|
1
<br /> DocuSign Envelope ID:635616B7-6ACD-4EEB-88AC-4B9B67CCB452 I
<br /> 0 i
<br /> i
<br /> I
<br /> (a) Entire Agreement;Conflicts.These Terms and the SOW attached hereto,together with the Limited Warranty,collectively
<br /> represent the full,final and comprehensive agreement and understanding of the Parties and any modification thereof shall not be effective
<br /> unless contained in writing and signed by both Parties. Any prior or contemporaneous agreements,whether oral or written,relating to the
<br /> subject matter discussed herein have been merged into these Terms,SOW,and Limited Warranty.In the event of any conflict between the
<br /> terms and provisions of these Terms and those of any SOW or other document,the following order of precedence will govern:(a)first,these
<br /> Terms;(b)second,these Terms and the Limited Warranty,excluding the SOW;(c)third,the SOW;and(d)fourth,any other documents
<br /> incorporated herein or in the SOW by reference.
<br /> (b) Severability. F.arh provision of these Terms shall be considered severable such that if any one provision or clause
<br /> conflicts with existing or future applicable law,or may not be given full effect because of such law,this shall not affect any other provision
<br /> of these Terms that can be given effect without the conflicting provision of clause;provided however,that such provision shall be modified,
<br /> to the minimum extent possible and necessary,to be enforceable to the fullest extent and in compliance with any such applicable laws,prior
<br /> to it being severed from these Terms in its entirety.
<br /> (c) No Right to Assign;Third-Party Beneficiaries. Neither party may assign these Terms without the prior written consent
<br /> of the other party.These Terms are for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein,
<br /> express or implied, is intended to or will confer upon any other Person any legal or equitable right,benefit,or remedy of any nature
<br /> whatsoever,under or by reason of these Terms.
<br /> I
<br /> (d) Governing Law:Venue;Equitable Relief. g
<br /> (i) Governing Law:Venue.These Terms and any SOW related thereto shall be governed by and construed in
<br /> accordance with the domestic laws of the state of Washington without giving effect to any choice of law or conflict of laws provision or rule
<br /> (whether of the state of Washington or any other jurisdiction)that would cause the application of the laws of any jurisdiction other than the
<br /> state of Washington.The Parties hereto agree that the exclusive jurisdiction and venue for any action brought between the Parties under these
<br /> Terms shall be the Superior Court for Snohomish County,Washington,or the federal courts residing in the Western District of Washington,
<br /> and each of the Parties hereby agrees and submits itself to the exclusive jurisdiction and venue of such courts for such purpose.In the event
<br /> of any litigation between the Parties hereto arising out of these Terms,the prevailing Party shall be allowed all reasonable attorneys'fees,
<br /> court costs and expenses incurred in such litigation,including all such expenses incurred on appeal,together with all reasonable costs and
<br /> disbursements necessary to enforce these Terms.
<br /> 1
<br /> (ii) Reserved.
<br /> (iii) Equitable Relief.Each Party acknowledges that a material breach by the other Party of these Terms may cause
<br /> the non-breaching Party irreparable harm,for which an award of damages would not be adequate compensation and,in the event of such a 1
<br /> material breach or threatened breach,the non-breaching Party will be entitled to seek equitable relief,including in the form of a restraining
<br /> order,orders for preliminary or permanent injunction,specific performance,and any other relief that may be available from any court,and
<br /> the Parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection
<br /> with such relief.These remedies are not exclusive but are in addition to all other remedies available under these Terms at law or in equity,
<br /> subject to any express exclusions or limitations in these Terms to the contrary.
<br /> 1
<br /> (e) Survival. The provisions of Sections 2,I 5 L and 10-11 shall survive the termination or expiration of these Terms.
<br /> (0 Notices. Any notice required or permitted by these Terms shall be in writing and delivered in person,sent by documented
<br /> overnight delivery service,mailed by certified or registered mail,postage prepaid,or sent via email to the appropriate designated address of
<br /> the intended recipient,transmission verification required,to the appropriate Party or Parties at the addresses referenced in the applicable
<br /> SOW,or to such other address as the Parties may hereafter designate to the other in writing.
<br /> (g) Force Maieure.A Party(referred to in this Section as a"Force Majeure Party")shall be excused from the performance
<br /> of its applicable obligation(s)under these Terms(other than the payment of any monies owed to the other Party,including,without limitation, i
<br /> any Purchase Price or Fees)to the extent that such performance is made commercially impracticable,illegal,or impossible by an event of s
<br /> Force Majeure that is beyond the Force Majeure Party's reasonable control, and the Force Majeure Party provides written notice of the
<br /> prevention within ten(10)business days of the occurrence of the Force Majeure event to the other Party(including details of the Force
<br /> Majeure event,its anticipated duration and any action being taken to avoid or minimize its effect)and uses commercially reasonable efforts
<br /> to avoid the effects of such Force Majeure and to perform the affected obligation(s)to the extent reasonably possible. Such excuse of g
<br /> performance shall be continued for(a)so long as the condition constituting Force Majeure continues and the Force Majeure Party takes s
<br /> reasonable efforts to remove the condition or otherwise perform the affected obligation(s)or(b)60 calendar days,whichever of(a)or(b)is g
<br /> lesser. For purposes of these Terms, "Force Majeure" shall mean only acts of God, strikes, civil disturbances, fires, earthquakes,
<br /> governmental order or proclamation,outbreak or pandemic,supply chain interruption(to the extent such interruption is not caused by the f
<br /> gross negligence of such Party),acts of terrorism,floods,explosions,riots,war,rebellion,sabotage or failure or default of public utilities or
<br /> common carriers.For clarity, notwithstanding the existence of a Force Majeure impacting a Party's performance hereunder,such Force
<br /> Pallet SPC—Master Product and Services Agreement 5 of 10
<br />
|