Master Customer Agreement
This Master Customer Agreement (“MCA”) is entered into between Elevated Equipment Supply, Inc., a California corporation and/or one of its Affiliates and the Customer, both of which are identified in any Service Agreement(s) and/or Sales Order(s) signed by the Parties referencing this MCA and this MCA is incorporated by reference into any such Service Agreement(s) and/or Sales Order(s). Notwithstanding the foregoing, by placing an order for Services or Products or accepting delivery of any Service or Products from the Company, whether such order is written, electronic, or oral, the Customer agrees to be bound by this MCA. Acceptance of the Services or shipment or use of the Products shall constitute conclusive evidence of Customer’s acceptance of this MCA, regardless of whether Customer has signed or otherwise acknowledged them in writing.
ARTICLE 1 – CERTAIN DEFINITIONS
1.1 “Affiliate” means, with respect to any person or entity, any other person or entity that directly or indirectly controls, is controlled by, or is under common control with such person or entity. For purposes of this definition, “control” means the power to direct the management or policies of an entity, whether through ownership of voting securities, by contract, or otherwise.
1.2 “Agreement”: The applicable Service Agreement(s) and/or Sales Order(s) and this MCA.
1.3 “Applicable Laws”: All laws and regulations applicable to (i) the Company’s general line of business, and (ii) the provision of the Services and Products to be furnished hereunder.
1.4 “Company”: Elevated Equipment Supply, Inc., a California corporation, whose address is 2651 E. 45th Street Vernon, CA 90058, and/or any of its Affiliates.
1.5 “Customer”: Customer is the person or entity identified as such on each Service Agreement and/or Sales Order.
1.6 “Party”: Each of Company and Customer are referred to herein as a “Party” and collectively as the “Parties.”
1.7 “Private Label Products”: Products manufactured by the Company and sold under the Company’s brand name(s).
1.8 “Products”: The products and goods supplied to Customer by Company (including all packaging, labels, and containers in connection therewith), and any other items to be supplied pursuant to a Sales Order.
1.9 “Sales Order”: A written or electronic order from Customer that specifies the Products to be supplied by Company hereunder.
1.10 “Service Agreement”: The documents prepared by Company and agreed to by Customer that specifically sets forth the Services to be performed hereunder. The Service Agreement includes the Tech Services Statement of Work and/or the Field Services Agreement.
1.11 “Services”: All work performed by Company as described in the Service Agreement.
ARTICLE 2- SERVICES
2.1 Services. Company agrees to perform Services in accordance with and as detailed in the Service Agreement.
2.2 Changes. Either Party may request changes to the Services. Changes must be agreed between the Parties and will be subject to reasonable adjustments to fees and schedules. Changes to a Service Agreement that amount to the provision of additional Services, rather than adjustments to the Services already agreed, must be in writing and signed by both Parties.
2.3 Customer Responsibilities. Company shall not be responsible for any delay, cost increase or other consequences due to Customer’s failure to provide Company with all information relevant to the Services and any reasonable assistance as may be required for Company to properly perform the Services. Company will use commercially reasonable efforts to mitigate such costs or expenses. Any Customer deadline that is affected by any Customer default shall be extended by an amount of time equal to the length of such failure plus an additional period of time, if reasonably necessary, to compensate for such default or factors.
2.4 Subcontractors. Company may subcontract provisions of the Services to suppliers and subcontractors provided that Company shall remain primarily responsible and liable to Customer for the acts or omissions of suppliers and subcontractors.
2.5 Ownership. Subject to the restrictions in the Agreement, Customer will own all tangible written material originally prepared expressly for Customer and delivered to Customer pursuant to the Services (the “Deliverables”). The Parties agree that the Deliverables, in whole and in part, shall be “work made for hire” as that term is understood under all applicable copyright laws (including, without limitation, the copyright laws of the United States, 17 U.S.C. §§ 101 et seq.), so that all right, title, and interest relating to the Deliverables shall vest at the time of creation in Customer, excluding any Company Materials and Third Party Materials (as hereinafter defined) contained or embodied therein. If for any reason the Deliverables or any part thereof would not be considered a “work made for hire” under applicable law, Company does hereby convey, quitclaim, grant, transfer and assign to Customer the entire right, title and interest, if any and all kind and nature, free from all liens, claims, and encumbrances throughout the world, in perpetuity, in and to the Deliverables and in and to all derivatives that may be made or derived from or incorporated in the Deliverables and all “moral rights” in and to the Deliverables, excluding any Company Materials and Third Party Materials contained or embodied therein. Company shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, materials or other intellectual property or information which may have been discovered, created, developed or derived by Company either prior to or as a result of its provision of Services and which are not expressly designated as Deliverables (“Company Materials”). The foregoing ownership and assignment rights shall be subject to any limitations or restrictions on materials owned by third parties which are incorporated into the Deliverables (“Third Party Materials”), which are disclosed by Company to Customer. Company hereby grants to Customer (i) a worldwide, perpetual, royalty-free, irrevocable, non-transferable, non-sublicensable and non-exclusive license to copy, distribute, use and modify the Company Materials, and (ii) a license as similar as is commercially reasonable to the license described in subsection (i) of this paragraph in connection with any Third Party Materials, solely to the extent such Company Materials and/or Third Party Materials are included or embodied in the Deliverables and solely to the extent necessary in order for Customer to make full use of such Deliverables as contemplated by the applicable Service Agreement.
ARTICLE 3- SERVICE FEES
3.1 Service Fees. Service Fees for applicable Services to be furnished by Company hereunder are defined and set forth in the Service Agreement.
3.2 Taxes. Customer is responsible for all applicable sales, use, licensing, excise, transaction privilege taxes, gross receipts taxes, value-added taxes, and other charges, such as duties, customs, tariffs, imports, shipping fees, insurance charges, government- imposed surcharges, and any other applicable taxes and duties related to the Services. Company shall invoice all such charges and submit them to Customer for payment.
3.3 Payment. Service Fees and other fees and charges are payable as set forth in the Service Agreement. Absent payment of Service Fee or other fees or charges information in the Service Agreement, Customer agrees to pay all amounts due within thirty (30) days following the date of the Company’s invoice. Any disputes or errors related to a Service Fee must be reported in writing within thirty (30) days from the Service or, if applicable, the date of invoice; if Customer fails to raise a good faith dispute during the timeframe, the Service Fee shall be deemed final and undisputed. Customer may not set off or withhold payment of any amount due and payable because of any claim or dispute with the Company. Except for Service Fees that Customer has successfully disputed, Customer shall pay interest on all late payments (whether during the Term or after the expiration or earlier termination of the Term), calculated at the lesser of (a) 2.0% per month or (b) the maximum rate permitted by Applicable Law from the date the Service Fee payment is due until such Service Fee payment is paid.
ARTICLE 4 –SERVICES WARRANTIES
4.1 Warranty. The Company warrants (a) that the Company will render the Services ethically, promptly and diligently and commensurate with relevant professional standards, industry practices applicable to providers of similar services, and all Applicable Laws, (b) it has the requisite power and authority to enter into and perform its obligations under the Agreement and each Service Agreement, and (c) the Deliverables provided to Customer (except to the extent such Deliverables include or incorporate materials provided to Company by the Customer or are Third Party Materials) are original and do not infringe the rights of any third party.
4.2 Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE WARRANTIES PROVIDED BY THE COMPANY HEREUNDER AND ARE IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE NOT TRANSFERABLE.
ARTICLE 5-PRODUCTS
5.1 Sales Order. Customer shall provide Company with Sales Orders that specify (I) quantity of Products to be delivered, (ii) delivery dates, (iii) ship-to location, (iv) pricing, and (v) any special shipping instructions. Each Sales Order is subject to Company’s written acceptance in its discretion. Company shall confirm in writing the price and delivery schedule for each Sales Order.
5.1.1 Customer may not cancel any accepted Sales Order without Company’s prior written approval. If the Company approves a cancellation, Customer shall be responsible for a restocking charge to cover handling, inspection, and administrative costs. Any special-order or custom Products are non-cancelable and non-returnable once production has begun.
5.1.2 Customer may reschedule each Sales Order quantity upon written approval from Company. Customer is responsible for additional costs incurred by Company to reschedule the Sales Order provided Company has notified Customer of such costs and Customer has authorized Company in writing to proceed with rescheduling notwithstanding such additional costs.
5.1.3 Company is required by state law to bill and collect sales tax from its customers unless Company receives properly executed exemption certificates. Customer represents and warrants that any tax certificate presented to Company is the proper form for the applicable state taxing authority and Customer shall indemnify Company for any claims or actions brought against it relating to such certificate.
5.1.4 If Customer makes payment(s) to Company in cash or cash equivalents totaling more than $10,000 in one or related transactions, Company is legally required to file IRS Form 8300 to report the payment. Customer agrees to provide Company with any information reasonably needed to complete this filing. Customer understands that Company may file such report without further notice. Customer further agrees not to divide payments into smaller amounts for the purpose of avoiding these reporting requirements.
5.2 Delivery. The Products shall be tendered as may be designated in the Sales Order: (a) F.O.B. origin, (b) F.O.B. Customer’s on-site receiving area, or (c) F.O.B. at another location as may otherwise be specified. Packing lists must accompany each case or parcel, showing the Sales Order number and a complete description of contents.
5.3 Identification/Risk of Loss/Title. For delivery F.O.B. origin, title to, and risk of loss of, the Products shall pass to Customer upon delivery to Customer at Company’s shipping dock upon the carrier signing of the bill of lading. For delivery F.O.B. Customer’s on-site receiving area or other location specified, title to, and risk of loss of, the Products shall pass to Customer upon receipt of the Products by Customer.
5.4 Return Policy. The Company has a 14-day return policy from the original purchase date with a valid receipt. The following Product categories are excluded from this policy and are non-returnable/final sale at time of purchase unless refused at time of delivery: soil, coco products, pesticides, extraction equipment and accessories, solvents, nutrients, custom order, special order items and light bulbs. Custom order items and special orders require a 50% upfront deposit before they are ordered, paid in full before shipping and are non-returnable. Special orders consist of items the Company does not typically stock but have purchased for a specific Customer. Custom item and special-order deposits are non-refundable but may be credited back as an account credit if the Company has not ordered and is not obligated to pay the vendor. If the Company has already submitted the order the deposit is non-refundable. Returns on non-defective equipment covered in the Company’s return policy are subject to a 20% restocking fee.
5.5 Returns of Mis-shipped, Damaged or Defective Products . Mis-shipped, damaged or defective Products may be returned (subject to Company confirming any defective Product is covered by the manufacturer warranty). Any shipments refused for reasons other than freight damage will be subject to freight charges both ways as well as a restocking charge. If Products are mis-shipped, please contact Company’s office for return authorization. Company will arrange return transport and credit. For returns of defective Products, the manufacturer shall determine whether the Product is in fact defective and covered by the manufacturer warranty and, if so, provide Customer with a valid return merchandise authorization (RMA) number in order to return the defective Product to the possession of Company. If the Product is returned to the Company, subject to the above, Company will exchange it or offer an account credit. Products should be returned unused and in the original condition they were received. This includes all accessories, manuals, manufacturer’s crate/boxes, packing materials, etc. Returns received that have been used or with missing components or modifications will be refused and returned to Customer at Customer’s cost and without exchange or credit. Customer will be responsible to ensure adequate packaging on all return shipments. Company is not liable for damages, injuries or loss of revenue as a result of a manufacturer’s defective item.
5.6 Shipping Damage/Shortages Claims. Damage in shipment claims on items shipped must be made within 48 hours of receipt of Products. All claims for shortages must be reported to Company within 48 hours of delivery. All claims regarding billing errors (pricing and terms, etc.) must be reported to Company or our representatives within thirty (30) days of delivery. Immediately upon receipt of truck shipments, Customer should examine the shipment carefully before signing the freight bill. If damage or shortage is evident, Customer should not accept shipment without notation on the freight bill by the driver. Failure to do so may prevent Company from filing a claim with the carrier. If Customer needs assistance regarding damage claims, please contact Company. A photograph of damaged product(s) needs to be included with any damage claim.
5.7 Will Call. Customers may pick up Products from the Company’s warehouses, subject to availability. Customers should contact the Company the day prior to the planned pick up to confirm the Products are in stock. Orders may be picked up between 9:00 a.m.-4:30 p.m., local time, Monday-Friday.
ARTICLE 6-PRODUCT COSTS
6.1 Purchase Price. The Purchase Price shall be as specified in the Sales Order. Responsibility for payment of freight shall be as specified in the Sales Order. If shipment is specified FOB origin, freight collect, Customer shall be responsible for carrier selection, routing instructions, and pick-up appointments of Company’s shipping dock. In addition, Customer is responsible for carrier freight payments, submitting freight claims for loss and damage, scheduling appointments at destination, and tracking and tracing freight in transit. If shipment is specified F.O.B. Customer’s on-site receiving area or other location, Company will arrange for shipping, prepay the freight charges and either add them to the invoice or pay for the shipping itself depending on how specified on the Sales Order. The Purchase Price excludes and Customer is responsible for all applicable sales, use, licensing, excise, transaction privilege taxes, gross receipts taxes, value-added taxes, and other charges, such as duties, customs, tariffs, imposts, government-imposed surcharges, and any other applicable taxes and duties related to the Product. Company shall remit all such charges to the Customer for payment.
6.2 Payment. The Purchase Price is payable as set forth in the Sales Order. For cash purchases of Products or purchase requiring a deposit, payment is due at time of or before delivery. For credit-approved Customers, Customer agrees to pay all amounts due within thirty (30) days following the date of invoice. Except for invoiced payments that Customer has successfully disputed, Customer shall pay interest on all late payments (whether during the Term or after the expiration or earlier termination of the Term), calculated at the lesser of (a) 2.0% per month or (b) the maximum rate permitted by Applicable Law from the date the invoice payment is due until such invoice payment is paid.
ARTICLE 7 –PRODUCT WARRANTY
7.1 Warranties. Company makes no warranty regarding Products of other manufacturers sold by Company and to the extent, if any, any warranty of manufacturer insures by its terms to the benefit of Customer, Customer agrees to look only to the manufacturer as the sole and exclusive recourse. For Private Label Products, the directions for use reflect the opinion of experts based on field use and tests. The directions are believed to be reliable and should be followed carefully. However, it is impossible to eliminate all risks inherently associated with the use of Private Label Products. Crop injury, ineffectiveness or other unintended consequences may result because of such factors as environmental conditions, presence of other materials or the manner of use or application, all of which are beyond the control of Company. Customer agrees that all such risks shall be assumed by Customer. Company warrants that Private Label Products conform to the chemical description on the label subject to the inherent risks referred to above. Before using any Products, Customer shall determine the suitability of the Product for its intended use, and Customer assumes all risk and liability whatsoever in connection therewith. Except as set forth in the immediately preceding sentences, Company shall not be liable and provides no warranty for the Products. Company’s sole and exclusive obligation shall be to pass through the manufacturer’s warranty (if any). All recommendations made by Company are compiled from recognized horticultural sources or Company’s knowledge of recognized industries. Company makes no warranties regarding any recommendation made and Company is not responsible for any alleged losses of Customer due to any recommendations given by Company or its personnel.
7.2 Disclaimer. ALL EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. COMPANY MAKES NO WARRANTY RESPECTING NON-INFRINGEMENT OF THIRD-PARTY RIGHTS NOR DOES COMPANY MAKE ANY WARRANTIES AGAINST LATENT DEFECTS. SOME PRODUCTS SOLD BY COMPANY MAY BE ACCOMPANIED BY MANUFACTURER WARRANTIES FROM THE PARTY THAT PROVIDED COMPANY WITH THE PRODUCT(S). ALL SUCH WARRANTIES SHALL BE THE SOLE RESPONSIBILITY OF THE MANUFACTURER OF THE PRODUCT(S) PURCHASED FROM COMPANY, IF ANY WARRANTIES EXIST. BECAUSE OF VARIED INTERPRETATIONS OF STANDARDS AT THE LOCAL LEVEL, COMPANY CANNOT WARRANT THAT THE PRODUCTS MEET THE REQUIREMENTS OF THE OCCUPATIONAL SAFETY AND HEALTH ACT, OR ANY LOCAL ACTS OR CODES THAT MAY APPLY. COMPANY MAKES REASONABLE EFFORTS TO PROVIDE CURRENT AND ACCURATE PRODUCT INFORMATION IN ITS CATALOGS, WEBSITES, AND MARKETING MATERIALS; HOWEVER, ALL SUCH MATERIALS ARE FOR GENERAL INFORMATIONAL PURPOSES ONLY AND MAY NOT REFLECT THE MOST CURRENT SPECIFICATIONS OR AVAILABILITY.
ARTICLE 8 – LIMITATION OF LIABILITY; INDEMNIFICATION; INSURANCE
8.1 Limitation of Liability. COMPANY SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND SUSTAINED BY ANY PERSON OR ORGANIZATION RESULTING FROM ANY CAUSE RELATED TO THE MATERIALS, PRODUCTS, GOODS OR SERVICES UNDER THE AGREEMENT, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR INCOME, AND CROP OR PROPERTY LOSS OR DAMAGE, LABOR CHARGES AND FREIGHT CHARGES, WHETHER OR NOT BASED ON COMPANY’S NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY IN TORT OR ANY OTHER CAUSE OF ACTION. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF THE AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) EXCEED THE GREATER OF: (A) THE AMOUNT PAID TO COMPANY FOR THE PRODUCTS OR SERVICES IN THE 6 MONTHS PRECEDING THE EVENT(S) GIVING RISE TO THE CLAIM; OR (B) THE ACTUAL COST TO REPAIR, RESTORE, AND/OR REPLACE THE DAMAGED MATERIALS OR REPERFORM THE SERVICES. THE REMEDIES SET FORTH HEREIN SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF COMPANY’S OBLIGATIONS UNDER THE AGREEMENT. NO LIABILITY HEREUNDER SHALL BE ASSERTED UNLESS ANY LOSS, DAMAGE, INJURY OR OTHER CLAIM IS REPORTED TO COMPANY IN WRITING WITHIN THIRTY (30) DAYS AFTER DISCOVERY, AND THE FAILURE TO GIVE NOTICE TO COMPANY OF ANY CLAIM WITHIN SUCH PERIOD SHALL CONSTITUTE AN ABSOLUTE UNCONDITIONAL WAIVER OF SUCH CLAIM.
8.2 Indemnification by Customer. Customer shall indemnify, defend and hold Company harmless from and against any expense (including attorneys’ fees and costs), penalty, loss, costs, damages or liability resulting from any claim, complaint, suit, proceeding, or cause of action brought against it by a third party, governmental or regulatory authority arising or resulting from (a) the negligent or intentionally wrongful acts or omissions of Customer; and/or (b) breach by Customer of any of its representations and warranties under the Agreement. Notwithstanding the foregoing, Customer shall have no obligations under this Section for any liabilities, expenses, or costs arising out of or relating in any way to claims covered under Section 8.3 below, except to the extent the negligent or intentionally wrongful acts or omissions of Customer have contributed to such claim, in which case, both Parties shall indemnify, defend and hold harmless the other in accordance with their respective degree of fault.
8.3 Indemnification by Company. Company shall indemnify, defend and hold Customer harmless from any and against any expense, loss, costs, damages or liability resulting from any claim, complaint, suit, proceeding, or cause of action brought against it by a third party resulting from: (a) the negligent or intentionally wrongful acts or omissions of Company in the performance of the Services; (b) a third party claim that Company’s proprietary information utilized in the Services infringe a third party intellectual property right; and/or (c) breach by Company of any of its representations and warranties under the Agreement.
8.4 Indemnity Procedures. In the event an indemnified party is made a party to any action or proceeding by reason of any matter for which the other Party shall indemnify, then the indemnifying party shall defend such action or proceeding on behalf of the indemnified party at the indemnifying party’s sole cost and expense. The indemnified party shall provide prompt written notice to the indemnifying party of any loss for which it is seeking indemnification; provided, however, that the failure to notify the indemnifying party as promptly as practicable shall not relieve the indemnifying party of its obligations hereunder except to the extent such failure shall have actually and materially prejudiced the indemnifying party. The indemnifying party shall have the right to control the defense, and the indemnified party shall cooperate as reasonably requested (at the indemnifying party’s expense). The indemnified party shall have the right to join and participate in, as a party if it so elects, any proceedings or actions related to such claims with counsel of its own choosing at its own cost.
8.5 Safety and Workers’ Compensation. Customer and Company shall each maintain appropriate safety standards in their respective facilities, shall abide by all applicable regulatory, labor, wage and hour provisions for their employees, shall maintain levels of workers’ compensation coverage in accordance with applicable state law, and shall ensure that their respective subcontractors and suppliers abide by all applicable regulatory, labor, wage and hour provisions related to their respective duties and obligations hereunder. In the event an injury should occur to an employee of either Customer or Company related to the Agreement, each Party that employs such worker shall be responsible for the claim under its workers’ compensation policy and agrees to a waiver of subrogation against the other party related to such claim and shall furthermore indemnify and defend the other party related to any action for personal injuries or damages asserted by an employee of such party or an employee of any subcontractor of such party to the full extent allowable under law. Each Party shall ensure that its respective subcontractors agree to the same waiver of subrogation and indemnification provisions for their own employees in accordance with this section.
8.6 Company’s Insurance. Company agrees to maintain at its own expense during the Term of the Agreement adequate insurance coverage to cover the risks of claims arising from Company’s performance under the Agreement and for which Company may be legally liable.
8.7 Customer’s Insurance. Customer agrees to maintain at its own expense during the Term of the Agreement adequate insurance coverage to cover the risks of claims arising from Customer’s performance under the Agreement and for which Customer may be legally liable.
8.8 Customer’s Agreements. Customer agrees that all Products and Services are purchased for Customer’s own use. To the extent, if any, Customer’s use of such Products and Services is for or involves others, Customer agrees that these Terms and Conditions also apply to such third parties, and Customer shall hold harmless and indemnify Company for any loss in excess thereof. Customer represents and warrants that all purchases of Products and Services are solely for commercial purposes and are not subject to any laws applicable only to consumer transactions, and Customer waives all requirements of any such laws.
ARTICLE 9 – DEFAULT; USE OF CREDIT CARD
9.1 Default; Fees; Collection. The following constitute defaults of the Agreement: (i) non-payment in timely fashion of Customer’s indebtedness to the Company, (ii) bankruptcy, insolvency or assignment for the benefit of creditors, or (iii) misrepresentation or breach in any respect of any provision of this or any agreement between the Company and the Customer. In the event of a default and without requiring any additional prior notice than this provision, the Company may at its sole discretion: (a) declare all unpaid balances due and payable and/or (b) remove Customer’s credit limit. The Customer agrees that any statute of limitations related to pursuing any claims against the Customer or any obligors on any debt incurred under the Agreement, shall be "tolled", postponed, extended, and delayed such that the same begin to run for the date of the last payment made on any indebtedness owed by Customer under the Agreement. The Customer further agrees to pay all reasonable attorneys' and collection agency fees and all other costs and expenses incurred by the Company in the collection of any obligation of the Customer under the Agreement or related to any of any past due accounting that are or become due from the Customer to the Company. Additionally, if the Customer has an ACH authorization for a bank account or Credit Card Authorization on file with the Company, the Customer authorizes the Company to initiate an ACH, wire or credit card charge to satisfy any of the Customer’s balances in default, including any finance charges. The Customer hereby authorizes the Company, at its sole discretion, to apply any and all deposits the Company may have on hand from the Customer, regardless of the intended use of the deposit(s}, to settle any balances in default, including any outstanding finance charges.
9.2 Use of Credit Card. If Customer elects to pay any amounts due under the Agreement by credit card, Customer agrees to pay, in addition to the invoiced amount, a credit card processing fee up to 3.0% of the payment amount, except where prohibited by law. This fee is intended to offset the costs charged by credit card companies and will be added to the total transaction amount at the time of payment. Customer may avoid this fee by paying via check, ACH, or other non-credit-card method acceptable to the Company.
ARTICLE 10 – CONFIDENTIALITY
10.1 Confidential Information. The Parties may from time to time disclose to each other Confidential Information. “Confidential Information” means all confidential or proprietary information disclosed or made available by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), which is designated in writing or verbally as confidential or proprietary information, or is observed by the Receiving Party while on the premises of the Disclosing Party, or should be reasonably understood by a similarly situated individual to be confidential or proprietary information under the circumstances. Without limiting the foregoing, Confidential Information shall not include any information which the Receiving Party can demonstrate by written record (i) is now or later becomes available in the public domain without breach of the Agreement by the Receiving Party, (ii) was in the possession of the Receiving Party without confidentiality obligations prior to disclosure to the Receiving Party by the Disclosing Party, (iii) was received from a third party without breach of any confidentiality obligations of the such third party or otherwise in violation of the Disclosing Party’s rights, or (iv) was developed by the Receiving Party independently of any Confidential Information received from the Disclosing Party without use of or reference to the Confidential Information of Disclosing Party.
10.2 Nondisclosure. The Receiving Party shall (a) treat all Confidential Information as strictly confidential, (b) not disclose any Confidential Information to any other person or entity without the prior written consent of the Disclosing Party, (c) protect the Confidential Information with at least the same degree of care and confidentiality as it affords its own confidential information, at all times exercising at least a reasonable degree of care in such protection, and (d) not use any Confidential Information in any manner except for purposes of a transaction with the Disclosing Party (or evaluation for a possible transaction with the Disclosing Party), or as otherwise agreed by the Disclosing Party in writing. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information pursuant to an order of a court or governmental agency as so required by such order, provided that the Receiving Party shall first notify the Disclosing Party of such order and afford the Disclosing Party the opportunity to seek a protective order relating to such disclosure. The Receiving Party hereby agrees to notify the Disclosing Party immediately if it learns of any use or disclosure of any Disclosing Party Confidential Information in violation of the terms hereof.
10.3 Need to Know. The Receiving Party will not disclose Confidential Information to its employees, agents and consultants unless: (a) they have a need to know the Confidential Information in connection with their employment or consultant duties for performance of their obligations under the Agreement; and (b) they personally agree in writing to be bound by written agreement to non-use and non-disclosure terms at least as protective as the terms of the Agreement.
10.4 Remedies. The Receiving Party acknowledges and agrees that if the Receiving Party fails to comply with any of its obligations hereunder with respect to Confidential Information of the Disclosing Party, the Disclosing Party may suffer immediate, irreparable harm. The Receiving Party agrees that, in addition to all other remedies provided at law or in equity, the Disclosing Party shall be entitled to injunctive relief hereunder.
10.5 Return of Confidential Information. The Receiving Party promptly will return all tangible material embodying Confidential Information (in any form and including, without limitation, all summaries, copies and excerpts of Confidential Information) upon the earlier of (a) the completion or termination of the Agreement, and (b) the Disclosing Party’s written request.
ARTICLE 11 – TERM AND TERMINATION
11.1 Term. Unless otherwise provided in the Service Agreement or Sales Order, the term of the Agreement shall commence on the Effective Date and continue in full force through the end of the twelfth full calendar month following the Effective Date (the “Initial Term”), unless terminated earlier in accordance with this Article 11. Unless otherwise provided in the Service Agreement or Sales Order, following the Initial Term, the Agreement will automatically renew on its anniversary for additional one (1) year terms (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless and until either Party provides a notice of nonrenewal at least thirty (30) days before the end of the current Renewal Term.
11.2 Termination for Convenience. Unless otherwise provided in the Service Agreement or Sales Order, either party may terminate the Agreement for its convenience upon thirty (30) days written notice to the other.
11.3 Termination for Cause. Either Party may terminate the Agreement for cause if the other Party commits a material breach and fails to cure its default within ten (10) days of receiving written notice from the non-breaching party.
11.4 Termination for Bankruptcy. Either Party may terminate the Agreement immediately upon written notice to the other Party in the event the other Party is subject to (i) institution of receivership or bankruptcy proceedings or any other proceedings for the settlement of debts if such proceedings are not discharged within ninety (90) days of their commencement, (ii) an assignment for the benefit of creditors or (iii) dissolution or ceasing to conduct business in the ordinary course.
11.5 Termination for Force Majeure. Where a Force Majeure event has been in effect for a period of at least thirty (30) days, either Party may thereafter terminate the Agreement immediately upon written notice.
11.6 Effect of Termination. Termination of the Agreement shall not relieve a Party from any liability that, at the time of such termination or expiration, has already accrued to the other Party, including fulfilling accepted Sales Orders. All payment and indemnity obligations and indemnification procedures will survive the termination or expiration of the Agreement.
11.7 Customer Payment Obligations upon Termination. Upon termination for any reason, Customer shall reimburse Company for all other costs incurred before the date of termination and performance of Services through the effective date of termination.
ARTICLE 12 – MISCELLANEOUS
12.1 Entire Agreement. The Agreement constitutes the entire agreement between Company and Customer with respect to its subject matter and supersedes all previous written or oral agreements and understandings.
12.2 Severability; Waiver. If any provision of the Agreement is held invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
12.3 Choice of Law. The Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws principles.
12.4 Force Majeure. Except for the payment of money due hereunder, which shall not be subject to this provision, neither Company nor Customer shall be liable to the other for failure to perform any obligation under the Agreement to the extent such failure to perform is due to labor unrest, riot, war, fire, pandemic, government orders, accident, weather or other natural disasters, lack of energy supplies, supplier delays, compliance with law, failure to obtain all necessary licenses, permits or approvals after reasonable efforts, or any unforeseen circumstances or other causes beyond such Party’s reasonable control. Where a Party’s performance has been hindered by a Force Majeure event, that Party’s time for performance shall be extended, without penalty, until the Force Majeure event has ceased, but only where a Party that wishes to invoke this provision notifies the other Party in writing not later than the fifth (5th) business day from the occurrence of the Force Majeure event.
12.5 Independent Contractors. The Parties’ relationship is that of independent contractors for the provision of Services and Products described herein. Nothing in the Agreement shall be construed to create any other relationship between Company and Customer. Except as specifically allowed in the Agreement, neither Party shall have any right, power, or authority to assume, create or incur any expense, liability, or obligation, express or implied, on behalf of the other.
12.6 Disputes; Attorney Fees. PLEASE READ THIS PROVISION CAREFULLY; IT REQUIRES CUSTOMER TO ARBITRATE ANY DISPUTE OR CLAIM BETWEEN CUSTOMER AND COMPANY ON AN INDIVIDUAL BASIS. CUSTOMER AGREES THAT ANY DISPUTE OR CLAIM ARISING FROM OR RELATING TO THIS ARBITRATION PROVISION, THESE TERMS AND CONDITIONS, COMPANY’S ADVERTISING OR MARKETING PRACTICES, OR COMPANY’S PRODUCTS OR SERVICES SHALL BE SUBMITTED TO BINDING, FINAL, AND CONFIDENTIAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY JAMS UNDER ITS RULES AND PROCEDURES IN EFFECT WHEN THE CLAIMS IS FILED. THE RULES AND PROCEDURES AND OTHER INFORMATION, INCLUDING INFORMATION ON FEES, MAY BE OBTAINED FROM THE JAMS’ WEBSITE (www.jamsadr.com) OR BY CALLING JAMS AT 949-224-1810. THIS ARBITRATION PROVISION SHALL BE GOVERNED BY THE FEDERAL ARBITRATION ACT (“FAA”), 9 U.S.C. §§ 1-16, AND THE ARBITRATOR SHALL BE BOUND BY THE TERMS OF THIS ARBITRATION PROVISION. THE ARBITRATOR SHALL HAVE THE EXCLUSIVE AND SOLE AUTHORITY FOR DETERMINING WHETHER A DISPUTE OR CLAIM IS ARBITRABLE. THE ARBITRATOR SHALL FOLLOW APPLICABLE SUBSTANTIVE LAW OF THE STATE OF CALIFORNIA TO THE EXTENT CONSISTENT WITH THE FAA, AND SHALL BE AUTHORIZED TO AWARD ALL REMEDIES AVAILABLE IN AN INDIVIDUAL LAWSUIT UNDER SUBSTANTIVE LAW, SUBJECT TO THESE TERMS AND CONDITIONS. THE ARBITRATOR MAY ONLY RESOLVE DISPUTES OR CLAIMS BETWEEN CUSTOMER AND COMPANY AND MAY NOT CONSOLIDATE CLAIMS OR PROCEEDINGS WITHOUT COMPANY’S CONSENT. THE ARBITRATOR MAY NOT HEAR CLASS OR REPRESENTATIVE CLAIMS OR REQUESTS FOR RELIEF ON BEHALF OF OTHER INDIVIDUALS. IF A COURT OR ARBITRATOR DECIDES THAT ANY PART OF THIS AGREEMENT TO ARBITRATE CANNOT BE ENFORCED AS TO A PARTICULAR CLAIM FOR RELIEF OR REMEDY, THEN THAT CLAIM OR REMEDY (AND ONLY THAT CLAIM OR REMEDY) MUST BE BROUGHT IN COURT AND ANY OTHER CLAIMS MUST BE ARBITRATED. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, CUSTOMER AGREES THAT COMPANY HAS THE RIGHT TO BRING A CLAIM AGAINST CUSTOMER IN THE STATE OR FEDERAL COURTS OF CALIFORNIA FOR INJUNCTIVE RELIEF, EQUITABLE RELIEF, OR OTHERWISE ARISING FROM ANY POTENTIAL OR ACTUAL MISAPPROPRIATION OR INFRINGEMENT OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER AGREES THAT VENUE IS PROPER AND THAT CUSTOMER IS SUBJECT TO PERSONAL JURISDICTION IN SUCH FORUM. UNLESS CUSTOMER TIMELY OPTS-OUT, CUSTOMER WILL NOT HAVE THE RIGHT TO: (A) HAVE A COURT OR JURY DECIDE CUSTOMER’S DISPUTE OR CLAIM; (B) OBTAIN INFORMATION PRIOR TO THE HEARING TO THE SAME EXTENT THAT CUSTOMER WOULD HAVE IN COURT; (C) PARTICIPATE IN A CLASS ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE, CLASS MEMBER, OR CLASS OPPONENT; (D) ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; OR (E) JOIN OR CONSOLIDATE CUSTOMER’S DISPUTE OR CLAIM WITH THE DISPUTE OR CLAIM OF ANY OTHER PERSON. OTHER RIGHTS THAT CUSTOMER WOULD HAVE HAD IF CUSTOMER WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. CUSTOMER MAY OPT OUT OF THE CLASS ACTION WAIVER WITHIN THIRTY (30) DAYS OF THE DATE OF THESE TERMS AND CONDITIONS BY SENDING A LETTER TO COMPANY STATING CUSTOMER’S NAME, ADDRESS, AND CUTOMER’S INTENT TO OPT OUT OF THE CLASS ACTION WAIVER. OPTING OUT OF THE CLASS ACTION WAIVER WILL NOT AFFECT ANY OTHER TERMS OF THIS AGREEMENT. IF CUSTOMER OPTS OUT WITHIN THE 30-DAY PERIOD, CUSTOMER WILL BE DEEMED TO HAVE AGREED TO THE CLASS ACTION WAIVER. IN THE EVENT OF ANY CONTROVERSY, CLAIM, OR DISPUTE BETWEEN THE PARTIES ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE BREACH OF THE AGREEMENT, WHETHER SUCH DISPUTE IS RESOLVED THROUGH COURTS, ARBITRATION, BY A REGULATORY BODY, OR BY ANY OTHER METHOD, THE PREVAILING PARTY SHALL BE ENTITLED TO RECOVER FROM THE LOSING PARTY REASONABLE EXPENSES, ATTORNEYS’ FEES AND COSTS.
12.7 Assignment. Neither Party may assign its rights or obligations under the Agreement without the written consent of the other, such consent not to be unreasonably withheld, except that Company may assign to an affiliate or party acquiring substantially all of the assets in its line of business to which the Agreement relates without obtaining such consent. Any prohibited assignment shall be void.
12.8 Notice. Any notice required or permitted to be given under the Agreement shall be in writing and shall be served upon the other Party personally, or by courier or return receipt requested, postage prepaid, or by email (with confirmation of transmission), and shall be deemed given when received. All notices shall be sent to the respective addresses of the Parties listed in the Agreement or to such other addresses as a Party may designate from time to time by written notice to the other Party. In addition, the Parties may designate, from time to time, the name or names of the individuals who are to receive such notices and their respective contact information.
12.9 Survival. All provisions that, in order to give proper effect to its intent should survive expiration/termination of the Agreement, shall survive the expiration/termination of the Agreement.
12.10 Remedies / Injunctive Relief. Except as otherwise set forth herein, each Party’s rights and remedies under the Agreement shall be cumulative and in addition to all other rights and remedies available to such Party in law and in equity. It is further understood and agreed that if, at any time, a violation of any term of the Agreement is asserted by any Party hereto, that Party shall have the right to seek specific performance or injunctive relief, and/or any other necessary and proper relief, including but not limited to damages, from any court of competent jurisdiction.
12.11 Authority. The individuals executing the Agreement have been granted full agency or authority by their representative Party to do so on that Party’s behalf.
12.12 Third Party Beneficiaries. Except as expressly set forth herein, the Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns, and nothing in the Agreement is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
12.13 Headings; Arms-Length Negotiations. The headings utilized hereunder are for the sake of convenience and are not intended, and shall not be utilized to interpret any provision contained in the Agreement. In addition, the Agreement is the product of arms- length negotiations between the Parties with equal bargaining power and as a result, the Parties specifically disavow any contention the Agreement should be construed against its drafter.
12.14 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but which together shall constitute one and the same instrument.
12.15 Provision of Equipment Information for Financing. Customer shall, upon request of Company or any third-party financing provider designated by Company (each, a “Financier”), promptly furnish all identifying information relating to the Products, including without limitation manufacturer, model, and serial numbers, together with any other documentation reasonably requested by the Financier to facilitate, perfect, or administer its security interest or other financing arrangement. Customer represents and warrants that all such information provided will be true, complete, and accurate. Customer authorizes the Company to disclose such information directly to the Financier as necessary. Failure to timely provide such information shall constitute a material breach of the Agreement and may result in suspension of delivery, cancellation of financing, or enforcement of remedies available to the Company or the Financier.
12.16 Modifications. If the Company makes a material change to the Agreement, then the Company will notify Customer by sending an email to the notification email address in the latest Sales Order or Services Agreement. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify the Company via email within thirty (30) days after receiving notice of the change. If Customer notifies the Company as required, then Customer will remain governed by the Agreement in effect immediately prior to the change until the end of the Term for the then-active Sales Order and/or Services Agreement(s).
Last Updated January 2026