Terms of Use

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”).

The terms and conditions set forth in this Terms of Use (the “Terms of Use” or “Agreement”) apply to and govern: (i) your application and registration as a Producer or Purchaser on our website www.food-chain.biz (the “Site”), (ii) your access and use of the Site, including the purchase, sale and/or fulfillment of food via the online platform on the Site, (iii) the use of any software, products, tools, services or information offered by FoodChain, and (iv) your access and/or viewing of any video, audio, stories, text, photographs, graphics, artwork and/or other content featured on the Site (collectively (i) – (iv) being the “Services”).

By accessing or otherwise using the Services in any way, you acknowledge that you have read, understood, and agree to be legally bound by the Terms of Use.

 

Modification of Terms of Use

FoodChain reserves the right, at its sole discretion and without notice to you, to change, modify, add or remove any portion of the Terms of Use at any time. The updated version of Terms of Use will be posted at the Site. It is your responsibility to review these Terms of Use periodically for changes. Your continued use of the Services following the posting of changes will mean that you accept and agree to the updated version.

 

Application, Registration & Account

To access and use FoodChain, you must complete an application and register as a Producer or Purchaser on the Site by providing the legal name of your business, name of contact person for business, a valid email address, phone number, mailing address and certain other information as indicated.  If you register on behalf of a business entity, you represent and warrant that you have the authority to bind the business entity to the Terms of Use.

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.

The relationship between Producer and FoodChain is that of bailor and bailee, as specifically described and limited by the terms of this Terms of Use.  In performing its obligations hereunder, FoodChain shall have no liability (whether by indemnification or otherwise, and regardless of whether any claim is based upon contract, in tort, common law principles or otherwise) to Producer with respect to the storage of products except only for FoodChain’s breach of its obligations and agreements expressly contained herein.

 

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.

In both the inbound and outbound transportation of product to/from FoodChain, even if FoodChain is listed as the applicable shipper on any bill of lading or other instrument, Producer acknowledges that: (i) FoodChain is not responsible for the products except during the time such products are in the custody of FoodChain at its facilities and during such time, only as specified in this Terms of Use; and (ii) Producer’s sole recourse for freight loss, damage, injury or delay in the delivery of products tendered for delivery to a carrier (collectively, "Freight Claims") is an action by Producer against the applicable carrier, subject to all terms, conditions, claims procedures, and loss limitations applicable to such carrier under applicable laws, tariffs or agreements with such carrier.  Producer hereby waives and releases FoodChain from all Freight Claims against FoodChain.

 

Online Marketplace

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.

 

Service Fee

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

All payments for transactions made via the online platform offered by FoodChain on the Site are performed electronically.  FoodChain utilizes Stripe, Inc. for the processing of all payments to be made (i) to Producers for the sale of product(s) and (ii) by Purchasers for the purchase of product(s).  To enable electronic payment, each Producer and Purchaser must create a Stripe account via the online link provided on the Site.  The terms and conditions set forth in the Stripe Services Agreement (https://stripe.com/ssa), the Stripe Global Privacy Policy – Worldwide (https://stripe.com/privacy) and such other policies contained on the Strip website (www.stripe.com) apply to the processing of each payment transaction for FoodChain.  By accessing and utilizing the Services, you acknowledge and agree that you have reviewed the foregoing and agree to the terms contained therein, as established by Stripe.

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.

 

Privacy

Please review our Privacy Policy ( https://food-chain.biz/privacy-policy/ ) to understand our practices regarding any information you submit to us while using the Services. You hereby agree that the Privacy Policy governs your use of the Services and is incorporated in these Terms of Use. Additionally, by using the Services, you understand that any message or information you send while using the Services may be read or intercepted by others, even if there is a special notice that a particular transmission (for example, credit card information) is encrypted.

 

Using the Site and Other Services

You agree to use the Site and all other Services in accordance with the Terms of Use and applicable laws and regulations.  While accessing or otherwise using the Site and/or any other Services, you agree not to:

  • Fail to pay for any products purchased by you or to deliver any products sold by you;
  • Fail to obtain and/or maintain all authorizations, approvals, consents, licenses or permits from the relevant governmental or regulatory authorities which are required to perform your obligations under this Terms of Use and in accordance with all applicable laws and regulations;
  • 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;
  • List any item on the Site, or consummate any transaction that was initiated using the Services, that could cause FoodChain to violate any applicable law, statute, ordinance or regulation, or that violate the Terms of Use;
  • 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.

FoodChain uses its efforts to keep the Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to the Services, because any functionality of the Services may be subject to factors beyond our control. Accordingly, to the extent permitted by applicable law, neither FoodChain nor its affiliates (nor any directors, officers, managers, employees or agents of FoodChain or its affiliates) are liable, and you agree not to hold any of the foregoing responsible, for any damages or losses resulting directly or indirectly from: (i) your use of or your inability to use the Services; (ii) delays or disruptions in the Services; (iii) viruses or other malicious software obtained by accessing, or linking to, the Services; (iv) glitches, bugs, errors, or inaccuracies of any kind in the Services; (v) damage to your hardware device from the use of the Services; (vi) the content, actions, or inactions of third parties, including items listed using the Services or the destruction of allegedly fake items; (vii) a suspension or other action taken with respect to your account; (viii) the duration or manner in which your listings appear in search results; or (ix) your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to these Terms of Use.

Notwithstanding anything to the contrary contained in this Terms of Use, if we are found to be liable, our liability to you or to any third party is limited to the total fees that you paid to us during the twelve (12) months prior to the action giving rise to the liability, excluding the costs of providing the Services to you during the same period.

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.

 

Indemnification

Each Producer hereby indemnifies and agrees to defend and hold FoodChain and its affiliates, and all directors, officers, managers, employees and agents of FoodChain and its affiliates, harmless from any and all claims, damages, demands, causes of action, losses, judgments, costs and expenses of any nature whatsoever, including, without limitation, reasonable attorneys’ fees caused by or attributable in whole or part to, or alleged to have been caused by or attributable in whole or part to: (i) your breach or violation of any provision of the Terms of Use; (ii) the inaccuracy or incompleteness of any information contained in the application or registration of your account with FoodChain; (iii) the production, storage or consumption of any of your products published on the Site, including any illness, allergic reaction or death arising out of or related to the consumption of any of your products published on the Site; (iv) the content of any information listed on the Site or the branding, labeling, packaging, marketing or sale of any of your products published on the Site; (v) any actual or asserted violation or noncompliance by you of any law or regulation, including, without limitation, the Federal Food, Drug and Cosmetic Act, the Fair Packaging and Labeling Act and any rules or regulations promulgated by the Food and Drug Administration (FDA); (vi) any actual or asserted infringement or violation of any patent, trademark, trade name, copyright or other intellectual or proprietary rights of any third party with respect to any product published on the site or any content or other information relating to any such product; or (vii) FoodChain’s use of or reliance upon any information, documents, direction or instruction provided, supplied or approved by you regarding your company or any of your products published on the Site.

 

Insurance

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

The Terms of Use shall be governed by and construed in accordance with the laws of the State of Wisconsin, without regard to its conflict of laws rules.

 

Force Majeure

FoodChain shall not be liable for any delay or failure to perform any of our obligations under this Terms of Use by reasons, events or other matters beyond our reasonable control, including without limitation, any acts of God or the public enemy, earthquakes, fire, flood, pandemic or epidemic, civil insurrection or war, acts of terrorism, inability to procure raw materials, power or supplies, labor shortages or strife, and other conditions beyond our reasonable control.

 

Waiver and Severability

No waiver by FoodChain of any of the terms and conditions set forth in the Terms of Use shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of FoodChain to assert a right or provision under these Terms and Conditions shall not constitute a waiver of such right or provision.

If any provision of the Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

 

Notice

FoodChain may deliver notice to you under the Terms of Use by means of electronic mail or by written communication delivered by U.S. mail to your address on record in the registration materials.  You may give notice to FoodChain under the Terms of Use at any time via electronic mail at production@food-chain.biz or by letter delivered by first class postage prepaid U.S. mail or overnight courier to the following address: FoodChain, 223 N. Water Street, Suite 250, Milwaukee, WI 53202, Attn: General Counsel.

 

Cancellation & Termination

You may cancel your FoodChain account at any time by emailing production@food-chain.biz 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.

 

Survival

The rights and obligations of both you and FoodChain set forth in this Terms of Use shall survive any termination or cancellation of the Services or any account of a Producer or Purchaser.

 

General

If any provision of these Terms of Use is held to be invalid, void or for any reason unenforceable, such provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.  Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. You and FoodChain are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. This Agreement sets forth the entire understanding and agreement between you and FoodChain and supersedes all prior understandings and agreements of the parties related to the subject matter hereof.