Robots Terms & Conditions
1. Client agrees to the following Terms and Conditions which may be updated with 30 days’ advance notice to Client. The Order Form and agreement between Client and Innovative Foodservice Group shall be referred to herein as the “Agreement”.
2. Term and Termination
a. Upon termination of this Agreement, the other party shall promptly return or destroy all Confidential Information of the requesting party. Additionally, upon termination of this Agreement, any and all Client’s rights under this Agreement, shall immediately terminate, and Client shall (a) cease using the Bear Robotics Services; (b) return to Innovative Foodservice Group or Bear Robotics, as Innovative Foodservice Group so directs, all Robots, Peripherals and Bear Robotics Software; and (c) pay to Innovative Foodservice Group all amounts due and owing under this Agreement, if any. All other rights and obligations of the parties under this Agreement shall expire upon termination of this Agreement, except that all Client payment obligations accrued hereunder prior to termination or expiration shall survive such termination.
b. In the event of earlier termination or expiration of the Agreement, Bear Robotics will continue to perform its obligations to the Client for the term of any outstanding Order that became effective before the date of expiration or earlier termination of the Agreement and for which fees have been paid.
c. De-Installation Services; Consent. Upon any expiration or termination of an Order and Solution Services (“Solution Subscription”), Innovative Foodservice Group and/or Bear will enter and/or access the location where the Robot(s) and certain of Bear Robotic’s proprietary hardware, equipment, components, software, cloud services, and other technology which are provided, or otherwise made available, by Bear to Client pursuant to a Solution Subscription (“Robotic Solution”) is deployed for the purposes of performing De-Installation Services. Client will at all times be responsible and liable for its acts or omissions in connection with the performance of De-Installation Services, and in no event will Bear Robotics nor Innovative Foodservice Group be responsible or liable for any bodily injury, death, or damage to real or personal property arising from Client’s performance, if so performed, of the De-Installation Services. To the extent that the De-Installation Services are performed by Innovative Foodservice Group, upon completion of the De-Installation Services and the re-possession of the Robots and/or Accessories by Innovative Foodservice Group , Client will be responsible for all packing, crating, boxing, transporting, loading and unloading, shipping, and other taxes and charges relating to its delivery of the Robots and/or Accessories to Innovative Foodservice Group and/or Bear Robotics. Client represents and warrants that it will provide all notices to, and obtain all necessary and sufficient consents, authorizations, permissions from, third parties (including from Client and/or from the landlords of the location where the Robotic Solution is installed) that are required for the performance of the De-Installation Services (whether performed by Bear Robotics or by Innovative Foodservice Group). Client will be solely responsible for any loss of, or damage to, the Robots and Accessories, and will compensate Innovative Foodservice Group for the same (not to exceed the full replacement cost of the Robots or the Accessories).
3. Fees
a. All payments shall be due in U.S. Dollars. The fees will be invoiced in advance unless otherwise set forth in the relevant Order Form. Unless otherwise stated in the Order Form, fees are due within thirty (30) calendar upon receipt of the invoice by Automated Clearing House (ACH) payment. If any past due payment has not been received by Innovative Foodservice Group within thirty (30) days from the time such payment is due, Innovative Foodservice Group and/or Bear Robotics may take possession of the Robot and terminate this Agreement. UNLESS YOU NOTIFY US BEFORE A CHARGE THAT YOU WANT TO CANCEL THIS AGREEMENT IN ACCORDANCE WITH SECTION 2 (TERM AND TERMINATION) OR YOU DO NOT WANT TO AUTO RENEW, YOU UNDERSTAND YOUR MONTHLY FEE WILL AUTOMATICALLY CONTINUE EACH MONTH AND YOU AUTHORIZE US (WITHOUT NOTICE TO YOU, UNLESS REQUIRED BY APPLICABLE LAW) TO CHARGE YOU THE MONTHLY FEE AND ANY TAXES, USING ANY ELIGIBLE PAYMENT METHOD WE HAVE ON RECORD FOR YOU.
b. All amounts payable to Innovative Foodservice Group hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know-how payments, customs, privilege, excise, sales, use, value-added and property taxes (collectively "Taxes"). Client shall, in addition to the other amounts payable under this Agreement, pay all applicable customs, duties, sales, use, value added or other taxes, federal, state or otherwise, however designated, which are levied or imposed by reason of the transactions contemplated by this Agreement, excluding only taxes based on Innovative Foodservice Group’s net income.
4. Maintenance and Repairs
Innovative Foodservice Group shall have no obligation (i) to furnish or provide, or cause to be furnished or provided, any repairs, restoration, alterations, maintenance, support, or other work, or services, or (ii) to comply with or perform or, except as expressly provided in this Agreement, to cause the compliance with or performance of, any of the terms and conditions required to be performed by Bear Robotics pursuant to the terms of the Bear Robotics Agreement. Client hereby agrees that Bear Robotics is solely responsible for the performance of the foregoing obligations. Notwithstanding the foregoing, upon the written request of Client, Innovative Foodservice Group shall make a written demand upon Bear Robotics to perform its obligations under the Bear Robotics Agreement with respect to the Bear Robotics Services if Bear Robotics fails to perform same within the time frame and in the manner required pursuant to the Bear Robotics Agreement; provided, however, Client shall not be required to bring any action against Bear Robotics to enforce its obligations.
a. Bear Robotics has agreed to provide full-service performance, maintenance, and warranty on the Bear Robotics Services and Bear Robotics Setup Service. Client acknowledges that Bear robotics is solely responsible for all service maintenance of the Bear Robotics Services set forth herein. In the event that Innovative Foodservice Group assign this Agreement, Innovative Foodservice Group’s assignee shall not be responsible for any service, repair, or maintenance of the Bear Robotics Services and Innovative Foodservice Group will bill on behalf of Bear Robotics any applicable charges, and no assignee of Innovative Foodservice Group shall be a party of any service maintenance agreement. Innovative Foodservice Group reserves a security interest in the Bear Robotics Services to secure all of Client’s obligations under this Agreement. If this Agreement is deemed to be a secured transaction, Client grants Innovative Foodservice Group a first priority security interest in the Bear Robotics Services to secure all of your obligations under this Agreement. Client may not remove the Robot and/or Bear Robotics Services from the address indicated on the Order Form without first obtaining Innovative Foodservice Group’s written approval. Client agrees to (i) keep the Bear Robotic Services in Client’s exclusive control and possession, (ii) use the Bear Robotics Services in conformity with all insurance requirements, manufacturer’s instructions and manuals, (iii) keep the Bear Robotic Services repaired and maintained in good working order and as required by the manufacturer’s warranty and specifications, and (iv) give Innovative Foodservice Group reasonable access to inspect the Bear Robotic Services and its maintenance and other records.
b. If any item of the Bear Robotics Services is lost, stolen, or damages, Client will, at Client’s option, at Client’s sole cost and expense, either (i) repair the item or replace the item with a comparable item reasonably acceptable to Innovative Foodservice Group, or (ii) pay Innovative Foodservice Group the sum of (x) all past due and current Fees and other charges, (y) the present value of all remaining Fees and other charges for the effected item(s) of Bear Robotics Services, and (z) the Fair Market Value of the effected item(s) of Bear Robotics Services. Insurance proceeds shall be applied toward repair, replacement, or payment hereunder as applicable. In this Agreement, “Fair Market Value” of the Bear Robotics Services means its fair market value at the end of the Term assuming good order and condition (except for ordinary wear and tear from normal use) as estimated by Bear Robotics and Innovative Foodservice Group. No such loss or damage shall relieve Client of the payment obligations under this Agreement.
c. Notwithstanding anything to the contrary, Bear Robotics is solely responsible for providing the support and maintenance services provided herein (“Support Services”) to Client pursuant to the terms and conditions set forth in the Agreement. Requests for Support Services are only to be submitted to Bear and not Innovative Foodservice Group. The dedicated Support Services phone number for Bear is 844-SAY-BEAR. Under no circumstance is Innovative Foodservice Group permitted to perform Support Services to any Client.
5. Indemnification
Client hereby indemnifies and agrees to save harmless Innovative Foodservice Group, Innovative Foodservice Group's officers, directors, employees, and agents, (collectively, the “Protected Parties"), from and against all claims, losses, liabilities, damages, and expenses (including but not limited to attorneys' fees) (“Claims”) that arise within the Authorized Location or that arise from or in connection with (i) the possession, use, operation, management, repairs, maintenance, or control of the Bear Robotics Services, or any portion thereof, (ii) any act or omission of Client, its employees, agents, contractors, licensees, customers, patrons, or invitees, or (iii) any violation, breach, or default of this Agreement by Client. Client shall, at its own cost and expense, defend any and all actions which may be brought against any of the Protected Parties with respect to the foregoing. Client shall pay, satisfy and discharge any and all judgments, orders and decrees which may be recovered against any of the Protected Parties in connection with the foregoing. Innovative Foodservice Group shall not be responsible or liable at any time to Client, or to those claiming by, through or under Client, for any loss of life, bodily or personal injury, or damage to property or business, or for business interruption, that may be occasioned by or through the acts, omissions or negligence of any persons or as a result of the Bear Robotics Services or any portion thereof. Client shall promptly notify Innovative Foodservice Group of any Claims. You agree to defend and indemnify Innovative Foodservice Group for the Claims, provided however, Innovative Foodservice Group reserves the right to control the defense and to select or approve counsel. This Section shall survive termination or expiration of this Agreement.
6. Assignment
a. This Agreement may be unilaterally assigned by Innovative Foodservice Group and shall inure to the benefit of its successors and assigns. Client agrees and affirms that Innovative Foodservice Group may sell itself, its assets, and/or its rights under the Bear Robotics Agreement to a third-party; may engage in private placement of some or all of its securities; may merge, acquire other entities, or be acquired by another entity; and/or may undertake a refinancing, recapitalization, leveraged buyout or other economic or financial restructuring. Client further agrees and affirms that Innovative Foodservice Group has the right, now or in the future, to contract with, negotiate, purchase, merge, acquire, or affiliate with an existing competitive (to Innovative Foodservice Group or Client) or noncompetitive network, chain, or any other business regardless of the location of that network’s or business’ facilities.
b. Client shall not sublicense, sell, assign, transfer, merge, convey or encumber (each, a “Transfer”) any rights or use to the Bear Robotics Services, this Agreement, or any of its rights or obligations hereunder, or suffer or permit any such Transfer of the rights or use to the Bear Robotics Services, this Agreement, or its rights or obligations hereunder to occur by operation of law or otherwise without the prior written consent of Innovative Foodservice Group, in Innovative Foodservice Group’s sole discretion. Any Transfer in violation of this Section or purported or attempted Transfer shall be void and of no force and effect
7. Insurance
At all times during the Term of this Agreement, Client shall, at its sole cost and expense, obtain and maintain all insurance required in accordance with the Bear Robotics Agreement, including, without limitation, Article 12 thereof. Upon execution of this Agreement and at such other times as requested by Innovative Foodservice Group, Client shall furnish to and maintain with Innovative Foodservice Group either the policies or certificates thereof evidencing the insurance coverages and limits from time to time required by this Agreement and the Bear Robotics Agreement, name Bear Robotics, Innovative Foodservice Group, and their respective principals, agents, employees and servants, all as additional insureds as their respective interests may appear, and which policies or certificates shall state that no insurance coverage thereunder may be altered or canceled without at least ten (10) days prior written notice to Client and Innovative Foodservice Group. Client shall also provide evidence of its compliance with the insurance requirements of the Bear Robotics Agreement to the Client.
8. Compliance
The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give a party the express or implied right, power or authority to create any duty or obligation of the other party. Notwithstanding anything to the contrary, Client shall not do or permit to be done any act or thing, or omit to do anything, which may constitute a breach or violation of any term, covenant, or condition of the Bear Robotics Agreement, notwithstanding such act, thing, or omission is permitted under the terms of this Agreement.
9. Limitation of Liability
There shall be no personal liability on Innovative Foodservice Group, its officers, partners, members, employees, shareholders, agents beneficiaries, or any successor in interest with respect to any provisions of this Agreement, or amendments, modifications or renewals hereof. Notwithstanding any provision in this Agreement to the contrary, Innovative Foodservice Group WILL NOT BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT AND HOWEVER CAUSED AND UNDER AY THEORY OF LIABILITY, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCTS LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL Innovative Foodservice Group’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT ACTUALLY PAID BY CLIENT TO Innovative Foodservice Group DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY. CLIENT WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A (303, 508-522) OF THE UCC. CLIENET FURTHER HEREBY ACKNOWLEDGES AND AGREES THAT Innovative Foodservice Group AND/OR BEAR ROBOTICS MAY MAKE A PROFIT ON ANY AND ALL FEES REFERENCED HEREIN AND IN SO DOING WAIVE ANY AND ALL CLAIMS WHICH CLIENT MAY HAVE FOR UNJUST ENRICHMENT.
10. Warranty and Disclaimer
ALL BEAR ROBOTICS SERVICES ARE PROVIDED “AS IS,” AND Innovative Foodservice Group, BEAR ROBOTICS AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, FUNCTIONALITY, OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED, OR STATUTORY. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. Innovative Foodservice Group SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF Innovative Foodservice Group. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Innovative Foodservice Group NOR ANY OF ITS SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY BEAR ROBOTICS SERVICES OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT: (A) THE USE OF ANY BEAR ROBOTICS SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (B) THE BEAR ROBOTICS SERVICES WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (C) THE ROBOTS AND PERIPHERALS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE ROBOTS AND PERIPHERALS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS); (D) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED; (E) ERRORS OR DEFECTS WILL BE CORRECTED; OR (F) THE BEAR ROBOTICS SERVICES (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WITHOUT LIMITING ANYTHING ELSE SET FORTH IN THIS AGREEMENT, ANY AND ALL SUCH USE SHALL BE AT CLIENT’S OWN RISK AND CLIENT HEREBY ASSUMES, AND EXPRESSLY RELIEVES AND RELEASES Innovative Foodservice Group FROM, ANY AND ALL CLAIMS, DAMAGES, COSTS, LOSSES, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY SUCH USE. CLIENT ACKNOWLEDGES THAT Innovative Foodservice Group HAS NO EXPERTIESE OR SPECIAL FAMILIARITY ABOUT OR WITH RESPECT TO THE BEAR ROBOTICS SERVICES AND THAT CLIENT HAS MADE NO, EXPRESS OR IMPLIED, REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING ANY REGARDING THE BEAR ROBOTICS SERVICES. Innovative Foodservice Group FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE, OR INJURY TO CLIENT OR THIRD PARTIES AS A RSULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE BEAR ROBOTICS SERVICES WHETHER ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY OR OTHERWISE.
11. Notices
All notices and other communications required or permitted under this Agreement shall be given or delivered in writing and addressed to the addresses set forth on the Order Form, and to such other persons or entities as the parties may designate subsequently in writing. Notices so addressed shall be deemed to have been duly given (i) on the third Business Day after the day of registration, if sent by registered or certified mail, postage prepaid, (ii) on the next Business Day following the documented acceptance thereof for next-day delivery by a national overnight air courier service, if so sent, or (iii) on the date sent by electronic mail, if electronically confirmed. Otherwise, notices shall be deemed to have been given when actually received at such address. Refusal of service shall be deemed delivered.
12. Client and Guarantor Authority
Client represents and warrants that it is duly formed and in good standing, and has full corporate or limited liability company power and authority, as the case may be, to enter into this Agreement and has taken all corporate or limited liability company action, as the case may be, necessary to carry out the transaction contemplated herein, so that when executed, this Agreement shall constitute a valid and binding obligation of Client, enforceable in accordance with their respective terms.
13. Confidentiality
a. Nondisclosure. No Confidential Information provided pursuant to the Agreement shall be distributed, disclosed or disseminated in any way or form by the receiving Party except to its own employees, officers, directors and agents who have a reasonable need to know such Confidential Information and who have been advised of the confidential nature and required to observe the terms and conditions hereof; nor shall Confidential Information be used by the receiving Party, except for the purposes of exercising its rights or fulfilling its obligations under this Agreement. Each Party shall take all actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information of the other Party in its possession or of its permitted recipients, at all times exercising at least the same degree of care that it uses to protect its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care.
b. Non-Use and Non-Disclosure. Each Party agrees to: (a) maintain the confidentiality of the other Party’s Confidential Information; (b) refrain from using the other Party’s Confidential Information except for the purpose of performing its obligations under this Agreement; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only subject to binding written use and disclosure restrictions at least as protective as those set forth herein which the receiving Party agrees to enforce). Each Party shall immediately notify the other Party of any unauthorized disclosure or use of any Confidential Information and assist the other Party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested by such other Party.
c. Exclusions. The foregoing obligations will not apply to Confidential Information of the other Party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving Party without use of, or reference to, the Confidential Information of the disclosing Party, as shown in records of the receiving Party; (iii) otherwise known to the receiving Party through no wrongful conduct of the receiving Party, or (iv) required to be disclosed by law or court order; provided that the receiving Party shall provide prompt notice thereof and reasonable assistance to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. Moreover, either Party hereto may disclose any Confidential Information hereunder to such Party’s employees, contractors, agents, attorneys and other representatives (and only subject to confidentiality obligations at least as protective as those set forth herein which the receiving Party agrees to enforce) or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties hereto.
d. Remedies. Each Party acknowledges that any breach or threatened breach of this Section 10 may cause irreparable injury to the disclosing Party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief against the breach of this Agreement or the continuation of any such breach by the receiving Party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.
e. Party. For purposes of this Section 13, “Party” shall mean each Client, Innovative Foodservice Group, and Bear Robotics.
f. Restrictions. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Robotic Solution, the Solution Subscription, and/or the Accessories (“Products”) in any way, or (ii) modify, make derivative works based on, or reverse engineer the Products (except to the extent permitted by applicable laws). Nothing in the Agreement grants or transfers to Client any ownership or other rights in or to Bear Robotics’ and/Innovative Foodservice Group’s trademark, service marks, logos, and other branding elements associated with the Products. Client shall not remove, delete or in any manner alter any trademarks or other proprietary notices incorporated in, marked on, or fixed to any components of the Products.
14. Miscellaneous
a. Successors and Third-Party Beneficiaries. This Agreement and the covenants, restrictions and limitations contained herein shall be binding upon and shall inure to the benefit of Innovative Foodservice Group and its successors and assigns and shall be binding upon and shall inure to the benefit of Client and its permitted successors and assigns. Client is hereby advised that the Bear Robotics is the owner of certain proprietary information and intellectual property rights as provided for in the Bear Robotics Agreement. Consequently, Bear Robotics is a third-party beneficiary entitled to enforce Innovative Foodservice Group’s rights and Client’s obligations hereunder and to seek appropriate legal and equitable remedies, including but not limited to, damages and injunctive relief, for Client’s breach of such obligations. Client shall not do or permit to be done any act or thing, or omit to do anything, which may constitute a breach or violation of any term, covenant, or condition of the Bear Robotics Agreement, notwithstanding such act, thing, or omission is permitted under the terms of this Agreement.
b. Construction. Except where this Agreement expressly obligates Innovative Foodservice Group not to unreasonably withhold its approval of any of Client’s actions or requests, Innovative Foodservice Group has the absolute right, in its sole and absolute discretion, to refuse any request Client makes or to withhold its approval of any of Client’s proposed or effected actions that require Innovative Foodservice Group’s approval. Any and all acts, omissions, performance, conduct and/or decisions of Innovative Foodservice Group in connection with this Agreement shall be deemed held to a standard of Innovative Foodservice Group’s good faith, sole and absolute discretion.
c. Interpretation and Headings. (i) The parties agree that this Agreement should be interpreted according to its fair meaning. Client waives to the fullest extent possible the application of any rule that would construe ambiguous language against Innovative Foodservice Group as the drafter of this Agreement; (ii) This Agreement has been fully negotiated by the parties and the drafter of any part of the Agreement will not be penalized for any difficulty in interpretation; (iii) The words “include,” “includes” and “including” when used in this Agreement will be interpreted as if they were followed by the words “including but not limited to,”; (iv) “Will” and “shall” mean the same thing; (v) Use of words like “herein”, “hereunder” and similar words mean and refer to the entire Agreement. Use of the words or phrases, “terms”, “provisions”, or “terms and conditions”, or similar words or phrases means "terms, provisions, conditions, warranties, representations, agreements and covenants”; (vi) References to section numbers and headings will refer to sections of this Agreement unless the context indicates otherwise; (vii) Captions and section headings are used herein for convenience only. They are not part of this Agreement and shall not be used in construing it; (viii) English shall be the determinative language of this Agreement, any Arabic or other translation hereof notwithstanding; (ix) Single words include the plural and vice versa; (x)
d. Costs and Attorneys’ Fees. If Innovative Foodservice Group incurs any expenses in connection with Client’s failure to pay any amounts it owes when due, or otherwise comply with this Agreement, Client agrees to reimburse Innovative Foodservice Group for any of the costs and expenses that Innovative Foodservice Group incurs, including, without limitation, reasonable accounting, attorneys’, arbitrators’ and related costs, expenses and fees.
e. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to the choice-of-laws or conflicts-of-laws provisions thereof. Each party hereto agrees that any Proceeding relating to this Agreement shall be brought solely in the United States District Court for the Southern District of Florida or, if such court does not have jurisdiction, the courts of the State of Florida located in Palm Beach County and all objections to personal jurisdiction and venue in any proceeding so commenced are hereby expressly waived by all parties hereto. The parties waive personal service of any and all process on each of them and consent that all such service of process shall be made in the manner, to the party and at the address set forth in Section 14, and service so made shall be complete as stated in such Section. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHTS IT MAY HAVE TO DEMAND THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY ARISING FROM ANY SOURCE, INCLUDING THE CONSTITUTION OF THE UNITED STATES OR ANY STATE THEREIN, COMMON LAW OR ANY APPLICABLE LAW. EACH PARTY HERETO ACKNOWLEDGES THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS RIGHT TO DEMAND A TRIAL BY JURY.
f. Waiver. No waiver, delay, omission or forbearance on the part of Innovative Foodservice Group to exercise any right, option, duty or power arising from any default or breach by Client shall affect or impair the rights of Innovative Foodservice Group with respect to any subsequent default of the same or a different kind; nor shall any delay or omission of Innovative Foodservice Group to exercise any right arising from any such default affect or impair Innovative Foodservice Group’s rights as to such default or any future default.
g. Severability. If any term, restriction or covenant of this Agreement is deemed invalid or unenforceable, all other terms, restrictions and covenants and the application thereof to all Persons and circumstances subject hereto shall remain unaffected to the extent permitted by law; and if any application of any term, restriction or covenant to any Person or circumstance is deemed invalid or unenforceable, the application of such term, restriction or covenant to other Persons and circumstances shall remain unaffected to the extent permitted by law.
h. No Right of Set Off. Client agrees that it will not set off or withhold payment of any amounts it owes Innovative Foodservice Group on any grounds whatsoever, including Innovative Foodservice Group’s alleged nonperformance of any of Innovative Foodservice Group’s obligations under this Agreement or for any other reason.
i. Cumulative Rights. The rights granted hereunder are cumulative, and no exercise or enforcement by either party of any right or remedy hereunder will preclude the exercise or enforcement of any other right or remedy to which either Innovative Foodservice Group or Client are entitled.
j. Entire Agreement. This Agreement and any addendum, schedule or exhibit attached hereto constitutes the entire understanding of the parties, and supersedes all prior agreements with respect to its specific subject matter and no representations, inducements, promises, agreements, arrangements or undertakings, oral or written, have been made or relied upon by the parties other than those set forth herein. All addendums, schedules, or exhibits attached hereto are an integrated part of this Agreement. No agreement altering, changing, waiving or modifying any of the terms and conditions of this Agreement shall be binding upon either party unless and until the same is made in writing and executed by all interested parties.
k. Counterparts. This Agreement may be signed in multiple counterpart copies, each of which will be deemed an original, and all of which together constitute one and the same document. This Agreement may be executed in counterparts and by electronic or PDF signature, each of which shall be deemed to be one original, same, instrument.
l. Warranty of Performance; Time is of the Essence; Survival. Client warrants to perform all of its obligations under this Agreement, including all payment and performance terms, conditions, and provisions, and understands and agrees that time is of the essence with respect to its obligations hereunder. Each provision clearly intended to survive termination of this Agreement shall be deemed to survive, whether or not a survival reference is expressly attached to it.
m. Timing. Client has had the opportunity to have this Agreement reviewed by professionals of Client’s choosing before executing this Agreement.
n. Further Assurances. On demand of the Innovative Foodservice Group, Client shall do the following: execute any written agreement, or do any other acts necessary or appropriate, to effectuate the purposes and provisions of this Agreement, execute any instrument or statement required by law or otherwise in order to perfect, memorialize, continue, or terminate the understandings of Innovative Foodservice Group, Client, and/or Bear Robotics, and pay all costs of filing in connection.