Digital User Agreement
Welcome to our digital community! We are thrilled to have you join us and become avalued member. This user agreement outlines the guidelines and expectations that we have in place to ensure a positive experience for all participants in our marketplace. By becoming a digital user, you agree to abide by these terms and conditions. Failure to comply with the Agreement may result in warnings or removal from access at our sole discretion, as we strive to maintain a safe and respectful environment for all participants. Please read through this agreement carefully to familiarize yourself with the expectations and responsibilities of being a digital user.
1. Digital User Agreement. By electronically accepting this Digital User Agreement (the “Agreement”), the individual identified as a digital user in this Agreement agrees that this Agreement shall be legally binding on the Digital User. A Digital User may be an employee and/or officer of a business or entity that is a Member (“Member”) or prospective Member of the Marketplace by ProducePay (the “Marketplace”). A Member may participate in the Marketplace as a Seller that offers perishable fruits or vegetables (“Produce”) for sale in the Marketplace (a “Seller”), or as a Buyer who purchases Produce for sale in the Marketplace (a “Buyer”). The Marketplace is a network for Sellers and Buyers to sell, purchase and/or consign Produce through the utilization of the ProducePay platform. A Buyer can also participate in the Marketplace as a Seller, and vice versa. The term “Buyer” is inclusive of a Member who acquires Produce from a Seller on a consignment basis for sale to third parties in exchange for a sales commission. Participation and acceptance as a Digital User does not in itself enable a Digital User to bind the Digital User’s employer/associated Member entity to transactions in the Marketplace, and does not itself render the Digital User or the any employer or entity associated with Digital User as a Member of the Marketplace. All Members must complete a separate Membership Agreement and satisfy the Company’s due diligence standards for inclusion as a Member.
2. Digital User Period: The Digital User’s access to the Marketplace shall be one year from Member’s electronic acceptance of this Agreement. This Agreement shall renew automatically at the end of the initial membership period unless Produce Pay Inc. (“Company”) or Digital User provides notice that the agreement is terminated.
3. Digital User Benefits: Digital User participation encompasses the following:
- Digital User login and password access to the digital Marketplace
- Member and product searches, and performance vetting
- 12 months access to Insights Pro and Daily Market Report
4. Information furnished by Digital User. A Digital User is required to furnish the Company with information or material about the Digital User’s associated employer, entity, or business, and related products/services, as part of the registration process for access to the Marketplace and to establish a Digital User account. A Digital User must complete a profile to Company’s satisfaction in order to have access to the Digital User benefits set forth in Section 3. Digital User represents, warrants and agrees that (a) such information and material whether submitted during the registration process or thereafter throughout the continuation of its use of the ProducePay platform is true, accurate, current and complete, and (b) Digital User will maintain and promptly amend all information and material to keep it true, accurate, current and complete.
5. Data. Digital User hereby grants the Company a non-exclusive, worldwide, perpetual, transferable, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display Transaction Data in connection with the operation and maintenance of the Marketplace, for technical support of the ProducePay platform, to perform any payment liquidations, to otherwise perform obligations to any Member, to monitor any Member’s suitability for continued inclusion in the Marketplace, to perform account management services, and to publish, display, and distribute de-identified, aggregated information derived from Transaction Data and other information from a Digital User and/or a Member’s use of the ProducePay platform and participation in the Marketplace, for marketing, research or compliance purposes, for purposes of improving the Company’s products and services or the ProducePay platform, and for developing, displaying, and distributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable as originating with or associated with a Digital User or Member. The foregoing shall not limit the ability of the Company: (a) to publish or otherwise share or distribute information regarding a Digital User and/or Member that is obtained from publicly available or nonconfidential sources, such as Blue Book, or (b) to share data with another Digital User and/or Member regarding transactions with that particular Member. “Transaction Data” means any data of any type regarding transactions between Seller and a Buyer (including a Consignee Member), including without limitation Produce type, pricing and quality, sale price, fees and deductions, quality, grading and time periods for sale or liquidation of Produce.
7. Right to Terminate Membership: Digital User and Company each retain the right to terminate a Digital User’s participation membership in the Marketplace at any time and for any reason upon written notice to the other party. Among any and all other potential reasons, the Company will terminate a Digital User’s participation in the Marketplace upon written notice to Digital User if (a) the Company, in its sole discretion, determines that Digital User no longer satisfies the Company’s diligence standards, or that it is not in the best interests of the Company or the Marketplace for Digital User’s participation to continue, or (b) the Company or Digital User infringes on ProducePay’s Digital User Guidelines, or (c) the Company discontinues or modifies the participation requirements for the Marketplace and Digital User no longer meets and/or agrees to the modified participation requirements.
8. Survival: The provisions of Sections 4, and 10-17 and this Section 8 shall survive the expiration or termination of this Agreement and the Digital User’s participation in the Marketplace, regardless of the reason.
9. Assignment: This Agreement shall not be assigned or delegated by the Digital User in whole or in part without the prior written consent of Company, which may be withheld by Company in its sole discretion.
10. Waiver; Severability: Failure by the Company to enforce a provision of this Agreement shall not constitute a waiver of that or any other provision of the Agreement. If one or more provisions of this Agreement are held to be unenforceable under applicable statute, regulation or other law, Company and the Digital User shall renegotiate such provision in good faith, in order to maintain the economic position enjoyed by each party as close as possible to that under the provision rendered unenforceable. If Company and the Digital User cannot reach a mutually agreeable and enforceable replacement for such provision, then (a) such provision shall be excluded from this Agreement, (b) the balance of this Agreement shall be interpreted as if such provision were so excluded, and (c) the balance of the Agreement shall be enforceable in accordance with its terms.
11. Governing Law; Consent to Jurisdiction; Mediation: This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware, without regard to its conflict of laws provisions that would require the application of the laws of another jurisdiction. Digital User hereby irrevocably submits to the non-exclusive jurisdiction of any United States federal court or California state court located in Los Angeles County, California, in any action or proceeding in which Company is a named party arising out of or relating to this Agreement or any documents executed in connection herewith, and Digital User hereby irrevocably agrees that all claims in respect of such action or proceeding may be heard and determined in any such United States Federal Court or California state court. Digital User irrevocably consents to the service of any and all process in any such action or proceeding brought in any court in or of the State of California by the delivery of copies of such process to Digital User at its address set forth in this Agreement by certified mail directed to such address or such other address as may be designated by Digital User in a notice to the Company. Digital User hereby agrees that Digital User must participate in mediation before a third party mediator retained jointly by Company and Digital User prior to the filing of any lawsuit. The mediation must take place in-person in the City of Los Angeles, California. Each party to the mediation shall be responsible for that party’s costs and expenses arising from or relating to the mediation.
12. Entire Agreement: This Agreement, together with the other agreements referenced herein, sets forth the sole understanding and agreement of the Digital User and the Company with respect to the Digital User’s participation in the Marketplace and supersedes all other prior and contemporaneous discussions, negotiations agreements and understandings, whether written or oral, between them.
13. Amendments: No modification of this Agreement or of any covenant, condition or limitation contained herein shall be valid or effective unless it is (a) in writing and duly executed by the parties hereto, or (b) electronically accepted by Digital User on the ProducePay platform. Digital User’s continued use of the ProducePay platform after notification of modifications of this Agreement by Company via the ProducePay platform will be deemed electronic acceptance by Digital User hereunder.
14. Attorneys’ Fees: In any action between a Digital User and Company arising out of or relating to this Agreement, the non-prevailing party will pay the substantially prevailing party’s reasonable attorneys’ fees, costs, and necessary disbursements, whether or not the action is prosecuted to award or judgment. Attorney’s fees arising from mediation as set forth in Section 11 shall not be recoverable by a prevailing party in a lawsuit; however, a court shall award attorney’s fees for any attorney’s fee incurred by a party to compel a party that fails to participate in mediation, including instances where a party files a lawsuit without first participating in mediation.
15. Relocation or Name Change; Notice: The Digital User shall provide Company with written notice at least thirty (30) calendar days prior to the Digital User’s change of name, associated Member entity, or location. Notice of any such changes may be delivered electronically via electronic mail, or via the ProducePay platform.
16. Company Disclaimer; Assumption of Risk: The Digital User acknowledges and agrees that the Company is providing no representations, warranties, guaranties or assurances of any type to the Digital User regarding any other Digital User or Member, the performance by a Member of its obligations to another Member, or the Produce provided by a Seller to a Buyer. Digital User acknowledges that Digital User is utilizing the ProducePay platform at Digital User’s risk, and assumes any and all risks arising from participation in the Marketplace.
17. Controlling Translation: While a translation of this Agreement may be provided for the convenience of Digital User, the English version shall govern in the event of any conflicts with any other translation of this Agreement.