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.
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.
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.
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.
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.
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.
b. DISCLAIMER. EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. SOME JURISDICTIONS DO NOT ALLOW CERTAIN WARRANTIES TO BE DISCLAIMED. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED.
c. LIMITATION OF LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INDEMNIFICATION OBLIGATIONS (I) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF RESTAURANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $1,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
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.