These Terms and Conditions (this “Agreement”) by and between Seller (as defined on the Order Page) for and on behalf of itself, and its present and future parent, affiliates and subsidiaries, and Buyer (as defined on the Order Page above), to be effective as of the Effective Date set forth on the Order Page (the “Effective Date”). Seller and Buyer may be referred to individually as a “Party” or collectively the “Parties” throughout this Agreement.
BY CLICKING ACCEPT, THE BUYER IS AGREEING TO THIS AGREEMENT. This Agreement, along with Buyer’s order for the Goods (“Order”) take effect when the Buyer clicks the “Accept” button or similar check box presented to the Buyer as part of the sign-up process, and will remain in effect until terminated as specified in the Agreement. If the Buyer is entering into this Agreement on behalf of a company or other legal entity, the Buyer represents that they have the authority to commit the entity to the Agreement and the term “Buyer” will refer to that entity. If the Buyer do not have this authority, or is under the age of eighteen (18) and has not obtained parental or guardian consent to enter into this Agreement or if the Buyer does not agree with the Agreement, the Buyer must not select the “Accept” button or accept this Agreement.
IF THE BUYER IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER LEGAL ENTITY (A “LEGAL ENTITY”) THAT IS NOT A NATURAL PERSON, THE BUYER ACKNOWLEDGES, REPRESENTS, AND WARRANTS THAT THE BUYER HAS THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT, AND REFERENCES TO “BUYER” IN THIS AGREEMENT WILL ALSO BE READ TO REFER TO THAT LEGAL ENTITY.
MAKE SURE THE BUYER HAS READ THIS AGREEMENT, THE ORDER AND THE MINIMUM ADVERTISED PRICING POLICY. IT CONTAINS IMPORTANT INFORMATION ABOUT THE BUYER’S RIGHTS TO DISTRIBUTE OR RESALE THE GOODS. This Agreement, including the Order and our Minimum Advertised Pricing Policy (collectively, the “Agreement”) define the terms and conditions under which the Buyer is allowed to distribute or resale the Goods in accordance with the Agreement. If the Buyer does not agree to this Agreement, then the Buyer must not select the “Accept” button.
1. Definitions. Capitalized terms have the meanings set forth herein, or referred to in this Section 1.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Atlanta, Georgia are authorized or required by Law to be closed for business.
“Buyer Contracts” means all contracts or agreements to which the Buyer is a party or to which any of its material assets are bound.
“Buyer’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to the Buyer.
“Buyer Parties” means Buyer, its Affiliates, customers, subcontractors and successors and assigns, and each of their respective Representatives.
“Carrier” means Buyer’s designated shipping agent for the delivery of Goods, as designated in any Purchase Order or subsequent Release.
“Claim” means any Action brought against a Person entitled to indemnification under Section 7.
“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.
“Defective Goods” means goods shipped by Seller to Buyer pursuant to this Agreement that are Defective.
“Delivery Date” means the delivery date for Goods ordered hereunder that is set forth in any applicable Purchase Order, which must be a Business Day no less than seven (7) days following delivery of the applicable Purchase Order to Seller.
“Delivery Location” means the street address within the Territory for delivery of the Goods specified in the applicable Purchase Order.
“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“GAAP” means US generally accepted accounting principles in effect, from time to time; provided, however, that, in context, it shall also refer to any generally accepted set of accounting principals that prevail in the country in which the subject Party is located, if other than GAAP.
“Goods” means the goods identified on the Order Form and described in the Specifications, as the same may be updated by agreement of the Parties, from time to time.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
“Nonconforming Goods” means any goods received by Buyer from Seller that: (a) do not conform to the production identifications listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; (c) on visual inspection, Buyer reasonably determines are otherwise Defective; or (d) exceed the quantity of Goods ordered by Buyer pursuant to this Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.
“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).
“Permits” means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained or required to be obtained, from any Governmental Authority.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
“Personnel” of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.
“Purchase Order” means the Buyer’s purchase order issued to the Seller hereunder, which may, among other things, specify items such as: (a) the Goods to be purchased, including make/model number, or other identifiers; (b) the quantity of each of the Goods ordered; (c) the Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location; in each case, including all terms and conditions attached to, or incorporated into, such purchase order, and any Release issued by Buyer to Seller under the Purchase Order. For the avoidance of doubt, any references to Purchase Orders hereunder also include any applicable Releases.
“Release” means a document issued by the Buyer to the Seller pursuant to a Purchase Order that identifies (to the extent not specified in the original Purchase Order) the quantities of Goods constituting the Buyer’s requirements or otherwise to be included in a particular order, the Delivery Locations and Requested Delivery Dates for such Goods.
“Representatives” means a Party’s Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
“Seller Contracts” means all contracts or agreements to which Seller is a party or to which any of its material assets are bound.
“Seller Parties” means the Seller, its Affiliates, customers (other than the Buyer), subcontractors and successors and assigns, and each of their respective Representatives.
“Seller’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to the Seller.
“Specifications” means the specifications for the Goods attached hereto in the Order Form.
“Taxes” means any and all present and future sales, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.
“Territory” means the US, and its territories and possessions.
“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, symbols, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.
“UCC” means the Uniform Commercial Code, as adopted in the State of Georgia.
“US” means the United States of America.
2. Purchase and Sale of Goods.
2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, during the Term, the Buyer shall purchase Goods from the Seller, and the Seller shall manufacture and sell Goods to the Buyer, as more particularly described and specified on the Order Form attached hereto. The Parties shall, from time to time, amend the Order Form to reflect any agreed revisions to any of the terms described therein; provided, however, that no such revisions will modify this Agreement or be binding on the Parties unless such revisions have been fully approved in a signed writing by authorized Representatives of both Parties.
2.2 Terms of Agreement and Buyer’s Purchase Order Prevail; Order of Precedence. The Parties intend for the express terms and conditions contained in this Agreement (including any Schedules and Exhibits hereto) and in any Purchase Order that are consistent with the terms and conditions of this Agreement to exclusively govern and control each of the Parties’ respective rights and obligations regarding the manufacture, purchase and sale of the Goods, and the Parties’ agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order supplement or conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will prevail and such additional, contrary or different terms will have no force or effect. Except for such additional and contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this Section 2.2, any additional, contrary or different terms contained in any Confirmation or any of the Seller’s invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by the Buyer and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized Representatives of both Parties.
2.3 Non-Exclusive Right to Manufacture and Sell Goods or Similar Products to Other Parties. During the Term, the Seller reserves the right to enter any other agreements to manufacture or sell to any Person other than Buyer, or enter into any agreement with any Person other than the Buyer related to the manufacture or sale of, the Goods or other goods or products that are similar to or competitive with the Goods.
2.4 Ordering Procedure.
2.4.1 Purchase Orders. The Buyer shall issue Purchase Orders to Seller in written or electronic form via e-mail or recognized international mail carrier. From time-to-time, the Buyer may also issue Releases to the Seller. For the avoidance of doubt, the Buyer shall only be obligated to purchase from the Seller, and the Seller shall be obligated to sell to the Buyer, the quantities of Goods specified in a Purchase Order (including any related Release).
2.4.2 Acceptance, Rejection, and Cancellation of Purchase Orders. The Seller shall confirm to the Buyer the receipt of each Purchase Order issued hereunder (each, a “Confirmation”) within seven (7) Business Days following the Seller’s receipt thereof in written form via e-mail or internationally recognized mail carrier. Each Confirmation must reference the Buyer’s Purchase Order number, confirm acceptance of the Purchase Order or, solely if permitted under this Section 2.4, advise the Buyer of the Seller’s rejection of such Purchase Order, the date of acceptance or rejection and the basis for rejection, if applicable. If the Seller fails to issue a Confirmation within the time set forth in the first sentence of this Section 2.4.2, or otherwise commences performance under such Purchase Order, the Seller will be deemed to have accepted the Purchase Order. The Buyer may withdraw any Purchase Order prior to the Seller’s acceptance thereof. The Seller may reject a Purchase Order in its sole discretion, including where the applicable Purchase Order includes terms and conditions that supplement those contained in this Agreement, which the Seller is unwilling to accept. The Seller may not cancel any previously accepted Purchase Order hereunder. The Buyer may only cancel a previously accepted Purchase Order pursuant to the exercise of the Buyer’s rights under Section 4.4.
2.5 Shipment, Delivery, Acceptance, and Inspection.
2.5.1 Shipment and Delivery Requirements. The Seller shall procure materials for, fabricate, assemble, pack, mark and ship Goods strictly in the quantities, by the methods, to the Delivery Locations and by the Delivery Dates, specified in this Agreement or in an applicable Purchase Order or Release. Delivery times will be measured to the time that Goods are actually received by the Carrier. If the Seller does not comply with any of its delivery obligations under this Section 2, the Buyer may, in the Buyer’s sole discretion and at the Seller’s sole cost and expense, (a) approve a revised Delivery Date, (b) require expedited or premium shipment, or (c) cancel the applicable Purchase Order and obtain similar goods from other sources (and all such Goods will be deemed to have been purchased under this Agreement for purposes of satisfying the Buyer’s quantity requirements hereunder). Unless otherwise expressly agreed to by the Parties in writing, the Seller may not make partial shipments of Goods to the Buyer.
2.5.2 Transfer of Title and Risk of Loss.
(a) Title to Goods shipped under any Purchase Order passes to the Buyer upon the Seller’s tender of the Goods to the Carrier (FOB Carrier). Title will transfer to the Buyer even if the Seller has not been paid for such Goods, provided that the Buyer will not be relieved of its obligation to pay for Goods in accordance with the terms hereof.
(b) Notwithstanding any agreement between the Buyer and the Seller concerning transfer of title or responsibility for shipping costs, risk of loss to Goods shipped under any Purchase Order passes to the Buyer upon receipt and acceptance by the Buyer at the Carrier, and the Seller will bear all risk of loss or damage with respect to Goods until the Carrier’s receipt and acceptance of such Goods in accordance with the terms hereof.
2.5.3 Packaging and Labeling. The Seller shall properly pack, mark and ship Goods as in accordance with applicable Law, and shall provide the Buyer with shipment documentation showing the Purchase Order number, the Seller’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, the Seller’s name, the bill of lading number, and the country of origin.
(a) Goods are subject to the Buyer’s inspection and approval or rejection notwithstanding the Buyer’s prior receipt of or payment for the Goods. The Buyer shall have a reasonable period of time, not to be less than seven (7) days following delivery of the Goods to the Delivery Location (“Inspection Period”), to inspect all Goods received under this Agreement and to inform the Seller, in writing, of the Buyer’s rejection of any Nonconforming Goods. The Buyer may return to the Seller any or all units of rejected Goods that constitute Nonconforming Goods because they exceed the quantity stated in this Agreement or any Purchase Order. If the Buyer rejects any other Nonconforming Goods, the Buyer may elect to (a) require the Seller, at the Seller’s sole cost, to replace the rejected Goods at the location specified by the Buyer (which may include the Seller’s location, the Buyer’s location or the location of a third party), (b) produce similar goods itself (and apply such production quantities against the Buyer’s quantity requirements hereunder), or (c) retain the rejected Goods; in each case without limiting the exercise by the Buyer of any other rights available to the Buyer under this Agreement or pursuant to applicable Law. All returns of Nonconforming Goods to the Seller are at the Buyer’s sole risk and expense. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by the Buyer; provided, however, that the Buyer’s acceptance of any Goods will not be deemed to be a waiver or limitation of the Seller’s obligations pursuant to this Agreement (or any breach thereof), including those obligations with respect to the Seller’s Product Warranty and the Seller’s duty to indemnify the Buyer.
(b) For Goods that are discovered to be Non-Conforming Goods beyond the Inspection Period, the Buyer will send to the Seller, on a quarterly basis, a list of the Non-Confirming Goods SKUs, along with reasonable supporting documentation and photographs (with examples also to be made available to the Seller on request). For all such Non-Conforming Goods, the Seller shall credit the Buyer in the amount of the Price paid for such Non-Conforming Goods within thirty (30) days of the receipt of such list, or provide credit against the next Purchase Order, if applicable.
3. Price and Payment.
3.1 Price. The Buyer shall purchase the Goods from the Seller at the prices set forth on the Order Form attached hereto, or as otherwise stated in an applicable Purchase Order (“Prices”). All Prices include, and the Seller is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, Taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Goods. All Prices are subject to increase for any reason, including changes in market conditions, increases in raw material, component, labor or overhead costs or because of labor disruptions, or fluctuations in production volumes.
3.2 Brand Standards; Minimum Advertised Price. The Buyer agrees to comply with any reasonable marketing, online advertisement, and Trademark requirements established by the Seller as well as any brand standards or other requirements or criteria relating to the display, marketing or sale techniques regarding the Goods, attached hereto on the Order Form as may be updated from time to time in the Seller’s sole discretion (the “Brand Standards Policy”). The Seller has unilaterally adopted the Brand Standards Policy which shall be applicable to all authorized Buyers of the Goods worldwide. Each Buyer is free to establish its own resale Prices and advertised Prices for the Goods. However, the Seller may, without assuming any liability, refuse to accept new orders for the Goods from a Buyer following verification by the Seller to its satisfaction that the Buyer has advertised the Goods to end-user customers at a net Price less than the list Price of the Goods as set forth on the Seller’s published Price list as incorporated in the Brand Standards Policy. The Brand Standards Policy and the suggested minimum advertised Prices are subject to change at any time by the Seller. The Buyer will receive at least thirty (30) days’ notice of any changes to this Brand Standards Policy, any changes to the suggested advertised Price for any affected Goods, or any additions or deletions to the Goods covered by the Brand Standards Policy. The Seller does not ask for, require, nor will the Seller accept, any agreement from any Buyer regarding the Seller’s establishment of resale, wholesale or advertised Prices. Furthermore, the Seller will not discuss with any Buyer the Seller’s establishment of resale, wholesale or advertised Prices. In no event shall any provision in any agreement between the Seller and the Buyer be interpreted as constituting an agreement by the Seller to establish resale Prices for the Goods or to establish advertised Prices for the Goods.
3.3 Invoices. The Seller shall issue periodic invoices to the Buyer for all Goods ordered, in connection with its acceptable of Purchase Orders. Each invoice for Goods must set forth in reasonable detail the amounts payable by the Buyer under this Agreement and contain the following information, as applicable: a reference to this Agreement; Purchase Order number, amendment number and line-item number; the Seller’s name; the Seller’s identification number; carrier name; ship-to address; approximate weight of shipment; quantity of Goods shipped; number of cartons or containers in shipment; bill of lading number; country of origin; and any other information necessary for identification and control of the Goods. The Buyer reserves the right to return and withhold payment due to any invoices or related documents that are inaccurate or incorrectly submitted to the Buyer; provided, that the Buyer must provide the Seller notice of the inaccurate or incorrectly submitted invoice with adequate specificity within ten (10) days receipt of such invoice. The Parties shall seek to resolve any invoice disputes expeditiously, and in good faith, and then in accordance with the dispute resolution provisions set forth in Section 11.16. Any payment by the Buyer of an invoice is not an acceptance of any nonconforming element or terms on such invoice or the related Goods.
3.4 Payment. Except for any amounts disputed by the Buyer in good faith, the Seller’s accurate and correctly submitted invoices will be payable by the Buyer within thirty (30) days of the acceptance of the Purchase Order. Any payment by the Buyer for Goods will not be deemed acceptance of the Goods or waive the Buyer’s right to inspect. The Buyer will be entitled to any discounts allowable by Seller for prompt payment even though the Buyer is unable to make payment within the time limits set by the Seller if such failure is due to the Seller’s actions or other circumstances or events beyond the Buyer’s reasonable control. The Buyer shall make all payments in US Dollars by check, wire transfer or automated clearing house in accordance with instructions provided by the Buyer.
3.5 Delay Discounts. Upon receipt of the payment by the Seller, the Seller shall give the Buyer Immediate Notice upon any discovery by the Seller that the shipment of related Goods is expected to be delayed beyond the Delivery Date. In the event that the shipment of such Goods is delayed beyond the Delivery Date (all such time being referred to as the “Delay Period”), but is received on or before fourteen (14) days following the Delivery Date (the “Grace Period”), then no liquidated damages discount shall be applicable to the Price for such Goods. If, however, such Goods are delivered at any time after fourteen (14) days following the Delivery Date, then the Buyer shall be entitled to a discount, as liquidated damages, in an amount equal to 0.33% of the Price, per day elapsed during the Delay Period (the “Delay Discount”), which it may apply to the Shipping Payment and/or the Final Payment, as the case may be.
For the avoidance of doubt, the Delay Discount is considered deferred (and cancellable) during the Grace Period, not suspended, such that, in the event that a Delay Discount becomes applicable, all days elapsed during the Delay Period shall count toward the summation of the Delay Discount, including those elapsed within the Grace Period.
3.5 Setoff. Except as explicitly provided herein, all obligations and amounts due from the Buyer to the Seller are without set-off, counterclaim, recoupment, defense or other right which the Buyer may have against the Seller.
4. Term; Termination.
4.1 Initial Term. The term of this Agreement commences on the Effective Date and continues for a period of one (1) year, unless it is earlier terminated pursuant to the terms of this Agreement or applicable Law (the “Initial Term”).
4.2 Renewal Term. Upon expiration of the Initial Term, the term of this Agreement will automatically renew for additional successive one (1) year terms unless either Party provides written Notice of non-renewal at least one hundred twenty (120) days prior to the end of the then-current term (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless any Renewal Term is earlier terminated pursuant to the terms of this Agreement or applicable Law. If the Initial Term or any Renewal Term is renewed for any Renewal Term(s) pursuant to this Section 4.2, the terms and conditions of this Agreement during each such Renewal Term will be the same as the terms in effect immediately prior to such renewal. In the event either Party provides timely Notice of its intent not to renew this Agreement, then, unless earlier terminated in accordance with its terms, this Agreement terminates on the expiration of the Initial Term or then-current Renewal Term, as applicable.
4.3 Buyer’s Right to Terminate for Convenience.
(a) The Buyer may, at its option, terminate this Agreement at any time and for any reason by giving written Notice to the Seller; provided, however, such termination shall have no effect on any outstanding Purchase Orders that have been accepted by the Seller. Such outstanding Purchase Orders shall be governed by the terms hereof until their fulfillment. Termination will be effective on the later to occur of the Seller’s receipt of the Buyer’s Notice of termination or such other later date (if any) set forth in such termination Notice.
(b) Where the Buyer terminates for convenience under this Section 4.3, the Seller may request confirmation of the Seller’s financial capability and intent to pay for any outstanding Purchase Orders. Where the Buyer fails to provide the Seller, within a commercially reasonable time after the Seller’s request (but in no case exceeding seven (7) days after such request) with adequate and reasonable assurance of the Seller’s financial capability and intent to timely fulfill the Buyer’s payment obligations under this Agreement, the Seller may require Buyer to pay for the Goods provided in such outstanding Purchase Orders in advance of shipping (and if applicable, production) of such Goods. Where the Buyer fails to make advance payment for the Goods under the foregoing circumstances, the Seller shall be relieved of its obligations to fulfill such Purchase Order and shall be entitled to receive liquidated damages in an amount equal to 50% of the aggregate Price of such Goods as reflected in such Purchase Orders.
4.4 Buyer’s Right to Terminate for Cause. The Buyer may terminate this Agreement, by providing written Notice to the Seller:
(i) if the Seller repudiates or threatens to repudiate, any of its obligations under this Agreement;
(ii) except as otherwise specifically provided under this Section 4.4, if the Seller is in material breach of, or threatens to breach, any representation, warranty or covenant of the Seller under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Seller within a commercially reasonable period of time under the circumstances, in no case exceeding fifteen (15) days following the Seller’s receipt of written Notice of such breach;
(iii) notwithstanding the generality of clause (ii), if the Seller fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Agreement;
(iv) if the Seller (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (C) makes or seeks to make a general assignment for the benefit of its creditors, or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
(v) if the Seller fails to provide the Buyer, within a commercially reasonable time after the Buyer’s request (but in no case exceeding seven (7) days after such request) with adequate and reasonable assurance of the Seller’s financial and operational capability to perform timely any of the Seller’s obligations under this Agreement.
Any termination under this Section 4.4 will be effective on the Seller’s receipt of the Buyer’s written Notice of termination or such later date (if any) set forth in such termination Notice. For the avoidance of doubt, Buyer's termination does not relieve the Buyer of any payment obligations for conforming Goods it has received pursuant to any Purchase Order.
4.5 Seller’s Right to Terminate for Cause. The Seller may terminate this Agreement, by providing written Notice to the Buyer:
(i) if the Buyer is in material breach of any representation, warranty or covenant of the Buyer under this Agreement, and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Buyer within a commercially reasonable period of time (in no case exceeding fifteen (15) days) after the Buyer’s receipt of written Notice of such breach; or
(ii) if the Buyer (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (C) makes or seeks to make a general assignment for the benefit of its creditors, or (D) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
(iii) if the Buyer is in violation of the Brand Standards Policy.
Any termination under this Section 4.5 will be effective on the Buyer’s receipt of the Seller’s written Notice of termination or such later date (if any) set forth in such Notice.
4.6 Effect of Expiration or Termination.
(a) Immediately upon the effectiveness of a Notice of termination delivered by the Buyer to the Seller hereunder (as stated in such Notice), the Seller shall, unless otherwise directed by the Buyer, promptly terminate all performance under this Agreement and under any outstanding Purchase Orders; and
(b) Expiration or termination of the Term will not affect any rights or obligations of the Parties that:
(i) come into effect upon or after termination or expiration of this Agreement; or
(ii) otherwise survive the expiration or earlier termination of this Agreement pursuant to Section 11.4, and were incurred by the Parties prior to such expiration or earlier termination.
(c) Upon the expiration or earlier termination of this Agreement, each Party shall:
(i) return to the other Party (or, at that Party’s instruction, destroy) all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
(ii) permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Each Party shall destroy any such copies upon the normal expiration of its backup files; and
(iii) upon the other Party’s written request, certify in writing to such other Party that it has complied with the requirements of this Section 4.6(c).
(d) Except for any payment obligations of the Buyer, including those Termination Claim payable by the Buyer under Section 4.3, and the Party terminating this Agreement, or in the case of the expiration of this Agreement, neither Party, will be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.
5. Compliance with Laws.
5.1 Compliance. The Seller shall at all times comply with all Laws applicable to this Agreement, the Seller’s operation of its business and the exercise of its rights and performance of its obligations hereunder. Without limitation of the foregoing, the Seller shall ensure the Goods and any related packaging, conform fully to any applicable Law.
5.2 Permits, Licenses, and Authorizations. The Seller shall obtain and maintain all Permits necessary for the exercise of its rights and performance of the Seller’s obligations under this Agreement, including any Permits required for the import of Goods or any raw materials and other manufacturing parts used in the production and manufacture of the Goods, and the shipment of hazardous materials, as applicable.
6. Representations and Warranties; Product Warranty.
6.1 Seller’s Representations and Warranties. The Seller represents and warrants to the Buyer that:
(i) it is a limited liability company, duly organized, validly existing and in good standing under the laws of the State of Georgia, and it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
(ii) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
(iii) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by the Seller, have been duly authorized by all necessary corporate action on the part of the Seller;
(iv) the execution, delivery, and performance of this Agreement by the Buyer will not violate, conflict with, require consent under or result in any breach or default under (i) any of the Seller’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any material Seller Contract;
(v) this Agreement has been executed and delivered by the Seller and (assuming due authorization, execution and delivery by the Buyer) constitutes the legal, valid and binding obligation of the Seller, enforceable against the Seller in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity;
(vi) it is in material compliance with all applicable Laws and Seller Contracts relating to this Agreement, the Goods and the operation of its business (including all loan covenants and other financing obligations to which it is subject);
(vii) it has obtained all material licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to exercise its rights and perform its obligations under this Agreement;
(viii) it is not insolvent and is paying all of its debts as they become due; and
(ix) all financial information that it has provided to the Buyer is true and accurate and fairly represents the Seller’s financial condition.
6.2 Buyer’s Representations and Warranties. The Buyer represents and warrants to the Seller that:
(i) it is an entity that is duly organized, validly existing and in good standing under the laws of the state within which it is organized or incorporated, and it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement;
(ii) it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
(iii) the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by the Buyer, have been duly authorized by all necessary corporate action on the part of the Buyer;
(iv) the execution, delivery, and performance of this Agreement by the Buyer will not violate, conflict with, require consent under or result in any breach or default under (i) any of the Buyer’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any material Buyer Contract; and
(v) this Agreement has been executed and delivered by the Buyer and (assuming due authorization, execution, and delivery by the Seller) constitutes the legal, valid and binding obligation of the Buyer, enforceable against the Buyer in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity.
6.3 Product Warranty. The Seller warrants to the Buyer Parties that (the “Product Warranty”):
(a) for the period provided by applicable law, or for such longer period as provided by Buyer to its customers or any end users, the Goods will:
(i) conform, in all material respects, to the Specifications;
(ii) be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials, and workmanship;
(iii) not infringe upon, violate or misappropriate the Intellectual Property Rights of any Person; and
(iv) comply with all applicable Laws.
(b) each of the Goods will be new and conveyed by the Seller to the Buyer with good title, free and clear of all Encumbrances.
6.4 Additional Terms. The Product Warranty (a) is in addition to all other warranties, express, implied, statutory and common law, (b) extends to the Goods’ future performance, (c) survives the Seller’s delivery of the Goods, the Buyer’s receipt, inspection, acceptance, use of the Goods and payment for the Goods, and the termination or expiration of this Agreement, (d) inures to the benefit of the Buyer and its successors and assigns, and (e) may not be limited or disclaimed by the Seller. The Buyer’s approval of the Specifications or similar requirements will not be construed to relieve the Seller of any warranties. Any applicable statute of limitations on the Buyer’s claims for breach of warranty will commence no earlier than the date on which the Buyer discovers the breach.
6.5 Withdrawal or Recall of Goods. If the Buyer, any of the Buyer’s customers or any Governmental Authority determines that any Goods sold to the Buyer are Defective and a recall campaign is necessary, the Buyer will have the right to implement such recall campaign and return Defective Goods to the Seller or destroy such Goods, as determined by the Parties in their reasonable discretion, at the Seller’s sole cost and risk. If a recall campaign is implemented, at the Buyer’s option and the Seller’s sole cost, the Seller shall promptly replace any Defective Goods and provide such replacement Goods to the Buyer or the Buyer’s designee. The foregoing will apply even if the Product Warranty and any other product warranty applicable to the Goods have expired. The Seller will be liable for all of the Buyer’s costs associated with any recall campaign if such recall campaign is based upon a reasonable determination that the Goods fail to conform to the warranties set forth in this Agreement. Where applicable, the Seller shall pay all reasonable expenses associated with determining whether a recall campaign is necessary.
7. Indemnification; Limitations.
7.1 Seller Indemnification. Subject to the terms and conditions of this Agreement, the Seller (as “Seller Indemnifying Party”) shall indemnify, defend and hold harmless the Buyer and their Representatives, Affiliates, successors and permitted assigns (collectively, “Buyer Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by any Buyer Indemnified Party (collectively, “Losses”), relating to any third-party Claim or any direct Claim against Seller Indemnifying Party alleging:
(a) a material breach or non-fulfillment of any of Seller Indemnifying Party’s representations and warranties in Section 6.2 and Section 6.3 hereof;
(b) any grossly negligent or more culpable act or omission of Seller Indemnifying Party or any of its Representatives (including any recklessness or willful misconduct) in connection with Seller Indemnifying Party’s performance under this Agreement;
(c) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Seller Indemnifying Party or any of its Representatives;
(d) any failure by Seller Indemnifying Party or its Personnel to materially comply with any applicable Laws; or
(e) that any of Seller Indemnifying Party’s Intellectual Property used in the design or production of the Goods, or that is embodied in the Goods, infringes any Intellectual Property Right of a third party; provided, however, that, without limitation of anything contained in Section 7.3, Seller Indemnifying Party has no obligations under this Section 7.1 with respect to Claims to the extent arising out of:
(i) any Specifications, raw materials, manufacturing parts or other materials provided by any Buyer Indemnified Party;
(ii) Buyer Indemnified Party’s marketing, advertising, promotion or sale or any product containing the Goods;
(iii) use of the Goods, including use of the Goods in combination with any products, materials or equipment supplied to the Buyer by a Person other than Buyer Indemnified Party or its authorized Representatives, if the infringement would have been avoided by the use of the Goods or use of the Goods not so combined;
(iv) any modifications or changes made to the Goods by or on behalf of any Person other than Seller Indemnifying Party or its Representatives, if the infringement would have been avoided without such modification or change; or
(v) goods (including Goods), products or assemblies manufactured or designed by Indemnified Party.
7.2 Buyer Indemnification. Subject to the terms and conditions of this Agreement, the Buyer (as “Buyer Indemnifying Party”) shall indemnify, defend and hold harmless the Seller and their Representatives, Affiliates, successors and permitted assigns (collectively, “Seller Indemnified Parties”) against any and all Losses relating to any third-party Claim or any direct Claim against Buyer Indemnifying Party alleging:
(a) the Buyer Indemnifying Party’s material breach of the Brand Standards Policy;
(b) any grossly negligent or more culpable act or omission of Buyer Indemnifying Party or any of its Representatives (including any recklessness or willful misconduct) in connection with Buyer Indemnifying Party’s performance under this Agreement;
(c) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Buyer Indemnifying Party or any of its Representatives;
(d) any failure by Buyer Indemnifying Party or its Personnel to materially comply with any applicable Laws; or
(e) any Buyer Indemnifying Party’s misrepresentations regarding the characteristics or specifications of the Goods.
7.3 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or defend any Indemnified Party against any Claim or corresponding Losses resulting directly from, in whole or in part, Indemnified Party’s or its Personnel’s:
(i) gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
(ii) bad faith failure to materially comply with any of its obligations set forth in this Agreement.
8. Limitations of Liability. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. EACH PARTY AGREES THAT A PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, NO MATTER THE THEORY OF LIABILITY, WILL NOT EXCEED, IN THE AGGREGATE, THE AGGREGATE PRICES PROPERLY INVOICED FOR PURCHASE ORDERS ISSUED BY THE BUYER UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM FOR THE LOSSES.
9. Intellectual Property.
9.1 Ownership. Each of the Parties acknowledges and agrees that:
(i) each Party retains exclusive ownership of its Intellectual Property Rights;
(ii) the Buyer does not transfer to the Seller any of its Intellectual Property Rights, and the Seller may not use any of the Buyer’s Intellectual Property Rights other than to produce and supply Goods to the Buyer hereunder;
(iii) the Seller does not transfer to the Buyer any of the Seller’s Intellectual Property Rights, except that the Seller grants to the Buyer and its customers the right to resell Goods to its customers;
9.2 Prohibited Acts. Each of the Parties shall not:
(i) take any action that may interfere with the other Party’s Intellectual Property Rights, including such other Party’s ownership or exercise thereof;
(ii) challenge any right, title or interest of the other Party in such other Party’s Intellectual Property Rights;
(iii) make any claim or take any action adverse to such other Party’s ownership of its Intellectual Property Rights;
(iv) register or apply for registrations, anywhere in the world, the other Party’s Trademarks or any other Trademark that is similar to such other Party’s Trademarks or that incorporates such Trademarks in whole or in confusingly similar part;
(v) use any mark, anywhere, that is confusingly similar to the other Party’s Trademarks;
(vi) misappropriate any of the other Party’s Trademarks for use as a domain name without such other Party’s prior written consent; or
(vii) alter, obscure or remove any of the other Party’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Goods), marketing materials or other materials.
10.1 Scope of Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information does not include information that at the time of disclosure and as established by documentary evidence:
(i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 10 by the Receiving Party or any of its Representatives;
(ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
(iii) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;
(iv) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or
(v) is required to be disclosed pursuant to applicable Law.
10.2 Protection of Confidential Information. The Receiving Party shall, for three (3) years from receipt of such Confidential Information:
(i) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(ii) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
(iii) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
The Receiving Party shall be responsible for any breach of this Section 10 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, or at any time during the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 4.6(c), promptly return, or, at the Disclosing Party’s instruction, destroy, all Confidential Information and copies thereof that it has received under this Agreement.
11.1 Further Assurances. Upon a Party’s reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
11.2 Relationship of the Parties. The relationship between the Seller and the Buyer is solely that of vendor and vendee and they are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
11.3 Entire Agreement. This Agreement, including and together with any related exhibits, schedules and the applicable terms of any Purchase Orders, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
11.4 Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this Agreement; and (b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement. All other provisions of this Agreement will not survive the expiration or earlier termination of this Agreement.
11.5 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth on the Order Page (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid), or by electronic mail (with delivery receipt).
Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
11.6 Interpretation. For purposes of this Agreement: (a) the words “include”, “includes” and “including” is deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein”, “hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute, as amended, from time to time, and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
11.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
11.8 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement, is invalid, illegal or unenforceable, the remainder of this Agreement is unenforceable. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
11.9 Amendment and Modification. No amendment to or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized Representative of each Party.
(a) No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right.
(b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
(ii) any act, omission or course of dealing between the Parties.
11.11 Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
11.12 Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Sections 9 or 10 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11.12.
11.13 Assignment. The Seller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Buyer. The Buyer may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of the Buyer’s assets. Any purported assignment or delegation in violation of this Section 11.13 is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
11.14 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
11.15 No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.16 Dispute Resolution. Any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the Chief Financial Officer of the Seller (or to such other person of equivalent or superior position designated by the Seller in a written Notice to the Buyer) and the Chief Financial Officer of the Buyer (or to such other person of equivalent or superior position designated by the Buyer in a written Notice to the Seller), by delivery of written Notice (each, a “Dispute Notice”) from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within thirty (30) days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Sections 11.17 hereunder.
11.17 Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Georgia, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
11.18 Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section.
11.19 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement. A signed copy of this Agreement delivered by electronic mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement, if the party sending such electronic mail or other means of electronic transmission has received express confirmation that the recipient party received the Agreement (not merely an electronic facsimile confirmation or automatic email reply).
11.20 Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond such Party’s control, without such Party's fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars or acts of terrorism) (each, a “Force Majeure Event”). The Seller’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions or supplier actions or contract disputes will not excuse performance by the Seller under this Section 11.20. The Seller shall give the Buyer prompt written notice of any event or circumstance that is reasonably likely to result in a Force Majeure Event and the anticipated duration of such Force Majeure Event. The Seller shall use all diligent efforts to end the Force Majeure Event, ensure that the effects of any Force Majeure Event are minimized and resume full performance under this Agreement. During any Force Majeure Event, the Buyer may, at its option (a) purchase Goods from other sources and reduce the quantities hereunder by such quantities without liability to the Seller, and require the Seller to reimburse the Buyer for any additional costs to the Buyer of obtaining the substitute goods compared to the Prices for such Goods under this Agreement, (b) require the Seller to deliver to the Buyer all finished Goods, work in process or parts and materials produced or acquired for work under this Agreement, or (c) require the Seller to provide Goods from other sources in quantities and at a time requested by the Buyer and at the Prices for the Goods hereunder. If the delay lasts more than such 30-day period, the Buyer may immediately terminate this Agreement without any liability to the Seller. The rights granted to the Seller with respect to excused delays under this Section 11.20 are intended to limit the Seller’s rights under theories of force majeure, commercial impracticability, impracticability or impossibility of performance, or failure of presupposed conditions or otherwise, including any rights arising under Section 2-615 or 2-616 of the UCC.
11.21 No Public Announcements or Trademark Use. Unless expressly permitted under this Agreement, the Seller shall not:
(a) make any statement (whether oral or in writing) in any press release, external advertising, marketing or promotion materials regarding the subject matter of this Agreement, the Buyer, or its business, unless:
(i) it has received the express written consent of the Buyer, or
(ii) it is required to do so by Law.
(b) use any of the Buyer’s Trademarks without the prior written consent of the Buyer, which shall not be unreasonably withheld or delayed.