Terms and conditions

Applicability. These terms and conditions of purchase (“Terms”) are the only terms which govern the purchase, delivery or shipment of goods (“Goods”) and services (“Services”) by The Farmlink Project (“Customer”) from the vendor named on the accompanying rate confirmation or written contractual arrangement (“Vendor”) (“Rate Confirmation”). The applicable Rate Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications with respect to that Rate Confirmation, provided that this Agreement or any portion hereof may be supplemented by the parties by an agreement in writing signed by each party hereto.

Services.

1. Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Rate Confirmation or as otherwise agreed in writing by the parties (the “Delivery Date”). If Vendor fails to deliver the Goods in full on the Delivery Date, Customer may terminate this Agreement immediately by providing written notice to Vendor and Vendor shall indemnify Customer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Vendor’s failure to deliver the Goods on the Delivery Date. 

2. Vendor shall provide the Services to Customer as described in the Rate Confirmation and in accordance with the terms and conditions set forth in these Terms. 
   
   

Shipment Requests and Delivery. 

1. Customer may initiate shipment requests for transportation services (each a “Shipment Request”) by issuing a Rate Confirmation to Vendor. Any written confirmation of Vendor’s intention to fulfill the Shipment Request, or any action by Vendor to receive, to transport, or to take possession of the applicable Good, as applicable, shall constitute Vendor’s acceptance of the Shipment Request and serve as Vendor’s acknowledgement that the requested transportation services are governed by these Terms. 

2. If Vendor accepts a Shipment Request, Vendor shall transport the shipment of Goods as specified in the applicable Rate Confirmation, including picking up and delivering the shipment of Goods from the origin and destination locations, and in the quantities and on the date(s), set forth in the applicable Rate Confirmation or as otherwise agreed by the parties in writing (email being sufficient).

3. Vendor shall evidence a completed shipment by providing Customer with a delivery receipt, which shall be signed by the recipient of the shipment; provided, that the absence or loss of such delivery receipt shall not relieve Vendor of its obligations and responsibilities under this Agreement.
   
   

Time of the Essence. Vendor acknowledges that time is of the essence with respect to Vendor’s obligations under this Agreement and that prompt and timely performance of all such obligations is strictly required.

Risk of Loss. Vendor shall be liable to Customer for the full actual loss, damage, or injury to the Goods occurring while in the custody, possession or control of Vendor. Following delivery, Vendor shall have no rights as owner of the Goods and shall not be granted or deemed to have any security interest in any Goods.

Packaging. Vendor shall ensure that all Goods shall be packed for, and temperature maintained during, shipment according to Customer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged and, where perishable, well-maintained condition.

No Minimum Commitment. The parties agree that Customer is not obligated to purchase any minimum amount of Goods or Services from Vendor under this Agreement.

Price and Payment. 

1. The price of the Goods or Services, as applicable, is the price stated in the applicable Rate Confirmation. No increase in the price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Customer.  

2. Vendor may issue an invoice to Customer on or anytime after the completion of delivery or shipment in accordance with these Terms and Customer shall pay all properly invoiced amounts due to Vendor within 90 days after Customer’s receipt of such invoice. If no invoice is issued, Customer shall pay the amounts stated in the applicable Rate Confirmation within 90 days after Vendor’s completion of the delivery or shipment. All payments hereunder shall be in US dollars. 

3. Notwithstanding anything to the contrary, Customer is entitled to withhold payment of any amounts disputed by Customer in good faith. In the event of a payment dispute, Customer shall deliver a written statement to Vendor prior to the date payment is due listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed will be paid, notwithstanding disputes on other items, within the periods set forth in this Section 8.  The parties shall seek to resolve all such disputes expeditiously and in good faith.  Vendor shall continue performing its obligations under the Rate Confirmation notwithstanding any such dispute.  Without prejudice to any other right or remedy it may have, Customer reserves the right to recoup, offset, or set off at any time any amount owing to it by Vendor against any amount payable by Customer to Vendor.  Vendor does not and shall not have any right of offset, recoupment, or set off. 
   
   

Vendor Obligations.  Vendor shall, to the extent applicable:

1. obtain, and at all times during the term of this Agreement, maintain all necessary licenses and consents and comply with all relevant laws applicable in connection with the provision of Services;

2. comply with all applicable rules, regulations and policies of Customer, including security procedures concerning systems and data and remote access thereto, building security procedures and general health and safety practices and procedures;

3. obtain Customer’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor’s employees, to provide any Services to Customer (each such approved subcontractor or other third party, a "Permitted Subcontractor"). Customer’s approval shall not relieve Vendor of its obligations under the Agreement, and Vendor shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Customer and any Vendor subcontractor or supplier;

4. require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement;

5. ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;

6. ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Customer; 
   
   

Representations and Warranties. 

1. Vendor’s Representations and Warranties. Vendor represents and warrants to Customer that: 

   1. it shall perform Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services, and it shall devote adequate resources to meet its obligations under this Agreement;

   2. it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required;

   3. it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement;

   4. the execution, delivery, and performance of this Agreement by Vendor will not violate, conflict with, require consent under or result in any breach or default under any of Vendor’s organizational documents, any material contracts of Vendor or any applicable law;  and

   5. it is in compliance with all laws applicable to this Agreement.

2. Customer’s Representations and Warranties. Customer represents and warrants to Vendor that: 

   1. it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required;

   2. it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement;

   3. the execution, delivery, and performance of this Agreement by Customer will not violate, conflict with, require consent under or result in any breach or default under any of Customer’s organizational documents, any material contracts of Customer or any applicable law;  and

   4. it is in compliance with all laws applicable to this Agreement.
      
      

Confidential Information. All non-public, confidential or proprietary information of Customer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Customer to Vendor, 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 is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Customer in writing. Upon Customer’s request, Vendor shall promptly return or destroy all documents and other materials received from Customer. Customer shall be entitled to injunctive relief for any violation of this Section 11. This Section 11 does not apply to information that is: (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by Vendor on a non-confidential basis from a third party.  

Indemnification. Vendor shall defend, indemnify and hold harmless Customer and Customer’s subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, "Losses") arising out of or resulting from any third-party claim alleging: 

1. breach or non-fulfillment by Vendor of any obligation or representation or warranty set forth in these Terms or any Rate Confirmation, including without limitation Sections 9 (Vendor Obligations) and 10 (Representations and Warranties); 

2. Vendor’s gross negligence, willful misconduct or fraud in connection with the Goods and Services purchased from Vendor;

3. any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent acts or omissions of Vendor; or

4. any failure by Vendor to comply with applicable laws.
   
   

Limitation of Liability. Except with respect to  (a) Vendor’s liability under Sections 11 (Confidentiality) or 12 (Indemnification) hereof, and (b) Vendor’s liability for fraud, personal injury or death caused by its negligence or willful misconduct, in no event shall Vendor’s total aggregate liability arising out of this Agreement, whether in contract, tort or otherwise, exceed the fees paid or payable by Customer under this Agreement.

Insurance.  Vendor shall, at its own expense, procure, maintain and carry insurance in full force and effect of the kind, and with the level of coverage, customary for businesses in its industry providing similar services with financially sound and reputable insurers. Upon Customer’s request, Vendor shall provide Customer with a certificate of insurance from Vendor’s insurer evidencing the insurance coverage specified in these Terms. Vendor shall provide Customer with reasonable advance written notice in the event of a cancellation or material change in Vendor’s insurance policies. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against Customer’s insurers and Customer.  

Termination. Customer may terminate these Terms or any Rate Confirmation, in whole or in part, for convenience or for cause by giving written notice to Vendor. Termination shall be effective immediately upon Vendor’s receipt of such termination notice. If Customer terminates for convenience, its only obligation is to pay for Goods that it accepted and Services performed for it before the effective date of termination. If Customer terminates a Rate Confirmation for any reason, Vendor’s sole and exclusive remedy is payment for the Goods and Services received and accepted by Customer prior to the termination.

Compliance with Law. Vendor shall comply with all applicable laws, regulations and ordinances. Vendor shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. 

Special Compliance with Law Provisions. The parties acknowledge that Customer is a nonprofit charitable organization that receives and uses federal assistance funding (“Federal Funding”) as a non-federal entity from time to time and that Customer’s eligibility to receive and use such Federal Funding is contingent on it and its vendors, suppliers, contractors, and service providers complying with certain federal financial assistance laws, including without limitation 2 C.F.R. § 200. Accordingly, without limiting the generality of Section 16 (Compliance with Law), Vendor and Customer agree to comply with the following additional provisions to the extent applicable to a Rate Confirmation that is financed in whole or in part with Federal Funding:

1. Contract Work Hours and Safety Standards Act. If the amount payable under this Agreement exceeds $100,000 and involves the employment of mechanics or laborers:

   1. neither Vendor nor any Permitted Subcontractor performing any part of this Agreement which may require or involve the employment of mechanics or laborers shall require or permit any such mechanic or laborer to work in excess of forty (40) hours in any work week (“Standard Work Hours”) unless such mechanic or laborer receives compensation at a rate not less than one and a half times (1.5x) the basic rate of pay (“Overtime Pay”) for all hours worked in excess of the Standard Work Hours;

   2. a Vendor or Permitted Subcontractor (or lower tier subcontractor) that breaches Section 17(a)(i) shall be liable (A) to pay the relevant mechanic or laborer for all unpaid wages and (B) to the United States (or to the extent this Agreement was performed for the District of Colombia or a territory, to such District or territory) for liquidated damages. Such liquidated damages shall be calculated with respect to each individual mechanic or laborer, including watchpersons and guards, employed in violation of Section 17(a)(i), in the sum of $33 for each calendar day on which such individual was required or permitted to work in excess of the Standard Work Hours without receiving Overtime Pay;

   3. Customer shall, upon the written request of an authorized representative of the Department of Labor, (or in the absence of such written request, Customer may upon its own action) withhold or cause to be withheld from any moneys payable to Vendor under this Agreement, such amounts as may be determined to be necessary to satisfy any liabilities owed by Vendor or a Permitted Subcontractor (or lower tier subcontractor), as applicable, pursuant to Section 17(a)(ii); and

   4. in relation to any subcontract in connection with this Agreement, Vendor shall include or cause to be included obligations of the Permitted Subcontractor (or lower tier subcontractor, as applicable) substantially in the form of, and in any event no less onerous than, those set forth in Sections 17(a)(i) to 17(a)(iii). Vendor shall be responsible for the compliance by any Permitted Subcontractor and any lower tier subcontractors with this Section 17(a).

2. Clean Air Act and Federal Water Pollution Control Act. If the amount payable under this Agreement or any subcontract with a Permitted Subcontractor financed in whole or in part with Federal funding exceeds $150,000, Vendor agrees to: 

   1. comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended 42 U.S.C. § 7401 et seq and the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq; 

   2. report each violation of Section 17(b)(i) to the Customer, with the understanding and agreement that Customer will, in turn, report each violation as required to assure notification to the Federal Emergency Management Agency and the appropriate Environmental Protection Agency Regional Office; and 

   3. in relation to any subcontract in connection with this Agreement, include or cause to be included obligations of the Permitted Subcontractor (or lower tier subcontractor, as applicable) substantially in the form of, and in any event no less onerous than, those set forth in Sections 17(b)(i) and 17(b)(ii).

3. Debarment and Suspension. 

   1. If this Agreement qualifies as a “covered transaction” (within the meaning of 2 C.F.R. § 180), Vendor shall comply with 2 C.F.R. § 180 Subpart C and 2 C.F.R. § 3000 Subpart C (“Debarment Regulations”) and shall provide Customer with certification of such compliance. In relation to any subcontract in connection with this Agreement that qualifies as a “covered transaction” (within the meaning of 2 C.F.R. § 180), Vendor shall include or cause to be included obligations of the Permitted Subcontractor (or lower tier subcontractor, as applicable) to comply with the Debarment Regulations and provide certification to Customer, as set forth in this Section 17(c)(i). 

   2. Vendor acknowledges and agrees that any certification provided pursuant to Section 17(c)(i) is a material representation of fact relied upon by Customer. If it is later determined that Vendor or a Permitted Subcontractor (or lower tier subcontractor), as applicable, did not comply with the Debarment Regulations then, in addition to the remedies available to Customer, the United States Federal Government may pursue all available remedies to it, including but not limited to suspension and debarment of the non-compliant party.

4. Byrd Anti-Lobbying Amendment. If the amount payable under this Agreement exceeds $100,000, Vendor shall:

   1. certify to Customer that it has not and will not use federal appropriated funds to pay any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with: (A) the awarding of any federal contract, (B) the making of any federal grant, (C) the making of any federal loan, (D) the entering into of any cooperative agreement or (E) the extension, continuation, renewal, amendment, or modification of any federal contract, grant, loan, or cooperative agreement (“Anti-Lobbying Certifications”).

   2. file any applicable certifications or disclosure forms in the form and manner prescribed in 44 C.F.R. Part 18 with the federal agency that granted the Federal Funding used to finance this Agreement (“Filings”).

   3. cause each Permitted Subcontractor to (A) provide Vendor with Anti-Lobbying Certifications and make any applicable Filings and (B) use best efforts to ensure that any subcontractor engaged at a subsequent tier to it in the ‘chain’ of subcontracts connected to this Agreement will each provide Anti-Lobbying Certifications to the subcontractor in the tier immediately above it and make any applicable Filings.

5. Domestic Procurement. To the greatest extent practicable and consistent with applicable law, the parties agree to use reasonable best efforts to give preference to purchasing, acquiring or using goods, products or materials produced in the United States (including but not limited to iron, aluminum, steel, cement and other manufactured products). Vendor shall include or cause to be included this requirement in any subcontract in connection with this Agreement.

6. Other Compliance. The parties agree to cooperate in good faith to ensure that this Agreement complies at all times with all applicable requirements set forth in Appendix II to the Uniform Rules (Contract Provisions for Non-Federal Entity Contracts Under Federal Awards) under 2 C.F.R. § 200.
   
   

No Waiver. No waiver by Customer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Customer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Amendment and Modification. Customer may amend or modify these Terms in its sole discretion with no prior notice to Vendor.

Assignment. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Customer. Any purported assignment or delegation in violation of this Section 19 shall be null and void. No assignment or delegation shall relieve Vendor of any of its obligations hereunder. Customer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Vendor’s prior written consent to any affiliate or to any person acquiring all or substantially all of Customer’s assets.

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, employment or fiduciary relationship 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 these Terms or from any Rate Confirmation.

No Third-Party Beneficiaries. Except as expressly set forth herein, these Terms and all Rate Confirmations are for the sole benefit of the parties thereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.

Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of Los Angeles, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

Cumulative Remedies. The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the applicable Rate Confirmation or to such other address that may be designated by the receiving party in writing (email being sufficient). All Notices shall be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail, or e-mail. Notices shall be deemed given (a) when delivered personally by hand, (b) on the date sent by e-mail sent, or (c) when received by the addressee if sent by nationally recognized courier. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

Severability. If any term or provision of this Agreement 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 invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.