Sweetgreen Supply Chain Terms and Conditions
Last Updated: February 7, 2020
Vendor’s agreement to comply with these terms and conditions (these “Terms”) is a condition of doing business with Sweetgreen, Inc (“Sweetgreen” or the “Company”). These Terms are incorporated into, and shall be deemed a part of, that certain Sweetgreen Supply Chain Vendor Contract between Sweetgreen and Vendor..
1. Vendor acknowledges and understands that unless Vendor supplies products directly to Sweetgreen (as mutually agreed by Vendor and Sweetgreen), all purchase orders shall be placed directly between Vendor and a distributor designated by Sweetgreen (“Distributor”). The terms and conditions of such orders, including the pickup and shipping of the Vendor’s product (“Product”) and the payment terms, shall be solely between Vendor and Distributor.
2. Vendor represents and warrants as follows for the life of the term of these Terms:
a. That all Product will comply with specifications that Sweetgreen has approved;
b. That Vendor complies with, and all Products comply with, all applicable provisions of relevant local, foreign, domestic and other laws, ordinances, codes and regulations, including but not limited to any wage and hour, health and safety, product safety, labels, labeling, advertising, child labor and all other labor laws, price discrimination laws, those relating to standards for weights, measures, sizes, quantities and ingredients, trademark, copyright, patent, unfair competition and all other intellectual property laws, all customs laws and all country of origin requirements set forth therein and any other applicable laws;
c. That all Product is guaranteed, as of the date of shipment or delivery to be, on such date, not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”_, and that no Product delivered to Sweetgreen are articles which may not, under the provisions of Section 404, 505 or 512 of the Act, be introduced into interstate commerce; and
d. That all claims, statements, descriptions, and representations on or regarding the Product to Sweetgreen shall be accurate, fair, truthful, and adequately substantiated, in compliance with all applicable laws, regulations, and other legal requirements, and not false, deceptive, unfair, or misleading.
3. If Vendor recalls any Product or conducts a market withdrawal, Vendor shall promptly notify Sweetgreen and Distributor of such recall or market withdrawal and such notice shall provide reasonable detail of the reason for such recall or market withdrawal. Vendor shall bear all costs and expenses of such recalls. In a recall or market withdrawal, if Vendor is required to use Sweetgreen’s name in any written communications to customers, distributors, regulatory authorities, or others, Vendor shall provide Sweetgreen prior notice and the opportunity to review and comment on such written communications in advance (and Vendor shall reasonably consider and incorporate any comments from Sweetgreen). Additionally, if, in the opinion of Sweetgreen, on the basis of sampling or other recognized testing procedures or reports, any Products are found to be adulterated, misbranded or not in material conformance with the provisions of these Terms, upon Sweetgreen or Distributor notifying Vendor, Vendor shall immediately take steps to comply with the terms of this Section 4.
4. Within seven (7) business days of Vendor entering into a Sweetgreen Supply Chain Vendor Contract with Sweetgreen (to which these Terms are incorporated therein), Vendor shall provide Sweetgreen with a copy of the following:
a. A current copy of a third party food safety certification (e.g. GFSI, if GFSI certified) and audit with corrective action;
b. Certificate of insurance satisfying all of Distributor’s insurance requirements (or if Vendor supplies products directly to Sweetgreen, certificate of insurance satisfying all of Sweetgreen’s insurance requirements)
c. The certificate for any relevant Product attribute claims (e.g. organic certification)
d. A completed sweetgreen specifications sheet
5. Vendor shall make its operations available to audits at any time by Sweetgreen or a third party food safety auditor that Sweetgreen selects at any time during normal operational hours in order to evaluate Vendor’s quality, food protection and food safety procedures and compliance with specifications. Sweetgreen may also require that Vendor complete a questionnaire either in lieu of or in advance of an audit, or that Vendor registers with and submit information to a third-party that Sweetgreen has selected to manage audit information. Upon request by Sweetgreen from time to time, Vendor shall promptly provide Sweetgreen with lot traceability on a per Sweetgreen purchase order basis. Additionally, Vendor shall ensure that all Product is safe and is compliant with all relevant regulatory requirements and all Sweetgreen quality standards. Vendor will promptly within 24 hours notify Distributor and Sweetgreen Supply Chain and Quality Assurance by telephone and email of any potential food safety concern relating to any Product and will assist Sweetgreen as requested and reasonably necessary to investigate concerns about food safety or quality related to Product.
6. In addition to any certification and reports provided as part of onboarding in connection with Section 5 of these Terms, Vendor shall provide Sweetgreen with copies of current federal, state and/or local regulatory agency inspection reports on request. Vendor shall maintain such certifications, reports and audits current throughout the term of these Terms and shall provide to Sweetgreen upon request.
7. Vendor shall defend and indemnify Sweetgreen, its subsidiaries and affiliates, and all of their respective directors, officers, employees and agents (collectively, “Indemnitees”) from and against any third-party claim (including any regulatory or enforcement actions), law suit, loss, liability, damage, settlement or judgment, including without limitation, reasonable and necessary attorneys’ fees and other expenses incurred in the defense of such third-party claim arising out of or resulting from, in whole or in part: (1) the breach by Vendor of these Terms, (2) a material defect in a Product supplied by Vendor under these Terms, or (3) a negligent act or omission by Vendor in the design, manufacture, preparation, packaging, advertising, marketing, or labeling of a Product supplied to Sweetgreen. Vendor’s duty to defend and indemnify hereunder shall apply to third-party claims for illness, bodily injury, death and/or property damage resulting from the Product supplied to Sweetgreen and shall include sums which Indemnitees shall become obligated to pay as damages in reasonable settlement of a claim as well as in satisfaction of a judgment. In furtherance of the foregoing, in the event Vendor breaches these Terms, Sweetgreen shall be entitled to, in addition to any other remedies, in its sole discretion and without any liability to terminate the relationship with Vendor. Remedies of Sweetgreen herein shall not be exclusive but shall be accumulative of any other remedy of Sweetgreen herein or under any relevant statute or law.
8. NO PARTY SHALL BE LIABLE TO ANY OTHER PARTY, OR ANY THIRD PARTY UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH PRODUCT OR THESE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF USE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY DO NOT APPLY TO A PARTY’S LIABILITY FOR: (A) GROSS NEGLIGENCE, FRAUD OF WILLFUL MISCONDUCT; (B) BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER; OR (C) ANY AMOUNTS PAYABLE PURSUANT TO A PARTY’S INDEMNIFICATION OBLIGATIONS.
9. Vendor will (i) endeavor to provide safe working conditions, (ii) provide its employees with appropriate protection from exposure to hazardous materials, (iii) provide its employees with access to potable water and clean sanitation facilities, and (iv) work to continuously improve its environmental performance by setting and then working toward quantifiable goals that reduce the environmental impact of its activities.
10. Each party shall not disclose any of the Confidential Information (as defined below) to any person other than employees or agents of such party with a need to know or as otherwise required by securities, franchise or other laws. Vendor and Sweetgreen shall not use the Confidential Information for any purpose other than in order to provide the Products and services covered by the Supply Chain Vendor Contract. Upon termination of the Supply Chain Vendor Contract, each party shall return all Confidential Information to the other party, or destroy it and, if requested, furnish a certificate confirming its destruction. “Confidential Information” of a party will mean any and all technical and non-technical information disclosed by or on behalf of such party (the “Disclosing Party”) to the other party (the “Receiving Party”) or its representatives, which may include without limitation, proprietary and confidential information, ideas, techniques, sketches, drawings, works of authorship, models, know-how, processes, apparatuses, equipment, algorithms, software programs, source code, software source documents, and formulae related to the current, future, and proposed products and services, including without limitation any information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, investors, employees, business and contractual relationships, business forecasts, sales and merchandising, marketing plans and information the disclosing party provides regarding third parties. Confidential Information shall include all other information that was marked as Confidential Information or that the receiving party knew, or reasonably should have known, was the Confidential Information of the Disclosing Party.
11. Inclusion herein of express warranties and representations by Vendor shall not be deemed a waiver of such other warranties as may be implied in law or fact or provided for by any local, foreign, domestic and other law, statute, or regulation. Any warranties, express or implied, shall survive inspections, acceptance and payment by Distributor and/or Sweetgreen. No waiver of any breach or of any terms or conditions of these Terms shall be construed a waiver of any subsequent breach of that term or condition or other term or condition of same or different nature of this or any other order or contract.
12. These Terms may be updated from time to time by Sweetgreen for any reason. Sweetgreen will notify Vendor of any changes to these Terms by posting the updated Terms at https://www.sweetgreen.com/vendortermsandconditions/ and Sweetgreen will change the “Last Updated” date above. Vendor should regularly review these Terms, as Vendor’s continued providing Product to Sweetgreen after any such changes constitutes Vendor’s agreement to such changes.
13. Vendor shall not be required to perform, or be liable for failure to perform, its respective obligations under these Terms during any period in which non-performance is caused by (i) shortages of land or water rights, (ii) war, hostilities or national emergencies, (iii) strike, lockout or other labor difficulties, (iv) natural disasters or extremely adverse weather conditions, or (v) orders issued by any local, state or federal agency or government as to any part of the growing, harvesting, packing and selling of Product. Vendor will notify Distributor and Sweetgreen promptly upon the occurrence of any such causes of non-performance and will exercise reasonable due diligence to correct any correctable causes of non-performance and will resume performance as soon as possible.
14. If any term herein or in any order is found to be unenforceable for any reason, all other terms shall remain in full force and effect.
15. These Terms shall be governed by the laws of the State of California, without giving effect to conflicts of law principles. The parties hereby submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California.