iFoodie Merchant Terms and Conditions
BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, MERCHANT AGREES TO THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED. INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.
Last updated: October 25, 2019
These iFoodie Merchant Terms and Conditions (“Terms“) are expressly incorporated into and made a part of the iFoodie Order Form (“Order Form”) (the Order Form and these Terms, collectively, “Agreement”) between you (“you” or “Merchant”). This Agreement shall govern the provision of Eats Services (as defined below) for all participants.
2.1 Items and Services.
iFoodie make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for food, beverages and other products (“Items“) from Merchant to Customers (as defined below), including marketing, advertising, onboarding, operational and other support services (“Eats Services”).
2.2 Merchant Technology.
In connection with the Eats Services, iFoodie will also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Eats Services (collectively, the “iFoodie Tools“), which may include iFoodie`s proprietary technology platform referred to as Backend Section, through which insights and analytics regarding Merchant’s performance and history using the Eats Services are provided, and referred to as Eatery Management Panel, through which Merchant may, among other things, fulfill requests from Customers.
2.3 Eats App.
iFoodie makes available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request discounts said Items from Participating Partners.
3. iFOODIE OBLIGATIONS.
3.1 Eats Services.
Subject to the terms and conditions of this Agreement, iFoodie will make available the applicable Eats Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location“), as set forth in an Order Form or otherwise agreed to by the parties in writing. In connection with the provision of Eats Services to Merchant, iFoodie, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the Eats App. In addition, iFoodie may make available certain iFoodie Tools to Merchant, and Merchant may access and use those iFoodie Tools solely in connection with Merchant’s use of the Eats Services. For the avoidance of doubt, as between Merchant and iFoodie, iFoodie will retain sole and absolute control over the Eats App (and all elements of the user experience and user interface relating to the Eats App), including with respect to: (i) the personalization of the Eats App for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) adding, removing or otherwise modifying any feature or functionality made available through the Eats App to optimize reliability or efficiency on the Eats App.
4. MERCHANT OBLIGATIONS.
4.1 Availability of Items.
Merchant will make Items available for purchase through the Eats App during its normal business hours. Merchant will prepare, handle and store all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards“). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare Items in accordance with Food Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), iFoodie may, in its sole discretion, remove such Item from the Eats App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Eats App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the Eats App is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu (including any notifications about ingredients, nutritional information, allergen information, etc.) are accurate and comply with all applicable laws and regulations.
4.2 Item Responsibility.
Merchant acknowledges and agrees that neither iFoodie to any Item at any time. Notwithstanding, Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. iFoodie may, in its sole discretion, in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Merchant’s retail license privileges.
In connection with the access to and use of the Eats Services and iFoodie Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Eats Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the iFoodie Tools or Eats Services (except as otherwise authorized by iFoodie); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Eats Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Eats App to directly or indirectly compete with iFoodie or its affiliates or the Eats Services. Furthermore, orders cannot weigh (in the aggregate) more than 10 US dollars. The following restricted Items may not be featured or sold via the Eats App: people or animals of any size, illegal items, alcohol, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, Items containing endangered species or any items that Merchant does not have permission to send.
4.4 Retail Prices; Taxes; Other Fees; Pricing.
Merchant is responsible for determining and setting the retail price for each Item to be made available for sale via the Eats App (“Retail Price“). Merchant is the “retailer” or “seller” of all Items and is solely responsible for the collection and remittance of all applicable Sales Taxes and other fees. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes. For the sake of clarity, the Retail Price for each Item excludes Sales Tax or any other fees. To the extent that applicable Sales Tax and other fees are not determined by Merchant hereby acknowledges and agrees that iFoodie will have no liability for the accuracy of any such determination.
Notwithstanding anything to the contrary in this Section 4, Merchant may not make any Item available to Customers through the Eats App at a price that is higher than the price that Merchant charges in-store for similar Items. Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.
iFoodie will provide Merchant aggregate information regarding the number of times the iFoodie app was used at the Eatery. To gain a ONE TIME discount by a customer.
5. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of iFoodie, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Eats Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by iFoodie or its affiliates in connection with making Items available through the Eats App in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of iFoodie’s Marks will conform to the current version of iFoodie Eat’s Brand LOGO at www.ifoodieapp.com. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that iFoodie or its affiliates may remove Merchant’s Marks from the Eats App if iFoodie or its affiliates receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
5.2 No Development.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between iFoodie and Company prior to the commencement of any such activities.
iFoodie and its affiliates may showcase the availability of Merchant’s Items via the Eats App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). iFoodie (or a party designated by iFoodie acting on iFoodie’s behalf) may take video and still images for marketing and other efforts related to the Eats App (“Eats Photographs“). Merchant agrees that Eats Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of iFoodie or its affiliates. Additionally, Merchant may provide videos, still image or other materials to iFoodie or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the Eats App or the marketing and promotion of iFoodie and the availability of your Items via the Eats App. Merchant hereby grants iFoodie and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Eats Services. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for iFoodie to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that iFoodie or its affiliates may remove Merchant Marketing Materials from the Eats App if iFoodie or its affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
6. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK.
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the Eats App and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes iFoodie and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by iFoodie and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by iFoodie solely by using the software and tools provided by iFoodie. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.
Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the iFoodie Tools and related Eats Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
5.4 Data Re-Identification Restriction.
Without limiting any other provision of this Agreement, including any provision in this Section 5, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Merchant may, but is not obligated to, provide or otherwise make available to iFoodie or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to iFoodie’s and its affiliate’s products and services (“Feedback“). However, to the extent that Merchant provides or otherwise makes available Feedback to iFoodie or its affiliates, Merchant hereby grants to iFoodie and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Eats App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the Eats App (“Customer Feedback“). iFoodie and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of iFoodie and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that iFoodie and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that iFoodie and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy or other applicable laws, or iFoodie’s or its affiliates’ content policies.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Representations and Warranties.
Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
8.1 Indemnified Claims.
You (“Indemnifying Party“) will indemnify, defend and hold harmless iFoodie, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Partyinfringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the iFoodie Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Merchant’s failure to determine the applicable Sales Tax and other fees charged, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (C) Merchant’s failure to apply correct sales tax rates, including those rates adjusted by iFoodie on Merchants behalf, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (D) Merchant’s failure to provide accurate descriptions of Items in Marketplace Facilitator Jurisdictions; or (E) Sales Tax, other fees, penalties, interest and other costs related to Merchants obligations, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of iFoodie or its employees, agents or Delivery Partners.
We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
9. LIMITS OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $10. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Thousand Dollars ($10,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Twenty Thousand Dollars ($20,000) in aggregate. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party.
11. TERM AND TERMINATION.
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term“) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving seven (7) days’ prior written notice of termination to the other party.
The territory of this Agreement is in the RESPECTIVE COUNTRY (“Territory“), and all payments issued under this Agreement must be in U.S. dollars. Merchant agrees to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of iFoodie or its affiliates. In this Agreement, “**including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. Unless otherwise agreed to by the parties, any modification or amendment to this Agreement will be effective only if in writing and signed by both parties, provided that, in the event the parties agree to modifications or amendments designed only to benefit Merchant as a result of renegotiation, iFoodie may issue notice of such modifications or amendments to Merchant as final agreement on such modifications or amendments, to expedite necessary changes to iFoodie’s internal systems. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with iFoodie, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the Eats App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event**”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.