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HomeMy WebLinkAboutSH20-020 - Commissary Partnership AgreementCOMMISSARY PARTNERSHIP AGREEMENT This Commissary Agreement is made and entered into by and between Kittitas County on behalf of the Kittitas County Corrections Center (KCCC)a Washington Government Entity ("Client") and Summit Food Service a New Mexico Limited Liability Company ("Company") (collectively "the Parties"). 1. TERM AND INTENT 1.1 Client grants Company the exclusive right to provide Commissary Services at the Premises. 1.2 This Agreement shall commence on November 1, 2020 (the "Commencement Date") or sooner if mutually agreed upon in writing by both of the Parties. The Agreement will remain in effect through October 31, 2025. The Agreement shall then automatically renew for additional one-year terms unless this Agreement is otherwise terminated as set forth herein. 2. DEFINITIONS 2.1. Accounting Period. Company's accounting calendar is based on an accounting cycle consisting of three (3) rotational periods of four (4) weeks, four (4) weeks, five (5) weeks. 2.2. Agreement. In order of precedence: (i) this Commissary Service Partnership Agreement, Exhibits and Schedules, as amended and, where specifically included by reference, (ii) the Company's Proposal and (iii) the Solicitation. 2.3. Governmental Rule. Any statute, law, rule, regulation, ordinance or code of any governmental entity (whether federal, state, local or otherwise). 2.4. PCI Standards. All rules, regulations, standards or guidelines adopted or required by the Payment Card Industry Security Standards Council relating to privacy, data security and the safeguarding, disclosure and handling of Payment Instrument Information. 2.5. Premises. The KCCC currently located at 205 W 51h Avenue, Suite 108, Ellensburg, WA 98926. 2.6. Products. Food, beverages, goods, merchandise, and supplies. 2.7. Inmates. Persons in custody at Client's Facility. 2.8. Proprietary, Confidential and Trade Secret Information. Items used in Company Commissary Services (owned by or licensed to Company) including, without limitation, menus, signage, surveys, Software (i.e. production systems, accounting systems), recipes, management guidelines and procedures, operating manuals, personnel information, purchasing and distribution practices, pricing and bidding information, financial information, provided, however that the following items are specifically excluded: (i) information generally available to and known by the public or (ii) information independently developed or previously known by the Client. 2.9. Supervisory Employee. Those persons who have directly or indirectly performed management or professional services on behalf of Company for the Client at any time during this Agreement including, without limitation, any corporate employee, manager, assistant manager, chef, lead cook or dietitian. 2.10. Utilities and Amenities. All utilities reasonably requested by Company to provide Commissary Services at the Premises including, without limitation, heat, hot and cold water, gas, refrigeration, lights, electric current, ventilation, air conditioning, recycling, cooking waste removal, hazardous Page 1 of 11 waste removal, garbage removal services, exterminator services, telephone services, internet access, and sewage disposal services. 3. COMMISSARY SERVICES 3.1 Summit Responsibilities. Summit agrees to perform the following responsibilities: A. Summit shall operate and manage Commissary services hereunder in a professional manner and supply with merchandise of good quality. B. Summit agrees to comply with all local, state and federal laws and regulations governing the operation of the commissary. C. All persons employed by Summit will be the employees of Summit and not of Client. Summit, in performing work required by this Agreement, shall not discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin or age, or on any other basis that is in violation of local, state or federal laws. Summit will comply with applicable local, state and federal laws and regulations pertaining to the wages and hours of employment. D. Summit agrees to supply the client at no cost a commissary system as required to perform the tasks required, provided the commissary system will remain Summit property after Termination of the Agreement. As part of the commissary system, Summit shall provide a booking kiosk and also a lobby kiosk for visitors to deposit money directly into inmate accounts. Summit will also provide software updates as they become available. Any training required by the installation of software enhancements will be provided by Summit at no cost. E. Summit shall host an e-commerce website to permit third parties to purchase hot and cold meals and Products such as gift bags for Inmates. Summit shall prepare and deliver e-commerce purchases once a week to offenders. Client will provide daily inmate roster on an agreed upon schedule but no less than once per day. F. Summit shall work with Client to maintain conditions of sanitation and cleanliness. 3.2 Client's Responsibilities. Client agrees to perform the following responsibilities: A. Client shall, without cost to Summit, provide Summit with the necessary space for the operation of Services, and shall furnish, without cost to Summit, all utilities, facilities, equipment and security for Summit personnel for the efficient performance of this Agreement including, but not limited to, the following: lights, electric current, heat, refrigeration, garbage removal services, exterminator services, telephone services, internet access and facsimile services. Client shall also be responsible for the costs of wiring or rewiring and hooking up kiosks, computers or software systems or local area networks used in the operation of the Commissary program or its connection to Client's accounting system. B. At its own expense, Client will maintain, repair, replace, and keep in safe operating condition said utilities, facilities and equipment owned or controlled by KCCC, such that no Summit employee is exposed to or subjected to any unsafe situation that would violate the Occupational Safety and Health Act ("OSHA") or any other similar federal, state or local law or regulation. Summit shall have the right to effect equipment repairs or replacements at Client's expense if, within a reasonable amount Page 2 of 11 C. 0 E of time after receiving notice, Client fails to make necessary repairs or replacement to essential equipment that becomes inoperative, hazardous or inefficient to operate or interferes with Summit' ability to provide Services in a safe and sanitary manner. Summit shall be entitled to assert a security interest in any equipment that it purchases or repairs under this section and shall retain title to equipment purchased hereunder. Once the cost of the purchased equipment or equipment repair has been recovered, Summit shall release the security interest and title for any such purchased equipment to Client. A piece of equipment in the nature of what is commonly known as a "vending machine" is to be included in this agreement in order to provide commissary services to short term inmates. The products available from this piece of equipment shall be agreed upon by KCCC and Summit. KCCC and Summit agree that as to this piece of equipment, the parties shall share the cost by each paying 50% of the initial cost thereof. After Summit has recovered its portion of those costs, title thereto shall be in the KCCC. Any change or addition requested by the Client to modify the commissary software that is specific to this location shall be paid for by the Client. Any costs incurred by Summit for travel for training for the Client specific modifications shall be paid for by the Client. The Client represents and warrants that it has and will maintain all required licenses and permits, necessary to operate the Premises. The Client represents and warrants that the Premises is in compliance and will remain in compliance with local, state, and federal laws and regulations. The Client agrees to notify Summit immediately upon receiving notice of loss of any such permit or license. For the purpose of this Section 3, "Supervisory Employees" shall be defined as those persons who have directly or indirectly performed management or professional services on behalf of Summit on behalf of Client at any time during this Agreement. Client acknowledges that Summit has invested considerable amounts of time and money in training its Supervisory Employees, in the systems, procedures, methods, forms, reports, formulas, computer programs, recipes, menus, plans, techniques and other valuable information, all of which is proprietary and unique to Summit. Therefore, the Client agrees that during the Supervisory Employee's employment with Summit and for a period of twelve (12) months thereafter no Supervisory Employees of Summit will be hired by Client nor any facility affiliated with Client, nor will Client permit employment of Summit Supervisory Employees on Client's Premises or the Premises of any facility affiliated with Client, whether as an individual or as owner, partner, majority stockholder, director, officer or employee of a food/Commissary service provider. Client agrees that if it violates this contract provision, Client shall pay to Summit, and Summit shall accept as liquidated damages and not as a penalty, an amount equal to the annual salary (including costs of all benefits) of the Supervisory Employee(s) hired by or allowed to work with Client in violation of the terms of this Agreement. Summit shall be entitled to pursue all other remedies available under federal, state, or local law. Page 3 of 11 F. Client shall pay all real estate taxes with respect to the Premises, and Client shall pay all personal property taxes and similar taxes with respect to Client's equipment located on the premises. 4. EMPLOYEES 4.1. Employees. Company shall hire employees necessary for its performance of this Agreement. Persons employed by Company will be the employees of Company and not of Client. Company's employees and agents shall comply with applicable rules and regulations concerning conduct on the Client's premises which the Client imposes upon its employees and agents provided such rules and/or regulations are not in violation of any federal, state, and/or local laws. Client agrees to provide Company notice of any proposed changes in rules, at least thirty (30) days prior to implementation. Company will consider Client's written requests to remove Commissary Service employees, provided such requests are non-discriminatory and comply with all laws and regulations governing employment. 4.2. Background Checks. Company shall conduct necessary background checks as required by law. Because of the nature of the KCCC and its obligations, the standards for the background checks shall be as considered appropriate in the judgment of the Sheriff or his designee to ensure the security and safety of the KCCC. 4.3. Equal Opportunity and Affirmative Action Employer. Company abides by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities and prohibit discrimination against all individuals based on their age, race, color, religion, sex, sexual orientation or national origin. Company employs and promotes individuals without regard to age, race, color, religion, sex, national origin, protected veteran status or disability. 4.4. Non -Hire. Client acknowledges that Company has invested considerable amounts of time and money in training its Supervisory Employees. Therefore, the Client agrees that during the Supervisory Employee's employment with Company and for a period of twelve (12) months thereafter no Supervisory Employees of Company will be hired by Client nor any facility affiliated with Client, nor will Client permit employment of Company Supervisory Employees on Client's Premises or the Premises of any facility affiliated with Client. Client agrees that if it violates this provision, Client shall pay to Company, and Company shall accept as liquidated damages and not as a penalty, an amount equal to one time the annual salary) of the Supervisory Employee(s) hired by or allowed to work with Client in violation of the terms of this Agreement. Company shall be entitled to pursue all other remedies available under federal, state, or local law. This provision shall survive the termination of this Agreement. 5. PREMISES, FACILITIES, UTILITIES AND EQUIPMENT Page 4 of 11 5.1 Premises. The Premises shall be in good condition and maintained by the Client to ensure compliance with applicable Governmental Rules and to enable Company to perform its obligations hereunder. Client shall be responsible for any modifications or alterations to the workplace or the Premises necessary to comply with any applicable Governmental Rules. Company shall have no obligation to maintain or repair the Premises. 5.2 Facilities, Utilities. At its own expense, Client shall maintain, repair, replace, and keep in safe operating condition said Facilities and Utilities, to permit the performance of the Commissary Service and to ensure compliance with Governmental Rules. 5.3 Computer Equipment. A. Internet Access. If Company is to implement a point-of-sale system, Client shall either allow Company to use Client's point-of-sale- system ("POS System") and required internet access or, in the alternative, shall provide and maintain the system requirements necessary for Company to install and maintain its own POS System. To the extent Company installs and maintains its own POS System, Client shall provide electrical outlets and wireless IP network connectivity terminating in necessary cabling connection between the cash registers, the time -clocks, the Commissary service office and Company's router. Client shall allow Company and the internet provider physical access to the area where a high-speed internet connection will be installed and shall permit Contractor's installation of a router and dedicated high-speed internet circuit with full administrative control to establish a connection between the Commissary service office, workstations (if any) and Company's network within the policies and procedures of Kittitas County. B. Software. Company will license products, software and maintenance for use in providing services in accordance with this Agreement. Upon termination of this Agreement, Client shall have no right to access or retain any Company software or Confidential Information produced by that software. C. Credit Card Processing. If requested by Client, Company will accept and process credit card payments for sales of food, beverage, goods, merchandise and services in the Commissary Service operation. If Company processes credit card transactions using equipment solely provided by Company, then Company will be responsible for compliance of its equipment in accordance with PCI Standards. If Company uses computers, software, network equipment ("Systems") or other property of Client to process credit card transactions, then Client will be required to provide Systems that fully support PCI standards and requirements or reimburse the Company for the acquisition of Systems that sufficiently meet the requirements of current PCI Data Security Standards. In that case, if Company is considered the "merchant of record", Client will provide Company with a certificate of compliance if requested by Company. 6. TAXES 6.1 Taxes. Company shall be responsible for collecting and remitting sales tax on applicable sales collected by Company. Unless Client provides documentation of Client's federal and state tax- exempt status to the Company's sole satisfaction, Client shall reimburse Company for state and local sales tax on the full amount of charges and fees billed to the Client. Client shall secure and pay all federal, state and local property, excise and income and other taxes and fees required for the Premises and resulting from the Commissary Services provided for hereunder. Client shall Page 5 of 11 immediately pay for any tax assessments including interest, penalties, costs and expenses, which are assessed against the Commissary Service operation and were not in effect as of the Commencement Date or were owed but unpaid as of the Commencement Date. Client shall notify Company promptly should its sales tax status be changed. 7. FINANCIAL ARRANGEMENTS 7.1 Payment Arrangement. A. Summit shall be entitled to retain amounts paid in conjunction with services provided to the Commissary. In exchange, Summit will pay Client a monthly commission equivalent to thirty percent (30%) of Net Sales at the Premises. Net Sales shall be defined as Gross Sales minus Sales Tax minus applicable processing, mail fees. B. Summit shall be entitled to retain amounts paid in conjunction with Service provided for the Outside Inside and Gift Bags e-commerce programs. In exchange, Summit will pay Client a monthly commission equivalent to twenty percent (20%) of Net Sales at the Premises. Net Sales shall be defined as Gross Sales minus Sales Tax minus applicable processing, mail and administrative fees. C. Summit shall receive orders through Kiosks only from inmates. Any additional ordering methods shall bear additional costs. D. Summit shall charge the following administrative fees to inmates/depositors: Fee Type Fee Amount Debit Time Fee $0.80 Cash Deposit $3.50 Credit/Debit Card Greater of $3.50 or 10% E. Summit shall provide the Client monthly an operating statement which shall detail the revenue based on the operation of the commissary. F. Summit and Client shall review the costs for service on no less than an annual basis to determine adjustments in operating costs. Summit reserves the right to adjust the retail prices on the commissary price list to reflect any increase in cost, and to ensure the financial objectives of this Agreement. 7.2 Right to Offset. In the event that Client is more than thirty (30) days past due on any obligations to Company, Company shall have the right to offset, from any other sums owed by Company to Client, all or any portion of such outstanding receivables. Additionally, Company shall have the right, at Company's option, at any time that Client is over thirty (30) days past due on any obligations require that Client pay, on a prebilling basis, at least one week in advance of each Accounting Period, the estimated amount due Company for that Accounting Period. The estimated amount shall be adjusted and reconciled to the actual amount in the next prebilling invoice, or if Client is no longer past due on its obligations to Company, with the next invoice due hereunder. Further, Company shall have the right to immediately adjust hours, prices, labor and menu offerings to further off -set any losses. 7.3 Change in Conditions. The financial terms set forth in this Agreement, and all other obligations assumed by Company hereunder, are based on conditions in existence on the date Company commences operations including, without limitation, population; labor costs; applicable Page 6 of 11 Governmental Rules; food and supply costs; provision of equipment and utilities; state of the Premises; and federal, state and local sales, use and excise taxes (the "Conditions"). Further, Client acknowledges that in connection with the negotiation and execution of this Agreement, Company has relied upon Client's representations regarding existing and future conditions (the "Representations"). In the event of change in the Conditions, inaccuracy of the Representations, or if Client requests any significant change in the Commissary Services as provided under this Agreement, the financial terms and other obligations assumed by Company shall be renegotiated to reflect a proportionate increase in Company's charges to the Client. Company will provide a thirty (30) day notice of such increased charges. 7.4 Attorney's Fees and Costs. Client shall pay all costs of collecting any amount due Company, including attorney's fees and all costs and other expenses incurred by Company in collecting an indebtedness of Client. This provision shall survive the termination of the Agreement. 8. TERMINATION OF THE AGREEMENT. 8.1 Termination for Non -Performance. If either party refuses, fails or is unable to perform or observe any of the terms or conditions of this Agreement for any reason other than for Excused Performance as set forth in this Agreement, the party claiming such deficiency shall provide the breaching party written notice of any such breach. If the breaching party remedies such breach within (i) three (3) days in the case of failure to make payment when due, (ii) fifteen (15) days in the case of any other breach, or (iii) a reasonable time where cure is not possible within fifteen (15) days (collectively the "Notice Period"), the notice shall be null and void. If the breaching party fails to remedy the breach within the Notice Period, the party giving notice may cancel the Agreement after the end of the Notice Period. 8.2 Termination for Financial Insecurity. If either Party makes an unauthorized assignment for the benefit of creditors, files a petition under the bankruptcy or insolvency laws of any jurisdiction, has or suffers a receiver or trustee to be appointed for its business or property, or is adjudicated a bankrupt or an insolvent, the other party may terminate the Agreement with three (3) days' notice. Provided, however, that Client agrees to provide Company thirty (30) days' notice before filing a petition for bankruptcy. 8.3 Voluntary Termination. At any time after one year of service, either Party may terminate this Agreement with or without cause by written notice to the other party given not less than sixty (60) days prior to the effective date of termination. 8.4 Steps Upon Termination. Upon the termination or expiration of this Agreement, Company shall vacate the Premises occupied by Company and shall remove its own equipment and return equipment furnished by Client pursuant to this Agreement. Upon termination of this Agreement, Company shall surrender the then -current Equipment to Client in the condition as it was delivered on the Commencement Date (or, if later, in the condition in which such Equipment was placed into service), excepting ordinary wear and tear, damage resulting from Client's failure to maintain the Equipment and other damage (including damage caused by force majeure) for which Company is not responsible hereunder. 8.5 Continuing Obligations. The termination of this Agreement shall not affect the rights, privileges, or liabilities of the Parties as they exist as of the effective date of termination. All outstanding Page 7 of 11 amounts owed to Company shall become due and payable immediately upon termination. If, at Client's request, Company enters into agreements with one or more third parties in connection with its management of Client's Commissary Service operations (collectively, "Third Party Agreements"), Client agrees, at Client's sole cost and expense, to: (i) assume and undertake (or cause to be assumed and undertaken by the Commissary Service provider succeeding Company) all responsibilities of Company under all Third Party Agreements from and after the date this Agreement expires or is earlier terminated; (ii) release Company from all liability associated with such Third Party Agreements from and after the date this Agreement expires or is earlier terminated; and (iii) bear all liability and responsibility with respect to any costs, fees and other charges associated with termination of such Third Party Agreements. This Paragraph shall survive the termination or expiration of this Agreement. 9. INDEMNIFICATION; INSURANCE 9.1 Insurance. Both Client and Company shall maintain their own insurance on their respective real property, equipment and contents. Upon request, evidence of such insurance shall be provided in the form of a certificate of insurance. A. Company Insurance. Company shall procure and maintain the following insurance: 1. Worker's Compensation Insurance as prescribed by the laws of the state where the Premises are located; and 2. Comprehensive General Liability Insurance, with limits of one million dollars ($1,000,000.00) per occurrence and one million dollars ($1,000,000.00) annual aggregate to cover any and all claims that arise during the course of this Agreement. C. Subrogation. Client and Company waive any and all right of recovery from each other for property damage or loss of use thereof, however occurring, which loss is insured under a valid and collectible insurance policy to the extent of any recovery collectible under such insurance. This waiver shall include, but not be limited to, losses covered by policies of fire, extended coverage, boiler explosion and sprinkler leakage. This waiver shall not apply to claims for personal death or injury. Company shall not be liable to the Client, in any way for damage to the Facilities or Premises caused by reason of fire, or other hazard, however caused, or by the reason of an act of God. In any event, Company shall not be held liable for any cause to an extent which would exceed effective coverage and dollar limits prevailing under the policies of insurance described in this Agreement. 9.2 Indemnification. Each Party agrees to provide the following indemnification: A. Each party agrees that it will defend, indemnify and hold harmless the other party, its officers, directors, parent corporation, affiliates, employees and agents ("Indemnified Parties") against any and all liabilities, losses, damages, injuries, deaths, reasonable litigation expenses (including, without limitation, reasonable attorneys' fees), costs and costs of court (collectively, "Damages") which Indemnified Parties may hereafter sustain, incur or be required to pay arising out of the other party's negligent acts, omissions or failure to perform obligations pursuant to this Agreement. Provided, however, neither party shall be required to defend, indemnify and hold harmless the other party for any intentional or criminal actions of the other party or its employees, visitors or invitees. Client agrees to defend, indemnify and hold Page 8 of 11 harmless Company Indemnified Parties from all Damages which may arise due to any act or omission of a Company Party made in compliance with a Client's rules or requirements. B. Notice of Indemnification. A party shall only be required to indemnify pursuant to the Agreement, where that party receives a written request to indemnify within twenty (20) days after the initial receipt of notice of any such lawsuit or claim by the party requesting indemnification. Failure to notify a party of such claim or lawsuit within the stated period of time shall relieve that party of any and all responsibility and liability under this Agreement to defend, indemnify and hold harmless for that claim or lawsuit. 10. GENERAL AGREEMENT TERMS 10.1 Confidentiality. Neither Client, nor Client's employees or agents, shall disclose, photocopy, duplicate or use, either during or after the term of this Agreement, any Proprietary, Confidential and Trade Secret Information, without Company's prior written permission except as required by the Washington Public Records Act, RCW 42.56. All Proprietary, Confidential and Trade Secret Information shall remain Company exclusive property. Client's access or use of Company Proprietary, Confidential and Trade Secret Information or Software shall not create any right, title, interest or copyright in such Information or Software. If Client is requested to disclose any of the Confidential Information to any third party for any reason, Client shall provide Company with prompt notice of such request(s) to seek injunctive relief pursuant to RCW 42.56.540. Upon termination of this Agreement, Client shall return all Company Proprietary, Confidential and Trade Secret Information in Client's possession relating to Company's services pursuant to this Agreement. Client agrees that upon breaching this provision, Company shall be entitled to equitable relief, including injunction or specific performance, in addition to all other available remedies. This provision shall survive the termination of the Agreement. 10.2 Intellectual Property. Nothing in this Agreement is intended to grant any rights to Client under any patent, copyright, trademark, trade name, trade secret or other proprietary right of Company (whether now owned or hereafter developed or acquired), all of which are reserved to Company. 10.3 Independent Contractor Relationship. It is mutually understood and agreed, and it is the intent of the Parties, that an independent contractor relationship is hereby established under the terms and conditions of this Agreement. Employees of Company are not, nor shall they be deemed to be, employees of Client. Employees of Client are not, nor shall they be deemed to be, employees of Company. 10.4 Notice. Any notice required under this Agreement shall be deemed to have been sufficiently provided when delivered by hand, or three days after being sent by certified or registered mail return receipt requested, or by overnight delivery service with receipt of delivery, provided such delivery is to the parties at the following addresses: Client Company Kittitas County Summit Food Service, LLC 205 West 5th Avenue, Suite 108 500 East 52nd Street Ellensburg, WA 98926 Sioux Falls, SD 57104 10.5 Excused Performance. If performance of any terms or provisions hereof (other than the payment of monies) shall be delayed or prevented because of compliance with any law, regulation, decree or order by any federal, state, or local court, governmental agency or governmental authority, or Page 9 of 11 because of riot, war, public disturbance, strike, lockout, differences with workmen, fire, flood, Act of God or any other reason whatsoever, which is not within the control of the party whose performance is interfered with, and which, by the exercise of reasonable diligence said party is unable to prevent, the party so suffering may at its option, suspend, without liability, the performance of its obligations hereunder (other than the payment of monies) during the period such cause continues. 10.6 Assignment or Transfer. Neither party may assign or transfer this Agreement, or any part thereof, without written consent of the other party. Such consent shall not be unreasonably withheld Provided, however, that this shall not apply to Company's transfer to a parent, sister or successor company where Company provides Client at least thirty (30) days written notice. 10.7 Entire Agreement; Waiver. This Agreement, including any Exhibits hereto, constitutes the entire Agreement between the Parties with respect to the provisions of Company's services, and there are no other or further written or oral understandings or agreements with respect thereto except as otherwise set forth herein. No variation or modification of this Agreement and no waiver of its provisions shall be valid unless in writing and signed by the duly authorized officers of Company and Client. This Agreement supersedes all other agreements between the Parties or their predecessors for the provision of Company Commissary Services. 10.8 Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall be effective upon delivery and, thereafter, shall be deemed to be an original, and all of which shall be taken as one and the same instrument with the same effect as if each party had signed on the same signature page. This Agreement may be transmitted by fax or by electronic mail in portable document format ("PDF") and signatures appearing on faxed instruments and/or electronic mail instruments shall be treated as original signatures. 10.9 State Guidelines. Client hereby agrees that the validity and construction of this Agreement shall be governed by Washington State law. Should a lawsuit be necessary to enforce this Agreement, Client hereby waives any objection to venue or personal jurisdiction and agrees to be subject to the jurisdiction of the courts located in Washington. A facsimile copy or photocopy of this Agreement shall be valid as an original thereof. EACH PARTY HEREBY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF AND BROUGHT BY ANY OTHER PARTY. 10.10 Limitation of Liability. Company's entire liability and Client's exclusive remedy for damages arising out of or related to this Agreement or the Commissary Services shall not exceed the total amount paid by Client to Company for the current term of this Agreement. COMPANY SHALL NOT BE LIABLE FOR LOSS OF BUSINESS, BUSINESS INTERRUPTION, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE OR PROFIT IN CONNECTION WITH THE PERFORMANCE OR FAILURE TO PERFORM THIS AGREEMENT, REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM BREACH OF CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. 10.11 Severability. Any term or provision of this Agreement that is invalid or unenforceable shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation. 10.12Authority. Company and Client represent that the individual executing this Agreement has been duly and validly authorized to execute this Agreement on each party's respective behalf with the full power and authority under all applicable laws and respective articles of incorporation, bylaws Page 10 of 11 or other governing instrument to enter into this Agreement and to perform their obligations hereunder. IN WITNESS WHEREOF, the Parties, intending to be legally bound, have caused their appointed and duly assigned officers to execute this Agreement. CLIENT COMPANY Signature: ( �.,� Signature: Name: '5' Name: Title: G — Title: Date: Date: Page 11 of 11