Master Terms and Conditions of Sale
These terms and conditions of sale
(“Agreement”) are applicable to any order placed with and accepted by us
(herein as “Provider”).
1. Scope of
Agreement:
Provider,
upon acceptance of an Order placed by Client, will supply the products and
services specified in the Order (the “Work”) to Client, pursuant to the terms
and conditions of this Agreement and its exhibits and Provider’s acceptance of
such order submitted by Client is expressly limited to the terms and conditions
of this Agreement notwithstanding any contrary provision contained in Client’s
purchase orders, invoices, acknowledgements or other documents. The details of
the Work (e.g. quantity, price, and product specifications) shall be set forth
in the relevant Order.
2.
Definitions:
(a) “Affiliate” means any Person controlling, controlled
by or under common control with the Party or Person specified, including any:
(i) subsidiaries;
(ii) partners;
and
(iii) divisions.
(b) “Agreement” means this Agreement and all exhibits,
schedules and attachments referenced herein.
(c) “Business Day” means a day other than a Saturday,
Sunday or other day on which commercial banks in Minneapolis, Minnesota, are authorized
or required by law to close.
(d) “Business Hours” means 8 a.m.
to 5 p.m. on each Business Day local time at the place at which the goods are
produced or services are performed.
(e) “Client” means any person or entity placing an Order
subject to this Agreement.
(f) “Client IP” means Intellectual Property Rights of
Client provided or specified for use or reproduction by Provider in this
Agreement.
(g) “Commissioned Developments” means
any Developments the creation of which has been commissioned and separately
funded by Client pursuant to the terms of an Order.
(h) “Developments” means all inventions, discoveries and
improvements, whether or not patentable, conceived by a Party or jointly by the
Parties in the course of performing this Agreement. Developments exclude any
pre-existing IP Rights and any inventions, discoveries and improvements,
whether or not patentable, conceived by a Party not directly related to the
performance of this Agreement.
(i) “Disclosing Party” means a Party, including such
Party’s Affiliates, disclosing Confidential Information.
(j) “Intellectual Property Rights” or “IP Rights”
means:
(i) all
inventions (whether or not patentable and whether or not reduced to practice),
all improvements thereto, and all patents, patent applications, and patent
disclosures, together with all reissuances, continuations, continuations‑in‑part,
revisions, extensions, and reexaminations thereof;
(ii) all
trademarks, service marks, trade dress, logos, trade names, and corporate
names, together with all translations, adaptations, derivations, and
combinations thereof and including all goodwill associated therewith, and all
applications, registrations, and renewals in connection therewith;
(iii) all works
(whether or not copyrightable), all copyrights, and all applications,
registrations, and renewals in connection therewith;
(iv) all mask
works and all applications, registrations, and renewals in connection
therewith;
(v) all
trade secrets and confidential business information (including ideas, research
and development, know‑how, formulas, compositions, manufacturing and
production processes and techniques, technical data, designs, drawings,
specifications, customer and supplier lists, pricing and cost information, and
business and marketing plans and proposals);
(vi) all computer
software (including data and related documentation);
(vii) all other
proprietary rights; and
(viii) all copies
and tangible embodiments thereof (in whatever form or medium).
(k) “Laws” means any applicable federal, state, county, or local laws, statutes, rules, regulations,
ordinances and requirements promulgated by governmental or other authorities
including any judicial or administrative interpretations thereof.
(l) “Manufacturing Equipment” means all machinery, tools,
molds and other equipment that Provider may deem necessary or desirable to use
in the provision of goods and services under this Agreement.
(m) “Non-Commissioned Developments” or “NCDs”
means any Developments which are not Commissioned Developments.
(n) “Order” means a detailed statement of work (which may
be in the form of a quotation issued by Provider or a purchase order issued by
Client and accepted by Provider) including specifications, pricing and
performance metrics pursuant to this Agreement and executed by the Parties.
(o) “Party” means each of Provider and Client.
(p) “Person” means an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture,
an unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
(q) “Provider IP” means Intellectual Property Rights of
Provider provided or specified for use or reproduction by Provider in this
Agreement.
(r) “Receiving Party” means a Party, including such
Party’s Affiliates, receiving Confidential Information.
(s) “Section” means the referenced section in this
Agreement unless otherwise stated.
(t) “Third Party” means a Person which is not a Party or
an Affiliate of a Party.
(u) “Warranty Period” means the date of delivery or
performance and a period of thirty (30) days thereafter.
3. Prices and
Terms:
(a) The prices payable by Client for goods and services to be
supplied by Provider under this Agreement will be specified in the applicable
Order. Unless otherwise expressly stated in an Order, all prices exclude
shipping and taxes.
(b) Payment terms are net thirty (30) calendar days from the
date of the invoice. If Client does not pay an invoiced amount within terms,
Client will in addition pay finance charges of one and one-half percent (1.5%)
per month on the late balance. In the event of any dispute regarding an
invoice, no finance charges will apply in the event that Client provides
written notice of the dispute prior to the due date for such payment.
(c) Upon reasonable request by the Provider, Client shall
provide copies of its most recent audited financial statements or other
reasonable evidence of its financial capacity and such other information as
Provider reasonable requests to determine credit status or credits limits.
(d) Client shall provide notice within five (5) business days of
the occurrence of any event which materially affects Client’s ability to
perform its obligations under this Agreement including but not limited to: (i)
the material default of any supplier or sub-contractor; (ii) labor strike or
dispute; or (iii) material uncured default with respect to any debt obligations
of Client.
(e) Provider reserves the right to modify the pricing terms set forth in any Agreement,
SOW, Order, Quote and Purchase Order by providing notice to Client at any time. In addition,
Provider may modify pricing terms if there are any changes to specifications, quantities,
timing, delivery, shipping and/or other aspects of or requirements related to the products
or services provided hereunder. Notwithstanding the foregoing, under no circumstances shall
Provider be obligated to sell or license any product, service, or software for a price that
is commercially unreasonable or otherwise below its costs and expenses for the same.
(f) Unless otherwise specified in the Order, Work will be
delivered FOB Provider’s manufacturing facility and will be shipped to Client
via carriers selected by Provider.
(g) In the event any inventory is maintained by Provider on
behalf of Client, the applicable Addendum(s) (Addendum 1 and/or Addendum 2)
incorporated herein shall apply.
4.
Relationship of Parties:
(a) Provider is an independent contractor, and is not an
employee, servant, agent, partner, or joint venturer
of Client. Neither Party to this Agreement will have any authority to bind or
represent the other Party. Client shall identify and request the Work to be
performed, but Provider shall determine the legal means by which all Work is to
be accomplished. Client is not responsible for withholding, and shall not
withhold, FICA or any other employment-related taxes of any kind from any
payments made to Provider. Neither Provider nor its employees shall be entitled
to receive any benefits which employees of Client are entitled to receive, nor
shall Provider or its employees be entitled to receive from or through Client,
workers' compensation, unemployment compensation, medical insurance, life
insurance, paid vacations, paid holidays, pension, profit sharing or Social
Security on account of Work performed under this Agreement.
(b) Unless otherwise provided in the applicable Order, Provider
will be responsible to provide all Manufacturing Equipment necessary or
appropriate to the performance of its obligations under this Agreement and,
upon completion of the Work, Provider shall retain ownership and control of all
Manufacturing Equipment.
(c)
Unless otherwise specified in this Agreement or an Order,
this Agreement is non-exclusive and each Party is free to provide to, or
purchase from, any Third Party any goods and services similar to the Work.
5.
Confidentiality:
(a) The performance of services under this Agreement may result
in disclosure by the Parties (each a “Disclosing Party”) to each other
(each a “Receiving Party”), or discovery by a Receiving Party, of
information relating to the Disclosing Party’s business practices, customers,
pricing, scheduling, purchasing, suppliers or other proprietary information of
the Disclosing Party or its customers (“Confidential Information”).
(b) Each Party shall maintain the Confidential Information of
the other Party in confidence using such measures as it accords its own
information of a similar nature and, in any event, shall exercise such care in
protecting the Confidential Information of the other Party as a reasonably
prudent person would exercise. Each Receiving Party further agrees that the
Confidential Information shall be used solely for the purposes of performing
the Receiving Party’s obligations under this Agreement (the “Permitted
Purposes”) and, except for such limited purposes,
the Confidential Information shall not be used for the Receiving Party’s
benefit or be disclosed to any Third Party. Each Receiving Party may disclose
the Confidential Information of the other Party only to its employees and Representatives
as necessary to perform its obligations under this Agreement, provided that the
Receiving Party shall be liable for the acts of its employees and
Representatives and any and all other persons to whom it discloses the
Confidential Information.
(c) Confidential Information shall include:
(i) customer lists and information;
(ii) business and marketing plans;
(iii) financial statements, projections, analyses and information related
to costs and revenues;
(iv) product and equipment designs or enhancements and other
technological developments and production techniques whether or not the subject
of statutory trade secret protection, letters patent or pending patent
applications; and
(v) all other information provided by Client or Provider of a
proprietary and confidential nature (whether communicated by means of oral or
written disclosures) which is marked “confidential” or is identified in writing
by the Disclosing Party as confidential within thirty (30) days after
disclosure.
(d) Confidential Information shall not include information
which:
(i)
was in the possession of the Receiving Party at the time it
was first disclosed by the Disclosing Party;
(ii)
was in the public domain at the time it was disclosed to the
Receiving Party;
(iii)
enters
the public domain through sources independent of the Receiving Party and
through no breach of this provision by the Receiving Party;
(iv) is made available by the Disclosing Party to a Third Party on
an unrestricted, non-confidential basis;
(v) was lawfully obtained by the Receiving Party from a Third
Party not known by the Receiving Party to be under an obligation of
confidentiality to the Disclosing Party; or
(vi) was at any time developed by the Receiving Party independently
of any disclosure by the Disclosing Party.
(e) Each Party agrees that its obligations contained herein
apply also to, and shall be binding upon, all of its Affiliates.
(f) In the event that either Party, or the principals, partners,
shareholders, directors, officers, employees, representatives, professional
advisors or agents of a Party (collectively such Party’s “Representatives”),
or Affiliate is legally compelled (by oral questions, interrogatories, requests
for information or documents, subpoena, civil investigative demand or similar
process) to disclose any Confidential Information of the other Party, the Party
under such compulsion shall promptly give notice to the Disclosing Party so
that the Disclosing Party may seek to quash such compulsion or to obtain an
appropriate protective order. In the event the Disclosing Party does not quash
such compulsion, and whether or not a protective order is obtained, the
Receiving Party under compulsion shall disclose only such limited portion of
the Confidential Information of the Disclosing Party as, in the written opinion
of counsel for the Receiving Party under compulsion, is required to avoid
sanction by the court having jurisdiction of such matter.
(g) Each Party shall, upon request by the other, promptly return
or destroy all documentation and other materials containing any Confidential
Information of the other Party without retaining any copies thereof (except a
single copy retained by counsel solely for documentary purposes). Each
Receiving Party shall thereafter, upon request by the Disclosing Party, provide
a certification signed by an officer of the Receiving Party that all such
materials have been returned to the Disclosing Party or have been destroyed.
6.
Intellectual Property Developments:
(a) Client shall maintain all ownership or license rights as
applicable with respect to any Intellectual Property Rights delivered to
Provider in connection with Provider’s performance of this Agreement including
but not limited to content, designs and marketing plans. Client grants to
Provider a license to use, display and distribute (and to sub-license its
Affiliates and sub-contractors to use, display and distribute) any Intellectual
Property Rights delivered to Provider as reasonably necessary to perform any
Order.
(b) Provider shall maintain ownership or license rights as
applicable with respect to any Intellectual Property Rights delivered to Client
or utilized by Provider in connection with the performance of this Agreement
including but not limited to content, designs, techniques and processes.
Provider grants to Client a license to display and distribute any Intellectual
Property Rights contained in work product delivered by Provider or Affiliates
to Client. Unless expressly stated in the relevant Order, this license shall
not permit Client or any Third Party to use or re-produce any such Intellectual
Property Rights.
(c) Client
shall own all Intellectual Property Rights in any Commissioned Developments.
(d) Provider shall own all Intellectual Property Rights in any
Non-Commissioned Developments.
(e) If the Party to whom Developments are assigned pursuant to
the terms of Section 6(c) or Section 7(d) (“Holder”) elects, in
its sole discretion, to seek patent or other protection with respect to any
Developments, the other Party (“Non-Holder”) shall cooperate fully and promptly
with the Holder or its Affiliate, as applicable, during the term of and after
termination of this Agreement in the application for patents or other
protection therefore in the U.S.A. and any foreign countries in the name of the
Holder or its assignees, and the Non-Holder shall promptly execute and deliver
any documents or instruments requested by the Holder to accomplish this.
Further, the Non-Holder shall assist and cooperate with the Holder, at the
Holder’s expense, in any controversy or legal proceedings relating to the
Developments.
7. Intellectual
Property Markings:
(a) Client agrees to incorporate into the artwork and/or matter
to be printed on the Work any markings specified by Provider as necessary or
appropriate related to IP Rights owned by, or licensed to, Provider and used in
connection with the Work.
(b) Each Party represents and warrants that the markings
designated by it for placement on the Work shall be true and correct and each
shall indemnify the other Party for any Claim related to false marking or any
similar Claims resulting from markings specified by it pursuant to Section
12.
8.
Data Management and Security:
(a) Client warrants that it has the right to use and to have
Provider use on behalf of Client and data provided to Provider or its
Affiliates by Client including specifically customer names, identifying
information, addresses and other contact information and related personal
information (“Data”). Client further warrants that it will designate on
the applicable Order if Data provided pursuant to that Order is subject to
HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection
or requiring enhanced data security procedures.
(b) Provider warrants that it will handle,
process and utilize Data in accordance with applicable Laws.
9.
Employee Non-solicitation:
(a) The Parties further agree that during the Term and for a
period of one (1) year thereafter, they shall not solicit for employment any
employee of the other Party who became known to such Party in connection with
the performance of this Agreement without the prior written approval of the
other Party.
(b)
The foregoing provision will not prohibit either Party from
employing any individual who applies for a position in response to an internal
posting, employment advertisement or other general solicitation of employment.
10. General
Warranties:
(a) Provider represents and warrants that:
(i) the goods and
services provided pursuant to this Agreement shall conform during the Warranty
Period in all material respects to all specifications and requirements
contained in the Order under which the goods or services are provided;
(ii) any Provider IP provided or utilized by Provider in the
performance of its obligations under this Agreement will not infringe the IP
Rights of any Third Party; and
(iii) its obligations under this Agreement will be performed in
compliance with all applicable Laws.
(b) Client represents and warrants that:
(i) any matter it furnishes for performance of services by
Provider: (A) does not infringe any copyright or trademark or other
Intellectual Property Rights of any Third Party; (B) is not libelous or
obscene; <(C) does not invade any persons right to privacy; and (D) does not
otherwise violate any laws or infringe the rights of any Third Parties.
(ii) any Client IP provided or specified by Client for use by
Provider in the performance of its obligations under this Agreement will not
infringe the IP Rights of any Third Party; and
(iii) its obligations under this Agreement will be performed in
compliance with all applicable Laws.
(c) THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR INTENDED PURPOSE, AND NON-INFRINGEMENT ALL OF WHICH ARE
SPECIFICALLY DISCLAIMED.
11. Remedies:
(a) In the event of any breach of any
warranty by Provider herein, Provider shall repair or replace the goods or
re-perform the services with conforming goods or services at no cost to Client.
This sub-paragraph sets forth Client’s exclusive remedy with respect to any
such breach.
(b) In the event of any breach or threatened breach of the
Confidentiality or Intellectual Property provisions of this Agreement, an
aggrieved Party may be entitled to temporary and injunctive relief, including
temporary restraining orders, preliminary injunctions and permanent
injunctions, to enforce such provisions. This provision with respect to injunctive
relief will not, however, diminish an aggrieved Party’s right to claim and
recover damages.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO
EVENT SHALL PROVIDER OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL,
INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO,
DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION,
BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, FAILURE TO MEET ANY
DUTY (INCLUDING OF GOOD FAITH OR OF REASONABLE CARE), NEGLIGENCE, AND ANY OTHER
PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE
PERFORMANCE OF THIS AGREEMENT OF THE USE OF OR INABILITY TO USE THE GOODS OR
SERVICES, EVEN IF PROVIDER OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
(d) NOTWITHSTANDING ANY DAMAGES THAT CLIENT MIGHT INCUR FOR ANY
REASON WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ALL DAMAGES REFERENCED ABOVE
AND ALL DIRECT OR GENERAL DAMAGES), THE ENTIRE LIABILITY OF PROVIDER AND ANY OF
ITS AFFILIATES UNDER ANY PROVISION OF THIS AGREEMENT AND CLIENT’S EXCLUSIVE
REMEDY FOR ALL OF THE FOREGOING SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY
CLIENT UNDER THE ORDER PURSUANT TO WHICH THE INJURY OR DAMAGE IS ALLEGED TO
HAVE ARISEN DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE
ALLEGED INJURY OR DAMAGE OCCURRED. THE FOREGOING LIMITATIONS, EXCLUSIONS, AND
DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN
IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE.
12. Indemnification:
(a) Each Party
(the “Indemnitor”) shall indemnify, defend and
hold harmless the other Party, its officers, directors, employees, agents,
subsidiaries and other affiliates (collectively the “Indemnitee”)
from and against any and all claims, damages, liabilities, and expenses
(including attorney fees) arising from any claim asserted against the Indemnitee by a Third Party based on Indemnitor’s
breach of any representation, warranty, covenant, agreement or obligation under
this Agreement (a “Claim”), provided, that in no event, shall Provider
be liable for any Claim arising out of its compliance with instructions,
requirements or specifications provided by or required by Client (including the
use of information, artwork, logos and trademarks provided by Client). Neither
Party will be responsible for indemnifying another Party hereto where the basis
of the indemnity claim arises out of such other Party’s own gross negligence or
willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such Claim, tender the defense of the
Claim to Indemnitor, and cooperate with Indemnitor in the defense of the Claim. Indemnitor
shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
(b) In the event of any Claim asserted pursuant to Section
12(a) above that relates to IP Rights of any Third Party, in addition to
the indemnification provided pursuant to Section 12(a), the Indemnitor shall at its option either: (i) secure license
rights from the Third Party; (ii) modify the Work to avoid infringement; or
(iii) discontinue the Work which results in such Claim.
13.
Dispute Resolution and Choice of
Law:
(a) Any legal suit, action or proceeding arising out of or
relating to this Agreement shall be commenced in a federal court in Minnesota
or in state court in the County of Nicollet, Minnesota, and the appellate
courts thereof, and each party hereto irrevocably submits to the exclusive
jurisdiction and venue of any such court in any such suit, action or
proceeding.
(b) BOTH PARTIES AGREE TO WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN THE RESOLUTION OF THE DISPUTE OR CLAIM, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, BETWEEN ANY OF THE PARTIES OR ANY OF THEIR
RESPECTIVE AFFILIATES ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL
TO THIS AGREEMENT TO THE FULLEST EXTENT PERMITTED BY LAW.
(c) The validity, construction and performance of this Agreement
shall be governed by and construed in accordance with the internal Law of the
state of Minnesota applicable to contracts executed in and performed entirely
within such state, without reference to any choice of Law statutes or
principals thereof.
14. Notices:
(a) All
notices, consents, waivers, and other communications (“Notices”) which are
required to be given or may be given pursuant to the terms of this Agreement
shall be in writing signed by the Party or an officer of the Party giving
notice or by counsel for such Party and shall be sufficient in all respects if
delivered in person, or mailed by registered or certified mail, postage
prepaid, or sent by commercial expedited delivery service, to the address specified on the applicable order or such
replacement address as any Party hereto shall have designated by Notice to the
other Parties as provided herein. A copy of any notice to Supplier shall be
also sent to General Counsel, 1725 Roe Crest Drive, North Mankato, Minnesota
56003 together with a copy of this Agreement.
(b) Any Notice shall be effective when the Party giving the
Notice has complied with Section 14(a) and when received by all Persons
specified to receive such notice. A Notice is deemed to have been received as
follows:
(i) upon receipt as indicated on the signed receipt, if given by
hand or sent by registered or certified mail or commercial expedited delivery
service; or
(ii) if the Party to whom Notice is sent refuses delivery or if the
Notice cannot be delivered due to a change in address for which no Notice was
provided, then upon rejection, refusal or inability to deliver.
Notwithstanding the foregoing provisions, if any Notice is
received after 5 p.m. on any Business Day or on any day other than a Business
Day where received, the Notice shall be deemed to have been delivered at 9 a.m.
on the next following Business Day.
15.
No Assignment:
Neither
Party may assign this Agreement without the prior written consent of the other
Party.
16.
Force Majeure:
Neither
Party shall be liable for any failure or delay in performance under this
Agreement (other than for delay in the payment of money due and payable
hereunder) to the extent said failures or delays are caused by: causes beyond
that Party's reasonable control and occurring without its fault or negligence,
including, without limitation, acts of God, Government restrictions (including
the denial or cancellation of any export or other necessary license), wars,
insurrections, cyber or hostile network attacks, failure of suppliers, subcontractors,
and carriers, and/or any other cause beyond the reasonable control of the Party
whose performance is affected, provided that, as a condition to the claim of
non-liability, the Party experiencing the difficulty shall give the other
prompt written notice, with full details following the occurrence of the cause
relied upon. Dates by which performance obligations are scheduled to be met
will be extended for a period of time equal to the time lost due to any delay
so caused.
17.
Entire Agreement:
This
Agreement, together with the schedules and exhibits heretofore or
contemporaneously delivered pursuant to this Agreement or executed and
delivered at Closing, sets forth the entire agreement and understanding among
the Parties as to the subject matter hereof, and merges and supersedes all
prior discussions, agreements, and understandings of every and any nature among
them. No Party shall be bound by any condition, definition, warranty, or
representations, other than as expressly set forth or provided for in this
Agreement, or as may be, on or subsequent to the date hereof set forth in
writing and signed by the Party to be bound thereby. This Agreement may not be
amended, supplemented, changed, or modified, except by agreement in writing
signed by the Parties to be bound thereby.
18.
Inconsistent Documents Ineffective:
Except
for Orders executed by the Parties as provided herein, no proposal, purchase
order, order confirmation, acceptance, or any other document provided by either
Party to the other, nor any electronic click-wrap, terms of use or similar
online consent or acceptance language accompanying or set forth as a
prerequisite to any electronic interface or utility associated with any Work,
shall be deemed to amend the terms hereof and any such contradictory or
additional terms shall be ineffective. In the event of any ambiguity or
conflict between any of the terms and conditions contained in this Agreement
and the terms and conditions contained in an Order, the terms and conditions of
this Agreement shall control, unless the Parties have expressly provided in
such Order that a specific provision in this Agreement is amended, in which
case this Agreement shall be so amended, but only with respect to such Order.
19.
Waiver:
The
waiver by any Party of any other Party’s non-compliance with any obligation or
responsibility herein shall be ineffective unless given in writing and shall
not be deemed a waiver of other instances of non-compliance or of any Party’s
remedies for such non-compliance.
20. Attorney
Fees:
If
any litigation shall be commenced to enforce, or relating to, any provision of
this Agreement, or any collateral documents, the prevailing Party shall be
entitled to an award of reasonable attorney fees (including fees related to the
services of in-house counsel) and reimbursement of such other costs as it
incurs in prosecuting or defending such litigation. For purposes of this Section
20, prevailing Party shall include a Party awarded injunctive relief, a
Party succeeding in obtaining the issuance of an order enforcing an
arbitrator’s award or compelling arbitration as provided herein, and a Party
prevailing upon appeal.
21.
Severability:
If
any provision of this Agreement shall be held to be illegal, invalid or
unenforceable, that provision shall be enforced to the greatest extent
permissible so as to affect the intent of the Parties hereto, and the legality,
validity and enforceability of the remaining provisions shall in no manner be
affected or impaired thereby. If necessary to effect the intent of the Parties,
the Parties will negotiate in good faith to amend this Agreement to replace the
illegal, invalid or unenforceable provision with legal, valid and enforceable
language which as closely as possible reflects such intent.
22.
Construction and Interpretation:
The
Parties acknowledge that this Agreement was prepared by the Provider solely as
a convenience and that all Parties and their counsel hereto have read and fully
negotiated all the language used in this Agreement. No rule of construction
shall apply to this Agreement which construes ambiguous or unclear language in
favor of or against any Party by reason of that Party’s role in drafting this
Agreement. No provision hereof shall be construed as a limitation or
modification of any other provision hereof. Unless otherwise specified in the
relevant provision, “including” means “including without limitation” and no
exclusion of unlisted items shall be inferred from their absence.
ADDENDUM 1
Client Owned Inventory
Provider
may, from time to time, house materials or inventory owned by Client (“Client
Materials”) at its facility (“Provider Facility”) in order for Provider to
perform services for Client and Client and Provider desire to agree to the
terms and conditions upon which Provider will store such Client Materials. Accordingly, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereby agree as follows:
1.
Client
agrees to pay the storage and other fees associated with Provider’s storage,
inventorying and warehousing of the Client Materials (“Client Materials
Warehouse Storage Fees”).
2.
Upon
Provider’s receipt of Client Materials, Client agrees that it shall bear all
and insure against all risk of loss at all times while such Client Materials
are located at the Provider Facility or while such Client Materials are under
the direction and control of Provider.
Unless caused by the gross negligence or willful misconduct of Provider,
in no event shall Provider be liable for any loss or damage to the Client
Materials.
3.
In
the event there is no order or de minimus activity
related to the Client Materials for a period of twelve (12) months or upon
expiration or termination of this Agreement, Provider will use reasonable
efforts to notify Client of any such Client Materials which remain under Provider’s
direction or control and, unless otherwise agreed to in writing by both
parties, Client shall accept C.O.D. return shipment of all such remaining Client
Materials. In the event such Client
Materials are returned to Provider, Client shall remain liable for all costs
related to the shipment of such Client Materials and Provider shall have the
right to destroy, resell or otherwise dispose of such Client Materials and Client
shall be liable for all costs and expenses related thereto, including but not
limited to all costs of shipment, destruction, resale, enforcement of and
collection under this Agreement, including reasonable attorneys’ fees.
4.
This
Addendum shall remain in effect until such time as Provider is no longer in
possession or control of any Client Materials provided that either party may
terminate this Addendum immediately for cause upon written notice, which notice
will include a ten (10) business day opportunity to cure. Either party may terminate this Addendum for
convenience upon sixty (60) days written notice to the other party.
ADDENDUM 2
Provider Owned Inventory
Provider
may, from time to time, purchase materials and/or inventory on Client’s behalf
(“Provider-Managed Inventory”) and such Provider-Managed Inventory shall be
stored at Provider’s facility (“Provider Facility”) in order for Provider to
perform services for Client. Client and Provider
desire to agree to the terms and conditions upon which Provider will warehouse
and store such Provider-Managed Inventory.
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1.
Client
agrees to pay the storage fees associated with Provider’s storage, management
and inventorying of the Provider-Managed Inventory (“Provider-Managed Inventory
Warehouse Storage Fees”).
2.
In
the event there is (a) a de minimus or no order
activity related to the Provider-Managed Inventory for a period of twelve (12)
or more months; (b) upon the expiration or termination of this Addendum; or (c)
the expiration of termination of the Agreement between the parties to which the
Provider-Managed Inventory is addressed or the subject of, Provider will use
reasonable efforts to notify Client of any such Provider-Managed Inventory
which remains under Provider’s possession, direction or control and, unless
otherwise agreed to in writing by both parties, Provider shall invoice Client
for such Provider-Managed Inventory and payment shall be due within thirty (30)
days of the invoice date. For amounts
owed which are more than thirty (30) days past due, Provider may charge Client
interest in the amount of one and a half percent (1 ½%) per month or the
maximum rate permitted by law. Upon
receipt of payment from Client, Client shall accept C.O.D. return shipment of
all such remaining Provider-Managed Inventory and shall be responsible for all
other costs or expenses related to the return of such Provider-Managed
Inventory. Risk of loss of Provider-Managed
Inventory shall transfer to Client upon shipment. In addition to all other remedies available
to Provider, in the event that Provider does not receive full payment for the Provider-Managed
Inventory within sixty (60) days of the invoice date, Provider shall have the
right to destroy, resell or otherwise dispose of such Provider-Managed
Inventory and, in addition to the invoiced amount of the Provider-Managed
Inventory, Client shall be liable for
all costs and expenses related thereto, including but not limited to all costs
of shipment, destruction, resale, enforcement of and collection under this
Agreement, including reasonable attorneys’ fees.
3.
This
Addendum shall remain in effect until such time as Provider is no longer in
possession or control of any Provider-Managed Inventory provided that either
party may terminate this Addendum immediately for cause upon written notice,
which notice will include a ten (10) day opportunity to cure. Either party may terminate this Addendum for
convenience upon sixty (60) days written notice to the other party.
4.
This
Addendum constitutes and contains the entire agreement between the parties with
respect to the storage, warehousing and inventorying of the Provider-Managed
Inventory. The parties acknowledge and
agree that to the extent there is a conflict between any terms in this Addendum
and any terms contained in the storage, warehousing and inventory provisions
related to the Provider-Managed Inventory contained in any other agreement
executed by the parties, the terms related to such storage, warehousing and
inventory of the Provider-Managed Inventory contained therein, shall be
governed by this Addendum and the terms contained herein shall prevail.