Standard Terms & Conditions to
Partner and ColdTrack agree that these Standard Terms & Conditions together with that certain Fulfillment Service Agreement (“FSA“) entered into on the Effective Date by and between them, shall be read together as a single integrated agreement (“Agreement“) to memorialize the totality of the agreements between them and to govern their respective rights and obligations with respect to each other. Any capitalized term used but not defined in these Standard Terms & Conditions has the meaning ascribed to it in the FSA.
1) Rules of Construction. Each provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against either party (and each party shall be deemed to have been a co-equal drafter of the Agreement to be strictly construed against the drafting party). The following additional rules of construction shall apply to this Agreement:
a) All pronouns shall include the masculine, feminine, or neuter thereof, wherever the context and facts require such construction.
b) All terms defined in this Agreement in the singular have the same meanings when used in the plural and vice versa.
c) The use of the word “including” herein shall not be considered to limit the provisions which it modifies, but instead shall mean “including without limitation” unless the provision states otherwise.
d) Except where express reference is made to “business days,” references in this Agreement to a number of days within which an action must be taken (including the giving of notice or the delivery of documents) shall mean calendar days. Notwithstanding the preceding sentence, whenever the final day on which an action must be taken (including the giving of notice or the delivery of documents) occurs on a non-business day (i.e., Saturday, Sunday, or a holiday recognized by the U.S. Federal government, the State or the state in which the Company’s principal office is located), then such period or date shall be extended until the immediately following business day.
e) The Parties’ use of the term “Partner” is intended only nothing in this Agreement is intended to or shall be deemed to create or constitute a partnership or joint venture of any kind between or among the Parties; the Parties have a contractual relationship rather than a fiduciary relationship.
2) Amendment. No waiver, alteration, or modification of any of the provisions of the Agreement shall be binding unless made in writing and signed by the Parties.
3) Representations and Warranties.
a) Each Party covenants, represents, and warrants to the other that:
i) It is a corporation or limited liability company, duly organized and in good standing in the jurisdiction in which it was formed, and that the information about it contained in the first paragraph of the FSA is correct.
ii) It has the requisite corporate power to enter into this Agreement.
iii) Entering into this Agreement is not a violation of any other agreement that the Party is a party to.
iv) The signatory of this Agreement on its behalf has been duly authorized by it.
b) ColdTrack further covenants, represents, and warrants that:
i) The facility or facilities where ColdTrack’s Services hereunder are performed (collectively, “Facility“), are suitable for the Services outlined in this Agreement and comply with all applicable laws and regulations relating to any standards of food safety, health, cleanliness, maintenance, machinery, and licensing.
ii) It will perform all Services in a good and workmanlike manner, in accordance with industry standards, and in full compliance with all applicable law and federal, state, and local regulations. ColdTrack shall control the method and manner of performing the Services.
c) Partner further covenants, represents, and warrants that:
i) It has all necessary rights and title to any Unit, Packaging Material, any other goods or property delivered to ColdTrack, and any patents, copyrights, trademarks, trade names, or any other Intellectual Property required for its Products.
ii) Each Unit of Product is and will be safe for human consumption to the extent such Units are marketed for human consumption and for animal consumption to the extent marketed for animal consumption, and each Unit is free of all contamination; each lot of Units, has a certificate of analysis to the extent applicable law or industry standards require such certificate; each Unit is marked correctly, packaged, labeled, classified for handling, and fit for storage and transportation; and each Unit complies with all applicable laws and regulations relating to any standards of food safety and health.
iii) It has complied with and will continue to fully comply with all applicable laws, rules, and regulations in performing the Agreement.
d) NEITHER PARTY MAKES ANY WARRANTIES EXCEPT FOR THOSE PROVIDED HEREIN. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
4) Definitions. The following terms have the following definitions:
a) “Business“ means Partner’s wholesale customer, such as retail or foodservice establishments, for whom ColdTrack performs Business-to-Business Services.
b) “ColdTrack Pack Services“ means ColdTrack’s provision of one or more of the following services: (i) Receipt of Units, Packaging Materials, and other materials to be stored at ColdTrack Facilities; (ii) Storage of Units, Packaging Materials, and other materials; (iii) Pick and pack work; (iv) Provision of access to inventory reports and updated inventory data as Units and Packaging Materials are used, on a weekly basis; and (v) Palletizing and making available for pickup, Parcels to Shippers. For clarity, ‘pick and pack’ work refers to ColdTrack’s location and retrieval of specific Units based on Partner’s instructions from those stored by ColdTrack for Partner’s benefit, together with the packaging of such Units with appropriate Packaging Materials.
c) “ColdTrack Ship Services“ means (i) delegation by Partner to ColdTrack of the decision of the means and mode of shipping, including the selection of which Shipper(s) to use to ship Parcels, using ColdTrack’s proprietary process for making such decisions; (ii) the use of ColdTrack’s Shipper accounts and Shipper Fees in sending all Parcels to all Customers; and (iii) ColdTrack’s ongoing consulting services to Partner with respect to shipping strategy and other matters related to logistics, such as, coordination of Shipper pickups, Line Haul and LTL/FTL freight management, Shipper relationships, escalations, and dispute management.
d) “ColdTrack Live Services“ means ColdTrack’s proprietary Order Management System (OMS) and Shipping Management software including: (i) Parcel optimization (order batching, cartonization, weather-based coolant logic, and Facility, Shipper and Shipper service type assignment); (ii) packing slip and Shipper label creation; (iii) Parcel tracking with exception reporting; and (iv) data, analytics, and operational reporting dashboards.
e) “Consumer“ means Partner’s home delivery customer.
f) “Customer“ means each and every Consumer and each and every Business.
g) “Mispick“ means any Parcel that is (i) not packed with the number of Units of the Products ordered by Partner or which, instead, is packed with one or more Units of a different Product, unless due to a Substitution; (ii) missing certain Units of the Products ordered by Partner; or (iii) not packed using Packaging Materials supplied/requested/prescribed by Partner, unless due to a Substitution.
h) “Order Cutoff“ means the time and day Partner is required to submit orders to ColdTrack to perform ColdTrack Pack Services on the next eligible Packing Day. The Order Cutoff for shall be 11:59 pm EST on the day prior to each Packing Day, regardless of Facility.
i) “Parcel“ means a single box, container, or any other type of package coordinated by ColdTrack for pick up by a Shipper, LTL/FTL freight carrier, or by the Partner from a Facility, Partner’s facility, or third party facility for the purpose of delivery to the Customer. For the sake of clarity, a Parcel shall contain at least one Unit of Product and may contain Units comprised of different Products.
j) “Packaging Materials“ means shipping materials including cartons, shipping boxes, coolant (dry ice and gel packs), marketing materials, and all other components and materials used to package Products.
k) “Packing Day“ means the day(s) of the week identified in the FSA as such, which day(s) is/are the day(s) of each week during which ColdTrack will perform pick and pack work for Partner.
l) “Pick & Pack Rate Sheet“ means Schedule A to the FSA or any subsequent amended Schedule A as may be agreed to in writing by the Parties.
m) “Product“ means cold, frozen, or ambient products sold by Partner to Customers, except as may be explicitly limited by the FSA. For the sake of clarity, (A) a Product shall be defined by reference to its universal product code as designated by GS1 (“UPC“) to the extent such Product has a UPC; and (B) the term is intended to refer to all of the individual units subject to such UPC.
n) “Shipper“ means (i) any national shipping small parcel carrier, examples may include UPS or FedEx; or (ii) regional small parcel shipping carrier, examples may include OnTrac, Jitsu, and Veho.
o) “Shipper Fees“ means any and all amounts charged to Partner pursuant to the Shipper Rate Sheet.
p) “Shipping Deadline“ means the first Packing Day following the day on which Partner submits an order, provided such order is received prior to Order Cutoff. If such order is received after the Order Cutoff, then the Shipping Deadline will be the second Packing Day following the day on which Partner submits such order. The following example is included to illustrate:
Example: Assume Partner’s Packing Days are Monday, Tuesday, and Wednesday. If Partner places order with ColdTrack on Sunday at 8 pm ET, then the ColdTrack Pack Services for such order will normally be Monday and the Shipping Deadline for such order will also normally be Monday. If, however, Partner places an order on Monday at any time after Order Cutoff (even 12:01 am [technically Tuesday]), then the pick and pack and the Shipping Deadline for such order will normally be Wednesday, though ColdTrack may pick and pack and/or ship such order earlier, in its discretion.
q) “Shipper Rate Sheet“ means Schedule C to the FSA or any subsequent amended Schedule C as may be agreed in writing by the Parties.
r) “SKU“ means Stock Keeping Unit, a unique alphanumeric code assigned to a specific Product or Product variant of Partner’s inventory.
s) “Substitution“ means ColdTrack’s (A) substitution at Partner’s request, in packing a Parcel, of one or more Units of a Product not ordered by Partner because there are no Units, or not enough Units, of the Product ordered by Partner at the time of packaging; or (B) use, at Partner’s request, of Packaging Material other than those supplied by Partner because there is an insufficient supply of Packaging Material supplied by Partner at the time of packaging. For clarity, Partner shall be solely responsible for acquiring and delivering to ColdTrack an inventory of Units and Packaging Material sufficient in quantity to meet order demand. If a Unit shortage exceeds the time allotted for a Product shipment to be sent by ColdTrack to Customers (as such timeframes are dictated to ColdTrack by Partner), Partner shall be solely responsible for any and all additional expenses incurred by ColdTrack to notify Customers.
t) “Term“ means, unless terminated earlier in accordance with the Agreement, the Initial Term plus all Renewal Terms. The Agreement shall be automatically renewed for consecutive periods equal to the Initial Term at the end of the then-current Term (each a “Renewal Term“) unless either Party notifies the other Party in writing at least 60 calendar days, but not more than 90 calendar days prior to the last day of the then-current Term or Renewal Term of its decision to not renew.
u) “Unit“ means each individual item of a Product, marketing material, or coolant.
5) Severability/Headers:
a) If any provision of this Agreement is held by an arbitrator or court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law or any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the provisions held to be unenforceable.
b) Descriptive headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Except as otherwise expressly provided in this Agreement.
6) SOP & SOP Changes: Partner has submitted and ColdTrack has approved Partner’s SOP, a copy of which is attached to the FSA as Schedule B (“SOP“). ColdTrack shall provide its Services in material compliance with the SOP. Any SOP change requested by Partner must be submitted in writing to ColdTrack at least 14 days prior to the date Partner seeks such changes to take effect. The SOP is an integral part of this Agreement and may not be amended without the written consent of both Parties in their respective sole discretion (and any such consent may require Fee Schedule adjustments). If the Parties cannot so agree, then the existing SOP shall continue unchanged.
7) Annual Price Increases:
a) ColdTrack Pack Service Fee Increases. The price for the goods or services provided under the Agreement shall be adjusted annually to reflect increases in the cost of production or provision due to inflation. For the purpose of this adjustment, inflation shall be measured using the Consumer Price Index (“CPI“) as published by the Bureau of Labor Statistics. If the CPI is discontinued or otherwise unavailable, the Parties shall agree on a suitable replacement measure of inflation. The adjustment shall take effect on the anniversary date of the Effective Date and shall be calculated as a percentage increase equal to the percentage change in the CPI over the preceding 12-month period. The adjusted price shall remain in effect for the following 12-month period unless otherwise agreed by the Parties in writing.
b) ColdTrack Shipper Fee Increases. Shipper-imposed increases, including peak surcharges and standard annual increases, occur from time to time. ColdTrack shall provide Partner at least five calendar days’ advanced written notice of any increases, with adjusted rates effective upon the date determined by Shippers.
8) Delivery and Storage.
a) Partner may provide its own Packaging Materials subject to the terms and conditions delineated in this Section 8.
b) Partner may also purchase Packaging Materials from ColdTrack as provided in the Agreement. For the sake of clarity, ColdTrack does not guarantee it will have Packaging Materials on hand to sell to Partner, though it may agree in writing to such a guarantee on a case-by-case basis; Partner is advised to make any request to purchase Packaging Materials as far in advance as possible to increase the probability that ColdTrack can accommodate such request.
c) Partner shall deliver all Units and Packaging Materials on pallets consisting of single SKUs. Partner shall furnish, upon delivery of Units and Packaging Materials, a shipping manifest, commonly known as an “ASN” (or Advanced Shipping Notification), and a packing list showing marks, brands, and sizes to be accounted for separately and the storage temperature zone required for each Unit (“Compliant Inbound“). Partner shall provide ColdTrack all documents or information necessary or useful for the safe and proper warehousing, handling, storage, and transportation (if any) of the Units. Pallets delivered to ColdTrack containing multiple SKUs shall incur additional Labor Fees and Wood Pallet Fees, as detailed in the FSA.
d) Upon accepting Units and Packaging Materials, ColdTrack shall store Partner’s inventory of Units and Packaging Materials in its possession in a safe and secure environment and shall use its commercially reasonable efforts to keep the Packaging Materials free of damage.
e) Partner’s Units and Packaging Materials shall be made available for ColdTrack Pack Services 24 hours after receipt of inbound inventory, provided Partner’s adherence to Compliant Inbound specifications. ColdTrack, at its sole discretion, may approve expedited Services to make Units and Packaging Materials available for use in less than 24 hours, however, additional Inbound Inventory Rush Fees shall apply in each such case, as detailed in the FSA.
f) ColdTrack shall use commercially reasonable efforts to prepare all Parcels for pickup by Shipper or Partner, as applicable.
g) ColdTrack shall examine all Units of Products delivered to it at its Facility. If any Units are damaged or of unacceptable quality (each in accordance with industry practices and SOPs), ColdTrack shall reject them and notify the Partner as soon as practicable of the rejection and any delays the rejection may cause.
h) ColdTrack reserves the right to reject any Unit or Packaging Material it deems unfit for distribution in its reasonable discretion, provided, however, ColdTrack shall have no duty to inspect any Unit or Packaging Material other than looking at it for the moment in time it takes to perform the pick and pack.
i) Any Units requiring refrigeration shall be stored by ColdTrack in its cold-storage Facilities and maintained at a temperature between 32 and 41 degrees Fahrenheit at all times prior to instructions from Partner to provide pick and pack work for such Units.
j) Any Units that must be frozen shall be stored by ColdTrack in its frozen-storage Facilities and maintained at a temperature between negative 10 and 0 degrees Fahrenheit at all times prior to instructions from the Partner to provide pick and pack work for such Units.
9) Additional Payment Terms & Disputes.
a) If Partner does not pay any invoice in full by the Payment Due Date, ColdTrack may elect to do any, some, or all of the following: (i) charge a one-time late payment fee of 9.9% plus an additional 1% per month late payment fee, applied to all outstanding amounts owed (including accrued late payment fees) (“Late Fees“); (ii) place Partner on an indefinite hold during which Services will not be performed until all past due balances (together with accrued late fees) have been paid in-full (“Services Suspension“); (iii) require a deposit or letter of credit in an amount ColdTrack reasonably believes necessary to protect itself from future non-payment; (iv) require payment terms to be made cash-in-advance; and (v) terminate the Agreement as provided in Section 18 of these Standard Terms & Conditions.
b) Partner shall be solely responsible for any unauthorized shipment utilizing ColdTrack Shipper accounts by its employees, agents, contractors, affiliates, and any other individuals who gain access to them through Partner, whether authorized or unauthorized, including Shipper service types not provided in the Agreement; the use of ColdTrack Shipper accounts during a Services Suspension; and the use of ColdTrack Shipper accounts following a termination of the Agreement for any reason. During any such event, the Shipper Rate Sheet(s) shall not apply and instead Partner will be charged at Shipper’s retail (i.e., non-discounted) rates, commonly referred to as “Shipper’s Published Rates,” with invoice(s) due upon receipt.
c) Partner acknowledges that ColdTrack utilizes credit insurance and underwriting services. If, at any point, ColdTrack’s credit insurance and underwriting service rejects or rescinds coverage of Partner’s receivables, ColdTrack may: (i) change the Payment Due Date; (ii) amend payment terms to cash-on-demand or cash-in-advance; or (iii) require a deposit or letter of credit in an amount ColdTrack believes to be reasonably necessary to protect itself from non-payment.
d) If Partner disputes any Fee in any invoice, it must notify ColdTrack of such dispute (“Dispute“) by emailing ar@coldtrack.com with reasonable documentation detailing the Dispute prior to the Payment Due Date for the invoice on which such Fee appears. For clarity, (i) while Partner may elect to discuss a Dispute with a ColdTrack employee, the Partner must also follow the mandate of the prior sentence, and failure to do so will result in ColdTrack having no obligation with respect to such Dispute; and (ii) the term Dispute means any dispute under or related to this Agreement and is not limited to a Partner’s dispute over fees in invoices. Partner shall not be excused from paying an invoice when and as due because it raises a Dispute.
e) A properly commenced Dispute shall be handled in one of two ways:
(i) In the event of a Dispute over Fees for Services, Partner and ColdTrack shall first and promptly seek to resolve the matter consensually, and such resolution may result in ColdTrack providing Partner with a credit, which shall first be applied to any Late Fees, if any exist at the time of a credit from ColdTrack to Partner, and the remaining balance shall be applied to Partner’s next invoice(s). At any point, however, either Party may elect to treat the Dispute as a Controversy, to be handled in accordance with Section 21 of these Standard Terms & Conditions.
(ii) A Dispute with a Shipper is not a Controversy. Rather, in the case of such Dispute, Partner must file a claim with ColdTrack by contacting ar@coldtrack.com, and ColdTrack will, in turn, file a claim with Shipper about any such Dispute. ColdTrack will make a commercially reasonable attempt to facilitate a resolution on behalf of Partner. Shipper shall issue any resulting credit to ColdTrack (and Partner agrees not to accept any credit or other payment from Shipper directly), and ColdTrack shall, in turn, issue a credit in the same amount to Partner. In no event shall ColdTrack be liable for any action or inaction of Shipper, for any errors made by Shipper, or for the result of ColdTrack’s efforts to facilitate a resolution of any Dispute between Shipper and Partner. ColdTrack does not, and Partner acknowledges that ColdTrack does not, provide any insurance coverage pursuant to this Agreement or indemnification with respect to Shippers. ColdTrack is not responsible for any Parcel after it leaves a Facility. Notwithstanding anything else in the Agreement to the contrary, in no event shall the total of any credits paid by ColdTrack to Partner for a given Parcel exceed the amount invoiced by ColdTrack for the Shipper Fees for such Parcel.
10) Taxes. Partner shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Partner hereunder; provided, that in no event shall Partner pay or be responsible for any taxes imposed on, or with respect to, ColdTrack’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
11) Partner’s Intellectual Property Rights. ColdTrack recognizes and agrees that Partner is, and shall be, the rightful owner of any and all and intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights“) contained in or relating to the recipes of its Products, its Packaging Materials, and all brands provided by Partner for use with the Products.
12) Confidential Information.
a) The Parties acknowledge and agree that, in connection with the negotiation and performance of this Agreement, each Party may have had, has, or will have access to the other Party’s non-public confidential information (“Confidential Information“).
b) The Parties acknowledge that the terms of this Section 12 are not intended to act as a novation with respect to any prior written confidentiality agreement or non-disclosure agreement they may have agreed to in the past. To the extent one exists, it shall remain independently enforceable by the Parties but shall in no way reduce the obligations of the Parties to each other pursuant to this Agreement.
c) Each Party who is in receipt of Confidential Information (the “Receiving Party“) agrees, on behalf of itself and its affiliates, not to, directly or indirectly, except as expressly consented to in writing and in advance by an authorized officer of the Party disclosing such Confidential Information (the “Disclosing Party“) or as permitted by this Agreement:
(i) disclose, publish, reveal, or otherwise make available the Disclosing Party’s Confidential Information to any employee or representative of the Receiving Party except those with a need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement, and who are under similar confidentiality restrictions as contained in these Standard Terms & Conditions. Agreement (the “Representatives“):
(ii) attempt to or actually sell, transfer, license, assign, or otherwise use or exploit any of the Disclosing Party’s Confidential Information; or
(iii) permit the sale, transfer, use, and/or exploitation of any Disclosing Party’s Confidential Information by its Representatives.
d) Confidential Information includes all of the terms of this Agreement, all communications regarding the terms of this Agreement, all invoices issued pursuant to this Agreement, the identity of each Shipper, ColdTrack’s rates with each Shipper, Shipper Fees, Shipper Rate Sheets and the information contained therein, and any other information related to ColdTrack’s relationships with each Shipper. Confidential Information shall not include: (i) information which is or becomes public information through the actions of the Disclosing Party; (ii) information already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party; (iii) information which the Receiving Party independently develops without reference to the Disclosing Party’s Confidential Information; or (iv) information received by the Receiving Party from a third party not under an obligation of confidentiality. Notwithstanding anything to the contrary in this paragraph, the confidentiality and non-use obligations under this Agreement for Confidential Information that constitutes a trade secret or is in the nature of a trade secret shall survive the termination or expiration of this Agreement for as long as such Confidential Information remains a trade secret. For the avoidance of doubt, Shipper Fees, Shipper Rate Sheets, and all information regarding ColdTrack’s relationship with Shippers constitute trade secrets. The Receiving Party shall have the burden of proof beyond a reasonable doubt of the facts necessary to prove the existence of any of the aforementioned exceptions.
e) If either Party is compelled by applicable law or legal process to disclose the Confidential Information of the other Party, it may do so, but only after, where not prohibited by law, it notifies the other Party of such disclosure and grants such other Party the opportunity to seek a protective order or otherwise limit the disclosure and fully cooperates with any such attempts, and thereafter, provided that the Party required to make such disclosure shall only disclose that portion of the Confidential Information of the other Party as is strictly required to comply with the applicable law or legal process.
f) Upon expiration or termination of this Agreement, each Receiving Party shall return, upon a request from the Disclosing Party, to the other Disclosing Party or destroy (and certify by e-mail to the Disclosing Party as to such destruction) all copies of the Confidential Information of the other Party in its possession or control, except to the extent such Confidential Information has become a part of the Receiving Party’s books and records pertaining to historical sales information or is contained in a Party’s computer back-up or archived data system, provided that any such retained information shall continue to be treated as Confidential Information as provided in this Agreement.
g) Partner acknowledges and agrees that monetary damages might not be a sufficient remedy for any breach or threatened breach of the obligations of its obligations under Section 12. Therefore, in addition to all other remedies available at law and equity, ColdTrack shall be entitled to seek injunctive relief to enforce its rights under Section 12.
h) In addition to the other rights granted to ColdTrack under Section 12, Partner will also defend, indemnify, and hold harmless ColdTrack and its successors, affiliates, and assigns from any liabilities, claims, and expenses, including but not limited to attorneys’ fees and costs incurred in connection with, in settlement of, or resulting from any claims, actions, suits, or proceedings that are in any way based upon or associated with Partner’s breach of its duties and obligation under Section 12.
13) Exclusivity and Workflow. ColdTrack shall, subject only to the exceptions contained in the FSA, be the exclusive provider of all Services to Partner relating to all its Products and Parcels during the Term. For the sake of clarity, this is intended by both Parties to be a broad exclusivity provision applicable to all Products and Parcels except as may be explicitly limited in the FSA.
a) ColdTrack’s acceptance of Units and Packaging Materials at a Facility constitutes its agreement to provide Services with respect to such Units, subject to Partner being in compliance with all of its obligations under this Agreement.
(i) When Partner submits unusually high quantities of orders for Services, defined on a per-Facility basis as more than 150% of Partner’s prior four-week average Weekly Volume at each Facility (or if there is not yet a four-week average for the Facility at issue, then the Estimated Weekly Packing Volume for such Facility), ColdTrack may be unable to process all associated Parcels to Customers by the Shipping Deadline. To minimize the likelihood of this occurring, Partner agrees to provide ColdTrack with regular guidance via bi-weekly forecasts as to its expected order volume. Partner also agrees that ColdTrack may, in such circumstances, and during peak periods, send such orders out later than the Shipping Deadline, provided that ColdTrack shall use commercially reasonable efforts to send such excess orders within Partner’s next two Packing Days after the Shipping Deadline.
(ii) ColdTrack shall not be required to store more Units or Packaging Materials than are reasonably necessary to satisfy Partner’s reasonably anticipated orders over a 30-day period. ColdTrack may rely on the prior four-week average Weekly Volume for the Facility in question per Week in determining the quantity of Units and Packaging Materials that are reasonably necessary. If Partner delivers such Units or Packaging Materials in excess of 30 days of inventory on-hand across any storage temperature zone, ColdTrack may at its discretion reject additional inbound inventory or may charge Partner additional storage fees on a per pallet or (or partial pallet) basis at a rate determined by ColdTrack in its sole discretion.
b) ColdTrack may, from time to time, introduce Partner to third parties for the purpose of permitting Partner to contract with such third parties to perform certain of the Services which ColdTrack would otherwise perform. Such an introduction shall not constitute ColdTrack’s consent to an exception to exclusivity. Rather, any such exception shall require written consent from ColdTrack. Partner understands and agrees that ColdTrack may contract with its own affiliates and subcontractors in performing Services.
14) Indemnification. Each Party (as “Indemnifying Party“) agrees to defend, indemnify, and hold the other Party, its successors, assigns, affiliates, members, managers, officers, employees, agents, and representatives (“Indemnified Party“) harmless from and against any and all threatened or actual claims, expenses, losses, causes of action, damages, or liabilities, including death or bodily injury (including reasonable attorneys’ fees and court costs as Indemnified Party incurs such costs) arising out of or in connection with Indemnifying Party’s (i) breach of, or failure to fulfill, its responsibilities under this Agreement; (ii) breach of any representation, warranty, or covenant made herein; (iii) violation of any law, rule, or regulation of any governmental agency, in each case except for Indemnified Party’s gross negligence or willful misconduct. These indemnification rights are in addition to other indemnification rights granted under this Agreement.
15) Limitation of Liability. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL COLDTRACK BE LIABLE TO PARTNER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES. THIS LIMITATION APPLIES WHETHER ANY SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE, WHETHER COLDTRACK WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COLDTRACK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE LESSER OF (i) PARTNER’S ACTUAL DAMAGES OR (ii) THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COLDTRACK PURSUANT TO THIS AGREEMENT IN THE TWO MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
16) Performance Standards.
a) Pack Accuracy Guarantee. In the event of any Mispicks in any week (measured Sunday through Saturday), ColdTrack shall issue a credit equal to the amount invoiced for the Base Fee per Parcel and the Pick Fee per Unit for those affected Parcels, as described below:
i) Partner’s request for a credit must be accompanied by reasonable documentation of the applicable Mispick(s). For clarity, when a Parcel reaches a Customer and the Customer receives something other than what the Customer ordered from Partner, such Customer is likely to complain to Partner. It is Partner’s obligation to determine if the situation is the result of a Mispick or, if rather, the reason for the issue is due to a Substitution or some other reason; provided, however, Partner’s determination is subject to Dispute by ColdTrack.
ii) When ColdTrack issues credit for a Mispicked Parcel, such credit shall be applied to the invoice covering such Parcel where practical or otherwise applied against a subsequent invoice.
iii) In no event shall ColdTrack be liable for failures by Shippers related to lost, damaged, or late Parcels.
iv) Notwithstanding any failures by ColdTrack, in no event shall the total of any credits due for a given Parcel exceed the amount invoiced for the Base Fee per Parcel and the Pick Fee per Unit for those affected Parcels.
b) Inventory Shrink Allowance.
i) ColdTrack manages Unit freshness code expiry date (“Expiration Date“) issues by rotation of Units to achieve a “first expiration, first out” packing of Units. When and to the extent that Units expire prior to delivery to Customer due to Partner not ordering Units at a sufficient pace, Partner shall bear the associated loss. The cost of Unit loss due to (A) ColdTrack’s failure to properly rotate Units; or (B) theft from the Facility (collectively, “Inventory Shrink“) shall be borne by ColdTrack to the extent such Unit loss exceeds the Inventory Shrink Allowance; provided, however, ColdTrack shall not be considered to have improperly rotated Units, and thus shall not bear any associated liability, to the extent that the failure of proper rotation involves Units that were delivered to ColdTrack on the same pallet with mixed Expiration Dates. The actual mathematical calculation of Inventory Shrink is described in (ii) below.
ii) Units, for the purpose of calculating Inventory Shrink, shall be handled in the following manner:
1. Upon receipt of Units at the Facility, from or on behalf of Partner, ColdTrack will perform a physical count of such Units (by Product, for all purposes in this Agreement) and compare the result of such physical count to the number reflected on the bill of lading accompanying such Units. When counting Units, for all purposes, ColdTrack shall be entitled to rely on the assumption that each pallet delivered to it is uniform in terms of both Expiration Date and Product. For clarity, ColdTrack is entitled to select a single Unit from such pallet to determine the Expiration Date and the Product of all Units contained on such pallet.
2. If there is a disparity between ColdTrack’s physical count and the bill of lading, ColdTrack shall immediately notify Partner of such disparity, and the Parties shall work in good faith to document the actual number of Units and cause ColdTrack’s records to reflect such actual number. The final mutually agreed count shall be deemed to be the count for such Units; if there is no such disparity, then the count shall be deemed to be the number of Units as stated in the bill of lading for such Units (in either case, the “Additional Units“).
3. On or about the end of each month, ColdTrack will count the Units remaining from the prior month (“Initial Units“). It will then add the Additional Units it subsequently received, subtract the number of Units that reached their Expiration Date due to Partner not ordering Units at a sufficient pace, and subtract the number of Units shipped to Customers. The result of this calculation (“Expected Units“) shall then be compared to Units actually on hand (“Actual Units“). If there are fewer Actual Units than Expected Units, the difference in number shall be deemed to be the Inventory Shrink for such Units. Such counting and calculation shall be performed in a manner consistent with ColdTrack’s customary practices.
4. ColdTrack will provide a credit based on the replacement value of Units (up to actual amount paid by Partner for the applicable Units, not to exceed $0.50 per pound) for any Inventory Shrink exceeding the Inventory Shrink Allowance. Any such credit will be applied by ColdTrack to Partner’s then-next invoice, or in the event there is no next-invoice, ColdTrack will reimburse Partner such amount. The percentage of Inventory Shrink shall be calculated by dividing the Inventory Shrink (i.e., the numerator) by the sum of the Initial Units plus the Additional Units plus the number of Units shipped to Customers in a given month.
c) In no event shall ColdTrack be liable for any loss or damage to the Units caused by: Acts of God; public authorities acting with actual or apparent authority; strikes; labor disputes; weather; mechanical or equipment failures; cyber-attacks; civil commotions; hazards incident to a state of war; acts of terrorism; acts or omissions of customs or quarantine officials; acts of Shippers related to security; fires; frost or change of weather; sprinkler leakage; floods; wind; storm; moths; public enemies; or other causes beyond its control.
17) Returns, Cancellations & Recalls. ColdTrack will offer reasonable cooperation to Partner if Partner: (a) issues a recall of its Units or must comply with a recall issued by a governmental agency or unit; (b) must address returns or cancellation of sales of Units; provided, that Partner will be responsible for all costs, including labor at a rate determined by ColdTrack, that ColdTrack incurs in so doing.
18) Termination. Either Party may terminate this Agreement without penalty, effective upon written notice to the other Party (the “Defaulting Party“), if the Defaulting Party:
a) Terminates or purports to terminate this Agreement for a reason other than provided in this Section 18.
b) Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the breaching Party does not cure such breach within 30 days after receipt of written notice of such breach describing the breach in reasonable detail; except that with respect to monetary defaults, the breaching party shall only have five days to cure such breach from the date of ColdTrack’s delivery of notice thereof (such time, the “Cure Period“);
c) Becomes insolvent or admits its inability to pay its debts generally as they become due;
d) Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 business days after such filing;
e) Is dissolved or liquidated or takes any corporate action for such purpose;
f) Makes a general assignment for the benefit of creditors; or
g) Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
h) Termination or expiration of this Agreement shall be without prejudice to:
i. any right, liability, or obligation accrued under this Agreement but not satisfied or discharged at the date of such termination or expiration; and
ii. those provisions which reasonably should survive termination or expiration by their nature or otherwise. Such provisions include but are not necessarily limited to 1, 2-5, 9, 11-15, and 19-30.
19) Rights Upon Default. In addition to all other remedies provided in this Agreement or otherwise available at law or equity, upon default by either Party, the non-defaulting Party may do any of the following:
a) Suspension. The non-breaching Party may suspend its performance under the Agreement.
b) Termination. The non-breaching Party may terminate the Agreement pursuant to Section 18.
c) Lien Rights. If Partner breaches, then:
(i) ColdTrack shall have a lien on the Units, Packaging Materials, and all other property tendered by Partner to ColdTrack pursuant to the Agreement (“Property“) which is in ColdTrack’s possession, custody, or control at the time of any breach of the Agreement by Partner.
(ii) Such lien shall secure ColdTrack’s right to payment under the Agreement (including for claims for Services, storage, handling, transportation, insurance, labor, and any other charges incurred including reasonable attorney’s fees and expenses (collectively, the “Claims“). ColdTrack may refuse to surrender possession of the Property until all Claims are paid in full. If all such Claims are not paid by the expiration of the Cure Period, then ColdTrack may sell the Property at public auction or private sale or in any other reasonable manner, and shall apply the proceeds of such sale to the amounts owed. Partner shall remain responsible for any deficiency.
(iii) ColdTrack may charge additional storage fees to store Partner’s Property upon expiration of the Cure Period and also upon expiration or termination of the Agreement.
(iv) Upon any expiration or termination of this Agreement, provided that ColdTrack’s Claims are first paid in full, ColdTrack will promptly make available to Partner all of Partner’s Property in ColdTrack’s possession or control, and Partner shall promptly pick up such Property to avoid additional storage fees.
d) Liquidated Damages as an Additional Remedy. If Partner breaches Section 12 (Confidential Information), Section 13 (Exclusivity and Workflow), or Section 30 (Non-Circumvention and Non-Solicitation), then Partner shall be liable for liquidated damages in an amount equal to the following formula: [Number of weeks remaining on the then-current Term] x [0.35] x [PAWIA]. “PAWIA” shall be defined as Partner’s average weekly invoice amount calculated as the mean of any four consecutive weekly aggregate invoice amounts for ColdTrack Pack and ColdTrack Ship Services issued by ColdTrack to Partner as selected by ColdTrack, or, if ColdTrack has not issued such invoices for at least 13 consecutive weeks at the time of Partner’s breach, then PAWIA shall mean, at ColdTrack’s option, either $5,000 or the highest weekly aggregate invoice amount for ColdTrack Pack and ColdTrack Ship Services issued by ColdTrack to Partner. The Parties acknowledge and agree that in the event of a breach of Section 12, 13, or 30 by Partner, ColdTrack’s actual damages would be difficult or impossible to quantify with precision. The Parties agree that the liquidated damages set forth herein are a reasonable estimate of such damages and that the liquidated damages are not intended, and shall not be construed, as a penalty or as punitive in nature.
20) Notices. All notices, requests, and confirmations that are required or permitted under this Agreement shall be in writing and sufficient (a) if delivered personally (effective on the date delivered), (b) if sent by electronic mail transmission, provided that such email transmission reaches the intended email account, (c) if sent by United States registered or certified mail, return receipt requested (effective on the date received or refused as evidenced by return receipt), or (d) if sent by United States Express Mail or overnight courier (effective on the next business day), to each Party as is set forth in the recitals hereof, or as may be updated by written notice to the other Party from time to time. For purposes of delivery of notices, the addresses and email addresses provided below the Parties’ signature in this Agreement shall be deemed to be the correct addresses unless one Party provides Notice to the other Party of a change of address.
21) Binding Effect; Assignment.
a) This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, and permitted assigns.
b) Neither Party may assign this Agreement, in whole or in part, without the written consent of the other Party, except that either Party may assign this Agreement to a successor in connection with a merger, acquisition, financing, sale, reorganization, recapitalization, or other change in control. All other assignments shall be null and void.
22) Governing Law; Jurisdiction; Arbitration. This Agreement shall be deemed to have been made in and shall be construed pursuant to the laws of the State of New Jersey excluding its choice of law principles. The parties shall for a period of 30 days attempt to resolve all matters concerning any dispute, controversy, or claim arising out of or related to this Agreement, including any dispute regarding the interpretation, construction or application of any term or provision of this Agreement (collectively, a “Controversy“) by good faith negotiations. If they are unable to so resolve, a Controversy then such Controversy shall be submitted to arbitration pursuant to this Section 22.
a) Arbitration. Any Controversy shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. The arbitration shall be conducted in Edison, New Jersey. The arbitration proceedings shall be conducted before, and an award rendered by, a panel of three arbitrators, all of whom shall be members in good standing of the New Jersey bar, licensed to practice law, and actively engaged in the practice of law for at least ten years. Within 15 days following the filing of an arbitration proceeding, each Party shall select one person to act as its arbitrator, and the two party-selected arbitrators shall select a third arbitrator within ten days of their appointment. The two party-selected arbitrators will serve in a non-neutral capacity. If the party-selected arbitrators are unable or fail to agree upon the third arbitrator within the time provided, the third arbitrator shall be selected by the American Arbitration Association. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing Party’s actual damages, except as may be required by law. The arbitrators shall award to the prevailing Party, as determined by the arbitrators, all costs and fees associated with the arbitration. The term “costs and fees” means all pre-award expenses of the arbitration, including arbitrators’ fees, administrative fees, travel expenses, out-of-pocket expenses, witness fees and attorney’s fees.
b) Discovery. Consistent with the expedited nature of arbitration, each Party will, upon the written request of the other Party, provide the other Party with copies of all documents relevant to the issues raised by any claim or counterclaim, as well as all documents on which the producing Party may rely in support of or in opposition to any claim or defense. Parties shall produce all responsive documents within ten days following the receipt of a written request for production. The term “documents” includes paper documents as well as electronically stored information. In addition to a written request for the production of documents, each Party may propound one set of interrogatories, consisting of not more than 20 questions (including sub-parts), upon the other Party, which the other Party shall answer under oath within 10 days following receipt. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrators, whose determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrators.
c) Depositions. At the request of a Party, the arbitrators shall have the discretion to order examination by deposition of witnesses to the extent the arbitrators deem such additional discovery relevant and appropriate. Depositions shall be limited to a maximum of six witnesses per Party and shall be held within 30 days of the making of a request. Additional depositions may be scheduled with the permission of the arbitrators upon a showing of good cause. Each deposition shall be limited to a maximum of six hours duration and shall take place in Edison, New Jersey. All objections to questions posed during deposition are reserved for the arbitration hearing, except for objections based on privilege and proprietary or confidential information.
d) Injunctions. Either Party may, without waiving any remedy under this agreement, or otherwise waiving the arbitrability of a dispute, seek from any court having jurisdiction any interim, provisional or injunctive relief that may be necessary to protect the rights or property of that Party, pending the establishment of the panel of arbitrators.
23) Class Action Waiver. Notwithstanding any other provision of this Agreement, neither Party will have the right: (1) to participate in a class action, private attorney general action or other representative action in court or in arbitration, either as a class representative or class member; or (2) to join or consolidate claims or other Controversies with claims of any other persons. No arbitrator will have the authority to conduct any arbitration in violation of this provision. Both Parties acknowledge that the Class Action Waiver is material and essential to the Parties’ willingness to enter into this Agreement.
24) No Waiver. The waiver by either Party of a breach or a default of any provision of this Agreement by the other Party shall not be construed as a waiver of any successive breach of the same or any other provision, nor shall any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have hereunder operate as a waiver of any right, power or privilege by such Party.
25) No Agency. Nothing herein shall be deemed to constitute a Party as the agent or representative of the other Party or any of the Parties as joint venturers or partners for any purpose. Neither Party shall have the authority to speak for, represent, or obligate the other Party in any way without prior written authority from such Party.
26) Enforceability. In the event that any provision (section, subsection, or part of any subsection) of this Agreement is unenforceable under applicable law, the validity or enforceability of the remaining provisions will not be affected. To the extent any provision of this Agreement is judicially determined to be unenforceable, a court of competent jurisdiction may reform any such provision to make it enforceable (and neither Party shall object to it so doing). The provisions of this Agreement will, where possible, be interpreted so as to sustain its legality and enforceability.
27) Attorneys’ Fees. The prevailing party shall be entitled to all its attorneys’ fees and costs incurred in enforcing its rights and remedies in connection with any default under this Agreement and in connection with any Dispute or Controversy under, involving, or related to this Agreement.
28) Pre-Judgment Interest. In the event of any breach of this Agreement that gives rise to a monetary award against one Party in favor of the other Party, the prevailing Party shall be entitled to recover, in addition to all other remedies available at law or in equity, pre-judgment interest on the amount of any monetary damages awarded. Such interest shall accrue from the date the breach occurred until the date of final judgment, at a rate of 8% per annum, compounded annually, or the maximum rate permitted by applicable law, whichever is lower. The Parties acknowledge that this provision is intended to fairly compensate the prevailing Party for the loss of use of funds and is not intended to constitute a penalty.
29) Force Majeure. Except for obligations to pay Fees owing under this Agreement, neither Party will be responsible to the other Party hereunder, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of such Party and without their negligence, including, without limitation, acts of God, pandemics, epidemics, quarantines, other health emergencies, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, or other civil unrest, national emergency, revolution, insurrection, inability or delay in obtaining supplies of adequate or suitable materials, supply chain disruptions, transportation disruptions (including shipping delays or cancellations), telecommunication outages, power outages, internet outages, other infrastructure failures, equipment breakdown, power outage, strikes, labor disputes, cybersecurity incidents, (including hacking and data breaches), material shortages, fire, explosions, other accidents, or the inability of the majority of either Party’s personnel to work due to any of the aforementioned (a “Force Majeure Event“). The affected Party shall give prompt written notice (within three business days) of the occurrence of a Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue if such period of time can be reasonably estimated. The affected Party shall use commercially reasonable efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The affected Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event any failure or delay remains uncured for a period of 60 business days following written notice given by it under this Section 29, the other Party may thereafter terminate this Agreement upon 10 days’ written notice.
30) Non-Circumvention and Non-Solicitation.
a) Partner covenants and agrees that during the Term Partner shall not, except with the express prior written consent of ColdTrack, do any of the following: (i) receive services from any third party logistics provider or Shipper in contravention of this Agreement, (ii) enter into any agreement for services with any third party logistics provider or Shipper in contravention of this Agreement; or (iii) solicit, entice, induce, influence, or encourage any third party logistics provider or Shipper to provide it services in contravention of this Agreement.
b) Partner covenants and agrees that during the Term and for a period of 24 months thereafter, it will not solicit, entice, induce, influence, or encourage any Shipper or any other third party to not do business, or to alter its business, with ColdTrack.
c) Both Parties agree that during the Term and for a period of 24 months thereafter, neither Party will not, directly or indirectly, (a) hire or solicit for employment any employee of the other Party; provided, that this Agreement shall not prohibit any advertisement or general solicitation (or hiring as a result thereof) that is not specifically targeted at such employees and/or (b) induce, encourage or request, any person engaged in business with either Party or its affiliates, including, without limitation, vendors, customers, suppliers, lenders, lessors and financing sources, to alter its relationship therewith in a manner adverse to the other Party.
