Terms and Conditions

• Definitions
  • “Affiliate” means a corporation or other entity that directly, or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such corporation or entity, but only for so long as the relationship exists.
  • “Allowances” mean any monies paid after the Effective Date to Entegra by a Manufacturer (whether as a Direct Store Delivery or otherwise), a Distributor or a provider of Services arising from Covered Purchases. Notwithstanding the foregoing, Allowances do not include monies arising from the following: (i) signing bonuses, (ii) monies paid for the promotion of products (including the goods and services needed to perform such promotions), (iii) growth incentive monies and other monies paid to or received by Affiliates of Sodexo outside of the United States; and (iv) Affiliates of Sodexo that are not wholly-owned by Sodexo.
  • “Competitor” means each of Aramark Corporation; Compass Group PLC; Lackmann Food Service, Inc.; Culinart, Inc.; International Service System; Elior Group S.A.; Whitson’s Food Service Corp.; Restaurant Marketing Associates, Inc.; Premier, Inc.; Foodbuy, LLC; Avendra, LLC; Navigator Group Purchasing, Inc., Dining Alliance, LLC; Insidetrack, LLC; Buyers Edge Platform, LLC; Sundell & Associates; Consolidated Concepts, LLC; Restaurant Partners Procurement, LLC and similar organizations and their respective subsidiaries and Affiliates.
  • "Confidential Information" means all information received from the Disclosing Party (as defined below) or any of its affiliates or representatives (including, without limitation, the terms hereof, any know-how, trade secret, process, confidential or proprietary report or information or other form of information relating to the Disclosing Party's or its affiliates' business), whether in written, oral, encoded, graphic, magnetic, electronic or in any other tangible or intangible form; provided that "Confidential Information" shall not include any information that: (i) is or becomes generally available to the public, other than as a result of a breach by the Receiving Party (as defined below) or its affiliates or representatives of its confidentiality obligations herein; (ii) was known by the Receiving Party or its representatives prior to the Effective Date (except for any information provided to it by the other Party in contemplation of this Agreement); (iii) becomes available to the Receiving Party or its representatives on a non-confidential basis from a third party who is not bound by any confidentiality obligation to the Disclosing Party or its subsidiaries or affiliates; or (iv) was independently developed by the Receiving Party's employees or agents (so long as such Party's employees or agents had no access to or benefit of any of the information in question) as substantiated by separate documentation.
  • “Control” means ownership of more than fifty percent (50%) of the shares of stock entitled to vote for the election of directors in the case of a corporation, and at least fifty percent (50%) of the interests in profits in the case of an entity other than a corporation.
  • “Direct Store Delivery” means the sale and delivery of Products by a Manufacturer to a Facility.
  • “Distributors” means Prime Distributors, Regional Distributors and Direct Store Delivery distributors.
  • “Execution Date” means the date on which the applicable procurement services agreement by and between Entegra Procurement Services, LLC and applicable client is duly executed by both parties.
  • “Facilities Products” means those products obtained under a Supply Agreement that may be utilized in the provision of facilities management services, including, but not limited to, disposables and cleaning supplies.
  • “Food Products” means those products utilized in the provision of foodservice management and purchased under a Supply Agreement, including, but not limited to (i) food and certain non-alcoholic beverages, (ii) smallwares, disposables and other foodservice supplies, and (iii) cleaning supplies.
  • "Manufacturers" (and, each, a “Manufacturer”) means those manufacturers suppliers of Products with whom Sodexo or Entegra has entered into a Supply Agreement. The list of Manufacturers shall be provided to Client by Entegra and may be modified by Entegra from time to time.
  • “Prime Distributors” mean the broadline distributor(s) that approved by Entegra.
  • “Products” means Food Products and/or Facilities Products and Services.
  • “Purchases” (and each a “Purchase”) means the purchase(s) by Client or a Facility, as the case may be, of one or more Products and/or Services.
  • “Regional Distributors” means those distributors that have signed a written agreement with Entegra or Sodexo to supply specialized Products including, without limitation, fresh baked goods dairy, bottled and canned beverages, linen rentals, paper goods, smallwares, meats, seafood and produce.
  • “Reports” are reports from Distributors and/or Manufacturers that detail Purchases by Facility.
  • “Services” means those services that are covered by a Supply Agreement.
  • “Sodexo” means Sodexo Operations, LLC and Sodexo SoPro, LLC, both Affiliates of Entegra.
  • “Supply Agreements” and each a “Supply Agreement” means agreements into which Sodexo has entered with Manufacturers and Distributors of various Products and suppliers of Services for use in the provision of food services, facilities management services and certain other services in the United States.
  • “Total Purchases” means the total dollar amount of Purchases by Client and Facilities during a given time period.
• GENERAL TERMS AND CONDITIONS
  • Confidentiality.
    • The Parties acknowledge that the information provided pursuant in connection with Allowances and Incentives is highly sensitive, proprietary and confidential information of each respective Party and that all such information shall be considered Confidential Information (as defined below). In addition, with respect to information furnished by Sodexo, Entegra or a Distributor or Manufacturer to Client, such information shall only be available to Client’s executive management team responsible for this Agreement and the President, Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer.
    • Either Party that receives Confidential Information from the other Party hereto (such receiving party, as the case may be, the "Receiving Party", and such disclosing party, as the case may be, the "Disclosing Party") shall maintain such Confidential Information in confidence.
    • The Receiving Party further agrees not to use, disclose, reproduce or dispose of any Confidential Information in any manner except as expressly permitted by this Agreement.
    • The Receiving Party agrees to restrict disclosure of any Confidential Information solely to its employees, accountants, attorneys and other similar representatives who have a need to know and to advise such persons of their obligations of confidentiality and non-disclosure hereunder.
    • Further, the Receiving Party shall not disclose any Confidential Information to third parties, including independent contractors or consultants, without the prior express written consent of the Disclosing Party and shall advise such third parties, in the event of such consent, of their obligations of confidentiality and non-disclosure hereunder.
    • The Receiving Party agrees to use reasonable means, not less than those used to protect its own proprietary information, to safeguard such Confidential Information.
    • Notwithstanding the foregoing, it shall not be a breach of this Agreement for either Party to disclose Confidential Information of the other Party (x) to the extent compelled to do so under law, whether pursuant to a judicial or governmental investigation or proceeding or otherwise, provided that the Disclosing Party has been given reasonable prior notice and the opportunity, if reasonably practicable, to try to prevent or limit such disclosure through a court order or other appropriate legal means, (y) necessary in any legal proceedings based upon the provisions and terms of this Agreement, provided that the Disclosing Party uses its reasonable efforts to try to prevent or limit such disclosure, (z) to potential investors or financiers of either Party pursuant to a confidentiality agreement previously approved by the Disclosing Party, or (aa) where Entegra provides the identity and/or locations of Client and/or the Facilities to manufacturers and/or distributors in connection with Entegra’s business operations.
    • Each Receiving Party recognizes that its disclosure of information in violation of its confidentiality obligations herein will give rise to irreparable injury to the Disclosing Party, inadequately compensable in damages, and that, accordingly, agrees that the Disclosing Party may seek and obtain injunctive relief against the breach of the within undertakings, in addition to any other legal remedies which may be available.
• Relationship of Parties. Nothing in this Agreement shall be deemed or construed by the Parties or any third party as creating an employer employee, partnership or joint venture relationship between the Parties. Sodexo or Entegra shall have the right to enter into supply contracts, commitments or arrangements in the name of, or on behalf of, Client, as provided in this Agreement. Except to the extent that Sodexo or Entegra may enter into such contracts, commitments or arrangements on behalf of Client, neither Party will be deemed or construed to be an agent of the other Party for any purpose.
• Disclaimers; Warranty.
  • Entegra does not guarantee performance of any Manufacturer, Distributor, provider of Services or other third party.
  • With respect to any Manufacturer, Distributor, provider of Services or other third party, neither Entegra nor Sodexo nor their affiliates shall be liable to Client or the Facilities, or be deemed in default of any obligation arising from this Agreement, for any delay or failure to deliver Products or Services for any cause whatsoever or for any other cause whatever unrelated to Entegra’s performance obligations set forth herein, and Client's or Facility’s exclusive remedy in case of such a delay or failure of delivery shall be solely against the Manufacturer, Distributor, provider of Services or other third party and Entegra's only obligation shall be to assist Client (and/or its Facilities) in locating an alternative Sodexo- or Entegra-contracted source of supply.
  • ENTEGRA AND SODEXO DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO GOODS AND/OR SERVICES PURCHASED PURSUANT TO THE TERMS HEREOF.
  • Client, on behalf of itself and the Facilities, acknowledges that the exclusive remedy in case of any defective Product or Service delivered to Client or a Facility pursuant to this Agreement lies solely against the Manufacturer, Distributor, provider of Services or other third party, and not against Entegra nor Sodexo nor their affiliates.
  • Entegra assigns to the Client or Facilities, as applicable, all right, title, and interest of Sodexo in and to any express warranties or indemnifications covering Products and/or Services delivered to the Client or the Facilities and Entegra agrees to cooperate with the Client or the Facilities, but at no cost or expense to Entegra, in the enforcement of any such warranties or indemnifications against Manufacturers, Distributors, providers of Services or other third parties.
• Default.
  • If either Party materially defaults hereunder, the non defaulting Party may terminate this Agreement effective immediately upon written notice to the defaulting Party. The non defaulting Party shall be entitled to declare all amounts payable unpaid as of such date hereunder to be due and payable within ninety (90) days and shall be entitled to all remedies provided by law or equity (including reasonable attorneys' fees and costs of suit incurred whether or not a suit is commenced).
  • The following events shall be deemed to be material defaults hereunder:
    • Failure by either Party to make any payment required to be made hereunder, which failure is not remedied within five (5) days after receipt of written notice thereof; or
    • Failure by either Party to materially perform this Agreement, which failure is not remedied within thirty (30) days after receipt of written notice from the other Party specifying the nature of such default; or
    • Any of the following:
      • Filing of a voluntary bankruptcy petition by either Party;
      • filing of an involuntary bankruptcy petition against either Party which is not withdrawn within sixty (60) days after filing;
      • assignment for the benefit of creditors made by either Party; or
      • appointment of a receiver for either Party.
    • Failure by Client to fully perform its obligations under this Agreement during the Notice Period, or failure to provide timely notification of cancellation to Entegra pursuant to the Agreement. Should Client cancel the Agreement other than as permitted by the Agreement, Client shall forfeit of all earned but unpaid Incentives otherwise due to Client from Entegra.
• Indemnity.
  • Client hereby agrees to indemnify, defend and hold harmless Sodexo, Entegra and their affiliates, and their respective officers, directors, employees and representatives, from and against that portion of any and all claims, demands, actions, losses, expenses, damages, liabilities, penalties, cost (including, without limitation, reasonable attorneys’ fees) and judgments arising out of or related to:
    • Client’s acts or omissions or the acts or omissions of its employees or representatives,
    • Client’s failure to perform its obligations under this Agreement, particularly with respect to paying or allocating Incentives to Facilities as herein provided,
    • any goods and services delivered to Client or a Facility pursuant to a Continuing Agreement, and
    • any liability or assessment related to sales or other taxes.
  • In the event a Manufacturer, a Distributor or a provider of Services pays Allowances on Covered Purchases arising from a Continuing Agreement, the existence of which Client has not then disclosed in conformity with this Agreement, and Entegra distributes corresponding Incentives to Client as contemplated herein, Client shall be solely responsible for promptly returning such Incentives to the applicable Manufacturer, Distributor or provider of Services and shall indemnify Sodexo and Entegra from any and all claims related to, or resulting from, such Continuing Agreements.
• Limitation of Liability. Other than where arising from a breach of confidentiality obligations hereunder, gross negligence and/or willful misconduct, in no event shall either Party be liable to the other for any indirect, special, incidental, punitive or consequential damages, including, but, not limited to, loss of profits, loss of business or other loss arising out of or resulting from this Agreement, even if either Party has been advised of the possibility of such damages. The foregoing shall apply regardless of the negligence or other fault of Sodexo or Entegra and regardless of whether such liability sounds in contract, negligence, tort or any other theory of liability.
• Survival. The following subsections of this Section 2 shall survive the termination or expiration of the Agreement: a, b, c, e, f, g and i.
• Affirmative Action and Equal Opportunity Compliance. Neither Party shall discriminate because of race, color, religion, sex, age, national origin, disability, or status as a Vietnam veteran, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment-related activities concerning each Party’s own employees. In addition, each Party affirms that it is an equal opportunity and affirmative action employer and shall comply with all applicable federal, state and local laws and regulations including, but not limited to, Executive Order 11246, as amended; Executive Order 11141, the Uniform Guidelines on Employee Selection Procedures; the Rehabilitation Act of 1973, as amended; the Vietnam Era Veterans Readjustment Assistance Act of 1975; Civil Rights Act of 1964; Equal Pay Act of 1963; Age Discrimination in Employment Act of 1967; Immigration Reform and Control Act of 1986; Public Law 95-507; the Americans With Disabilities Act; and any additions or amendments thereto. The Parties shall abide 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 race, color, religion, sex, or national origin. Moreover, these regulations require the Parties to take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
• Governing Law; Venue; Jury Trial; No Contra Proferentum. All controversies and disputes arising out of or under this Agreement shall be determined pursuant to the laws of the State of Maryland, regardless of the laws that might be applied under applicable principles of conflicts of laws. The Parties irrevocably submit to the exclusive jurisdiction of (i) the Courts of the State of Maryland in Montgomery County, and (ii) if federal jurisdiction exists, to the Federal District Court, Maryland District for the purposes of any suit, action, or other proceeding arising out of this Agreement. The Parties acknowledge that substantial elements of performance of this Agreement will occur in such jurisdiction. To the extent permitted by law, the Parties mutually agree to waive any right either may have to a jury trial in any action, proceeding or counterclaim brought by either of the Parties hereto against the other on any matters whatsoever arising out of or related to this Agreement. The Parties to this Agreement and their counsel have reviewed this Agreement and any ambiguities in this Agreement shall not be resolved against the drafting party in the interpretation of this Agreement.
• Assignment; Change of Control.
  • Neither Party shall, without the prior written consent of the other, have the right to assign any rights or delegate any obligations under this Agreement, except that either Party, without the consent of the other, may assign this agreement to its parent, a wholly-owned subsidiary, or a wholly-owned subsidiary of the parent, or a business affiliate provided that any such assignment shall not release the assigning party from its obligations under this Agreement.
  • If a Party enters into a transaction that results in a Change of Control (except with an Affiliate for the purpose of corporate restructuring), the other Party may terminate the Agreement within ten (10) days of the consummation of such Change of Control.
• Notices. Any notice which either Party is required or permitted to give hereunder to the other Party shall be in writing, signed by the notifying Party and shall either be hand delivered with a receipt for delivery, or sent via an overnight delivery service which provides for a signature acknowledging receipt, United States Mail, certified or registered mail, return receipt requested, postage prepaid, or sent via electronic mail, with ‘confirm receipt’ requested, addressed as follows:

Entegra: Entegra Procurement Services, LLC
9801 Washingtonian Blvd.
Gaithersburg, MD 20878
ATTN: CEO, Entegra Procurement Services, LLC
Email: EntegraClient@EntegraPS.com

With a copy to: Sodexo, Inc.
9801 Washingtonian Boulevard
Gaithersburg, Maryland 20878
Facsimile No: (301) 987-4499
ATTN: Law Department

Client: At the address(es) provided in the main Agreement

or to such other address as the Parties may direct by written notice given as hereinabove provided. Notice shall be deemed to have been given when received as evidenced by the return receipt, or on the date such notice is first refused, if that be the case.

• Headings. The headings used in this Agreement are inserted only for convenience and reference and in no way define or limit the scope or intent of any provision or part hereof.
• Severability of Provisions. If any section, sentence, paragraph, clause or combination of provisions in this Agreement is in violation of any law or regulation, the same shall be inoperative and the remainder of this Agreement shall be binding upon the Parties.
• Parties Bound. This Agreement shall inure to the benefit of and be binding upon the Parties hereto and otherwise as explicitly contemplated herein and their respective successors and permitted assigns. Nothing herein, expressed or implied, shall be construed to give any other person any legal or equitable rights hereunder.
• Further Action. Each Party shall cooperate in good faith with the other and take such steps and execute such papers as may be reasonably requested by the other Party to implement the terms and provisions of this Agreement.
• Waiver. The waiver of any default under any term or condition of this Agreement by either Party shall not constitute any waiver of any subsequent default or nullify the effectiveness of that term or condition.
• Taxes. Client shall be responsible for any applicable sales taxes. Entegra shall be responsible for its city, state or federal income taxes, including any tax burdens or benefits arising from its activities hereunder. This provision shall survive termination of the Agreement.
• HHS Reporting. To the extent applicable, Entegra agrees to comply at all times with the regulations issued by the Department of Health and Human Services published at 42 CFR 1001, and which relate to a seller’s obligation to report and disclose discounts, rebates and other reductions to Client or purchasers of Products and/or Services. The Parties desire that their business relationship comply with the Medicare and Medicaid anti-kickback statute set forth at 42 U.S.C. section 1320a-7b(b). The Parties agree that, for purposes of this Agreement, Entegra is a group purchasing organization. The Parties intend to comply with the requirements of the “safe harbor” regulations regarding payments to group purchasing organizations set forth in 42 C.F.R. section 1001.952(j) and believe that the relationship contemplated by this Agreement is in compliance with those requirements.
• Entire Agreement. This Agreement constitutes the entire understanding between the Parties hereto, and supersedes all prior written or oral communications, relating to the subject matter hereof. This Agreement shall not be amended except by a writing executed by both of the Parties hereto.