Terms and Conditions - Martin Bros. Distributing

Terms and Conditions

These Terms and Conditions are incorporated by reference into each Statement of Work or any exhibits or supplements thereto entered into by the customer named therein ("Customer") in connection with any services to be provided by Martin Brothers Distributing Company, Inc. ("Martin Bros.") to Customer. Customer and Martin Bros. may sometimes be referred to herein as a "Party" or the "Parties." These Terms and Conditions are available to Customer at https://www.martinbros.com/legal/termsandconditions and are subject to change upon written (including electronic) notice to Customer. In the event of any conflict between these Terms and Conditions and the Statement of Work or any exhibits or supplements thereto between the Parties, the language of the Statement of Work and such exhibits or supplements shall control. For avoidance of doubt, these Terms and Conditions and any Statement of Work or other exhibits are collectively referred to herein as the "Agreement" of the Parties.

1. Services. Martin Bros. agrees to provide certain services, including, but not limited to, foodservice products, equipment and supplies and related technology and professional services, as more explicitly set forth in the Statement of Work (the "Services") in a professional and diligent manner utilizing commercially reasonable business practices. Any change to the Services shall be agreed to in writing by Martin Bros. and Customer. Customer will place all orders through Martin Bros.’ business to business website.

1.1. Menus, Guest Cards. In connection with the Services, Martin Bros. may assist Customer with its menus and guest cards. Notwithstanding the foregoing, Customer agrees Customer is solely responsible for all such guest cards, menu creation and changes thereto, including, but not limited to, having any such menu(s) reviewed and approved by a registered and licensed dietitian if and as required by any laws or regulations by which Customer may be bound, and Martin Bros. is not liable for, nor otherwise makes any representation or warranty associated with, meeting the nutritional and dietary needs of any specific population or individual. Customer assumes and accepts full responsibility, liability, and assumes all risk associated with use of the platform and menu services and shall indemnify and defend Martin Bros. from any liability associated with the same.

1.2. Nutritional Data. Any data, including, but not limited to, nutritional data, provided by Martin Bros, for purposes of the menu program, guest cards, website, or otherwise, is based on private and public data and is provided as a reference only without making any representation, warranty, or claim as to the content generally, nutritional content, quality, or exact cost of any products that may be produced as the result of the information contained therein (collectively, the "Third-Party Data"). Customer agrees it is responsible for the accuracy of the nutritional content, quality, exact cost, or any additional information related to the Services provided by Martin Bros. Neither Martin Bros. nor any of its officers, directors, shareholders, employees, agents, representatives, successors and assigns ("Representatives"), make any representation or warranty as to the Third-Party Data provided or as to how the same may be used by Customer. Customer assumes and accepts full responsibility, liability, and assumes all risk associated with use of the Third-Party Data and shall indemnify and defend Martin Bros. from any liability associated with the same.

1.3. Webinars and Education. The information contained in any webinars or other educational training provided by Martin Bros. to Customer and its Representatives is for general informational purposes only. While Martin Bros. strives to provide only accurate, scientific-based information, the content provided by Martin Bros. may or may not apply to the specific needs of Customer or its Representatives and it shall not be a substitute for any professional medical advice. Martin Bros. reserves the right to make additions. deletions, or modifications to the content it provides without prior notification. References to any product, service, supplier, or otherwise are considered to be resources for additional information but do not constitute or imply endorsement, sponsorship or recommendation by Martin Bros., and Martin Bros. expressly disclaims any representation, warranty, covenant, or liability associated with Customer’s use of or reference to any such material. Customer assumes full responsibility, assumes all risks, and shall indemnify and hold Martin Bros. harmless from its use of any content or information provided to Customer by Martin Bros.

2. Payment.

2.1. General. Unless otherwise agreed by the Parties in the Statement of Work, Martin Bros. and Customer agree that Customer will pay Martin Bros. via Automated Clearing House (ACH) wire within 7 days after issuance of an invoice (Net 7). Martin Bros. does not offer an early pay or pre-pay incentive for the payment of invoices.

2.2. Non-Payment; Late Payments. In the event that Customer fails to make a timely payment, Martin Bros reserves the right to cease all work on Services; provided, however, Martin Bros. shall retain all rights to any such payments due and payable to Martin Bros. for Services provided. Except for invoiced payments that are disputed in good faith, Customer shall pay interest on all late payments, calculated daily and compounded on a monthly basis at the lesser of the rate of 12% or the highest rate permissible under applicable law. Customer shall also reimburse Martin Bros. for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.

2.3. Additional Expenses. Customer agrees to pay Martin Bros. for any added fees and expenses due to requests made by Customer outside the scope of Services. If Martin Bros. is required to take action to collect any payment due under this Agreement, Customer agrees to pay any and all contractual and statutory interest, as well as the costs and expenses of collection, including, but not limited to, attorneys’ fees.

3. Term and Termination.

3.1. Term. This Agreement shall be for the duration specified in the Statement of Work. Neither party shall have any right to terminate this Agreement except as provided in the Statement of Work.

3.2. Termination for Cause. Martin Bros. may terminate this Agreement, effective upon written notice to Customer, if Customer (a) fails to make a payment hereunder; and/or (b) breaches this Agreement and, other than a failure as provided in Section 3.2(a), it is not cured within 30 days of notice from Martin Bros.

3.3. Effect of Termination. Upon termination, Customer will immediately cease use of all Martin Bros. Deliverables, immediately and certify in writing to Martin Bros. that it has returned, permanently destroyed, and otherwise erased all of Martin Bros. intellectual property and confidential information and will not distribute, retain, or otherwise use any Deliverables provided under this Agreement. The final payment for all Services provided by Martin Bros. prior to the termination of this Agreement will be due within 30 days of termination.

4. Force Majeure. If a Force Majeure Event occurs, Martin Bros. shall be excused from performing any obligations under this Agreement, on condition that it complies with its obligations under this Section. "Force Majeure Event" means, any event or circumstance, regardless of whether it was foreseeable, that was not caused by Martin Bros. and that prevents Martin Bros. from complying with any of its obligations under this Agreement (including, but not limited to, natural disasters, acts of God, war, riot, national emergencies, terrorist acts, general embargo, fire, casualty, equipment failure, flood, earthquake, the occurrence or worsening of any pandemic or epidemic, or other similar occurrence). Upon occurrence of a Force Majeure Event, Martin Bros. shall promptly notify Customer of occurrence of that Force Majeure Event and shall use reasonable efforts to resume its performance under this Agreement as reasonably promptly as possible.

5. Limitation of Liability. Customer agrees that to the fullest extent permitted by law, Martin Bros.’ total liability to Customer shall not exceed the amount of payments received by Martin Bros. from Customer in the 3-month period preceding the event giving rise to the claim, whether due to negligence, errors, omissions, strict liability, breach of contract, breach of warranty, or any other basis. In no event shall Martin Bros. and its subcontractors and/or vendors, be liable for consequential, incidental, indirect, punitive or special damages, or loss of profits, data, business, or goodwill, regardless of whether such liability is based on breach of contract, tort, strict liability, or breach of warranties.

6. Representations and Warranties; Disclaimer. Customer represents and warrants to Martin Bros. that: (a) Customer shall secure all necessary rights, title, and interest in, to any intellectual property, image, written content, documents, information, products, or other materials provided to Martin Bros. by Customer (the "Customer Materials"); (b) Customer shall provide copies of or access to the Customer Materials as reasonably requested by Martin Bros. in order to carry out the Services in a timely manner; and (c) the Customer Materials are complete and accurate in all material respects and no Customer Materials violate or infringe upon the rights of any third-party or any federal or state law or any federal, state, or local regulation, or any administrative rule or code of ethics of any profession.


7. Indemnification. Customer shall indemnify, defend, and hold harmless Martin Bros. and all of its Representatives from and against any and all claims, liabilities, damages, losses, and expenses (including, but not limited to, attorneys’ fees) (collectively, "Losses") which arise out of, or relate to a third-party’s assertion and/or claim alleging (a) Customer’s breach or alleged breach of any representation, warranty, covenant or other obligation of Customer or any of its Representatives set forth in this Agreement, (b) Customer’s or any of its Representatives’ negligent or intentional act or omission in connection with the performance of its obligations under this Agreement, and (c) that any Customer Materials or Martin Bros.’ receipt or use thereof in accordance with the terms of this Agreement infringes any intellectual property of a third party. Notwithstanding the forgoing, Customer shall not be obligated to indemnify or defend Martin Bros. or any of its Representatives against any Losses arising out of or resulting from Martin Bros.’ grossly negligent or intentional act or omission.

8. Intellectual Property Rights; Ownership.

8.1. License to Certain Customer Intellectual Property. Subject to and in accordance with the terms and conditions of this Agreement, Customer grants Martin Bros. and its affiliates and any third-party service providers a limited, non-exclusive, royalty-free, worldwide license during the term of this Agreement to use the Customer Materials to the extent reasonably necessary to provide the Services to Customer.

8.2. Ownership of and License to Deliverables. Subject to Customer’s ownership of the Customer Materials, as between Customer and Martin Bros., Martin Bros. is, and shall be, the sole and exclusive owner of all right, title and interest in and to all intellectual property of Martin Bros., platforms, documents, work product, emails, designs, layouts, formats, infrastructure, processes, and other materials that are delivered or provided to Customer hereunder by or on behalf of Martin Bros. in connection with the performance of the Services (collectively, the "Deliverables"). Martin Bros. hereby grants Customer a perpetual, limited, non-exclusive, non-transferable, revocable, and non-sublicensable license to use all such rights solely to the extent necessary pursuant to the terms and conditions of this Agreement.

9. Confidentiality. This Agreement, including all pricing of goods and all Services provided hereunder, are confidential in nature and will not be disclosed by Customer to any third party without the prior written consent of Martin Bros. Customer shall protect and safeguard the confidential information of Martin Bros. with at least the same degree of care as Customer would protect its own confidential information, but in no event with less than a commercially reasonable degree of care. If Customer violates this provision, such violation constitutes a material breach giving Martin Bros. the right to immediately terminate this Agreement.

10. Assignment. Customer may not assign, transfer, or delegate any or all of its rights or obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns.

11. Notices. Notices shall be given to the respective Party by certified mail, hand delivery, or electronic mail (notice being deemed given as of the date of mailing, the date of hand delivery, or the date of sending the electronic mail) at the address set forth in the Statement of Work or as otherwise designated by such Party.

12. Governing Law. This Agreement shall be construed in accordance with and governed by the laws of the State of Iowa, without giving effect to any conflicts of law provisions that result in the applicability of the law of any other state or jurisdiction. Venue for all disputes shall be in the state courts of Black Hawk County, Iowa or in the federal courts for the United States for the Northern District of Iowa, and no other courts.

13. Counterparts. This Agreement may be executed in multiple counterparts (including by means of facsimile, electronically transmitted PDF signature pages, or DocuSign), any one of which need not contain the signatures of more than one Party, but all such counterparts taken together will constitute one and the same instrument and will have the same force and effect as an original fully executed version of this Agreement.

14. Severability. If any section, provision, portion, or clause of this Agreement is held to be invalid by a court of competent jurisdiction, then such section, provision, portion, or clause may be severed without affecting any other part of this Agreement, the balance of which will remain in full force and effect; provided, however, that if such section, provision, portion, or clause may be modified so as to be valid as a matter of law, then the section, provision, portion, or clause will be deemed to be modified so as to be enforceable to the maximum extent permitted by law.

15. No Waiver. Waiver by either Party of a breach or violation of any provision of this Agreement shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of this Agreement. Similarly, waiver by either Party of any right provided by this Agreement shall not constitute a waiver of that right as to subsequent performance or of any other right provided by this Agreement unless each Party executes a written acknowledgment of such waiver as to subsequent performance or other right.

16. Entire Agreement. This Agreement constitutes the entire agreement of the Parties concerning the subjects specifically addressed herein and supersedes all previous representations, understandings, and agreements of the Parties, whether oral or written, concerning the same.

17. Survival. Subject to the limitations and other provisions of this Agreement, Sections 2, 3.3, 5, 6, 7, 8, 18, and 19 shall survive any expiration or earlier termination of this Agreement.

18. Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

19. Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Sections 3, 8 and/or 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 19.

20. Attorneys’ Fees. If either Party hereto brings an action at law or in equity to enforce, interpret or seek redress for the breach of this Agreement, the prevailing party in such action shall be entitled to recover all court costs, witness fees, and attorneys’ fees, at trial or an appeal, in addition to all other appropriate relief.