Standard Terms & Conditions to
Partner and ColdTrack agree that these Standard Terms & Conditions to that certain Fulfillment Service Agreement (the “Agreement,” or “FSA”) entered into on the Effective Date by and between them are an integral part of the FSA. For the sake of clarity, these Standard Terms & Conditions shall be read together with the FSA 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. All capitalized terms not defined in these Standard Terms & Conditions have the meaning ascribed to them in the FSA. The terms “FSA,” “Standard Terms & Conditions,” and “Agreement” are used interchangeably except where using one of them to refer to specific document provides useful specificity.
1. Definitions. The following terms have the following definitions:
- “Consumer” means Partner’s customer.
- “Mispick” means any Package that is (A) not packed with the number of Units of the Products ordered by Partner and which, instead, is packed with one or more Units of a different Product, unless due to a Substitution; or (B) not packed using Packaging Materials supplied or requested by Partner, unless due to a Substitution.
- “Package” means a single box, container, or any other type of package picked up by a Shipper or by the Partner from the Facility, for the purpose of delivery to the Consumer. For the sake of clarity, a Package may contain one or more Unit(s) or one or more Products(s).
- “Packaging Materials” means packaging materials including cartons, shipping boxes, dry ice, ice-packs, and all other components and materials used to package Products.
- “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 services for Partner
- “Product” means any and all cold or frozen products sold by Partner direct-to-consumers, except as may be explicitly limited by the FSA. For the sake of clarity, 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.
- “Shipper” means any common carrier or contract carrier whose services ColdTrack facilitates on behalf of Partner. Examples may include DB Schenker, DHL, FedEx, UPS, or similar services that have been facilitated by ColdTrack)
- “Shipper Charges” means any and all amounts charged to Partner pursuant to the Shipper Rate Sheet.
- “Shipping Deadline” means the first Packing Day following the day on which Partner places an order, provided such order is received by ColdTrack by 11:59 pm ET on the day prior to such Packing Day. If such order is received after 11:59 pm ET, then the Shipping Deadline will be the second Packing Day following the day on which Partner places such order. Notwithstanding the foregoing, Partner agrees that ColdTrack may miss the Shipping Deadline with respect to up to one percent The following example is included to illustrate:
- Example: Assume Partner’s Packing Days are Tuesday and Thursday. If Partner places order with ColdTrack on Monday at 4 pm ET, then the pick and pack for such order will normally be Tuesday and the Shipping Deadline for such order will also normally be Tuesday. If, however, Partner places an order on Wednesday at any time (even 12:01 am), then the pick and pack and the Shipping Deadline for such order will normally be Thursday, though ColdTrack may pick and pack and/or ship such order earlier, in its discretion.
- “Shipper Rate Sheet” means any document(s) (print or digital) which lists the then-current rates charged by ColdTrack for sending Packages.
- “Shipping Services” means the following Services: (A) 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 Packages, using ColdTrack’s proprietary process for making such decisions; (B) the use of ColdTrack’s Partner accounts with Shippers in sending all Packages to all Consumers; and ColdTrack’s ongoing consulting services to ColdTrack with respect to shipping strategy and other matters related to logistics.
- “Substitution” means ColdTrack’s (A) substitution at Partner’s request, in packing a Package, 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. As a point of clarity, Partner shall be solely responsible for acquiring and delivering to ColdTrack an inventory of Products sufficient in quantity to meet order demand. If a Product shortage exceeds the time allotted for a Product shipment to be sent by ColdTrack to Consumer (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 Consumers,
- “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.
- “Unit” means each individual item of Product.
2. Delivery and Storage.
- Partner may provide its own Packaging Materials subject to the terms and conditions delineated in this Section.
- Partner may also purchase Packaging Materials from ColdTrack pursuant to the Fee Schedule. 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.
- Partner shall furnish, prior to, or upon delivery of Units and Packaging Materials, a manifest showing marks, brands, or sizes to be accounted for separately and the class of storage desired, if applicable. Partner shall provide to ColdTrack all documents or information necessary or useful for the safe and proper warehousing, handling, storage, and transportation (if any) of the Units.
- Partner shall deliver all Units on pallets consisting of single SKUs.
- 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.
- ColdTrack shall use commercially reasonable efforts to prepare all Packages to service Partner.
- ColdTrack shall examine all Products and Packaging Materials delivered to it at its Facility, and if any Products or Packaging Materials are damaged or of unacceptable quality (each in accordance with industry practices and SOPs), ColdTrack shall reject any such Products or Packaging Materials and shall notify Partner as soon as practicable of the rejection and any delays the rejection may cause.
- ColdTrack reserves the right to reject any Packaging Material, Product or Unit it deems to be unfit for distribution in its reasonable discretion. If such unfitness can be cured through High Pressure Processing (“HPP”), ColdTrack can provide HPP for Partner, subject to ColdTrack and Partner entering into a separate written agreement regarding same. Such written agreement will be negotiated between the parties expeditiously, in good faith and to mutual satisfaction.
- 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 ship such Units.
- Any Units that are required to 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 ship such Units.
3. Changes to SOP.
- Should Partner desire to change its SOP, Partner will send notice to ColdTrack of such proposed changes to its SOP. ColdTrack shall have 14 days to advise Partner if the proposed changes are acceptable. If acceptable, such proposed changes will take effect on the fifth business day after ColdTrack notifies Partner of such acceptance.
4. Additional Payment Terms.
- If Partner does not pay any invoice in full by its Invoice Due Date, ColdTrack may elect to do any or all of the following: (i) charge a late fee equal to 2% per month for any past due balance; (ii) terminate the Agreement as provided in Section 11 of these Terms & Conditions; (iii) amend payment terms to cash-in-advance; and (iv) or require a deposit or letter of credit in an amount ColdTrack believes to be reasonably necessary to protect itself from non-payment.
- 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) amend payment terms to cash-in-advance; or (ii) require a deposit or letter of credit in an amount ColdTrack believes to be reasonably necessary to protect itself from non-payment.
- If Partner disputes any Fee in any invoice, it must notify ColdTrack of such dispute (“Dispute”) prior to the Invoice Due Date for the invoice on which such Fee appears. Partner shall not be excused from paying an invoice when and as due because it raises a Dispute.
- A Dispute will be handled in one of two ways:
- A Dispute over Fees other than for Shipper Charges shall pay addressed by Partner and ColdTrack promptly negotiating about it. Such negotiation may result in ColdTrack giving a credit on its 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 14 of these Terms & Conditions.
- A Dispute over Fees for Shipper Charges is not a Controversy. Rather, in the case of such Dispute Partner must file a claim with ColdTrack, 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. Any resulting credit Shipper issues shall be issued by Shipper 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 Partner has with Shipper. ColdTrack does not, and Partner acknowledges that ColdTrack does not, provide any insurance coverage or indemnification with respect to Shippers and that ColdTrack is not responsible for any Package once it leaves a Facility.
5. 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
6. 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.
7. Confidential Information
- The Parties acknowledge and agree that, in connection with the negotiation and performance of this Agreement, each Party may have had, have, or will have access to the other Party’s non-public confidential information (“Confidential Information”).
- The Parties acknowledge that the terms of this Section 7 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.
- Each Party who is in receipt of Confidential Information (the “Receiving Party”) agrees, on behalf of itself and its affiliates, to not, 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:
- 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 Terms & Conditions. Agreement (the “Representatives”):
- attempt to, or actually, sell, transfer, license, assign, or otherwise use or exploit any of the Disclosing Party’s Confidential Information; or
- permit the sale, transfer, use, and/or exploitation of any Disclosing Party’s Confidential Information by its Representatives.
- Confidential Information includes the terms of this Agreement, the identity of each Shipper, ColdTrack’s rates with each Shipper, Shipping Rate Sheets, and any information related to its rates with each Shippers. 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 is independently developed by the Receiving Party 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 nature 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, Shipping Rates Sheets and all information regarding ColdTrack’s relationships with Shippers constitute Trade Secrets.
- 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.
- 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.
8. Exclusivity and Workflow. ColdTrack shall, subject only to the exceptions contained in FSA, be the exclusive provider of all Services to Partner relating to all its Products during the Term. For the sake of clarity, this is intended by both Parties to be a broad exclusivity provision applicable to all Products except as may be explicitly limited.
- ColdTrack’s acceptance of Units 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. ColdTrack agrees to provide notice to Partner of any anticipated inability to accept any Units, in which case Partner shall be free to use another company to fulfill the Services with respect to such Units.
- When Partner orders unusually high quantities of Units, ColdTrack may be unable to ship all associated Packages to Consumers by the Shipping Deadline. To minimize the likelihood of this occurring, Partner agrees to provide ColdTrack with regular guidance via 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 Shipment Deadline, provided that ColdTrack shall use commercially reasonable efforts to send such excess orders within two business days after the Shipping Deadline.
- Partner may request, up to four weeks prior to the delivery of Units, that ColdTrack confirm its ability to accept such Units, in which case ColdTrack agrees to provide notice to Partner whether it will accept such Units. If ColdTrack fails to promptly confirm that such Units will be accepted, but subject to (ii) below, then Partner shall be free to use another company to perform the Services with respect to such Units. If ColdTrack promptly confirms it will accept such Units then Partner shall be obligated to pay ColdTrack for the incremental costs it incurs in anticipation of receipt of, and performing of Services with respect to, such Units.
- ColdTrack shall not be required to store more Units or Packaging Material than are reasonably necessary to satisfy Partner’s reasonably anticipated orders over a period specified in the FSA under the header “Pallets Required per Facility per Storage Type.” If Partner delivers an excess of such Units or Packaging Materials, ColdTrack may at its discretion reject same or may charge Partner additional storage fees on per-pallet or (or partial pallet) basis at a rate determined by ColdTrack in its sole discretion.
- If more than 10 Packages are shipped after their applicable Shipping Deadline in a week (measured Sunday through Saturday), ColdTrack shall issue credit equal to the amount invoiced for ColdTrack Pack services for those affected Packages. When ColdTrack issues such a credit, it shall be applied to the invoice covering such Package where possible, or otherwise applied against a subsequent invoice.
- 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 introduction shall not constitute ColdTrack’s consent to an exception to exclusivity. Rather, any such exception shall require written consent by ColdTrack. Partner understands and agrees that ColdTrack may contract with its own affiliates in performing Services.
9. Indemnification. Each Party (as “Indemnifying Party”) agrees to defend, indemnify, and hold the other Party, its 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.
10. Limitation of Liability.
- 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 WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COLDTRACK HAS BEEN 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 , EXCEPT THAT CLAIMS MADE UNDER SECTION 10(b) BELOW SHALL NOT BE COUNTED IN COMPUTING THE AMOUNT OF AGGREGATE LIABILITY.
11. Performance Standards.
- Exceeding the Mispick Allowance.
- If there are more than 10 Mispicks in a week (measured Sunday through Saturday) and such Mispicks exceed the Mispick Allowance, ColdTrack shall issue credit equal to the amount invoiced for ColdTrack Pack services for those affected Packages, as described below:
- Partner’s request for a credit because of ColdTrack exceeding the Mispick Allowance will be accompanied by reasonable documentation of the applicable Mispick. For the sake of clarity, when a Package reaches a Consumer and the Consumer receives something other than what the Consumer ordered from Partner, such Consumer 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; provided, however, Customer’s determination is subject to dispute by ColdTrack.
- When ColdTrack issues a credit for a Mispicked Package, such credit shall be applied to the invoice covering such Package where possible, or otherwise applied against a subsequent invoice.
- Notwithstanding any failures by ColdTrack, in no event shall the total of any credits due for a given Package exceed the amount invoiced by ColdTrack for Pick & Pack Fees for such Package.
- Inventory Shrink and Misrotation of Product Allowance.
- 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 Consumer 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 Date The actual mathematical calculation of Inventory Shrink is described in (ii) below.
- Units, for the purpose of calculating Inventory Shrink, shall be handled in the following manner:
- 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 the sake of clarity, stated another way, 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.
- 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”).
- 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 since 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 Consumers. 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.
- 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 Consumers in a given month.
- In no event shall Company 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 carriers related to security; fires; frost or change of weather; sprinkler leakage; floods; wind; storm; moths; public enemies; or other causes beyond its control.
10. 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.
11. Default and Termination.
- Either Party may terminate this Agreement without penalty, effective upon written notice to the other Party (the “Defaulting Party“), if the Defaulting Party:
- 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 business 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 will only have 5 days to cure such breach from the date of ColdTrack’s delivery of notice thereof (such time, the “Cure Period”);
- Becomes insolvent or admits its inability to pay its debts generally as they become due;
- 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;
- Is dissolved or liquidated or takes any corporate action for such purpose;
- Makes a general assignment for the benefit of creditors;
- 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; or
- Terminates pursuant to Section 17 of these Terms and Conditions.
- Lien Rights.
- 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.
- 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 (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.
- 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.
- 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.
- Termination or expiration of this Agreement shall be without prejudice to:
- any right, liability, or obligation accrued under this Agreement but not satisfied or discharged at the date of such termination or expiration; and
- those provisions which, by their nature or otherwise reasonably should survive termination or expiration. Such provisions include but are not necessarily limited to Sections 5 (Confidential Information), 6 (Representations and Warranties), 8 (Indemnification), 9 (Limitations of Liability), 11 through 18.
12. 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.
13. Binding Effect; Assignment.
- This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, heirs, executors, administrators, and permitted assigns.
- 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.
14. 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 14.
- 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.
- 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 written request for the production of documents, each Party may propound one set of interrogatories, consisting of not more than twenty questions (including sub-parts), upon the other party, which the other Party shall answer under oath within ten days following receipt. Any dispute regarding discovery, or the relevance or scope thereof, shall be determined by the arbitrators, which determination shall be conclusive. All discovery shall be completed within 60 days following the appointment of the arbitrators.
- 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 thirty 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
- 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.
15. 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.
16. 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 ventures or partners for any purpose. Neither Party shall have authority to speak for, represent or obligate the other Party in any way without prior written authority from such Party.
17. 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 3 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 17, the other Party may thereafter terminate this Agreement upon 10 days’ written notice.
18. Non-Circumvention and Non-Solicitation.
- 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 Shipper in contravention of this Agreement, (ii) enter into any agreement for Services with any Shipper; or (iii) solicit, entice, induce, influence, or encourage any Shipper or any other third party to provide it Services.
- Partner covenants and agrees that during the Term and for a period of 24 months thereafter not to solicit, entice, induce, influence, or encourage any Shipper or any other third party to not do business, or to alter its business, with ColdTrack.
- 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.
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