EVERYTABLE, PBC

EVERYTABLE, PBC
FOOD SERVICES TERMS AND CONDITIONS
These Food Services Terms and Conditions (the "Terms and Conditions"), together with any order form(s) that incorporate them by reference (each, an "Order Form"; the Terms and Conditions and Order Form(s), collectively, this "Agreement"), constitute the entire agreement between Everytable, PBC, a Delaware public benefit corporation ("Everytable"), and the customer identified on the applicable Order Form (the "Customer"), and supersede all prior or contemporaneous agreements, understandings, negotiations, representations, and communications, whether written or oral, relating to their subject matter. Everytable and Customer are each a "Party" and together the "Parties." In the event of a conflict between these Terms and Conditions and an Order Form, the Order Form controls with respect to the transaction it governs.
1. Food Services. Everytable will provide prepared meal products ("Products") and related services ("Services") for purchase by Customer at the prices stated in the applicable Order Form (such prices, together with delivery and other charges, the "Fees"), and will deliver the Products to the location(s) specified in the Order Form. Everytable may use its employees, affiliates, subcontractors, and third-party carriers to perform the Services. Delivery dates and times are good-faith estimates only; Everytable will use commercially reasonable efforts to meet them and will notify Customer of material changes to expected delivery.
2. Customer's Obligations. Customer will: (i) cooperate with Everytable and provide safe and timely access, facilities, and information reasonably necessary for the preparation and delivery of Products and Services; (ii) respond promptly to Everytable’s requests for information or decisions needed for delivery; (iii) receive, inspect, store, handle, and hold Products in accordance with applicable food-safety laws and Everytable’s reasonable handling instructions, including maintaining required temperatures, until the Products reach the end consumer; and (iv) in the event of a recall or withdrawal initiated by Everytable or required by any authority, immediately follow Everytable’s instructions, including removing affected Products from service or commerce. Everytable is not liable for any cost, loss, or delay to the extent caused by Customer’s or its personnel’s or agents’ acts or omissions.
3. Orders, Changes, and Cancellations. Customer will submit each order, and any change to or cancellation of an order, in writing to its assigned Everytable Partner Success Manager. To be effective, a change or cancellation must be received at least five (5) business days before the scheduled delivery date for the affected Products (the "Delivery Date"), or, for any order of 500 or more meals for a single Delivery Date, at least seven (7) business days before the Delivery Date. Everytable is not obligated to accept, and may charge Customer the full Fees for, any order, change, or cancellation received after the applicable deadline. In all events, Customer remains responsible for the Fees for any Products already prepared, procured, or in transit at the time a change or cancellation is received. Cancellation or reduction of orders does not relieve Customer of any Minimum Purchase Commitment stated in an Order Form. Everytable may adjust Fees to reflect changes in food and other input costs upon at least thirty (30) days’ prior written notice; adjusted Fees apply to Delivery Dates occurring after the notice period.
4. Fees; Taxes; Payment Terms; Late Payments. Customer will pay all Fees stated in the applicable Order Form. Delivery Fees may be adjusted for changes in delivery location by written agreement of the Parties. Fees are exclusive of taxes; Customer is responsible for all sales, use, excise, and similar taxes arising from the Products and Services, other than taxes based on Everytable’s net income, unless Customer timely provides a valid exemption certificate. Undisputed invoices are due within fifteen (15) days after receipt, payable in U.S. dollars by the method specified in the Order Form. Customer must submit any invoice dispute in writing, with a reasonable explanation, within five (5) business days after the invoice date; amounts not disputed within that period are deemed accepted and payable. For any undisputed amount not paid when due, Everytable may (i) charge interest at the lesser of 1.5% per month or the maximum rate permitted by law; (ii) suspend deliveries until payment is received; and (iii) recover its reasonable costs of collection, including attorneys’ fees, as provided in Section 18.
5. Term and Termination. The term of this Agreement begins on the Effective Date stated in the Order Form and continues for the initial term stated there (the "Initial Term"), and automatically renews for successive periods of equal length (each, a "Renewal Term"; together with the Initial Term, the "Term") unless either Party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Term. Everytable may terminate this Agreement or any Order Form (a) for convenience upon thirty (30) days’ written notice, or (b) immediately upon written notice if Customer fails to pay any undisputed amount within thirty (30) days after its due date, fails to meet a Minimum Purchase Commitment, materially breaches this Agreement, or becomes insolvent or subject to bankruptcy or similar proceedings. Customer may terminate this Agreement only for Everytable’s material breach that remains uncured thirty (30) days after Customer’s written notice describing the breach. If this Agreement is terminated by Everytable for Customer’s breach, or by Customer for convenience or non-renewal, in each case before Customer has satisfied any applicable Minimum Purchase Commitment, Customer will pay the difference between the Minimum Purchase Commitment and Customer’s actual purchases. If this Agreement is terminated by Everytable for convenience or by Customer for Everytable’s uncured material breach, any unmet Minimum Purchase Commitment is waived. Termination does not affect amounts accrued before termination or Products already prepared, procured, or in transit, which remain payable.
6. Title and Risk of Loss. Title to and risk of loss of Products pass to Customer upon delivery to the location specified in the Order Form (or, for Customer-arranged pickup, upon Everytable’s tender of the Products). Everytable retains no security interest in Products after delivery.
7. Intellectual Property. All intellectual property rights in materials Everytable delivers to Customer or develops in performing the Services—including copyrights, patents, trademarks, trade dress, trade secrets, recipes, and know-how (collectively, "Intellectual Property Rights")—are and remain owned by Everytable. Everytable grants Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, royalty-free, revocable license to use such Intellectual Property Rights solely as necessary to receive and use the Services during the Term. Customer will not use Everytable’s names, logos, or marks without Everytable’s prior written consent.
8. Food Safety; Allergens; Recalls. Everytable will prepare and handle Products in accordance with applicable food-safety laws and regulations, including the Federal Food, Drug, and Cosmetic Act and the Food Safety Modernization Act, and will maintain its registration with the U.S. Food and Drug Administration. Everytable will make allergen and ingredient information available for the Products; Customer is responsible for conveying that information to end consumers and for collecting and honoring any allergen or dietary restrictions of its end consumers. Each Party will promptly notify the other of any suspected food-safety issue, contamination, illness, or quality complaint relating to the Products and will cooperate reasonably in any investigation, recall, or withdrawal. Customer is responsible for proper storage, temperature control, and handling of Products after delivery.
9. Everytable Representations and Warranties. Everytable represents and warrants that: (i) it will perform the Services in a professional and workmanlike manner consistent with recognized industry standards; (ii) at the time of delivery, the Products will conform in all material respects to the applicable specifications, will be fit for human consumption, and will be free from material defects; (iii) it has the right to sell and transfer the Products free of liens; (iv) the Products will be prepared in compliance with applicable food-safety laws; and (v) it maintains its FDA registration. Except for claims of death, bodily injury, or illness, or as otherwise required by law, Customer’s sole and exclusive remedy, and Everytable’s entire liability, for breach of the warranty in clause (ii) is, at Everytable’s option, replacement of the nonconforming Products or refund of the Fees paid for them, provided that Customer gives Everytable written notice of the nonconformity (reasonably described, with photographs where applicable) within one (1) business day after Customer discovers or should have discovered it.
10. Customer Representations and Warranties. Customer represents and warrants, on a continuing basis, that: (i) it will use the Products solely for service to its own employees, students, patrons, program participants, or other end consumers as contemplated by the applicable Order Form, and not for resale except as expressly permitted in the Order Form; (ii) it will store, handle, and serve the Products in compliance with applicable food-safety laws and Everytable’s reasonable handling instructions; (iii) it will promptly correct, and notify Everytable of, any food-safety issue within its control; (iv) it has the financial ability to pay the Fees when due; and (v) it is not, and during the Term will not be, in material default of its material credit obligations.
11. Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES IN SECTION 9, AND EXCEPT FOR ANY IMPLIED WARRANTY THAT MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW WITH RESPECT TO FOOD SOLD FOR HUMAN CONSUMPTION, EVERYTABLE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.
12. Limitation of Liability. EXCEPT FOR THE EXCLUDED CLAIMS DESCRIBED BELOW: (A) NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOST PROFITS, REVENUE, OR DATA, REGARDLESS OF THE THEORY OF LIABILITY AND EVEN IF ADVISED OF THE POSSIBILITY; AND (B) EVERYTABLE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO EVERYTABLE IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESE LIMITATIONS DO NOT APPLY TO (THE "EXCLUDED CLAIMS"): (1) CUSTOMER’S PAYMENT OBLIGATIONS; (2) A PARTY’S INDEMNIFICATION OBLIGATIONS; (3) BREACH OF CONFIDENTIALITY; (4) CLAIMS FOR DEATH, BODILY INJURY, OR ILLNESS, OR DAMAGE TO TANGIBLE PROPERTY, CAUSED BY A PARTY’S NEGLIGENCE OR WILLFUL MISCONDUCT; OR (5) A PARTY’S FRAUD, WILLFUL MISCONDUCT, OR VIOLATION OF LAW. NOTHING IN THIS AGREEMENT LIMITS ANY LIABILITY THAT MAY NOT BE LIMITED UNDER CALIFORNIA CIVIL CODE SECTION 1668 OR OTHER APPLICABLE LAW.
13. Indemnification. (a) Customer will defend, indemnify, and hold harmless Everytable and its affiliates, officers, directors, employees, and agents from and against any third-party claim, and resulting losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) ("Losses"), arising from (i) Customer’s breach of this Agreement, (ii) Customer’s violation of applicable law, (iii) the negligence or willful misconduct of Customer or its personnel or agents, or (iv) Customer’s storage, handling, or service of Products after delivery. (b) Everytable will defend, indemnify, and hold harmless Customer and its affiliates from and against any third-party claim, and resulting Losses, arising from (i) Everytable’s violation of applicable law, (ii) the negligence or willful misconduct of Everytable, including any claim that a Product supplied by Everytable caused death, bodily injury, or illness due to Everytable’s negligence, or (iii) any claim that the Intellectual Property Rights licensed under Section 7, as used as authorized, infringe a third party’s intellectual property rights. (c) The indemnified Party will give the indemnifying Party prompt written notice of the claim (failure to give prompt notice relieves the indemnifying Party only to the extent it is prejudiced), permit the indemnifying Party to control the defense and settlement (except that no settlement imposing any non-monetary obligation or admission of fault on the indemnified Party may be entered without its consent, not to be unreasonably withheld), and reasonably cooperate at the indemnifying Party’s expense.
14. Insurance. Each Party will maintain, at its own expense, (i) Commercial General Liability insurance of at least $1,000,000 per occurrence and $2,000,000 in the aggregate; and (ii) workers’ compensation insurance as required by law and employer’s liability insurance of at least $1,000,000. Everytable will also maintain (iii) Commercial Automobile Liability insurance of at least $1,000,000 per accident; (iv) product liability / products-completed-operations coverage of at least $[——] (which may be provided within its CGL or umbrella policy); and (v) umbrella or excess liability insurance of at least $5,000,000. Upon request, each Party will provide certificates of insurance. Where required by an Order Form, Everytable will name Customer as an additional insured on its CGL policy on a primary and non-contributory basis with respect to Everytable’s indemnity obligations under Section 13, with a waiver of subrogation to the extent commercially obtainable.
15. Confidentiality. Each Party (as "Recipient") will keep confidential, and use only to perform this Agreement, the other Party’s (as "Discloser") non-public business, pricing, and technical information disclosed under this Agreement, including the Fees and the terms of any Order Form ("Confidential Information"), and will protect it with at least reasonable care. Confidential Information does not include information that is or becomes public without Recipient’s breach, was known to Recipient without a duty of confidence, is independently developed, or is rightfully received from a third party. Recipient may disclose Confidential Information to the extent required by law or legal process, provided it gives the Discloser reasonable prior notice where lawful. This Section does not restrict Everytable’s use of aggregated or de-identified data. The Parties agree that a breach of this Section may cause irreparable harm for which injunctive relief is an appropriate remedy.
16. Force Majeure. Neither Party is liable for any delay or failure to perform (other than payment obligations) to the extent caused by events beyond its reasonable control, including acts of God, fire, flood, severe weather, epidemic or pandemic, labor disputes, supply-chain or utility failures, transportation disruptions, terrorism, or governmental action (a "Force Majeure Event"). The affected Party will promptly notify the other and use commercially reasonable efforts to resume performance. If a Force Majeure Event continues for more than thirty (30) days, either Party may terminate the affected Order Form on written notice, without liability except for amounts accrued before termination.
17. Data Privacy; Compliance with Laws. Each Party will comply with all laws applicable to its performance under this Agreement. Each Party will comply with applicable data-protection laws, including the California Consumer Privacy Act as amended, with respect to any personal information it handles in connection with this Agreement, and will limit the personal information it shares with the other Party to what is reasonably necessary. Where an Order Form involves personal information of students or other regulated populations (for example, information subject to the Family Educational Rights and Privacy Act), the Parties will enter into any additional data-protection or privacy addendum required by applicable law.
18. Governing Law; Dispute Resolution. This Agreement is governed by the laws of the State of California, excluding its conflict-of-laws rules. Except for claims for injunctive or other equitable relief and actions to collect undisputed amounts owed—which may be brought in the state or federal courts located in Los Angeles County, California—any dispute arising out of or relating to this Agreement will be finally resolved by binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures (or its Streamlined Rules for disputes under $250,000), before a single arbitrator, seated in Los Angeles, California, under the Federal Arbitration Act. Each Party waives any right to bring or participate in any class, collective, or representative proceeding; all disputes will be arbitrated on an individual basis only. The arbitration and its outcome are confidential except as necessary to enforce an award. If a court of competent jurisdiction determines that a dispute is not subject to arbitration, the Parties agree that the dispute will be resolved by a general judicial reference to a referee under California Code of Civil Procedure sections 638 et seq., who will hear and determine all issues, whether of fact or law, and report a statement of decision. Each Party knowingly waives trial by jury to the fullest extent permitted by law and, to the extent such waiver is not enforceable, consents to the judicial reference described above. The prevailing Party in any proceeding to enforce this Agreement is entitled to recover its reasonable attorneys’ fees and costs.
19. Miscellaneous.
(a) Assignment. Customer may not assign this Agreement without Everytable’s prior written consent; Everytable may assign this Agreement to an affiliate or in connection with a merger, reorganization, or sale of assets. Any prohibited assignment is void.
(b) Notices. Notices must be in writing and sent to the addresses stated on the Order Form (or as updated by notice) by personal delivery, nationally recognized courier, or email with confirmation of receipt, and are effective upon receipt.
(c) Amendment. Everytable may amend these Terms and Conditions from time to time by posting the revised version and giving Customer at least thirty (30) days’ prior notice (by email or through Customer’s account). Revised Terms and Conditions apply prospectively to orders with Delivery Dates after their effective date and do not alter the pricing or committed quantities of orders already accepted. Customer’s continued submission of orders after the effective date constitutes acceptance. No other amendment is effective unless in a writing signed by both Parties.
(d) Independent Contractors. The Parties are independent contractors; nothing in this Agreement creates a partnership, joint venture, agency, or employment relationship.
(e) No Third-Party Beneficiaries. This Agreement is solely for the benefit of the Parties and creates no third-party beneficiary rights.
(f) Waiver. No waiver is effective unless in writing and signed by the waiving Party; no failure or delay in exercising any right operates as a waiver of it.
(g) Severability. If any provision is held unenforceable, it will be modified to the minimum extent necessary to make it enforceable or, if it cannot be, severed, and the remaining provisions will remain in full force and effect.
(h) Survival. Sections 4 (as to accrued Fees), 6, 7, 9 (as to accrued claims), 11 through 13, 15, 17, 18, and 19 survive termination or expiration of this Agreement.
(i) Counterparts; Electronic Signatures. Order Forms may be executed in counterparts and by electronic signature, each of which is deemed an original and all of which together constitute one instrument.
(j) Headings. Headings are for convenience only and do not affect interpretation.
(k) Entire Agreement. This Agreement is the entire agreement between the Parties regarding its subject matter and supersedes all prior or contemporaneous understandings relating to it.