For marketplace specific terms, please scroll to the end of the form
By subscribing to the Reserva Food Systems Platform (the “Services”) provided by Reserva Food Systems, Inc and its affiliates (“RFS”) in relation with Reserva ERP (the “Software”), hosted on Reserva Inc’s cloud infrastructure (the “Platform”), you (the “Customer”) are agreeing to be bound by the following terms and conditions (the “Agreement”).
1 Term of the Agreement
The duration of this Agreement (the “Term”) shall be specified in writing on conclusion of this Agreement, beginning on the date of conclusion. It is automatically renewed for an equal Term, unless either party provides a written notice of termination minimum 30 days before the end of the Term to the other party.
2 Definitions
User
Any user account indicated as active in the Software, with access to creation and/or edition mode. Deactivated user accounts and accounts used by external people (or systems) who only have limited access to the Software through the portal facilities (known as “portal Users”) are not counted as Users.
App
An “App” is a specialized group of features available for installation in the Software
Reserva Partner
A Reserva Partner is a third-party company or individual providing services enabled by the Platform or the Software.
Extra Module
An extra module is a directory of source code files, or a set of customizations created in a database that adds features or changes the standard behavior of the Software. All Extra Modules are created and maintained by Reserva.
Covered Extra Module
For paying customers only, a Covered Extra Module is an Extra Module for which the Customer chooses to pay a maintenance fee in order to get support, upgrade and bug fixing services.
Bug
Is considered a Bug any failure of the Software or of a Covered Extra Module that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of Reserva Inc (typically, when the Software does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore).
Covered Versions
Unless specified otherwise, the Services provided under this Agreement are applicable only to the Covered Versions of the Software, which include the 3 most recently released major versions.
3 Access to the Software
The Customer can use the Software hosted on the Cloud Platform, or choose the Self-Hosting option. The Cloud Platform is hosted and fully managed by Reserva Inc, and accessed remotely by the Customer. With the Self-Hosting option, the Customer instead hosts the Software on computer systems of their choice, that are not under the control of Reserva Inc.
For the duration of this Agreement, Reserva Inc gives the Customer a non-exclusive, non-transferable license to use (execute, modify, execute after modification) the Reserva Platform software.
The Customer agrees to take all necessary measures to guarantee the unmodified execution of the part of the Software that verifies the validity of the Reserva Platform usage and collects statistics for that purpose, including but not limited to the running of an instance, the number of Users, the installed Apps, and the number of lines of code of Covered Extra Modules.
Reserva Inc commits not to disclose individual or named figures to third parties without the consent of the Customer, and to deal with all collected data in compliance with its official Privacy Policy.
Upon expiration or termination of this Agreement, this license is revoked immediately and the Customer agrees to stop using the Reserva Platform software and the Cloud Platform.
Should the Customer breach the terms of this section, the Customer agrees to pay Reserva Inc an extra fee equal to 300% of the applicable list price for the actual number of Users and installed Apps.
4 Services
4.1 Bug Fixing Service
For the duration of this Agreement, Reserva Inc commits to making all reasonable efforts to remedy any Bug of the Software and Covered Extra Modules submitted by the Customer via email at support@onreserva.com or when working with an Reserva Partner, the channel provided by the partner), and to start handling such Customer submissions within 2 business days.
As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer. If the Customer is using a Covered Version, they will not be asked to upgrade to a more recent Covered Version of the Software as a remedy to a Bug.
When a Bug is fixed in any Covered Version, Reserva Inc commits to fixing the Bug in all more recent Covered Versions of the Software.
Both parties acknowledge that Reserva Inc cannot be held liable for Bugs in the Software or in Covered Extra Modules.
4.2 Security Updates Service
Self-Hosting
For the duration of this Agreement, Reserva Inc commits to sending a “Security Advisory” to the Customer for any security Bug that is discovered in the Covered Versions of the Software (this excludes Extra Modules), at least 2 weeks before making the Security Advisory public, unless the Bug has already been disclosed publicly by a third party. Security Advisories include a complete description of the Bug, its cause, its possible impacts on the Customer’s systems, and the corresponding remedy for each Covered Version.
The Customer understands that the Bug and the information in the Security Advisory must be treated as Confidential Information during the embargo period prior to the public disclosure.
Cloud Platform
Reserva Inc commits to apply the security remedies for any security Bug discovered in a version of the Software hosted on the Cloud Platform, on all systems under its control, as soon as the remedy is available, without requiring any manual action of the Customer.
4.3 Upgrade Services
Upgrade Service for the Software
For the duration of this Agreement, the Customer can submit upgrade requests through the appropriate channel (typically Reserva Inc’s upgrade service website), in order to convert a database of the Software from any version of the Software to a more recent Covered Version (the “Target Version”).
For the Cloud Platform, upgrade requests are submitted directly from the control panel of the Cloud Platform, and do not require any data upload. For Self-Hosting, upgrade requests must include a copy of the Customer’s database and the associated data (typically obtained from the Backup menu of the Software).
This service provided through an automated platform in order to allow the Customer to perform unattended upgrades once a previous version of the Customer’s database has been successfully upgraded for a Covered Version.
The Upgrade Service is limited to the technical conversion and adaptation of the Customer’s database to make it compatible with the Target Version, the correction of any Bug directly caused by the upgrade operation and not normally occurring in the Target Version, and the conversion of the source code and data of Covered Extra Modules for the Target Version.
It is the responsibility of the Customer to verify and validate the upgraded database in order to detect Bugs, to analyze the impact of changes and new features implemented in the Target Version, and to convert and adapt for the Target Version any third-party extensions of the Software that were installed in the database before the upgrade (e.g. non-convered Extra Modules). The Customer may submit multiple upgrade requests for a database, until an acceptable result is achieved.
4.4 Cloud Hosting Services
For the duration of this Agreement, when the Customer chooses to use the Cloud Platform, Reserva Inc commits to providing at least the following services:
Hosting in Tier-III data centers or equivalent, with 99.9% network uptime
Grade A SSL (HTTPS) Encryption of communication
Fully automated, verified backups, replicated in multiple regions
Disaster Recovery Plan, tested regularly
The details of the Cloud Hosting Services are described on the Service Level Agreement provided to Enterprise customers.
4.5 Support Services
Scope
For the duration of this Agreement, the Customer may open an unlimited number of support tickets free of charge, exclusively for questions regarding Bugs or guidance with respect to the use of the standard features of the Software and Covered Extra Modules.
Other assistance requests, such as questions related to development or customizations may be covered through the purchase of a separate service agreement. In case it’s not clear if a request is covered by this Agreement, the decision is at the discretion of Reserva Inc.
Availability
Tickets can be submitted via email at support@onreserva.com, or when working with an Reserva Partner, the channel provided by the partner, subject to local opening hours.
4.6 Working with an Reserva Partner
For bug fixes, support and upgrade services, the Customer may either work with a Reserva Partner as the main point of contact, or work with Reserva Inc directly.
If the Customer decides to work with an Reserva Partner, Reserva Inc will subcontract services related to the Covered Extra Modules to the Reserva Partner, who becomes the main point of contact of the customer. The Reserva Partner may contact Reserva Inc on behalf of the customer for second-level assistance with regard to standard features of the Software.
If the Customer decides to work with Reserva Inc directly, services related to Covered Extra Modules are provided if and only if the Customer is hosted on the Reserva Cloud Platform.
5 Charges and Fees
5.1 Standard charges
The standard charges for the ERP users are published in Reserva’s pricing page. The Enterprise Plans include unlimited access to all available modules developed by Reserva as well as full accounting support.
When during the Term, the Customer has more Users or more installed Apps than specified at the time of conclusion of this Agreement, the Customer agrees to pay an extra fee equivalent to the applicable list price (at the beginning of the Term) for the additional Users or Apps, for the remainder of the Term.
5.2 Taxes
All fees and charges are exclusive of all applicable federal, provincial, state, local or other governmental taxes, fees or charges (collectively, “Taxes”). The Customer is responsible for paying all Taxes associated with purchases made by the Customer under this Agreement, except when Reserva Inc is legally obliged to pay or collect Taxes for which the Customer is responsible.
6 Conditions of Services
6.1 Customer Obligations
The Customer agrees to:
pay Reserva Inc any applicable charges for the Services of the present Agreement, in accordance with the payment conditions specified at the signature of this contract ;
immediately notify Reserva Inc when their actual number of Users or their installed Apps exceed the numbers specified at the conclusion of the Agreement, and in this event, pay the applicable additional fee.
take all measures necessary to guarantee the unmodified execution of the part of the Software that verifies the validity of the Reserva Platform usage;
appoint 1 dedicated Customer contact person for the entire duration of the Agreement;
provide written notice to Reserva Inc 30 days before changing their main point of contact to work with another Reserva Partner, or to work with Reserva Inc directly.
When the Customer chooses to use the Cloud Platform, the Customer further agrees to:
take all reasonable measures to keep their user accounts secure, including by choosing a strong password and not sharing it with anyone else;
make a reasonable use of the Hosting Services, to the exclusion of any illegal or abusive activities.
When the Customer chooses the Self-Hosting option, the Customer further agrees to:
take all reasonable measures to protect Customer’s files and databases and to ensure Customer’s data is safe and secure, acknowledging that Reserva Inc cannot be held liable for any data loss;
grant Reserva Inc the necessary access to verify the validity of the Reserva Platform usage upon request (e.g. if the automatic validation is found to be inoperant for the Customer);
6.2 No Soliciting or Hiring
Except where the other party gives its consent in writing, each party, its affiliates and representatives agree not to solicit or offer employment to any employee of the other party who is involved in performing or using the Services under this Agreement, for the duration of the Agreement and for a period of 12 months from the date of termination or expiration of this Agreement.
6.3 Publicity
Except where notified otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
6.4 Confidentiality
Definition of “Confidential Information”:
All information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. In particular any information related to the business, affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of either party should be regarded as confidential.
For all Confidential Information received during the Term of this Agreement, the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own similar Confidential Information, but not less than reasonable care.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure, to the extent permitted by law.
6.5 Data Protection
Definitions
“Personal Data”, “Controller”, “Processing” take the same meanings as in the Regulation (EU) 2016/679 and the Directive 2002/58/EC, and any regulation or legislation that amends or replaces them (hereafter referred to as “Data Protection Legislation”)
Processing of Personal Data
The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by Reserva Inc when the Customer instructs so, by using any of the Services that require a database (e.g. the Cloud Hosting Services or the Database Upgrade Service), or if the Customer transfers their database or a part of their database to Reserva Inc for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, Reserva Inc commits to:
(a) only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case Reserva Inc will provide prior notice to the Customer, unless the law forbids it ;
(b) ensure that all persons within Reserva Inc authorised to process the Personal Data have committed themselves to confidentiality ;
(c) implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure ;
(d) forward promptly to the Customer any Data Protection request that was submitted to Reserva Inc with regard to the Customer’s database ;
(e) notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data ;
(f) notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of Reserva Inc;
(g) make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
(h) permanently delete all copies of the Customer’s database in possession of Reserva Inc, or return such data, at the Customer’s choice, upon termination of this Agreement, subject to the delays specified in Reserva Inc’s privacy policy.
With regard to points (d) to (f), the Customer agrees to provide Reserva Inc with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.
Subprocessors
The Customer acknowledges and agrees that in order to provide the Services, Reserva Inc may use third-party service providers (Subprocessors) to process Personal Data. Reserva Inc commits to only use Subprocessors in compliance with Data Protection Legislation. This use will be covered by a contract between Reserva Inc and the Subprocessor that provides guarantees to that effect. Reserva Inc’s Privacy Policy, provides up-to-date information regarding the names and purposes of Subprocessors currently in use by Reserva Inc for the execution of the Services.
6.6 Termination
In the event that either Party fails to fulfill any of its obligations arising herein, and if such breach has not been remedied within 30 calendar days from the written notice of such breach, this Agreement may be terminated immediately by the non-breaching Party.
Further, Reserva Inc may terminate the Agreement immediately in the event the Customer fails to pay the applicable fees for the Services within 21 days following the due date specified on the corresponding invoice, and after minimum 3 reminders.
7 Warranties, Disclaimers, Liability
7.1 Warranties
For the duration of this Agreement, Reserva Inc commits to using commercially reasonable efforts to execute the Services in accordance with the generally accepted industry standards provided that:
the Customer’s computing systems are in good operational order and, for Self-Hosting, that the Software is installed in a suitable operating environment;
the Customer provides adequate troubleshooting information and, for Self-Hosting, any access that Reserva Inc may need to identify, reproduce and address problems;
all amounts due to Reserva Inc have been paid.
The Customer’s sole and exclusive remedy and Reserva Inc’s only obligation for any breach of this warranty is for Reserva Inc to resume the execution of the Services at no additional charge.
7.2 Disclaimers
Except as expressly provided herein, neither party makes any warranty of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement, to the maximum extent permitted by applicable law.
Reserva Inc does not warrant that the Software complies with any local or international law or regulations.
7.3 Limitation of Liability
To the maximum extent permitted by law, the aggregate liability of each party together with its affiliates arising out of or related to this Agreement will not exceed 50% of the total amount paid by the Customer under this Agreement during the 12 months immediately preceding the date of the event giving rise to such claim. Multiple claims shall not enlarge this limitation.
In no event will either party or its affiliates be liable for any indirect, special, exemplary, incidental or consequential damages of any kind, including but not limited to loss of revenue, profits, savings, loss of business or other financial loss, costs of standstill or delay, lost or corrupted data, arising out of or in connection with this Agreement regardless of the form of action, whether in contract, tort (including strict negligence) or any other legal or equitable theory, even if a party or its affiliates have been advised of the possibility of such damages, or if a party or its affiliates’ remedy otherwise fails of its essential purpose.
7.4 Force Majeure
Neither party shall be liable to the other party for the delay in any performance or failure to render any performance under this Agreement when such failure or delay finds its cause in a case of force majeure, such as governmental regulations, fire, strike, war, flood, accident, epidemic, embargo, appropriation of plant or product in whole or in part by any government or public authority, or any other cause or causes, whether of like or different nature, beyond the reasonable control of such party as long as such cause or causes exist.
8 General Provisions
8.1 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the conflict of law principles thereof. Subject, however, to the provisions of the previous paragraph relating to arbitration, each of the parties irrevocably submits to the jurisdiction of any state or federal court located in Delaware, over any action, suit or proceeding to enforce or defend any right under this Agreement or otherwise arising from any transaction existing in connection with this Agreement. Nothing in this provision shall authorize or entitle Customer to file a lawsuit or legal action in any federal or state court in Delaware if Reserva Inc asserts its right to demand arbitration under the previous paragraph of this Agreement. If any provision of this Agreement is found to be invalid, such invalidity shall not affect any other provision hereof.
8.2 Severability
In case any one or more of the provisions of this Agreement or any application thereof shall be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement and any application thereof shall be in no way thereby affected or impaired. Both parties undertake to replace any invalid, illegal or unenforceable provision of this Agreement by a valid provision having the same effects and objectives.
Marketplace Master Agreement & Terms of Service
This Account Matching Agreement (“Agreement”) is made and entered into by and between Reserva Food Systems, Inc. (“RFS”), a Delaware Corporation and you (“PRODUCE SELLER”).
RECITALS
WHEREAS, RFS is in the business of publishing supply and demand information of perishable commodities supported by a proprietary matching algorithm (the “Matching Program”);
WHEREAS, PRODUCE SELLER has been or will be engaged in the business of selling perishable commodities and other food products to food product buyers in conjunction with RFS’s Matching Program;
WHEREAS, RFS and PRODUCE SELLER would like to enter into a relationship with each other whereby PRODUCE SELLER advertise its products in RFS's platform to procure sales from RFS’s clients;
NOW, THEREFORE, in consideration of the premises and the mutual promises set forth herein, RFS and PRODUCE SELLER agree as follows:
DEFINITIONS
“Buyer” is a client of RFS's platform, interested in obtaining produce from PRODUCE SELLER.
“Publish” is the action of making a party’s information available to the public via RFS’s platform.
“Platform”, an enterprise software system owned by RFS consisting of business applications and processes supported by a matching algorithm to connect marketplace participants.
AGREEMENT
PRODUCE SELLER shall provide to RFS a list of products that PRODUCE SELLER wishes to publish in RFS platform.
PRODUCE SELLER shall Publish its list of available products and prices (“OFFER”) in RFS’s platform.
RFS shall make PRODUCE SELLER’s OFFER available to Buyers enrolled in RFS’s Platform.
Buyers interested in products from PRODUCE SELLER shall be matched by RFS whereby they can meet and discuss the details of the proposed sale/purchase.
For this RFS shall receive compensation of 6% of the sale amount.
All invoices generated as a result of this agreement shall be paid using RFS’s payment platform.
LIMITATIONS
This agreement shall only apply to sales generated as a result of RFS's introduction of PRODUCE SELLER with Buyer and shall NOT apply to PRODUCE SELLER's existing sales with existing Buyers.
RFS shall not be liable to PRODUCE SELLER for any reason for any consequential damages or economic loss whatever, whenever and however arising, including, without prejudice to the generality of the foregoing, any loss of profits, present or prospective, or any loss in connection with any expenditure, investment or commitment made by PRODUCE SELLER relating to its duties hereunder.
CONFIDENTIALITY
PRODUCE SELLER acknowledges that it has or will receive Confidential and Proprietary Information of RFS and or Food Customer Information in confidence and agrees that it shall not communicate, divulge or use the aforementioned Confidential and Proprietary Information for any purpose other than performing this Agreement.
During the term of this Agreement and for two years thereafter, PRODUCE SELLER agrees not to use the aforementioned Confidential and Proprietary Information for the benefit of PRODUCE SELLER or any person, entity, partnership or corporation other than RFS.
PRODUCE SELLER shall take all necessary precautions to keep confidential the Confidential and Proprietary Information and shall take all necessary precautions to assure observation of this Agreement by its Representatives. PRODUCE SELLER shall in any event be responsible for any breach of this Agreement by any Representative.
PRODUCE SELLER acknowledges that he has been advised and herewith agrees that the Confidentiality provisions set forth in this section are a specific and material condition of this Agreement, is being furnished in consideration for the hiring of PRODUCE SELLER as an Independent Contractor and that the PRODUCE SELLER understands that this Agreement would not have been entered if he did not consent to the Confidentiality provisions stated herein.
PRODUCE SELLER acknowledges and agrees that the RFS would not have an adequate remedy at law and would be irreparably harmed in the event that any of the Confidentiality provisions of this Section of the Agreement were not performed in accordance with their specific terms or were otherwise breached. Accordingly, PRODUCE SELLER acknowledges and agrees that RFS or such person within RFS shall be entitled to injunctive relief to prevent breaches of this Agreement and to specifically enforce the terms and provisions hereof, without proof of actual injury or damages, in addition to any other remedy to which RFS or such person within RFS may be entitled at law or in equity. PRODUCE SELLER hereby agrees not to oppose the granting of such relief, and to waive, and to use its best efforts to cause its Representatives to waive, any requirement for the securing or posting of any bond in connection with such remedy.
PRODUCE SELLER’S REPRESENTATIONS AND AGREEMENTS
Authority: PRODUCE SELLER warrants and represents that:
As of the date of this Agreement and throughout the term of this Agreement, PRODUCE SELLER is in good standing under the laws of the jurisdiction of its domicile; and it has and will have the requisite power and authority to enter into and perform this Agreement;
This Agreement has been duly authorized, executed and delivered to RFS and constitutes a valid, legally binding and enforceable agreement, except as such enforcement may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium, or other laws relating to or affecting the rights of creditors generally, and by general equity principles;
As of the date of this Agreement and throughout the term of this Agreement, PRODUCE SELLER is authorized to do business in the states or countries in which he will perform his duties under this Agreement.
The execution and performance of this Agreement will not violate any provision of any organizational document, by law, article of incorporation or organization, instrument, agreement, judgment, order, statute or regulation by which PRODUCE SELLER is bound to which it is a party or require the consent of any other person or governmental authority (unless such consent has been obtained); and,
There is no action, proceeding, or investigation pending, or, to PRODUCE SELLER’s knowledge, threatened, that has or would have an adverse effect on PRODUCE SELLER’s performance of its obligations under this Agreement or which questions the validity of the Agreement or of any action taken or to be taken pursuant thereto.
INDEMNIFICATION AND RELEASE
PRODUCE SELLER shall indemnify, defend, and hold harmless RFS and its parent corporations, subsidiaries, affiliates, and directors, officers, agents, and employees, successors and/or assigns, including, but not limited to RFS from and against any and all damage, loss, liability, cost, actions, causes of action, claims, demands or expense both direct and indirect (including without limitation reasonable legal and accounting fees and expenses actually incurred) by whomsoever asserted, including, but not limited to, the claims;
arising out of the actual or alleged performance of PRODUCE SELLER’s duties under this Agreement;
arising out of any alleged act or omission engaged in by PRODUCE SELLER on RFS’s behalf or purportedly within the scope of the agency created by this Agreement;
arising out of any claim of discrimination or other unlawful, illegal or fraudulent act or omission purportedly engaged in by PRODUCE SELLER;
arising out of any claim for debts, expenses, financial commitments or obligations of any kind made or incurred by PRODUCE SELLER that were not expressly authorized in writing by RFS;
arising out of any claim of actual or alleged fraud or misrepresentations attributable to PRODUCE SELLER;
arising out of any claim that PRODUCE SELLER violated any local, state or federal law or ordinance;
arising out of any claim that PRODUCE SELLER engaged in any negligent, careless or reckless act or omission that resulted in personal injury or damages;
arising out of PRODUCE SELLER’s negligent, careless or otherwise culpable selection or employment of PRODUCE SELLER’s Employees or Contractors or Assigns,
arising out of PRODUCE SELLER’s failure to pay any applicable taxes, withholdings, penalties, interest, and audit fees or interest.
TERM/TERMINATION
Term: This Agreement shall be effective for a period of twelve (12) months from the date hereof unless earlier terminated pursuant to the terms set forth in paragraphs 3 and 4 of this section.
Renewal: This Agreement shall be deemed automatically extended for successive terms of twelve (12) months unless earlier terminated as set forth herein.
Termination: Either RFS or PRODUCE SELLER may terminate this Agreement without cause as of an effective date upon written notice to the other party.
Effect of Termination: Immediately upon expiration or termination of this Agreement, PRODUCE SELLER shall:
discontinue its access and usage of RFS’s platform and any other services relating to the Matching Program or sales made or contemplated pursuant thereto.
promptly return to RFS all customer lists, manuals and other documents or property relating to or furnished by RFS to PRODUCE SELLER;
Termination of this Agreement: Termination of this agreement shall not release PRODUCE SELLER from the obligation to perform any duty or discharge any liability arising before such termination or from PRODUCE SELLER’s indemnity obligations under this Agreement.
Assignment
PRODUCE SELLER shall not have the right to assign or subcontract this Agreement or any of its duties, obligations or rights hereunder without the prior written consent of RFS.
RFS may assign this Agreement, in whole or in part, to its subsidiary or to any purchaser or transferee to whom RFS may sell or transfer this Agreement, without the consent of PRODUCE SELLER.
Exclusivity
PRODUCE SELLER agrees that for a period of two (2) years, it shall not engage in solicitation, diversion or taking away of any customers of RFS, directly or indirectly, for the benefit of PRODUCE SELLER or on behalf of any person, partnership, corporation or association other than RFS.
Successors in Interest
Except as otherwise provided herein, this Agreement and all of the terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Arbitration
At RFS’s sole option, any dispute, disagreement, difference, or controversy between PRODUCE SELLER and RFS arising out of or related to;
this Agreement or the construction, operation, or application of any term, provision, or condition of this Agreement; or
the breach, termination, enforcement, interpretation or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, or
PRODUCE SELLER’s performance or non-performance of any acts or omissions as an Account Executive of RFS
shall be determined by arbitration in New York before a panel of three arbitrators, which shall consist of: (1) a Chairperson, who shall be a neutral arbitrator selected by mutual agreement of RFS and PRODUCE SELLER, (2) a neutral arbitrator who shall be selected by RFS from a panel or arbitrators provided by JAMS, who is independent of RFS, and (3) a neutral arbitrator who shall be selected by PRODUCE SELLER from a panel or arbitrators provided by JAMS, who is independent of PRODUCE SELLER.
The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction in New York.
The decision of the arbitration panel shall be final, conclusive, and binding upon PRODUCE SELLER and RFS, and may be entered as a judgment in any court of competent jurisdiction. The non-prevailing party shall be responsible for and pay the costs and expenses of the arbitration, its own attorneys’ fees, and the attorneys’ fees and disbursements of the prevailing party. Nothing in this paragraph shall be construed as requiring RFS to arbitrate any claim or to prevent RFS from seeking equitable relief in any state or federal court located in New York.
Governing Law; Forum Selection; Severability:
This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to the conflict of law principles thereof. Subject, however, to the provisions of the previous paragraph relating to arbitration, each of the parties irrevocably submits to the jurisdiction of any state or federal court located in New York, over any action, suit or proceeding to enforce or defend any right under this Agreement or otherwise arising from any transaction existing in connection with this Agreement. Nothing in this provision shall authorize or entitle PRODUCE SELLER to file a lawsuit or legal action in any federal or state court in New York if RFS asserts its right to demand arbitration under the previous paragraph of this Agreement. If any provision of this Agreement is found to be invalid, such invalidity shall not affect any other provision hereof.
Waiver
No modification or waiver of any provision of this Agreement, nor any consent to any departure by RFS therefrom shall in any event be effective unless the same shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Neither any failure nor any delay on the part of RFS in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall a single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The fact that RFS may agree to participate in, investigate or otherwise authorize a specific transaction to import or sell a food product shall not constitute a waiver of any term, provision, covenant, warranty, representation or condition of PRODUCE SELLER or constitute a waiver of any of RFS’s rights under this Agreement.
Entire Agreement: Amendments
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, representations, and understandings. All changes, additions, or deletions to this Agreement must be made in writing and signed by each of the parties hereto; provided, however, that RFS may from time to time amend or update its guidelines by delivering program announcements, bulletins and the like to PRODUCE SELLER, each of which shall be effective as indicated therein.
Acceptance
This Agreement shall become binding upon acceptance by RFS at its home office in Syracuse, New York