1. Fresh Tech Terms and Conditions Control The Agreement
a. These terms and conditions are incorporated into and made a part of the quote or proposal or Scope of Work Agreement (collectively the “Agreement”) by Fresh AVL Co. d.b.a. Fresh Tech Integrated, its subsidiaries, and any of its affiliates (collectively, “Fresh Tech”) to sell to the Customer the Goods and Services as defined.
b. The Agreement expressly limits Customer’s acceptance to these terms and conditions. Customer may reject the Agreement by not ordering, purchasing, or receiving any Goods or Services. The Agreement does not constitute an acceptance by Fresh Tech of any offer or counteroffer of Customer, and Fresh Tech hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders, or other documents of Customer that already have been or hereafter may be presented to Fresh Tech with respect to the Agreement.
c. If Customer has submitted or will submit additional and/or different terms and conditions to Fresh Tech, or submit a counteroffer to Fresh Tech, Fresh Tech’s subsequent performance will not be construed as either acceptance of Customer’s additional and/or different terms and conditions or Customer’s counteroffer, nor will Fresh Tech’s subsequent performance be viewed as willingness to accept any provisions of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.
d. Any change to the agreed-to Agreement will be described in a written Change Order prepared by Fresh Tech which describes with reasonable specificity the proposed changes in service or goods to be delivered. No Amendment shall be effective unless jointly agreed to in writing by Fresh Tech and Customer. After signing, the Change Order becomes incorporated into the Agreement and subject to these terms and conditions. Change Orders can be required for reasons including but not limited to:
i. Conditions Not Immediately Apparent: Conditions not apparent to Customer or Fresh Tech upon first consultation and negotiation that may become apparent as the worked contracted for is completed. Examples include underlying technological issues or structural issues discovered upon installation.
ii. Price Allowances: Should the cost of materials exceed the allowed cost due to industry price increases or the Customer’s selection, for example the price of equipment increasing between estimation and purchase; or,
iii. Changes Desired by Customer: such as an upgrade to the equipment agreed upon.
e. Fresh Tech is an independent contractor and is not an employee or agent of the Customer. This Agreement shall not be deemed or construed to create a partnership, a joint venture, an employer/employee relationship or a principal/agent relationship between the parties hereto.
f. Due to the unpredictable nature of the Goods and Services and the constant potential for Change Orders, nothing in this Agreement shall obligate Fresh Tech to abide by any firm start or end dates to any project.
2. Goods and Services
a. Goods. The goods include the products and equipment as referenced on the proposal in the form of a quote, price sheet, Scope of Service Agreement and/or invoice (“Goods”). Customer purchase of Goods includes ownership and assumption of responsibility after shipment.
i. Fresh Tech reserves the right to replace proposed models in the case of obsolescence, discontinuation or unavailability with a comparable model of equal or greater value. If the comparable model exceeds the value of the original model, a Change Order will be submitted to the Customer for approval. Fresh Tech will not be held responsible if any Good becomes unavailable due to market conditions.
b. Services. The services include, technology and related services, including without limitation: consultation, installation, maintenance, repairs, material management, design, assembly and delivery services (whether performed by Fresh Tech or a subcontractor) referenced on the Scope of Work, Price Sheet and/or invoice (“Services”). Services do not include tear-down and removal of Goods. Any Services not covered by the Agreement will not be required to be performed by Fresh Tech.
3. Equipment Materials
a. The information contained in this Agreement is presented as an estimate. All products for this estimate are figured at mid-range price unless otherwise stated. Subsurface Conditions, Hidden Conditions, Price Allowances, and Changes Desired by Customer would increase the overall cost of the job described. Should such conditions occur during installation, cost for time and materials will be presented to the customer to determine the amount and extent of work to be completed to rectify the unforeseen damage.
b. Due to current market conditions, material prices presented on the estimate are valid for 30 days from the date on the estimate as submitted. This bid is not considered accepted until a contract has been signed and the Customer pays the agreed-upon deposit.
c. Customer purchase of Goods includes ownership and assumption of responsibility after delivery and, if relevant, installation. The Goods include products such as audio equipment (speakers, amplifiers, microphones), video equipment (cameras and projectors), lighting fixtures, custom manufactured equipment (wall plates, cable assemblies) or any other product that is listed on invoices or price sheets.
4. Timeline
a. The Goods will be delivered according to the Timeline set forth in the Scope of Work subject to the availability of the Goods. Fresh Tech is not responsible for any delay in delivery due to uncontrollable market conditions. Fresh Tech is not responsible for any delay in the timeline due to a change order, fire, labor dispute, or conditions set forth in Section 28.
5. Prices
a. Prices of Goods and Services set forth in the Scope of Work are estimated based on current market conditions. Prices are subject to change based on market conditions.
b. Customer will be invoiced the actual price of the Goods and Services (the “Fee”).
c. If such display or document fails to contain a listed Price or Fee, then Fresh Tech’s standard prices for such Goods and Services as of the date hereof shall be used in calculating the amount owed by Customer; provided, however, that Fresh Tech may change the price for the Goods and Services in accordance with any change to its standard pricing for such Goods and Services prior to the date of shipment of goods and/or performance of services.
d. Prices for any related work or materials, including but not limited to electrical, drywall, painting, cabinets are not included in the Fee, unless specifically documented in the Proposal, and will should be paid immediately by Customer upon receipt of invoice.
6. Taxes and Third-Party Fees
a. The purchase price of the Goods and Services may not include taxes. The Customer is responsible for payment of any transportation taxes, and any present or future sales, use, excise, import or any similar tax or other governmental charge applicable to the Agreement and pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods and Services.
b. The Customer is responsible for any applicable third-party fee, including, without limitation, credit card fees, telephone toll charges, mobile carrier fees, Internet Service Provider charges, and data plan charges.
7. Payment
a. By signing the Agreement, Customer agrees to pay the Fee according to the Payment Schedule as set forth in the Scope of Work Agreement.
b. All Fees not paid when due shall bear interest at the rate of eighteen percent (18%) per annum or the maximum rate allowed by law, whichever is higher. Additionally, the Customer shall be responsible for any and all fees and costs (including attorney’s fees) related to collection efforts incurred by Fresh Tech.
c. All payments for Goods and Services must be made in United States currency unless specified in writing by Fresh Tech. Payments for Goods and Services will be made by such means as Fresh Tech may specify, such as by cash, check, credit card, or bank transfer provided that Fresh Tech may refuse, in its sole discretion, payment by any meansFresh Tech shall have the right to offset any and all amounts due and owing from Fresh Tech to Customer under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Customer to Fresh Tech under this Agreement.Past due amounts are each subject to service charges of one and a half percent (1.5%) per month or the maximum percentage rate permitted by law, whichever is higher.
d. Fresh Tech shall have the right to offset any and all amounts due and owing from Fresh Tech to Customer under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Customer to Fresh Tech under this Agreement.
e. Past due amounts are each subject to service charges of one and a half percent (1.5%) per month or the maximum percentage rate permitted by law, whichever is higher.
8. Customer's Obligations
a. The Customer must provide Fresh Tech with accurate and complete information, documentation, and materials necessary and applicable for Fresh Tech to complete the Services, including, without limitation, permits, site plans, building plans, engineering (electrical, structural or mechanical), utilities, and all applicable codes, rules, and regulatory information as needed for installation. Compliance with any such rule, codes or regulations shall be the responsibility of the Customer, unless otherwise agreed.
b. The Customer must provide Fresh Tech with proof of ownership of the real property in which the work is to take place upon request, as needed for installation.
c. The Customer must provide unobstructed access to the site of installation.
d. The Customer is required to keep children and pets out of the work area in order to safely perform installation services.
e. The Customer is responsible for final proofreading of drawings and/or quotes before their release for equipment purchase or installation. In the event that Customer has approved work containing errors or omissions, Customer shall incur the cost of correcting such errors.
f. The Customer must make decisions and discharge other obligations in a timely fashion.
g. Customer is obligated to all other conditions set forth in any other part of this Agreement.
9. Specifications
a. Any departure from the agreed-upon Goods or Services will require a Change Order as described in Section (1)(d) and will entail additional charges.
b. Unless Fresh Tech has expressly agreed otherwise in writing, it is Customer’s responsibility to ensure that the Services provided are the ones that Customer has requested and are correct in all regards. FRESH TECH HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, MODELS OR SAMPLES RELIED UPON BY CUSTOMER.
c. Fresh Tech does not guarantee that product details in images are 100% accurate representations of the products depicted on drawings.
d. In the event of a typographical error relating to price or other contractual term described by Fresh Tech in the Agreement, Fresh Tech reserves the right to refuse to perform for the price in error and/or honor such erroneously stated contract terms.
10. Delivery of Goods; Performance of Services
a. Shipment of all Goods shall be made F.O.B. point of shipment. Customer shall bear the risk of loss and damage to Goods after delivery to the point of shipment.
b. Any shipping dates for Goods or performance dates for Services given in advance of actual shipment of Goods or performance of Services are Fresh Tech’ best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with Fresh Tech. Unless otherwise agreed to by Fresh Tech in writing, Fresh Tech may, in its sole discretion, use any commercial carriers for shipment of the Goods. Fresh Tech will use its reasonable efforts to comply with Customer’s requests as to method and route of transportation, but Fresh Tech reserves the right to use an alternate method or route of transportation, whether or not higher rate is charged.
c. Unless otherwise agreed to by Fresh Tech in writing, Customer will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
d. Customer is responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods and Services, including, without limitation, any licenses and permits for transportation.
e. If Customer is unable to receive the Goods when they are tendered, Customer will be liable to Fresh Tech for any losses, damages, or additional expenses incurred or suffered by Fresh Tech as a result of Customer’s inability to receive the Goods.
f. Customer immediately will inspect all Goods upon its receipt of them and will be deemed to accept the Goods upon receipt. Any claims for shortages or discrepancies will be waived by Customer unless made in writing to Fresh Tech within five days of receipt of the Goods.
g. Fresh Tech may cancel in whole or in part any order for Goods or Services under the Agreement at any time.
h. Until Customer has fully and finally paid all amounts owed to Fresh Tech for any Goods, Customer shall hold such Goods in trust for Fresh Tech, and Fresh Tech may repossess them if Customer fails to pay for them in a timely fashion.
11. Term
This Agreement is effective as of the date of signature of the Agreement or upon Fresh Tech receipt of initial payment, whichever is later, (the “Effective Date”) unless it expires or is earlier terminated by either party in accordance with the terms of this Agreement (the period from the Effective Date to expiration or earlier termination, the “Term”).
12. Termination
a. Fresh Tech may terminate the Agreement at any time upon written notice if Customer fails to pay any amount when due thereunder: (i) and such failure continues for thirty (30) days after Customer’s receipt of written notice of nonpayment; or (b) such failure occurs two (2) or more times in any three (3) month period.
b. Substantial completion is reached the moment the Customer can begin using the technology services purchased for its intended purposes (“Substantial Completion”).
c. Fresh Tech may terminate the Agreement without cause at any time, as determined at its sole discretion, and shall issue a pro rata refund of any unused Fees paid.
13. Cancellation
a. Customer may cancel its order for Goods and/or Services, but only if notice is provided by Customer in writing and Fresh Tech agrees to such cancellation in writing and only after Customer pays reasonable charges for expenses already incurred and commitments made by Fresh Tech in connection with the placement of such order(s).
b. Cancellations made less than 21 days in advance of date of shipment or delivery require payment in full for Goods and Services as ordered.
c. Deposits are non-refundable.
d. Fresh Tech may cancel in whole or in part any order for Goods or Services under the Agreement at any time.
14. Photography
Customer grants Fresh Tech permission to take photographs during consultation, installation, or other type of performance of services and authorizes Fresh Tech and its assigns and transferees to use and to copyright Customer’s likeness and that of Customer’s property in print and/or electronically in a photograph, video, or other digital media (“Photos”) in any and all of its publications, illustrations, and advertising, including social media and other web-based publications. Customer understands and agrees that all Photos will become the property of Fresh Tech and may not be returned. Customer irrevocably authorizes Fresh Tech to edit, alter, copy, exhibit, publish, or distribute these Photos for any lawful purpose for which Customer waives any right to inspect or approve the publication wherein Customer’s likeness appears. Customer understands that no payment, royalty, fee or other compensation shall become payable to Customer by use of the Photos. Customer affirms the consent of parent or guardian if necessary.
15. Survival
The rights and obligations of Fresh Tech and Customer as set forth in the Agreement shall survive its termination or expiration, including but not limited to, nondisclosure of Confidential Information and compliance with intellectual property rights.
16. DISCLAIMER OF WARRANTIES
a. Fresh Tech shall use commercially reasonable efforts to ensure the suitability and conformance of the Goods and Services.
b. FRESH TECH WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A PROFESSIONAL MANNER.
c. FRESH TECH HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT LAW OR IN EQUITY, WITH RESPECT TO THE GOODS AND SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH LAWS OR GOVERNMENT RULES OR REGULATIONS, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS.. FRESH TECH EXPRESSLY DISCLAIMS THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
d. GOODS DELIVERED ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND.
17. Limitation of Remedies
a. Customer’s sole remedy for all damages, which Customer may select to pursue upon notice to Fresh Tech at Fresh Tech’s discretion, but that must remain subject to the limiting language of Sections 16 and 17, shall be credit redeemable for future Services rendered by Fresh Tech equal to the full Fee listed in the Agreement.
b. If Customer or Fresh Tech has a claim or issue relating to the Goods and Services of the Agreement, such claim or issue will be disclosed by written notice to the other party within thirty (30) days of either the date of the occurrence of such claim or issue, or the date that such claim or issue becomes known, whichever is later. If any claim or issue is not disclosed to the other party within the timeframe stated above, then such claim or issue shall be deemed unenforceable and all rights to a remedy shall be totally forfeited.
c. The Customer’s EXCLUSIVE remedy against Fresh Tech for any claim for, or arising out of, any defect in a Good tendered to Customer is the repair or replacement of the Good, or alternatively, at Fresh Tech’s sole election, a refund of the purchase price of the Good.
d. These remedies only will only be available to the Customer for one year after the Good is tendered or Service is provided to the Customer, and Fresh Tech’ obligations under this Section will be void unless Customer provides Fresh Tech with notice of the defect in the Good or Service within 30 days of discovery of the defect.
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18. Limitation of Liability
a. NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL:
i. FRESH TECH BE LIABLE TO CUSTOMER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THE AGREEMENT OR THE SERVICES (EVEN IF FRESH TECH IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES), OR DAMAGES FOR COST OF REPLACEMENT GOODS; OR
ii. FRESH TECH’S TOTAL LIABILITY RELATED TO ANY GOODS OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOODS OR SERVICE.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESH TECH DISCLAIMS ALL LIABILITY RELATED TO AND EMERGING FROM PERSONAL INJURY TO THE CUSTOMER, WHETHER IN THE FORM OF STRESS, EMOTIONAL DISTRESS, ANXIETY, OR ANY OTHER TYPE OF INJURY, AND WHETHER INCURRED DIRECTLY OR INDIRECTLY FROM THE SERVICES OFFERED IN THE AGREEMENT.
c. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FRESH TECH DISCLAIMS ALL LIABILITY RELATED TO AND EMERGING FROM ANY NEGLECT OR WRONGDOING OF ANY OFFICER, AGENT, EMPLOYEE OR OTHER AFFILIATE OF LIFE OF FREEDOM.
19. Indemnification
Customer will indemnify, defend and hold harmless Fresh Tech, its members, officers, directors, employees, agents and representatives from and against all losses, damages, liabilities, costs, and expenses including, without limitation, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement or the Goods and Services, regardless of whether such Losses are suffered directly by Customer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each a “Claim”) and regardless of whether or not Fresh Tech or any third-party is proportionately negligent with respect to such Losses and/or Claim, provided that Customer need not indemnify Fresh Tech for Fresh Tech’s obligation, if any, to Customer under the remedies described herein. For the avoidance of doubt and without limitation, this indemnification obligation requires Customer to pay any judgments against Fresh Tech or any other indemnified party resulting from any Claim, any court costs of Fresh Tech or any other indemnified party in connection with any Claim, and any reasonable attorneys’ fees and disbursements incurred by Fresh Tech or any other indemnified party in Fresh Tech’s defense of any Claim. Fresh Tech will have the sole and exclusive right to conduct the defense of any Claim at Customer’s sole and exclusive cost and expense. Customer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against Fresh Tech, Customer or any third party.
20. Assignment
Neither party may assign or transfer the rights, duties, and obligations set forth in this agreement without the prior written consent of the non-assigning party.
21. Insurance
During the Term of this Agreement and for a period of 1 year after the last date of delivery of Goods and Services performed under the Agreement, Customer shall, at its own expense, maintain and carry insurance, in full force and effect that includes, but is not limited to, commercial general liability, and other applicable liability policies, each in a sum no less than $1 Million per occurrence with financially sound and reputable insurers. Upon Fresh Tech’s request, Customer shall provide Fresh Tech with certificates of insurance from Customer’s insurer(s) evidencing the insurance coverage specified. Customer shall provide Fresh Tech with 60 days’ advance written notice in the event of a cancellation or material change in any Customer’s insurance policy. The Parties shall assess and adjust insurance needs and requirements every 6 months or as frequently as the Parties agree.
22. Intellectual Property
a. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, proprietary methods, techniques, and information, methods, know-how, and other confidential information, trade dress, trade names, logos, company names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are provided to Customer under this Agreement in the course of performing the Services (collectively, the “Owned Intellectual Property”) shall be owned by Fresh Tech.
b. Fresh Tech hereby grants Customer a license to use all Intellectual Property Rights in the Owned Intellectual Property free of additional charge and on a non-exclusive, worldwide, non- transferable, non-sublicensable, fully paid-up, royalty-free, and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Owned Intellectual Property and the Services.
23. Lien Rights
Fresh Tech has the right to file a claim against the Customer’s property should the owner fail to pay according to this Agreement pursuant to Title 49 of Pennsylvania Statutes, Chapter 6, known as the Mechanic’s Lien Law of 1963. Fresh Tech reserves without limitation all rights available under that law. The failure of Fresh Tech to immediately exercise this right shall in no circumstances be deemed a waiver of such right. The Customers agree to pay all legal and attorney’s costs and fees associated with collecting payment under this Agreement.
24. Product Suitability
Goods sold by Fresh Tech are designed to meet stated U.S. safety standards and regulations. Because local safety standards and regulations may vary significantly, Fresh Tech cannot guarantee that the Goods meet all applicable requirements in each locality. Customer assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, delivered, and used. Before purchase and use of any Goods, Customer should review the national and local codes and regulations and verify that the use of the Goods will comply with them.
25. Laws
Customer hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Goods and Services. For purposes hereof, “Laws” means any national, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies, or guidance having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
26. Interpretation of the Agreement
a. None of Fresh Tech’s or Customer’s members, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement. The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Fresh Tech and Customer or by language included on the Scope of Work. Regardless of how many times Customer purchases, or has purchased, Services from Fresh Tech by whatever means, each time Customer accepts the Agreement, Customer and Fresh Tech enter into a separate agreement that will be interpreted without reference to any other agreement between Customer and Fresh Tech, or what Customer may claim to be a course of dealing or course of performance that has arisen between Customer and Fresh Tech. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain, or serve to interpret any of the terms, conditions, and limitations of the Agreement.
b. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing both by Fresh Tech and Customer expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters.
c. Failure by Fresh Tech to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Fresh Tech to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Customer’s default under the Agreement will not constitute a waiver of that right or any other rights.
27. Confidentiality
a. From time to time during the Term of this Agreement, either Fresh Tech or Customer (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within 5 days thereafter, is summarized in writing and confirmed as confidential, specifically including the Owned Intellectual Property (“Confidential Information”) and including without limitation all confidential or proprietary information and all trade secrets of or relating to the Disclosing Party, including intellectual property in the form of copyrights, patents and trademarks and applications therefor, trade secrets, ideas, inventions, works, discoveries, improvements, information, documents, formulae, practices, processes, methods, developments, source code, modifications, technology, techniques, data, programs, other know-how or material, owned, developed or possessed by the Disclosing Party, whether in tangible or intangible form, information in respect of the Disclosing Party’s operations, processes, products, inventions, business practices, finances, principals, vendors, suppliers, customers, Customers, potential customers or Customers, marketing methods, costs, prices, contractual relationships, regulatory status, prospects, employees, and other service providers; provided, however, that Confidential Information does not include any information that:
i. is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section;
ii. is or becomes available to the Receiving Party on a non-confidential basis from a third- party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
iii. was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or
iv. was or is independently developed by Receiving Party without using any Confidential Information.
b. In taking possession of or otherwise acquiring Confidential Information in the manner described above, the Receiving Party shall:
i. protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would use to protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
ii. not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
iii. not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement.
c. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section, Receiving Party shall mean the Receiving Party’s affiliates, employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
28. Force Majeure
a. Fresh Tech shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (including, without limitation, the failure to deliver Goods or perform any services) when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Fresh Tech including, without limitation, the Customer’s delay in providing necessary information or approvals to Fresh Tech, failure of the Customer to timely make payments or decisions, difficulty obtaining required building permits or other government approvals necessary for the Services, failure in performance by subcontractors that Fresh Tech could not have reasonably foreseen or provided against, loss of key employees or subcontractors due to injury or other reasons Fresh Tech could not have foreseen or provided against, difficulty due to economic or other conditions in hiring replacement for lost personnel adequately skilled to perform to Life of Freedom ’s standards, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock- outs, strikes or other labor disputes (whether or not relating to either party’s workforce), severe personal illness, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage (each a “Force Majeure Event”).
b. If any Force Majeure Event prevents Fresh Tech from performance of any of its obligations under the Agreement, Fresh Tech will have the right to
i. change, terminate or cancel the Agreement, or
ii. omit during the period of the Force Majeure Event all or any portion of the Services dueto be delivered or performed during that period. If Fresh Tech is unable to supply the total demands for any Goods to be delivered or Services to be performed under the Agreement due to a Force Majeure Event, Fresh Tech will have the right to allocate its available Goods or Services among its customers in whatever manner Fresh Tech deems to be fair and equitable. In no event will Fresh Tech be obligated to purchase services or materials from other than its regular sources of supply in order to enable it to supply Services to Customer under the Agreement. No change, cancellation or proration by Fresh Tech will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
29. Electronic Consent
Customer acknowledges that Customer’s electronic submissions constitute Customer’s agreement and intent to be bound by the Agreement. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including, without limitation, the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act"), the Pennsylvania Electronic Transactions Act, or other similar statutes, CUSTOMER HEREBY AGREES TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED WITH LIFE OF FREEDOM. Further, Customer hereby waives any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non- electronic records, or to payments or the granting of credits by other than electronic means. Customer may obtain a copy of the Agreement and these Terms and Conditions of Service by printing them now at no additional cost to Customer or by contacting Life of Freedom.
30. Non-Disparagement
Fresh Tech and Customer agree that neither shall directly or indirectly, make or cause to be made any disparaging, denigrating, derogatory or negative, misleading or false statement orally or in writing to any person, including Customers or prospective Customers, competitors and advisors to the Customer, its Affiliates or members of the investment community or press, about (i) the other party, its Affiliates or their respective officers, directors, stockholders, managers, members, partners, employees or agents; or (ii) the business strategy or plans, policies, practices or operations of the other party or any of its Affiliates. Customer agrees that Fresh Tech may make mention that Fresh Tech provides the Goods and Services to Customer on Fresh Tech’s website, in brochures, and other promotional materials.
31. Choice of Law
The Agreement and all related displays or documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the Commonwealth of Pennsylvania, United States of America (including its statutes of limitations), without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the Commonwealth of Pennsylvania.
32. Mediation
Fresh Tech and Customer will attempt to resolve any dispute in connection with this Agreement on an amicable basis through prompt, good faith discussions and non-binding mediation.
33. Arbitration
Any dispute that cannot be resolved by Fresh Tech and Customer will be determined by final and binding arbitration in Pittsburgh, Pennsylvania, before a sole arbitrator who will award attorneys’ fees and other costs to the substantially prevailing party. JAMS will administer the arbitration. The arbitration award will be in writing and will specify the factual and legal bases for the award. Judgment on the award may be entered in any court having jurisdiction. Notwithstanding anything in this Agreement to the contrary, if either Fresh Tech or Customer initiates arbitration before mediation, that party will be responsible for the other party’s attorneys’ fees and costs of arbitration.
34. Choice of Forum
In the case that mediation and arbitration prove insufficient for resolving a dispute, Fresh Tech and Customer irrevocably and unconditionally agree that neither party will commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to the Agreement, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County, and any appellate court thereof. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Western District of Pennsylvania or, if such court does not have subject matter jurisdiction, the courts of the Commonwealth of Pennsylvania sitting in Allegheny County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
35. WAIVER OF JURY TRIAL
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
36. Severability
If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in full. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement to affect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
37. Binding Authority
Any director, officer, employee, representative, or agent of Customer signing or otherwise entering into this Agreement hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on behalf of Customer.
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