STANDARD VENDOR TERMS AND CONDITIONS

See related: Terms of Use | Privacy Policy

The following terms and conditions (“Standard Terms”) are incorporated by reference into and made part of the Master Supply Agreement (“Master Agreement”) between Cureate, LLC and the Vendor identified in the Master Agreement. Capitalized terms that are not defined in this document are defined in the Master Agreement. In the event of any inconsistency between the Master Agreement and these Standard Terms, the Master Agreement shall control.

Cureate shall provide Vendor at least 60 days’ notice of any change in these Standard Terms, which shall become effective and part of the Master Agreement between Cureate and Vendor unless Vendor rejects the change in writing or terminates the Master Agreement. 

1. Compliance

• 1.1. The Parties will comply with all applicable federal, state, and local laws, including without limitation, obtaining and maintaining the necessary permits and approvals required to perform their respective obligations under this Agreement. Each Party will obtain any required inspections, authorizations and approvals prior to commencement of this Agreement.
• 1.2. Cureate may, from time to time, provide Vendor with a procedures manual and other policies as it deems necessary. Vendor hereby agrees to comply with Cureate’s reasonable policies and procedures, including without limitation those referenced in Section 2(b) of the Master Agreement and Section 1.3 of these Standard Terms.
• 1.3. Each Party agrees that it and its officers, employees, contractors, subcontractors, and representatives shall comport themselves in a professional, respectful manner consistent with industry standards when engaging with each other and with individuals they interact while performing their obligations under this Agreement. Examples of conduct that violates this provision and may breach this Agreement includes without limitation (a) speaking to employees, contractors, and individuals who work with or for Buyers in an agitated, aggressive, or loud tone, (b) ignoring explicit instructions related to the delivery of Goods or provision of Services, and (c) taking more than 48 hours to respond to inquiries. Each Party shall contact the other Party’s Authorized Representative to report violations of this Section 1.3.

2. Ownership/Intellectual Property

• 2.1. Cureate is the sole exclusive owner of all intellectual property rights in and to the Platform, Cureate Courses, Cureate Pro, an any other Cureate trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Cureate works  and derivative works of such pre-existing works (collectively, the “Cureate IP”). Any developments to Cureate IP that are made, conceived, created, discovered, invented or reduced to practice by Cureate are and shall forever remain the sole and absolute property of Cureate. This Agreement does not grant Vendor any license to use any of the Cureate IP.
• 2.2. Likewise, Vendor is the sole exclusive owner of all intellectual property rights in and to any Vendor trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Vendor works and derivative works of such pre-existing works (collectively, the “Vendor IP”). Any developments to Vendor IP that are made, conceived, created, discovered, invented or reduced to practice solely by Vendor are and shall forever remain the sole and absolute property of Vendor. Subject to the terms and conditions of this Agreement, Vendor hereby grants Cureate a non-exclusive, royalty-free license to use and display all product images, product descriptions, product information, trademarks, designs, branding and marketing materials, and other content that Vendor provides to Cureate for use on the Platform, for sharing with Buyers, and in advertising Vendor’s Goods and Services.

3. Confidential Information
 

• 3.1. The Parties acknowledge that by reason of their relationship to one another hereunder, each may disclose or provide access to (the “Disclosing Party”) certain Confidential Information to the other Party (the “Receiving Party”). As used in this Section 3, “Receiving Party” refers to the person or entity receiving Confidential Information. “Confidential Information” shall mean (i) non-public information concerning a Party’s products, services, business and operations that is marked “confidential,” “proprietary” or with a similar designation or, if disclosed orally or by allowing the Receiving Party to make observations, is identified by the Disclosing Party as confidential in writing within two business days after such disclosure. Confidential Information may include, but is not limited to, information relating to business plans, financial records, customers, suppliers, vendors, products, product samples, costs, sources, strategies, inventions, procedures, sales aids or literature, technical advice or knowledge, contractual agreements, pricing, price lists, product white paper, product specifications, trade secrets, procedures, distribution methods, inventories, marketing strategies and interests, algorithms, data, designs, drawings, work sheets, blueprints, concepts, samples, inventions, manufacturing processes, computer programs and systems and know-how or other intellectual property of a Party and its affiliates that may be at any time furnished, communicated or delivered by the Disclosing Party to the Receiving Party, whether in oral, tangible, electronic or other form. Confidential Information also shall include this Agreement, and the discussions, negotiations and proposals related to any agreement between the Parties.
• 3.2. Confidential Information does not include information that: (a) was in Receiving Party’s possession before receipt from the Disclosing Party; (b) becomes generally available to the public other than through any act or omission of the Receiving Party; (c) is developed by the Receiving Party independently of any Confidential Information it receives from Disclosing Party; (d) the Receiving Party receives from a third party free to make such disclosure without, to the best of Receiving Party’s knowledge, breach of any legal or contractual obligation, or (e) is disclosed by the Receiving Party with the Disclosing Party's prior written approval.
• 3.3. The Receiving Party shall maintain the Confidential Information in strict confidence and disclose the Confidential Information only to its employees, subcontractors, vendors, suppliers, consultants and representatives who have a need to know such Confidential Information in order to fulfill the business affairs and transactions between the Parties contemplated by this Agreement (the “Purpose”). The Receiving Party shall not decompile, disassemble, or reverse engineer all or any part of the Confidential Information. If the Receiving Party is required to disclose Confidential Information by law or in connection with a legal matter, the Receiving Party shall promptly provide written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate, and the Receiving Party shall reasonably assist the Disclosing Party in such efforts. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed.
• 3.4. If the Receiving Party discovers that Confidential Information has been used, disseminated or accessed in violation of this Agreement, Receiving Party will immediately notify the Disclosing Party, take reasonable actions to minimize the impact of the use, dissemination or publication, and take reasonable steps to prevent any further breach. The Parties agree and acknowledge that any breach or threatened breach regarding the treatment of the Confidential Information may result in irreparable harm to the Disclosing Party for which there may be no adequate remedy at law. In such event the Disclosing Party shall be entitled to seek an injunction, without the necessity of posting a bond, to prevent any further breach of this Agreement, in addition to all other remedies available in law or at equity.
• 3.5. The Receiving Party shall promptly return or, at Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within thirty (30) days following the expiration or earlier termination of this Agreement.

4. Representations & Warranties

• 4.1. Each of Cureate and Vendor represents and warrants that, as of the Effective Date, (i) it is free to enter into this Agreement and has full power to execute, deliver, and perform this Agreement, (ii) it will comply with all applicable laws, rules, and regulations in connection with the performance of its obligations and exercise of its rights hereunder, and (iii) it will execute, duly authorize, and deliver this Master Agreement and each Order, which constitute or will constitute valid and binding agreements enforceable against the executing Party in accordance with their terms, and (v) its execution and delivery of this Agreement, and the consummation of the transactions contemplated therein, will not violate any agreement, law or obligation to which it is a party or that is otherwise applicable to it.
• 4.2. Vendor further represents, covenants, and warrants that, if Vendor provides Services to Cureate or a Buyer, Vendor shall use personnel that have the necessary knowledge, training, skills, experience, qualifications and resources to provide and perform the Services under this Agreement and shall render the Services in a prompt, professional, diligent, and workmanlike manner, consistent with applicable industry standards.
• 4.3. Vendor further represents, covenants, and warrants that: (i) all Goods supplied under this Agreement shall conform to the specifications or other descriptions stated in Vendor’s product listings on the Platform and in the applicable Order; (ii) all Goods are manufactured, packaged, labeled, packed, shipped and invoiced in compliance with the applicable requirements of federal, state and local laws, including without limitation the Federal Food, Drug and Cosmetic Act (the “Act”), the Meat Inspection Act, Poultry Products Inspection Act, and/or Egg Products Inspection Act, and all regulations adopted under such laws; and (iii) all Goods, at the time of delivery, are (a) not adulterated or misbranded within the meaning of the Act; (b) not articles that are prohibited, under the Act or any successor thereto, from being introduced into interstate commerce; (c) not prohibited under any state or local laws, regulations, or ordinances applicable to such shipment or delivery; and (d) merchantable and fit for their intended purpose, and will pass without objection in trade.
• 4.4. Pass-Through Warranties. If Vendor purchases or obtains any third-party products or services for Cureate in connection with the provision of the Goods or Services hereunder, in addition to the foregoing representations, warranties and covenants, Vendor shall pass through or assign to Cureate the rights Vendor obtains from the manufacturers or suppliers of such products (including warranty and indemnification rights), all to the extent that such rights are assignable. To the extent that such rights are not assignable by Vendor, Vendor agrees that Cureate may assert or enforce any right Vendor may have to enforce such representations, warranties and covenants, or if such can only be enforced by Vendor under its own name, upon written request by the Cureate, Vendor shall take all reasonable action requested by the Cureate to enforce such representations, warranties and covenants.

5. Indemnification 

• 5.1. Vendor’s Indemnity Obligations. Vendor hereby agrees to defend, indemnify and hold harmless Cureate, its subsidiaries, parents, Buyers, and affiliates and their respective officers, directors, shareholders, agents, servants and employees (collectively, the “Indemnified Parties”) from and against all claims, losses, liabilities, damages, suits, expenses (including reasonable attorneys’ fees) and costs (collectively “Claims”) in connection with or arising out of (i) any Goods supplied or Services provided by Vendor hereunder; (ii) Vendor’s breach of any of its representations, warranties or obligations under this Agreement; (iii) any negligent act or omission, willful misconduct or fraud of Vendor or its agents; (iv) any allegation that the Goods, labeling of the Goods, or content provided by Vendor infringe any patent, trademark, trade secret, copyright, or other intellectual property right; (v) the failure of Vendor or the Goods it supplies under this Agreement to fully comply with all laws, ordinances, rules and regulations applicable to the Goods or with respect to Vendor’s performance of this Agreement; or (vi) any recall of Vendor’s Goods.
• 5.2. Indemnification Procedures. Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, the Indemnified Party will provide Vendor with written notice of the Claim or action; provided, however, that failure to provide such notice shall not limit Vendor’s obligations hereunder. The Vendor shall assume, at its sole cost and expense, the defense of such claim through counsel reasonably acceptable to the Indemnified Party, except that the Indemnified Party may at its option and sole expense be represented by separate counsel. The Indemnified Party will provide Vendor with reasonable cooperation and assistance in the defense or settlement of any Claim, and grant Vendor control over the defense and settlement of same, provided that the Indemnified Party shall be entitled to participate in the defense of the Claim. Vendor shall not, absent the Indemnified Party’s written consent, agree to any settlement or judgment that (a) results in an admission of liability by an Indemnified Party, (b) provides for relief other than the payment of money for which Vendor shall be solely liable, or (c) does not fully release the indemnified party from all liability related to the Claim. If Vendor fails to assume the defense of any Claim, or does not diligently pursue such defense, the Indemnified Party may retain counsel and assume the defense of such Claim at the cost of the Vendor, and in that case, Vendor shall reimburse the Indemnified Party for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending such Claim within thirty (30) days of each of the Indemnified Party's written requests.

5.3. This section shall survive for three years following the expiration or termination of this Agreement.

6. Insurance

Vendor and each Vendor subcontractor that provides any of the Goods shall obtain and keep in force during the term of this Agreement, (i) Worker's Compensation insurance in compliance with the statutory requirements for worker's compensation of the state or states in which it has employees performing any work related to this Agreement; (ii) occurrence-based commercial liability insurance (including contractual liability and bodily injury coverage) and products/completed operations liability insurance with a reputable and financially responsible carrier(s) satisfactory to Cureate for coverage in amounts not less than $1 million per occurrence, $2 million in aggregate, (iii) commercial automobile liability in the amount of $1,000,000 combined single limit covering bodily injury and property damage arising out of the use of any owned, non-owned, leased and hired autos, and (iv) all other insurance required by applicable law. Vendor shall provide to Cureate certificates of insurance evidencing the above coverages or upon the Cureate’s request provide true copies of the insurance policies and providing for at least 10 days prior written notice to Cureate by the insurance company of cancellation or material modification. Cureate shall be added as an additional insured on Vendor’s liability policy(ies). Vendor shall maintain the stated insurance policies for a period of two (2) years after the termination or expiration of this Agreement. The aforementioned liability policies shall be primary and non-contributory and shall contain a waiver of subrogation in favor of Cureate and its Buyers.

7. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CUREATE BE LIABLE TO VENDOR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, SLOWDOWN COSTS, INCONVENIENCE,  LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF CUREATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, AND EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. CUREATE’S ENTIRE AGGREGATE LIABILITY TO VENDOR FOR ANY CLAIMS RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE BY CUREATE TO VENDOR UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

Notwithstanding anything to the contrary in this Agreement, the foregoing limitations of liability shall not apply to any matter for which it would be illegal to limit a Party’s liability.

This Section 7 shall survive the termination of this Agreement.

8. Termination 

• 8.1. Convenience. Either Party may terminate this Agreement at any time with or without cause by giving thirty (30) days prior written notice to the other Party. Such termination shall not relieve Vendor of its responsibility to fulfill Orders confirmed prior to the date of termination or relieve Cureate of its responsibility to pay Vendor for such Goods and Services.
• 8.2. Material Breach. Either Party may terminate this Agreement at any time in the event of a material breach by the other Party, other than nonpayment by Cureate, that remains uncured after thirty (30) calendar days following written notice thereof. Such termination shall be effective immediately and automatically upon the expiration of the applicable notice period, without further notice or action by either Party. Termination shall be in addition to any other remedies that may be available to the non-breaching Party.
• 8.3. Nonpayment by Cureate. Vendor may terminate this Agreement for cause if Cureate fails to pay undisputed invoices that were submitted through orders@cureate.co within sixty (60) days following the date on which Cureate received the invoice; provided that Vendor notifies Cureate in writing (email being sufficient) of such past due amounts within fifteen (15) days following the date on which such amounts were due and notifies Cureate again (email being sufficient) (30) days following the date on which payment for the invoice was due.
• 8.4. Financial Insecurity. Either Party may terminate this Agreement upon 30 days’ written notice if the other Party: (i) becomes or is declared insolvent or bankrupt; (ii) is the subject of a voluntary or involuntary bankruptcy or other proceeding related to its liquidation or solvency, which proceeding is not dismissed within ninety (90) calendar days after its filing; (iii) ceases to do business in the normal course; or (iv) makes an assignment for the benefit of creditors. This Agreement shall terminate immediately and automatically upon any determination by a court of competent jurisdiction that either Party is excused or prohibited from performing in full all obligations hereunder, including, without limitation, rejection of this Agreement pursuant to 11 U.S.C. §365.
• 8.5. Change of Control of Vendor. If there is a Change of Control of Vendor, or if Vendor acquires one of Cureate’s competitors, Cureate may terminate the Agreement upon 30 days’ prior written notice to Vendor.

9. Force Majeure

Each party will be excused from performance under this Agreement for any period and to the extent that it is prevented from or delayed in performing any obligations pursuant to the Agreement, in whole or in part, as a result of causes beyond its reasonable control, including the action or inaction of third parties, civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, acts of God, pandemics, epidemics, or other causes beyond its reasonable control (a “Force Majeure Event”).  If either Party is prevented from, or delayed in performing any of its obligations under the Agreement by a Force Majeure Event, it shall promptly notify the other Party verbally or electronically (email being sufficient) and describe, in reasonable detail, the circumstances constituting the Force Majeure Event and the obligations for which performance is delayed or prevented.  The Party claiming that a Force Majeure Event has occurred shall continue to use commercially reasonable efforts to mitigate the impact or consequence of the event on the other Party and to recommence performance whenever and to whatever extent possible without delay.  In the event of any Force Majeure Event that prevents Vendor from fulfilling an Order for more than two weeks after the agreed-upon delivery date, Cureate may cancel the Order without liability.

10. Governing Law and Venue/Waiver of Jury Trial

This Agreement will be governed by and interpreted in accordance with the laws of the District of Columbia, without giving effect to the principles of conflicts of law. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in the District of Columbia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. 

WAIVER OF RIGHT TO JURY TRIAL. SERVICE PROVIDER AND VENDOR HEREBY KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE THEIR RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.

11. Attorney’s Fees

If either Party incurs any legal fees associated with the enforcement of this Agreement or any rights under this Agreement, the prevailing Party shall be entitled to recover its reasonable outside attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other Party.

12. Relationship of the Parties

The relationship of the Parties hereto is that of independent contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one Party and the other Party’s employees or agents. Accordingly, neither Party shall be empowered to bind the other Party in any way, to incur any liability, make any statements, representations, warranties or commitments, or otherwise act on behalf of the Party. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.

13. Non-Circumvention

Vendor will not directly or indirectly solicit or induce any Buyer that Vendor was introduced to by Cureate to end its contractual relationship with Cureate or to buy Vendor’s Goods or Services other than through Cureate.

14. Assignment / Subcontracting

• 14.1. Assignment. Vendor may not assign this Agreement, either in whole or in part, nor delegate any performance hereunder, without the express, written consent of the Cureate, which consent shall not be unreasonably withheld. Any assignment without such consent shall be null and void.
• 14.2. Subcontracting. If Cureate contracts with Vendor to provide Services under this Agreement, Vendor may not subcontract any of its obligations under this Agreement with respect to such Services without first obtaining Cureate’s written consent (email being sufficient). Vendor shall remain primarily liable and obligated to Cureate for the timely and proper performance of all of its obligations hereunder, even if such obligations are delegated to a subcontractor that has been approved by Cureate, and for the proper and timely performance and actions of any person or entity to which it delegates or subcontracts any such obligation. Vendor will be solely responsible for paying Vendor’s subcontractors.

15. Headings / Construction / Interpretation / Survival

• 15.1. The headings and captions appearing in this Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they pertain. This Agreement is the result of negotiations between the Parties and their counsel. Accordingly, this Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party. The exhibits to this Agreement are incorporated and shall be deemed a part of it as if set forth herein in full. References herein to “this Agreement” and the words “herein,” “hereof” and words of similar import refer to this Agreement (including its exhibits as an entirety). The pronouns “it, its and itself” as used herein shall refer to he, she, his, her, himself and herself where appropriate. The pronouns he, she, his, her, himself and herself shall include the pronouns “they, their, and themselves” where appropriate. To avoid the unwieldy use of “and/or,” and “(s)” throughout this Agreement, the Parties agree that, where appropriate, use of the word “and” will be read to include use of the word “or” and vice versa and use of the singular shall include the plural.
• 15.2. Each term and provision of this Agreement that should by its sense and context survive any termination or expiration of this Agreement, shall so survive regardless of the cause and even if resulting from the material breach of either Party to this Agreement.

16. Notices

Any notice required or permitted hereunder will be provided via electronic communication to the electronic mail addresses set forth in the Master Agreement (each notice so provided (an “Electronic Notice”). An Electronic Notice will be deemed effective upon the earlier of the time that the Party sending the Electronic Notice receives verification of receipt from the receiving party or one (1) business day after the Electronic Notice is sent.

17. Severability

If any provision or portion of this Agreement is held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, such provision or portion will be construed and enforced to the greatest possible extent and the validity of the remaining provisions or portions shall remain in full force and effect.

18. Authorized Signatories / Counterparts

The individuals signing this Agreement on behalf of each Party hereby asserts that he, she, or they are authorized to execute such an agreement and possess the requisite authority to legally bind their respective Parties. No further proof of authorization shall be required. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original, but all of which together will constitute one and the same instrument, without necessity of production of the others. An executed signature page containing a physical “wet” or electronic signature and delivered in person or via  courier, mail, electronic signature software, or PDF shall be deemed as effective as an original executed signature page.

19. Modification / Waiver

Unless otherwise agreed by the Parties, no change, modification, amendment, or addition of or to this Agreement or any part thereof shall be valid unless in writing and signed by Authorized Representatives of both Parties. No waiver of any term or right in this Agreement shall be effective unless in writing, signed by an Authorized Representative of the waiving Party. The failure of either Party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.