I. GENERAL TERMS & CONDITIONS
II. IMPORTER - TERMS & CONDITIONS
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 10.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
1.1 Account Creation. In order to use certain features of the Site, you must register for an account (“Account”) and provide certain information about yourself as prompted by the account registration form. You represent and warrant that: (a) all required registration information you submit is truthful and accurate; (b) you will maintain the accuracy of such information. You may delete your Account at any time, for any reason, by following the instructions on the Site. Company may suspend or terminate your Account in accordance with Section 8.
1.2 Account Responsibilities. You are responsible for maintaining the confidentiality of your Account login information and are fully responsible for all activities that occur under your Account. You agree to immediately notify Company of any unauthorized use, or suspected unauthorized use of your Account or any other breach of security. Company cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
2. ACCESS TO THE SITE AND QR CODE
(a) Subject to these Terms: (i) if you are an individual consumer, Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for your own personal, non-commercial use; and (ii) if you are a [potential or current supplier, distributor, or customer of Company or acting on behalf of or as a representative of any of the foregoing (a “Business User”)], Company grants you a non-transferable, non-exclusive, revocable, limited license to use and access the Site solely for legitimate business purposes relating to your role as a potential or current supplier, distributor, or customer of Company or as may be permitted pursuant to any separate agreements you may have entered into with Company (each, a “Business Purpose”). Any payment terms related to such Business Purpose will be addressed in a separate agreement between the applicable Business User and Company.
(b) Subject to these Terms, if you are a Business User, Company may make available one or more QR codes (each, a “Code”) that provide access to certain portions of the Site for your use solely in connection with Company-verified products and Company hereby grants you a non-transferable, non-exclusive, revocable, limited license to use such Code solely in connection with the commercial sale of Company-verified coffee and related products (the “Products”). You shall comply with all specifications, standards, and directions relating to the Code.
Company may, at its sole discretion, suspend or terminate your access to the Code with or without notice and for any reason, including, without limitation, breach or termination of these Terms.
(c) To the extent Company has made available a Code for your use as set forth above, Company hereby grants you a non-exclusive, royalty free, non-assignable, non-transferable limited license to use certain Company trademarks, service marks, logos and copyrights (collectively, “Marks”), in connection with the Code in the exact form (e.g., color, style, size proportions) provided by Company, and only for the express purposes described in Section 2.1(b). You shall not make any other use of Company Marks without the prior written permission of Company in each instance. Ownership designations (e.g., ®, ©, ™ or SM) supplied by Company shall be used in accordance with Company instructions. Your use of the Marks as contemplated herein shall be subject to the prior approval of Company in each instance. You shall permit, and shall obtain permission for, Company at all reasonable times to inspect any facility used for the manufacture, storage, or distribution of the Products to ensure compliance with Company quality standards or any other specifications or requirements set forth in these Terms or otherwise provide by Company in connection with the Code or the Marks. You acknowledge that (a) Company is the owner of the Marks throughout the world and all goodwill related thereto, and (b) all use of the Marks hereunder and any goodwill accruing from such use will inure solely to the benefit of Company. If you acquire any rights in the Marks, by operation of law or otherwise, you hereby irrevocably assign such rights to Company without further action by any of the parties. You shall at all times comply with, and shall ensure that each Product complies with, all applicable laws.
2.2 Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, or host the Site or the Code, whether in whole or in part, except as permitted in Section 2.1(b); (b) you shall not otherwise commercially exploit the Site, whether in whole or in part, provided that a Business User may use the Site for a Business Purpose; (c) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Site or the Code; (d) you shall not access, copy or use the Site in order to build a similar or competitive website, product, or service or for the purposes of monitoring its availability, performance, or functionality for competitive purposes; (e) except as expressly stated herein, no part of the Site or Code may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (f) you shall not impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; (g) you shall not use the Site or Code to violate any local, state, national or international law; and (h) you shall not otherwise use the Site or Code in any manner that exceeds the scope of use granted by these Terms. Unless otherwise indicated, any future release, update, or other addition to functionality of the Site and/or Code shall be subject to these Terms. All copyright and other proprietary notices on the Site (or on any content displayed on the Site) and/or Code must be retained on all copies thereof.
2.3 Modification. Company reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
2.4 No Support or Maintenance. You acknowledge and agree that Company will have no obligation to provide you with any support or maintenance in connection with the Site.
2.5 Ownership. Excluding any User Content that you may provide (defined below), you acknowledge that all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content and in the Code and the Marks are owned by Company or Company’s suppliers. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to such intellectual property rights, except for the limited access rights expressly set forth in Section 2.1. Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
3. USER CONTENT
3.1 User Content. “User Content” means any and all information and content that a user submits to, or uses with, the Site (e.g., content in the user’s profile or postings). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Acceptable Use Policy (defined in Section
3.3). You may not represent or imply to others that your User Content is in any way provided, sponsored or endorsed by Company. Because you alone are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
3.2 License. You hereby grant (and you represent and warrant that you have the right to grant) to Company an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
3.3 Acceptable Use Policy. The following terms constitute our “Acceptable Use Policy”:
(a) You agree not to use the Site to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, you agree not to: (i) upload, transmit, or distribute to or through the Site any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Site unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) use the Site to harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Site, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Site (or to other computer systems or networks connected to or used together with the Site), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Site; or (vii) use software or automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
3.4 Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 8, and/or reporting you to law enforcement authorities.
3.5 Feedback. If you provide Company with any feedback or suggestions regarding the Site (“Feedback”), you hereby assign to Company all rights in such Feedback and agree that Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to Company as non-confidential and non-proprietary. You agree that you will not submit to Company any information or ideas that you consider to be confidential or proprietary.
4. CONFIDENTIALITY; NON-INTERFERENCE WITH BUSINESS.
4.1 Confidential Information. For purposes of this Section 4, “Confidential Information” means any information disclosed to a Business User by Company, either directly or indirectly in writing, orally or by inspection of tangible objects, including, without limitation, software, concepts, know-how, designs, specifications, charts, drawings, financial information, business plans, products, services, customer information, pricing, and any
other proprietary or confidential information, whether disclosed through the Site or otherwise. Confidential Information shall not, however, include any information which such Business User can establish: (i) was or has become generally known or available to the public without direct or indirect fault, action, or omission of such Business User; (ii) was known by such Business User prior to the time of disclosure, according to such Business User’s prior written documentation; (iii) was received by such Business User from a source other than Company, rightfully having possession of and the right to disclose such information; or (iv) was independently developed by such Business User, where such independent development has been documented by such Business User. Confidential Information may also include information disclosed to such Business User by third parties.
4.2 Non-use and Non-disclosure. Each Business User hereby agrees (a) to keep the Confidential Information strictly confidential, and (b) not to use Confidential Information received from Company for any purpose except a valid Business Purpose. Such Business User agrees not to disclose any Confidential Information of Company to third parties or to such Business User’s employees or consultants, except to those employees or consultants of such Business User who have a reasonable need to have access to the information in order to carry out the Business Purpose. Such Business User shall be responsible for any breach of its obligations under these Terms by its employees or consultants. Such Business User shall not modify, reverse engineer, disassemble, create other works from, or decompile any prototypes, software, or other tangible objects which embody Confidential Information.
4.3 Mandatory Disclosure. A Business User may disclose certain Confidential Information that is required by law to be disclosed by such Business User, provided that such Business User (a) gives Company prompt written notice of such requirement prior to such disclosure, (b) cooperates with Company in obtaining an order protecting the information from public disclosure, and (c) limits the disclosure to the specific Confidential Information and to the extent reasonably required by law to be disclosed.
4.4 Maintenance of Confidentiality. Each Business User agrees to take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, such Business User shall take at least those measures that it takes to protect its own most highly confidential information, which shall be no less than reasonable care, and shall ensure that its employees or consultants who have access to Confidential Information have signed a non-use and nondisclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employee or consultant. Such Business User shall not make any copies of the Confidential Information unless previously approved in writing by Company. Such Business User shall reproduce Company proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
4.5 Return of Materials. All documents and other tangible objects containing or representing Confidential Information which have been disclosed by Company to a Business User, and all copies thereof which are in the possession of a Business User, shall be and remain the property of Company and shall be promptly destroyed or returned to Company upon Company’s written request.
4.6 Non-Circumvention. Each Business User agrees not to circumvent Company or any other Business User (each, a “Third-Party User”) in any transaction with any potential or current supplier, distributor, or customer of Company or such Third-Party User, whose identity was revealed to such Business User through use of the Site, in connection with any project, sale or any other transaction involving any products or related services, unless Company or the applicable Third-Party User, as applicable, provides its prior written consent.
4.7 Non-Competition. For a period of 24 months following a Business User’s most recent use of the Site, such Business User agrees not to compete with Company relative to the Site and Company’s and/or its supplier’s blockchain technology platform, whether directly or indirectly, and whether independently or in cooperation with a third party.
4.8 Remedies; Indemnification. Each Business User agrees that its obligations set forth in this Section 4 are necessary and reasonable in order to protect Company and its business. Such Business User expressly agrees that due to the unique nature of the QR Code, the Marks and the Confidential Information, monetary damages would be inadequate to compensate Company for any breach by such Business User of its covenants and agreements set forth herein. Accordingly, such Business User agrees and acknowledges that any such violation or threatened violation shall cause irreparable injury to Company and that, in addition to any other remedies that may be available, in law, in
equity or otherwise, Company shall be entitled (a) to obtain injunctive relief against the threatened breach of these Terms or the continuation of any such breach by such Business User, without the necessity of proving actual damages, and (b) to be indemnified by such Business User from any loss or harm, including but not limited to attorney’s fees, arising out of or in connection with any breach or enforcement of such Business User’s obligations under this Agreement or the unauthorized use or disclosure of the QR Code, the Marks or the Confidential Information.
5. INDEMNIFICATION. You agree to indemnify and hold Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims. You agree not to settle any matter without the prior written consent of Company. Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
6. THIRD-PARTY LINKS & ADS; OTHER USERS
6.1 Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of Company, and Company is not responsible for any Third-Party Links & Ads. Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
6.2 Other Users. Each Site user is solely responsible for any and all of its own User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content, whether provided by you or by others. We make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content. Your interactions with other Site users are solely between you and such users. You agree that Company will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Site user, we are under no obligation to become involved.
6.3 Release. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, other Site users or any Third-Party Links & Ads). IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
THE SITE, THE CODE AND THE MARKS, AS APPLICABLE, ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE, THE CODE OR THE MARKS, AS APPLICABLE, WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH
RESPECT TO THE SITE, THE CODE OR THE MARKS, AS APPLICABLE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, THE CODE OR THE MARKS, AS APPLICABLE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE, THE CODE AND THE MARKS, AS APPLICABLE, IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY US DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account) at any time for any reason at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site, the Code and the Marks, as applicable, will terminate immediately. You understand that any termination of your Account may involve deletion of your User Content associated with your Account from our live databases. Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 2.2 through 2.5, Section 3 and Sections 4 through 11.
10. COPYRIGHT POLICY.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials appearing on the Site infringe your copyright, you (or your agent) may send us a notice requesting that the material be removed, or access to it blocked. In addition, if you believe in good faith that a notice of copyright infringement has been wrongly filed against you, the DMCA permits you to send us a counter-notice. Notices and counter-notices must meet statutory requirements imposed by the DMCA. One place to find more information is the U.S. Copyright Office Web site, currently located at https://www.copyright.gov/. In accordance with the DMCA, Company has designated an agent to receive notification of alleged copyright infringement. Any written Notification of Claimed infringement should comply with Title 17, United States Code, Section 512(c)(3)(A) and should be provided in writing to Company at the address set forth in Section 10.8.
11.1 Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
11.2 Dispute Resolution. Please read this Arbitration Agreement carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. Except as set forth in Section 4.8, All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the use of any product or service provided by the Company that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms.
(b) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to the Company at the address set forth in Section 10.8. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(c) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(d) Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(e) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(f) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(g) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(h) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
(i) Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(j) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(k) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(l) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
(m) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(n) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(o) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(p) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Washington, District of Columbia, for such purpose
11.3 Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Company, or any products utilizing such data, in violation of the United States export laws or regulations.
11.4 Disclosures. Company is located at the address in Section 10.8. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
11.5 Electronic Communications. The communications between you and Company use electronic means, whether you use the Site or send us emails, or whether Company posts notices on the Site or communicates with you via email. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were be in a hardcopy writing. The foregoing does not affect your non-waivable rights.
11.6 Entire Terms. These Terms constitute the entire agreement between you and us regarding the use of the Site, the Code and the Marks, as applicable. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”. If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Your relationship to Company is that of an independent contractor, and neither party is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. Company may freely assign these Terms. The terms and conditions set forth in these Terms shall be binding upon assignees.
11.7 Copyright/Trademark Information. Copyright © 2019 iFinca LLC. All rights reserved. All trademarks, logos and service marks (“Site Marks”) displayed on the Site are our property or the property of other third parties. You are not permitted to use these Site Marks without our prior written consent or the consent of such third party which may own the Site Marks.
11.8 Contact Information:
1241 Adams Street, Suite 1096
Saint Helena, CA 94574
Telephone: +1 888-684-4220
iFinca operates the Technology, which permits a truly transparent coffee supply chain. It uses CoffeeChain®, a blockchain ledger system for verification, data security, and accuracy. iFinca is dedicated to excellent quality, ethical sourcing, and complete transparency. iFinca features the finest farms around the world, sources only the highest quality green coffee beans, and connects all who participate in the supply chain. iFinca does so while providing complete transparency in pricing and traceability of the best coffee products. Using iFinca’s Technology, iFinca connects all parties in the supply chain and traces green coffee beans on their journey from farmer to mill, exporter, importer, roaster, and ultimately to the café which is then able to deliver the finest cup of coffee. iFinca’s unique Technology validates payments, measures weights, and captures all facts about the coffee. Importer is in the business of importing coffee to the United States. Importer desires to purchase all of its green coffee beans purchased via an electronic technology platform, including using blockchain or other verification-, security-, and accuracy-related tools, from iFinca on an exclusive basis via the Technology, which permits the capability to track the origin of its green coffee bean purchases for its customers. iFinca desires to facilitate increased sales on the platform of Coffee Products, and Importer desires to use the Technology and iFinca Marks on a non-exclusive basis pursuant to the terms and conditions of this Agreement.
The following terms have these meanings:
2.1. “Business Practices” means the definition provided for in Part C, Exhibit A, Paragraph 1.
2.2. “Carrier” means the definition provided for in Section B.3.5.
2.3. “Coffee Products” means green coffee beans or other goods or services offered by iFinca.
2.4. “Confidential Information” means the definition provided for in Part C, Exhibit A, Paragraph 1.
2.5. “Documentation” means such written material or online content iFinca ordinarily makes available on the Technology platform to its customers, including amendments and revisions thereto.
2.6. “iFinca Fee” means the definition provided for in Section A.3, as the same may be amended from time to time by iFinca.
2.7. “iFinca Mark” means, with respect to iFinca, the trade name “iFinca” and the trademarks and graphics set forth on Exhibit B.
2.8. “Initial Term” means the definition provided for in Section A.4.
2.9. “Intellectual Property Rights” means the definition provided for in Part C, Exhibit A, Paragraph 1.
2.10. “Invoice” means the definition provided for in Section B.5.3.
2.11. “Order” means a written or electronic order issued by Importer to iFinca using the Technology for the purchase of Coffee Products.
2.12. “Payment Instructions” means the definition provided for in Section B.5.2.2.
2.13. “Renewal Term” means the definition provided for in Section A.4.
2.14. “Shipping Confirmation” means the definition provided for in Section B.3.5.2.
2.15. “Shipping Date” means the definition provided for in Section B.3.5.1.
2.16. “Technology” means iFinca’s CoffeeChain® technology platform upon which Importer places Orders.
2.17. “Term” means the definition provided for in Section A.4.
3. Agreement; Orders; Shipment; iFinca Marks; Support
3.1. Agreement. Importer agrees to place Orders for Coffee Products using the Technology pursuant to the terms and conditions of this Agreement, and iFinca agrees to use the Technology process Orders subject to the terms and conditions of this Agreement.
3.2. Orders. Importer shall use the Technology to initiate all Orders for Coffee Products and agrees on an exclusive basis to use the Technology to purchase any green coffee beans that Importer purchases via an electronic technology platform, including using blockchain or other verification-, security-, and accuracy-related tools. Each Order shall be placed in accordance with the requirements prescribed by the Technology and shall include: (i) a description of the Coffee Product desired; (ii) the quantity of Coffee Product; (iii) the desired delivery date; and (iv) other pertinent instructions or requirements that may be required in iFinca’s sole discretion. To the extent of any inconsistency between the terms of an Order and the terms of this Agreement, the terms specified in this Agreement shall take control to the extent of any inconsistency.
3.3. Order Acknowledgment. An Importer shall place a proposal to place an Order on the Technology to one or more exporters. The exporters will respond to such proposals, and an Order shall be deemed to have been placed as of the date of acceptance of the exporter(s) response to the proposal by the Importer on the Technology. If accepted, iFinca shall exercise commercially reasonable efforts to provide Importer with an Order Acknowledgement provided by exporter. The Order Acknowledgement shall include a description of the Order placed, the final price of the Order, including the total amount of the iFinca Fee, and the Payment Instructions. Failure by Importer to accept an Order constitutes a rejection of such Order.
3.4. Incoterms. Except as otherwise provided in Section 3.5.1, the Coffee Products shall be delivered as per Incoterms FAS (Carrier) or “Free Along Side” to the Carrier (as such terms are defined pursuant to the 2020 incoterms rules published by the International Chamber of Commerce). For the avoidance of doubt, the cost of freight and insurance and the cost of all import duties and fees and other charges shall be paid by Importer.
3.5.1. Importer shall be responsible for designating its preferred shipping carrier (the “Carrier”) to transport the Coffee Products from country of origin to Importer’s designated location for export (e.g., port). Exporter shall be responsible for delivery of the Coffee Products to the Carrier. Delivery occurs when the Coffee Products have been delivered to the Carrier for transport, which date shall be designated the “Shipping Date”. Risk of loss and/or deterioration of or damage to the Coffee Products and ownership of the Coffee Products shall pass to Importer upon Exporter’s delivery of the Coffee Products to the Carrier.
3.5.2. Following delivery of the Coffee Products to the Carrier by exporter and notification of same to iFinca, iFinca shall send Importer a confirmation of shipment (“Shipping Confirmation”), which shall include the order number, description of goods, gross weight, invoice value, name of vessel, and shipment port. Such Shipping Confirmation may be sent via the Technology, email, or any other means in iFinca’s sole discretion.
3.6. iFinca Marks. Importer shall have the right to use the iFinca Marks on Coffee Products obtained from the Technology via an Order. Importer is authorized to use the iFinca Marks in connection with the promotion and sale of the Coffee Products. Importer shall exercise best efforts to safeguard and protect the reputation of the Coffee Products and the iFinca Marks, and Importer shall provide written notice to iFinca within a reasonable period of time subsequent to Importer becoming aware of any violation of iFinca’s Intellectual Property Rights. The terms “safeguard and protect” as used in this Agreement means Importer shall refrain from all conduct which may be harmful to the Coffee Products or the iFinca Marks, their reputation or their marketing. Importer agrees that it shall not use the iFinca Marks on any other products or for any other purpose. Importer shall be responsible for ensuring that its use of iFinca Marks satisfy applicable laws and regulations in Importer’s jurisdiction, and iFinca reserves the right to terminate Importer’s use of the Marks should Importer violate its obligations contained herein, which supplement and do not derogate from the rights accorded iFinca in Sections 6.3 and 6.4.
3.7. Technology. iFinca shall exercise commercially reasonable efforts to develop or maintain the Technology, as appropriate, so that Importers may place proposals, exporters can respond to such proposals, and Importers may accept to constitute an Order and the Technology can provide the Documentation.
4. Covenant Not-to-Compete; Prohibition Against Solicitation and Hiring; Non-Circumvention; Exclusivity
4.1. Covenant Not-to-Compete. Importer recognizes that iFinca’s Business Practices are unique and that Importer and its affiliates will become familiar with iFinca’s Business Practices, which includes without limitation the Technology. In recognition of the foregoing and as substantial and material consideration and as a condition precedent for iFinca to enter into this Agreement and share its Business Practices with Importer, Importer covenants and agrees that during the term of this Agreement as well as for a period of two (2) years (twenty-four (24) consecutive months) after the effective date of any termination of this Agreement, that Importer and its affiliates shall not, directly or indirectly, on behalf of itself or any affiliate, own, manage, operate, control, enter into any business relationship or become affiliated in any way with any other company that provides services similar to the Business Practices or uses technology or electronic platforms similar to the Technology and shall itself refrain from engaging in such activities.
4.2. Prohibition Against Solicitation and Hiring. Importer covenants and agrees that during the term of this Agreement as well as for a period of two (2) years (twenty-four (24) consecutive months) after the effective date of the termination of this Agreement, that Importer shall not, directly or indirectly, on behalf of itself or any affiliate:
4.2.1. Employees. Contact, engage in employment-related discussions with, solicit or otherwise communicate with any of the employees of iFinca with the purpose of discussing the termination of such employees’ employment with iFinca. During such time, Importer also shall not, directly or indirectly, on behalf of itself or any affiliate, engage, employ or otherwise hire any of the employees of iFinca, regardless of where Importer is located or what business Importer is pursuing; or
4.2.2. Others Technology Users. In addition to the provisions of Section B.4.3, solicit or otherwise in any manner persuade or attempt to persuade any farmer, mill, exporter, other importer, roaster or customer of iFinca to discontinue its relationship with iFinca.
4.3. Non-Circumvention. In addition to the provisions of Section B.4.2.2, Importer covenants and agrees that during the term of this Agreement as well as for a period of two (2) years (twenty-four (24) consecutive months) after the effective date of any termination of this Agreement, Importer shall not, directly or indirectly, on behalf of itself or any affiliate, circumvent iFinca by establishing a business model similar to iFinca’s by contacting any of iFinca’s farmers, mills, exporters, other importers, roasters, customers or investors or any other contact learned or initiated through iFinca or iFinca’s Business Practices, including, without limitation, any individuals or entities that the Importer meets through iFinca or its affiliates. For the avoidance of doubt, Importer agrees not to participate in or launch any services or arrangements that are similar in form and substance to the Technology and the Business Practices.
4.4. Exclusivity. Importer agrees to use the Technology as its sole source to order, purchase or otherwise procure green coffee beans or Coffee Products via an electronic technology platform, including using blockchain or other verification-, security-, and accuracy-related tools, which permits the capability to track the origin of its green coffee bean purchases for its customers.
4.5. Review. In addition to and without derogating from the dispute settlement provisions of Sections B.5.5 and B.9.4, Importer, on behalf of itself and any affiliate, acknowledges and agrees that the provisions of Section B.4, including the covenant not-to-compete, the prohibition against solicitation and hiring, and the covenant of non-circumvention, are appropriate and reasonable when considered in light of the nature and extent of the business conducted by iFinca and the legitimate interests of iFinca. Importer further agrees that:
4.5.1. Public Policy. Such covenants do not unduly restrict Importer’s or any of its affiliate’s ability to source material or do business in light of Importer’s or any of its affiliate’s operations. If, however, any arbitrator of competent jurisdiction determines the provisions to be invalid, unreasonable, or against public policy, such as the specified time or the specified geographical area of the covenant is over-broad, then such portion of the applicable covenant shall be considered modified as necessary, such as being reduced as to time and geographical area. Thus, a modified covenant, such as a lesser time period or geographical area, that is determined to be valid, reasonable, and not against public policy shall be enforced against Importer.
4.5.2. Injunction. A violation of these covenants would cause irreparable injury to the interests of iFinca in its customer, supplier, and professional relationships and that a remedy at law would be inadequate. Importer further acknowledges that the covenants are a condition precedent and bargained-for element of this Agreement without which iFinca would not have entered into this Agreement and is in addition to and not in limitation of any other rights or remedies of iFinca, whether stated in the Agreement or otherwise. In the event of a breach by Importer or by any of its affiliates of any of these covenants, iFinca shall be entitled to injunctive and all other equitable relief, without the necessity of posting bond, other security or proof of damages, and the two (2) year (twenty-four (24) consecutive month) duration of the applicable covenant(s) shall be extended by the length of time during which Importer or its affiliate is in violation of same.
4.6. Affiliate. The term “affiliate” as used in Section B.4 means (i) if a natural person, any grandparent, parent, spouse, in-law, or the issue of any of the foregoing; (ii) if an entity, (a) any person or entity directly controlling, controlled by, managed by or under common control with such person or entity, (b) any person or entity owning or controlling five percent (5%) or more of the outstanding voting securities of such entity, or (c) any officer, director, partner, employee, agent, or representative of such entity.
5.1. iFinca Fee; Prices. Importer shall pay iFinca the iFinca Fee. The total iFinca Fee shall be provided upon placing an Order using the Technology. iFinca reserves the sole right, without restriction, to change the iFinca Fee from time to time and to make any final decision regarding pricing in all matters pertaining to the terms of this Agreement.
5.2. Payment. The provisions in this Section B.5.2 shall control to the extent of any inconsistency with those in Section A.3.
5.2.1. When Due. The iFinca Fee and any other payments due to iFinca shall be made in U.S. Dollars ten (10) days from Shipping Date or five (5) days after Shipping Confirmation, whichever is sooner.
5.2.2. Payment Method. Subject to Section B.3.3, Importer agrees to pay the iFinca Fee pursuant to payment instructions or any other pertinent instructions or requirements that iFinca will provide to Importer (collectively, the “Payment Instructions”).
5.3. Invoices. iFinca’s invoice to Importer (the “Invoice”) shall be delivered via the Technology, email or other means acceptable to the parties and shall include: (i) a description of the Coffee Products; (ii) the quantity and price of the Coffee Products ordered, including the total iFinca Fee; (iii) the Carrier and the Shipping Date; (iv) the Payment Instructions; and (v) any other pertinent instructions or requirements that do not conflict with this Agreement and which iFinca may require from time to time.
5.4. Taxes. Each party shall be responsible for the payment of their own taxes as further detailed in Section B.9.3.
5.5. Disputes. The parties shall meet promptly and diligently to resolve any disputes in accordance with Section B.9.4.
6. Insurance, Warranties, Duties, and Audit Rights
6.1. Insurance. Each party shall maintain such insurance as is commercially reasonable and appropriate for its performance of this Agreement. However, each party’s obligations and responsibilities under this Agreement shall not be limited in any manner to such insurance, including its availability or coverage. Importer shall maintain sufficient insurance to cover the Order and all shipping costs associated with the Order. Importer’s insurance obligations with respect to each Order shall commence when the Coffee Products have been delivered to the Carrier as detailed in Sections B.3.4 and B.3.5.
6.2. Warranties. Importer understands that the exporter, and not iFinca, is responsible for any and all warranties regarding the Coffee Products, including but not limited to exercising commercially reasonable efforts to supply the quality of Coffee Products requested by Importer, subject to commercially reasonable variation, in accordance with industry standards. IFINCA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING THE COFFEE PRODUCTS.
6.3.1. Representations. Each party represents and warrants that it shall use commercially reasonable efforts not to: (i) engage in any deceptive, misleading, or unethical practices; (ii) make any false or misleading representations with regard to the other party or its services; or (iii) make any representations, warranties, or guarantees to customers with respect to the capabilities of any party that the other party reasonably knows to be inconsistent with the other party’s capabilities.
6.3.2. Indemnity. Each party shall defend, indemnify, hold harmless, and insure the other from any and all damages, expenses or liability resulting from or arising out of: (i) any negligence or misconduct by the indemnifying party; or (ii) from any breach or default of this Agreement caused or occasioned by the acts or omission of such party.
6.3.3. Containers and Packaging. Importer understands that the Importer or exporter, and not iFinca, is responsible for ensuring that the Coffee Products are contained and packaged in conditions that are designed to preserve the Coffee Products in commercially reasonable condition for the duration of the expected shipping time and provided suitable storage throughout the duration of shipping to Importer’s designated location.
6.4. Audit Rights. Importer shall use iFinca Marks only on applicable Coffee Products ordered and received via the Technology pursuant to an Order. iFinca may examine Importer’s products relating to the Coffee Products at any time to determine whether the iFinca Marks have been used in accordance with this Agreement.
7.1. For Cause. Either party may terminate this Agreement immediately by written notice to the other party if the other party breaches any material provision of this Agreement.
7.2. No Cause. Either party may terminate this Agreement immediately by written notice if the other party: (a) liquidates, terminates, or materially reduces its business operations; (b) is adjudicated bankrupt, voluntarily files for reorganization, attempts an assignment for the benefit of its credits, or receivership, reorganization or any other similar proceeding is filed; or (c) fails to pay any amounts due under this Agreement and such amounts remain unpaid for longer than forty-five (45) days from the date payment is due pursuant to Section B.5.2.1.
7.3. Effect of Termination. Upon expiration or termination of this Agreement for any reason:
7.3.1. Grant of Rights. All licenses and other rights to the use of Intellectual Property Rights granted pursuant to this Agreement become null and void.
7.3.2. Orders. iFinca retains the sole right to determine whether to cancel, without liability, any Orders which have not been fulfilled prior to the effective date of termination.
7.3.3. Outstanding Amounts. All outstanding obligations or commitments to pay any amounts to either party shall immediately become due and payable.
7.3.4. Business Practices. Each party shall immediately cease and refrain from using any Business Practices of the other party, including any Confidential Information.
7.4. Survival. Notwithstanding any termination of this Agreement, the following provisions of this Agreement shall survive for the relevant period of time set forth therein, if any: Section B.4 (Covenant Not-to-Compete; Prohibition Against Solicitation and Hiring; Non-Circumvention; Exclusivity); Section B.6.3.2 (Indemnity); Section B.6.4. (Audit Rights); Section 8 (Limited Liability); Section 9.1 (Publicity); Section B.9.3 (Tax Payment Obligations); Section B.9.4 (Dispute Resolution); Section 9.5 (Representation and Promotion); Section B.9.10 (Waiver); and Part C, Exhibit A.
8. LIMITED LIABILITY
Notwithstanding any other provision in this Agreement, to the extent permitted by applicable law, (a) in no event shall iFinca be liable for direct damages of any kind even if Importer has been advised of the possibility of such damages, (b) in no event shall iFinca be liable for special (including punitive), consequential, incidental or indirect damages of any kind, including lost profits, loss of use, and personal injury even if Importer has been advised of the possibility of such damages, and (c) in any event, should an arbitral tribunal or court determine that damages are appropriate, the liability of iFinca to Importer for any reason and upon any cause of action shall be limited to the amount actually paid to iFinca by Importer under this Agreement. This limitation applies to all causes of action against iFinca in the aggregate, including without limitation, breach of contract, and breach of warranty (which should be none as this is expressly disclaimed in this Agreement), negligence, strict liability, misrepresentations and other torts. Both parties understand and agree that the remedies and limitations herein allocate the risks between the parties as authorized by applicable laws. The prices herein reflect, and are set in reliance upon, this allocation of risk and the exclusion of consequential and other damages as set forth in this Agreement.
9. Other Provisions
9.1. Publicity. Except as provided herein, each party agrees not to publicize or disclose the terms of Part A of this Agreement to any third party without the prior written consent of the other, except as required by law.
9.2. Independent Contractors. Importer is, and will remain, an independent contractor and is not and will not be an agent of iFinca. Importer will conduct its operations on its own behalf and for its own account. Importer has no power or authority to act for iFinca for any purpose and Importer will not, on behalf of or in the name of iFinca, either enter into any contract or undertaking or agreement of any sort or make any promise, warranty or representation with respect to iFinca or iFinca’s Business Practices, including without limitation the Technology or the Coffee Products, or any other matter.
9.3. Tax Payment Obligations. Pursuant to Section B.9.2, iFinca shall have an independent contractor status and not be an employee of Importer for any purposes, including but not limited to the application of the following U.S. and applicable state laws, regulations, rules or legal concepts: the Federal Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the provisions of the Internal Revenue Code, any applicable U.S. state revenue or taxation code relating to income tax withholding at the source of income, the Workers’ Compensation Insurance Code, benefit programs, and third party liability claims. Each party shall file its own U.S. federal and state corporate tax returns and pay any and all taxes owed in accordance with all provisions of applicable U.S. federal and state law and non-U.S. law. Importer hereby represents and warrants that it shall indemnify iFinca for any damages or expenses, including reasonable attorneys’ fees and other legal costs and expenses or penalties that may be incurred by iFinca arising from or related to Importer’s failure to timely remit any applicable taxes.
9.4. Dispute Resolution. In the event of disagreement with respect to any aspect of this Agreement, in accordance with Section B.5.5, the parties agree to discuss such disputes in good faith to reach an amicable resolution. Importer recognizes that money damages are not an adequate remedy for any breach or threatened breach of any obligation under this Agreement involving iFinca’s Business Practices, including its proprietary rights or Confidential Information. Importer therefore agrees that in addition to any other remedies available under this Agreement, by law or otherwise, iFinca shall be entitled to an injunction against any breach or threatened breach by Importer of such obligations without the necessity of posting bond, other security or proof of damages. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement (including, without limitation, disputes, controversies or claims arising out of the breach, termination or validity of this Agreement), whether legal or equitable, shall be finally resolved by arbitration. The arbitrator or arbitration tribunal, as set forth in this paragraph, shall have the power to rule on any challenge to its own jurisdiction or to the validity or enforceability of any portion of the agreement to arbitrate. THE PARTIES AGREE TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS, AND EXPRESSLY WAIVE THE RIGHT TO ARBITRATE ON ANY TYPE OF CLASS, REPRESENTATIVE OR OTHER MULTI-PARTY BASIS. THE ARBITRATOR OR ARBITRATION TRIBUNAL MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S OR ONE ENTITY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. NOTWITHSTANDING THE ARBITRATOR’S OR ARBITRATION TRIBUNAL'S POWER TO RULE ON ITS OWN JURISDICTION AND THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE, THE ARBITRATOR OR ARBITRATION TRIBUNAL HAS NO POWER TO RULE ON THE VALIDITY OR ENFORCEABILITY OF THE AGREEMENT TO ARBITRATE SOLELY ON AN INDIVIDUAL BASIS. IN THE EVENT THE PROHIBITION ON CLASS ARBITRATION IS DEEMED INVALID OR UNENFORCEABLE, THEN THE REMAINING PORTIONS OF THIS PARAGRAPH SHALL REMAIN IN FORCE. Either Party may institute an arbitration proceeding by filing a claim for binding arbitration with the American Arbitration Association (the “AAA”) pursuant to its Commercial Arbitration Rules (the “Rules”). The Expedited Procedures of the Rules shall apply when the amount in controversy set forth in R-1(b) of the Rules is met or when the parties mutually agree in writing that such procedures should govern the arbitration. The parties expressly disclaim the rules of the AAA’s International Centre for Dispute Resolution (“ICDR”). At the time of filing the claim the filing Party shall provide the other with a copy of the filing. Any arbitration shall be undertaken pursuant to the U.S. Federal Arbitration Act, as amended, and the decision of the arbitrator shall be final, binding, and enforceable in any court of competent jurisdiction. The parties have agreed to execute this Agreement exclusively in the English language, which shall control for all purposes, and any dispute or communications, written and oral, between the parties or the arbitrator shall be conducted exclusively in the English language, including, without limitation, the award of the arbitrator. This Agreement shall be governed by and construed in accordance with the laws of the U.S. State of New York without regard to conflict of law principles (that might dictate the application of the laws of another jurisdiction). The place of arbitration shall be in Washington, D.C., and each of the parties waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of any such legal proceeding shall be heard and determined only pursuant to the AAA Rules and agrees not to bring any legal proceeding arising out of or relating to this Agreement in any court or before any other arbitral body. There shall be one (1) arbitrator unless the amount in controversy exceeds One Million Dollars ($1,000,000), in which case either Party may elect to require a panel of three (3) arbitrators. The single arbitrator shall be selected by mutual agreement of the parties, and if the parties cannot agree, the arbitrator shall be selected as prescribed in the Rules. In the event the amount in controversy permits one party to elect to require a panel of three (3) arbitrators, and a party exercises such right, each party shall select one arbitrator and the two arbitrators shall select an independent third arbitrator to act as the chief arbitrator. The parties shall share equally the fees and expenses of the arbitrator(s) until conclusion of the matter. The arbitrator shall award to the prevailing Party all of its costs and fees. “Costs and fees” mean all reasonable pre- and post-award expenses of the arbitration, including the arbitrator’s fees, administrative fees, travel expenses, out-of-pocket expenses such as copying and telephone, court costs, witness fees, attorneys’ fees, and interest (calculated consistent with 28 U.S.C. § 1961). The decision of the arbitrator shall be accompanied by a reasoned opinion, subject to the limitations stated in this Agreement, based on applicable law and judicial precedent, final and binding upon the parties, and not subject to appeal. Except as may be required by law, neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
9.5. Representation and Promotion. Importer shall not do anything that may prevent sales or interfere with the development of sales of the Coffee Products or the Technology. During the Term and following any termination of this Agreement, for any reason, neither party shall make any disparaging remarks, whether in writing or verbally, about the other party, its parents, subsidiaries, affiliates, members, and each of their employees, owners, officers and agents.
9.6. No Assignment. Importer may not assign or transfer (by operation of law or otherwise) any of the rights or responsibilities set forth herein without the express written consent of iFinca, and any purported attempt to do so shall be deemed null and void ab initio.
9.7. Severability. If any provision of this Agreement is held to be invalid or unenforceable pursuant to the dispute settlement provisions contained in Section B.9.4, then the remaining provisions will nevertheless remain in full force and effect, and the parties will negotiate in good faith a substitute, valid and enforceable provision which most nearly effects the parties’ intent in entering into this Agreement.
9.8. Headings. The captions and headings used in this Agreement are for convenience in reference only, and are not to be construed in any way as terms or be used to interpret the provisions of this Agreement.
9.9. Non-Restrictive Relationship. Nothing in this Agreement shall be construed to preclude iFinca from independently developing, acquiring from other third parties, distributing or marketing services or other products which may perform the same or similar functions as those provided for under this Agreement.
9.10. Waiver. Neither party’s failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or forfeiture of any such or other rights.
9.11. Force Majeure. Except for the duty to pay, nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions or other similar reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party, provided that the non-performing party gives prompt notice of such conditions to the other party and makes all reasonable efforts to perform.
9.12. Precedence. In the event of a conflict between the provisions of this Agreement and any Order, the provisions of this Agreement shall take precedence. In the event of a conflict between the provisions of any part of this Agreement, the terms of Part B shall take precedent over Part A and Part C, and Part C shall take precedence of Part A.
9.13. Counterparts. This Agreement may be executed in counterparts, which together shall constitute one agreement binding on the Parties. Counterparts may be delivered via electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com or The Technology) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
9.14. Notice. Except for placing and accepting an Order pursuant to Section B.3.2, all notices that are required to be given under this Agreement shall be in writing and shall be sent to the respective address set forth in Part A or such other address as each party may designate by notice given in accordance with this section. Any such notice may be delivered by hand, by overnight courier, or by first class pre-paid letter, and shall be deemed to have been received: (i) by hand delivery, at the time of delivery; (ii) by overnight courier, on the succeeding business day; and (iii) by first class mail, two business days after the date of mailing. As a courtesy, when practicable, the parties shall send a copy of any notice by email.
9.15. Authorized Representative. Each party represents, warrants and covenants that: (i) execution, delivery and performance hereof has been duly authorized by all necessary corporate action and shall not contravene any law or the provisions of any agreement; (ii) the individual(s) executing such was duly authorized to do so; and (iii) this Agreement is a legal, valid and binding agreement and enforceable in accordance with its terms.
9.16. Entire Agreement & Modification. This Agreement represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written agreements, negotiations, commitments and representations, if any, with respect thereto. This Agreement cannot be modified by Importer except by a written instrument signed by duly authorized representatives of both parties hereto. No oral communication or electronic acceptance of a purported agreement using an “I Accept” or similar acceptance method shall constitute an amendment hereto. Notwithstanding the preceding, iFinca reserves right, in its sole discretion, to modify the terms of Part B or Part C, which shall become effective upon notice to Importer or ten (10) calendar days after posting on iFinca’s website or via the Technology, whichever is sooner.
10. Contact Information:
1241 Adams Street, Suite 1096
Saint Helena, CA 94574
Telephone: +1 888-684-4220
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