Terms and Conditions

1.Term

This Agreement shall be effective on and from the date of registration of the Partner on the Company’s website or Partner Portal (the “Portal”), and shall remain valid unless otherwise terminated earlier in accordance with the Termination provisions of this Agreement.

2.Supply of Products

2.1During the Term, the Partner shall supply products of such nature and description as specified in the relevant Purchase Orders (“Products”) to the Company, and the Company shall purchase the Products in accordance with the terms and conditions set forth in this Agreement and the respective Purchase Order(s).

2.2The Partner shall, at the time of entering into this Agreement, create a virtual account on the Portal. The Partner shall have the right to access its virtual account on the Portal from time to time, which shall give the Partner access to the Purchase Order(s) issued by the Company, order tracking, dispatch and delivery timelines, packaging specifications, invoice tracking, and such other relevant information/documents (“Partner Dashboard”). Further, the Partner shall provide relevant information and upload documents on the Partner Dashboard as may be required from time to time.

3.Purchase Orders

3.1During the Term, the Company shall place orders (each a “Purchase Order”) with the Partner for the supply of Products. The Purchase Order shall contain details with respect to the description and specifications of the Products, including but not limited to the delivery models, delivery locations, and the timelines for delivery of the Products.

3.2Each Purchase Order raised by the Company shall be available for access by the Partner on the Partner Dashboard.

3.3Within two (2) working days from the date on which the Company uploads the Purchase Order on the Partner Dashboard, the Partner shall communicate: (a) its acceptance of the Purchase Order; or (b) partial acceptance of the Purchase Order, subject to variation in terms and/or contents thereof; or (c) rejection of the same on the Partner Dashboard.

3.4A Purchase Order shall be deemed to be accepted by a Partner only upon issuance of an explicit acceptance in accordance with the provisions above within the timelines prescribed therein.

3.5If the Partner fails to communicate its acceptance within the required time, the Purchase Order or the modified Purchase Order, as the case may be, shall be deemed to be rejected by the Partner, unless otherwise notified by the Company on the Partner Dashboard.

3.6Either Party shall be entitled to request a variation in the Purchase Order no later than two (2) days after the Purchase Order has been accepted by the Partner. In the event a Party requests a variation, the other Party shall communicate the acceptance or rejection of such request within two (2) working days of receipt of such request. Notwithstanding the foregoing, the Company shall be entitled to reject invoices or proforma invoices raised by the Partner in accordance with the Payment Terms.

3.7In case of rejection of the Purchase Order by the Partner or rejection of a modification to the Purchase Order by the Company, the particular Purchase Order shall stand cancelled, and no rights and obligations in relation to the same shall subsist in favor of either Party.

3.8In the event of any conflict arising between the provisions of this Agreement and the Purchase Orders, the provisions of this Agreement shall prevail.

4.Delivery Timelines and Lead Time

4.1The Partner hereby acknowledges that time is of the essence in the performance of the obligations of the Partner under this Agreement and the Purchase Order(s). The Partner shall adhere to all the timelines as provided in the Purchase Order, including but not limited to the lead time as set out in the Purchase Order or on the Partner Dashboard.

4.2The Partner agrees not to ship any Products without the acceptance of the invoice by the Company. The Partner further agrees that the Company shall have the right to reject any invoice raised by it at its sole discretion.

4.3In the event of a delay in delivery of the Products, the Company reserves the right to (i) cancel the relevant Purchase Order, in which case the Partner shall be liable to compensate the Company for any costs which may be incurred by the Company on account of such cancellation; or (ii) accept the relevant Purchase Order and impose penalties on the Partner, as more particularly set forth in the Purchase Order or on the Partner Dashboard.

5.Packaging Requirements

5.1All Products to be delivered by the Partner shall be appropriately packaged for delivery to the location(s)/address(es) as set out in the relevant Purchase Order (“Delivery Destination”), in accordance with the instructions provided by the Company.

5.2The Partner shall ensure that the packaging and labels for supply of the Products under this Agreement are in accordance with the specifications provided by the Company and comply with all applicable U.S. federal and state labeling, packaging, and food safety laws and regulations (including, where applicable, FDA requirements).

5.3In the event of any damage caused to the Products during transportation on account of inadequate or inappropriate packaging, the Partner shall be responsible for making good such damage and any ancillary costs associated therewith.

6.Quality Check

6.1Upon delivery of the Products at the Delivery Destination, the Company shall arrange for an inspection of the Products, either itself or through a third party appointed by the Company, to assess conformance of the Products with the specifications, and/or shortages, and/or defects communicated by the Company to the Partner in the relevant Purchase Order. In case of inspection by any third party, the ownership of the Products shall be deemed to pass from the Partner to the Company only upon the Company receiving written confirmation of acceptance of the Products by such third party. Until the Partner receives written confirmation of acceptance of the Products from the Company, the title of the Products shall continue to remain with the Partner.

6.2The Parties agree that upon delivery of the Products, the Partner shall provide to the Company a duly executed declaration or certificate of conformance stating that the Partner has complied with all the specifications as set forth in the relevant Purchase Order.

7.Rejection and Returns

7.1In case of any defect or fault in the Products, including but not limited to any deviation from the specifications, supplied by the Partner to the Company, the Company shall have the right to return each such defective or faulty Product to the Partner. The Company shall notify the Partner of such defect or fault in writing. Upon receipt of such notification, the Partner shall arrange for a (i) replacement, at the sole cost of the Partner; or (ii) refund of the Product, as notified by the Company. The replacement or refund of the defective or faulty Products shall be initiated by the Partner within a period of five (5) working days from the date of receipt of notification from the Company.

7.2The refund-related costs and expenses of the Products may be provided to the Company in the following manner, at the discretion of the Company: (a) the total cost of the defective or faulty Products returned and other expenses incurred, if any, shall be set off from the total cost of the Products accepted by the Company; or (b) the total cost of the defective or faulty Products returned and other expenses incurred, if any, shall be refunded to the Company; or (c) the Partner shall provide a credit note equal to the total cost of the defective or faulty Products returned and other expenses, if any, to the Company.

7.3In the event that the Partner is obliged to refund the Company for the defective or faulty Product, the Partner shall compensate the Company with the cost of the Product, including but not limited to any applicable taxes paid and other expenses, if any.

8.Passing of Title and Risk

8.1In the event that the Partner is engaged in the final delivery of the Products to the Delivery Destination, the title and risk to the Products shall pass from the Partner to the Company upon final delivery of the Products to the Delivery Destination.

8.2In the event that the Partner is not engaged in the final delivery of the Products to the Delivery Destination, the title and risk to the Products shall pass from the Partner to the Company upon the loading of Products in the vehicles specified by the Company.

9.Payment Terms

9.1The Company, under this Agreement, may make advance payments to the Partner of such amounts as communicated by the Company to the Partner. Such advance payment shall be made upon issuance of Purchase Order acceptance, invoice, or proforma invoice by the Partner, and all amounts due under the advance payment shall be liable to be adjusted against the amounts owed by Captain Drake to the Partner.

9.2The Partner shall raise on the Company an invoice setting out the price for the Products as agreed to in the Purchase Order (“Product Price”) within such period as set out in the Purchase Order. The Partner shall ensure that the consignee shares with the Company original copies of Proof of Delivery, Goods Receipt Note, and all other required supporting documents along with such invoice. The Partner shall adjust the invoice amounts against the Advance received from the Company (“Adjustment”). The Company shall calculate such Adjustment and shall provide the Partner details of the invoice amount outstanding after such Adjustment. In case the invoice amount is left outstanding after Adjustment, the Company shall make the payment of undisputed invoices raised by the Partner within a commercially reasonable period (typically within the terms specified in the Purchase Order or within thirty (30) days of receipt of a correct original invoice, unless otherwise agreed) from the date of receipt of the original invoice (“Due Date”). The payment shall be made by the Company only if it finds the invoice and all necessary supporting documents correct in all respects.

9.3In case of return of the Products by the Company to the Partner, due to any reason including but not limited to return of the Product by any customer of the Company (“End Client(s)”), deviation from specifications, deviation in quantity or quality of the Products as set out in Purchase Orders, or cancellation of Purchase Orders by the Company, the Partner shall forthwith return any Advance money paid proportional to the Product Price set out in the disputed Purchase Order.

9.4In case of any delay in the return of Advance by the Partner to the Company, the Company reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month (or the maximum rate permitted by law, if less) on the advance amount starting from the third day after the advance was paid.

9.5Notwithstanding anything contained herein, the Company shall reject the invoice in the event that (a) the product price specified in the invoice is more than the price agreed between the Parties in the Purchase Order; or (b) the invoice raised by the Partner is illegible; or (c) in case of delivery of Products undertaken by the Partner, the proof of delivery is not provided to the Company; and the Company shall not be liable to pay the Product Price in such cases.

9.6It is agreed between the Parties that, notwithstanding anything else contained herein, in cases of uploading of invoices or proforma invoices pre-shipment, the Company shall have the right to accept or reject the order, invoice, or proforma invoice within seven (7) working days from the date of uploading the same on the Portal. Only where the Company accepts the invoice or proforma invoice shall the Partner ship the goods and the Company become liable for payment as per the terms of this Agreement. In case of rejection of the invoice or proforma invoice by the Company, the Purchase Order or the modified Purchase Order, as the case may be, shall be deemed to be rejected by the Company, unless otherwise notified by the Company on the Partner Dashboard.

9.7Upon rejection of the invoice as set forth above, the Partner shall be notified of the rejection on the Portal.

9.8In case of rejection of an invoice, the Partner shall forthwith return any Advance money paid by the Company to the Partner. In case of any delay in the return of Advance by the Partner to the Company, the Company reserves the right to charge interest as provided above.

10.Product Quality and Specifications

The Products shall be of the quality as specified by the Company and free from any defect in material, composition, or workmanship. The Partner warrants that the Products will conform to all agreed specifications, samples, and applicable regulatory requirements.

11.Covenants

11.1The Partner acknowledges and agrees that it shall not, during the Term, supply products which are the same or substantially similar to the Products to any End Client of the Company without the prior written consent of the Company, to the extent such restriction is reasonable and enforceable under applicable law.

11.2The Partner shall be obligated to provide the Company with samples of the Products, as per the requirements and timeline communicated by the Company from time to time.

11.3The Partner undertakes to perform its obligations under this Agreement and each applicable Purchase Order, throughout the Term, with all reasonable skill, care, and diligence, in a timely and efficient manner, and in accordance with applicable law.

12.Compliance with Laws

12.1The Partner hereby agrees to be in compliance, at all times during the Term, with all applicable federal, state, and local laws of the United States (and any other relevant jurisdictions), including but not limited to laws relating to food safety and labeling (FDA, FSMA), customs and import/export, labor and employment, worker health and safety (OSHA), environmental protection, anti-corruption and anti-bribery (including the Foreign Corrupt Practices Act), and human rights.

12.2The Partner shall implement and maintain such policies as may be necessary to adhere to and be in compliance with applicable laws.

12.3Notwithstanding anything contained herein, any non-compliance by the Partner with the provisions of this Section shall be construed as a material breach of the Agreement, giving the Company the right to terminate this Agreement and/or to seek indemnification.

13.Labeling and Regulatory Compliance

13.1The Company shall inform the Partner about the contents and specifications pertaining to the packaging and labeling which are required to conform with applicable U.S. laws and regulations (including FDA labeling requirements) and as notified by any End Client(s) to the Company from time to time. The Partner shall be responsible for incorporating the same and shall not be required to independently verify the commercial correctness of details provided by the Company, provided that the Partner remains responsible for ensuring its own manufacturing and packaging processes comply with law.

13.2The Partner shall indemnify and hold harmless the Company and any End Client, their directors, officers, and employees from and against any claims, suits, actions, proceedings, liabilities, losses, damages, costs, and expenses of any kind (including reasonable attorneys’ fees) arising from incorrect contents or specifications incorporated by the Partner leading to non-compliance with applicable laws.

14.Intellectual Property Rights

14.1The Company or the End Client, as the case may be, shall at all times retain and have sole and exclusive right, title, and interest in any intellectual property, specifications, information, documentation, or data, including but not limited to any brand name or trademark, that is provided by the Company to the Partner for the purposes of supply of the Products under this Agreement and under each Purchase Order.

14.2Subject to the confidentiality provisions, the Company on behalf of itself and the End Client hereby grants a limited, non-exclusive, and non-assignable right and license to use the Company’s and/or End Client’s name, logo, and similar indicia on the Products and packaging thereof, solely for the purpose set out in this Agreement.

14.3The Partner shall make prompt written disclosure to the Company of all ideas, inventions, information, improvements, derivatives, discoveries, writings, data, documents, notes, designs, drawings, other materials, and the like made or conceived, or actually or constructively developed, during the Term, whether solely or jointly with others, which refer to, or are suggested by, or result from the supply of the Products pursuant to this Agreement, or from any information provided by the Company or the End Client, and the foregoing shall be assigned to the Company.

14.4The provisions of this Section will survive the expiry or early termination of this Agreement.

15.Data Protection and Privacy

15.1The Partner acknowledges that the Company may collect, store, and process personal and sensitive information about the Partner, including without limitation name, phone number, email address, address, postal code, fiscal information, occupation, and login details (“Sensitive Information”).

15.2Without limiting the applicability of the Company’s Privacy Policy (available on the Company’s website), Sensitive Information may be used for purposes including validating and performing obligations under this Agreement, facilitating internal business operations, referring to third-party service providers, resolving disputes, detecting and protecting against fraud, enforcing the Agreement, and analyzing or innovating on the Company’s business.

15.3Sensitive Information may be shared with affiliates, business partners, third parties in connection with corporate transactions, or financial institutions as reasonably necessary. The Partner acknowledges and consents to the Company’s Privacy Policy, which shall be deemed incorporated into this Agreement.

16.Confidentiality

16.1The Parties hereby agree that they shall: (a) keep all Confidential Information received from the disclosing Party and shall not, without the prior written consent of the disclosing Party, divulge such Confidential Information to any person or use such Confidential Information other than for the purposes of carrying out this Agreement; (b) take all steps as may be reasonably necessary to protect the integrity of the Confidential Information and to ensure against any unauthorized disclosure thereof; (c) treat all Confidential Information with the same degree of care to avoid disclosure to third parties as is used with respect to the receiving Party’s own confidential information, but not less than a reasonable degree of care; (d) immediately inform the disclosing Party of any potential or accidental disclosure or loss or misappropriation of the Confidential Information and take all steps to retrieve and protect the Confidential Information; (e) acknowledge that the Confidential Information is and will at all times remain the property of the disclosing Party and not use the same for any competitive and/or strategic advantage; (f) return to the disclosing Party all the Confidential Information including notes, copies, and derivatives upon completion of the need for such information or upon termination of this Agreement; and (g) ensure that each of its personnel who have access to the Confidential Information have agreed to be bound by the same obligations of confidentiality.

16.2The receiving Party agrees that it will not modify, reverse engineer, decompile, create other works from, or disassemble any software programs contained in the Confidential Information without the prior written consent of the disclosing Party.

16.3This Agreement shall not restrict the receiving Party from complying with any legal requirement to disclose Confidential Information, provided that the receiving Party shall, to the extent not prohibited by law, promptly notify the disclosing Party so that the disclosing Party may seek a protective order.

16.4The obligations under this Section shall survive for a period of two (2) years after expiry or early termination of this Agreement, or longer if required by law.

16.5For the purposes of this Agreement, “Confidential Information” shall mean the terms of this Agreement and any information, whether written or oral, which relates to business methodologies, systems, technical data, specifications, designs, business models, current or potential customers or partners, or other information belonging to a Party, whether or not marked confidential. Confidential Information shall not include information which (i) is in the public domain; (ii) was known to the receiving Party through lawful means prior to disclosure; (iii) becomes generally available to the public through no fault of the receiving Party; or (iv) is independently developed by the receiving Party without use of the Confidential Information.

17.Indemnity

The Partner hereby undertakes to indemnify and hold harmless the Company, its directors, officers, employees, and agents from and against any and all claims, losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or related to: (a) any breach of this Agreement by the Partner; (b) any defect in the Products or non-conformity with specifications; (c) any negligence or willful misconduct of the Partner; (d) any violation of applicable law by the Partner; or (e) any third-party claim related to the Products supplied by the Partner.

18.Termination

18.1The Company shall have the right to terminate this Agreement for convenience and/or without any reason by providing fifteen (15) days’ prior written notice of its intention to do so.

18.2Either Party may terminate this Agreement immediately upon written notice if the other Party materially breaches this Agreement and fails to cure such breach within fifteen (15) days after receiving written notice thereof (or immediately in the case of a breach that is not reasonably curable).

19.Effects of Termination / Expiration

19.1Early termination or expiry of this Agreement shall not affect the rights and obligations of the Parties which have accrued prior to termination.

19.2Any provision of this Agreement that contemplates performance or observance subsequent to the termination or the expiration of this Agreement shall survive and continue in full force and effect.

19.3Upon expiry or earlier termination of this Agreement, the Parties shall return or transfer to each other all materials, documents, information, and data collected by them during the Term.

19.4Upon receipt of any notice of termination, both Parties shall conduct all their respective obligations until the effective date of termination in a manner consistent with the obligations hereunder and that does not prejudice the reputation or goodwill of either Party.

20.Governing Law, Jurisdiction, and Dispute Resolution

20.1This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, United States of America, without regard to its conflict of laws principles.

20.2Any disputes or differences arising out of or in connection with this Agreement shall first be promptly, amicably, and in good faith resolved by the Parties through negotiation.

20.3If no amicable resolution is reached within thirty (30) days (or such longer period as the Parties may agree) from the date the dispute was notified, the dispute shall be settled by binding arbitration administered by the American Arbitration Association (AAA) under its Commercial Arbitration Rules. The arbitration shall be conducted by a sole arbitrator appointed in accordance with the AAA rules. The seat and venue of the arbitration shall be Minneapolis, Minnesota, and the proceedings shall be conducted in English. Judgment on the award may be entered in any court of competent jurisdiction.

20.4Subject to the foregoing, the state and federal courts located in Hennepin County, Minnesota, shall have exclusive jurisdiction over any matters not subject to arbitration or for enforcement of any arbitral award.

20.5This dispute resolution provision shall not prejudice a Party’s right to seek interim or provisional relief from a court of competent jurisdiction if necessary to protect its interests pending arbitration.

21.Force Majeure

21.1Neither Party will be responsible for any delay or failure to comply with the obligations under the Agreement if the delay or failure arises from any cause which is beyond the reasonable control of such Party, including but not limited to acts of God, fire, flood, earthquake, war, invasion, blockade, embargoes, terrorism, hostilities, lockouts, strikes, orders or restrictions imposed by government or any public authority, software malfunction, or internet or telecommunication outage (“Force Majeure”).

21.2Any Party claiming Force Majeure shall notify the other Party within three (3) days of determining that such an event has occurred, and shall use best efforts to mitigate the effects.

21.3Either Party may terminate this Agreement after giving the other Party fifteen (15) days’ prior written notice if the event of Force Majeure continues for a period of sixty (60) days, in which case neither Party shall have any liability to the other except for rights and liabilities that accrued prior to the date of termination.

22.Notices

Any communication, including any consent, approval, report, or notice required or permitted by this Agreement, shall be in writing and in English. Communications by the Partner to the Company shall be sent via the Portal or by email to the designated email address (mark@captdrake.com or such other address as designated by the Company) or delivered to the Company at the following address:

Any email from the Partner must be sent from the email address registered by the Partner with the Company. Notices shall be deemed received upon delivery by hand, the next business day if sent by overnight courier, or on the day sent if by email or Portal (with confirmation of receipt).

Communications by the Company to the Partner shall be sent over the Portal, by email, or by registered mail or courier to the address and email provided by the Partner at registration. The Partner shall notify the Company of any change of address prior to such change.

23.Relationship Between the Parties

This Agreement is on a principal-to-principal basis between the Parties. This Agreement does not make either Party an employee, agent, or legal representative of the other for any purpose whatsoever. Neither Party is granted any right or authority to assume or create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.

24.Assignment

The Partner shall not assign or transfer any of its rights and obligations hereunder without the prior written approval of the Company. The Company may assign this Agreement to an affiliate or successor without consent.

25.Waiver and Non-Exclusion of Remedies

A Party’s delay or failure to enforce any provision of this Agreement, or to exercise any right or remedy, shall not constitute a waiver of that provision, right, or remedy or prevent such Party from enforcing any or all provisions of this Agreement and exercising any rights or remedies in the future. No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy except as expressly provided, and each remedy shall be cumulative.

26.Severability

If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall in no way be affected or impaired thereby and shall remain in full force and effect.

27.Amendments

This Agreement is subject to revision and/or amendment at the sole discretion of the Company. The Partner is responsible for checking the Portal for the latest version of the Agreement and shall be deemed to accept the version of this Agreement in its entirety as of the date of acceptance of any Purchase Order. No amendment or modification of this Agreement by the Partner, nor waiver of any of the terms or conditions hereof, shall be valid or binding unless made in writing (including through the Partner Dashboard).

28.Survival

The Parties hereby agree and acknowledge that those terms and provisions of this Agreement which by their nature and content should survive the termination of this Agreement shall so survive. Without limitation, the following provisions shall survive the termination of this Agreement: Confidentiality, Indemnity, Effects of Termination, Governing Law and Dispute Resolution, and this Survival provision.

29.Electronic Records

This document is an electronic record. Electronic acceptance (including by click-through or electronic signature on the Portal) shall be deemed equivalent to a wet-ink signature for purposes of enforceability under applicable electronic transactions laws (including the ESIGN Act and UETA).