PRIVATE LABEL SELECTOR AND MANUFACTURING AGREEMENT
This PRIVATE LABEL SELECTOR AND MANUFACTURING AGREEMENT (the “Agreement”) is made between Sugaring Factory LLC, located at 800 W 14TH Street, Long Beach, CA 90813 and reseller/repacker (hereafter called “Customer”). Sugaring Factory LLC and Customer may be referred to individually as the “Party,” or collectively, the Parties.”
Customer shall include all subsidiaries, affiliates, partners, and third party beneficiaries to the terms of this Agreement.
Customer and Sugaring Factory LLC mutually acknowledge the following:
A. Sugaring Factory LLC is in the business of manufacturing and selling natural and organic cosmetics for hair removal and other products and services (the “Products” and/or “Services”), as well as offering custom formulating and private label contract packaging for Customers wishing to resell those products under their private label brand (the “Custom Formulation(s)”).
B. Customer wishes to purchase via the Private Label Selector from Sugaring Factory LLC and sell cosmetic products provided by Sugaring Factory LLC in combination with packaging and product specifications approved and authorized by Customer.
NOW, THEREFORE, in consideration of the mutual promises and conditions hereinafter contained, it is agreed between the Parties as follows:
SECTION 1 - PRODUCTS AND SERVICES
1.1. Pursuant to the terms of the Agreement, Customer hereby agrees to purchase certain of the Products and/or Services of Sugaring Factory LLC, and/or to hire Sugaring Factory LLC to prepare Private Label product(s) as follows:
1.1.1. Customer acknowledges that Sugaring Factory LLC shall formulate and may produce product(s) based upon the proprietary formulas owned and controlled solely by Sugaring Factory LLC.
Customer acknowledges that all resulting formula(s), processes or property developed by Sugaring Factory LLC under this agreement are still the sole property of Sugaring Factory LLC.
1.2. Certain Sugaring Factory LLC supplied supplemental notices with terms and conditions regarding private labeling services, including but not limited to: production, scenting, containers, labels, and shipping are incorporated by this reference as integral parts of this Agreement.
1.3. Due to variations when combining natural and other ingredients and with regard to natural ingredient manufacturing, it is normal to see slight variations in color, scent and viscosity from batch to batch as the raw ingredients may vary from lot-to-lot. A product(s) shall be considered properly manufactured whether or not there is a color, viscosity or scent variance of any degree. Other natural considerations can be climate-related and should be mitigated by the Customer. Sugaring Factory LLC is not responsible for the effects of weather conditions during periods when product is outside the control of Sugaring Factory LLC. Therefore, it shall be the Customer’s sole responsibility to mitigate the effects of temperature, humidity, and weather during shipment and warehousing by transporting and storing the Products in suitable climate-controlled conditions.
Similarly, Customer agrees to accept any variance of color, viscosity, and scent, as well as any quantity variation of as much as 10% (over or under) per item, and, will be billed accordingly.
SECTION 2 - FEES AND PRICING
2.1 The prices at which Sugaring Factory LLC shall sell and Customer shall buy the Private Label Product(s) as of the date of this Agreement are set forth in the Customer Invoice or as noted on the Sugaring Factory LLC Website. All required fees shall be paid in advance prior to the commencement of work. Unless otherwise agreed, all prices are subject to change from time to time, without prior notice, including but not limited to any increases in the actual cost to Sugaring Factory LLC of the ingredients and/or raw materials used in the manufacture of the Product(s).
2.2 All purchase orders and deposits or payments are subject to acceptance by Sugaring Factory LLC and once accepted cannot be refunded, returned, credited, exchanged or cancelled for any reason. Acceptance is defined as the receipt and non-rejection by Sugaring Factory LLC of an order, contract and payment by Customer.
2.3 As noted herein, Sugaring Factory LLC is the sole owner of all formula(s), including the original Sugaring Factory LLC bases, Product(s) and the final Customer-requested Customized Formulation(s). Any stock base formulation or any variation using a stock base formulation will not be available for purchase at any time.
2.4 Customer agrees to pay in full for all Private Label Product(s). Any remaining balance is due upon completion and prior to final shipment of order. A signed agreement in the form of this Agreement is due with the first order before Sugaring Factory LLC schedules the product for production, except where these terms and conditions have been agreed to in the past, in which case they shall apply to all subsequent orders by Customer, unless otherwise agreed.
2.5 For those orders that may be on Open Account, Customer shall pay Sugaring Factory LLC within the established terms from the date of the invoice and not from the date of shipping or of the date of receipt. For amounts not paid when due, Customer agrees to pay to Sugaring Factory LLC a late charge of 1.5% per month (18% per annum or the maximum amount allowed by applicable law) of such unpaid amounts commencing on the date which is ten (10) days after the date of the unpaid invoice and ending when such invoice is paid in full. If Sugaring Factory LLC retains any third party as a result of a breach of this Agreement by Customer or to collect past-due obligations from Customer, all such attorneys’ fees and collection costs and expenses shall be payable by Customer.
2.6 Payments shall be made in U.S. dollars only and shall be made payable only to Sugaring Factory LLC and sent to the Sugaring Factory LLC address. Customer agrees to pay any balance due prior to shipping either by: Cashier Check, Visa/MasterCard. Credit card payments will incur a usage fee equal to 4% of the total payment on all orders over $10,000 USD.
2.7 Customer is encouraged to order preproduction samples and upon the approval of all private label samples, Customer may not make any alterations, unless otherwise agreed in writing and signed by a Sugaring Factory LLC duly authorized representative. Any losses in transit or degradation of the Product(s) due to the effects of temperature extremes and conditions are not the responsibility of Sugaring Factory LLC, and Sugaring Factory LLC will not replace Product(s) without additional cost to Customer.
2.8 If an Agreement is not signed or/and payment is not made within 5 days of receiving an order from Customer, then the order will be cancelled. Unless otherwise agreed in writing, upon completion of a project, any unused customer supplied labels; packaging or ingredients shall be shipped back to Customer at Customer’s expense with the order. Upon signature of a separate Property Storage Agreement, arrangements can be made for Sugaring Factory LLC to store residual Customer property for a period not to exceed six (6) months on terms set forth by Sugaring Factory LLC for a fee to be determined.
2.9 The fees and prices do not include any applicable sales, use, value-added, excise or any other tax, duty or charge which is now in effect or may be hereafter imposed by any federal, state or other authority. All applicable taxes, duties or other charges shall be paid by Customer in addition to all fees, prices, and expenses, invoiced by Sugaring Factory LLC.
SECTION 3 - PRIVATE LABEL RESPONSIBILITIES (INGREDIENTS AND PACKAGING)
3.1 Sugaring Factory LLC Standards - All Products sold by Sugaring Factory LLC comply with U.S. Food and Drug Administration requirements including adherence to all standards. Sugaring Factory LLC shall make its best effort to ensure that all product(s) developed by Sugaring Factory LLC will be safe for use under the Federal Food, Drug and Cosmetic Act of 1997, as of the date of manufacture.
3.2 Customer Responsibility - In the event that Customer stores the Product(s) contrary to instructions by Sugaring Factory LLC or mixes, or combines them with other ingredients or materials, or alters, modifies, or manufactures them in any way, such actions void any warranty provided by Sugaring Factory LLC under this Agreement, and Customer accepts all resulting costs, expenses, claims and liability. Customer is solely responsible to comply with all local, state, federal, and international regulations that may apply to the ingredients, products, and cosmetics promoted by Customer to the public, whether or not for resale. All regulated testing requirements set for by any authority are the sole responsibility of the Customer. All required import/export documents are the responsibility of the Customer and while Sugaring Factory LLC can assist for a fee in the creation of many documents, ultimately they are the sole responsibility of the Customer. Sugaring Factory LLC will not under any circumstances reveal any percentages in any formulations no matter what authority is asking for them so be sure to know what is require in the country you export or import in to.
3.3 Unless otherwise agreed, Sugaring Factory LLC shall provide all selected packaging components and materials, including but not limited to caps, lids, jars, bottles, seals, leak prevention measures etc. (collectively, the “Components”). Customer is solely responsible for verifying that the quality and delivery of all Components used by Sugaring Factory LLC for the Private Label Product(s) pursuant to this Agreement meet the Customer standards and are appropriate for the product(s) selected by the Customer. If Customer is providing any ingredients to Sugaring Factory LLC for use in any formulation whether stock or custom, Customer shall make available the current MSDS and Certificate of Analysis (COA) for each provided ingredient. Customer also accepts all financial and other responsibility for any negative effects and outcome when formulations are manufactured using the ingredients stipulated by Customer.
3.4 Labeling - Unless specifically agreed otherwise, in the event that Customer requests Sugaring Factory LLC to affix labels, information, and instruction notices or panels to containers and packaging for the Product(s), Customer shall be completely and solely responsible for all content, including but not limited to health, storage, safety, and use instructions and claims. All labels will be hand applied and may vary in application quality. Customer can apply their own labels but if requires that Sugaring Factory LLC applies them then acceptance of the quality of the application is non-negotiable and assumed accepted as is.
3.5 Customers providing their own labels must submit for preapproval and agrees to deliver at least 15% overage of all labels, packaging and/or ingredients collectively known as “components” prior to the start of Sugaring Factory LLC Services for any particular project. Any delay in the Customer provided components will result in a project delay and could incur additional storage fees for any previously delivered components per Section 2.8. All additional steps including, but not limited to: Master Packing, Tamper Evident Seals, Shrink Wrap, Blister Packing, Safety Discs, Lot Coding, Extra Capping, etc. will incur additional fees. Additionally, the application of clear label stock is subject to an additional 15% fee. Some restrictions apply. All labeling of 500 units or less may be hand labeled to the best of our ability. Customer labels must comply with FDA and Sugaring Factory LLC required specifications. See Label Tip Sheet for some certain details. Slight label tilting and height variances are normal for hand application and will not be re-done, refunded or credited. Sugaring Factory LLC is not responsible for any quality issues that relate to labels and their application, and Customer should allow for a 4% loss on labels.
3.6 Estimates - Unless otherwise specifically agreed in writing, if Customer asks Sugaring Factory LLC to give an estimate of the duration of its Services and delivery date(s) for work-product under this Agreement, Customer acknowledges that any time estimates commence from the date Sugaring Factory LLC has received 100% of ALL components to be provided by Customer or Customer’s agents required for composition of the Custom Formulation(s) and their packaging. Time estimates are provided by Sugaring Factory LLC as a courtesy to Customers, and Sugaring Factory LLC reserves the right to modify time estimates due to prevailing circumstances. Unless otherwise agreed, Customer agrees to deliver or arrange for delivery to Sugaring Factory LLC of all components required for the Product(s) within (5) five days after execution by both Parties of this Agreement and Sugaring Factory LLC acceptance of order.
3.7 Testing – Unless otherwise specifically agreed in writing, Customer is solely responsible for testing of any product(s). With regard to product(s), mixing and combination of ingredients provided or stipulated by Customer, Sugaring Factory LLC does not conduct any testing (including, for example, efficacy, stability, and consistency) without specific authorization and payment by Customer. Furthermore, the only products represented as “safe for use” are Sugaring Factory LLC Products (original stock bases).
SECTION 4 - SHIPPING TERMS
4.1 All fees and pricing, as well as delivery of the Product(s), shall be FOB at Sugaring Factory LLC shipping dock. To the extent that Customer requests delivery at any other-specified destination, all charges, taxes, and assessments for shipping, insurance, and freight as well as all costs of risk of loss or damage to the Product(s) occurring while in transit from Sugaring Factory LLC’ shipping dock to Customer’s delivery destination and afterwards shall be solely for Customer’s account. Any insurance covering the Product(s) in transit shall be for an amount not less than the full invoice price of the items delivered, with Sugaring Factory LLC named as loss payee or additional insured.
4.2 Customer shall have the right to specify the time of delivery under each purchase order issued pursuant to this Agreement, but Customer shall not require that the Product(s) be delivered before a minimum of eight (8) weeks from the date of Sugaring Factory LLC receipt of the order, Agreement, deposit and receipt of 100% of all components, and provided further that such time shall be extended in the event (i) Customer has not provided Sugaring Factory LLC with all materials required to be provided to Sugaring Factory LLC by Customer to fulfill the order; (ii) for any delays in Customer’s obtaining from its suppliers the ingredients used in the formulation of the Product(s); (iii) the acts and omissions by others not directly under the control of Sugaring Factory LLC and (iv) for causes beyond Sugaring Factory LLC’ reasonable control.
SECTION 5 - INTELLECTUAL PROPERTY
5.1 The Parties agree that Sugaring Factory LLC is the exclusive owner of trademarks (including designs and logos), trade secrets, copyrights, specifications, formulas and other intellectual property rights relating to Sugaring Factory LLC, the Product(s), Services, and Custom Formulation(s), with the exception of any private label rights granted to Customer under this Agreement.
5.2 In addition, Customer acknowledges and agrees that the composition and formulation of the Product(s) including their chemical composition and all methods and instructions for their formulation, processing and production and all intellectual property, processes, know-how, trade secrets and other proprietary information therein (“Sugaring Factory LLC Intellectual Property”) are the sole and exclusive property of Sugaring Factory LLC, with the exception of any private label rights granted to Customer under this Agreement and excluding any pre-existing rights of the Customer that the Customer provided to Sugaring Factory LLC.
5.3 Customer shall not use Sugaring Factory LLC Intellectual Property for any other purpose than to perform the terms of this Agreement. In the event that Customer wishes to purchase a custom formulation, such purchase shall be pursuant to a separate agreement and purchase terms and conditions.
5.4 Customer agrees to refrain from any action or to allow any action to be taken to damage Sugaring Factory LLC interests and Intellectual Property rights in any jurisdiction where Customer does business. Therefore, Customer agrees, neither to register nor to assist in registering, any Sugaring Factory LLC Intellectual Property rights or other rights (including Sugaring Factory LLC’ Private Label Selector system, patents, copyrights, trade secrets, trademarks, trade names or symbols) of Sugaring Factory LLC or other marks or rights which may be confusingly similar to Sugaring Factory LLC anywhere worldwide. Unless specifically granted by Sugaring Factory LLC, Customer disclaims any right to use or claim ownership of Sugaring Factory LLC Intellectual Property.
SECTION 6 - CONFIDENTIALITY
6.1 “Confidential and Proprietary Information” means (i) the ingredients, their relative concentrations and techniques for mixing and conditioning that comprise the Product(s) and/or Custom Formulation(s) and (ii) all information about Sugaring Factory LLC current or future business operations and business plans, pricing, research and development, future products, financial information, and all Intellectual Property rights and trade secrets developed by Sugaring Factory LLC in conjunction thereof.
6.2 Protection of Confidential and Proprietary Information. Without Sugaring Factory LLC written consent, Customer shall not provide, disclose, nor otherwise make available to any third party any of Sugaring Factory LLC Confidential and Proprietary Information. Further, except as expressly provided herein, Customer will not use or disclose such Confidential and Proprietary Information without Sugaring Factory LLC prior written consent, except to Customer’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential and Proprietary Information that are at least as restrictive as Customer’s obligations under this section. In addition to the foregoing nondisclosure obligations, Customer agrees to use at least the same care and precaution in protecting such Confidential and Proprietary Information as it uses to protect its own confidential and proprietary information and trade secrets, and in no event less than reasonable care. Customer shall return all Confidential Information promptly upon Sugaring Factory LLC request or upon the termination of this Agreement.
6.3 Customer acknowledges that Sugaring Factory LLC has a valuable and proprietary interest in the formulation of its stock cosmetic bases, other Product(s), and the Custom Formulation(s). Therefore, Customer agrees to refrain from reverse engineering and attempting to duplicate the combination of ingredients, as well as techniques for mixing and conditioning those ingredients that are herein claimed as Sugaring Factory LLC Confidential and Proprietary Information, as well as Intellectual Property hereunder.
SECTION 7 - REPRESENTATIONS AND WARRANTIES
7.1 CUSTOMER hereby represents warrants and covenants to Sugaring Factory LLC as follows:
7.1.1 In providing to Sugaring Factory LLC any and all Product specifications, ingredients, labels, packaging, and materials or any kind (Customer represents and warrants that it has the requisite authority to stipulate and provide such specifications, ingredients, labels, packaging, and materials and that such components, either individually or in combination shall not infringe any third party rights of ownership or use.
7.1.2 Customer shall comply with all laws and regulations relating to the conduct of its business in all jurisdictions where it does business.
7.1.3 Customer shall comply with all laws and regulations relating to the marketing, sale, and use of the Products in all jurisdictions where it does business.
7.2 Sugaring Factory LLC represents and warrants to Customer:
7.2.1 At all times during the term of this Agreement, Sugaring Factory LLC shall maintain Food and Drug Administration approval or authorization for its manufacturing processes and procedures.
SECTION 8 - ACCEPTANCE AND LIMITED WARRANTY
8.1 Acceptance - For purposes of any time-sensitive project under this Agreement, Customer must give Sugaring Factory LLC written notice of any products that Customer wishes to reject and not accept under the terms of this Agreement within TEN (10) business days of receipt of such Product(s) by Customer. In the event that Customer does not reject the received Product(s) within the 10-day period, then the Product(s) shall be deemed to be accepted by Customer.
8.2 Warranty for Defects – In the event that Customer considers the Product(s) and/or Custom Formulation(s) provided by Sugaring Factory LLC to be defective in either materials or workmanship, Customer must give Sugaring Factory LLC notice in writing of such alleged defect(s) no later than THREE (3) days from the date of delivery of the Product(s) to Customer or Customer’s agent, the Warranty Period. Such written notice shall state with particularity in what respects the Product is non-conforming or defective. Customer shall return to Sugaring Factory LLC a sample of the Product(s) which it claims are nonconforming or defective at Customer’s expense and safeguard the remainder pending resolution of the warranty claim. If Sugaring Factory LLC, in its sole discretion, agrees with Customer that the Product(s) are non-conforming or defective and that the cause is determined to be the fault of Sugaring Factory LLC then Sugaring Factory LLC shall have a reasonable time to either (i) cure any nonconforming or defective tender by substituting conforming Product(s) at Sugaring Factory LLC expense or (ii) refund Customer’s purchase price. Either remedy is subject to Sugaring Factory LLC sole discretion. In the event that Customer does not inform Sugaring Factory LLC in writing regarding any alleged defect in the Product within the ten-day notice period, Customer waives all rights under any applicable law to raise a claim.
SECTION 9 - LIMITATION OF LIABILITY AND INDEMNITIES
9.1 Limitation of Liability. Under no circumstances shall either Party or its respective officers, directors, shareholders, employees or agents be liable to the other Party for indirect, incidental, consequential, special, exemplary or speculative damages, arising out of this Agreement, including but not limited to loss of revenue or profits, loss of use, or other consequential business opportunities, even if advised of the possibility of such damages.
9.2 EXCEPT AS STATED IN SECTION 8, Sugaring Factory LLC DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ESPECIALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
9.3 Customer agrees to indemnify, defend and hold Sugaring Factory LLC, its owners, directors, employees, and agents (“Indemnified Parties”) harmless against any claims, suits, damages, liabilities, judgments, losses, costs and expenses (including attorneys’ fees) made against or incurred individually or collectively by the Indemnified Parties, as a result of any of the following: (i) any breach of this Agreement by Customer, independent contractors or agents, (ii) any claim of infringement or for defects related to any specifications, ingredients, labels, packaging, and materials of any kind provided by or stipulated by Customer under this Agreement, (iii) injury or death suffered by anyone related to the Product(s), Services, or Custom Formulation(s) due to specifications stipulated or approved by Customer or occurring after the Products left the care, custody, and control of Sugaring Factory LLC at the delivery destination under this Agreement.
9.4 Notwithstanding any other terms of this Agreement, Sugaring Factory LLC total cumulative liability arising under this Agreement shall in no event exceed the amount of fees actually received by Sugaring Factory LLC in respect of the Product(s), Services, or Custom Formulation(s) at issue hereunder.
SECTION 10 - TERM AND TERMINATION
10.1 Term and Termination. This Agreement shall supersede all previously signed agreements and will become effective upon the date first set forth above and shall continue for a period of three (3) years or until all obligations hereunder have been completed, unless earlier terminated by either Party upon 30 days written notice or by fulfillment of all responsibilities of the Parties.
10.2 Either Party may terminate this Agreement (i) upon a material breach by the other that remains uncured for a period of thirty (30) days after receipt of written notice specifying the breach with particularity.
10.3 In the event of termination for any reason, such termination shall not affect Customer’s obligation to pay for the work and expenses performed while under this Agreement (at any stage of completion) at the time of termination. Nor shall the Limitations of Liability (Section 9) be affected by the termination of the agreement for any reason.
SECTION 11 - MISCELLANEOUS
11.1 Amendment. The Agreement may not be modified or amended unless in writing by mutual agreement of the Parties.
11.2 No Assignment. Customer may not assign, sell, or otherwise transfer any or all rights and obligations under this Agreement to any third party without the prior written consent of Sugaring Factory LLC.
11.3 Integration. This Agreement is a complete and exclusive statement of the Agreement between the Parties and supersedes all prior and contemporaneous agreements, negotiations, discussions, and proposals, oral or written, and any and all other communication relating to the subject matter of this Agreement.
11.4 Severability. In the event of the invalidity of any provision of this Agreement, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
11.5 Dispute Costs. In the event that either Party initiates dispute resolution proceedings in any way related to this Agreement, the prevailing party shall be entitled to the award of dispute resolution costs and expenses, including but not limited to all reasonable mediation, court, or arbitration costs, as well as attorneys’ fees and expenses not to exceed the total cumulative liability (Section 9.4).
11.6 Notices. Any notice or other communication required or permitted to be given by a Party hereunder shall be in writing and shall be deemed to have been given by such Party to the other Party (i) on the date of delivery, if personally delivered, (ii) three (3) business days after mailing if mailed in the United States, by registered or certified mail, postage prepaid. (iii) If sent by facsimile to the other Party’s place of business, then on the date of sending, if received prior to 5:30 p.m. (receiver’s time) and on the next business day, if received after 5:30 p.m. (receiver’s time) or (iv) if sent to the other Party via electronic mail, then on the date of receipt, provided that the sender can provide sufficient evidence that the email was received. Each of the Parties shall be entitled to specify a different address by giving notice as aforesaid.
11.7 This Agreement may be executed in counterparts, each one of which shall be deemed an original, but all of which shall constitute one and the same instrument.
11.8 The recitals set forth on the first page of this Agreement and all exhibits attached to this Agreement are hereby incorporated as part of this Agreement and made part of the agreement of the parties.
SECTION 12 - FORCE MAJEURE
12.1 Neither Party shall bear responsibility for the complete or partial non-performance of any of its obligations if the non-performance results from such unforeseeable circumstances as natural calamities, fire, changes of export/import regulations or the law of any countries or territories with authority and jurisdiction, unavailability of supply or ingredients, failure of transport, or any other circumstances beyond the foreseeable control of either Party. The time stipulated for the fulfillment of the obligations shall be extended for a period equal to the duration of such circumstances. The Party for whom it has become impossible to meet its obligations under the Agreement shall immediately advise the circumstances preventing the fulfillment of its obligations and shall take all reasonable actions to cure the force majeure event(s). If the above circumstances last more than 6 months, either Party shall have the right to seek modification of the Agreement or, alternatively, its termination. The other Party shall not unreasonably withhold its consent.
SECTION 13 - GOVERNING LAW AND DISPUTES
13.1 This Agreement shall be governed by the laws of the State of California to the exclusion of all other conflicts of law alternatives. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of California, the U.S.A. for any mediation, arbitration, action, suit, or legal proceeding arising in connection with this Agreement.
13.2 Negotiation. Except for a request for injunctive relief or other provisional remedies which may be sought from a court, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof or thereof, including any claim based on contract, tort or statute, and including any controversy about whether a claim is subject to arbitration or whether this Section 13 is valid or enforceable (any such dispute, controversy or claim, a “Dispute”), shall be resolved in accordance with the procedures set forth in this Section 13. In the event any Dispute arises, each Party shall first promptly provide the other Party with a general written statement of its claim(s) and position(s). This statement need not be complete and will not limit the claims of a Party in any further procedure. The statement shall indicate that it is the first statement of a formal dispute resolution process under this Agreement. If the Parties cannot resolve the Dispute within 15 days of receipt of the first of these written statements, a claimant may proceed as set forth in Section 13.3 below.
13.3 Mediation. If a Dispute cannot be settled through negotiation contemplated under Section 13.2, the Parties agree to endeavor to settle the Dispute in an amicable manner by mediation administered by the Judicial Arbitration and Mediation Services (“JAMS”) under its comprehensive Mediation Rules, before resorting to arbitration under Section 13.4. If for any reason, the Dispute is not settled by mediation within 90 days after a Party elects to proceed by mediation (commencing upon the date a Party delivers notice to the other Party of its intention to proceed to mediation), any unresolved Dispute shall be settled by arbitration as contemplated under Section 13.4.
13.4 Arbitration. Any Dispute not resolved pursuant to Section 13.2 or 13.3 shall be solely and finally settled by arbitration by one arbitrator in accordance with the then-existing Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) of JAMS. Each Party agrees that the award of the arbitrator shall be final and non-appealable and shall be the sole and exclusive remedy between or among them regarding any and all claims, counterclaims, issues, and accountings presented to the arbitrator, irrespective of the magnitude thereof. All arbitration proceedings shall be conducted pursuant to the JAMS Rules in Los Angeles County, Long Beach, California, as modified pursuant to this Section 13.4. The number of arbitrators shall be one, which person shall be neutral, have sufficient business experience and not be a practicing attorney, and shall be mutually agreed upon by all Parties within 60 days after a written request for arbitration by one Party is delivered to all other parties. In the event that the Parties cannot agree on an arbitrator, the arbitrator shall be selected within 10 days thereafter by JAMS from a list submitted by the Parties, with each Party having the right to propose two names. If a qualified arbitrator cannot be appointed from the initial list, the process will be repeated every five days thereafter until a qualified arbitrator is selected. Each party agrees to facilitate the arbitration by: (i) making available to each other and to the arbitrator for inspection and extraction all documents, books, records, and personnel under their control as the arbitrator shall determine to be relevant to the dispute; (ii) conducting arbitration hearings to the greatest extent possible on successive, contiguous days; and (iii) observing strictly the time periods established by the JAMS Rules or by the arbitrator for the submission of evidence and briefs. All papers, documents or evidence, whether written or oral, filed with or presented to the arbitrator shall be deemed by the parties and the arbitrator to be confidential information. No party, expert or arbitrator shall disclose in whole or in part to any other person any confidential information submitted by any other person in connection with any arbitration proceedings, except to the extent (i) required by law or regulation, (ii) reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute or (iii) that such “confidential” information was previously or subsequently becomes known to the disclosing party without restrictions on disclosure, was independently developed by such disclosing party or becomes publicly known through no fault of the disclosing party. The arbitrator shall issue a written explanation of the reasons for the award and a full statement of the facts as found and the rules of law applied in reaching their decision to the parties. Such an explanation of the award and the statement of facts shall be treated as confidential information. The arbitrator is empowered to render the following awards in accordance with any provision of this Agreement: (i) enjoining a party from performing any act prohibited or compelling a party to perform any act required, by the terms of this Agreement and any order entered pursuant to this Agreement or deemed necessary by the arbitrator to resolve disputes arising under or relating to this Agreement or order; (ii) where, and only where, violations of this Agreement have been found, shortening or lengthening any period established by this Agreement or order; and (iii) ordering such other legal or equitable relief (subject to the limitations on liability set forth herein and therein) or specifying such procedures as the arbitrator deems appropriate, to resolve any dispute submitted to it for arbitration. The arbitration proceeding and the arbitrator shall resolve in their award the extent to which of the parties shall bear the arbitration costs. Each party hereby waives to the extent permitted by law all jurisdictional defenses, objections as to venue, and any rights to appeal or to review of such award by any court or tribunal. Each party agrees that the arbitral award may be found and that a judgment on the arbitration award may be entered in any court having competent jurisdiction over the parties or their assets.
SECTION 14 - SURVIVAL
14.1 Despite the termination of this Agreement for any reason, the rights, and obligations of the Parties pursuant to the following provisions shall survive termination of this Agreement and remain enforceable: Sections 2, 3, 5, 6, 8, 9, 11, 13 & 14.
IN WITNESS WHEREOF, wishing to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives below.
SUGARING FACTORY LLC
Name: Eva Grichus
Title: Chief Executive Officer