The provision of all intermediary finder, consultancy services in connection with logistic management or solutions and, if applicable warehousing services, by Forceget Logistic, LLC or its Affiliate (“Forceget”) is governed by this General Terms and Conditions (“General Term”) including without limitation all schedules, exhibits, and addenda (“Customer Schedules”) (General Term and Customer Schedules are collectively referred herein as the “Agreement”) entered between Forceget or its Affiliate and the customer identified in the signature section (“Customer”). The Agreement is effective as of the date in the signature section (the “Effective Date”). In the event of a discrepancy between the General Term and the Customer Schedules, the provisions of this General Term shall prevail.
“Affiliate” means an entity or entities or representative offices, directly or indirectly controlling, controlled by, or under common control with Forceget. The term “control” as used in the immediately preceding sentence means where control may be by either management authority, contract or equity interest.
“Applicable Law” means any applicable law (including those arising under common law), statute, regulation, rule, or any ruling of a court or other body of competent jurisdiction, reporting or licensing requirement, ordinance and other pronouncement having the effect of law of the United States, any foreign country, or any domestic or foreign state, county, city, or other political subdivision, including that promulgated, interpreted, or enforced by any governmental or regulatory authority.
“Customer” shall mean the person or entity who is identified in the signature section and/or at whose request the Services are provided.
“Deliverables” means all work produced or otherwise provided by Forceget under the terms of the Agreement, whether preliminary or final, whether identified on an Order Form or not, and on whatever media rendered, including, without limitation, custom software (including any object or source code related thereto), works of authorship, any documentation, user manuals, instructions or specifications provided by Forceget in connection therewith, updates, expressions, improvements, enhancements, modifications, solutions, research, patterns, devices, methods, drawings, schematics, processes, versions, specifications, objects, tools, operating instructions, opinions and documentation, which are first conceived or made or first actually or constructively reduced to practice pursuant to the Agreement.
“Documentation” means any written or electronic descriptions, instructions, or other documentation describing the operation or functionality of the Services that Forceget makes available to Customer.
“Service”or “Services” shall mean any intermediary finder and consultancy services in connection with logistic management or warehousing services provided by Forceget to the Customer at the Customer’s request whether such Service be gratuitous or not.
2. Services Terms
a. Scope of Services. The scope of Services to be performed by Forceget will be mutually agreed to and set forth on an Order Form signed by both parties. Customer agrees to purchase and Forceget agrees to provide the Services described in the Order Form, subject to Customer’s payment of the required fees and expenses. In the event Customer desires to modify the scope of the Services after the parties have executed the Order Form and Forceget determines that such modifications would require services materially in excess of the Services or in addition to its obligations under these General Terms or an Order Form, or extend the time needed to complete the Services, Forceget will be under no obligation to perform such modified services unless both parties execute an amended Order Form.
b. No Carriage of Contract, Freight Forwarder, Non-Vessel Operating Common Carrier or Custom Broker. The Services of Forceget are not intended to be and shall in no event be construed as services for contract-for-carriage, transportation, non-vessel operating common carrier, freight forwarder or custom broker. Customer agrees and acknowledges that Forceget is acting intermediary finder on behalf of the Customer to identify and introduce potential intermediary freight forwarder or non-vessel operating common carrier or carrier ( carrier for all modes of transportation such as air, train, road, multimodal) or custom broker (all of the foregoing is referred herein as “Logistic Service Provider”), to the Customer, as the case maybe, depending on the scope of Services requested by the Customer.
c. Supply Chain Solutions. As a consultant, Forceget responsibility is to provide consultancy on logistic supply chain solutions and management in connection with the carriage, clearance, delivery of goods and/or warehousing needs of the Customer, and further introducing the potential Logistic Service Provider and assisting the Customer, in its communication with the potential Logistic Service Provider.
d. No Liability For the Selection or Services of Logistic Service Provider and/or Routes. Forceget shall use reasonable care in addressing and introducing the potential Logistic Service Provider in connection with the requests of the Customer. Customer agrees that pursuant to [express written instructions] from the Customer, Logistic Service Provider shall be selected and engaged by the [Customer]. Advice by Forceget that a particular Logistic Service Provider is available to render services with respect to the goods without limitation, carriage, handling, custom clearance, delivery of shipment or warehousing goods, shall not be construed to mean that the Forceget warrants or represents that Logistic Service Provider will render such services nor does Forceget assume responsibility or liability for any action(s) and/or inaction(s) of such Logistic Service Provider and/or its agents (without limitation in selecting the means, route and procedure to be followed in the handling, transportation, clearance and delivery of the shipment). Forceget shall not be liable for any delay or loss of any kind, which occurs while the goods are in the custody or control of Logistic Service Provider or its agents; all claims in connection with the act of a Logistic Service Provider or its agents or a third party shall be brought solely against such party and/or its agents; in connection with any such claim, Forceget shall reasonably cooperate with the Customer provided that Customer shall be liable for any charges or costs incurred by the Forceget. [Customer acknowledges that Forceget is not acting as the “agent” of the Customer but rather third party Logistic Service Provider shall act as the “agent” of the Customer for the purpose of performing duties in connection with importer security filing services, the entry and release of goods, post entry services, the securing of export licenses, the filing of export documentation on behalf of the Customer and other dealings with Government Agencies].
e. Reliance on the Information Provided by the Customer. Customer shall insure the correctness and completeness of all information provided to Forceget for the provision of Services under this Agreement, and shall indemnify and hold Forceget and its directors, officers, employees, authorized representatives and subcontractors harmless from any and all claims asserted and/or liability or losses or penalties suffered by reason of any incorrect, incomplete or false statement upon which Forceget reasonably relied. Customer acknowledges that regardless of Customer’s selection and engagement with the Logistic Service Provider, still the Customer has an affirmative non-delegable duty to disclose any and all information required to submit an importer security filing, import, export or enter the goods to a jurisdiction in compliance with the applicable import and export laws. Moreover, the Customer is required to review all documents and declarations prepared and/or filed with U.S. Customs and Border Protection, other Government Agency and/or third parties, and will immediately advise the Logistic Service Provider of any errors, discrepancies, incorrect statements, or omissions on any declaration filed on Customer’s behalf.
f. Time Limitation. Forceget reserves the right to withdraw any proposed Order Form and redefine the description of Services and fees set forth thereupon if such Order Form has not been executed by Customer within the expiration date specified in the applicable Order Form. Customer agrees that fees or 3 costsidentified in an Order Form as estimates are provided as a convenience only and will not be binding.
g. Cooperation & Consent. Customer further agrees to take any and all actions necessary to enable Forceget to perform the Services in an effective and efficient manner. Customer, from time to time, at the request of Forceget, shall execute, acknowledge, and deliver to Forceget and/or Logistic Service Provider any and all further instruments (without limitation, forms, consents, power of attorney, authorization, permit) and take such steps which may be reasonably required to give full force and effect to the provisions of the Order Form.
3. Fees and Payment; Taxes.
a. Rates and Expenses. Customer agrees to pay Forceget for all time in connection with the performance of Services pursuant to these General Terms on a time and materials basis in accordance with hourly billing rates (“ Rate”) or fees in effect as of the date the applicable Order Form is executed by Forceget, or as otherwise agreed in an executed Order Form. Customer further agrees to reimburse Forceget for all reasonable expenses incurred by Forceget in connection with the performance of Services pursuant to these General Terms, including, without limitation, all Logistic Service Provider payments, travel expenses (including transportation, meals, lodging, relocation, and all other travel-related expenses), technical support expenses, telephone and facsimile expenses, computer usage, and document preparation and reporting expenses.
b. Invoices. Invoices for Rate, fees and expenses will be due and payable in full upon receipt by Customer. All such fees will be fully earned when due and nonrefundable when paid. Invoices not paid within thirty (30) days from the invoice date will bear interest from the invoice date until paid at a rate of one and one-half percent (1.5%) per month or the maximum rate permitted by Applicable Law, whichever is less. All payments by Customer to Forceget hereunder for fees and expenses will be net of any sales or services tax, VAT, or any other tax of any kind whatsoever imposed by a governmental authority with respect to the services rendered, products provided, or expenses incurred under the Agreement (other than a tax imposed upon the income or profits of Forceget). Time is of the essence for all payments under this Agreement, and in the event any payment due FORCEGET is collected at law or through an attorney-at-law, or under advice therefrom, or through a collection agency, Customer agrees to pay all costs of collection, including, without limitation, all court costs and reasonable attorneys’ fees.
Credit Card Payment. Customer agrees that Forceget may, in its sole discretion, allow the Customer to pay Fees by debit or credit card (that is, “charge” the Customer). If the Customer will pay by charge, the Customer agrees to provide Forceget with an authorized credit card name, number and date of expiration, and proper debit authorization for purposes of allowing Forceget to charge the applicable account to collect Fees due under this Agreement. By authorizing Forceget to charge a credit or charge card, the Customer is authorizing Forceget or its respective designated representatives or agents to automatically continue charging that card (or any replacement credit card account if the original card is renewed, lost, stolen, or changed for any reason by the credit-issuing entity, and such entity informs Forceget of such new replacement card account) until this Agreement is terminated and all Fees are paid in full. If the Customer’s credit card fails to validly pay the Fees due to Forceget, Forceget may terminate or suspend, in its sole discretion, the services and/or this Agreement.
ACH Payment. Parties agree that all payments due and owing under this Agreement, at Forceget’s election, can be made through automated clearing house (“ACH”) transfers from the Customer’s designated operating account (the “Payment Account”) directly to Forceget. In this regard, if Forceget elects to receive payments through ACH, the Customer hereby agrees to execute and deliver to Forceget an authorization agreement for direct payments whereby, among other things, Forceget shall be irrevocably authorized to initiate ACH transfers from the Payment Account to Forceget in the amounts required or permitted under this Agreement and all Order Forms. For so long as any payments, Fees 4 remain outstanding, Customer shall: (i) not revoke Forceget’s authority to initiate ACH transfers as hereby contemplated; (ii) not change, modify, close or otherwise affect the Payment Account; (iii) deposit sufficient monies into the Payment Account to cover the payments and Fees; and (iv) be responsible for all costs, expenses or other fees and charges incurred by Forceget as a result of any failed or returned ACH transfers, whether resulting from insufficient sums being available in the Payment Account, or otherwise.
c. Forceget’s Right to Suspend Service and to Recover Costs of Collection. In the event payment is not made when due, Forceget reserves the right in its sole discretion to suspend all services and all amounts owed shall immediately become due and payable. Forceget will further be entitled to all costs of collection, including reasonable attorneys’ fees.
d. Change in Fee or Condition(s). In the event of agreed fees for prospective services (“Fees”), such fees are based on and in reliance upon certain key assumptions or design criteria supplied to Forceget by or on behalf of Customer (“Conditions”). In the event a change in any Conditions (i.e., a change that is encountered over the course of time and is anticipated to be ongoing) (“Changed Condition”), which (i) increases the obligations or costs of Forceget or adversely affects the ability of Forceget to perform the Services, or (ii) decreases the Fees to which Forceget would otherwise be entitled under the Agreement had the change not occurred, Forceget shall provide written notice of the same to Customer. Customer shall specify in its notice in reasonable detail the impact of the Changed Condition on the Services and the corresponding change to the then current Fees (the “Notification”). In the event Customer objects to any changes to Forceget’s proposed fees pursuant to this Section 3.d, Customer shall provide written notice of such objection to Forceget within five business days of the Notification. If Customer does not provide such written notice, then the Parties’ agreement as may exist shall be deemed amended to reflect such change in Fees. If Customer objects in writing to any changes in proposed fees, the Parties shall use their good faith efforts to negotiate and reach agreement regarding the proposed fees within five business days after receipt of Customer’s written notice of objection to the proposed fees. Notwithstanding anything in the Agreement to the contrary, if the Parties are unable to reach agreement within the five business day period described in the preceding sentence, then both Parties shall escalate the matter to their respective senior officers who will use their good faith efforts to negotiate and reach agreement regarding the proposed fees within the subsequent ten business day period. If the Parties reach agreement with respect to the proposed fees during the cumulative 15 business-day period described above, such proposed fees will be in effect as of the date of the Notification. Customer shall pay Forceget such fees, and the Parties shall amend the applicable agreement accordingly to reflect such change in Fees in accordance with these General Terms. If the Parties are not able to reach agreement with respect to the proposed fees during the cumulative 15 business day period described above, then Forceget may terminate the impacted agreement (or its applicable service schedule / statement of work) upon written notice to Customer, and Customer shall pay all fees due and outstanding through the date of termination and any termination costs set forth in the Parties’ agreement as may exist. Forceget shall not be liable for failure to meet performance commitments due to a Changed Condition, unless Forceget specifically agrees in writing to the contrary.
4. Term and Termination. This Agreement will remain in effect until all and all applicable Order Forms, have expired or have been terminated in accordance with the General Terms. Any Order Form may be terminated individually in accordance with the Applicable Terms and Conditions applicable to the identified Forceget. Either party may, at its election, upon thirty (30) days prior written notice, terminate the Agreement; provided, however, that the termination of the Agreement will not affect in any way any right or claim of any party hereto incurred or accruing prior to the date of termination, including without limitation, any right or claim of Forceget for compensation payable for Services rendered or reimbursable expenses incurred prior to such termination date.
5. Insurance. Unless requested by the Customer to do so in writing in sufficient time prior to performance of any Services and confirmed by Forceget in writing, Forceget is under no obligation to procure insurance on Customer’s behalf. Forceget does not undertake or warrant that such insurance can or will 5 be placed. Any insurance placed with one or more insurance companies or other underwriters to be selected by Forceget on behalf of the Customer, shall be governed by the certificate or policy issued and accepted by such insurance companies or underwriters. In all cases, Customer shall pay all premiums and costs in connection with procuring requested insurance. Should an insurer dispute its liability for any reason, the insured shall have recourse against the insurer only and Forceget shall not be under any responsibility or liability in relation thereto, notwithstanding that the premium upon the policy may not be at the same rates as that charged or paid to Forceget by the Customer or that the goods was insured under a policy in the name of the Forceget. If for any reason the goods are held in warehouse, or elsewhere, the same will not be covered by insurance, unless Forceget receives specific written instructions from the Customer and Forceget confirms in writing.
6. Confidentiality. Each party (the “Receiving Party”) agrees to treat as confidential and not disclose to others public) that is revealed, either orally or in writing, to the Receiving Party by the other party or its Affiliates (the “Disclosing Party”) or the Disclosing Party’s designated subcontractor that (a) is marked as “Confidential”, “Proprietary”, or “Restricted” or other similar term, (b) if disclosed orally, has been confirmed in writing as confidential within ten (10) days of disclosure, or (c) the nature of the information is such that a reasonable person would consider the information to be confidential or proprietary (collectively, “Confidential Information”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose of its own, other than in its performance under the Agreement, and will not commercialize any of the Disclosing Party’s Confidential Information. The Receiving Party will restrict accessto the Disclosing Party’s Confidential Information to its(i) employees who are required to have access to such Confidential Information, and (ii) agents, consultants, and contractors who are required to have access to such Confidential Information who have executed, in advance of any such disclosure, a confidentiality or non-disclosure agreement with obligations of confidentiality no less restrictive than the requirements of the Agreement. The restrictions contained in this Section will not apply to any information that (i) is in package manifest information or package level detail or custom declaration form or bill of lading, including an addressee’s full name, complete delivery address, email address and phone number, and a package’s weight and measurements, (ii) is at the time of disclosure, orsubsequently becomes part of, the public domain through no improper or negligent act of the Receiving Party, (iii) is in the possession of the Receiving Party prior to its receipt of such information from the Disclosing Party, as evidenced by the Receiving Party’s written records prior to the time of disclosure, (iv) has been independently developed by the Receiving Party without the benefit or use, directly or indirectly, of the Disclosing Party’s Confidential Information; (v) is rightfully received by the Receiving Party from a third party without restriction and without breach of the Agreement or any other agreement; (vi) is approved for release by written authorization of the Disclosing Party; or (vii) is required to be disclosed by operation of law, provided, however, the Receiving Party must first notify the Disclosing Party in writing of such requirement, unless such notice is prohibited by statute, rule or court order. Nothing herein will require either party to fail to honor a subpoena, court or administrative order or requirement on a timely basis. Each party will cooperate with the other in an effort to limit the nature and scope of any required disclosure of Confidential Information. The Confidential obligation of the parties shall survive for a period of one year following the termination expiration of this Agreement.
7. Disclaimers. (A) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, ANY DELIVERABLE, SERVICE, DOCUMENT AND ANY OTHER ITEMS PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND ANY HOSTED SERVICE PROVIDED UNDER THIS AGREEMENT IS PROVIDED “AS AVAILABLE.” (B) EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT, FORCEGET AND ITS THIRD PARTY LICENSORS MAKE NO WARRANTY, REPRESENTATION, GUARANTEE, CONDITION, UNDERTAKING, OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AS TO THE CONDITION, 6 QUALITY, DURABILITY, PERFORMANCE, TITLE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, OR USE OF THE DELIVERABLES, SERVICES, AND ANY OTHER ITEMS PROVIDED UNDER THIS AGREEMENT OR AS TO THE CONTINUOUS, UNINTERRUPTED, OR SECURE ACCESS TO ANY HOSTED SERVICE, AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW, AS ARE ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE. (C) NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FORCEGET OR ANY FORCEGET REPRESENTATIVE WILL CREATE A WARRANTY. FORCEGET IS NOT RESPONSIBLE FOR CUSTOMER MISUSE OR ABUSE OF ANY DELIVERABLES, SERVICES OR PRODUCTS OR THE COMBINATION OF DELIVERABLES, SERVICES OR PRODUCTS WITH ANY PRODUCTS OR SERVICES NOT APPROVED IN WRITING FORCEGET.
8. Limitation of Liability. ACCORDINGLY, FORCEGET AND ITS THIRD PARTY LICENSORS WILL NOT BE HELD RESPONSIBLE OR LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY LOSS OR DAMAGE CAUSED OR ALLEGED TO HAVE BEEN CAUSED BY CUSTOMER’S INABILITY TO ACCESS THE SERVICES OR FORCEGET NETWORK. CUSTOMER AGREES THAT IN CONNECTION WITH ANY AND ALL SERVICES PERFORMED BY THE FORCEGET, THE FORCEGET SHALL ONLY BE LIABLE FOR ITS NEGLIGENT ACTS, WHICH ARE THE DIRECT AND PROXIMATE CAUSE OF ANY INJURY TO THE CUSTOMER, INCLUDING LOSS OR DAMAGE TO CUSTOMER’S GOODS, AND THE FORCEGET SHALL IN NO EVENT BE LIABLE FOR THE ACTS OF THIRD PARTIES AND LOGISTIC SERVICE PROVIDER. IN CONNECTION WITH ALL SERVICES PERFORMED BY FORCEGET, CUSTOMER MAY OBTAIN ADDITIONAL LIABILITY COVERAGE SEPERATELY. NOTWITHSTANDING THE FOREGOING, FORCEGET’S LIABILITY SHALL BE LIMITED TO THE FOLLOWING: (A) IN NO EVENT WILL FORCEGET, ITS AFFILIATE’S CUMULATUVE AGGREGATE LIABILITY UNDER THIS AGREEMENT OR TORT OR STATUTE OR ANY THEORY WHATSOVER, EXCEED TWO TIMES THE AMOUNT OF THE INVOICE(S) ISSUED BY FORCEGET IN CONNECTION WITH THE DISPUTED SERVICES (B) IN NO EVENT SHALL FORCEGET BE LIABLE OR RESPONSIBLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY AND ALL LOSS OR DAMAGES ARISING FROM DELAY OF SERVICES or UNDER THIS AGREEMENT. THE LIMITATION OF LIABILITY PROVIDED UNDER THIS SECTION WILL BE APPLICABLE ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN THE EVENT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF FORCEGET OR IN THE EVENT OF PERSONAL INJURY OR DEATH.
9. Claim Procedure, Time for Claim and Suit against Forceget and Waiver. As a condition precedent for liability, any and all claims against Forceget for a potential or actual loss or damage must be filed in writing within sixty (60) days from the event giving rise to the claim, or such claim is otherwise waived. Any litigation brought by Customer against Forceget under this Agreement must be filed within one (1) year from the event giving rise to the claim, or such claims are otherwise waived
10. Intellectual Property Claims. Subject to the limitations set forth in Section 8 above, Forceget will defend Customer from and against any third party claims that the Deliverables, as provided by Forceget infringe any third party’s United States patent, copyrights, or trademarks issued as of the Effective Date (collectively, “Claims”). Subject to Section 8 (A) & (B) above, FORCEGET will further pay amounts payable to third parties in connection with any settlement or compromise of a Claim approved by Forceget and pay all damages awarded by a competent court via a judgment where all appeal rights exhausted, to third parties relating to a Claim, including court costs and reasonable attorneys’ fees awarded. Forceget’s obligations under this Section will not apply to the extent (i) Customer has modified 7 or altered the Deliverables,(ii) such Claim arises from Forceget’s compliance with any of Customer’s specifications or requests, if the alleged infringement would not have arisen but for such compliance.
11. Indemnification/Hold Harmless. The Customer agrees to indemnify, defend, and hold Forceget harmless from any claims and/or liability arising from importer security filing services, the importation or exportation of Customer’s merchandise and/or any conduct of the Customer, which violates any Federal, State and/or other laws, applicable import and export laws, and further agrees to indemnify and hold Forceget and its directors, officers, employees and authorized representatives harmless against any and all liability, loss, damages, costs, claims and/or expenses, including but not limited to reasonable attorney’s fees, which Forceget may hereafter incur, suffer or be required to pay by reason of such claims, including any claims by any third party or Logistic Service Provider for freight or other charges, duties, fines, penalties, liquidated damages or other money due arising from services provided to or on behalf of the Customer. The confiscation or detention of the goods by any governmental authority shall not affect or diminish the liability of the Customer to Forceget to pay all charges or other money due promptly on demand. In the event that any claim, suit or proceeding is brought against Forceget, it shall give notice in writing to the Customer by email and mail at its address on file with Forceget.
12. General Lien And Right To Sell Customer’s Property. (a) In the event of provision of warehousing services in accordance with the agreed Order Form, Forceget shall have a general and continuing lien on any and all property of Customer coming into Forceget’s actual or constructive possession or control for monies owed to Forceget with regard to the goods on which the lien is claimed; (b) Forceget shall provide written notice to Customer of its intent to exercise such lien, the exact amount of monies due and owing, as well as any on-going storage or other charges; (c) Unless, within twenty days of receiving notice of lien, Customer posts cash or letter of credit at sight, or, if the amount due is in dispute, an acceptable bond equal to 110% of the value of the total amount due, in favor of Forceget, guaranteeing payment of the monies owed, plus all storage charges accrued or to be accrued, Forceget shall have the right to sell such shipment(s) at public or private sale or auction and any net proceeds remaining thereafter shall be refunded to Customer.
13. No Duty To Maintain Records For Customer. Customer acknowledges that pursuant to Sections 508 and 509 of the Tariff Act, as amended, (19 USC §1508 and §1509) it has the duty and is solely liable for maintaining all records required under the Customs and/or other Laws and Regulations of the United States; unless otherwise agreed to in writing, the Forceget shall only keep such records that it is required to maintain by Statute(s) and/or Regulation(s), but not act as a “recordkeeper” or “recordkeeping agent” for Customer.
14. No Duty To Provide License. As required by the State of New York, each Party individually agrees to comply with laws and regulations imposed to their businesses. One part’s lack of compliance with said laws and regulations does not relinquish that party’s obligation(s) set forth in this Agreement.
15. Severability. If any provision of this Agreement, or the application thereof to any circumstance, person or place, shall be held by a court or other tribunal of competent jurisdiction to be invalid, unenforceable or void, the remainder of this Agreement and such provisions as applied to other circumstances, persons or places shall remain in full force and effect.
16. Data Use and Protection. Customer warrants that (i) in regards to the data (including but not limited to any information that identifies or that can be used to identify a natural person, directly or indirectly) which the Customer provides to Forceget (if any) with respect to performance under this Agreement (the “Data”), Customer has collected the Data lawfully and has the right to provide such data to Logistic Service Provider for processing consistent with the terms of this Agreement, (ii) Customer’s provision of the Data to Forceget will not be in breach of Applicable Law, (iii) the Data does not and will not violate, infringe upon, or misappropriate the intellectual property rights or other personal or proprietary rights of any person or entity or violate the terms of any agreement of Customer with any third party, (iv) as required by Applicable Law, Customer has provided all required notices to and secured all required 8 consents from the subject(s) of such Data prior to provision of such Data to or use of the Data by Forceget.
17. Governing Law; Venue; Arbitration.
a. Applicable Law. The Agreement will be governed by and construed and enforced in accordance with the laws of the New York, United States, excluding its principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods 1980 does not apply to the
b. Disputes – United States. If Customer’s jurisdiction of establishment is the United States, the parties hereby irrevocably agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The controversy shall be submitted to and settled by one arbitrator. The arbitrators will be selected from the East Coast. The locale will be New York City, New York. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to enforce such award. The award of the arbitrators shall be final and binding, will be the sole and exclusive remedy between the parties. Notwithstanding anything herein to the contrary, Forceget will be entitled to seek interim relief or provisional remedies, and both parties are entitled to enforce judgments or awards, before any court having jurisdiction.
c. Disputes- Other. If Customer’s jurisdiction of establishment is any jurisdiction outside the United States any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration in accordance with the United Nations Commission on International Trade Law Arbitration Rules in effect on the date of this Agreement (the “Rules”), and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Arbitration will be administered by the American Arbitration Association in accordance with its “Procedures for Cases under the UNCITRAL Arbitration Rules”, applying the substantive laws of the State of New York and the United States. The award will be rendered in the English language, and the arbitration will be held in (A) Miami, Florida, United States of America if Customer is established in Central or South America, (B) London, England if Customer is established in Europe, (C) Singapore, if Customer is established in the Asia-Pacific region, or (D) New York City, New York, United States of America, if Customer is established in any other jurisdiction. There will be three arbitrators who must be fluent in English. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction to enforce such The award of the arbitrators shall be final and binding, will be the sole and exclusive remedy between the parties regarding such dispute, and the parties explicitly waive request for review under Article V Section 1 of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The arbitration agreement set forth in this section 16(c) will be binding upon the parties, their successors and permitted assignees, and the rights and obligations of the parties shall remain in full force and effect pending the enforcement of any award in any arbitration proceeding hereunder, notwithstanding termination, for any reason, of this Agreement.
18. Force Majeure. Forceget will not be liable or responsible for any delay or failure in performance resulting from any event, circumstance or condition that is beyond its reasonable control, including, without limitation, acts of God, hurricane, tornado, rain, flood, sinkhole, wind, hail, lightning, earthquake, snow or ice, extreme high or low temperatures, water or gas main break, cable cut, fire, explosion, riot, terrorist act, military action, epidemics, any other act or failure to act on the part of a governmental authority or third party, strike, lockout, or other labor problem, transportation delay, unavailability of fuel, supplies or materials, or change in or in the interpretation of any law or regulation (each a “Force Majeure Event”).
19. Modifications; No Waiver. The terms and conditions of the Agreement may not be amended, waived, or modified, except in writing signed by the party to be charged No failure or delay of either party to exercise any rights or remedies under the Agreement or any component thereof will operate as a waiver such rights or remedies, nor will any single or partial exercise of any rights or remedies preclude any further or other exercise of the same or any other rights or remedies, nor will any waiver of any rights or remedies with respect to any circumstances be construed as a waiver thereof with respect to any other circumstances. Any proposal for additional or different terms, or any effort by Customer to vary the terms of this Agreement, is hereby objected to and rejected.
20. Headings. The headings of sections of the Agreement are for convenience of reference only and will not affect the meaning or interpretation of the Agreement in any
21. Survival. Notwithstanding anything herein or in the Agreement to the contrary, the provisions of Sections 1, 2(b) -(g), 3 – 9 and 12, 18 and 22 – 23 of these General Terms will survive the termination or expiration of the Agreement.
22. No Use of Trademarks. Neither Party may use the other Party’s or its affiliates’ name, logo, trademarks, service marks or trade names without the other Party’s prior written consent; provided however, Forceget may disclose Customer’s name as a reference to any current or prospective
23. Non-Solicitation of Personnel. During the term of this Agreement and for one year after its expiration or termination, neither Party may actively solicit the employment of any employee of the other Party, which employee was engaged in the performance of this Agreement. Notwithstanding the foregoing, neither Party may be precluded from conducting general recruiting activities, such as participating in job fairs or publishing advertisements for general If the soliciting Party violates this Section 24, then such Party shall pay to the other Party an amount equal to one year’s salary for any solicited employee as liquidated damages. The amount of annual salary will be the annual salary in effect at the date the employee was solicited. The Parties agree that such amount is a reasonable estimate of the damages to be suffered by the aggrieved Party in such an event, which damages would be difficult to ascertain, and that such amount is not intended to be a penalty.
24. Assignment. The rights and obligations under this Agreement may not be transferred or assigned to a third party by the Customer without the prior written consent of Forceget. Forceget may transfer or assign all or part of its rights and/or obligations of this Agreement without the express written consent of the Customer.
25. Notices. The address for service of any party shall be its registered office as stated in this Agreement or, if any other address for service has previously been notified to the server, to the address so notified. Notices will be effective hereunder when and only when they are reduced to writing and delivered, by next day delivery service, with proof of delivery, or mailed by certified or registered mail, return receipt requested, to the person named and at the address as first stated above, in the Preamble section. Notices shall be deemed given on the date delivered or date of attempted delivery, if service is refused
26. Electronic Signatures. Each party agrees that the electronic signatures, whether digital or encrypted, of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Delivery of a copy of this Agreement or any other document contemplated hereby bearing an original or electronic signature by facsimile transmission (whether directly from one facsimile device to another by means of a dial-up connection or whether mediated by the worldwide web), by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing an original or electronic signature.
27. Authorization. It is agreed and warranted by the parties that the individuals signing the General Terms and Customer Schedules on behalf of the respective parties are duly authorized to execute such. No further proof authorization is or shall be required.
Effective Date: November 1, 2020