shall display such warning in compliance with Applicable Food Laws;
- if any third-party name or mark is on a Product, Vendor has obtained all necessary authorizations to include the name or mark on the Product and Vendor has the authority to grant a limited license to Pod Foods to use such marks for the sole and limited purpose of performing the Services;
- no Product (including its importation, use and resale whether alone or in combination with other Products or services) will infringe upon or constitute an unauthorized use of any patent, copyright, trademark, service mark, trade secret or other intellectual property rights (collectively “Intellectual Property”);
- for all imported Products, for purposes of compliance with the Foreign Supplier Verification Program, as required by the FDCA, parties agree that Vendor, or supplier to Vendor, will act as the importer of record or FSVP importer, and at no time will Pod Foods be listed as the importer of record or FSVP importer on any import documentation;
- all products containing cannabidiol (CBD), other cannabinoids, and/or hemp extract shall:
- be produced from hemp plants containing less than .3% delta-9-tetrahydracannibidiol on a dry weight basis grown under an approved State Hemp program, USDA program, or lawfully imported into the United States;
- contain no more than .3% delta-9-tetrahydracannabidiol in any hemp containing ingredient;
- contain no more than .3% delta-9-tetrahydracannabidiol in the Product;
- contain no synthetically created cannabidiol or other cannabinoid compounds;
- include no disease claims on their product labeling; and
- shall be specifically labeled in compliance with any applicable laws for the state(s) of distribution;
- all promotional materials provided to Pod Foods, or information for development of promotional materials, shall be accurate and comply with Applicable Food Laws, including without limitation all information posted by Vendor to the Pod Foods website
If at any time Pod Foods discovers that Vendor’s manufacturing, labeling, advertising, storage, assembly, handling, preparation, packaging, holding, or transportation may not comply with the provisions above or otherwise comply with Applicable Food Laws, or if Vendor is requested or mandated to recall product by any agency, Pod Foods may immediately suspend Vendor’s use of the Services without affecting any other remedies available to Pod Foods under this agreement.
Vendor has and will maintain a comprehensive recall system including appropriate tracking, coding and accounting systems for all Products and will retain and appropriately store Product samples from each lot or batch of Product until the end of the stated shelf life of the sample. Vendor agrees to pay all costs and expenses associated with any withdrawal or recall of a Product or Product safety notice if the Product fails to comply with any one or more of the representations, warranties or covenants made by Vendor in Section 5 of this Agreement, is mislabeled or misbranded, or could otherwise pose a health or safety risk. At Pod Foods’s request, Vendor will cooperate with and assist Pod Foods in the conduct of the withdrawal, recall or safety notice. If Vendor has reason to believe that any Product delivered to Pod Foods may not comply with any representation, warranty or covenant made by Vendor under these Terms or otherwise may pose a health or safety risk, Vendor will promptly notify Pod Foods in writing. Vendor acknowledges that this paragraph addresses the circumstances under which Vendor will be liable for payment of expenses associated with a withdrawal, recall or safety notice.
11. California Proposition 65
If Vendor supplies Pod Foods with product that contains a chemical listed by the State of California pursuant to Proposition 65 which is not exempt from the warning requirement under Cal Code Reg. § 25249.10, Vendor agrees to include the appropriate California Proposition 65 warning on its product label, and advise Pod Foods in writing of the following: the product name; the listed chemical involved; and the warning statement that Vendor is providing on the Product label and all required online warning statements. Notices for Proposition 65 online warning statements shall be provided to the following email address firstname.lastname@example.org.
Vendor shall maintain Commercial General Liability Insurance (including Contractual Liability, Products/Completed Operations, and Personal Injury coverages) with minimum limits of liability of $1,000,000 for any one occurrence and $2,000,000 in the aggregate in any one year. Vendor shall maintain all such insurance with reputable insurers that are licensed to do business in the states in which Vendor conducts business and that have a rating of at least "A" from the AM Best rating service. Vendor shall furnish Pod Foods with a current policy certificate verifying coverage on an annual basis as long as Vendor uses the Services. Vendor shall maintain coverage in such amounts for at least one year after the termination of use of the services.
For products to be warehoused on consignment, Vendor shall ship products to Warehouse at its own cost and transit in compliance with all Applicable Food Laws. Vendor shall retain full ownership and bear risk of loss for Products until sold by Pod Foods to Customers. Vendor agrees that on reasonable written request of Pod Foods, Vendor will, at its own cost and expense, remove from Warehouse any Products that Pod Foods determines, in its sole discretion, will not be shipped for sale within seven (7) days.
14. INFORMATION DISCLAIMER / DISCLAIMER OF WARRANTIES
VENDOR UNDERSTANDS AND AGREES THAT THE SERVICES ARE PROVIDED TO VENDOR ON AN “AS IS” AND “AS AVAILABLE” BASIS. POD FOODS EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. VENDOR’S ACCESS TO AND USE OF SERVICES OR ANY POD FOODS CONTENT IS AT VENDOR’S OWN RISK. Pod Foods makes no representations or warranties of any kind with respect to the Services, including any representation or warranty that the use of the Services will (a) be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) meet Vendor’s requirements or expectations, (c) be free from errors or that defects will be corrected, or (d) (for online services) be free of viruses or other harmful components. Pod Foods also makes no representations or warranties of any kind with respect to Pod Foods Content or Vendor Content, including, but not limited to, nutritional, dietary, ingredient and allergen information, which is solely provided by and is the exclusive responsibility of the Vendor providing that content. Any opinions, advice, statements, services, offers, or other information expressed or made available by Vendors and/or third parties through the Services are those of the respective authors or distributors and not of Pod Foods nor its affiliates, nor any of its officers, directors, employees, or agents. Vendor acknowledges that Pod Foods does not pre-screen third party content, but that Pod Foods and its designees shall have the right (but not the obligation) in their sole discretion to relocate, remove or refuse to utilize any content that is available via the Services. Without limiting the foregoing, Pod Foods and its designees shall have the right to remove any content that violates the Terms or is otherwise objectionable to Pod Foods, other vendors or Customers. Vendor specifically agrees that Pod Foods is not responsible for any content sent using and/or included in the Site by any customer or other third party.
15. LIMITATION OF LIABILITY
VENDOR UNDERSTANDS AND AGREES THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, POD FOODS, ITS DIRECTORS, OFFICERS, STOCKHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUPPLIERS, AND/OR DISTRIBUTORS, SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, PROPERTY DAMAGE, PERSONAL INJURY, OR ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWSOEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE RESULTING FROM: (1) THE USE OF, OR THE INABILITY TO USE, POD FOODS SERVICES, (2) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES, GOODS AND/OR SITE, (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF VENDOR’S TRANSMISSIONS OR DATA, (4) THE STATEMENTS OR CONDUCT OF ANY VENDOR OR THIRD PARTY ON OUR SITE, (5) RELIANCE ON CONTENT OR POSTINGS ON OUR SITE OR APPLICATION, OR (6) ANY OTHER MATTER RELATING TO OUR SITE, OR SERVICES, INCLUDING VENDOR’S RETAIL OFFERINGS TO CONSUMERS. THESE LIMITATIONS WILL APPLY WHETHER OR NOT POD FOODS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF POD FOODS AND ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, REPRESENTATIVES, CONSULTANTS, AGENTS, SUBSIDIARIES, SUBCONTRACTORS, AND/OR AFFILIATES, FOR ANY CLAIM, INCLUDING FOR ANY EXPRESS OR IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT VENDOR PAID POD FOODS TO USE THE APPLICABLE SERVICE(S).
16. RELEASE FROM LIABILITY
Vendor releases, to the fullest extent permitted by applicable law, Pod Foods, its directors, officers, shareholders, employees, representatives, consultants, agents, subsidiaries and/or affiliates from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown arising out of or in any way connected with the following:
- Disputes arising due to warehouse or transportation handling of products received on consignment;
- Disputes between Vendors and Customers, including without limitation disputes related to the intellectual property rights of Vendor and/or Customer;
- Disputes between Vendor and other vendors, including without limitation disputes related to intellectual property rights of Vendor and/or other vendors;
- Disputes between Vendor and any third party, including without limitation disputes related to intellectual property rights of Vendor and/or any third party;
- Third party sites and services, including content found on such sites and services;
- Disputes concerning any use of or action taken using Vendor’s User Account by Vendor or a third party; or
- Disputes relating in any fashion to food ordered by Customer(s), including food quality, labeling, or any other claim by Customers’ end users or consumers.
- Claims relating to the unauthorized access to any data communications or customer Content stored under or relating to Vendor’s User Account, including unauthorized use or alteration of such communications or Vendor’s Content.’
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU, ON BEHALF OF YOUR HEIRS, EXECUTORS, ADMINISTRATORS, LEGAL AND PERSONAL REPRESENTATIVES, HEREBY RELEASE, WAIVE, ACQUIT AND FOREVER DISCHARGE POD FOODS FROM AND AGAINST, AND COVENANT NOT TO SUE POD FOODS FOR, ALL CLAIMS YOU HAVE OR MAY HAVE ARISING OUT OF OR IN ANY WAY RELATED TO THESE TERMS. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE YOUR RIGHTS UNDER CALIFORNIA CIVIL CODE 1542, WHICH STATES “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. Some jurisdictions also limit disclaimers or limitations of liability for personal injury from consumer products, so this limitation may not apply to personal injury claims.
17. INDEMNIFICATION OF POD FOODS
To the fullest extent permitted by applicable law, Vendor agrees to indemnify, defend and hold harmless Pod Foods, its past and present directors, officers, shareholders, employees, representatives, consultants, agents, subsidiaries and/or affiliates from and against any and all actual and alleged liability, losses, claims, demands, disputes, damages, awards, judgments, obligations, penalties, interest, fees, expenses, or costs of any kind, whether known or unknown, including, without limitation, reasonable attorneys’ fees and costs of litigation, resulting from or in any way connected with (a) postings or other content Vendor submits or that are submitted from Vendor’s User Account, (b) Vendor’s use of or reliance on Pod Foods Services, (c) any personal injury or property damage claims related to a Vendor’s preparation, packaging, labeling, transport and delivery of food, or (d) Vendor’s violation of this Agreement. Pod Foods shall have no liability to the extent that any suit or claim arises from or was caused by the negligence or willful misconduct of any of any Vendor, 3PL facility, or Customer, a defective food product prepared, packaged, or labeled by any Vendor, or Vendor, 3PL facility or Customer’s violation of local, state or federal laws or regulations.
18. FEES Unless otherwise stated by Pod Foods, use of the Services requires payment of fees (the “Fees”). Such Fees are described on the Site or Application, including at the time of User Account creation. Services and related Fees may also be described in a custom agreement presented and signed as a separate contract. Pod Foods reserves the right to change the fee structure at any time. All fees are stated in United States dollars. Pod Foods may, in its sole discretion, modify the functionality of the Services, or the Terms under which Services are provided.
19. INTELLECTUAL PROPERTY / USE OF TRADEMARKS
All right, title and interest to the content displayed on our Site and Application, including but not limited to the look and feel, data, information, text, graphics, images, sound or video materials, photographs, designs, trademarks, service marks, trade names, URLs and content provided by third parties, are the property of Pod Foods, or the respective vendors or third parties, and are protected by copyright, trademark, patent or other proprietary rights and laws. Vendor hereby grants a limited license to Pod Foods to use its marks or marks of third-parties displayed on its Products for the sole and limited purpose of providing the Services. Except as expressly authorized by Pod Foods, Vendor agrees not to copy, modify, rent, lease, loan, sell, assign, distribute, perform, display, license, reverse engineer or create derivative works based on our patent pending Site or Application or any Pod Foods Content (including without limitation any software) available through the Site. Any use of Pod Foods’s trademarks, branding, logos and other such assets in connection with the Services, such as the word mark POD FOODS or the Pod Foods logo shall be in connection with Vendor’s internal use and not for external promotion or public relations unless approved by Pod Foods.
This Term of this agreement shall be perpetual, until terminated by one of the parties to these Terms, consistent with this Section 20. Vendor may terminate this Agreement for any reason by giving to Pod Foods sixty (60) days advance written notice of such termination. Pod Foods may also terminate or suspend Vendor’s access to or ability to use any and all Services immediately, without prior notice or liability, for any or no reason. In the event that Vendor has purchase orders outstanding at the time of Termination, Vendor shall be required to fulfill all payment obligations and Pod Foods shall be obligated to deliver the ordered products. Upon termination of Vendor’s access to or ability to use a Service, including but not limited to suspension of a Vendor on a Service, Vendor’s right to use, access or advertise that Service on Vendor website and Vendor’s ability to use any Pod Foods Content will immediately cease. Termination of Vendor’s access to and use of the Services shall not relieve Vendor of any obligations arising or accruing prior to such termination or limit any liability that Vendor otherwise may have to Pod Foods or any third party.
If any term, clause or provision of these Terms is held invalid or unenforceable, then that term, clause or provision will be severable from these Terms and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of these Terms.
The following sections will survive the expiration or termination of these Terms and the termination of your Pod Foods account: all defined terms and Sections 1; 3-6; 8-13; and 15-18.
23. LEGAL DISPUTES
Vendor and Pod Foods agree that they will resolve any claim or controversy at law or equity that arises out of the Services in accordance with this Section or as Vendor and Pod Foods otherwise agree to in writing. Before resorting to litigation, Vendor agrees to first contact Pod Foods directly to seek a resolution in writing at the following email email@example.com. Vendor expressly agrees that in the event that Vendor breaches its obligations under the Pod Foods Customer Exclusivity or Trademark sections of these Terms and conditions, Pod Foods is entitled to seek injunctive relief. LAW AND FORUM FOR LEGAL DISPUTES: The Pod Foods Service shall be governed in all respects by the laws of the State of California, without regard to conflict of law provisions. Any and all disputes between the parties must be prosecuted solely and exclusively in the federal or state courts located in San Francisco, California and Vendor agrees to consent to personal jurisdiction and venue of those courts and waives all defenses based on inconvenient forum.
These Terms constitute the entire agreement between Vendor and Pod Foods relating to your access to and use of the Site and your use of the Services. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by Vendor without the prior written consent of Pod Foods. No waiver of any provision of these Terms will constitute a waiver of such provision in any prior, concurrent or subsequent circumstance, and Pod Foods’ failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third party beneficiary rights upon any other person or entity.