Exhibit A

Standard Terms

1. Scope of Services Generally

 

• Description of Services. Subject to the provisions of this Agreement, Pyvott agrees to provide Customer with warehousing services (“Warehouse Services”), order fulfillment services (“Fulfillment Services”), carrier forwarding and management services (“Shipping Services”) and other mutually agreed services (“Additional Services”), as more fully set forth in Order referencing these Standard Terms (collectively, the “Services”), related to the Customer’s goods, commodities and merchandise, as more fully set forth in the Order referencing these Standard Terms (“Goods”).

 

• Description of Customer’s Goods. Customer represents and warrants that the Goods are only those goods, commodities and merchandise that are routinely sold by the Customer in the Customer’s normal course of business. The parties mutually agree to update the list of Goods in the Order in writing (email acceptable). Customer shall ensure that all Goods tendered to Pyvott comply in all respects to its applicable documentation, specifications, applicable Laws and other requirements (“Specifications”). Customer shall provide Pyvott with prior written notice of any Goods to be tendered to Pyvott hereunder that do not materially conform to the Specifications. Pyvott reserves the right, in its sole discretion, to refuse acceptance of any nonconforming Goods, subject to Section 3 below.

 

• Hazardous Materials. Customer represents and warrants that none of the Goods tendered to Pyvott for transport, storage or any other services to be provided by Pyvott shall constitute or contain hazardous material as that term is defined in and used in the Hazardous Material Transportation Act, 49 U.S. C. §5101, et seq. or any other applicable laws, statutes, regulations, ordinances, treaties, governmental rules or standards (including those guidelines, codes and standards of any applicable recognized self-regulatory body or industry association), as well as any orders, judgments, decrees, writs or injunctions of any court, regulatory agency or any other governmental or self-regulatory authority (“Laws”).  In the event that Customer discovers that any Goods provided to Pyvott hereunder are or contain hazardous materials, Customer shall immediately notify Pyvott that such Goods are or contain hazardous materials and Pyvott may arrange for the immediate removal of such Goods from Pyvott’s facilities at Customer’s cost and expense or, dispose or sell such Goods in the manner and to the fullest extent provided by applicable law without recourse; provided, however, nothing contained in these Conditions shall require Pyvott to sell such Goods.

 

• Use of Subcontractors. In rendering the Services, Pyvott may engage such third-party independent contractors, including without limitation, brokers, carriers, other freight forwarders and/or warehousemen (collectively, “Subcontractors”), as Pyvott deems necessary or appropriate to Pyvott’s provision of the Services, and on such contract terms and conditions as Pyvott shall determine.

 

• Information Systems and Proprietary Information. Any fulfillment order system, management information system or other computer hardware or software used or supplied by Pyvott in connection with the Services provided by Pyvott is and will remain the exclusive property of Pyvott (“Pyvott Systems”).  Any use or access to any Pyvott Systems will be subject to the terms and conditions for such Pyvott Systems presented to Customer separately from this Agreement. Pyvott does not provide for any representations or warranties of any Pyvott Systems under this Agreement and Customer agrees that Pyvott has no liability or obligation with respect to any Pyvott System under this Agreement AND HEREBY DISCLAIMS ANY AND ALL SUCH REPRESENTATIONS, WARRANTIES, LIABILITIES AND OBLIGATIONS.

 

• No Other Provider. During the Term, Customer shall not negotiate, solicit or make any agreement with or commitment to, any other provider of services similar to the Services. Notwithstanding anything to the contrary herein, Pyvott shall be the exclusive provider of storage, warehousing, order fulfillment, and shipping arrangement services.

 

2. Fees

 

• Service Fees and Charges. In consideration of the Services, Customer shall pay Pyvott service fees and charges as set forth in the Order elsewhere in this Agreement (“Service Fees and Charges”).

 

• Annual Adjustment.  Service Fees and Charges are subject to annual increases upon thirty (30) days advance written notice from Pyvott to Customer. Customer will be deemed to have accepted such increases unless Customer notifies Pyvott of its non-acceptance of such increase in writing within fifteen (15) days of receipt of notice from Pyvott.

 

• Assumptions. The calculation of the Service Fees and Charges were based on the assumptions set forth on the Order. If, during the course of performing Services, Pyvott determines in its reasonable discretion that the assumptions were inaccurate when made, or have become inaccurate in such a way that impacts Pyvott’s pricing or cost, Pyvott may provide written notice to Customer of such inaccuracy along with a new proposed rate structure, which revised rate structure will take effect unless objected to within writing by Customer within thirty (30) calendar days of the date of receipt of such notice.  If Customer objects, in writing, to such proposed rate structure during such thirty (30) day period, then the rates prevailing prior to such notice by Pyvott shall continue to control, provided, however that Pyvott may terminate this Agreement by providing not less than thirty (30) days’ prior written notice.

 

• Pyvott may establish a credit limit applicable to outstanding Service Fees and Charges for any Services rendered by Pyvott for Customer but for which Customer has not paid, which credit limit Pyvott may revise at any time in its reasonable discretion (the “Credit Limit”). Pyvott may suspend or discontinue provision of Services at any time with 30 days’ notice to Customer when Customer has exceeded the Credit Limit, including in any situation where a request for Services will result in Customer exceeding its Credit Limit, or in any situation in which amounts owed to Pyovtt are past due (other than charges disputed in good faith by Customer in accordance with this Agreement).

 

• Payments. Pyvott will invoice Customer for Service Fees and Charges as set forth in the Order. Customer shall pay Pyvott the Service Fees and Charges via the payment method set forth on the Order in win accordance with the payment terms set forth therein without deduction or offset, regardless of whether or when Customer receives payment for the Goods from its customers.  Late payments shall incur interest at the rate of nine percent (1.5%) per month or the highest interest rate permitted by law until full payment of the invoice amount plus all accrued interest. Furthermore, if Customer is not , Pyvott shall be entitled to suspend the provision of any Services.

 

• Disputed Invoices. Customer shall not withhold or delay payment of any invoice on the grounds that a dispute exists. If a dispute exists, Customer shall pay the invoice in full and shall notify Pyvott in writing of the disputed amount not later than 60 days after the date of the invoice that is disputed (the “Due Date”). Along with the notice of the dispute, Customer shall send a detailed explanation of the basis for Customer’s dispute and all necessary documentation needed by Pyvott to determine the validity of the dispute. Customer shall be deemed to have waived the right to dispute an invoice if such notice and the support documentation is not provided to Pyvott by such Due Date.  Payment disputes shall be resolved in accordance with the dispute resolution process described in Section 9 below.

 

3. Customer Obligations. The parties agree that Pyvott’s ability to deliver the Services in accordance with this Agreement is dependent upon Customer’s full cooperation and assistance and the proper performance by Customer of certain aspects of its business functions. Customer shall work closely with Pyvott to provide regular information and feedback so Pyvott can effectively perform Services. Customer will have sole responsibility for and will ensure the accuracy, completeness, and correctness of all information provided to Pyvott, including information about the Goods, Customer’s delivery information, and all other information and support necessary for Pyvott to perform Services. Customer represents and warrants that there are no agreements or arrangements, written or oral, by which Customer is bound that would be breached upon execution or performance of this Agreement by either party, that would restrict, interfere or conflict with the either party’s obligations under this Agreement or that would diminish either party’s rights granted under this Agreement. Customer shall comply with all the terms, conditions, obligations, and restrictions in this Agreement. Client shall at all times conduct its activities under this Agreement in full compliance with all applicable Laws. Customer’s obligations include, by way of example and without limiting the extent of Customer’s obligations the following: (a) timely communication of notice of planned delivery of Goods to Pyvott’s facility, (b) availability of sufficient inventory to fulfill outbound orders, and (c) successfully inputting information required for the systems used by Pyvott for communicating with Customer. All shipments of Goods by Pyvott shall be communicated to Customer by one or more means, including through Pyvott Systems.  Customer shall be responsible to check such information and to notify Pyvott immediately in writing should any planned shipment be contrary to the instructions of Customer.  To the extent that Customer’s failure to perform any of its responsibilities under this Agreement (including, without limitation, the failure by Customer to perform any obligations under this Section 3) causes Pyvott to fail to perform its responsibilities in whole or in part under this Agreement, Pyvott’s failure to perform such Services shall be excused. Pyvott shall use reasonable efforts to notify Customer in writing of any failure by Customer which may impact Pyvott’s ability to perform.

 

4. Operations; Inventory.

 

• Service Requests. Customer may place requests for Services by means reasonably designated by Pyvott, which may include placing orders through the Pyvott Systems. All requests for Services are subject to acceptance by Pyvott, which Pyvott may withhold in its reasonable discretion. Any Services not accepted by Pyvott within 48 hours are deemed to be rejected. All requests for Services must comply with the lead time requirements set forth in the Order.

 

• Compliance with Industry Standards and Applicable Law. Pyvott’s Services shall be provided on an as needed basis in accordance with generally accepted industry practice. Subject to Customer’s compliance with this Agreement, Pyvott shall, in its performance of the Services, materially comply with all applicable Laws.

 

• Access to Pyvott Facility. Customer representatives will have reasonable access to any of the Pyvott facilities in which Goods are stored for inventory or inspection purposes during normal business hours upon reasonable advance request to Pyvott and subject to Pyvott’s prior written approval. Customer acknowledges this Agreement is not exclusive and Pyvott may use the Pyvott facilities to serve clients other than the Customer.

 

• Demurrage and Detention Charges. Pyvott shall not be liable for detention or demurrage charges unless such charges result in whole from Pyvott’s material failure to fulfill its obligations under this Agreement.  Pyvott shall be allowed not less than two (2) hours to unload any Goods delivered to its facilities by Customer.

 

• Written Instructions for Outbound Orders. No Goods shall be transported or delivered except upon receipt by Pyvott of complete written instructions. Notwithstanding other notice provisions herein, written instructions for transport and delivery may be communicated by a means reasonably designated by Pyvott. Customer shall ensure the accuracy, timeliness, and completeness for all such communication and Pyvott will be entitled to rely on all such information as received.

 

• Shipment to Pyvott. Customer agrees that all Goods delivered by Customer and/or tendered for storage shall be shipped for delivery to Pyvott properly marked and packaged in a safe, secure and appropriate manner to prevent spillage and damage in the course of shipping and handling, and shall be labeled and packaged in accordance with all applicable laws and regulations. Customer shall notify Pyvott of any special handling requirements, such as temperature control required for food safety, permeable packaging or Goods that are not otherwise completely enclosed in a container or other special requirements that arise at any point during the term of the Agreement.  Customer acknowledges that any such special handling requirements may impact pricing.  Customer shall furnish to Pyvott, at or prior to delivery, a manifest showing marks, brands and/or sizes to be kept and accounted for separately, and the class of storage and other Services desired.

 

• Obligations on Goods. Customer is also solely responsible for advising Pyvott, in writing, of any and all obligations imposed by Applicable Law with respect to such Services. Customer represents and warrants that it is or will be lawfully in possession of any Goods delivered to Providers hereunder and has the right and authority to arrange for Services by Pyvott pursuant to these Conditions.

 

• Named Consignee. Customer shall not ship Goods to Pyvott as named consignee. If, in violation of this paragraph, Goods are shipped to Pyvott as named consignee, Customer agrees to notify the carrier in writing immediately upon demand by Pyvott with a copy of such notice to Pyvott, that Pyvott is a warehouseman and has no beneficial title or interest in such property. Customer further agrees that, if it fails to notify the carrier as required by the preceding sentence, Pyvott shall have the right to refuse such Goods and shall not be liable or responsible for any loss, injury or damage of any nature to, or related to, such Goods. Customer agrees to indemnify, defend and hold harmless Pyvott (and its agents, employees, managers, members, related companies and affiliates) from and against any and all claims, demands, costs, liabilities and expenses (including reasonable attorney’s fees) arising in whole or in part from Goods shipped in violation of the foregoing requirements.

 

• Transfer of Goods at Pyvott Election. Pyvott reserves the right, in its sole discretion, to move, at its expense, upon 14 days written notice provided to Customer or the last known holder of a negotiable warehouse receipt (“Holder”), any Goods stored in one Pyvott facility to any other Pyvott designated facility. Customer or Holder may elect to take delivery of its Goods in lieu of such transfer by written notice to Pyvott prior to the expiration of such 14-day period. Pyvott reserves the right to charge a prorated storage fee from the first of the month to the actual date of delivery to Customer or Holder.

 

• Inventory Records. Pyvott shall maintain complete records of Goods received, showing quantities received and shipped, inventory on hand, and damaged or lost Goods, plus any other information or records reasonably required by Customer and agreed up in writing. All such information shall be available to Customer through the Pyvott Systems in a form reasonably acceptable to Customer, and Pyvott shall provide such reports on the foregoing as are reasonably requested by Customer in writing. Pyvott’s inventory records shall determine the quantity of Goods shipped to and from the Pyvott facility, and Pyvott shall use Customer’s inventory data to compare differences from Pyvott’s records in recorded receipts and shipments.

 

• Inventory Shortages and Overages. Inventory shortages or overages from any physical inventory or cycle count shall be determined by netting shortages and overages at the time of the next physical inventory or at termination of this Agreement. If, after such inventory, there are shortages for unaccounted Goods for which Pyvott is found to be liable (subject to the Loss Allowance (defined below) and other limitations set forth herein) of this Agreement, Pyvott will make payment to the Customer in accordance with the limitations herein.

 

5. Goods.

 

• Condition of Goods. Customer represents and warrants to Pyvott that: (i) all Goods will conform to Specifications and be safe for transportation, storage and handling, provided they are dealt with by Pyvott in accordance with reasonable procedures regarding transportation, storage and handling of such Goods;(ii) none of the Goods comprises, contains or is packaged in any illegal substance whatsoever, nor any dangerous, noxious or hazardous substance; (iii) the Goods it tenders for storage or transportation are not infested with pests or otherwise present a danger to persons, other products, or the facilities in which they are stored; and (iv) to the extent that any of the Goods are perishable or may deteriorate over time, Pyvott has been provided in writing with full details of the manner in which the Goods are to be stored and the time after which the Goods are likely to deteriorate.

 

• Refusal of Goods. In addition to its right to refuse Goods that are or contain Hazardous Materials, Pyvott shall have the right to refuse to accept any Goods tendered by Customer that, in Pyvott’s sole discretion, do not conform the Specifications, constitute unacceptable or previously undisclosed hazards, or may cause contamination or damage to the facility at which the Goods will be stored, including any facility of Customer’s customers to which the Goods may be transported, or other Goods stored in the facility. Customer will be solely responsible for ensuring that all Goods tendered are fully and accurately described and that all requirements regarding disclosure of any hazardous material, waste or other substance are complied with.

 

• Title; Liens. Customer shall at all times retain title and ownership to all Goods stored or located at Pyvott’s facility and while in transit to or from Pyvott’s facility except as provided in this paragraph.  Customer at all times shall insure the goods against loss or damage for the full replacement cost of the Goods.  Customer acknowledges and agrees that Pyvott is a warehouseman in accordance with the UCC in the states where the facilities are located. It is expressly acknowledged and agreed by the parties that any requirement under Article 7 of the UCC or other governing law or regulation that Pyvott issue warehouse receipts to preserve its warehouseman’s lien or enforce its lien or limitation of liability is expressly waived, and Pyvott’s rights under the UCC or other governing law or this Agreement will not be restricted in any way by the failure to issue any warehouse receipt.  IN ADDITION, TO THE EXTENT PERMITTED BY APPLICABLE LAW, PYVOTT WILL HAVE A GENERAL LIEN ON ANY GOODS THAT HAVE COME OR WILL COME INTO ITS POSSESSION, AND ON ANY PROCEEDS THEREOF, FOR ANY AND ALL CHARGES DUE AND OWING TO PYVOTT REGARDLESS OF WHETHER THOSE CHARGES RELATED TO THE GOODS OR PROCEEDS AGAINST WHICH THE GENERAL LIEN IS ENFORCED.

 

6. Claims for Lost and Damaged Goods.

 

• Standards of Care for Warehouse and Fulfillment Services. Pyvott will exercise such care in regard to Warehouse Services and Fulfillment Services as a reasonably prudent person would exercise under the circumstances. Pyvott shall not be liable for any loss damage to such Goods or any related liability (collectively “Warehouse Claims”), however caused, unless such Warehouse Claim resulted in whole from the failure by Pyvott to exercise such care.

 

• Shipping Services. Customer acknowledges and agrees that each carrier will be independently responsible for any loss or damage to Goods as a result of the performance of any Shipping Services (such losses or damages “Shipping Claims” and together with Warehouse Claims “Claims”). Any Shipping Claim, or limitations thereof, will be subject to each carrier’s separate terms and conditions (each a “Carrier Agreement”) and any other limitations under applicable law, which includes limitations set forth in the Carmack Amendment as currently codified at 49 U.S.C. 14706. Customer acknowledges and agrees that Pyvott will not have any liability for loss or damage to Goods resulting from any Services other than Warehouse Services and Fulfillment Services and PYVOTT HEREBY DISCLAIMS ANY AND ALL SUCH LIABILITY AND RESPONSIBILITY. For the avoidance of doubt, Customer acknowledge and agrees that Pyvott will not have responsibility for any loss or damage to Goods unless and until, (1) with respect to any Goods prior to the performance of any Services, such Goods are delivered Pyvott and accepted by Pyvott and (2) with respect to any Goods that have been provided to a carrier or to any other recipient following the provision of any Warehouse Services or Fulfillment Services (e.g., to Customer retrieving Goods after termination) (any such disclaimed responsibility, the “Excluded Losses”). As Customer’s sole and exclusive remedy for Shipping Claim and any Excluded Losses under this Agreement, and as Pyvott’s sole and exclusive liability and obligations for any such Shipping Claim or any Excluded Losses under this Agreement, Pyvott will use commercially reasonable to facilitate Shipping Claims with the applicable carriers. Without limitation to any other provisions herein, Customer expressly waives all rights and remedies it may have as to Pyvott under 49 U.S.C. Subtitle IV. Part B (excluding Section 13703, 13706, 14101, and 14103) to the full extent permitted by 49 U.S.C. § 14101(b)(1), each as amended from time to time.

 

• Claim Policies and Procedures.

 

• Process. Customer may file a Warehouse Claim by providing notice to the contact information set forth on the Order. All Claim filings must comply with the procedures set forth herein. Pyvott, in its sole discretion, reserves the right to refuse any Claim not filed in conformity with the policies and procedures set forth herein. The minimum claim amount per Claim is set forth on the Order.

 

• Claims for Shipping Services. Shipping Claims are subject to the procedures and limitations set forth in the applicable Carrier Agreement. If the Carrier Agreement imposes lower limits, stricter procedures, or any other similar type limitation, the provisions of the Carrier Agreement will deem to be applicable to Customer under this Agreement.

 

• All Claims in Writing. All Claims must be in writing, must be presented to Pyvott, and must, as applicable, identify: (a) the receiving or delivering carrier; (b) the carrier issuing the bill of lading; (c) the carrier on whose line the loss, damage, injury or delay occurred; (d) the carrier or warehouseman, in possession of the Goods when the alleged loss, damage, injury or delay was discovered; (e) facts sufficient to identify the Goods involved; (f) the factual basis for asserting liability for such loss, damage, injury or delay; (g) the specific dollar amount sought; (h) an original or certified copy of the manufacturer’s cost invoice or other evidence satisfactory to Pyvott, its Subcontractors and/or its or their insurers for the Goods which are the subject of the Claim, reflecting all trade or discounts, allowances or deductions of any nature; (i) the original or a copy of the freight bill and bill of lading or other contract of carriage or transportation; and (j) such other supporting documentation as requested by Pyvott, or any of Pyvott’s Subcontractors and/or their insurers, to process the Claim.

 

• Notifications on Delivery Receipts. All Claims must be noted on the delivery receipt for the specific Goods which are the subject of the Claim at the time of delivery. Notations such as “Subject to Inspection,” “Subject to Verification,” “Possible Damage and/or Shortage,” or other similar notations or phrases are not sufficient to constitute valid Claims on such delivery receipts at time of delivery.  In cases of concealed damage or shortage Claims not noted on the delivery receipt at the time of delivery, the burden of proving responsibility rests entirely with the Customer by a showing of sufficient evidence that the alleged damage or shortage occurred prior to acceptance of the Goods by the receiving party. In the event Goods are lost or misplaced by Pyvott or its Subcontractors, Pyvott or its Subcontractors shall be allowed thirty (30) days after receipt of notice in which to locate the Goods.

 

• Warehouse Claims Notice. In the event the Customer becomes aware of a Warehouse Claim, Customer shall provide Pyvott with written notice of such Warehouse Claim within 120 days of the earliest of: (a) Customer first becoming aware of such Warehouse Claim; (b) Customer’s physical inventory of the Goods first revealing such Warehouse Claim; (c) delivery of Goods that are the subject of such Warehouse Claim; or (d) the date such loss or damage to the Goods occurred. If no such written notification is received from Customer within such 120-day period, Customer will not be entitled to submit such a Warehouse Claim and Pyvott will have no liability therefor.

 

• Commencement of Action. Any arbitration arising from a Claim must be initiated within one year of Pyvott’s denial of all or any part of the Claim. Customer acknowledges and agrees that filing of a proper and timely claim is a condition precedent to filing an arbitration demand related to such Claim and that failure to timely file a Claim will result in waiver of the right to file a demand. The time limits set forth in this Agreement are to be strictly construed and enforced, and except for any conflicting shorter time limits set forth in any bill of lading, contract of carriage, or transportation or tariff provision applicable to such Claim(s), which shorter limit shall control, shall not be enlarged or extended by any federal, state, or local law or statute.

 

• Exclusive Remedy. The Claim procedures referred to herein shall be Customer’s exclusive remedy against Pyvott or its Subcontractors for any Claim or any related loss, or cause of action whatsoever relating to loss, damage and/or destruction of Goods and shall apply to all such claims, including inventory shortage, whether founded in contract, tort and/or breach of warranty. Customer waives any rights to rely upon any presumption of conversion imposed by law.

 

• Customer Responsibilities. Where loss or injury occurs to stored Goods, for which Pyvott or its Subcontractors is not liable, the Customer shall be responsible for the cost of removing and disposing of such Goods and the cost of any environmental cleanup and site remediation from the loss or injury to the Goods.

 

7. Limitations on Liability.

 

• Calculation of Claim Amount.

 

• Salvage. For Warehouse Claims, lost, damaged or destroyed Goods may, at Pyvott’s election, either (a) be salvaged and the salvage value will be deducted from the amount of the Claim or (b) be returned to Customer or disposed of pursuant to Customer’s direction.

 

• Loss and Damage Allowance. For Warehouse Claims, including any Claim arising out of a physical inventory, the amount of the Claim shall be further reduced by a loss and damage allowance set forth on the Order (“Loss and Damage Allowance”).

 

• Netting of Claims. Pyvott will net any Claims by Customer against the Loss and Damage Allowance as well as inventory adjustments. Pyvott also reserves the right to net Claims against on-time and fill reports from Customer’s customers and any reports mis-reported by Customer’s customers. Inventory shortages from a particular measurement period may also be netted against overages from previous periods.

 

• Base Reimbursement Rate. Before applying any other limitations on liability contained in this Agreement, the beginning value of the Goods involved in a Claim shall be calculated by reference to Customer’s manufactured cost of the lost or damaged Goods.

 

• Limitations on Liability for Loss or Damage to Goods. Pyovtt’s liability under this Agreement will be limited in accordance with this Section 7.2. Neither Pyvott nor any Subcontractor will be liable for any Excluded Losses or for: (i) loss or damage to Goods of lesser amounts than the Loss and Damage Allowance; (ii) loss or damage to Goods that were not in good and saleable condition when delivered to Pyvott; (iii) any Claim not submitted or supported in accordance with Section 6 above; (iv) loss of or damage to any Good due to faulty or inadequate packaging, unless packaged by or on behalf of Pyvott or handled in violation of the standard of care set forth in Section 6 above; (v) any Claims arising from a Force Majeure Event (defined below), or (vi) the acts or omissions of Customer, its employees or agents, carriers, or any third party not a party to this Agreement, including carriers and Pyvott’s other Subcontractor. IN NO EVENT SHALL PYVOTT OR ITS AFFILIATES OR SUBCONTRACTORS BE LIABLE UNDER THIS AGREEMENT FOR AMOUNTS IN EXCESS OF THE LIMITATION SET FORTH ON THE ORDER FORM OR FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF PROFITS, BUSINESS OR GOODWILL INCURRED BY THE OTHER PARTY, OR ANY THIRD PARTY, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED, KNOWS OR SHOULD KNOW OF THE POSSIBILITY OF SAME. Claims of Customer’s customers or other third parties under contract with Customer constitute consequential damages hereunder unless expressly stated otherwise in this Agreement.

 

8. Default; Remedies.

 

• Default By Either Party. Either party will be in default under this Agreement if: (i) a receiver or trustee is appointed over any or all of the assets of the other party; (b) a petition is filed by the other party, or against the other party, initiating any bankruptcy or reorganization proceeding, and such proceeding is not dismissed within sixty (60) days of such filing; or (c) a party shall make an assignment for the benefit or creditors.

 

• Default By Pyvott. Pyvott will be in default under this Agreement if Pyvott fails to perform a material obligation required to be performed by Pyvott hereunder, and such failure, if not the result of a Force Majeure Event, is not cured within thirty (30) days after receipt of written notice from Customer describing the failure to perform.

 

• Default By Customer.

 

• Material Breach For Non-Payment of Fees and Charges. Customer will be in default under this Agreement if it fails to timely pay any amount due under this Agreement and such failure continues for fifteen (15) days after notice of non-payment from Pyvott.

 

• Other Material Breach. Customer will be in default under this Agreement if it fails to perform a material obligation required to be performed by Customer hereunder as set forth in this Agreement, and such failure, if not the result of a Force Majeure Event, is not cured within thirty (30) days after receipt of written notice from Pyvott describing the failure to perform.

 

• Repeated Breaches by Customer. If Pyvott has given notice of non-payment or non-performance to Customer two or more times in any rolling twelve-month period, Pyvott may deem the second such instance as a material breach of this Agreement that is incapable of cure.

 

• Application of Dispute Resolution Process. The notices of non-payment or non-performance described in Sections 8.2 and 8.3 are referred to herein as “Breach Notices.” During the thirty-day period following the issuance of a Breach Notice, the parties’ respective representatives shall meet to negotiate alternative methods of resolving the alleged material breach. If the parties are able to resolve to their satisfaction all material issues related to such alleged breach, they shall enter into an agreement reflecting such resolution, and the Breach Notice shall be deemed withdrawn. Any dispute as to whether a material breach has occurred will be resolved by reference to the dispute resolution process set forth below.

 

• Remedies on Default by Customer. Subject to Section 8.4, in the event of a default by Customer under Section 8.1 or Section 8.3, Pyvott may terminate this Agreement without further notice. Pyvott may also take such action as is permitted by applicable law, including, without limitation: recovering all costs and expenses incurred as a result of Customer’s default; in the event of a payment default, suspend the Services until such payment default is cured and Customer agrees to arrangements for future payments (including payment for Services in advance) satisfactory to Pyvott, in its sole discretion; and/or the sale of Goods at public or private sale. Any net proceeds (after satisfaction of the amounts owed by Customer to Pyvott, costs of sale, and other administrative costs) shall be remitted to Customer. Customer acknowledges that this right of Pyvott to sell Goods for the purposes, and in the manner described, includes the right to direct any Subcontractor holding the Goods to sell the Goods; provided, however, nothing contained in this Agreement shall require Pyvott to sell such Goods in order to receive payment from Customer.

 

• Remedies on Default by Pyvott. Subject to Section 8.4, in the event of a default by Pyvott under Section 8.1 or Section 8.2, Customer may terminate this Agreement without further notice.

 

• Remedies Cumulative. Termination of this Agreement as set forth in Section 9 below shall not waive any other remedy in law or equity to which the party not in default may be entitled for breach of this Agreement.

 

9. Resolution Process.

 

• Resolution of Disputes and Disputes. All disagreements, disputes, claims or controversies relating to or arising out of this Agreement or the parties’ relationship (each a “Dispute”) shall be resolved in accordance with the procedures for dispute resolution set forth in this Section 9; provided, however, that nothing in this Section 9 shall affect or limit a party’s right or ability to seek interim injunctive relief in a court of competent jurisdiction pending appointment of an arbitrator.

 

• Negotiation. All Disputes which cannot be resolved by the personnel directly involved shall be referred to the parties’ designated representatives (“Account Representatives”) for resolution, which may involve an impartial mediator on a non-binding basis and any such resolution shall be subject to the mutual written agreement of the parties.

 

• Mediation. In the event the Dispute cannot be resolved by the Account Representatives or if no such meeting takes place within ten (10) business days after notice by either party’s Account Representative to the other that it wishes to have a meeting for such purpose, then either party may notify the other that it wishes to refer the matter to and thereafter pursue resolution of the Dispute in binding arbitration pursuant to Section 9.4 below.

 

• Arbitration. All unresolved Disputes shall be subject to confidential, binding arbitration administered by the American Arbitration Association (“AAA”) according to its then-current Commercial Arbitration Rules and this Section.

 

• General. The arbitration shall be conducted in Salt Lake City, Utah, before a neutral and independent arbitrator having more than 10 years of experience in negotiating, mediating and/or adjudicating complex outsourcing, warehousing, transportation or logistics contracts in the food or consumer goods industries. Either party may seek, and the arbitrator may enter, any interim or provisional award necessary to ensure the preservation of a party’s rights, property or business during the pendency of the arbitration.  If the amount in dispute in any Dispute is in excess of $200,000, either party shall have the right to demand the Dispute be heard by a panel of three arbitrators.

 

• Confidentiality. The arbitration and the underlying Dispute shall remain confidential, except as necessary for purposes of conducting allowed third party discovery within the arbitration and/or enforcing a final arbitral award in a court of competent jurisdiction. Violation of this confidentiality provision shall be subject to the issuance of appropriate monetary sanctions by the arbitrator(s).

 

• Discovery. Each party may seek reasonable, non-duplicative discovery from the other side in accordance with discovery practices under the Federal Rules of Civil Procedure; provided, however, the arbitrator shall limit the number and duration of document request, interrogatories and depositions to those deemed necessary to resolve the Dispute. The arbitrator may require that a party’s search for or production of responsive documents, particularly electronically stored information, be conditioned upon the requesting party’s satisfaction of the reasonable expenses incurred by the responding party.

 

• Award. All interim and final arbitral awards shall be in the form of a written order containing a concise statement of arbitrator’s decision, the relief granted (or denied) and the law and factual findings giving rise to such decision. In arriving at a decision, the arbitrator shall be guided by the parties’ obligations under this Agreement, as well as the general commercial context and needs of their relationship and respective businesses. The arbitrator shall award all reasonable and actual attorneys’ fees, costs and arbitration expenses to the prevailing party, provided that the final arbitration award meets or exceeds the terms of any rejected settlement or compromise proposal made by the losing party prior to the arbitration hearing.

 

• Enforcement. Any award of the arbitrator may be recognized and enforced by any court of competent jurisdiction located in Salt Lake City, Utah, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such enforcement proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any such proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

 

• Interim or Emergency Relief. The parties recognize that threatened or actual material breach of any non-monetary provision of this Agreement may cause irreparable harm for which monetary damages may be difficult to prove and/or ascertain with certainty. The parties accordingly agree that the provisions of Sections 9.2 and 9.3 shall not prevent or hinder a party’s right to seek a temporary restraining order and/or preliminary injunction from a court of competent jurisdiction. The exclusive jurisdiction for any such application for relief shall be the state or federal courts of the State of Utah, and each party waives any objection to such forum. The application for injunctive relief hereunder does not waive any rights or remedies available to a party at law, in equity or by statute. The rights and remedies described in this Section are not intended to limit or prejudice any other rights, remedies, claims or defenses the parties may otherwise hold. ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

10. Termination.

 

• Termination Without Cause. In addition to the termination rights described in Section 8 above, this Agreement may be terminated: (i) without cause by either party, upon not less than one hundred eighty (180) days written notice to the other party; or (ii) at any time by mutual written agreement of Customer and Pyvott.

 

• Effect of Termination. Termination by either party on any basis shall not relieve Customer of any payment obligations accrued and/or accruing prior the effective date of termination of this Agreement. Customer acknowledges and agrees that certain Service Fees and Charges are nonrefundable, such as custom set-up fees. Customer agrees that such Service Charges and Fees shall be deemed fully earned upon receipt and there shall be no refund, rebate, or discount for any reason. In the event of termination of this Agreement by Customer for any reason at any time prior to the expiration of initial term set forth on the Order, Customer shall pay Pyvott, within thirty days of the date of Customer’s notice of termination, an amount set forth on the Order. Customer acknowledges and agrees that any such early termination fee is calculated in recognition of Pyvott’s commitment to provide sufficient space to provide the Services and the difficulty and cost involved with securing new business to replace Customer. Accordingly, such early termination fees (a) represent a fair, reasonable, and proportionate approximation of Pyvott’s damages caused thereby and do not constitute a penalty, and (b) shall be the sole damages available to Pyvott for Customer’s early termination, but the liquidated damages shall not preclude Pyvott’s exercise of (i) other non-monetary remedies that may be available for such default, including termination of a Order or this Agreement or equitable relief, (ii) other monetary remedies that may be available after termination of a Order or this Agreement, or (iii) any remedies (monetary or otherwise) available for other defaults that occur concurrently with, before, or after such early termination.

 

• Obligations Upon Termination. Upon expiration or the termination for any reason of this Agreement, Customer will promptly, upon the issuance of a termination notice or the termination itself if no notice is required, arrange for the removal of all Goods, if any, from any Pyvott facility, on or prior to the effective date of termination. Upon the earliest to occur of a termination of this Agreement or the issuance of a notice of termination in accordance with this Agreement, Customer will immediately pay all outstanding invoices, regardless of whether they are then due according to the payment terms otherwise applicable, and pay in advance for all Services Pyvott reasonably expects to be necessary to accomplish the removal of Goods and transition and termination of the Services, including, but not limited to, warehouse fulfillment and warehouse labor associated with removing Goods from an Pyvott facility, disposal fees, supplies, transportation, technology, special services, and termination charges. Any amounts overpaid will be refunded by Pyvott to Customer after all Goods have been removed from the Pyvott facility and all claims are settled. If this Agreement is terminated on less than one hundred eighty (180) days notice by Customer, Pyvott may charge an early termination fee equal to the monthly average actual Service Fees and Charges invoiced by Pyvott to Customer over the previous six-month period, in addition to Pyvott’s other remedies hereunder.

 

• Survival. Sections 1.3, 1.5, 2, 3, 5.1, 5.2, 5.3, 6, 7, 8, 9, 10.2, 10.3, 10.4, and 11 through 22 will survive termination or expiration of this Agreement.

 

11. Indemnification. Customer shall indemnify, defend, and hold harmless Pyvott and its affiliates, officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, in each case arising out of or in connection with any claim, suit, action, or proceeding relating to any actual or alleged: (a) breach by Customer of any representation, warranty, covenant, or obligation under this Agreement, including with respect to Hazardous Materials; (b) infringement, dilution, or other violation of any intellectual property or other personal or proprietary rights of any individual or entity resulting from the use of Goods by Pyvott; (c) failure by Customer or its personnel to comply with applicable Law; (d) any bodily injury, death of any Person, or damage to real or tangible personal property caused by the Goods or any acts or omissions of Customer or its personnel; or (e) any claim arising from any Carrier Agreement. Pyvott shall use commercially reasonable efforts to provide Customer with: (i) prompt written notice of any claim subject to indemnification; provided, however, that Customer shall not be relieved of any indemnification obligation hereunder except to the extent it is materially prejudiced as a result of Pyvott’s failure to provide prompt written notice; and (ii) reasonable assistance to defend or settle such claim at the Customer’s expense.  Customer will have sole control of the defense and all related settlement negotiations of such claim provided that Customer shall not agree to any settlement or compromise that, with respect to Pyvott or any party entitled to indemnification hereunder, (1) results in any admission or concession on the part of such party, (2) diminishes any of such party’s rights, (3) fails to grant such party a release of all claims in the applicable claim, suit, action, or proceeding, or (4) otherwise has a legally binding effect on such party, in each case without such party’s prior written consent.  Pyvott and any party entitled to indemnification hereunder will have the right to participate in the defense and settlement negotiations of such claim through its own counsel at its own expense.

 

12. Force Majeure. Neither party shall be liable to the other for any failure to perform or delay in performance (other than failure or delay in payment) to the extent such failure or delay is caused by circumstances beyond its reasonable control (a “Force Majeure Event”), including without limitation flood, storm, earthquake, riot, war, terrorist act, insurrection, seizure under legal process or civil commotion; authority of law; fire; explosion, wind, rain, water, lockout, strike, other work stoppages or other labor unrest (including, without limitation, work stoppages, work limitations and facility closures or limitations related in any manner to any Executive Order of the State of Utah or any other State relating to the COVID-19 Virus); embargo, accident or derailment; a defect or inherent vice in the Goods; acts or omissions of public authorities; acts or omissions of Custom officials; hazards incident to a state of war; mechanical delay or failure of any equipment, motor vehicle or otherwise; compliance with laws or governmental regulations; quarantines, orders or requirements; acts or omissions of Customer, owners or consignees of the Goods; or other excepted caused provided by law. Notwithstanding a Force Majeure Event or state, Goods remaining in storage shall remain subject to storage charges. The party claiming a Force Majeure Event will notify the other party as soon as practicable regarding the existence, nature and approximate duration of the Force Majeure Event, and will promptly give further notice when the Force Majeure Event ceases, whereupon its duty to perform will resume. Customer shall be responsible for insuring the Goods against any loss or damage resulting from any Force Majeure Event.

 

13. Confidentiality. In connection with this Agreement each party (the “receiving party”) may have access to information that the other party (the “disclosing party”) treats as confidential and proprietary, including the existence and terms of this Agreement and the disclosing party’s trade secrets, technology, and information pertaining to business operations and strategies, customers, pricing, marketing, finances, sourcing, personnel, operations, suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium, in each case (a) that is marked “confidential” or with a similar legend, (b) that is identified by the disclosing party in writing as confidential before, or within 30 days after, disclosure to the receiving party, or (c) that otherwise does not fall within any of the prior clauses of this sentence, but which a reasonable person would conclude is of a confidential nature given the facts and circumstances of such disclosure by the disclosing party (collectively, “Confidential Information”). The receiving party shall treat all Confidential Information of the disclosing party as strictly confidential using such degree of care as is appropriate to avoid unauthorized access, use, or disclosure, not disclose the disclosing party’s Confidential Information or permit it to be disclosed, in whole or part, to any third party without the disclosing party’s prior consent in each instance (other than the receiving party’s employees, contractors or advisors who have a reasonable need to know such Confidential Information and who are bound by legal, fiduciary or contractual confidentiality obligations at least as stringent as those set forth herein), and not use any Confidential Information of the disclosing party for any purpose except as required in the performance its obligations or exercise its rights under this Agreement. The receiving party shall notify the disclosing party immediately in the event the receiving party becomes aware of any loss or disclosure of any Confidential Information of the disclosing party. Notwithstanding the foregoing, Confidential Information of the disclosing party shall not include information that: (i) is or becomes generally available to the public other than as a result of the receiving party’s breach of this Agreement; (ii) is obtained by the receiving party on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information; (iii) the receiving party establishes by documentary evidence was in the receiving party’s possession prior to the disclosing party’s disclosure hereunder; or (iv) was or is independently developed by the receiving party without using any confidential information of the disclosing party. The receiving party may disclose the disclosing party’s Confidential Information to the extent required by law or court order, so long as (A) the receiving party gives reasonable advance notice to the disclosing party in advance of such disclosure, if not prohibited by applicable Law; (B) seeks confidential treatment of such information from the entity to which the disclosure is made; and (C) discloses only that information which is legally required to be disclosed.  Upon the disclosing party’s request, the receiving party shall promptly return all documents and other materials (including all copies thereof) received from the disclosing party, except that Confidential Information contained in system backup media, such as email backup media, need not be returned or destroyed so long as the backup media are maintained in confidence and are not readily accessible to users.  Neither party shall use the name of the other party in any announcements, press releases or advertisements, or for any commercial purpose, without the prior written consent of the other in each instance.

 

14. Entire Agreement. The terms of this Agreement (a) constitute the sole and entire agreement of the parties with respect to the subject matter contained herein, (b) supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter, and (c) prevail over any terms or conditions contained in any other documentation related to the subject matter of this Agreement and expressly exclude any of Customer’s general terms and conditions contained in any document issued or provided by Customer; provided, however, that nothing herein shall effect or terminate ongoing rights from nondisclosure agreements entered into by the parties prior to the Effective Date (if any); provided, further, however, that any new Confidential Information exchanged between the parties shall be governed by the confidentiality obligations set forth herein.

 

15. Notices. All notices, requests, consents, approvals, authorizations, claims, demands, waivers and other communications required or permitted under this Agreement must be in writing and addressed to the other party at its address set forth below (or to such other address that the receiving party may designate from time to time in accordance with this Section).  Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, certified or registered mail (in each case, return receipt requested and postage prepaid), or email to the info@pyvott.com, for Pyvott, and the mail address set forth on the Order, for Customer.  Except as otherwise provided in this Agreement, a notice is effective only upon receipt by the receiving party and if the party giving the notice has complied with the requirements of this Section.

 

16. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement.  Such unenforceable term or provision is to be construed either by modifying it to the minimum extent necessary to make it enforceable (if permitted by law) or disregarding it (if not).  If an unenforceable term or provision is modified or disregarded in accordance with this Section, the rest of this Agreement is to remain in effect as written, and the unenforceable term or provision is to remain as written in any circumstances or jurisdictions other than those in which the provision is held to be unenforceable.

 

17. Amendments; Waiver. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party.  No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

 

18. Cumulative Remedies. Unless otherwise expressly provided herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.  In the event Customer breaches or threatens to breach Section 13 of this Agreement, Customer shall be entitled to seek, in addition to other available remedies, a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages, and without the necessity of posting any bond or other security. This equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief.

 

19. Successors and Assigns; No Third-Party Beneficiaries. Customer may not assign this Agreement, including by merger, consolidation, dissolution, operation of law, or any other manner, except with Pyvott’s prior written consent, not to be unreasonably withheld, conditioned, or delayed. A merger, change in control, sale of all or substantially all assets related to this agreement, or similar transaction will be deemed to be an assignment. Pyvott may freely assign this Agreement. Any purported assignment in violation of this provision shall be void and of no effect.  Subject to the foregoing, this Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.  Other than the indemnified parties set forth in Section 10, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other person (including any retailer or customer) any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

20. Independent Contractors. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.

 

21. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Signatures on this Agreement communicated by electronic transmission or a digital signature provided through DocuSign (or other similar service) shall be considered an original signature.

 

22. Interpretation. For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice-versa; (b) any reference to an “Exhibit” or a “Section” refers to an Exhibit, or a Section, as the case may be, of this Agreement; (c) the Exhibits hereto form part of this Agreement; (d) all references to this Agreement and the words “herein,” “hereof,” “hereto,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular Exhibit, Section, or other subdivision; (e) all Section and Exhibit headings are for convenience only and shall not affect the interpretation or construction of this Agreement; (f) the words “including,” “included,” and “includes” mean inclusion without limitation; (g) the word “or” is not exclusive and shall have the meaning commonly ascribed to the term “and/or”; and (h) this Agreement has been jointly negotiated by the parties hereto and their respective legal counsel, and any legal or equitable principles that might require or permit the construction of this Agreement or any provision hereof against the party drafting this Agreement shall not apply in any construction or interpretation of this Agreement.

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