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Sales of Goods Agreement

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The following terms and conditions are incorporated into the Master Agreement by reference and shall apply to the Parties.



1. Background & Purpose of Agreement

A. Service Provider is a business growth and economic development firm that is focused on the food and beverage supply system. In its quest to redirect income back into local communities, Service Provider has created an online ecosystem through its technology platform, Cureate Connect (the “Platform”), that allows local food and beverage companies (sometimes collectively referred to as “vendors”) and large entities that want to “buy local” (the “Buyers”) to connect and source and supply foodstuffs and beverages (collectively the “Goods”). Service Provider also serves as a procurement liaison to Buyers and vendors.

B. Vendor is a local food or beverage company and member of Service Provider’s online ecosystem that produces and sells Goods. Vendor desires to contract with Service Provider to scale its business, introduce its products to Buyers, and fulfill orders placed by those Buyers through the Platform. 

C. Other purposes and objectives for entering into this Agreement include:

  1. Improving and streamlining the process by which Vendors sell and Buyers purchase Goods through the Platform;  
  2. Improving and streamlining Service Provider’s order placement and fulfillment processes by working with vendors to supply and deliver Goods directly to Buyers;
  3. Increasing scalability and flexibility of the Platform to meet the demands of Buyers that want to source and purchase locally-made Goods and local vendors that can supply those Goods;
  4. Working collaboratively to lower the barriers to entry for small, local food and beverage companies to conduct business with large, local, and national Buyers and to facilitate engagement and business relationships between the two groups; and
  5. Increased exposure of locally-made Goods to Buyers and actively working to shift dollars back into local communities by building an empowered food and  beverage supply to meet changing consumer demand. 

2. Ownership/Intellectual Property

(a) Work Product

Vendor hereby agrees that the Services performed under this Agreement are work made for hire specially ordered or commissioned by the Buyer or Service Provider (depending on the project), within the meaning and interpretation of the United States Copyright Act, as amended from time to time.  Service Provider shall not own the Vendor IP. 

(b) Intellectual Property

Service Provider is the sole exclusive owner of all intellectual property rights in and to the Platform, Cureate Courses, Cureate Pro, an any other Service Provider trademarks, service marks, patents, trade secrets, trade names, and all other pre-existing Service Provider works  and derivative works of such pre-existing works (collectively, the “Service Provider IP”). Any developments to Service Provider IP that are made, conceived, created, discovered, invented or reduced to practice by Service Provider hereunder are and shall forever remain the sole and absolute property of Service Provider. This Agreement does not grant Vendor any license to use any of the Service Provider IP. 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 hereunder are and shall forever remain the sole and absolute property of Vendor. This Agreement does not grant Service Provider any license to use any of the Vendor IP.



3. Confidential Information

(a) Definition

The Parties acknowledge that by reason of their relationship to one another hereunder, each may disclose or provide access (the “Disclosing Party”) to certain Confidential Information to the other Party (the “Receiving Party”). As used in this Section 2, “Receiving Party” refers to the person or entity receiving Confidential Information. “Confidential Information” shall mean (i) information concerning a Party’s products, business and operations including, but 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; (ii) the terms of any agreement, including this Agreement, and the discussions, negotiations and proposals related to any agreement; (iii) information acquired during while present at a Party’s facilities; and (iv) all other non-public information provided by the Disclosing Party hereunder. All Confidential Information shall remain the property of the Disclosing Party. 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.

(b) Use

  1. Authorized. 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 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, unless prohibited by applicable law,  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. 
  2. Unauthorized. 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.

(c) Return of

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

(a) By Service Provider

Service Provider represents and warrants to Vendor that, as of the Effective Date, Service Provider (i) is duly organized as a limited liability company in good standing under the laws of the District of Columbia, (ii) has full power to enter into and perform its obligations and exercise its rights under this Agreement, (iii) will comply with all applicable laws, rules, and regulations in connection with the performance of its obligations and exercise of its rights hereunder, and (iv) will execute, duly authorize, and deliver this Master Agreement and each Order, which constitute or will constitute valid and binding agreements enforceable against Service Provider in accordance with their terms, and (v) neither Service Provider’s execution and delivery of this Agreement, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Service Provider is a party or that is otherwise applicable to Service Provider. To Service Provider’s knowledge, there is no pending or threatened litigation that questions the validity of the Agreement or Service Provider’s right to enter into the Agreement or any Order hereunder.

(b) By Vendor

Vendor represents and warrants to Service Provider that, as of the Effective Date, Vendor (i) is duly organized, validly existing and in good standing under the business entity laws of the state or states in which Vendor is registered to conduct business, (ii) has full power to conduct its business as currently conducted and to enter into the Agreement, (iii) will comply with all applicable laws, rules, and regulations in connection with the provision of the Goods, (iv) will execute, duly authorize, and deliver this Master Agreement and each Order, which constitute or will constitute a valid and binding agreement enforceable against Vendor in accordance with their terms and (v) neither Vendor’s execution and delivery of this Master Agreement or any Order, nor the consummation of the transactions contemplated therein, will violate any agreement, law or obligation to which Vendor is a party or that is otherwise applicable to Vendor.  

  1. Services. 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.
  2. Goods. Vendor shall provide Goods that conform to the specifications or other descriptions stated in the Order.  Such Goods shall be (i) fit and sufficient for the purpose intended, (ii) merchantable, (iii) consist of good material and ingredients, as communicated by the vendor, and (iv) be made with workmanship consistent with industry standards. The Goods provided by Vendor shall also conform to any statements or claims made on the containers or labels or advertisements for such Goods.
  3. Pass-Through Warranties. If Vendor purchases or obtains any third-party products or services for Service Provider 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 Service Provider 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 Service Provider 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 Service Provider, Vendor shall take all reasonable action requested by the Service Provider to enforce such representations, warranties and covenants. 
  4. No Litigation. To Vendor’s knowledge, there is no pending or threatened action, suit, proceeding or investigation, which questions the validity of the Agreement or Vendor’s right to enter into this Agreement or any Order.

5. Indemnification Insurance 

(a) Vendor’s Indemnity Obligations

Vendor hereby agrees to defend, indemnify and hold harmless Service Provider, its subsidiaries, parents, Buyers, and affiliates and their respective officers, directors, shareholders, agents, servants and employees from and against all third party claims, losses, damages, suits, expenses (including reasonable attorneys’ fees) and costs (collectively “Claims”) in connection with or airing out of (i) any defects in any Goods sold by Vendor hereunder; (ii) Vendor’s breach of any of its representations, warranties or obligations contained in this Agreement; (iii) any negligent act or omission, willful misconduct or fraud of Vendor or its agents; (iv) any allegation that the Goods infringe any U.S. patent, trademark or copyright; (v) Vendor’s failure to fully conform to all laws, ordinances, rules and regulations which affect the Goods or with respect to its performance of this Agreement; or (vi) any inaccurate, erroneous or incomplete US-Mexico – Canada Agreement (USMCA) Certifications, country of origin information, or export control classification numbers supplied to Buyer or Service Provider for Goods furnished by Vendor under this Agreement. This indemnification shall be in addition to any warranty obligations of the Vendor.

(b) Indemnification Procedures

Promptly after receipt of any written claim or notice of any action giving rise to a claim for indemnification, Service Provider will provide Vendor with written notice of the Claim or action. Service Provider 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 Service Provider shall be entitled to participate in the defense of the Claim and to employ counsel at its own expense to assist in the handling of the Claim. Vendor shall not agree to any settlement which results in an admission of liability by the Service Provider without Service Provider’s prior written consent, which consent shall not be unreasonably withheld or delayed. If Vendor fails to assume the defense of any Claim, or does not diligently pursue such defense, Service Provider may retain counsel and assume the defense of such Claim at the cost of the Vendor, and in that case, Vendor shall reimburse Service Provider for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of each of Service Provider’s written requests.

(c) 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 liability insurance (including contractual liability and bodily injury coverage) and product-liability insurance with a reputable and financially responsible carrier(s) satisfactory to Service Provider for coverage in amounts not less than $1 million per occurrence, $2 million in aggregate, and all other insurance required by applicable law. Vendor shall provide to Service Provider certificates of insurance evidencing the above coverages or upon the Service Provider’s request provide true copies of the insurance policies and providing for at least 10 days prior written notice to Service Provider by the insurance company of cancellation or material modification. Service Provider, its members, officer, employees, licensees, contractors, successors, agents, assignees and Buyers, shall be added as an additional insureds on all such policies, but only with respect to liability arising out of this Agreement. Vendor shall maintain the stated insurance policies for a period of two (2) years after the termination or expiration of this Agreement. The aforementioned policies shall be primary and non-contributory and shall contain a waiver of subrogation.





6. Remedies / Equitable Relief 

(a) Remedies

In addition to the rights and remedies provided in this Agreement, Service Provider and Vendor shall also have all remedies afforded under the Uniform Commercial Code as adopted by the District of Columbia.  

(b) Equitable Relief

Vendor acknowledges and agrees that the violation of any of its obligations hereunder would cause irreparable harm to Service Provider and/or the Buyer, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by Vendor, Service Provider shall be entitled to seek injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as Service Provider may have under this Agreement.



7. Termination 

(a) Convenience

Service Provider may terminate this Agreement at any time with or without    cause by giving thirty (30) days prior written notice. Such termination shall not relieve Vendor of its responsibility to fulfill Orders provided by Service Provider prior to the date of termination or relieve Service Provider of its responsibility to pay Vendor for such Goods and Services.

(b) Material Breach

Either Party may terminate this Agreement at any time in the event of a material breach by the other Party 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.

(c) 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.

(d) Change of Control of Vendor

If there is a Change of Control of Vendor, or if Vendor acquires one of Service Provider’s competitors, Service Provider may terminate the Agreement upon 30 days’ prior written notice to Vendor.

(e) Operation of Law

If new laws or regulations are implemented or the laws and/or regulations applicable to this Agreement are changed or repealed such that this Agreement or any portion hereof becomes unenforceable or illegal, Service Provider may terminate this Agreement or any Order in compliance with such laws or regulations.

(f) Of an Order

Service Provider shall provide written notice (email being sufficient) to Vendor of the partial or full cancellation of an Order. Vendor shall, in turn, cancel delivery of the Goods, remove the charges for the portion of the Order that was canceled, and adjust any other terms that were affected by the full or partial termination of such Order.

(g) Non-Payment

Vendor may terminate this Agreement for cause if Service Provider fails to pay undisputed invoices that were submitted through within sixty (60) days following the date on which Service Provider received the invoice; provided that Vendor notifies Service Provider 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 Service Provider again (email being sufficient) (30) days following the date on which payment for the invoice was due. 



8. 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 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) within twenty-four (24) hours of the inception of the Force Majeure Event 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, Service Provider shall not be required to pay for the Goods that affected by the Force Majeure Event.



9. Governing Law and Venue

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 UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in Washington County, District of Columbia. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. 




10. 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.



11. Relationship of the Parties

The relationship of the Parties hereto is that of vendor and purchaser. 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.



12. Assignment / Subcontracting

(a) 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 Service Provider, which consent shall not be unreasonably withheld. Any assignment without such consent shall be null and void. 

(b) Subcontracting

Prior to subcontracting any of its obligations under this Agreement, Vendor shall obtain contractual assurances from each subcontractor sufficient to enable Vendor to comply with the provisions of this Agreement.  In addition, each subcontract shall contain provisions specifying that Vendor shall have the right to assign such subcontract to Service Provider. All such contractual assurances and agreements must include a prohibition on further subcontracting. Vendor shall remain primarily liable and obligated to Service Provider 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 Service Provider, 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.



13. Compliance

(a) Legal

Vendor represents and warrants that it shall comply with all applicable international, federal, state, regional and local laws and regulations in performing its duties hereunder and in any of its dealings with respect to the Goods.

(b) Service Provider’s Policies & Procedures

Service Provider will, from time to time, provide Vendor with a Procedures Manual and other policies as it deems necessary (collectively referred to as the “Procedures Manual”). Vendor hereby agrees to comply with Service Provider’s reasonable policies and procedures, including without limitation those referenced in Section 4(b) of the Master Agreement and Section 13 (c) of this Exhibit B. 

(c) Conduct

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 rendering services under this Agreement. Examples of conduct that violates this provision and may breach this Agreement includes without limitation (1) speaking to employees, contractors, and individuals who work with or for Buyers in an agitated, aggressive, or loud tone, (2) ignoring explicit instructions related to the delivery of Goods, (3) taking more than 48 hours to respond to inquiries, and (4) delivering Goods that do not conform in quantity or quality to the Order. Each Party shall contact the other Party’s Authorized Representative to report violates of this Section 13(c).



14. Headings / Construction / Interpretation / Survival

(a) Headings/ Construction/ Interpretation

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 appertain. 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 unwieldly 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.

(b) Survival

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.



15. Notices

Any notice required or permitted hereunder will be provided via electronic communication to the electronic mail addresses set forth on the signature page hereto (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. If the Party receiving the Electronic Notice responds to the sending Party by sending a request to each of the sending Party’s electronic mail addresses (as set forth on the signature page hereto) asking to receive an Electronic Notice on paper, in nonelectronic form (a “Nonelectronic Notice”), the sending Party will send such Nonelectronic Notice within five (5) calendar days following receipt of such request.



16. 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.



17. 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.



18. Modification / Waiver

Unless otherwise agreed by the Parties, no change, modification, amendment, or addition of or to this Agreement or any part there of 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.

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