These Master Terms and Conditions (“Terms and Conditions”) apply to every purchase, sale, shipment and delivery of every type of goods (“Goods”) and all performance of every service (“Services”) furnished by Company to Serv-U-Success or any intended Affiliate, unless otherwise agreed in writing by Serv-U-Success and Company. These Terms and Conditions are an integrated component of a Purchase Agreement or any other document to which these Terms and Conditions are incorporated (collectively, the “Contract Documents”). In the event of a conflict of terms within any of the applicable Contract Documents, the term with the more stringent requirement imposed upon Company shall control.
1. Affiliate Defined. For purposes of the Agreement, “Affiliate” or “affiliate” means any corporation, company, partnership, trust, sole proprietorship, or other entity or individual that (a) is owned or controlled by a party, in whole or in part; (b) owns or controls a party, in whole or in part; (c) is under common ownership or control with a party, in whole or in part; or (d) a party represents through an intercompany operating services agreement.
2. Orders and Invoicing. The parties’ written or electronic agreement to these Terms and Conditions do not commit Serv-U-Success to order, purchase or accept any Goods or Services. All orders of Goods and Services by purchase order or otherwise (each an “Order”) will be made according to these Terms and Conditions. Company will send Serv-U-Success written confirmation of each order, including quantity, pricing, and item descriptions (size, grade, and pack), within 24 hours of Company’s receipt of the order. Serv-U-Success will not be obligated to pay for Company’s Goods or Services not invoiced by Company within 180 days after the date the Goods were received or the Services were rendered, provided that the failure to issue an invoice was not caused by Serv-U-Success’s act or omission. Company agrees to participate, at its own expense, in Serv-U-Success’s online invoicing system (“Payment System”) and will only electronically invoice Serv-U-Success through the Payment System. If Company submits a paper invoice, Company agrees that Serv-U-Success may charge or debit Company a reasonable administrative fee from any such paper invoice to partially compensate Serv-U-Success for manually processing Company’s invoice. At Serv-U-Success’s request, Company will provide documentation reasonably requested by Serv-U-Success to substantiate Company’s invoices. Company will retain all Serv-U-Success records of purchases and payments for a period of two (2) years after the end of the calendar year in which they occur. These records will be made available to Serv-U-Success upon request and at no charge. Serv-U-Success may immediately terminate each Order without liability to Company if any of the following events (or any other similar or comparable events; each, a “Company Insolvency”) occur: (i) Company’s insolvency; (ii) Company’s inability to promptly provide Serv-U-Success with adequate and reasonable assurance of Company’s financial capability to timely perform any of Company’s obligations under any Order; (iii) Company’s filing of a voluntary bankruptcy petition; (iv) the filing of an involuntary bankruptcy petition against Company; (v) appointment of a receiver or trustee for Company; or (vi) Company’s signature on an assignment for the benefit of its creditors. Company will reimburse Serv-U-Success for all costs incurred by Serv-U-Success related to a Company Insolvency, including all attorneys’ fees and other professional fees. (vii) Unless stated otherwise in the Order, payment terms are net 60, and all payment terms will be based on the receipt date of that product at a Serv-U-Success/Meijer warehouse.
3. Set-Offs for Claims. All amounts payable to Company will be subject to all Serv-U-Success claims and defenses. Serv-U-Success may set off and deduct against any such amounts all Company indebtedness to Serv-U-Success. By posting on the Payment System or providing other notice, Serv-U-Success will provide a debit memo or vendor charge back to Company stating the amount of the setoff. If Serv-U-Success posts on the Payment System or provides other notice, Company will have unconditionally accepted each debit memo or vendor charge back within 90 days following receipt unless it notifies Serv-U-Success in writing during that period as to why the deduction should not be made. This written notice and all other Company claims against Serv-U-Success must be submitted to Serv-U-Success only through
ap@serv-u-success.com unless otherwise indicated. Company agrees to pay a reasonable administrative fee to Serv-U-Success for each claim submitted to Serv-U-Success in any manner other than through this claims management process.
4. Representations, Warranties, and Covenants. Company represents, warrants, and guarantees that: Company is solvent, is not under any threat of insolvency, is able to pay its obligations as they become due, and will notify Serv-U-Success immediately if Company becomes insolvent or otherwise becomes unable to pay its obligations;
4.1. Company and its management personnel have not, for at least seven years before the date of Company’s first shipment of Goods to Serv-U-Success, been found guilty, or pled guilty to any felony charge;
4.2. Company, its subsidiaries, and their directors, officers, agents, employees, or other persons associated with or acting on behalf of the Company or any of its subsidiaries:
4.2.1. Are not currently in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977, as amended, and its rules and regulations (collectively, “FCPA”) by using corporate funds for unlawful contributions, gifts, entertainment, facilitation, or other unlawful expenses relating to political activity or to influence official action; making direct or indirect unlawful payment to a foreign or domestic government official or employee from corporate funds; or making a bribe, rebate, payoff, influence payment, facilitation payment, kickback, or other unlawful payment; and
4.2.2. Have disclosed to Serv-U-Success in writing any past violations of the FCPA or any other anti-bribery or anti-corruption law.
4.3. Company’s business license is validly issued from the requisite governing authority;
4.4. Company and its principal operators are not included on any searchable denied party or politically exposed person watch list database and will not be at any time during Serv-U-Success’s relationship with the Company;
4.5. Company is not prohibited from consummating the transactions contemplated by (i) an Order; (ii) any applicable law, agreement, instrument, or restriction; or (iii) a judgment, order, or decree of any governmental authority having jurisdiction over Company or its property;
4.6. On behalf of itself and its suppliers and service providers that it and its suppliers and service providers, as applicable, comply with and remain in compliance with the Tariff Act, as amended by the Customs Modernization Act, its implementing regulations, and all other laws and regulations enforced by U.S. Customs and Border Protection;
4.7. Company shall comply with all applicable laws and regulations in connection with the performance of its obligations under this Agreement, including in relation to any materials, parts, chemicals and other goods, including those arising from the Food, Drug and Cosmetic Act, 21 U.S.C. § 301 et seq., Consumer Product Safety Act as amended by the Consumer Product Safety Improvement Act, 15 U.S.C. §§ 2051 et seq., the Federal Trade Commission Act, 15 U.S.C. §§ 41 et seq., the Flammable Fabrics Act, 15 U.S.C. §§ 1191 et seq., the Wool Products Labeling Act, 15 U.S.C. §§ 68 et seq., the Fur Products Labeling Act, 15 U.S.C. §§ 68 et seq., the Textile Fiber Products Identification Act, 15 U.S.C. §§ 70 et seq., the Fair Packaging and Labeling Act, 15 U.S.C. §§ 1451 et seq., the Federal Hazardous Substances Act, 15 U.S.C. §§ 1261 et seq., and the Safe Drinking Water and Toxic Enforcement Act of 1986, Cal. Health & Safety. Code §§ 25249.5 et seq. (commonly known as “Proposition 65”), and any successor thereto; shall satisfy any legal requirements related to any need to file continuing guarantees related to, or otherwise comply with, the Convention of International Trade & Endangered Species and shall satisfy any other legal requirements applicable to the shipment, handling, distribution and/or sale, of the Products; and Supplier shall not do or permit anything to be done that might cause or otherwise result in a breach by Serv-U-Success of the same;
4.8. Company’s performance of its obligations under any Order will not be in violation of or cause a default under any applicable law, agreement, instrument, covenant, condition, restriction, judgment, order, or decree;
4.9. Company has the right and authority to enter into these Terms and Conditions and to make all of the grants and assignments and to undertake the obligations required by these Terms and Conditions;
4.10. Company knows of no condition that would be likely to limit Company’s ability to perform these Terms and Conditions;
4.11. The behavior and conduct of Company, its subsidiaries, and their directors, officers, agents, employees, or other persons associated with or acting on behalf of the Company or any of its subsidiaries neither materially damages nor is reasonably likely to materially damage the public image of Serv-U-Success (any such conduct being grounds for immediate termination of the Agreement, or any part thereof, by Serv-U-Success in its sole discretion);
4.12. Company shall obtain Serv-U-Success’s written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Company, other than Company’s employees, to provide any Services to Company. Serv-U-Success’s approval shall not relieve Company of its obligations under the Agreement, and Company shall remain fully responsible for the performance of each such subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Company’s own employees (nothing contained in this Agreement creating any contractual relationship between Serv-U-Success and any Company subcontractor or supplier);
4.13. Company and all of Company’s direct and indirect suppliers, subcontractors, or all other provider of goods and services related to any Goods and/or Services provided hereunder shall comply with Serv-U-Success’s Supplier Code of Conduct, any non-compliance being grounds for immediate suspension or termination, at Serv-U-Success sole discretion;
4.14. Company’s and Serv-U-Success’s grievance mechanism details are communicated to all workers related to any Goods and/or Services provided hereunder, in a language all workers understand; Company’s grievance mechanism are operational, reported on and promptly addressed (without retaliation) by Company;
4.15. All persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Company, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
4.16. If personal data of Serv-U-Success employees or customers, including personal health information, (“Data”) is created or accessed by Company or is in any way connected to the fulfilling of an Order, Company represents and warrants:
4.16.1. he handling, including the transfer itself, of any Data by Company to Serv-U-Success has been, and will continue to be, carried out in accordance with all applicable data protection and privacy laws and Serv-U-Success’s standard protocol and practices as set forth in the Contract Documents;
4.16.2. Company will treat all Data confidentially and handle all Serv-U-Success Data in accordance with all applicable data protection and privacy and security laws and applicable provisions of these Terms and Conditions and any Business Associate Agreement;
4.16.3. To deal promptly and properly with all reasonable inquiries from Serv-U-Success, a Serv-U-Success Data subject, or a competent supervisor authority relating to Company’s handling of Serv-U-Success Data; Company will notify Serv-U-Success of any request for Serv-U-Success Data from any governmental agency and must obtain Serv-U-Success’s consent prior to the release of Serv-U-Success Data to any governmental agency; and
4.16.4. If credit card information is handled by Company, Company will comply with PCI Security Standards Council® standards for handling and processing credit card information;
4.16.5. If Protected Health Information or PHI (including E-PHI) is being created, received, maintained, transmitted, used, accessed by or to Company or any subsidiary or subcontractor of Company, Company and such subsidiary and contractor is bound by Serv-U-Success’s Business Associates Agreement.
The warranties and obligations contained in these Terms and Conditions the Contract Documents are in addition to all other warranties, express, implied or statutory; will survive Serv-U-Success’s payment, acceptance, inspection or failure to inspect any Goods or Services furnished. Company cannot limit or disclaim these warranties. Serv-U-Success may avail itself of all remedies available at law or in equity for any breach of these warranties. At the request of Serv-U-Success, Company will provide to Serv-U-Success reasonable evidence of Company’s compliance with the above warranties. Company will be considered to have made these representations and warranties anew upon acceptance of each Order.
5. Compliance with Laws.
5.1. Company will comply with all applicable laws and regulations in the performance of its obligations and exercise of its rights under this Agreement.
5.2. Company will label or mark the finished products as required by Serv-U-Success and as required by all applicable laws and regulations.
5.3. Company will provide at its sole expense information and data to Serv-U-Success upon Serv-U-Success’s reasonable request in connection with applicable laws and regulations requiring the collection and reporting of Product information, including but not limited to extended producer responsibility requirements, climate disclosure requirements, and other similar sustainability requirements.
6. Indemnity. Company agrees to indemnify, defend, and hold harmless Serv-U-Success; its parent, subsidiary, and affiliated companies, and their respective officers, directors, shareholders, partners, employees, and agents (“Related Parties”) from and against any and all claims, demands, actions, proceedings, lawsuits, fees, government-imposed fines or penalties, liabilities, losses, damages, judgments, settlements, costs, and expenses (including, as applicable, reasonable actual attorneys’ fees, internal legal personnel and administrative costs, expert witness fees, costs associated with a product investigation or mandatory or voluntary recall or other corrective action and all other costs) incurred by Serv-U-Success or any Related Party ( “Losses”), including claims for bodily injury to, or sickness or death of, any person (including Company’s employees or agents), or property damage or destruction (including loss of use and proprietary rights infringement) actually or allegedly arising out of (i) any breach of the Agreement; (ii) the infringement (directly, indirectly, contributorily, or by inducement), misappropriation or other violation, of any third party’s patent, trademark, copyright, trade secret, or other proprietary rights involving any Goods or Services provided under the Agreement; (iii) the presence of Company’s employees, agents, contractors, subcontractors, or equipment at a Serv-U-Success or a Serv-U-Success Affiliate facility; (iv) Company’s violation of law; (v) data breach; (vi) the negligent, willful or fraudulent act or omission of Company or any of Company’s employees, agents, contractors, or subcontractors; (vii) the use, operation, placement, maintenance, repair or removal of any equipment owned by Company that is located on or about Serv-U-Success’s or its affiliates’ premises; (viii) any handling, shipment, delivery, stocking, consumption, or use of Goods sold or received or any Services; or (ix) any seizure, detention or destruction of any Goods or in Serv-U-Success’s reasonable opinion, any warning, indication or risk thereof, whether under the authority of any governmental authority, court order, or with the commercially reasonable approval of Serv-U-Success or any subsequent purchaser. These indemnity and defense obligations include claims of Company’s employees, agents, contractors and subcontractors and claims alleging or involving Serv-U-Success’s joint, concurrent, or comparative negligence. Company shall be responsible for incidental and consequential damages arising out of failure to deliver, or delay in delivery of goods, due to noncompliance with FSVP or any other violation of the FDCA. Company agrees to give Serv-U-Success the right to approve or select counsel for defending Serv-U-Success or the Related Parties against any and all claims, liability, and damages covered by this indemnity provision. The indemnification obligations under this section are not limited in any way by insurance limits or any limitation on the amount or type of damages, compensation, or benefits payable by or for the Company or anyone directly or indirectly employed by them under workers’ compensation acts, disability benefit acts, or other employee benefit acts.
7. Insurance.
7.1. Required Coverages. Company must keep in force, at Company’s sole expense, insurance coverage covering claims arising out of Company’s obligation under the Agreement, including the following insurance coverages
(“Required Coverages”):
7.1.1. Commercial General Liability (
“CGL”), including coverages for premises/operations, products/completed operations, independent contractors, property damage, personal/advertising injury, and contractual liability, in an amount not less than $3,000,000.00US per occurrence ($5,000,000.00US per occurrence for all Own Brand, control brand and Manufacturing Goods), and $5,000,000.00US in the aggregate. The CGL policy may not include any exclusions or endorsements that limit coverage for claims from incidents that are also covered by workers’ compensation or employer’s liability insurance. Serv-U-Success, Inc. and its subsidiaries must be named as additional insureds on an endorsement acceptable to Serv-U-Success that extends coverage to contractual liability and products liability. Serv-U-Success agrees that Company’s CGL Policy may be maintained by a combination of Company’s base policy in an amount no less than $1,000,000.00US per occurrence and an umbrella or excess policy, provided that such umbrella or excess policy meets all the requirements of this Section.
7.1.2. If Company is domestically organized or incorporated, Automobile Liability coverage for all owned, hired, and non-owned vehicles with a combined single limit not less than $1,000,000.00US.
7.1.3. If Company is domestically organized or incorporated, Workers’ Compensation coverage (including an alternate employer endorsement) for Company’s employees and contractors with statutory limits and Employer’s Liability coverage in an amount not less than $500,000.00US. If any state workers’ compensation law requires an express waiver by Company for Serv-U-Success to obtain indemnity from Company under the indemnification provision contained in the Agreement, this provision will be considered such waiver
7.2. Policy Requirements. Required Coverages must (1) be either an occurrence policy in effect through the expiration or termination of the Agreement or a claims-made policy to be maintained in force through and for three (3) years following the expiration or termination of the Agreement; (2) not contain a self-insurance retention; (3) not contain any exclusion for punitive damages where allowable by applicable law; (4) contain a specific provision that defense costs are supplemental and do not erode or exhaust the policy limits; (5) contain a specific provision waiving any and all rights of recovery, contribution, and subrogation against Related Parties and all of their respective insurers; (6) cover claims brought in the United States of America; (7) carry a commercially reasonable deductible or retention amount; (8) contain a provision that coverages evidenced will not be adversely modified or canceled without providing at least 10 days’ prior written notice to Serv-U-Success; (9) afford primary coverage; and be underwritten by an insurance carrier with an A.M. Best® rating of “A-” or better. Company will be solely responsible for payment of any deductible or retention.
7.3. Required Policy Certificates. Company must, within ten (10) days following effective date of these Terms and Conditions, and on each annual anniversary of the execution of the Agreement, send evidence of all Required Coverages to
ap@serv-u-success.com. If Company fails to timely provide proof of insurance, Serv-U-Success will have the right (but not the obligation) to terminate the Agreement or to stop or delay any payments or Orders to Company until proof of insurance is received. Such termination, stop, or delay will not be grounds for a cause of action against Serv-U-Success. Serv-U-Success’s failure to stop or delay any payment or Order, acceptance of an endorsement not compliant with this Section, or failure to identify non-complying coverage will not be construed as a waiver of Company’s obligations under this Section. Promptly upon the request of Serv-U-Success, Company must provide full copies of all insurance policies and declarations that establish the Required Coverages.
7.4. Effect on Indemnity Obligations. Company’s indemnity obligations and direct liability to Serv-U-Success specified in the Agreement will not be negated or reduced because Company has maintained the Required Insurance or because Company’s insurance carrier denies insurance coverage for, or refusal to defend, a claim for which Company is liable to Serv-U-Success under the Agreement.
7.5. Company’s Property. Company agrees that Company’s own equipment and personal property is placed or stored at Company’s own risk, wherever located. Company must insure Company’s own equipment and other personal property. Company releases Serv-U-Success from any loss, theft, damage, or destruction to Company’s equipment or other personal property Company brings onto facilities or locations of Serv-U-Success or Serv-U-Success’s Affiliates in furtherance of furnishing Goods or Services.
7.6. Waiver of Subrogation. To the extent any claim and loss is covered by the Required Coverages, Company waives all rights against Serv-U-Success and Serv-U-Success’s contractors, consultants, agents, and employees for damages, except for Company’s right to the proceeds of the Required Coverage. Company must require that all of Company’s contractors, consultants, agents, and employees give the same waiver in favor of Serv-U-Success.
7.7. Increased and Additional Insurance Coverages. Company acknowledges (i) that the insurance coverage requirements of this Section constitute Serv-U-Success’s minimum requirements for insurance coverages required of Company and (ii) that a specific Good or Service may require increased or additional insurance coverages for the nature of the Goods or Services as set forth in the Contract Documents.
8. Confidentiality. As used in this section,
“Confidential Information” means all information in any form (written, verbal or graphic, including such information stored on videotape or computer media), whether or not marked “Confidential,” including all product designs, product styles, product sourcing or product quantities; product plans, patterns or prints; computer software programs (both source and object code); computer hardware features and functionality; computer networks and systems; copyrights; trademarks; specifications; retail procedures; quality control data; trade and business secrets; financial and sales data; customer information including names, addresses, or other identifying information; personnel data; vendor relationships; business plans and projections; future new market areas; existing and contemplated investments; formulas; procedures; processes; contracts; correspondence; and similar or dissimilar information relating to a party’s business that is labeled as confidential or that a reasonable person ought to know is confidential. The receiving party will not copy, publish, or disclose the Confidential Information and will hold it in strict confidence. The receiving party may disclose the Confidential Information only to those of its agents, representatives, and contractors having a need to know the Confidential Information and who have been advised of the receiving party’s obligations herein. The receiving party will use the Confidential Information only for purposes directly related to the contemplated business transactions between the parties. Upon the disclosing party’s request, the receiving party will promptly destroy all Confidential Information and deliver a sworn statement to the disclosing party describing the circumstances of the destruction. The restrictions contained in this section do not apply to the receiving party’s use or disclosure of information that: (i) the receiving party independently develops; (ii) the receiving party receives from a third party whose disclosure does not violate any confidentiality law or obligation; (iii) is or becomes generally available to the public or in the industry in which the either party operates by means other than the receiving party’s unauthorized disclosure; (iv) at the time of disclosure the receiving party knew to be free of any obligation to keep it confidential, as evidenced by documentation in the receiving party's possession; (v) the disclosing party agrees in writing is free of such restrictions; or (vi) the receiving party is compelled to disclose by law (in which case the disclosure shall be narrowly tailored to disclose only Confidential Information to the party entitled by law to the disclosure and only to the extent compelled by law to disclose), but the receiving party will give reasonable notice to the disclosing party with a reasonable opportunity to object before disclosing the Confidential Information. No license under any trademark, patent, copyright, or any other intellectual property right is either granted or implied by the disclosing party’s disclosure of Confidential Information. Nor does disclosing Confidential Information constitute the disclosing party’s representation, warranty, assurance, guarantee, or inducement concerning the non-infringement of trademarks, patents, copyrights, mask-work protection rights, any other intellectual property rights, or other rights of third persons. Confidential Information may be now protected or become protected by U.S. trademark, copyright, or patent laws. The receiving party will not (i) infringe or otherwise violate any valid trademarks, copyrights, or patents protecting the Confidential Information; or (ii) remove or otherwise alter any trademarks, service marks, serial numbers, logos, copyrights, proprietary notices, or other indicia affixed on or attached to any Confidential Information. The term of confidentiality will commence on the date that the disclosing party first discloses Confidential Information to the receiving party and will continue for three years after the last time that the disclosing party disclosed any Confidential Information to the receiving party. The receiving party’s obligation to protect the disclosing party’s Confidential Information consisting of trade secrets will survive the termination of this agreement for any reason and will continue according to trade-secret law. If the receiving party is acquired by, merges with, or acquires a third party during the term of this agreement, this agreement shall be binding on a party’s successors and permitted assigns. The receiving party represents to the disclosing party that the receiving party is under no known obligation that would restrict it from complying with these confidentiality requirements
8.1. Unintentional Disclosure Notification. Company shall notify Serv-U-Success without undue delay, and in all cases within twenty-four (24) hours, after becoming aware of an unintentional disclosure of Confidential Information, including (but not limited to) any mistaken disclosure of the information through an act or omission by Company or a service provider to Company, or any theft of the information, such as in a data security incident or other crime, by an unknown third party.
8.1.1. Notification under this section shall be made to Serv-U-Success’s Chief Information Security Officer (CISO) at ciso@meijer.com and to Serv-U-Success’s privacy office at
privacyofc@meijer.com.
8.2. Further Notice and Mitigation. Where relevant, Company must send additional notice to Serv-U-Success under the previous section, providing Serv-U-Success with further information discovered by Company during any investigation into the incident. Company shall take all necessary corrective actions to mitigate the harmful effects and prevent the recurrence of any unintentional disclosure of Confidential Information.
9. Governing Law; Dispute Resolution.
9.1. Governing Law. Any Order, these Terms and Conditions, and all other contract documents referred to in those agreements, and all matters arising directly or indirectly from those agreements, including tort claims, will be construed only under Michigan law, excluding its choice of law provisions. The UN Convention on the International Sale of Goods will not apply to any transaction between the parties.
9.2. Arbitration. Any controversy or claim arising relating to any Order will be determined only by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The dispute will be heard and determined by one arbitrator if the claim is less than US$1 million (exclusive of interest) and three arbitrators if the claim is US$1 million or more (exclusive of interest), at least one of whom will be an attorney. If there are three arbitrators, the parties agree that one arbitrator will be appointed by each of the parties, and the third arbitrator will be appointed by agreement of the party-appointed arbitrators. No arbitrator has the authority to: (i) award relief in excess of what the Agreement provides; (ii) award punitive damages or any other damages not measured by the prevailing party’s actual damages; or (iii) order consolidation or class arbitration. Further, the arbitrators must give effect to any limitations on either party’s liability stated in the Agreement or in any applicable tariff, law, or regulation. The arbitration will be in Kent County, Michigan. The arbitration hearing will be held within 120 days of the date of the initial or preliminary hearing or conference. Any judgment on the award rendered by the arbitrators will be final and may be entered in any court having proper jurisdiction. The existence or results of any arbitration and any evidence presented during the course of the arbitration is considered Confidential Information. This section does not prevent either party from seeking injunctive relief, including specific performance, against the other party in any court of competent jurisdiction, before the commencement of arbitration or the joining of a dispute with a third-party claim.
9.3. Exceptions to Arbitration. The arbitration provision above will not apply in the following situations:
9.3.1. Third Party Claims. If a third party asserts a claim against either party in a court of law, the party over whom the claim is asserted by the third party may elect to submit any related dispute between the parties to the litigation by joining such dispute to the third-party claim litigation rather than arbitrating such claim as required by this section.
9.3.2. Defend Trade Secrets Act. If Serv-U-Success alleges Company, or its employee or agent, has misappropriated a Serv-U-Success trade secret, Serv-U-Success shall have the right to pursue all or any of its claims in Federal Court as permitted under the Defend Trade Secrets Act.
10. Proprietary and Intellectual Property Rights; Trade Secrets. Unless otherwise agreed in writing between the parties, all proprietary and intellectual property rights, title and interest in labels, plates, artwork, drawings, vignettes, specifications, patterns, recipes, formulae, packaging, designs, mask works, ideas, concepts, trade secrets, technical data, inventions (whether or not patented) works of authorship, processes, materials, specifications, reports, surveys, know-how, information relating to research and development, engineering, marketing, finances, financial models, pricing, customer lists, investors, employees, business and contractual relationships, business plans and strategies, or any other like item, if created by Serv-U-Success, created specially by Company for Serv-U-Success, or created jointly with Serv-U-Success, will vest absolutely, exclusively, and unconditionally with Serv-U-Success upon their creation without the need for any further act by Serv-U-Success. Company hereby assigns all such intellectual property rights it has in such work product to Serv-U-Success. Company agrees, at its expense, to perform all acts considered necessary by Serv-U-Success in obtaining and enforcing the full benefits, enjoyment, rights, and title throughout the world in the intellectual property rights assigned to Serv-U-Success under these Terms and Conditions. Company is permitted to retain copies of work product for archive purposes only. Company shall be liable for any misappropriation of a Serv-U-Success trade secret. However, Company shall have immunity from federal, state and local civil or criminal liability in such cases where a disclosure is made in confidence to a government official or an attorney solely for the purpose of reporting or investigating illegal activity or for use in a court proceeding filed under seal and disclosed only pursuant to court order.
11. Survival. The following will survive termination of these Terms and Conditions: (i) all obligations arising before termination and (ii) all provisions allocating responsibility or liability between Serv-U-Success and Company.
12. Assignment; Change of Control. Serv-U-Success has the right to assign all or part of the Agreement or any Order to a parent, subsidiary, or affiliated entity with notice to Company. All other assignments by either party require the prior written consent of the other party. Any assignment contrary to this section is void. Furthermore, in the event of a Change of Control (defined below) of Company, Serv-U-Success shall have the right to terminate this Agreement by giving written notice within 30 days of becoming aware of the Change of Control. Such termination shall take effect 30 days from the date of notice. For the avoidance of doubt, Company shall give Serv-U-Success prompt written notice upon a Change of Control of Company occurring. For the purposes of this clause, “Change of Control“ shall mean any sale or transfer of more than 50% of the voting shares or equity of Company, or the sale or transfer of substantially all of Company's assets relating to this Agreement.
13. Notices. Except as provided in section 8.1.1, Notices required to be sent to Company by these Terms and Conditions (except for routine business communications) must be in writing and may be sent to Company through email to the most current email address Company has provided to Serv-U-Success through Serv-U-Success’s online vendor portal or by certified mail or by a national overnight courier providing evidence of delivery (such as Federal Express, UPS, DHL, or Airborne) to the most current address Company has provided to Serv-U-Success through Serv-U-Success’s online vendor portal. Notices required to be sent to Serv-U-Success by the Agreement (except for routine business communications) will be sent by certified mail or by a national overnight courier providing evidence of delivery (such as Federal Express, UPS, DHL, or Airborne) to 2350 Three Mile Road, Grand Rapids, Michigan 49544 to the attention of Vendor Management with a copy emailed to Serv-U-Success’s Senior Vice President and General Counsel at
legal-notices@meijer.com. All notices will be considered to have been given on the day of receipt (or refusal to accept delivery).
14. Severability. The invalidity or unenforceability of any term or provision of the Agreement will not affect or impair the validity of any other provision or term.
15. No Partnership. The relationship between Serv-U-Success and Company is that of an independent contractor. Serv-U-Success does not, in any way or for any purpose, become a partner joint venture, joint employer, fiduciary, or a member of a joint enterprise with Company. Company has no authority to bind or commit Serv-U-Success to any obligation with any third party.
16. Publicity. Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting, or regulatory requirements beyond either party’s reasonable control, all media releases, public announcements, or public disclosures (including promotional or marketing material) by a party or a party’s employees or agents concerning the Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other party, are prohibited without the other party’s prior written consent. Nothing in this section shall prohibit Serv-U-Success from any marketing of retail Goods in the ordinary course of business.
17. Waiver. A party’s failure to insist upon or confirm the other party’s performance of any provision of these Terms and Conditions will not be considered a waiver of such provision. No act, omission, or oral statement constitutes a waiver unless confirmed in writing by the waiving party. No such waiver by either party is a waiver of any subsequent default unless specifically so stated in writing.
18. Limitation of Actions. Any legal action by Company against Serv-U-Success for nonpayment must be commenced within one year after Goods are shipped or Services are performed.
19. Time is of the Essence. Time is of the essence in Company’s performance of its obligations under these Terms and Conditions.
20. Force Majeure. Neither party will be held responsible for failure to perform its obligations under the these Terms and Conditions or any Order due to a Force Majeure Event (defined below) to the extent and for the length of time that performance is rendered impossible or commercially impractical; provided, however, upon the occurrence of a Force Majeure Event, the party that is unable to perform its obligations hereunder will promptly notify the other party in writing of the existence, nature, and expected duration of the Force Majeure Event and use all reasonable efforts to overcome the effects of the Force Majeure Event and resume performance as soon as reasonably practicable. If any Force Majeure Event affects Company’s ability to produce and deliver the Goods or Services, Company will immediately, at its expense, obtain the Goods from a third-party provider selected by Serv-U-Success to fulfill Orders during such Force Majeure Event. If the Force Majeure Event continues beyond ten (10) business days, either party may cancel the Order in its entirety or as it relates to the Product affected by the Force Majeure Event. A “Force Majeure Event” means an act of nature, strike, fire, flood, war, civil unrest, embargo, or any other cause which is beyond the reasonable control of Serv-U-Success or Company and materially prohibits the applicable party from performing. For the avoidance of doubt, an increase in the cost of furnishing Goods or Services alone does not constitute a Force Majeure Event. The process, rights, and obligations outlined in this section shall be subject to the parties' written agreement that a Force Majeure Event has in fact occurred and the degree to which such Force Majeure event has impacted the non-performing party's ability to perform.
21. Right to Audit; Diligence Requests. Serv-U-Success has the right to audit Company’s records to confirm compliance with the terms of these Terms and Conditions, including the Supplier Code of Conduct. Serv-U-Success or its designee may perform such audit at any time during regular business hours upon prior written notice. In the event of (i) any seizure or detention or in Serv-U-Success’s reasonable opinion, any warning, indication or risk thereof, or (ii) any diligence necessary to ensure compliance with the Supplier Code of Conduct, Company will, within 24 hours of any request, provide any requested documentation necessary to avoid, prevent or release such Goods or to establish compliance with the Supplier Code of Conduct, in each case, at Company’s expense.
22. Amendment. Serv-U-Success may amend the Agreement from time to time by posting an amended version on the Serv-U-Success online vendor portal and sending Company notice. The amendment will be considered accepted and become effective 30 days after notice is given unless Company provides notice to Serv-U-Success. Company’s continued selling of Goods to Serv-U-Success following the effective date of an amendment will confirm Company’s consent to the amendment. In the event Company notifies Serv-U-Success that it rejects the amendment, Serv-U-Success will have the right, but not the obligation, to terminate these Terms and Conditions or any Order or other agreement in effect between the parties at the time of rejection.
23. Remedies Cumulative. The remedies provided in these Terms and Conditions are cumulative, and the assertion by a party of any right or remedy will not preclude the assertion by the party of any other rights or the seeking of any other remedies.
24. Electronic Signatures. The Agreement may be signed in counterparts, each of which will constitute an original, and together will constitute one and the same document. Any signature or counterpart of these Terms and Conditions that is delivered by a party by facsimile transmission, email, electronic portable document format (PDF), or electronic signature platform will be considered an original signature of the party and binding upon the party for all purposes.
(end)
