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.
  • “Agreement” means the procurement services agreement by and between Client and Entegra into which these terms and conditions are incorporated.
  • “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, (iv) monies paid to or received by Affiliates of Sodexo outside of the United States; and (v) Affiliates of Sodexo that are not wholly-owned by Sodexo.
  • “Change of Control” means one or more transactions that, in the aggregate, result in a change of Control.
  • “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 the 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.
  • “Contract Year” means the year commencing on the Effective Date and ending Three Hundred Sixty-five (365) days thereafter. Each successive Contract Year shall begin on the anniversary of the Effective Date.
  • “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 an entity other than a corporation.
  • “Covered Purchases” means Purchases for which Entegra receives Allowances from Manufacturers through Prime Distributors, from Regional Distributors, from Direct Store Delivery and from providers of Services (but not including or services from Prime Distributors).
  • “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.
  • “Entegra” means Entegra Procurement Services, LLC, a Delaware limited liability company.
  • “Execution Date” means the date on which the Agreement is duly executed by both parties.
  • "Facilities" means facilities, in each case as enumerated by a Member or Client, as applicable, that are:
    • owned by, managed by, or affiliated with Member or Client, as applicable, as of the Effective Date that are participating in the Program;
    • that are not under contract with Sodexo or a Competitor for food services or facilities management services;
    • that are not currently under contract with Entegra for services substantially similar to the services covered under the Agreement; and
    • that are located in the United States of America.
  • “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.
  • “Incentives” are portions of Allowances and/or other monies as contemplated in the Agreement that are shared with Client, Members or Facilities, as applicable.
  • "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 are approved by Entegra.
  • “Products” means Food Products and/or Facilities Products and Services.
  • “Program” means the procurement services that Entegra provides to the Client, Members and/or Facilities as contemplated herein and in the Agreement.
  • “Purchases” (and each a “Purchase”) means the purchase(s) by Client, Member and/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 Member and/or Facility, as applicable.
  • “Services” means those services that are covered by a Supply Agreement.
  • “Sodexo” means Sodexo Operations, LLC and/or Sodexo SoPro, LLC, as applicable, 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/or providers 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, Members and Facilities during a given time period.
• GENERAL TERMS AND CONDITIONS
  • Rights and Benefits
    • Client, Members and Facilities, as applicable, may purchase Products and Services under the Supply Agreements to the extent permitted under such Supply Agreements. i
    • To the extent that Entegra assigns a national account executive (a “National Account Executive”) to Client, such National Client Executive may:
      • provide recommendations for increased Client participation in the Program;
      • coordinate marketing-related activities involving Client and Manufacturers;
      • conduct periodic business reviews with Client;
      • work with Client in resolving issues between Manufacturers, Distributors, & Facilities; and
      • in general, perform the Agreement on behalf of Entegra.
    • Entegra may terminate the ability of a Member and/or a Facility to participate in the Program with ten (10) days’ prior written notice to Client.
  • Obligations.
    • Entegra
      • will not request donations or sponsorships from Manufacturers or Distributors or providers of Services on behalf of Client, Members or Facilities.
      • shall provide Client a report detailing, by Facility, the Total Purchases from Distributors (other than Client Distributors).
      •  as applicable, shall be responsible for direct meeting costs associated with the Transition Meeting, to the extent Entegra offers Client a Transition Meeting, to include meeting space, meals, facilitation costs, and Entegra employees’ travel and lodging.
    • Client
      • shall comply with all applicable laws in connection with the performance of the Agreement including, without limitation with respect to sharing of Allowances with Members and Facilities, as applicable, and confirms that Entegra’s performance hereof does not violate any laws, rules or regulations by which Client and/or its Members and/or Facilities, as applicable, are bound.
      • hereby authorizes Entegra and/or Sodexo, on its behalf, to pursue, including, without limitation, through legal means and settlement, and collect unpaid Allowances and/or overcharged amounts from Manufacturers, Distributors and providers of Services that, but for such action(s) by Entegra and/or Sodexo, would not be paid or recouped for the benefit of Client, the Members and/or the Facilities, as applicable, in exchange for a reasonable fee, set at Entegra’s reasonable discretion, which may retained from any resulting recovery(ies).
      • , promptly after the Execution Date, shall notify its Members and Facilities, as applicable, that Entegra is the sole approved supplier of procurement services of food and related supplies and services and equipment, and that each Member and/or Facility, as applicable, shall have the sole responsibility for ordering Products and/or Services that it/they require.
      • if invited by Entegra, shall participate in a meeting that will form the basis for Entegra’s management of the Program and is designed to clarify expectations of the Parties with regard to Program implementation and ongoing management (the “Transition Meeting”) within thirty (30) days of the Execution Date.
      • as applicable, shall be responsible for its travel and lodging costs incurred in connection with the Transition Meeting; provided, however, that upon mutual agreement of the Parties, the Transition Meeting may be virtual.
      • shall provide Entegra with an updated written list of Members and Facilities, as applicable, no less frequently than once per Calendar Quarter, which list shall include primary contact information for each (name of contact, phone number, email address).
      • shall notify Entegra in good faith if it enters or plans to enter into a direct deal with a Manufacturer or a provider of Services.
      • agrees to promptly notify Entegra if it or any Member or Facility contracts with a Competitor for the same type(s) of services as provided to it in the Program.
      • , with respect to Manufacturers and Distributors, Client shall obligate and cause Members and Facilities to:
        • comply with the terms of Supply Agreements to the degree these terms are communicated to the Member and/or Facility;
        • make arrangements with Distributors for the delivery of Products to the respective Members and/or Facilities;
        • make arrangements with providers of Services for the delivery of Services to the respective Members and/or Facilities;
        • make all Purchases directly from the Manufacturers, Distributors or providers of Services, as applicable; and
        • establish their own creditworthiness with each Manufacturer, Distributor and provider of Services from which they Purchase.
      • shall require the Client Distributors to provide Entegra, on at least a monthly basis, a report detailing the Purchases made from Client Distributors by Member and/or Facility, as applicable.
      • , during the Notice Period, must continue to use, on an exclusive basis, the Program for all of its Purchases and those of its Members and/or Facilities, and Entegra must continue to offer the Program to Client, Members and/or all its Facilities.
  • Allowances; Payments.
    • Allowances Earned By Sodexo and Entegra. Except as set forth in the Agreement, all Allowances and other payments obtained from Manufacturers, Distributors, or other third parties shall be retained by Entegra.
    • ACH Payments. Entegra shall make payments using Automated Clearing House (“ACH”) electronic payment.
    • Reconciliation; Setoff. Entegra may request return of Incentives already paid to Client to the extent that:
      • Entegra has repaid Allowances back to Distributors, Manufacturers or providers of Services on which corresponding Incentives were paid to Client or
      • Manufacturers, Distributors and/or providers of Services short pay future Allowances on which Entegra has already paid corresponding Incentives to Client. Entegra may, instead of requesting return of such Incentives from Client as contemplated herein, setoff such amounts against future Incentive payments to Client.
    • Entegra shall not invoice for Allowances from Purchases by Members and/or Facilities from any Manufacturer, Distributor or provider of Services that is a party to a Continuing Agreement.
    • In the event a Manufacturer or Distributor pays Allowances on Covered Purchases under from a Continuing Agreement, the existence of which Client, Member or Facility has not then disclosed in conformity with this Agreement, and Entegra distributes corresponding Incentives to Client, Member or Facility as contemplated herein, as applicable, Client shall be 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.
  • 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 above). 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 the Agreement and the President, Chief Executive Officer, Chief Financial Officer, and Chief Operating Officer. i
    • 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 the 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 the 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 the Agreement, provided that the Disclosing Party uses its reasonable efforts to try to prevent or limit such disclosure, (z) to potential investors, purchasers 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 Members 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 the 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 the 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, Members or the Facilities, or be deemed in default of any obligation arising from the 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, Member’s and/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 Member and/or its Facilities) in locating an alternative Sodexo- or Entegra-contracted source of supply.
    • ENTEGRA, FOR ITSELF AND ITS SUBSIDIARIES AND AFFILIATES, DISCLAIMS 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, the Members and the Facilities, acknowledges that the exclusive remedy in case of any defective Product or Service delivered to Client, Member, or a Facility pursuant to the Agreement lies solely against the Manufacturer, Distributor, provider of Services or other third party, and not against Entegra nor its affiliates nor subsidiaries.
    • Entegra assigns to the Client, Members and/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, Members and/or the Facilities and Entegra agrees to cooperate with the Client, Member and/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 the 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 the 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, the Members and/or the Facilities to fully perform its/their obligations under the 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 the Agreement, particularly with respect to paying or allocating Incentives to Members and/or Facilities as herein provided,
      • any goods and services delivered to Client and/or a Member and/or Facility pursuant to a Continuing Agreement, and
      • any liability or assessment related to sales or other taxes.
  • 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 the 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. All sections of these terms and conditions shall survive the termination or expiration of the Agreement except for Section 2.a and Section 2.b.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 the 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 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 herein 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.