Last Updated: July 30, 2020
Welcome to the online marketplace connecting local producers with wholesale purchasers, offered to you by FoodChain, LLC (“FoodChain” or “we” or “us”).
Application, Registration & Account
In addition, as part of the application and registration as a Producer, copies of all applicable licenses, permits, registrations, certifications and other authorizations issued by any governmental body must be provided to FoodChain. Each Producer is responsible for promptly delivering to FoodChain copies of any new or updated versions of any of the foregoing. Each Producer is also required to provide copies of applicable certificates of insurance, as may be requested from time to time by FoodChain. Those registering as a Purchaser will be required to provide FoodChain with a copy of any applicable State sales and use tax exemption certificate.
During the application and registration process, you will be asked to create an account and establish a password for the Site. You are responsible for maintaining the confidentiality and security of your account and password. You must immediately notify FoodChain upon the discovery of any security breach. FoodChain is not liable for any loss or damages arising out of or related to any security breach that is not reported to FoodChain.
You agree to accept responsibility for all activities that occur in connection with your account or password. You agree to safeguard your account password from access by others. You agree to indemnify and hold harmless FoodChain for losses incurred by FoodChain arising from or related to the use of your account or password, including any unauthorized use.
You agree to promptly provide FoodChain with any and all updates to information submitted during the application and registration process.
FoodChain may require you to provide additional financial, business or personal information to verify your identity.
FoodChain reserves the right to disable any username or password at any time, and to terminate, reject, cancel or suspend an account at any time, without notice.
Producers – Products & Content
The online marketplace offered by FoodChain on the Site provides Producers with access to publish, market and sell products direct to wholesalers, retailers and consumers. You are required to provide complete and accurate information for each product published to your account on the Site. Only products that comply with all applicable laws and regulatory requirements are permitted to be published and sold on the Site.
You represent and warrant that you own or license all content or other information provided by you to FoodChain, including any content related to your company or any of your products to be published on the Site. You further represent and warrant that all content or other information provided by you to FoodChain is true and accurate in all respects and does not contain any omission of material fact that causes the content or other information to be misleading. You further represent and warrant that none of the following violates any laws or regulations, or infringes upon any intellectual property rights of any third party: (i) the transfer and provision of any content or other information by you to FoodChain, (iii) the publication or posting of such content or other information on the Site, or (iii) our use of such content or other information (including works derived therefrom) in connection with the Services.
When providing FoodChain with content or posting content on the Site, or otherwise using the Services, you grant FoodChain a non-exclusive, worldwide, perpetual, irrevocable, royalty-free right to exercise any and all copyright, publicity, trademarks, database rights and intellectual property rights you have in the content.
You are solely responsible for creating and establishing the content to be included in the “Store Front” located on the Site and the content contained in each product listed for sale on the Site, including, without limitation, all product descriptions, pictures, and product attributes (including quantities and portion sizes of products to be sold). You are also solely responsible for establishing the price of each product listed for sale on the Site. All content listed on the Site must be complete and accurate in all respects.
You are solely responsible for the packaging and labeling of all products to be sold on the online marketplace offered by FoodChain, and such products must be packaged and labeled in accordance with all applicable laws and regulations, and any policies or guidelines established by FoodChain and posted on the Site. FoodChain may refuse to publish any products for sale on the Site, or sell any products on behalf of a Producer, that FoodChain determines, in its sole discretion, do not comply with any of the foregoing.
FoodChain will enable you to publish and list your products on the online marketplace offered by FoodChain, display your products under the appropriate categories, and promote your products as permitted by us. FoodChain allows for Purchasers and other users of the Site to rate your products and your performance as a Producer. FoodChain may make these ratings and feedback publicly available.
Ownership of Products
FoodChain operates as an online marketplace that allows users to offer, sell and buy food. As a marketplace, FoodChain itself does not own or sell the products listed on the Site.
While FoodChain will take custody of products on behalf of a Producer upon delivery to the applicable FoodChain facility and during the time that such products are located at the facility, FoodChain will not take title to or ownership of any product at any time. Title to and ownership of any product delivered to FoodChain by a Producer will remain solely with the Producer at all times until it is delivered to and accepted by the Purchaser, at which time title and ownership of such product shall transfer directly from the Producer to the Purchaser.
Each Producer shall be solely responsible for the care, custody and control of products at all times prior to FoodChain’s inbound receipt of such products at the applicable FoodChain facility and after tender of delivery of such products at such FoodChain facility by FoodChain to outbound carriers.
Storage of Products
FoodChain provides for limited storage of products at its facilities. FoodChain agrees to maintain the facilities and perform the services specified herein in accordance with applicable laws and regulations. Notwithstanding the foregoing, FoodChain shall not be responsible for maintaining its facilities or performing services in compliance with any of the foregoing to the extent such failure arises from or is attributable to any failure by a Producer to comply with its obligations hereunder.
Inventory and Order Management
FoodChain does not perform any inventory or order management services for Producers. Producers are responsible for maintaining appropriate inventory levels in order to timely fulfill all orders made on the online marketplace offered by FoodChain.
Each Producer is responsible for retrieving and disposing of products deemed recalled, rejected, discontinued or expired, at its own expense.
Shipping of Products – Producer Rights & Obligations
Each Producer shall have the right to deliver products on their own directly to FoodChain. Alternatively, a producer may select its preferred freight carrier for the transportation of products to FoodChain and shall be responsible for the freight cost of such transportation. If a Producer declines or fails to self-deliver or designate a preferred carrier, FoodChain may select the carrier and charge the Producer for the freight cost of transporting the products to FoodChain. FoodChain shall not charge a markup for the freight costs.
FoodChain shall be responsible, at its own expense, for coordinating the transportation of product(s) to a Purchaser following an order of product(s) on the Site.
FoodChain does not pre-screen its users or any information provided by its users. Accordingly, the actual sale and purchase transactions are directly between the Producers and Purchasers, the users of FoodChain. FoodChain merely provides an online platform to facilitate such transactions, and is not responsible for any disputes between the Producers and Purchasers.
You expressly acknowledge and agree that FoodChain has no control over, cannot, and does not in any way guarantee the existence, quality, safety or legality of items offered in this online marketplace, the truth or accuracy of Producers’ content or listings, the ability of Producers to sell products, the ability of Purchasers to pay for products, or that a Producer or Purchaser will actually complete a transaction or return any product.
Acceptance of Products
Upon delivery of products ordered by Purchaser, Purchaser shall be required to sign documentation in which Purchaser accepts the products into its possession and ownership of such products shall transfer to Purchaser at such time; provided, however, that Purchaser shall first have the opportunity to inspect all products delivered to Purchaser and the right to reject any product(s) delivered to Purchaser due to damage or other reasons.
In consideration of the Services offered, FoodChain charges both the Producer and Purchaser a service fee in an amount equal to five percent (5%) of the sale price for each transaction made via the online platform offered by FoodChain on the Site.
FoodChain reserves the right to charge additional fees or modify existing fees upon advance written notice to you.
Payment & Processing
For each transaction, the Producer shall receive a deposit into the Producer’s Stripe account in an amount equal to the sales price for the product(s) sold, less the applicable service fee charged by FoodChain, following the delivery of product(s) to the applicable Purchaser and payment for such product(s) by the applicable Purchaser.
Refund; Return of Product
FoodChain shall have the right to issue a refund to a Purchaser for of all or any portion of the sale price in connection with any product purchased by such Purchaser via the online marketplace on the Site if FoodChain determines, in its sole discretion, there is a valid reason for issuing a refund. In such event, FoodChain shall arrange for the return of the applicable product to Producer and Producer shall reimburse FoodChain for the amount of the refund issued to Purchaser.
Using the Site and Other Services
- Fail to pay for any products purchased by you or to deliver any products sold by you;
- Engage in any harassing, threatening, intimidating, predatory or stalking conduct;
- Post any false, inaccurate, misleading, defamatory, libelous, obscene, child-pornographic, harmful, racially, ethnically, or otherwise objectionable content;
- Distribute viruses or any other technologies that may harm FoodChain, or the interests or property of FoodChain users;
- Impersonate another person or log into an account which you are not authorized to access;
- List for sale illegal, counterfeit, or stolen items, or items that have been identified by FDA or USDA as posing possible health risks to consumers and therefore subject to a recall, or items that have otherwise been identified by various state or federal authority as unfit for sale or distribution, or other unsafe items;
- Use or attempt to use another user’s account without authorization from FoodChain;
- Use the Site in any manner that could interfere with, disrupt or negatively affect or inhibit other users from fully enjoying the use of the Site or that could damage, disable or impair the functionality of the Site in any manner;
- Interfere or attempt to interfere with service of the Site or any user, host or network, including by way of introducing a virus, overloading, “flooding” or crashing, or sending unsolicited e-mail, promotions or advertisements;
- Reverse engineer, decompile or disassemble any aspect of the Site or do anything that may discover source code or bypass or circumvent measures employed to prevent or limit access to any part of the Site; or
- Develop or use any third-party applications that interact with the Site without our prior written consent.
Links from the Site
If the Site contains links to other sites and resources provided by third parties, these links are provided for your convenience only. FoodChain has no control over the contents of those sites or resources and accepts no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third-party websites linked to the Site, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
The Site may include content provided by third parties. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by FoodChain, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of FoodChain. FoodChain is not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
License to Use; Intellectual Property Rights
FoodChain is the owner or licensee of all intellectual property rights in the Site, and in all material published on the Site. The Site is protected by the copyright laws of the United States and FoodChain retains all right, title and interest in and to the Site, including all intellectual property rights associated with the Site. Except as expressly provided above, you have no intellectual property rights in the Site (including any rights to use the trademarks, trade names, service marks, logos, domain names, and other distinctive brand features), and FoodChain reserves all rights not expressly granted to you.
Disclaimer of Warranties; Limitation of Liability; Release
THE FOLLOWING DISCLAIMER SHALL APPLY TO YOU TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE MAKING USE OF THE SERVICES AT YOUR OWN RISK AND THAT THE SERVICES ARE BEING PROVIDED TO YOU BY FOODCHAIN ON AN “AS IS” AND “AS AVAILABLE” BASIS. FOODCHAIN HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS. FURTHERMORE, FOODCHAIN MAKES NO WARRANTY THAT THE SERVICES OR ANY PRODUCTS PUBLISHED ON THE SITE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE, TIMELY, CURRENT, SECURE OR ERROR-FREE; (C) WILL BE OF A QUALITY THAT MEETS YOUR EXPECTATIONS; OR (D) WILL BE FREE OF HARMFUL COMPONENTS.
If you have a dispute with one or more users of the Services, you hereby release us from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
Limitation of Liability
THE FOLLOWING LIMITATIONS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL FOODCHAIN OR ANY AFFILIATE THEREOF BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE AND/OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS), WHETHER OR NOT CONTEMPLATED OR FORESEEABLE ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, INCLUDING THE SALE OR PURCHASE OF ANY PRODUCTS ON THE ONLINE MARKETPLACE OFFERED ON THE SITE.
THE LIMITATION SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF FOODCHAIN’S AGREEMENT TO REGISTER YOU AS A PRODUCER OR PURCHASER, AS APPLICABLE, AND TO ALLOW YOU TO PARTICIPATE IN THE SALE OR PURCHASE OF ANY PRODUCTS ON THE ONLINE MARKETPLACE OFFERED ON THE SITE.
Each Producer shall obtain and maintain insurance at its own cost and expense in coverage amounts that are adequate and customary for the nature of the Products provided by such Producer, and shall name FoodChain as an additional insured upon the request of FoodChain. FoodChain may require you, upon request, to provide us with a certificate of insurance for the applicable coverage.
Governing Law and Jurisdiction
Waiver and Severability
Cancellation & Termination
You may cancel your FoodChain account at any time by emailing email@example.com or by submitting a message to FoodChain on the “Contact Us” link on the Site, and following the specific instructions, if any, provided to you in the email response from FoodChain.
With respect to any Producer, upon termination of any account by either FoodChain or such Producer, (i) the Producer’s “Store Front” will be taken offline and FoodChain will cease to provide the Services, (ii) Producer shall, at its own expense, be responsible for the removal of all products from FoodChain’s facilities, which shall be done within forty-eight (48) hours of termination of the account.
Relationship with FoodChain
FoodChain shall have the right to publicly disclose that you are a user of the online marketplace offered by FoodChain and to identify you as a Producer or Purchaser, as applicable, which such form of disclosure may include a statement on the Site or in any marketing materials of FoodChain. FoodChain shall not be required to obtain your consent prior to making any such disclosure.