General. Sula Fresh LLC, herein referred to as “Sula Fresh LLC,” hereby provides to Customer, under the terms and conditions contained in this Standard Terms and Conditions agreement (“ST&C”) and in the Services Agreement between the Parties, the Services set forth in the Services Agreement between the Parties.
Force Majeure. Sula Fresh LLC shall not be liable for any event or contingency reasonably beyond the control of the party whose performance is interfered with, including acts of God, fire, explosion, flood, storm, lightening, earthquake, or other catastrophes, riot, civil commotion, war (declared or undeclared), warlike operations or hostilities, revolution, act of terrorism, riot, civil commotion or public disorder, boycott, acts of the government of any country, state, political subdivision or regulatory agency thereof or entity created thereby, accident, epidemics or quarantine restrictions, strike, work stoppages, slowdown, lock-out or other labor action, and power failure or shortages of power or raw materials.
Assignability. Customer shall not assign any right or interest under this ST&C or the Services Agreement or delegate any obligation under this ST&C or the Services Agreement without the prior written consent of Sula Fresh LLC. Any attempted assignment or delegation without permission shall be wholly void and ineffective for all purposes. Notwithstanding the foregoing, either Party may assign its rights or interests, or delegate any obligation, under this ST&C and the Services Agreement, without the other Party’s prior written consent, if such assignment or delegation is to an affiliated or subsidiary company or to a company emerging out of a consolidation or acquisition by or merger with such Party, provided, however, that in the event of such an assignment or delegation notice is given to the other Party, and further provided that the assignor or delegator shall guarantee the full and timely performance by the assignee or delegate of all of its obligations under this ST&C and the Services Agreement. This ST&C and the Services Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the Parties hereto.
Non-Waiver. Sula Fresh LLC’s failure at any time to insist upon strict performance by Customer of the terms of this ST&C and/or the Services Agreement, shall not be construed as a waiver of Sula Fresh LLC’s right to demand strict performance. The express waiver of one provision of this ST&C and/or the Services Agreement shall not be deemed a waiver of any other provision of this ST&C or the Services Agreement. No waiver or release of any provision of this ST&C or Services Agreement shall be effective unless made in writing and signed by the Party against which the same is to be enforced, and no such waiver or release shall extend to anything other than the specific subject matter thereof.
Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Michigan without regard to its conflicts of law provisions.
Jurisdiction. All disputes arising out of or relating to this ST&C or Services Agreement shall be subject to the exclusive personal jurisdiction and venue of the state and federal courts of the State of Michigan to which the parties irrevocably submit. Notwithstanding the foregoing, Sula FreshLLC may commence proceedings or seek remedies before the courts or any competent authority of any country for interim or interlocutory remedies in relation to any breach of this ST&C or Services Agreement or infringement by Customer of any United States or foreign trademark, trade dress, copyright or other proprietary right of Sula Fresh LLC.
Amendments or Modifications. No amendment or modification to this ST&C or Services Agreement shall be made or be binding on any Party unless made in writing and signed by each Party to this ST&C or Services Agreement. Purchase orders, release notices, purchase or sales confirmations or similar commercial documents shall not modify or amend any of the terms of this ST&C or Services Agreement, even if signed by both Parties.
Severability. The invalidity or unenforceability of any particular provision of this ST&C or Services Agreement shall not affect the validity or enforceability of any other provisions of this ST&C or Services Agreement, and this ST&C or Services Agreement shall be construed in all respects as if such invalid or unenforceable provision were omitted and be substituted with a valid and enforceable provision reflecting as closely as possible the economic intent of such invalid or unenforceable provision.
Headings. Headings are utilized herein only as a matter of convenience and reference, and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof.
Relationship. The Parties agree that their relationship, one to the other, is that of an independent contractor. This ST&C or Services Agreement does not create a partnership or joint venture between the Parties. Neither Sula Fresh LLC or Customer is an agent of the other, and no agent or employee of either Sula Fresh LLC or Customer shall be deemed an agent or employee of the other.
DISCLAIMER OF WARRANTY. SULA FRESH LLC MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES. SPECIFICALLY, SULA FRESHLLC MAKES NO WARRANTY AS TO THE MERCHANTABILITY OR FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE, AND SULA FRESH LLC MAKES NO REPRESENTATIONS OR WARRANTY THAT DESIGNS, LAYOUTS, LOGOS, TRADEMARKS, TRADE DRESS, COPYRIGHTS AND ANY OTHER INTELLECTUAL PROPERTY PROVIDED TO CUSTOMER AS PART OF THE SERVICES DO NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF ANOTHER. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT ANY AND ALL DESIGNS, LAYOUTS, LOGOS, TRADEMARKS, TRADE DRESS, COPYRIGHTS OR OTHER INTELLECTUAL PROPERTY USED BY IT ARE FREE FROM INFRINGEMENT OR INFRINGEMENT CLAIMS OF ANOTHER. SULA FRESH LLC IS NOT RESPONSIBLE FOR ANY CHANGES OR MODIFICATIONS MADE BY CUSTOMER OR CUSTOMER’S AGENT TO ANY OF SERVICES OR PRODUCTS PROVIDED BY SULA FRESH LLC. CUSTOMER HEREBY WAIVES ANY RIGHT TO CLAIM ANY CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOST PROFITS), INCIDENTAL, OR INDIRECT DAMAGES RESULTING FROM A BREACH OR ALLEGED BREACH OF THE SERVICES AGREEMENT OR THIS ST&C.
Indemnification. The Customer agrees to fully indemnify and hold harmless Sula Fresh LLC from all actions, claims, costs, damages, liabilities and expenses, including reasonable attorneys’ fees, which may be brought or made against Sula Fresh LLC which in any way arise out of, or by reason of, or are claimed to arise out of, or by reason of, the use or misuse of the Services hereunder, including any actions relating to the actual or alleged trademark, trade dress, copyright, and any other intellectual property infringement, excepting only such actions, claims, costs, damages, liabilities and expenses resulting from the sole negligence of the Company. The intent hereof is that the Customer shall fully indemnify and hold harmless Sula Fresh LLC to the maximum extent allowable by law.
Attorneys Fees. Customer will pay Sula Fresh LLC’s expenses, including reasonable attorneys’ fees, incurred as a result of Customer’s default in the performance of any of Customer’s obligations in this ST&C or in the Services Agreement.
Definitions. Capitalized terms set forth in this ST&C that are defined in the Services Agreement shall have the meaning so ascribed therein. Words imparting the singular shall include the plural and vice versa. The words and phrases “other,” “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as any preceding words where a wider construction is possible.
Translation. If this Agreement is translated into a language other than English, the English language version of the Agreement shall control.
Entire Agreement. This ST&C and the Services Agreement represents the entire Agreement between Sula Fresh LLC and Customer. The terms and conditions of this ST&C and Services Agreement supersede and are in lieu of any and all other prior agreements, understandings and representations between the Parties whether written or oral relating to the subject matter of this Agreement. To the extent that there is an inconsistency or conflict between the terms and conditions of this ST&C and the Services Agreement, the terms and conditions of the Services Agreement shall prevail and the inconsistent or conflicting terms or conditions shall have no force or effect.
Expiration, Termination. Sula Fresh LLC may terminate the Services Agreement and this ST&C upon notice to Customer if (i) Customer fails to comply with a material provision of this ST&C and/or the Services Agreement, or (ii) if Customer enters into liquidation or dissolution, becomes insolvent, a trustee or receiver is appointed, any proceeding is instituted by or against the Customer under the provisions of any current or future bankruptcy act or amendment thereto and is not dismissed within 30 days, enters into any voluntary arrangement with its creditors, or Customer admits in writing of its inability to pay debts as they become due. Any obligations which by their terms or implication are to be complied with after the termination or expiration of this ST&C and/or the Services Agreement shall survive such termination or expiration.
Confidentiality. All terms and conditions of the Services Agreement shall remain confidential and shall not be divulged to third parties without the prior written consent of the other Party. This provision shall survive the expiration or termination of this ST&C and/or the Services Agreement.