eGourmet Solutions, Inc.
General Terms and Conditions
Effective Date: December 16, 2020
PLEASE READ THESE TERMS AND CONDITIONS (“Terms”) CAREFULLY. BY TENDERING GOODS OR PRODUCTS FOR STORAGE OR USING ANY OTHER SERVICES BY EGS, CLIENT ACKNOWLEDGES THAT CLIENT HAS READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THESE TERMS. THE PRESENCE OF A COUNTER PROPOSAL OR PROPOSED MODIFICATION SHALL NOT CHANGE THE TERMS UNLESS AGREED TO IN WRITING BY EGS. ANY GOODS OR PRODUCTS RECEIVED BY EGS OR SERVICES PROVIDED BY EGS ARE SUBJECT TO THESE TERMS.
These Terms, together with the Statement of Work, form a contract between EGS and Client known as the Service Agreement (the “Agreement”).
As used in these Terms, “Client” means the company, organization, or legal entity executing a Statement of Work, or for whom EGS provides any services or storage of the Products for Client.
As used in these Terms, “EGS” means eGourmet Solutions, Inc., a New York corporation.
As used in these Terms, “Product” means the goods and property tendered to EGS by Client for which EGS has agreed to store and provide services pursuant to a Statement of Work.
As used in these Terms, “Statement of Work” means a written statement of work describing the professional services to be provided by EGS to Client and that is executed between Client and EGS (the “SOW”).
- Commencement Date. The term “Commencement Date” as used herein means the earlier of (a) the date Client executes the SOW; or (b) EGS provides any services or storage of the Products for Client.
- Term and Termination.
- The Agreement commences on the Commencement Date and will remain in effect until terminated in accordance with this Section.
- The “Initial Term” of the Agreement shall be as set forth in the SOW.
- Following expiration of the Initial Term, either party may terminate the Agreement without cause upon thirty (30) days written notice to the other party.
- During the Initial Term or any Renewal Term, either party may terminate the Agreement and/or any SOW with cause upon twenty (20) days written notice to the other party specifying a material breach if such breach remains uncured at the expiration of such period.
- The termination of the Agreement shall not affect a party’s obligation to fulfill such of its obligations that were incurred or that arose prior to the effective date of such termination. Upon the termination of the Agreement, Client shall, at its sole cost and expense, be responsible for the removal of all of the Products from the Distribution Center(s) and for the shipment of such Products to such destination designated by Client. If Client requests EGS’s assistance to remove the Products, and Client and EGS have agreed upon the fees payable by the Client to EGS in connection therewith, Client must pay the agreed-upon fees to EGS prior to the termination date. If Client has not removed all of its Products from the Distribution Center(s) on or before the termination date, EGS shall have the right, without giving prior notice to Client, to remove from its Distribution Center(s), and to dispose of in such manner (including, without limitation, destruction) as it deems appropriate, such of Client’s Products remaining in the Distribution Center(s) as of the close of business on the termination date; and, in such event, Client is responsible for all costs and expenses incurred by EGS in removing and disposing of the Products from the Distribution Center.
- Distribution Center; Warehousing.
- EGS will store the Products at its discretion at any one or more of EGS’s warehouse locations identified in the SOW or an EGS approved third party storage location (the “Distribution Center”). Client is solely responsible for all costs and expenses for shipment of the Products to the Distribution Center, including all freight, handling, and importation costs incurred in delivering the Products to the Distribution Center. Client agrees to indemnify and hold EGS harmless from all claims for transportation, storage, handling, and other charges related to the Products, including undercharges, rail demurrage, truck/intermodal detention, and other charges of any nature whatsoever. Client is solely responsible for administering and managing the shipment and delivery of the Products to the Distribution Center. EGS is not responsible for Products resting in rail cars, trailers, or trucks parked at the entrance to the Distribution Center. From time to time (and not less often than monthly), Client shall provide EGS notice of rolling monthly projections of anticipated deliveries of the Products. EGS shall unpack and store the Products delivered to the Distribution Center in accordance with the provisions of the SOW.
- All Products shall be delivered to the Distribution Center properly marked, packaged, labeled, and classified for storage and handling in accordance with the SOW. Unless otherwise made known to EGS in writing and accepted by EGS, Client warrants that the Products are not considered hazardous materials and/or dangerous goods at the time the Products are tendered to EGS. Client warrants that the Products are properly packaged to withstand the rigors of shipping and handling. EGS may refuse acceptance of Products that are not properly packaged or which, in the reasonable opinion of EGS, are not suitable for movement or storage in the Distribution Center.
- Products shall be clearly labeled with their name, SKU number, lot code (if applicable), and a scannable barcode representation of such SKU number and lot code. Client is solely responsible for ensuring that Products are properly marked according to the requirements as well as USDA and/or FDA labeling requirements. If the Products do not have barcodes, or exhibit other labeling issues affecting inventory management and/or order processing, Client releases and shall hold EGS harmless from any claims and responsibility for incorrect items or incorrect quantities shipped until such Products are marked according to the requirements.
- Products. The types and quantities of Products may be modified from time to time upon notice to EGS. Client warrants that it is the lawful owner and/or has lawful possession of the Products. Client warrants that it has sole legal rights to store Products tendered, to release Products, and to instruct EGS regarding delivery or disposition of the Products. Client agrees to notify all parties having or acquiring any interest in the Products of the terms and conditions of the Agreement and further agrees to indemnify and hold EGS harmless from any claim by third parties relating to the ownership of the Products. Such indemnification shall include any reasonable legal fees or costs incurred from any claim by a third party, regardless of whether litigation is actually filed. Client shall be deemed to be the seller of the Products to the customers of the Client. The Client shall retain title to the Products until such time as title to units of a Product passes to the customer of the Client or as otherwise provided in the Agreement. Unless otherwise made known to EGS in writing and accepted by EGS, Client warrants that the Products are not considered hazardous materials and/or dangerous goods at the time the Products are tendered to EGS.
- EGS warrants that it will provide to Client the services described in the Agreement in accordance with the standard practices EGS utilizes to provide such services to its clients, which shall be in accordance with generally accepted industry standards. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND EGS MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EGS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
- EGS shall accept for delivery, store, pick, pack and ship all Products in the Distribution Center in accordance with the SOW and Client’s written instructions to the extent that adequate quantities of the Products are available in the Distribution Center.
- EGS shall not be responsible for any special handling (such as bar coding, attaching price stickers and/or labeling) unless expressly specified in the SOW. In the event Client requests that EGS label the Products, Client shall provide EGS with a sample or specimen. Client is solely and exclusively responsible for ensuring that its label complies with any federal, state, municipal or other governmental law, rule, regulation, ordinance, decision, order, directive or ruling of any kind.
- Client agrees that in the event EGS is required to provide information, permit inspection, or is in any way required to incur costs, including but not limited to reasonable attorney’s fees, expert fees or any cost associated with defending against or complying with any agency inspection or investigation conducted by a Federal, State or local agency associated, in any way, with Client or the Products, then Client shall indemnify EGS for all such costs and hold EGS harmless from any cause, damages, penalties, civil penalties, fines or assessment associated with the same.
- Notice of Claim.
- EGS shall not be liable for any loss, damage, or destruction to any Products tendered, secured, stored, handled, or shipped, however caused, unless presented in writing to EGS within sixty (60) days after Client knew, or should have known by the exercise of reasonable care, of such loss or damage, unless a shorter period is set forth herein. Each claim must contain information necessary to identify the Products affected, the basis for liability, and the amount of the alleged loss or damage, as well as all appropriate supporting documentation.
- No lawsuit or other action may be maintained against EGS for any loss, damage, or destruction to any Products tendered, secured, stored, handled, or shipped, however caused, unless timely written claim has been given as provided in paragraph (a) of this Section and unless such lawsuit or other action is commenced within one (1) year after Client knew, or should have known by the exercise of reasonable care, about such claim.
- Liability and Limitation of Damages.
- EGS shall not be liable for any loss, damage, or destruction to any Products tendered, secured, stored, handled, or shipped, however caused, unless such loss, damage, or destruction is caused by EGS’s failure to exercise care with regard to the Products that a reasonably careful person would exercise under similar circumstances. EGS is not liable for any loss, damage, or destruction that could not have been avoided by the exercise of such care.
- In the event EGS is liable for any loss, damage, or destruction to any Products tendered, secured, stored, handled, or shipped, EGS’s liability shall be limited to the amount listed in the SOW.
- The limitation of liability referred to in this Section shall apply to all claims arising from or related to the Agreement, from EGS’s services or performance, or otherwise arising from the relationship of the parties, including inventory shortage and mysterious disappearance claims unless EGS converted the Products to its own use. Client waives any rights to rely upon any presumption of conversion imposed by law.
- WITH RESPECT TO ANY CLAIM ARISING FROM OR RELATED TO THIS AGREEMENT, OR OTHERWISE ARISING FROM THE RELATIONSHIP OF THE PARTIES OR EGS’S PERFORMANCE OF SERVICES, IN NO EVENT WILL EGS BE LIABLE FOR SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST SALES, LOSS OF GOODWILL OR REPUTATION, OR DAMAGES DUE TO BUSINESS INTERRUPTION, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR EGS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
- EGS shall not be liable for any loss, damage, or destruction caused by: shrinkage in weights, evaporation, decay, taint, rot, or other inherent quality of the Products; war, terrorism, civil or military authority, enemies of the government, riots, insurrections, or civil commotions; labor disputes; strikes; seizure under legal process or by acts of customs or quarantine officials; intentional or malicious acts of third persons, including cyber-attacks or data breach; explosion; weather, earthquake, fire, flood, wind, storm, or other act of God or nature; defects or failure of materials received from vendors or suppliers, including dry ice, gel packs, boxes, or coolers; any “force majeure” event described in these Terms; or other causes beyond its control.
- EGS shall not be liable for any mistakes, delays, or damages resulting from incomplete, incorrect, or improperly formatted data transmitted by the Client to EGS and/or to Client’s order management portal; any data or system parameters that are deleted or changed by the Client in the order management portal; or, limited portal access for reasons beyond its control.
- EGS shall not be liable for theft, conversion, pilferage, unexplained or mysterious disappearance unless such loss is caused by EGS’s failure to exercise the care required of EGS under this Section. The shrinkage allowance set forth in the SOW, if applicable, shall be deducted before EGS is liable, and further subject to the limitations of liability under this Section. Shrinkage shall not include the following: goods shipped to a location designated by Client; losses that are explainable; or adjustments based on miss-marked inventory.
- Where loss or damage occurs to tendered, secured, stored, or handled Products, for which EGS is not liable, Client shall be responsible for the cost of removing and disposing of such Products and the costs of any environmental cleanup and site remediation resulting from the loss or damage to the Products.
EGS will accept Products that are returned to EGS by the Client’s customers in accordance with the provisions of the SOW. Client shall at all times be solely responsible for any credits granted to, or any amounts payable to, Client ‘s customers by reason of, or in connection with, such returns. EGS shall have no responsibility or obligation to return, rebate or refund to Client or to Client’s customer any portion of any fee paid or payable to EGS pursuant to the Agreement in connection with the Products that have been returned to EGS.
- Sales and Marketing.
Client shall be responsible for the sales and marketing of the Products. In the event that the SOW obligates EGS to do so, EGS shall assist and cooperate with Client in implementing the sales and marketing programs established by Client for the Products.
- Transaction Management.
EGS shall assist and cooperate with Client in implementing the transaction management services described in the SOW. Client shall provide EGS with such transaction management information (including, without limitation, customer and credit guidelines and limits) as EGS may reasonably require to perform its services hereunder. EGS shall have no responsibility with respect to the adequacy of such guidelines, limits, or criteria.
- Accurate Information.
Client shall, at its expense, provide EGS with accurate and complete written instructions, training, documents, and information regarding the Products in order for EGS to perform its services and to provide safe and proper warehousing, handling, storage, and transportation of the Products. Any such training shall not be considered confidential or proprietary to Client unless otherwise specifically stated in writing by Client. EGS shall act in accordance with and shall be entitled to rely upon such written instructions, training, documents, and information. Client will indemnify and hold EGS harmless from all losses, costs, claims, and expenses (including reasonable attorneys’ fees) which EGS incurs because of Client’s failure to discharge this obligation.
- Client shall maintain property insurance and replacement cost insurance coverage on its Products and property under the care, custody, and control of EGS. Client’s insurance shall provide coverage for any loss or losses to the Products from any cause, including but not limited to equipment breakdown and mechanical failure. Client shall furnish EGS with proof that Client has sufficient property insurance on its Products and property, including copies of declarations pages or a certificate of insurance, and that such coverage extends to any and all of the Distribution Centers where Client’s Products are stored.
- Each party shall maintain General Liability insurance coverage in an amount not less than $1,000,000 per occurrence/$2,000,000 aggregate, and Client shall cause EGS to be designated as an additional insured on such insurance coverage throughout the term of the Agreement.
- It is Client’s obligation to ensure continued and ongoing compliance with paragraph (a) and (b) of this Section. If Client fails to obtain and/or maintain such coverage, or Client fails to furnish EGS with proof of coverage, Client shall release, indemnify, and hold harmless EGS from any and all losses as a result of Client’s failing to fully discharge this obligation. Additionally, EGS may, in its sole discretion, take each or any of the following actions: (1) suspend its performance and obligations under the Agreement, including suspending the order fulfillment services specified in the SOW; or (2) deem such failure a material breach and terminate the Agreement with seven (7) days written notice to Client.
- The Products are not insured by EGS against loss or damage however caused. The fees and charges billed to Client do not include any insurance on the Products. The limitation of liability and damages set forth in Section 8 of the Terms shall apply in all circumstances where EGS is legally liable for any such loss or damage.
- Service Fees; Modification.
- All fees and other amounts that are payable by the Client pursuant to the Agreement shall be paid by the Client in accordance with the provisions of the SOW. EGS may apply a finance charge fee of two percent (2%) per month on the past due balance until paid in full.
- If any amount owing by Client under the Agreement is not paid in full within seven (7) days of the date set forth in the SOW, EGS may, without limiting its other rights and remedies (i) suspend its performance of services under the Agreement upon written notice to the Client until such unpaid amounts are paid in full; and/or (ii) give a written notice to Client requesting that Client deposit with EGS (in which event the Client must deposit with EGS) security in an amount to be determined by EGS.
- If EGS utilizes an attorney to collect any unpaid amount owed or to assist in enforcing any provisions of this Agreement, Client shall be obligated to pay or reimburse EGS such collection and/or reasonable attorney fees and expenses.
- Unless otherwise specified in the SOW, EGS may increase the service fees and other prices set forth in the SOW from time to time effective upon not less than thirty (30) days prior written notice to the Client. In the absence of Client’s written acknowledgement and acceptance of the new rates, the act of tendering the Products for storage or requesting other services by EGS after the effective date of the new rates shall constitute acceptance of the new rates. The presence of a counter proposal or negotiations shall not delay implementation of the new rates unless specifically agreed to in writing by EGS.
- Warehouse Lien.
- EGS shall have a general warehouse lien against the goods and Products covered by the Agreement or on the proceeds thereof for all charges for storage, preservation, transportation, services, labor, handling, labeling, packing, sorting, and charges present or future with respect to such goods and Products; also for all lawful claims for money advanced, interest, penalties, late fees, reasonable attorneys’ fees, and other charges and expenses in relation to such goods and Products; and for the balance on any other accounts that may be due; and, for expenses necessary or reasonably incurred on their sale pursuant to law (collectively, “Warehouse Lien”). Unless expressly stated otherwise in writing, EGS will not subordinate its lien to any lender, financial institution, or any other third party.
- Client grants EGS a security interest in all unsold inventory, collateral, or any other goods and Products in EGS’s possession at the time of default for failure to pay any amount due under the Agreement. EGS shall be permitted to file a financing statement to secure its priority in any interest to Client’s goods and Products. If such amounts remain unpaid for 30 days after EGS’s demand for payment, EGS may sell such goods and Products at public auction or private sale or in any other manner lawful or reasonable. Any proceeds from such sale shall be applied to the amounts owed and the costs incurred with such sale. Client remains responsible for any deficiency outstanding to EGS.
- Each party acknowledges that in implementing and performing its obligations under the Agreement, each party may disclose, reveal or furnish (the “Disclosing Party”) to the other party hereto and/or to the officers, employees and agents of such other party (collectively, the “Recipient”) either orally or in writing or by permitting the Recipient to inspect the Disclosing Party’s facilities, confidential or proprietary information or documents relating to the business and affairs of the Disclosing Party which is of tangible or intangible value to the Disclosing Party and is not public information and is not generally known or available to the Disclosing Party’s competitors but is known only to the Disclosing Party and its employees, affiliates, independent contractors or agents to whom it must be confided in order to apply it to the uses intended (such information and documents are hereinafter collectively referred to as “Confidential Information”). The Confidential Information to be disclosed by the Disclosing Party to the Recipient may include, but is not limited to, cost and expense data, production data, trade secrets, employee lists, customer or client lists, marketing and customer data, operational methods, and such other information of the Disclosing Party as has been or may be disclosed, revealed, or furnished to the Recipient before, or after, the execution and delivery of the Agreement.
- Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient, (ii) becomes available to the Recipient on a non-confidential basis from a person (other than the Disclosing Party) who is not otherwise bound by a confidentiality agreement or is not otherwise prohibited from disclosing such information, or (iii) is already in writing and in the possession of the Recipient prior to its disclosure in connection herewith, provided that such information is not subject to another confidentiality agreement of any kind.
- Each Party hereto which is a Recipient of Confidential Information hereby agrees that (a) it will not in any way disclose, reveal or furnish any Confidential Information of the Disclosing Party to any person or entity other than those of its officers, employees and agents (collectively, “Representatives”) who are participating in the transactions contemplated by the Agreement and have a need to know such Confidential Information for that purpose, (b) it will not utilize any Confidential Information of the Disclosing Party for its own benefit or for any purpose other than in connection with the transactions contemplated by, the fulfillment of its obligations under, and the enforcement of its rights under, the Agreement, (c) it will direct its Representatives to treat the Disclosing Party’s Confidential Information as confidential and will cause its Representatives to strictly observe and comply with the provisions of this Section to the same extent that it is obligated to observe and comply with such provisions, and, it shall be responsible for any breach of the provisions of this Section by any of its Representatives, and (d) it agrees that if it or any of its Representatives shall breach or threaten to breach any of the provisions of this Section, the Disclosing Party will suffer immediate and irreparable harm; it will be impossible to measure in money alone the damage to the Disclosing Party; money damages will not be an adequate remedy to the Disclosing Party; and, the Disclosing Party shall (in addition to, and not in lieu of, any other remedies available to it at law or in equity or by statute) be entitled to have such breach or threatened breach restrained or enjoined by any court having jurisdiction.
- In the event that any governmental agency, regulatory authority, court or litigant seeks to obtain the disclosure of any of the Disclosing Party’s Confidential Information from the Recipient or from the Recipient’s Representatives, the Recipient shall, promptly after receiving a request, or an order, for such disclosure, notify the Disclosing Party of (and provide to the Disclosing Party a copy of) the document setting forth such request or order for disclosure (to the extent legally permitted).
- Client shall indemnify, defend, and hold harmless EGS from and against all third-party demands, claims, actions or causes of action, assessments, losses, damages, liabilities, costs and expenses, including, without limitation, interest, penalties and reasonable attorneys’ fees (collectively, “Claims”), asserted against, resulting to, imposed upon, or incurred by EGS resulting from or relating to: (i) any actual or alleged infringement or misappropriation by the Client or by any of its officers, directors, agents, employees, principals, owners, partners, stockholders or affiliates (collectively, ”Affiliated Persons”) of any patent, copyright, trademark, service mark, trade name, trade secret or any other intellectual property right of any other person, firm or entity; (ii) any failure by the Client or by any of its Affiliated Persons to comply with, or the breach by the Client or any of its Affiliated Persons of, any federal, state, municipal or other governmental law, rule, regulation, ordinance, decision, order, directive or ruling of any kind; or (iii) any death, personal injury, product liability, or property damage claim resulting from or relating to the Products.
- EGS shall indemnify, defend, and hold harmless Client from and against all third-party Claims asserted against, resulting to, imposed upon, or incurred by Client resulting from or relating to: (i) any actual or alleged infringement or misappropriation by EGS or by any of Affiliated Persons of any patent, copyright, trademark, service mark, trade name, trade secret or any other intellectual property right of any other person, firm or entity; (ii) any failure by EGS or by any of its Affiliated Persons to comply with, or the breach by EGS or any of its Affiliated Persons of, any federal, state, municipal or other governmental law, rule, regulation, ordinance, decision, order, directive or ruling of any kind, except for such breach caused by or attributable to Client; or (iii) any death, personal injury, product liability, or property damage claim resulting from or relating to the Products, to the extent caused by EGS or its Affiliated Persons.
- The parties shall notify each other promptly in writing upon learning of any Claim with respect to which indemnification is sought. The party obligated to indemnify the other party (the “Indemnifying Party”) shall have the right to control the defense of the claim with counsel selected by it and reasonably acceptable to the other party (the “Indemnified Party”). The Indemnifying Party must inform the Indemnified Party of all major developments concerning the Claim and shall not settle any Claim without the Indemnified Party’s prior written consent, which consent shall not be unreasonably withheld or delayed (it is understood that the absence of a general liability release is a reasonable basis to withhold consent).
- These Terms are the entire agreement between EGS and Client regarding the subject matter contained herein and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter contained herein. Notwithstanding any language to the contrary therein, no terms or conditions stated in the SOW or in any other documentation will be incorporated into or form any part of these Terms, and all such terms or conditions will be void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the SOW, (2) any exhibit, schedule or addendum to the SOW and (3) these Terms.
- EGS may modify the Terms from time to time in its sole discretion. EGS will notify Client not less than ten (10) days prior to the effective date of any amendments or changes to these Terms. Client’s tendering or keeping goods or Products for storage with EGS, or using any other services by EGS, following the effective date of any such amendment may be relied upon by EGS as Client’s acceptance of any such amendment.
- EGS’s failure to require strict compliance with any provision of the Agreement shall not constitute a waiver or estoppel to later demand strict compliance with that or any other provision of the Agreement.
- Each party represents that it has validly entered into the Agreement and has the legal power to do so.
- The provisions of the Agreement shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns, but Client may not assign its rights or obligations under the Agreement without the prior written consent of EGS.
- The Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Kansas, without regard to conflict of laws provisions or rules.
- If any provision of the Agreement, or any application thereof, should be construed or held to be void, invalid, or unenforceable, by order, decree or judgment of a court of competent jurisdiction, the remaining provisions of the Agreement shall not be affected thereby but shall remain in full force and effect.
- The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
- The Section headings herein are for convenience only and shall not be deemed to constitute a part of the Agreement.
- The provisions of Sections 6, 7, 12, 13, 14, 15, 16, 19, and 20 shall survive termination of the Agreement for any reason.
Except as otherwise specified in the Agreement, all notices, permissions, and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, unless the mailing is sent by certified or registered mail where delivery confirmation is available showing the actual date of receipt, or (iii) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). A party shall send an additional courtesy copy of a notice to the other party via email at the email address set forth in the SOW.
Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be Kansas City, Wyandotte County, Kansas. The number of arbitrators shall be one. The Arbitrator will be selected by the parties from a list of approved AAA arbitrators and must be licensed to practice law in the State of Kansas. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. Prior to filing any arbitration and as a condition precedent to the arbitration of any action, the parties agree first to try in good faith to settle the dispute by mediation. The provisions of this Section shall not prevent a Disclosing Party, as defined the Agreement, from initiating an action or other proceeding in any court having jurisdiction seeking to enjoin or restrain a breach or threatened breach of Section 16 and the confidentiality provisions of this Agreement.
- Force Majeure
Neither party shall be liable to the other for default in the performance or discharge of any duty or obligation under the Agreement, except for Client’s obligation to pay for services rendered by EGS, when caused by acts of God, hurricanes, tidal waves, flood, tornadoes, cyclone, wind storm, earthquake, public enemy, civil commotion, strikes, labor disputes, work stoppages or other difficulties within the workforce, failure to provide power by the utility provider, intentional or malicious acts of third persons or any other organized opposition, cyber-attacks, viruses, corruption, depredation, accidents, explosions, fire, water sprinkler leakage, moths, vermin, insect, seizure under legal process, embargo, prohibition of import or export of goods, closure of public highways, railways, airways or shipping lanes, governmental interference, order, regulation, or other action(s) by governmental authority, national, regional, or local emergency(ies), plague, epidemic, pandemic, outbreaks for infectious disease or any public health crisis, including but not limited to compliance with related practices required or recommended by governmental or health organizations (including but not limited to quarantine or other employee restrictions) or other contingency(ies), similar or dissimilar to the foregoing, beyond the reasonable control of the affected party, Upon the occurrence of such an event the party seeking to rely on this Section shall promptly give written notice to the other party of the nature and consequences of the cause. If the cause is one which nevertheless requires EGS to continue to provide some services, such as storage of the Products, Client agrees to pay the storage or similar charges associated with EGS’s obligation during the continuance of the force majeure. All Products are stored, handled, and transported at Client’s sole risk of loss, damage, or delay caused by any of the above.