Supplier Terms and Conditions

Pomegranate Technologies Inc. dba “Pepper”
Pepper Pantry Supplier Terms and Conditions
Last Updated: April 30, 2020

These Pepper Pantry Supplier Terms and Conditions (this “Agreement”) is a binding contract that governs your access to the Pepper Services (as defined below). You are a supplier of grocery products such as food, beverages and related supplies (“you” or “Supplier”). We are Pomegranate Technologies Inc. dba “Pepper”, a Delaware limited liability company (“Pepper). Pepper makes available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for such grocery products (“Products”) from you to your end customers who order Products through the Pepper Services. This includes on-demand lead generation, mobile applications, payment processing, marketing, advertising and promotional services, onboarding, operational and other support services (the “Pepper Services”). Access to and use of the Pepper Services is available only to individuals who are at least 18 years of age and can form legally binding contracts under applicable law. By using the Pepper Services, signing up for promotional communications, offering for sale and selling Products to Your Customers (as defined below), and/or creating an Account (also as defined below) with us, you agree to be bound fully by this Agreement, without change, as are published at such time.  

Please read this Agreement carefully, and if you don’t agree with what it requires, you may not use the Pepper Services. We may amend this Agreement from time to time, and the revised version will be effective when posted on our website, through our mobile app or as otherwise made available to you. Any revised Agreement will supersede previous versions. This Agreement was last updated on the date set forth above and applies to all uses, purchases or registrations occurring after that date. Any updates or revisions to this Agreement shall not apply retroactively, e.g., to past sales. While we will use reasonable efforts to provide you advance notice of any important revisions, we recommend that you regularly review this Agreement because your continued use of the Pepper Services after we make any changes to it constitutes your agreement to any updated version.

1. The Pepper Services. Subject to the terms and conditions of this Agreement, Pepper will make available the Pepper Services to you in connection with the agreed-upon locations you own and operate. In connection with the provision of the Pepper Services to you, Pepper may, on your behalf, respond to complaints by your end-customers (“Your Customers”) about Products you sold via the Pepper Services. For the avoidance of doubt, Pepper retains sole control over the Pepper Services. The Pepper Services provide technology services enabling you to connect with Your Customers who may purchase Products from you. The Pepper Services do not include or facilitate delivery services and all delivery of Products is your sole responsibility. You acknowledge that Pepper will collect Sales Tax (as defined in Section 4(b) below) on all taxable sales on your behalf, and it will be your responsibility to remit such Sales Tax to the applicable tax jurisdiction.

2. Restrictions. By using the Pepper Services, you acknowledge and agree as set forth below:

a. You will not, nor will you encourage any third party to, do any of the following:  (i) remove any copyright, trademark or other proprietary notices from any portion of the Pepper Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Pepper Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Pepper Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Pepper Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying or otherwise data mining any portion of the Pepper Services or unduly burdening, interfering with or hindering the operation or functionality of any aspect of the Pepper Services; (vi) attempt to gain unauthorized access to or impair any aspect of the Pepper Services or its related systems or networks; (vii) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation to, through, or with any assistance from, the Pepper Services; or (viii) otherwise use the Pepper Services in any manner not permitted by this Agreement or in violation of applicable law.

b. You will not post, upload, publish, submit or transmit any content on or through the Pepper Services that: (i) infringes, constitutes the misappropriation of or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances.
c. You acknowledge that we have no obligation to monitor your access to or use of the Pepper Services, or to review or edit any of Your Information (as defined below), but we have the right to do so for the purpose of operating the Pepper Services, to ensure your compliance with these Terms, to investigate a complaint or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. 

3. Your Obligations. You acknowledge and agree to the following:
a. Your Supplier Account. To sell Products via the Pepper Services, you will need to set up a Supplier account (an “Account”), which requires you to provide a valid bank account, as well as other requested information including your business name, applicable tax documentation (i.e., copies of sales tax licenses and/or permits), address, phone number, applicable locations, Product catalog, applicable Product pricing, and available delivery days. Your Account information must be true, accurate and complete, and updated from time to time as needed. Your Account is personal to you, it may not be transferred without our prior written consent and you are responsible for all activity that occurs under it. You must let us know immediately if you suspect any unauthorized use of your Account, and we have the right to temporarily or permanently suspend or deactivate it if it contains incomplete or inaccurate information or if we suspect fraudulent activity.
b. Necessary Licenses. You have all necessary rights, licenses and authorizations (governmental or otherwise) to sell the Products via the Pepper Services in the manner contemplated by this Agreement, and there is nothing legally preventing you from selling Products directly to Your Customers via the Pepper Service. 

c. Compliance with Applicable Law (Including Food Safety). You will make Products available for purchase through the Pepper Services during your normal business hours and in compliance with all applicable laws and regulations, including those governing food safety (e.g., preparation, storage, handling, required time or temperature controls). 

d. Product Responsibility. Pepper never takes title to or possession of any Products. You are responsible for any reimbursement costs to Your Customers with any refund requests for any purchased Products (including any costs associated with retrieving any such Products). Pepper may, in its sole discretion, deduct such reimbursement costs from the payment Pepper remits to you in accordance with Section 4 below. It is also your responsibility to ensure that your Product inventory listed on the Pepper Service is the same as what you actually provide (e.g., if you are advertising fresh tuna, you are not permitted to deliver canned tuna). You are required to contact Pepper with any catalog or inventory updates in the event any of your advertised Products on the Pepper Service are sold out, no longer available or otherwise. 

e. Delivery.  As between you and Pepper, delivery of Products to Your Customers is your responsibility. This includes ensuring delivery occurs on the agreed delivery date for each of Your Customers. You are required to contact us immediately if you are unable to fulfill any particular delivery request from any of Your Customers. Pepper does not provide delivery services.

f. Your Locations. This Agreement applies to your locations included in your Account or as otherwise communicated to and agreed by us, as updated from time to time.

4. Fees and Taxes.
a. Fees. In consideration for use of the Pepper Services, Pepper will charge you a fee that is a percentage of the total price paid for Products (excluding any tax, service fee or tips paid by Your Customer) (the “Retail Price”) in the applicable order from Your Customer (the “Fee”). Unless otherwise agreed by the parties in writing, such percentage is fifteen percent (15%). All Product Payments (as defined below) under this Agreement will be paid in U.S. Dollars and remitted to you within fifteen (15) days after the date of purchase by Your Customer. Pepper will deduct the foregoing Fee from the Product Payments Pepper collects on your behalf from Your Customer, as detailed in Section 4(c) below. Pepper reserves the right to suspend your ability to make Products available for purchase by Your Customers through the Pepper Services if your Account is in arrears. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.
b. Retail Prices; Taxes. You are responsible for determining and setting the Retail Price for each Product to be made available for sale via the Pepper Services. As part of the Pepper Services, we may recommend various pricing for Products, which you may use as the applicable Retail Price for your Products at your discretion. You, and not Pepper, are the “retailer” or “seller”. For each purchase made by Your Customer through the Pepper Services, Pepper collects Sales Tax (as defined below) on your behalf and passes it through to you (for the sake of clarity, it is your responsibility to ensure all applicable Sales Tax is remitted to the appropriate taxing authority). The term “Sales Tax” includes any sales, sellers use, use, transaction privilege, privilege, general excise, gross receipts and similar transaction taxes. For the sake of clarity, the Retail Price for each Product excludes Sales Tax or any other fees. You are solely responsible for determining all applicable Sales Tax and other fees, and providing such information to Pepper for Pepper to charge Your Customers on your behalf. Further, you expressly authorize Pepper, at your direction, to collect such Sales Tax and other fees on your behalf, as well as any additional taxes resulting from your use of the Pepper Services.

c. Appointment of Limited Payment Collection Agent. You are solely responsible for providing Pepper with, and maintaining, accurate bank account information. You hereby appoint Pepper as your limited payment collection agent solely for the purposes of (i) accepting payment of the Retail Price of Products sold by you via the Pepper Services plus any applicable Sales Tax and other amounts (such as tips) and fees collected on your behalf, via the payment processing functionality facilitated by the Pepper Services and (ii) remitting to you the Retail Price and any other amounts (such as tips) or fees collected on your behalf (including applicable Sales Tax) less the retained Fee, any applicable Sales Tax for use of the Pepper Services and any other fees collected by Pepper from Your Customer (“Product Payments”). You also authorize Pepper to provide any applicable refunds to Your Customers on your behalf where applicable. Further, you agree that payment collected on your behalf by Pepper will be considered the same as payment made directly to you. You agree that if you do not receive payment from Pepper, your only recourse will be against Pepper. Pepper may, from time to time, request information from you to confirm your identity as may be necessary under any applicable compliance obligations before remitting any amounts to you and may refuse to process amounts owed to you if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to you. You agree that Pepper may describe or otherwise reflect the terms of this Section in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, Pepper may adjust the remittance of Product Payments collected on your behalf for reasons including failure to fulfill a Product as ordered or making a correction on a Product. You may identify any disagreements in connection with such adjustments through the Pepper Services or otherwise contact Pepper as set forth in this Agreement. Pepper reserves the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Product Payments collected on your behalf, by debiting the payment method or your bank account on record, or otherwise seeking reimbursement from you by any lawful collection methods available. You authorize Pepper to use any or all of the above methods to seek such adjustments and reimbursements. In situations such as fraud (including any charges for Products that Your Customers state did not take place) or complaints from Your Customers, Pepper reserves the right to cancel a payment entirely. This Section gives Pepper your express consent for Pepper to adjust payments collected on your behalf.

5. Intellectual Property.
a. Trademarks. Subject to the terms and conditions of this Agreement, each party hereby grants to the other party a limited, non-exclusive and non-transferable license during the Term to use such party’s respective trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia (collectively, “Marks”), on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to Pepper Service. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior written consent of the other party (by email is sufficient), provided that the use or display of your Marks by Pepper in connection with making Products available through the Pepper Services in the ordinary course of business will not require any such prior consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved.

b. Marketing. Pepper may market and promote the availability of your Products via the Pepper Service through its various promotional activities such as social media, blogs, its website or on the Pepper Services generally. With respect to any materials (whether still imagery, videos or otherwise) provided by you to Pepper for use in connection with the display of your Products on the Pepper Services, you hereby grant Pepper a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such materials in connection with your Products and other promotional activities relating to Pepper Service (and you will not include any third party materials in such provided materials unless you have obtained all necessary rights and licenses to do so).

c. Your Information.  As between you and Pepper, you own all information you make available for use in connection with the Pepper Services (“Your Information”). Subject to terms and conditions of this Agreement, you grant Pepper a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute Your Information for the following purposes:  (i) to provide, maintain and update the Pepper Services (including in connection with the promotion and marketing of the Pepper Services and your Products); (ii) to prevent or address service, security, support or technical issues; (iii) as required by law; and (iv) as expressly permitted in writing by you. 
Additionally, from time to time you may be able to submit content to Pepper (such as if you participate in a user forum, share tips to the Pepper Services’ community or comment on a blog post). You retain ownership of this content, but you represent and warrant that you have the right to provide it to Pepper. When you do so, you are granting Pepper and our affiliated and related entities a worldwide, non-exclusive license to access, use, host, store, reproduce, modify, create derivative works based on, communicate, publish, publicly perform, publicly display and distribute it as well as your name, voice and/or likeness if also submitted by you. This license continues even if you stop using the Pepper Services. If you submit feedback or suggestions about the Pepper Services, Pepper may use your feedback or suggestions without obligation to you, and any content you submit in such instance is deemed non-confidential. You may not submit any defamatory, libelous, hateful, violent, obscene, pornographic, unlawful or otherwise offensive content, or content that constitutes “spam” or unsolicited advertising. Pepper has the right, but not the obligation, to review, monitor or remove your content (including Your Information) at any time for any reason without notice to you.

6. Confidentiality & Privacy.
a. Definition. “Confidential Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the “Disclosing Party”) to the other (the “Receiving Party”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of your Products to Your Customers through the Pepper Services, as well as the terms and conditions of this Agreement. Confidential Information does not include information that (i) was previously known to the Receiving Party without an obligation of confidentiality, (ii) was acquired by the Receiving Party without any obligation of confidentiality from a third party with the right to make such disclosure, or (iii) is or becomes publicly available through no fault of the Receiving Party. The Receiving Party agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Disclosing Party’s Confidential Information. The Receiving Party will ensure that Confidential Information will only be made available to its respective officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). The Receiving Party will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for their breach of this Agreement. The Receiving Party will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Disclosing Party’s Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent the Receiving Party is required to disclose certain Proprietary Information of the Disclosing Party as a matter of law or by order of a court, provided that the Receiving Party gives the Disclosing Party prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by the Disclosing Party, the Receiving Party will deliver to the Disclosing party (or destroy at the Disclosing Party’s written election) any and all materials or documents containing the Disclosing Party’s Confidential Information, together with all copies thereof in whatever form.

b. Privacy. You agree to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Products under this Agreement. You will maintain the accuracy and integrity of any Personal Data provided by Pepper and in your possession, custody or control. You  agree to retain Personal Data provided to you by Pepper solely by using the software and tools provided by Pepper. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person, (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
7. Ratings From Your Customers. You acknowledge and agree that, after receiving Products, Your Customer may be prompted by Pepper Services to provide a rating of such Products and, at their option, to provide comments or feedback related to their experience with you and the relevant Products on the Pepper Services (“Your Customer Feedback”). Pepper reserves the right to use, share, and display any of Your Customer Feedback in any manner in connection with its business, products and services without attribution to you or your approval. You acknowledge that Pepper is a distributor (without any obligation to verify) and not a publisher of Your Customer Feedback, provided that Pepper reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or Pepper’s content policies. If we determine that you are not meeting the minimum standards of quality and service expected of suppliers on the Pepper Services, we may reach out to you in an attempt to resolve the issue and/or temporarily suspend or permanently terminate your Account. We also reserve the right to put limits on your Account, lower your visibility and/or search placement across the Pepper Services until you resolve outstanding issues, and/or deny signing up any affiliated, related or duplicate accounts.

8. Representations and Warranties, Disclaimer & Limitation of Liability.
a. Representations and Warranties. Each party hereby represents and warrants that (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder, (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin, (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement, (iv) it will comply with all applicable laws and regulations in the performance of this Agreement (including all applicable data protection and privacy laws and, in the your case, all applicable food safety standards, laws and regulations), and (v) the content, media and other materials used or provided as part of this Agreement (including Your Information) will not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party. Additionally, you represent and warrant that you have all rights, licenses and permissions necessary (governmental or otherwise) to offer for sale and sell the Products you choose to make available via the Pepper Services. 



9. Indemnification.
a. Mutual Obligations. Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party and its directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement, (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement, (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party or (iv) with respect to you, your violation or alleged violation of any applicable laws with respect to sales, food or other health and safety code requirements. 

b. Procedure. The Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

10. Insurance.  During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

11. Publicity. Except as expressly permitted in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

12. Notices. Any and all notices to Pepper permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given (a) upon actual delivery, if delivery is by hand, (b) one (1) day after being sent by overnight courier, charges prepaid, or (c) by electronic mail to the designated recipient. Notices to Pepper should be provided to Pomegranate Technologies, Inc., 511 West 25th Street, Suite 4-105, New York, NY 10001. Notices to you will be sent to the contact information you’ve included in your Account.

13. Miscellaneous. This Agreement shall be construed and governed according to the internal substantive and procedural laws of the State of New York excluding choice of law principles. You agree to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of Pepper. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of a court of competent jurisdiction, the remainder of this Agreement and the remaining terms and conditions contained herein will remain in full force and effect. Any delay in or failure by either party in performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, health pandemics, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a Force Majeure Event). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with this Agreement (and for the avoidance of doubt, as between you and Pepper, you shall be solely responsible for any individuals providing delivery services on your behalf). This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. Provisions that by their nature are intended to survive the termination of this Agreement or your use of the Pepper Services will survive. We may terminate this Agreement or your use of the Pepper Services, or generally cease offering or deny access to any portion of the Pepper Services, at any time in our sole discretion without notice. You may stop using the Pepper Services at any time, or terminate your Account at any time on written notice to us, subject to your payment of any amounts owed at the time of such termination. If we believe there has been a violation of this Agreement, we have the right to investigate and notify law enforcement if we deem necessary. As part of any investigation, we cooperate with law enforcement and will take legal whatever action we deem appropriate under the circumstances.