Agreement. Harvest Food Solutions LLC (“Harvest”) may sell you (“Customer”) certain mobile devices, computers, printers or other hardware (collectively, “Hardware”). Customer agrees to be bound by this Agreement and all exhibits and appendices hereto (collectively, the “Agreement”). Customer may only use the Hardware in strict compliance with the terms of this Agreement, and Customer’s use of any Hardware signifies Customer’s assent to be bound by the terms of this Agreement. If Customer does not agree to be bound by all of the terms of this Agreement, then Customer may not use any Hardware, and Customer must immediately inform Harvest of its decision prior to Customer’s first use of any Hardware.
Fees. Harvest will provide Customer with a written quote (“Quote”) that sets forth fees for the Harvest may elect, in its sole discretion, to provide a subsequent statement of work (“SOW”) with respect to the Hardware set forth in any Quote. In the event of any conflict between any Quote and any SOW, the terms of the SOW shall govern and prevail. Customer is responsible for timely payment of all fees (“Fees”) and costs and expenses (“Costs”) set forth in the Quote, or SOW (if applicable). Any payment by Customer of any Fees or Costs made more than thirty (30) days following the date on which such payment is due shall accrue interest at a rate of 1.5% per month, or the maximum interest rate permitted under the law, whichever is less.
Services. Harvest may agree to undertake certain implementation, training, support or other services (collectively “Services”), as more particularly set forth in the Quote, or any SOW issued by Harvest that arises from the Quote. Customer may request and Harvest may agree to provide additional services outside of any Quote or SOW, and any additional services will be detailed in an invoice, including detailed time accounting for such additional services. Any support Services with respect to any Hardware shall only be provided by Harvest to Customer in accordance with the Harvest Services and Customer Care Agreement, if any, and only if such coverage is expressly included in the Quote or SOW.
Shipping & Handling; Risk of Loss.
“Shipping and Handling Costs” means all fees, costs, expenses, shipping insurance, tariffs and taxes arising from or related to the packaging, processing, warehousing, handling and shipment of the Hardware to Customer’s location.
Harvest or the applicable Third-Party Provider shall determine the manner and method for shipping the Products to Customer’s location. Customer shall be responsible for all Shipping and Handling Costs, which shall be set forth in the applicable Quote or SOW, or otherwise subsequently provided to Customer in writing. Shipping and Handling Costs must be paid in full by Customer prior to Harvest or the Third-Party Provider releasing the Hardware for shipment.
Risk of damage or loss for Hardware in transit to Customer’s location shall pass to Customer upon Harvest or the Third-Party Provider providing the Hardware to the common carrier (FOB origin).
Returns. In the event that Customer desires to return or exchange any Hardware, Customer will be subject to the Third-Party Providers rules, regulations and warranties with respect to such returns. Customer should read all applicable Third-Party Agreements. HARVEST IS NOT RESPONSIBLE FOR THE DENIAL OR DISAPPROVAL OF ANY RETURN OR EXCHANGE BY ANY THIRD-PARTY PROVIDER. IN THE EVENT THAT HARVEST IS CHARGED A RESTOCKING FEE BY ANY THIRD-PARTY PROVIDER FOR ANY RETURN OR EXCHANGE BY CUSTOMER, CUSTOMER SHALL REIMBURSE HARVEST FOR SUCH RESTOCKING FEE.
DISCLAIMER OF LIABILITY. TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAW, CUSTOMER AGREES TO RELEASE AND HOLD HARVEST HARMLESS FROM AND AGAINST ANY CLAIMS OR ANY KIND OR NATURE RELATED TO ANY HARDWARE, OR THE DENIAL OR DISAPPROVAL OF ANY RETURN OR EXCHANGE OF SUCH HARDWARE.
Intellectual Property. Nothing in this Agreement shall be construed to transfer or assign to, or otherwise vest in, Customer any intellectual property rights in and to the Hardware. All such rights remain the exclusive property of Harvest or Third-Party Provider, as applicable. Customer may provide certain suggestions or feedback (“Feedback”) to Harvest for improvements or modifications to any of the Hardware. To the extent that Customer provides any Feedback to Harvest, Customer hereby assigns to Harvest all right, title and interest in and to such Feedback, which Harvest may assign to any Third-Party Provider.
Prohibited Uses. Customer shall not, and shall not allow any of its employees, contractors or users, to: (a) change, alter or modify the Hardware; (b) pledge, lien or otherwise encumber any Hardware, or otherwise rent, lease, sell, sublicense or transfer the Hardware to any third-party; (c) reverse engineer, disassemble, decompile, translate, reconstruct, transform, port, tamper with, repair creative derivative works from, or extract the Hardware, or attempt to do the same; (d) defeat or circumvent, attempt to defeat or circumvent, or authorize or assist any third party in defeating or circumventing any Hardware use, tracking, identification, encryption or security protocols; (e) apply any process or procedure to the Hardware that is intended to derive the source code, object code, algorithms, equations or formulas of any technology included in the Hardware; (f) remove, modify or alter, or attempt to remove, modify or alter, any notice of copyright, trademark, or other intellectual property right, or any metadata or systems for tracking, analyzing or identifying metadata, or other identifying information, from any place where it is on or embedded or displayed on or in the Hardware; (g) do any act, or omit to do any act, that violates the terms of any Third-Party Agreement; (h) resell or sublicense the Hardware; (i) obtain unauthorized access to the Hardware; or (j) by action or omission, use, display, perform, distribute, exhibit, or otherwise exploit any of the Hardware in any manner that is inconsistent or in conflict with the terms of this Agreement, any Third-Party Agreement and Customer’s covenants, representations and warranties hereunder.
Warranty, Disclaimer. THE HARDWARE IS PROVIDED BY HARVEST WITH NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, HARVEST EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. HARVEST DOES NOT WARRANT THAT THE HARDWARE WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT ANY OF THE HARDWARE WILL OPERATE WITHOUT INTERRUPTION, OR BE ERROR FREE. HARVEST AND CUSTOMER AGREE AND UNDERSTAND THAT THE WARRANTY DISCLAIMERS CONTAINED HEREIN ARE A SPECIFIC PART OF THE BARGAINED-FOR EXCHANGE, THE PURCHASE OF THE PRODUCT(S), AND THE NEGOTIATION OF THIS AGREEMENT. CUSTOMER MAY RELY ONLY ON THIRD-PARTY PROVIDER WARRANTIES, IF ANY, AND CUSTOMER IS SOLELY RESPONSIBLE FOR OBTAINING AND UNDERSTANDING ALL SUCH THIRD-PARTY PROVIDER WARRANTIES.
Customer agrees to indemnify, defend and hold harmless Harvest from and against any third-party claims, demands, suits or causes of action (collectively, “Claims”) arising from or related to Customer’s or any Customer’s user’s: (a) breach of any of Customer’s covenants, obligations, restrictions, representations or warranties set forth in this Agreement, including without limitation any breach or violation of any Third-Party Agreement or other policies; (b) gross negligence, intentional misconduct, or violation of applicable law; (c) possession, processing, use or loss of personal data (as set forth in the HPP) other than with respect to alleged privacy breaches or violations caused by Harvest’s misuse of that data, breach of this agreement or violation of applicable regulations or law; or (d) infringement, misappropriation or violation of Harvest’s or a third party’s intellectual property rights. Harvest shall have the right to control the defense of any such Claims.
Compliance: Customer must comply with all laws and regulations applicable to Customer’s use of the Hardware, including without limitation data privacy or localization, anti-bribery and export control laws (i.e. export to embargoed, prohibited or restricted countries or access by prohibited, denied or designated persons) and Customer’s rights to use the Hardware are subject to such compliance. Customer is solely responsible for all import and export laws, regulations, tariffs, taxes and fees related to the shipment and transmission of the Hardware, and the Hardware themselves. Customer will obtain all approvals, consents, variances, licenses, and/or permits required for any export, import, sale, operation or use of the Hardware at all Customer locations for the benefit of Harvest (unless otherwise required by the appropriate bodies), including without limitation, making appropriate filings with the appropriate governmental body, and Customer will be solely responsible for all costs associated therewith. Each party will reasonably cooperate with the other in making all such appropriate filings and Harvest will provide any information or documents as are reasonably requested. Customer is solely responsible for compliance with applicable local laws related to the manner in which Customer uses, displays and exploits the Hardware, and shall promptly inform Harvest if any contractual requirement with respect thereto violates such law(s) or regulation(s).
Other Terms. This Agreement is subject to the terms of the Master Services Agreement between Harvest and Customer (the “MSA”). In the event of conflict or material inconsistency between the terms set forth in any Harvest Quote or SOW, this Agreement (including its addendums or appendices), the MSA or any policy, them with respect to the Hardware, the following order of priority/precedence shall apply: (a) the terms of any Quote or SOW issued by Harvest shall prevail over the terms of this Agreement, the MSA, the HPP or any other policies; (b) the terms set forth in the HPP shall govern over the terms in this Agreement, the MSA or any other policies; (c) the terms set forth in this Agreement shall govern over the terms in the MSA or any policies (other than the HPP); and (d) the MSA shall govern over any other policies. In the event that Customer purchases a Customer Care Plan, the terms of the applicable Customer Care Plan and support agreement shall govern and prevail over this Agreement with respect to the provision of such Customer care Services. Sections 6 through and including section 14 of this Appendix shall survive the termination or expiration of this Agreement. Customer’s access to any third-party products and services may continue beyond termination of this Agreement, subject to the terms and conditions of those third-party products and services.