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Bushel™ Customer Terms of Service Agreement

Bushel Customer Terms of Service Agreement

 

Last updated: June 29, 2017

 

This Service Agreement (“Agreement”) by and between you (“User” “you” “your”, “Customer”), the party clicking through to accept the terms of this Agreement, and Bushel by Welcome2, Inc. (“Bushel” or “we”) constitutes a legally binding agreement between you and Bushel, governing your use of Bushel’s website located at https://www.bushelapp.com or any related mobile applications (collectively, the “Bushel Platform”). Upon the date of your acceptance of the terms of this Agreement (“Effective Date”), you agree to be bound by the terms and conditions of this Agreement. In the Agreement, you and Bushel may each be referred to as a “Party” or collectively, the “Parties.”  

 

PLEASE NOTE THAT THIS AGREEMENT CONTAINS A BINDING AND FINAL ARBITRATION PROVISION AND A CLASS ACTION WAIVER. PLEASE READ IT CAREFULLY. BY ENTERING INTO THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU UNDERSTAND THIS AGREEMENT AND ACCEPT ALL OF ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE BUSHEL PLATFORM OR PROVIDE ANY SERVICES, AS DEFINED BELOW.

 

Your use of the Bushel Platform constitutes your acceptance of and agreement to all of the terms and conditions in these Terms of Service and the Privacy Policy (the “Privacy Policy”), and any future amendments and additions to this Agreement (as defined below) as we may publish from time to time. The Privacy Policy is incorporated by reference into the Terms of Service and together form and are hereinafter referred to as this “Agreement”.

 

1.Representations and Warrants 

a.You represent and warrant that you have full authority to enter into this Agreement, including that you are the legal age of majority in your state of residence. 

b.If you are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you represent and warrant to that you have the legal authority to do so. If this is the case, the term “you” as used in this Agreement will refer to any such Entity and its affiliates. 

c.Pursuant to Bushel’s Customer Terms of Service, Bushel’s customers (each a “Customer”) may request services through Bushel for the provision of gardening, landscaping, lawn and yard care, and related services (collectively, “Services”) by placing an order on the Bushel Platform (“Order”).  

d.You represent and warrant that you will respect the privacy (including without limitation private, family and home life), property and data protection rights of those providing Services (“Service Providers”), and that you will not record (whether video or audio or otherwise) and provision of Services or any interaction by or with any Service Provider and/or Bushel in connection with Bushel Platform without the prior written consent of any relevant Service Provider. 

e.You represent and warrant that you will fulfill the commitments you make to Bushel and Service Providers, including the payment of fees for agreed upon Services (“Service Fees”) through the Bushel Platform, utilizing Bushel’s specified third-party payment processing system, communicating clearly and promptly through development and delivery of the Order, and being present and/or available at the time you agree upon with the Service Provider.  

f.You represent and warrant that you have all authority, licenses, permits, and consents necessary to place an Order for Services under the terms of this Agreement, and that you will fully comply with all applicable laws and regulations in connection with your receipt of the Services. 

g.You represent and warrant that you are under no contractual or other restriction or obligation that would be inconsistent with your ability to comply with the terms of this Agreement. 

2.Contracts with Service Providers 

a.You acknowledge and agree that an agreement for the provision of Services (the “Service Agreement”) is formed when you and Bushel agree on the terms of your Order. The terms of the Service Agreement include the terms set forth in this Section, the engagement terms proposed and accepted on the Bushel Platform, and any other contractual terms accepted by both you and Bushel, to the extent such terms do not conflict with the terms in this Agreement.  

b.This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the Parties. At no time will you hold yourself out as an agent, subsidiary or affiliate of Bushel for any purpose, including your interactions with Customers or when reporting to any government authority. 

c.You acknowledge and agree that Bushel does not perform Services and does not employ individuals to perform Services. You further acknowledge that Bushel does not supervise, direct, control or monitor the provision of Services and is not responsible for the Services performed. 

3.Performance of Services 

a.Orders must include a general description of the Services required, associated Service Fees, and your contact information (name, physical address, and phone number). The Parties agree to cooperate in good faith to achieve satisfactory completion of the Services in a timely and professional manner. Once you agree to the terms of an Order, you may not modify the Order, including the requested Services or Service Fees, unless agreed to in writing by Bushel. 

b.After you submit an Order, you will be matched with a Service Provider based on several factors, including but not limited to, the nature of your requested Services, the availability of Service Providers near the location of where requested Services will be provided, Service Providers’ proficiencies to perform the requested Service, and any other information you provide in an Order. 

c.Once you submit an Order on the Bushel Platform for Services and correspond with Bushel to arrange for the provision of Services, you will be charged a thirty (30) dollar consultation fee (“Consultation Fee”) via your PSP information (defined below). 

d.Service Providers may delegate the Services. Before any Services are performed by any assistants, helpers, subcontractors or other personnel (collectively “Assistants”), Assistants must be registered on the Bushel Platform. Service Providers assume full and sole responsibility for the payment of all compensation, benefits and expenses of Assistants, and for ensuring Assistants have all authority, licenses, permits, and consents necessary to enter into and perform the Services under the terms of this Agreement, and that Assistants will fully comply with all applicable laws and regulations in connection with provision of Services.  

e.The Parties agree to work together in good faith if rescheduling of Services is necessary.  However, if you cancel an Order in less than 24 hours or fail to allow for the Services to be rendered (such as by not making your property available to a Services Provider), you may be required to pay 50% of any Service Fees in the Order.   

f.If you object, for whatever reason, to the Services rendered, the Parties will cooperate in good faith to remedy the situation, including the possible transfer of the Order to another service provider to perform the Services. If Bushel determines that a Customer may be better served by a different service provider, Bushel may transfer the Customer to a different service provider upon notice to you without liability. 

4.Billing and Payment 

a.If you submit an Order on the Bushel Platform, you will be required to provide your credit card and/or bank account details to Bushel and the Payment Service Provider retained by Bushel (the “PSP”). You will be responsible for paying the invoice for all associated fees (the “Invoice”), which will include the Service Fees agreed to by the Parties in the Order and Consultation Fee.  

b.You may be required to register with the PSP, agree to Terms of Service of the PSP and agree to go through a vetting process at the request of the PSP to set up an account with the PSP. The Terms of Service between you and the PSP retained by Bushel are available at https://www.braintreepayments.com/legal (the “PSP Agreement”). By accepting the terms of this Agreement, you agree that you have reviewed and agreed to the PSP Agreement. Please note, Bushel is not a party to the PSP Agreement and that you, the PSP or any other parties listed in the PSP Agreement are the parties to the PSP Agreement, and that Bushel has no obligations or liability to you under the PSP Agreement. 
c.Bushel reserves the right, in its sole discretion (but not the obligation), upon request from you or a Service Provider, or upon notice of any potential fraud, unauthorized charges or other misuse of the Bushel Platform, to (i) place on hold any Service Payment and out of pocket expenses, or (ii) refund, provide credits or arrange for the PSP to do so. 

d.Payment of Service Fees must be paid through the PSP as indicated on the Bushel Platform. Customers may pay using a Gift Card, which may contain additional terms and conditions.  

e.All Service Fees are due upon completion of the Services, or upon receipt of an Invoice. Should there be any questions or concerns regarding an Invoice, it is your responsibility to contact Bushel no later than seven (7) days after receipt of an Invoice. Bushel may cease its provision of Services if any Service Fees remain unpaid for a period of 30 days or more. Invoices that are past due for more than thirty (30) days or more shall incur a finance charge of 1.5% per month (18% per annum). 

5.Vetting of Service Provider and Assistants 

a.Service Providers and any Assistants may be subject to a vetting process before they are available to provide Services to you, including but not limited to a verification of identity and a criminal background check, at the Country, State and local levels, using third party services as appropriate.  

b.Although Bushel may perform background checks as outlined above, Bushel is not required to do so and cannot confirm that Service Providers and any Assistants are who they claim to be.  Therefore, Bushel cannot and does not assume any responsibility for the accuracy or reliability of identity or background check information. Service Providers are required to represent and warrant that they, as well as any Assistants, are legally permitted to perform the Services under applicable state and federal laws and regulations. 

6.Prohibited Uses of Bushel Platform; DMCA 

a.As a condition to your use of the Bushel Platform, you agree not to: 

i.Upload, post, email, transmit or otherwise make available any information, materials or other content that is illegal, harmful, threatening, abusive, harassing, defamatory, obscene, pornographic, offensive, invades another's privacy, or promotes bigotry, racism, hatred for harm against any individual or group; 

ii.Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity; 

iii.Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Bushel Platform; 

iv.Upload, post, email, transmit or otherwise make available any information, materials or other content that infringes upon another's rights, including any intellectual property rights (including but not limited to, copyrights, patents, trademarks, or trade secrets); 

v.Upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, "junk mail," "spam," "chain letters," "pyramid schemes," or any other form of solicitation; 

vi.Upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; 

vii.Reverse engineer, decompile or disassemble any of the software used to provide this Bushel Platform and/or resell or redistribute the Bushel Platform, or any part of the Bushel Platform or use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Bushel Platform, including, but not limited to, altering affiliate IDs including in the hyperlinks created by the storefront;   

viii.Interfere with or disrupt the Bushel Platform, or any servers or networks connected to the Site, or disobey any requirements, procedures, policies or regulations of networks connected to the Bushel Platform;  

ix.Obtain, collect, store or modify the personal information about other users, to harass or stalk any user or Customer of the Bushel Platform in any way;  

x.Use automated means, including spiders, robots, crawlers, data mining tools, or the like to 'meta-search' or download data from the Bushel Platform. Bushel reserves the right to block automated programs that do not comply with these restrictions; 

xi.Upload, email, transmit, or post any content encouraging illegal activity or racism, hate speech, incitement of hate;  

xii.Upload, email, transmit or post any other content that Bushel deems to be inappropriate. 

b.Bushel reserves the right to investigate and prosecute violations of any of the above to the fullest extent of the law. Bushel may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service. You acknowledge that Bushel has no obligation to pre-screen or monitor your access to or use of the Bushel Platform or any information, materials or other content provided or made available through the Bushel Platform, but has the right to do so for the purpose of operating the Bushel Platform, to ensure your compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. You hereby agree that Bushel may, in the exercise of Bushel's sole discretion, remove or delete any postings, information, materials or other content that violates these Terms of Service or that is otherwise objectionable; 

c.You are responsible for maintaining the confidentiality of your username and password, and all authorized and unauthorized use of your account.  You are fully responsible for all activities that occur under your password or account, including any financial liability, and any misuse of your account in violation of this Agreement or Privacy Policy may result in the termination of your account.  You agree to notify Bushel immediately of any unauthorized use of your account by email to admin@bushelapp.com. 

d.As Bushel asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by Bushelapp.com violates your copyright, you are encouraged to notify Bushel in accordance with Bushel’s Digital Millennium Copyright Act (“DMCA”) Policy (see below). Bushel will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material that are contained on the Website. Bushel may terminate a visitor’s access to and use of the Website at Bushel’s sole discretion if Bushel determines that the visitor or user is or may be infringing on the copyrights or other intellectual property rights of Bushel or others. In the case of such termination, Bushel will have no obligation to provide a refund of any amounts previously paid to Bushel. 

DMCA/IP Notification Policy.  To notify Bushel of infringing or unlawful content, please provide Bushel with the following information:

Bushel takes such notices very seriously.  We will evaluate the provided notice and if appropriate, based on our sole discretion, remove the content or disable access to the content.   Based on our judgment, we may notify the source of the content of your complaint and our actions in response to your complaint.  We reserve the right in our sole discretion to restore such content if the source of such content provides evidence that the content should not have been removed.  We encourage you to see the advice of an independent attorney before filing an intellectual property notice or responding to a notice filed by another user.

Bushel may be notified of claims of intellectual property infringement by emailing the above requested information to admin@bushelapp.com.

7.Term and Termination 

a.This Agreement will commence on the Effective Date and will remain effective until terminated in accordance with the terms of this Section (the “Term”). Either Party may terminate this Agreement upon written notice to the other Party. Upon termination of this Agreement, Service Providers will immediately cease performing any Services. 

b.Termination of this Agreement will be without prejudice to other rights or remedies of any Party under this Agreement or applicable law or regulation, including without limitation, any remedies for a breach of this Agreement prior to such termination. 

c.Bushel may terminate, limit or suspend your right to use the Bushel Platform in the event that Bushel believes you have breached this Agreement by providing you with written or email notice of such breach and termination or suspension, which will be effective immediately upon delivery of such notice. 

d.If Bushel terminates, limits, or suspends your right to use the Bushel Platform, you will not be entitled to any refund, and you are prohibited from registering and creating a new account on the Bushel Platform under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating, limiting, or suspending your account, Bushel reserves the right to take appropriate legal action, including without limitation, pursuing arbitration, criminal, and injunctive redress. 

e.Even after your right to use the Bushel Platform is terminated, limited, or suspended, this Agreement will remain enforceable against you. 

f.Bushel reserves the right to modify or discontinue, temporarily or permanently, all or any portion of the Bushel Platform in its sole discretion. Bushel is not liable to you for any modification or discontinuance of all or any portion of the Bushel Platform. Bushel has the right to restrict anyone from completing registration on the Bushel Platform that Bushel believes may threaten the safety and integrity of Bushel or the Bushel Platform. 

g.All sections of this Agreement, which by their nature should survive the expiration or termination of this Agreement, shall continue in full force and effect subsequent to and notwithstanding the expiration or termination of this Agreement. 

8.Limitation of Liability; Release 

a.Except as expressly set forth in this section, Bushel expressly disclaims to the fullest extent allowed by law all representations and warranties, express or implied, including without limitation, any implied warranties or conditions of merchantability, fitness for a particular purpose, or the infringement of third party rights. Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will Bushel, or its affiliates, officers, directors, employees, agents, suppliers or licensors (collectively, “Disclaimed Parties”) be liable to you or any third party for any indirect, incidental, special, exemplary, consequential, punitive or other similar damages, including lost profits, lost sales, property damage, business interruption, or any other loss incurred by you or a third party in connection with this Agreement or the Services, regardless of whether that party has been advised of the possibility of, or could have foreseen, such damages. 

b.TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.” 

9.Indemnification 

a.You agree to indemnify and hold the Disclaimed Parties harmless from and against any claim against Bushel by a third party, including a Service Provider, relating to this Agreement and your provision of Services (each a “Claim”).  

b.You will, at your expense, defend any related Claim and pay any damages that may be awarded against the Disclaimed Parties in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Bushel for the defense, provided that: (i) Bushel promptly notifies you of the threat or notice of a Claim; and (ii) Bushel will have the sole and exclusive control and authority to select defense attorneys, defend or settle any Claim. You further agree to cooperate fully with Bushel in connection with any Claim. 

10.Confidentiality 

a.A Party’s Confidential Information will not include information that: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on the disclosure; or (iv) is independently developed by the other Party without use of or reference to the other Party’s Confidential Information. 

b.The Parties agree to disclose Confidential Information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the terms of this Agreement. Bushel will protect the confidentiality of your data in accordance with the Bushel security practices specified in the Bushel Privacy Policy.  

c.Nothing will prevent either Party from disclosing the other Party’s Confidential Information in connection with any legal proceeding arising from, or in connection with, this Agreement or from disclosing Confidential Information to a governmental entity as required by law. 

11.Your Information 

a.“Your Information” is defined as any information and materials you provide to Bushel or other individuals using the Bushel Platform (collectively, “Users”) in connection with your registration for and use of the Bushel Platform, including without limitation that posted or transmitted for use in Public Areas. You are solely responsible for Your Information, and we act merely as a passive conduit for your online distribution and publication of Your Information. The information and materials described in this Section, as provided by each User of the Bushel Platform, is collectively referred to herein as “User Generated Content.” 

b.The Bushel Platform hosts User Generated Content relating to reviews and ratings of specific Service Providers (“Feedback”). Such Feedback is such User’s opinion and not the opinion of Bushel, has not been verified or approved by Bushel. You agree that Bushel is not liable for any Feedback or other User Generated Content. Bushel encourages each User to give objective, constructive and honest Feedback about the Service Providers with whom they have transacted. Bushel does not investigate any remarks posted by Users for accuracy or reliability but may do so if a User requests that Bushel do so. 

c.Your use of the Bushel Platform and/or Your provision of Services grants Bushel the absolute, irrevocable, worldwide, perpetual right and permission to use, reproduce, publish, broadcast in any media, publicly display, or distribute, in any media now known or hereinafter known, your personal and/or business name and information you provide on the Bushel Platform for any purpose, including but not limited to, advertising of Bushel, all without further notice, consent or payment.  

12.Intellectual Property 

a.All text, graphics, editorial content, data, formatting, graphs, designs, HTML, look and feel, photographs, music, sounds, images, software, videos, designs, typefaces and other content (collectively “Proprietary Material”) that you see or read through the Bushel Platform is owned by Bushel, excluding User Generated Content that Bushel has the right to use.  

b.Proprietary Material is protected in all forms, media and technologies now known or hereinafter developed. Bushel owns all Proprietary Material, as well as the coordination, selection, arrangement and enhancement of such Proprietary Materials as a Collective Work under the United States Copyright Act, as amended.  

c.The Proprietary Material is protected by the domestic and international laws of copyright, patents, and other proprietary rights and laws. You may not copy, download, use, redesign, reconfigure, or retransmit anything from the Bushel Platform without Bushel's express prior written consent and, if applicable, the holder of the rights to the user generated content. Any use of such Proprietary Material, other than as permitted therein, is expressly prohibited without the prior permission of Bushel and, if applicable, the holder of the rights to the User Generated Content. 

d.By submitting User Generated Content to Bushel, you grant Bushel a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the User Generated Content solely for the purpose of displaying, distributing, marketing, promoting, or otherwise involving Bushel and the Services. If you delete User Generated Content, Bushel will use reasonable efforts to remove it from bushelapp.com, but you acknowledge that caching or references to the Content may not be made immediately unavailable. You also acknowledge that Bushel is not responsible for and cannot retract any messages that have been accessed or used by other Customers or third parties o bushelapp.com. Without limiting any of those representations or warranties, Bushel has the right (though not the obligation) to, in Bushel’s sole discretion (i) refuse or remove any content that, in Bushel’s reasonable opinion, violates any Bushel policy or is in any way harmful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in Bushel’s sole discretion. Bushel will have no obligation to provide a refund of any amounts previously paid.  

13.Miscellaneous 

a.No Waiver. Neither Party waives any right under this Agreement by failing to insist on compliance with any of the terms of this Agreement or by failing to exercise any right hereunder. Any waivers granted hereunder are effective only if recorded in a writing signed by the Party granting such waiver. 

b.Correspondence. You authorize Bushel or any of its agents to send emails and texts, including through the use of an automatic telephone dialing service, to any email address or mobile phone number You provided when registering to use the Bushel Platform. You understand that Your mobile phone service provider may charge You fees for text messages that Bushel sends You, and You agree that Bushel shall have no liability for any cost relating to Your receipt of such text messages. At any time, you may withdraw Your consent to receive marketing emails or text messages from Bushel or its affiliates by calling Bushel at 207-232-9006.  Alternatively, you may simply reply “Unsubscribe” to any non-transactional email Bushel sends you, or “STOP” to any non-transactional text message Bushel sends you. 

c.Assignment and Change of Control. You may not assign any part or all of this Agreement without Bushel’s prior written consent. Bushel may assign this Agreement at any time without notice or consent.  

d.Governing Law, Venue, and Jurisdiction. This Agreement is governed by Massachusetts law, excluding its conflicts of law rules. You agree to submit to venue and exclusive personal jurisdiction in the courts in Massachusetts for any dispute arising out of this Agreement, and You agree to waive all objections to jurisdiction and venue of such courts. 

e.Dispute Resolution. Any controversy or claim arising out of this Agreement, including any controversy or claim as to requirement of arbitration, shall be settled by binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”).  The arbitration shall be conducted in Salem, Massachusetts. There shall be one arbitrator to be mutually selected by the Parties. If the Parties are unable to agree upon an arbitrator within 30 days of the demand for arbitration having been filed, an arbitrator shall be appointed by the AAA. Judgment on the arbitration award may be entered in any court having jurisdiction. The arbitrator in any such arbitration proceeding shall make a determination as to the prevailing party and award such prevailing party its reasonable attorneys’ fees, expenses, and other litigation costs incurred in bringing or defending such arbitration.  

Class Action Waiver. ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A NAMED OR UNNAMED MEMBER IN A CLASS, CONSOLIDATED, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION, UNLESS BOTH PARTIES SPECIFICALLY AGREE TO DO SO IN WRITING FOLLOWING INITIATION OF THE ARBITRATION.

f.Severability. If any court or governmental authority determines that any provision of this Agreement is unenforceable, the Parties agree that this Agreement will be enforced as if the unenforceable provisions were not present and that any partially valid and enforceable provisions will be enforced to the extent that they are enforceable. 

g.Notice. Except as expressly provided herein, all notices, requests, demands, and other communications under this Agreement will be delivered in writing and will be deemed to have been duly given: (i) on the next day if delivered personally to the Party, (ii) on the date three days after mailing if mailed by registered or certified mail, or (iii) on the next day if delivered by courier. The Parties will send all notices to the addresses as may be provided by a Party from time to time. 

h.Entire Agreement. This Agreement constitutes the Parties’ complete and final agreement pertaining to the provision of Services. No modification of this Agreement is binding unless it is in writing and signed by both Parties. 

i.Force majeure. Neither Party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed or other occurrences which are beyond either Party’s reasonable control.