FOODMAVEN CORPORATION

FOODMAVEN PLUS TERMS AND CONDITIONS

1. ACCEPTANCE OF TERMS.

1.1.  FoodMaven Corporation (“FoodMaven” or “we”) provides its FoodMaven PLUS program (as defined in Section 2.1 below) to you through its website located at https://foodmaven/plus-terms.com (the “Site”), subject to this Terms of Service Agreement (these “Terms”). By accepting these Terms or by accessing or using FoodMaven PLUS or the Site, you acknowledge that you have read, understood, and agree to be bound by these Terms. You acknowledge that these Terms constitute a contract between you and FoodMaven, even though it is electronic and is not physically signed by you and FoodMaven. If you are entering into these Terms on behalf of a corporation, limited liability company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “you” or “your” shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use FoodMaven PLUS.

1.2.  As part of the registration process, you will identify an administrative user name and password for your account (“Account”).

1.3.  FoodMaven may change these Terms from time to time by providing you ten (10) days prior notice either by emailing the email address associated with your Account or by posting a notice on the Site. You can review the most current version of these Terms at any time at http://foodmaven.com/terms/ The revised terms and conditions will supersede any previously posted terms and become effective ten (10) days after we post or send you notice of such changes, and if you use FoodMaven PLUS after that date, your use will constitute acceptance of the revised terms and conditions. If any change to these Terms is not acceptable to you, your only remedy is to stop using FoodMaven PLUS and send a cancellation email to [email protected].

2. DEFINITIONS.

2.1. The “FoodMaven Plus” program includes (a) the Site, (b) FoodMaven’s proprietary platform connecting buyers and sellers of proteins, produce, dry goods and other products listed for sale on such platform and (c) all software (including the Software, as defined in Section 3.3 below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). Any new features added to or augmenting FoodMaven PLUS are also subject to these Terms.

2.2.  “Surplus Products” shall mean products that are out of specification or are surplus, all of which is safe for human consumption.

2.3.  “Surplus Products Platform” shall mean any marketplace, platform or business (whether by website, technology applications, direct sales or otherwise) intended to be used to connect buyers and suppliers of Surplus Products or to distribute Surplus Products.

2.4.  The “Term” shall commence upon the date that you create an Account, and, unless earlier terminated as provided for herein, shall continue for twelve (12) months (the “Initial Term”), at which point these Terms shall automatically renew for successive six (6) month periods (a “Renewal Term” and, together with the Initial Term, the “Term”) unless either party gives notice of its intent not to renew at least thirty (30) day prior to the start of the next Renewal Term.

3. GENERAL CONDITIONS; ACCESS AND USE OF FOODMAVEN PLUS.

3.1.  Subject to the terms and conditions of these Terms, you may access and use FoodMaven PLUS only for lawful purposes. FoodMaven owns all right, title and interest (including all intellectual property rights of any sort) relating to any and all designs, know-how, ideas and information relating to FoodMaven’s Surplus Products Platform or any Proprietary Information (as defined in Section 3.4 below). All rights, title and interest in and to FoodMaven PLUS and its components will remain with and belong exclusively to FoodMaven. You shall not (a) sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; (b) use FoodMaven PLUS in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of FoodMaven PLUS or its components, or (c) modify, adapt or hack FoodMaven PLUS to, or otherwise attempt to gain unauthorized access to FoodMaven PLUS or its related systems or networks. You shall comply with any codes of conduct, policies or other notices FoodMaven provides you or publishes in connection with FoodMaven PLUS, and you shall promptly notify FoodMaven if you learn of a security breach related to FoodMaven PLUS.

3.2.  Any software that may be made available by FoodMaven in connection with FoodMaven PLUS (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of these Terms, FoodMaven hereby grants you a revocable, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with FoodMaven PLUS, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access FoodMaven PLUS by any means other than through the interface that is provided by FoodMaven for use in accessing FoodMaven PLUS. Any rights not expressly granted herein are reserved and no license or right to use any trademark of FoodMaven or any third party is granted to you in connection with FoodMaven PLUS.

3.3.  You agree that all business, technical and financial information (including, without limitation, the identity of and information relating to partners, suppliers, vendors, customers or employees) learned or obtained by you from FoodMaven or the Surplus Products Platform that relate to FoodMaven’s business or FoodMaven PLUS, are “Proprietary Information.” You agree to hold in confidence and not disclose or use any Proprietary Information, except in performing or receiving performance of FoodMaven PLUS. Upon termination of these Terms, or as otherwise requested by FoodMaven, you agree to destroy all items and copies of Proprietary Information, except that you may keep copies of your commercial records, invoices and these Terms.

3.4.  You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to FoodMaven PLUS (“Your Content”). For every email sent outside of your organization via FoodMaven PLUS, you acknowledge and agree that FoodMaven shall have the right to automatically add an identifying footer in accordance with our standard policies then in effect you agree to cooperate with and provide reasonable assistance to FoodMaven in promoting and advertising FoodMaven PLUS.

3.5.  You are responsible for maintaining the confidentiality of your login, password and Account and for all activities that occur under your login or Account. FoodMaven reserves the right to access your Account as we deem appropriate, including in order to respond to your requests for technical support, for reasons related to the review and/or improvement of FoodMaven PLUS, and for our own business purposes. By posting Your Content on or through FoodMaven PLUS, you hereby do and shall grant FoodMaven a worldwide, non- exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with FoodMaven PLUS. FoodMaven has the right, but not the obligation, to monitor FoodMaven PLUS, Content, or Your Content. You further agree that FoodMaven may remove or disable any Content, and Your Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities), or for no reason at all.

3.6.  FoodMaven shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of FoodMaven PLUS (including, without limitation, information concerning Your Content, data and data derived therefrom), and FoodMaven shall be free (during and after the Term) to use such information and data to develop and improve (including for diagnostic and corrective purposes) FoodMaven PLUS and other FoodMaven offerings, and to disclose such data for our business purposes. No rights or licenses are granted except as expressly set forth herein.

3.7.  You understand that the operation of FoodMaven PLUS, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to FoodMaven’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain FoodMaven PLUS. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. FoodMaven will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

3.8.  You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use FoodMaven PLUS, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, long distance and local telephone service (collectively, “Equipment”). You shall be responsible for ensuring that such Equipment is compatible with FoodMaven PLUS (and, to the extent applicable, the Software) and complies with all configurations and specifications set forth in FoodMaven’s published policies then in effect. You shall also be responsible for maintaining the security of the Equipment, your Account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of your Account or the Equipment with or without your knowledge or consent.

3.9.  FoodMaven reserves the right to use your name and/or business name as a reference for marketing or promotional purposes on FoodMaven’s website and in other communication with existing or potential FoodMaven customers. To decline FoodMaven this right you need to email [email protected] stating that you do not wish to be used as a reference.

3.10.  Subject to the terms hereof, FoodMaven may (but has no obligation to) provide technical support services, through email in accordance with our then-current standard practices.

4. DELIVERY; ACCEPTANCE/REJECTION OF SURPLUS PRODUCTS; PAYMENT.

4.1.  Delivery terms for produce shall be defined by the Perishable Agricultural Commodities Act (“PACA”). All orders will be shipped to you by a third-party logistics provider arranged by FoodMaven. Shipping costs are in addition to the costs to purchase Surplus Products. You will take title and assume all risks of loss and damage in transit at the time your order leaves the supplier’s facility.

4.2.  You shall have 24 hours to accept or reject Surplus Products commencing from your receipt of the Surplus Products. Surplus Products may include goods of all types, including Surplus Products not covered by PACA. Any rejection must be in writing, via an email to your main contact at FoodMaven. Your failure to notify FoodMaven and the supplier of rejection within 24 hours of receipt shall result in automatic acceptance of the Surplus Products delivered. In case of a reasonable rejection of Surplus Products by you, the parties agree to work together in good faith to minimize mutual damages and to cure any such non-conformance to the satisfaction of all affected parties. You understand and acknowledge that FoodMaven provides a service and operates the Surplus Products Platform to connect suppliers and buyers and to arrange for delivery logistics and does not take title to the Surplus Products at any time.

4.3. Pursuant to PACA regulations and statutory trust provisions, any payment terms beyond ten days must be reflected by a written agreement. In compliance with these regulations and provisions, these Terms will confirm that payment terms for transactions entered into between you and a vendor shall be 50% of the invoiced amount shall be invoiced at the time of purchase, with payment due net seven (7) days, and the remaining 50% shall be invoiced on the date of shipment with payment due net seven (7) days. You may be required to select a payment option and provide FoodMaven information regarding your credit card or other payment instrument. You represent and warrant to FoodMaven that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay FoodMaven the amount that is specified in the payment option in accordance with the terms of any payment instrument and these Terms. You hereby authorize the applicable supplier to bill your payment instrument in accordance with the terms of the applicable payment option until you terminate your Account, and you further agree to pay any charges so incurred. If you dispute any charges you must let the supplier know within seven (7) days after the date that FoodMaven invoices you. You shall be responsible for all taxes associated with Services other than U.S. taxes based on FoodMaven’s net income.

5. REPRESENTATIONS AND WARRANTIES.

You represent and warrant to FoodMaven that (i) you have full power and authority to enter into these Terms; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your posting and other activities (and allow FoodMaven to perform its obligations) in connection with FoodMaven PLUS without obtaining any further releases or consents; (iii) Your Content and other activities in connection with FoodMaven PLUS, and FoodMaven’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; (iv) your use of FoodMaven PLUS will comply with all applicable laws, including, without limitation, all applicable food safety handling, labeling and other applicable food and health related laws and regulations; (v) if your participation in buying and selling through FoodMaven PLUS requires a license, you have obtained such license and the license is in full force and effect; and (vi) you are eighteen (18) years of age or older.

6. TERMINATION.

FoodMaven may terminate your Account and these Terms at any time in its sole discretion. In such event, FoodMaven shall endeavor to provide you with prompt notice via the administrative email address associated with your Account. You may terminate these Terms upon thirty (30) days’ notice if FoodMaven breaches any material term or condition of these Terms and fails to cure such breach within thirty (30) days after receiving such notice specifying such breach. FoodMaven reserves the right to modify or discontinue, temporarily or permanently, FoodMaven PLUS (or any part thereof). All of Your Content on FoodMaven PLUS (if any) may be permanently deleted by FoodMaven upon any termination of your Account in its sole discretion. All accrued rights to payment and the terms of Sections 3 -13 shall survive termination of these Terms.

7. DISCLAIMER OF WARRANTIES.

FoodMaven PLUS may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by FoodMaven or by third-party providers, or because of other causes beyond our reasonable control, but FoodMaven shall use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption. HOWEVER, FOODMAVEN PLUS, INCLUDING THE SITE AND CONTENT, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND FOODMAVEN EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT. YOU ACKNOWLEDGE THAT FOODMAVEN DOES NOT WARRANT THAT FOODMAVEN PLUS WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR- FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF FOODMAVEN PLUS, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM FOODMAVEN OR THROUGH FOODMAVEN PLUS SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

8. LIMITATION OF LIABILITY.

8.1.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FOODMAVEN BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, OR (B) FOR ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE FEES ACTUALLY PAID BY YOU IN IN CONNECTION WITH THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION 8 ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.

8.2.  Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to you. In these states, FoodMaven’s liability will be limited to the greatest extent permitted by law.

9. INDEMNIFICATION.
You shall defend, indemnify, and hold harmless FoodMaven from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of these Terms, any of Your Content, or your other access, contribution to, use or misuse of FoodMaven PLUS. FoodMaven shall provide notice to you of any such claim, suit or demand. FoodMaven reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this Section 9. In such case, you agree to cooperate with any reasonable requests assisting FoodMaven’s defense of such matter.

10. U.S. GOVERNMENT MATTERS.

You may not remove or export from the United States or allow the export or re-export of FoodMaven PLUS or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the software and documentation installed by FoodMaven on your Equipment (if applicable) are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of these Terms and will be prohibited except to the extent expressly permitted by the terms of these Terms.

11. ASSIGNMENT.

You may not assign these Terms without the prior written consent of FoodMaven, but FoodMaven may assign or transfer these Terms, in whole or in part, without restriction. Notwithstanding any assignment, you shall remain fully liable to FoodMaven for any payment obligations hereunder.

12. MISCELLANEOUS.

If any provision of these Terms is found to be unenforceable, illegal, or otherwise invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. The parties are acting as independent contractors with regard to FoodMaven PLUS and not as agents or partners. No agency, partnership, joint venture, or employment is created as a result of these Terms and you do not have any authority of any kind to bind FoodMaven in any respect whatsoever. The failure of FoodMaven to exercise or enforce any right or provision of these Terms shall not be a waiver of that right. FoodMaven may provide you with notices in the manner described in Section 1.3 above. All notices under these Terms shall be in writing and shall be deemed given when received if personally delivered; when receipt is electronically confirmed, if transmitted by email; upon delivery from a nationally recognized courier such as FedEx or UPS; or three days after being sent by prepaid certified or registered U.S. mail to the address of the party to be noticed as set forth herein or to such other address as such party last provided to the other by written notice. Any notice to FoodMaven shall include a mandatory copy to: FoodMaven Corporation, 3755 Wazee Street, Denver, Colorado 80216.

13. GOVERNING LAW.

These Terms shall be governed by the laws of the State of Colorado without regard to the principles of conflicts of law. Unless otherwise elected by FoodMaven in a particular instance, the state and federal courts located in Denver County, Colorado are the exclusive jurisdiction for any disputes and you hereby expressly agree to submit to the exclusive personal jurisdiction of such courts for the purpose of resolving any dispute relating to or in connection with your access to or use of FoodMaven PLUS. In any action or proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys’ fees (including appellate proceedings).

14. PRIVACY.

Please visit http://foodmaven.com/privacy/ to understand how FoodMaven collects and uses personal information.