The term of this Agreement commences on the Effective Date [DATE] and continues for the initial period of one (1) year, unless and until earlier terminated as provided under this Agreement or applicable law (" Term "). On expiration of the Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides written Notice of termination at least thirty (30) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement or applicable Law (each a " Renewal Term "). If the Term is renewed for any Renewal Term(s) pursuant to this Section, the terms and conditions of this Agreement, and any Exhibits attached hereto, during each such Renewal Term are the same as the terms in effect immediately prior to such renewal.
Pietra - Fulfillment Services Agreement
THIS FULFILLMENT SERVICES AGREEMENT ("Agreement"), ("Effective Date"), is entered into by and between Pietra Inc, a Delaware Limited Liability Company doing business as [Name] ("Name") , and ("Company"). (" Company ," together with Pietra, the "Parties, " and each a " Party ").
WHEREAS , the Company is in the business of selling and/or manufacturing certain products; and
WHEREAS , Pietra provides to various retailers and manufacturers order fulfillment services, pursuant to which Pietra provides storage, packing, kitting, and shipping products to the Companys customers; and
WHEREAS , Company desires to retain Pietras services, and Pietras desires to provide services to Company, subject to the terms and conditions of this Agreement; and
NOW, THEREFORE , in consideration of the mutual covenants, terms and conditions set out herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
The Company hereby engages Pietra to provide, and Pietra hereby agrees, upon the terms and subject to the conditions set forth in this Agreement, to provide the Services (as defined below) to the Company for the duration of the Term and the Renewal Term described in Section 2. During the Term, and any Renewal Terms, the conduct of the Parties shall be subject to the terms and conditions of this Agreement.
3. PIETRA SERVICES
3.1 Services. Pietra shall provide the following services to the Company (collectively, the " Services "):
- Receive shipments from the Company of the Product
- Provide storage facilities for the Inventory in Pietras warehousing facilities (" Warehouse ").
- Upon notification by the Company of a purchase of Products by a customer, Pietra will pick and package the Products from the available Inventory, and ship such Products directly to the customer (" End-User ").
- Pietra will use appropriate packaging material (i.e. bubble wrap, boxes with void fill, etc.) at its discretion.
- Upon request by the Company, Pietra may include additional materials concerning the Product, to be provided by Company, at the time of product assembly.
- Pietra will process, package and ship all Product orders in accordance with Pietra Legal Policies.
- Pietra will maintain monthly ledger summaries of all orders shipped and received, which shall be made available to the Company through Pietra's software platform.
- Pietra will facilitate any Product returns from the End-User to the Company where the Company will be responsible for paying for the return label and any additional restocking fees.
- In addition to the above described Services, Pietra shall perform any additional services, including special projects, that the Company desires Pietra to perform to be amended from time to time as agreed upon by the Parties.
4. COMPENSATION AND REIMBURSEMENT FOR SERVICES
4.1 Pay as You Go Payments & Invoicing. Pietra utilizes a "Pay As You Go" model for some services and upfront payment for others. Company will use Pietra Software to pay for services when requested and invoiced on a bi-monthly basis for any additional services performed outside of the Creator Hub. For example, The Company may pay upfront for a certain number of units to be assembled but then be billed later if more units were shipped and assembled after the original payment.
4.2 Product Invoicing. Pietra will invoice to The Company at the agreed upon rates at www.pietrastudio.com/pricing on a twice-monthly basis.
4.3 Late Payment Fee. If Pietra fails to receive payment from the Company by the due date of the invoice; a late payment fee of 5% (minimum of $30) will be applied to the invoice, unless the invoice is currently being disputed.
4.4 Options & Ways to Pay. Pietra provides the Company with a convenience to pay for their invoices online through the Company's account using the following payment methods: Bank Transfer & ACH transfer (Free), Credit Card (3% credit card processing fee), PayPal (4% Payment processing fee), or a wire transfer (Free within the U.S.). Pietra is using a 3 rd party payment processing company Stripe. Pietra does not store any payment information on its own servers; all of the Company's payment information is stored with Stripe. The Company agrees that Pietra shall have the right to auto-charge for the invoice on payment due date using the payment method that has been used in the past.
5. TITLE, RISK OF LOSS AND INSURANCE
5.1 Title. Company hereby agrees that at no time during the period that Products are held by Pietra as Inventory in the Warehouse will Pietra hold title, or any other rights of ownership in the Inventory. Title in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User.
5.2 Risk of Loss . Company hereby agrees that at no time during the period that Products are held by Pietra as Inventory in the Warehouse will Pietra carry the risk of loss in the Inventory. Risk of Loss in Inventory will continue to be held by Company until such time as the Products are delivered to the End-User. Pietra shall exercise commercially reasonable standards of care for all of Company's Products in its possession but specifically disclaims liability of loss except for instances of Gross Negligence by Pietra. This includes providing General Liability Insurance for Pietra's Fulfillment Center.
5.3 Insurance. COMPANY HEREBY AGREES THAT IT IS COMPANY'S RESPONSIBILITY, AT ALL TIMES, TO MAINTAIN AN INSURANCE POLICY THAT COVERS THE COST OF THE PRODUCTS AND MANUFACTURING QUALITY HELD IN INVENTORY. Company has the option of adding the Pietra's Warehouse as a designated storage location to Company's general inventory policy.
5.4 No Insurance. Company can choose not to insure its inventory. In this event, Pietra will, under no circumstances, be liable for any loss or damage to the inventory stored at Pietra facilities. These events include, but are not limited to, theft, misuse, fire, natural disaster or any other event.
6. COMPANY'S ACCOUNT
6.1 Services Available Through the Account. Subject to Company's compliance with this Agreement, Pietra shall perform the Services described in this Agreement as selected and authorized by Company in the Account, and described on Exhibit A attached hereto. Company may order Services through the Pietra Creator Hub platform or in some special cases through a Pietra Specialist. All Pietra Services Orders are deemed incorporated into, and governed by, this Agreement. By using the Services, Company acknowledges and agrees that Pietra operates, partially, as a third-party warehouse and broker of shipping services; accepting shipments from, and making shipments to, third parties. Pietra is an independent contractor for all purposes, and only acts as the agent of Company with respect to Pietra's custody of the Products in its Inventory.
6.2 Account Balances. Any invoices Pietra sends to Company in accordance with
Section 4 of this Agreement shall be based on any balance accrued in the Company's Account. "
rd Party Fees
" or "Other Fees" are the fees for postage, shipping and any third-party fees (including, but not limited to
carrier fees, shipping fees, rates of duty, international brokerage charges, freight charges, insurance
premiums or other charges given during Company's use of Services) ordered through the platform and any special
or additional fees assessed against the Account as permitted in this Agreement. The 3 rd party fees
for Services are billed during the month in which the Services are performed, but such 3 rd Party
Fees are subject to change due to circumstances beyond Pietra's control. Company agrees and acknowledges that
should Company change Account billing plans during or at the end of any month, the previous pricing plan may
no longer be available. All other fees for the Services listed on Exhibit A to
this Agreement, including Pick & Pack, Storage, Special Requests, Hourly Rates, etc., will be billed twice
monthly as part of standard Pietra practices.
6.3 Pietra Services Estimates. Quotes for 3 rd party fees are for informational purposes only and are subject to change without Notice and shall not under any circumstances be binding upon Pietra unless otherwise noted in writing. Quotations for courier rates are estimates based on the information available at the time made. The final rates and service fees may vary based upon the shipment actually tendered, the work actually performed, or a number of factors such as carrier shipping prices, the actual characteristics of the Products, the delivery location, among other variations occurring in the ordinary course of business.
6.4 Pricing Changes & Currency Fluctuations. Pietra reserves the right to adjust its pricing for its Services on the Pietra website and/or directly to the Company due to market forces and/or in response to currency fluctuations, including but not limited to, currency conversion rate changes, conversion fee changes, and/or discount rate changes. After the first 90-days, Pietra reserves the right to automatically revise pricing without notice if actual volume does not meet or exceed the initial volume estimates provided by the Company at the time of contract execution to a rate equal to actual volume. All dollar amounts stated in this Agreement will be in US dollars unless otherwise specified.
6.5 Usage Fee Disputes. Should Company disagree with any Usage Fees (other than carrier or third-party fees) invoiced or charged against the Account, Company must submit written notice to Pietra within 30 days of the fee being charged (" Dispute Period "). Pietra will not review customer requests for Usage Fee adjustments that are received after the Dispute Period.
6.6 Account Balance Disputes . If Pietra becomes aware of, or is notified of, a dispute relating to the Account Balance, then Pietra will promptly review the dispute. After the resolution of the dispute, Pietra will forward a bill for outstanding amounts due, or will credit the Account Balance accordingly, if appropriate.
6.7 Abandoned Account and Liquidation. If Company's Usage Fees or 3 rd Party Fees remain unpaid for a period greater than 30 days, then Pietra reserves the right, at its sole discretion to reclassify Company's Account as an " Abandoned Account ." Additionally, any Account that remains unpaid for greater than 60 days will automatically be deemed an Abandoned Account. Upon an Account becoming an Abandoned Account, Company immediately forfeits its rights of ownership of such Company's Inventory up to the cumulative amount necessary for payment of all Usage Fees and 3 rd Party Fees as well as any reasonable expenses incurred by Pietra for the preservation and storage of the Inventory or its sale. Inventory will become immediately unavailable to Company, and liquidation proceedings would begin. Company agrees that all Inventory liquidated shall be sold at the absolute discretion of Pietra and would be free and clear of liability, and that Company assumes any liability therefore. Company has no rights to any liquidation proceeds arising from an Abandoned Account unless the amounts recovered through liquidation exceed the cumulative amount necessary for payment as stated above. Should the amounts recovered through liquidation be insufficient to cover the cumulative amounts above, the Company would remain liable for any pending Usage Fees and 3 rd Party Fees above and beyond the liquidation proceeds.
6.8 Termination of the Account. Upon termination of this Agreement, the Account will be inaccessible to Company, and all activities will be suspended. Pietra reserves the right to cease shipping orders for a number reasons, including but not limited to the following:
- Account Balance remaining unpaid within 15 days of receipt of invoice;
- if anyone using the Account uses abusive language or otherwise threatens Pietra or its staff;
- to allow time to resolve or investigate a third party complaint of a violation of this Agreement;
- to allow time for investigation or resolution of an unauthorized transaction, customer complaint, dispute or accusation; and
- to allow time to pick all inventory for the close out order.
6.9 Termination for Breach. Either party may terminate this Agreement upon thirty (30) days' notice to the other party in the event of a breach by the other party of any provision of this Agreement if the breaching party fails to cure such breach during the 30 day period; provided , that Pietra may terminate this Agreement immediately upon notice to Client for fraudulent, abusive or illegal activity. Upon the expiration of the 30 day cure period, a 30 day wind down of the Company Account shall commence (" Termination Notice Period "). Company may have full or limited use of the Account during the Termination Notice Period for the sole purpose of winding down its use of the account in a commercially reasonable manner. Any Product inventory that remains in Pietra's inventory at the expiration of the Termination Notice Period will be shipped to Company at the address on file and, if address is not on file, the billing address on Company's credit card, at Company's expense. If no address is available or payment method is declined for shipment back to the Company, Pietra will liquidate the Product inventory in accordance with an Abandoned Account.
6.10 Additional Actions. If Company is in breach of any of the terms of this Agreement, Pietra may close, put on hold, or limit access to the Account or the Services. Without limiting any of the remedies under law or equity, Pietra may also take any additionally available legal actions
6.11 Closing Accounts. Company may close the Account for any reason, upon giving Pietra 30 days prior written notice. Merchandise will be returned subject to Company paying Pietra's standard pick and pack rates outlined in Exhibit A.
7. PIETRA INTELLECTUAL PROPERTY RIGHTS
7.1 PIETRA Property. For purposes of this Agreement, "Pietra Property " shall mean (a) Pietra's methodology for the provision of the Services; and (b) Pietra Confidential Information; and © all Pietra software, algorithms, and websites relating to Pietra. Pietra hereby retains all worldwide right, title and interest in and to the Pietra Property. Any rights not expressly granted herein to the Pietra Property shall be retained by Pietra. Company acknowledges that all right, title and interest to the Pietra Property is owned by Pietra.
7.2 Additional Restrictions. Other than as permitted herein, Company shall not (and shall not permit others), directly or indirectly, to modify, to translate, to decompile, to disassemble, or to reverse engineer any part of the Pietra's Property, or otherwise to attempt to discern the functioning or operation of the website or the Services; or to copy, to rent, to lease, to distribute, or to otherwise transfer any of the rights Company receives hereunder. For clarity, all page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Pietra and Company shall not copy, imitate, or use them without Pietra's express prior written consent. Company may use HTML logos provided by Pietra through Services, auction tools features or affiliate programs without prior written consent solely for the purpose of directing web traffic to pietrastudio.com*. Company shall not alter, modify or change such HTML logos in any way, use them in a manner that is disparaging or otherwise adverse to Pietra or the Services, or display them in any manner that implies Pietra's sponsorship or endorsement. Company shall not (and shall not permit others to): (i) use any robot, spider, scraper or other automated means to access Pietra's website or Services for any purpose without Pietra's express written permission, (ii) interfere or attempt to interfere with the proper working of Pietra's website or any activities conducted on the website, or (iii) bypass any measures Pietra may use to prevent or restrict access to Pietra's website or the Services.
7.3 Client Property. No Confidential Information obtained by Pietra from Company shall become Pietra Property.
7.4 Data Security. The Services are currently provided from the United States. Registration Information, Account data, information and other data (" Data ") is currently stored and processed in the United States. Pietra has implemented and will maintain appropriate physical, electronic, and managerial procedures intended to protect against the loss, misuse, unauthorized access, alteration or disclosure. These measures include encryption of Data during transmission of the Service and encryption of backups of Data and authentication credentials at rest. Pietra will use commercially reasonable efforts to promptly notify Company of any unauthorized Account access to, or use of, Data that comes to Pietra's attention. Company agrees to immediately notify Pietra of any suspected security breach at firstname.lastname@example.org, followed by contacting Pietra customer support.
7.5 Third Party Software . Any third party software application Company uses on the Pietra website, to connect to the Services, or related to the Services (" Third Party Software ") is solely subject to any third party software provider software licenses. Pietra does not own, control or have any responsibility or liability for any Third Party Software.
8. CONFIDENTIAL INFORMATION
8.1 Scope. From time to time during the Term, either Party (" Discloser ") may disclose or make available to the other Party (" Recipient ") Confidential Information, whether orally or in written, electronic or other form, whether or not marked, designated or otherwise identified as "confidential." For purposes of this Agreement, " Confidential Information " includes all industrial and other intellectual property rights comprising or relating to:
- all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models);
- all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world;
- all rights in and to internet domain names, registered by any authorized private registrar or another governmental authority, web addresses, web pages, website and URLs;
- all rights in and to works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; and
- all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein information about its business affairs, goods and services; third-party confidential information and other sensitive or proprietary information.
8.2 Exclusion. Information that is subject to one of the following exclusions shall not be Confidential Information:
- information that is or becomes generally available to and known by the public;
- information that is or becomes available to the Recipient on a non-confidential basis from a third-party source;
- information published or otherwise made known to the public by Discloser;
- information that was generated independently without reference to the Discloser's Confidential Information; or
- information that is required to be disclosed under a court order or pursuant to any applicable governmental rule, regulation or statute, provided that Recipient provide Discloser with prior written Notice of such disclosure, (as permitted by law) and the timing for response set forth in the request.
9.1 Indemnification . Subject to the terms and conditions of this Agreement, Company shall indemnify, defend and hold harmless Pietra and its representatives/officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party or End-User (collectively, "Losses"), arising out or resulting from any claim of a third party alleging:
- breach or non-fulfillment of any representation, warranty or covenant under/representation or warranty set forth in this Agreement by Company;
- any negligent or more culpable act or omission of Company (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement;
- any bodily injury, death of any person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Company;
- the acts or omissions (including, without limitation, any negligence or willful misconduct) of any third party whether or not selected by or retained by Pietra;
- any failure by Company to substantially comply with an applicable Food and Drug Administration (FDA) or other governmental requirement; or
- any failure by Company to comply with any applicable state, federal or international laws.
10.1 As Is. Pietra's obligations under this agreement and the attached Exhibits (including the use of Pietra's technology) are provided on an "as is" and "as available" basis. Pietra expressly disclaims all warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement for the services, Pietra's website and any third-party services. the use of services, Pietra's website, or third party services is at Company's risk.
10.2 No Continuous Access. Pietra does not guarantee continuous, uninterrupted or secure access to the Service. Operation of the Services may be interfered with by numerous factors outside of Pietra's control. However, Pietra will make reasonable efforts to process requests for receiving or shipping merchandise in a timely manner but Pietra makes no representations or warranties regarding the amount of time needed to complete processing because the Service is dependent upon many factors outside of its control.
11. LIMITATION ON PIETRA LIABILITY
11.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES THIRD PARTY LIABILITY. EXCEPT FOR LIABILITY FOR INDEMNIFICATION AND LIABILITY FOR BREACH OF CONFIDENTIALITY, NEITHER PIETRA NOR ITS REPRESENTATIVES IS LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, OR DAMAGES FOR LOSS, LOSS OF PROFITS, REVENUE, DATA OR USE, INCURRED BY COMPANY OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PIETRA/ OR COULD HAVE BEEN REASONABLY FORESEEN BY PIETRA, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. OTHER THAN AS SET FORTH BELOW, IN NO EVENT SHALL PIETRA'S LIABILITY UNDER THIS AGREEMENT EXCEED THE MONIES PAID OR PAYABLE BY COMPANY TO PIETRA EXCLUDING CARRIER FEES OR OTHER THIRD PARTY FEES ("DAMAGES CAP"). PIETRA MUST BE NOTIFIED WITHIN FIVE (5) DAYS AFTER ANY UNAUTHORIZED TRANSACTION OR COMPANY WAIVE ALL DAMAGES FROM PIETRA.
11.2 EXCLUSIVE REMEDY. THE PROVISIONS OF THIS AGREEMENT PROVIDE COMPANY'S EXCLUSIVE REMEDY AGAINST PIETRA FOR ANY CLAIM OR CAUSE OF ACTION WHATSOEVER RELATING TO LOSS, DAMAGE AND/OR DESTRUCTION OF INVENTORY AND SHALL APPLY TO ALL CLAIMS INCLUDING INVENTORY SHORTAGE AND MYSTERIOUS DISAPPEARANCE CLAIMS UNLESS PROVEN BY AFFIRMATIVE EVIDENCE THAT PIETRA CONVERTED THE INVENTORY TO ITS OWN USE. COMPANY HEREBY WAIVES ANY RIGHTS TO RELY UPON ANY PRESUMPTION OF CONVERSION IMPOSED BY LAW.
11.3 INVENTORY COUNT INACCURACIES. IN THE EVENT OF INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES, INACCURATE INVENTORY COUNTS DURING RECEIVING OR INVENTORY COUNT INACCURACIES AT ANY TIME THAT PIETRA IS IN POSSESSION OF INVENTORY FOR WHICH THE CLAUSES ABOVE IS DETERMINED TO BE INAPPLICABLE AND PIETTRA IS HELD LEGALLY LIABLE, COMPANY AGREES THAT IT WILL BE CONSIDERED AN "INVENTORY LOSS" AND PIETRA'S LIABILITY SHALL BE LIMITED AS STATED ABOVE. IN NO EVENT SHALL PIETRA BE LIABLE FOR ANY LOST SALES REVENUE FROM THE INVENTORY LOSS DUE TO INVENTORY COUNT INACCURACIES. IF THERE ARE ANY ISSUES WITH COUNTS, THEY ARE TO BE ADDRESSED PRIOR TO SELLING THE PRODUCT.
12. GENERAL PROVISIONS.
12.1 Entire Agreement. This Agreement, including and together with any related Exhibits, invoices and Pietra Services constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
12.2 Severability. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, such provision shall be modified to the extent necessary to make such provision valid and enforceable and the remaining provisions of this Agreement shall remain in effect and enforceable in accordance with their terms.
12.3 No Waiver. Failure or delay of Pietra to exercise a right or power under this Agreement shall not operate as a waiver thereof, nor shall any single or partial exercise of a right or power preclude any other future exercise thereof.
12.4 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a " Notice ") must be in writing and addressed to the other Party at its address designated from time to time. Unless otherwise agreed herein, all Notices to Company must be delivered by email listed in the Account, personal delivery, nationally recognized overnight courier or certified or registered mail to the address listed in the Account. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section. Notwithstanding the foregoing, legal notices to Pietra must be sent by postal mail to: Pietra, Inc., Attention: Legal Department, 270 Lafayette Street, Suite 604, New York, New York, 10012
12.5 Conflict of Terms. If there is a conflict between this Agreement and the terms of any air waybill, bill of lading or other transit documentation set forth by the contracted carrier, the carrier's terms will control. If not stated within the carrier's terms, this Agreement shall control.
12.6 Attorneys' Fees and Costs. In the event of a legal dispute, the prevailing Party shall have the right to collect from non-prevailing Party any reasonable costs and/or attorneys' fees incurred in enforcing this Agreement.
12.7 Governing Law and Venue. This Agreement and performance by the Parties hereunder shall be construed in accordance with the applicable laws of the State of New York without regard to conflicts of laws provisions thereof, or, as appropriate, federal laws of the United States. Any action or proceeding arising from or relating to these terms must be brought in a federal or state court in New York, New York. The Parties consent to the exclusive jurisdiction of, and venue in, the state and federal courts within New York, New York. Notwithstanding the foregoing, Pietra may seek injunctive or other equitable relief to protect Pietra's intellectual property rights in any court of competent jurisdiction.
12.8 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a " Force Majeure Event "). Company's financial inability to perform, changes in cost or availability of materials, components or services, market conditions or Company actions or contract disputes will not excuse performance by Company under this Section. Company shall give Pietra prompt written Notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event, and the anticipated duration of such Force Majeure Event. Company shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement.
If requested by Pietra, Company shall, within 30 days of such request, provide adequate assurances that a Force Majeure Event will not exceed 30 days. The rights granted to Company with respect to excused delays under this Section are intended to limit Company's rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under the New York Commercial Code or any similar statute or regulation.
IN WITNESS WHEREOF , this Pietra Agreement has been executed by the Parties' duly authorized officers as of the date first set forth above.
Name: Ronak Trivedi
Company: Pietra, Inc.