Distribution Terms and Conditions – Buffalo Market
1. GRANT OF RIGHTS; TERM
1.1 Grant. Supplier grants to Distributor during the Term and pursuant to the terms of this Agreement, andDistributor accepts, the right to distribute and sell Products in the Territory (the “Purpose”), and the license to useSupplier’s Marks (as defined below) in the Territory for the Purpose. If the Distribution Agreement indicates that therights granted are Exclusive, Supplier agrees that it will not directly or indirectly distribute or sell Products inside theTerritory or to any party Supplier has reasonable basis to believe will distribute or sell the Products inside the Territory,except to the extent otherwise expressly permitted in the Distribution Agreement. Distributor agrees that it will notdirectly or indirectly distribute or sell Products outside of the Territory, except as otherwise specified or authorized in
the Distribution Agreement.
1.2 Term. The initial term of this Agreement (“Initial Term”) shall be for a period of three (3) years fromthe Effective Date, unless a different initial term is set forth on the Distribution Agreement, and such Initial Term shallbe automatically extended for consecutive three (3) year periods from the end of the Initial Term and any renewal term,unless either party provides written notice of termination to the other party not less than thirty (30) days prior to the endof such Initial Term or any subsequent renewal term. The term of this Agreement (the “Term”) shall commence on theEffective Date and continue through the Initial Term and any renewal term until terminated as provided above, or ifearlier, until the date the Agreement is otherwise earlier terminated in accordance with any express provisions set forth
in these Terms and Conditions or the Distribution Agreement.
2. PURCHASE OF PRODUCTS
2.1 Frequency. Distributor may order Products from Supplier at any time and from time to time in its sole
discretion during the Term unless otherwise agreed in advance in writing by the parties.
2.2 Order Placement. Absent written agreement by the parties, all orders shall be placed by thesubmission of a purchase order by Distributor to Supplier. Supplier shall confirm to Distributor the receipt of suchpurchase order issued hereunder within two (2) business days following Supplier’s receipt thereof. If Supplier fails to
issue a confirmation within the time set forth in the foregoing sentence or commences performance under such purchase order without providing confirmation, Supplier will be deemed to have accepted the purchase order.
2.3 Prices. All Products will be sold to Distributor at the price listed on the then current Wholesale PriceList less the Wholesale Price Discount Rate (the “Discount Price”). Supplier may amend the Wholesale Price Listfrom time to time and shall notify Distributor upon any such amendment; provided, however, that (a) Supplier shall giveat least 14 days’ notice to Distributor prior to any amendment increasing any prices on the Wholesale Price List, and (b)Supplier shall be responsible for obtaining, and where applicable shall obtain, the prior approval of the applicable storesfor any such price increases. For the avoidance of doubt, any change to the Wholesale Price List shall not affect theWholesale Price Discount Rate. The Discount Price for any Product shall be equal to or lower than the prices paid toSupplier by any other customer or distributor of Supplier for the same Product. The prices on the Wholesale Price Listinclude, and Supplier is solely responsible for, all costs and expenses relating to packing, crating, shipping, customs,taxes, insurance, and any other similar financial contributions or obligations relating to the production, manufacture,
sale and delivery of the Products from Supplier to Distributor.
2.4 Delivery. All Products shall be available for pickup by Distributor at the delivery point specified inthe Distribution Agreement, or, if not so specified, at Supplier’s warehouse, or any other location as agreed upon by theparties in writing (the “Delivery Point”) and Supplier shall be solely responsible for delivery of the Products to theDelivery Point. Title to Products and risk of loss shall pass to Distributor upon Distributor’s taking possession of theProducts at the Delivery Point. Supplier shall deliver all Products within the delivery time period specified in theDistribution Agreement from the date of receipt of Distributor’s purchase order or other authorized ordering document(but in any event on a reasonably timely basis under the circumstances). All costs of delivery of Products from Supplier
to the Delivery Point shall be the sole responsibility of Supplier.
2.5 Payment Terms. Unless otherwise agreed in advance in writing by the parties or otherwise specified inthe Distribution Agreement, payment for all purchases of Products by Distributor shall be due within thirty (30) days of
delivery or invoice, whichever occurs later, except for any amounts disputed by Distributor in good faith.
2.6 Inspection and Defects. Distributor may inspect all deliveries of Product upon delivery to identifyerrors in order fulfillment, breakage or damage during shipment, defects in packaging or labeling, or other defects, andshall use good faith efforts to notify Supplier within five (5) business days of delivery of any such issues. Upon suchnotice, Distributor, in its sole discretion, may either reject such Products for a refund plus any inspection, test, or storagecharges paid by Distributor, or require Supplier’s prompt correction or replacement of such Products, in which caseSupplier will correct or replace such Products within three (3) business days of receiving such notice at no cost toDistributor. In each case the exercise by Distributor of any other rights available to Distributor under this Agreement or
pursuant to applicable law shall not be limited.
2.7 Product Returns, Markdowns and Credits. Supplier shall reimburse Distributor for (a) Product returns, (b) quantity and cash discounts, (c) trade allowances or markdowns granted on account of unsalable or discontinued Products, and (d) any other deductions, chargebacks, rebates, credits, allowances or adjustments taken by a customer against a Product purchased from Supplier, as well as any fines, assessments, interest, liens and fees incurred by Distributor related to, arising out of or associated with any of the foregoing (collectively “Distributor Reimbursements”). Supplier shall reimburse Distributor within thirty (30) days’ written notice from Distributor for all such Distributor Reimbursements. For purposes of clarity, Distributor will not have the right to return Product to Supplier solely due to such Product not being sold.
2.8 Set-Off. All amounts due from Distributor to Supplier are net of any indebtedness of, or amountsowed by, Supplier to Distributor. In addition to any right of set-off, deduction or recoupment provided or allowed byapplicable law, Distributor may, without notice to Supplier, set off against, and deduct and recoup from any amounts dueor to become due to Supplier from Distributor any amounts due or to become due to Distributor from Supplier. If anobligation of Supplier is disputed, contingent or unliquidated, payment by Distributor of all or any portion of theamount due may be deferred until such dispute contingency is resolved or the obligation is liquidated. In the event ofSupplier’s bankruptcy, if all of the contracts (including this Agreement) have not been promptly assumed by Supplierunder applicable law, Distributor may withhold payment to Supplier for Products previously delivered (via
administrative hold or otherwise) until the risk of potential rejection and other losses is eliminated.
2.9 Notice of Discontinuance. Supplier shall provide Distributor with three (3) months’ advance written
notice before discontinuing a Product.
3. DISTRIBUTOR’S DUTIES.
3.1 Marketing and Inventory. At all times during the Term, Distributor shall reasonably cooperate withand participate in supplier’s marketing campaigns by distributing marketing and advertising materials provided bySupplier and encouraging the use and display of such materials by retail outlets within the Territory. Distributor shallkeep its inventory properly stored, in accordance with all relevant regulatory standards, and at adequate facilities forgoods such as the Products.
4. SUPPLIER’S DUTIES.
4.1 Distribution Support. At all times during the Term, Supplier shall use commercially reasonable effortsto market and promote the Products generally and shall provide, at Supplier’s expense (except to the extent otherwiseexpressly provided in the Distribution Agreement), relevant marketing and advertising materials and technicalassistance to Distributor. Except to the extent otherwise expressly provided in the Distribution Agreement, Suppliershall be solely responsible for all marketing fees, trade fund allowances, slotting fees, or any other fees relative to themarketing, programming, or selling of the Products, and shall pay Distributor for such fees within thirty (30) days’written notice from Distributor. Supplier shall provide a quantity of samples of any Products as agreed upon in writingby the parties, but in no event less than a reasonable amount, at the request of Distributor, and such samples shall be freeof charge to Distributor. Supplier shall utilize best efforts to maintain commercially reasonable levels of inventory of theProducts and/or production capacity sufficient to meet Distributor’s requirements. In the event that Supplier is unable tofulfill Distributor’s orders due to a shortage of inventory or production of Products, Supplier shall equitably fulfillDistributor’s orders such that (a) no other distributor of Supplier’s receives a disproportionate volume of Productrelative to the size and population of the Territory and such other distributors’ territories and (b) no open orders ofDistributor’s go unfilled for more than thirty (30) days after they are placed. Supplier shall provide Product launchtraining to Distributor’s personnel as applicable in connection with the marketing, sale, and support of the Products.
Supplier shall provide appropriate field assistance to Distributor and Distributor’s customers as applicable.
4.2 Commission to Distributor for Sales Assistance and Waiver. During the Term, the Parties may agree from time totime that Distributor will facilitate or assist with product sales (such as by presenting Supplier to a retailer, makingintroductions, serving as a sales representative and/or related activities) to one or more particular retail channels, chainof stores and/or other sales outlets for which Supplier, rather than Distributor will, directly sell and distribute theproducts (each a “Sales Retailer”). Any such sales activities by Distributor for Sales Retailers will be deemed to be partof the Purpose hereunder. Supplier agrees to pay a commission to the Distributor on any sales of products to any such Sales Retailer (the “Commission”) equal to five percent (5%) of the wholesale price for such products during the applicable Commission Period (as defined below). The time period during which Commissions are owed for each type of product sold to agiven Sales Retailer shall be three (3) years from the date such product is first sold by Supplier (and not by Distributorsunder Sections 2 or 3 above) to such Sales Retailer (the “Commission Period”). When the distributor sales a new product into such retailer without charging a wholesale discount rate, or ends charging a wholesale discount, for example in the case of new distribution methods, the commission of 5% will be applied for a period of three years. Commissions will be due on a givenproduct sale only if and when the sale of such product to the Sales Retailer actually closes, and if any proposed sale of aproduct does not close for any reason, regardless of the cause, no Commission will be due or payable to Distributor orany of its Sales Representatives (as defined below) with respect to such proposed sale. Commissions will be due andpayable by Supplier to Distributor with respect to a given product sale to a Sales Retailer on a monthly basis withinthirty (30) days after the end of each month during which any such sale occurs. Supplier shall provide a monthly reportto Distributor during any Commission Period at the same time as the Commission payment, which reports shall show inreasonable detail the information for each product sale resulting in such Commission amount for the applicable month(including units of products sold and the wholesale price applied to such sale) and the resulting calculation of the totalCommission for such month. For the avoidance of doubt, the foregoing Commission will be waived, and not apply toany products that are distributed and sold by Distributor under the distribution arrangements described in Sections 2 and3 above. Distributor, and not Supplier, shall be solely responsible for compensating and paying any commissions toDistributor’s employees, personnel, agents, consultants, contractors and brokers retained or contracted by Distributor toassist or facilitate product sales to any Sale Rep Retailer (collectively “Sales Representatives”). This Section 4.2 shallsurvive any expiration or termination of this Agreement until expiration of the last Commission Period so that all
Commissions accrued hereunder are paid to Distributor.
5. COMPLIANCE WITH LAWS. Supplier covenants to Distributor that it is in compliance with and shall comply withall applicable laws, regulations and ordinances, including, but not limited to, those laws, regulations and ordinancesapplicable to the manufacturing, storing, shipping, packaging, labeling and marketing of the Products, including (a) theAgriculture Improvement Act of 2018 and Section 7606 of the Agricultural Act of 2014, together with any other federalstatutes, rules, as such may be amended from time to time, and (b) all laws, rules and regulations imposed pursuant toany state legislation, if any (collectively, the “Regulatory Laws”). Supplier has and will maintain in effect all thelicenses, permissions, authorizations, consents and permits that it needs or is required to carry out its obligations under
this Agreement in conformance with all applicable Regulatory Laws, regulations and ordinances.
6. TRADEMARKS. Distributor may use Supplier’s trade names, trademarks, copyrights and service marks(collectively, “Marks”) for each Product in the Territory for the duration of the Agreement in connection with the
Purpose, and for the purpose of describing itself as an authorized distributor of Supplier.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Supplier represents and warrants as follows:(a) It is duly organized, validly existing and in good standing under the laws of its state of itsincorporation and has the power and authority to enter into this Agreement and to fully perform its obligationshereunder.(b) This Agreement has been executed by its duly authorized representative and constitutes itsvalid, binding obligation and there are no other agreements with any other party in conflict with thisAgreement.(c) Title to the Products purchased by Distributor under this Agreement will be free and clear ofliens, security interests and other encumbrances that would otherwise prevent Distributor’s resale ordistribution(d) All Products sold by it to Distributor will (i) conform to Supplier’s specifications and allapplicable Regulatory Laws, (ii) be free from defects, merchantable, and fit for the purpose of which their useis intended, (iii) not be adulterated or misbranded, and (iv) not infringe or misappropriate any third party’spatent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance orpayment of or for the Products by Distributor. These warranties are cumulative and in addition to any other
warranty provided by law or equity.
7.2 Distributor represents and warrants as follows:(a) It is duly organized, validly existing and in good standing under the laws of its state of itsincorporation and has the power and authority to enter into this Agreement and to fully perform its obligationshereunder.(b) This Agreement has been executed by its duly authorized representative and constitutes itsvalid, binding obligation and there are no other agreements with any other party in conflict with this
Agreement.
8. CONFIDENTIALITY. During the Term, the parties acknowledge that they may disclose to one another certainnon-public information concerning their respective businesses or operations and/or the Products, including but notlimited to trade secrets, other proprietary or confidential information, and this Agreement (collectively, “ConfidentialInformation”). During the Term each party shall treat the other party’s Confidential Information with at least the samelevel of care as its own Confidential Information, but not less than reasonable care. During the Term and two (2) yearsthereafter, each party shall, (a) not disclose the Confidential Information of the other party to any third party, and (b) usethe other party’s Confidential Information only for the Purpose or, if necessary, to enforce of this Agreement (which
shall be done in a manner that preserves the confidential nature of Confidential Information).
9. TERMINATION
9.1 For Breach. Either party may terminate this Agreement for a breach by the other party that is notcured within 30 days of written notice of such breach. In the event of a breach is caused by a Force Majeure eventunder Section 12.7, the cure period under this section shall be extended by 30 days upon written request from the
breaching party made prior to termination.
9.2 By Mutual Agreement. The parties may terminate this Agreement by mutual written agreement at any
time.
9.3 For Convenience. Either party may terminate this Agreement at any time, with or without cause,upon sixty (60) days’ prior written notice to the other party.9.4 Effect of Termination. On the expiration or earlier termination of this Agreement, Distributor may, inaccordance with the terms of this Agreement, sell off its existing inventories of Products for a period of three (3) months
following the last day of the Term.
9.5 Supplier Buyout. In the event that Supplier terminates this Agreement, other than (a) for breach underSection 9.1 or Section 3.2, (b) by mutual agreement under Section 9.2, or (c) for non-renewal under Section 1.2,Supplier agrees to pay to Distributor a one-time termination payment (“Buyout Fee”) equal to three times (3X)Distributor’s Gross Profit, as defined below, earned by Distributor from the sale of Products during the twelve (12)month period immediately preceding the effective date of termination by Supplier, or if Products have not been sold forthe full prior twelve month period at such time, then Gross Profit will be based on the reasonable forecast or projectionof sales of Products over the upcoming twelve month period (as if the Agreement remained in effect for an additionaltwelve months). For purposes of this Agreement, “Gross Profit” shall mean Distributor’s selling price(s) of allProducts less the net invoice price paid by Distributor to Supplier hereunder for all Products sold (or forecast orprojected to be sold, if applicable) to Distributor hereunder, less any allowance or bill backs paid or owed to Distributor(e.g., discounts, off invoice allowances, rebates and price reductions). Supplier shall pay the Buyout Fee to Distributorwithin thirty (30) days of the effective date of termination by Supplier. In the event Supplier sells or otherwise transferscontrol of one or more Products (other than to a successor or assignee in connection with an assignment of thisAgreement), or otherwise discontinues sales of those Products in the Territory in connection with such a transaction,such action shall be deemed a termination of this Agreement without cause, solely with respect to such Product(s), and
Supplier shall pay to Distributor the Buyout Fee above for such Product(s).
9.6 Survival. Any termination or expiration of this Agreement shall not affect Supplier’s or Distributor’srights or obligations that expressly or by their nature continue and survive (including without limitation, Sections 5, 7
through 10 and 12).
10. INDEMNIFICATION AND INSURANCE; LIMITATION OF LIABILITY
10.1 Indemnification by Supplier. Supplier shall indemnify, defend and hold harmless Distributor, itsofficers, directors, employees, agents, affiliates, successors and assigns (each an “Indemnified Distributor Party,” andcollectively, “Indemnified Distributor Parties”) against any and all losses, damages, liabilities, deficiencies, claims,actions, suits, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, includingreasonable attorneys’ fees, fees and the cost of enforcing any right to indemnification under this Agreement and the costof pursuing any insurance providers, incurred by Indemnified Distributor Party, solely to the extent any of the foregoingarise out of any claim, suit, action or proceeding (each a “Claim”) brought by a third party against any IndemnifiedDistributor Party, which Claim is arising out of or occurring in connection with (a) the Products purchased fromSupplier, (b) Supplier’s negligence, willful misconduct or breach of this Agreement, or (c) any claim that IndemnifiedDistributor Party’s use, distribution or possession of the Products infringes or misappropriates the patent, copyright,
trade secret, trademarks or other intellectual property right of any third party.
10.2 Indemnification by Distributor. Distributor shall indemnify, defend and hold harmless Supplier, itsofficers, directors, employees, agents, affiliates, successors and assigns (each an “Indemnified Supplier Party,” andcollectively, “Indemnified Supplier Parties”) against any and all losses, damages, liabilities, deficiencies, claims,actions, suits, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, includingreasonable attorneys’ fees, fees and the cost of enforcing any right to indemnification under this Agreement and the costof pursuing any insurance providers, incurred by Indemnified Supplier Party, solely to the extent any of the foregoingarise out of any Claim brought by a third party against any Indemnified Supplier Party, which Claim is arising out of oroccurring in connection with (a) Distributor’s negligence, willful misconduct or breach of this Agreement, or (b) anyclaim that Indemnified Supplier Party’s proper and appropriate use of Distributor’s online portal in connection with thisAgreement infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any
third party.
10.3 Indemnification Procedures. Each party shall promptly notify the other party of any Claim for whichsuch indemnified party, or its associated indemnified persons, is seeking to be indemnified, defended or held harmlesshereunder by the other indemnifying party. Such indemnified party shall provide the indemnifying party with the rightto, and the indemnifying party shall be entitled to, control the defense and settlement of such Claim, provided thatneither party (nor any of its associated indemnified persons) shall settle such Claim without the prior written consent ofthe other party, such consent not to be unreasonably withheld. Such indemnified party shall also provide theindemnifying party with reasonable cooperation and assistance in connection with the defense and settlement of such
Claim.
10.4 Insurance. During the Term and for one (1) year thereafter, each party shall maintain insurance in fullforce and effect that includes commercial general liability (including product liability) with limits of no less than$1,000,000 for each occurrence and $2,000,000 in the aggregate with financially sound and reputable insurers. All suchpolicies of Supplier shall name Distributor as an additional insured upon request by Distributor. Upon each party’srequest, the other party shall provide such requesting party with a Certificates of Insurance evidencing the above.10.5 Exclusion of Consequential and Related Damages. WITHOUT LIMITING THE RIGHTS ANDOBLIGATIONS Of THE PARTIES UNDER SECTIONS 10.1 AND 10.2 (INDEMNIFICATION BY EACH PARTY),IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSTPROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER ORPUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE)OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEENADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE
ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
11. NOTICES. Notices under this Agreement shall be delivered by certified or registered mail or email (a) withrespect to Supplier, at the addresses on the Distribution Agreement, and (b) with respect to Distributor, at the followingaddresses (or at such other address as Distributor or Supplier may identify in writing during the Term), and shall beeffective upon delivery (or, in the case of email, upon confirmed receipt).Buffalo Market, Inc.8030 W. Doe Ave.Visalia, CA 93291
12. MISCELLANEOUS
12.1 Recall. If Supplier, Distributor, or any governmental authority determines that a recall of anyProducts sold to Distributor is necessary, either party may implement such recall campaign. Distributor shall return anydefective Products to Supplier or destroy such Products, as determined by Distributor, at Supplier’s sole cost and risk.Without limitation of any rights otherwise available to Distributor, if a recall campaign is implemented, at Distributor’soption and Supplier’s sole cost, Supplier shall promptly either replace, or credit or refund the prices paid by Distributor
for, all such returned Products.
12.2 Assignment. Supplier may not assign this Agreement without the prior written consent of Distributor.Distributor may assign in whole or part this Agreement provided that any such subsequent assignee agrees to accept theterms and conditions of this Agreement then existing. This Agreement is binding on and insures to the benefit of the
parties to this Agreement and their respective successors and permitted assigns.
12.3 Independent Contractor Relationship. The parties expressly agree and acknowledge they areindependent contractors and are not partners, joint venturers or agents of the other. Each party will maintain completecontrol over its respective employees and agents and its relationships with its respective agents and contractors. Nothingin this Agreement creates any contractual relationship between a party and any agents or contractors of the other party.Each party will perform its obligations in accordance with its own methods and procedures, subject only to compliancewith this Agreement. Neither party will be liable for any debts, acts, or obligations of the other or the other’s agents,
employees, or contractors.
12.4 Data Collection. Supplier hereby grants Distributor a non-exclusive, worldwide, perpetual,transferable, royalty-free license to use, copy, transmit, sub-license, index, store, aggregate, and display TransactionData in connection with the operation and maintenance of Distributor’s distribution and related services, for technicalsupport, to otherwise perform obligations to Supplier or any other of Distributor’s suppliers or other customers, toperform account management services, and to publish, display, and distribute de-identified, aggregated informationderived from Transaction Data and other information from Supplier’s use of Distributor’s services for marketing,research or compliance purposes, for purposes of improving Distributor’s services, and for developing, displaying, anddistributing benchmarks and similar reports, provided that any such data is not publicly identified or identifiable asoriginating with or associated with Supplier. The foregoing shall not limit the ability of Distributor to publish orotherwise share or distribute information regarding Supplier that is obtained from publicly available or nonconfidentialsources. “Transaction Data” means any data of any type regarding transactions between Supplier and Distributor andthe purchase and sale of Products, including without limitation product type, pricing and quality, sale price, fees and
deductions and time periods for sale or liquidation.
12.5 Privacy Policy. Supplier hereby consents to Distributor’s privacy policy, located on its website athttps://www.buffalomarket.com/pages/pricacy-policy, which describes Distributor’s privacy practices and isincorporated by reference into this Agreement. By Supplier’s entering into this Agreement, Supplier consents to any
updates to the Distributor’s privacy policy that may be published on the Distributor’s website from time to time.
12.6 Governing Law; Dispute Resolution. The laws of the United States of America and the State ofCalifornia govern all matters arising out of or relating to this Agreement without giving effect to any conflict of lawprinciples. Any dispute, claim or controversy arising out of or in connection with this Agreement or the breach,termination, enforcement, interpretation or validity thereof (each a “Dispute”), including the determination of the scopeor applicability of this agreement to arbitrate, shall be exclusively determined by final, binding arbitration in LosAngeles, California before one arbitrator. The arbitration shall be conducted in accordance with the JAMSComprehensive Arbitration Rules and Procedures as in effect on the date measures to initiate arbitration of such Disputeare first taken. Judgment on any award arising out of such arbitration may be entered in any court having jurisdiction.This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court ofappropriate jurisdiction. The parties shall maintain the confidential nature of the arbitration proceeding and any awardsarising therefrom, except as may be necessary to prepare for or conduct the arbitration, and except as may be necessaryin connection with a court application for a preliminary remedy, a judicial challenge to an arbitration award or itsenforcement, or unless otherwise required by law or judicial decision. In any arbitration arising out of or in connectionwith this Agreement, the arbitrator shall award to the prevailing party, if any, the out-of-pocket costs and attorneys’ feesreasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator determines a party to bethe prevailing party under circumstances where the prevailing party won on some but not all of the claims andcounterclaims, the arbitrator may award the prevailing party an appropriate percentage of the out-of-pocket costs andattorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration. Subject to the foregoingagreement to arbitrate, each of the parties irrevocably consents to the non-exclusive, personal jurisdiction of the federaland state courts located in the Central District of California for any matter arising out of or relating to this Agreement.Additionally, notwithstanding anything in the foregoing to the contrary, a claim for equitable relief arising out of or
related to this Agreement may be brought in any court of competent jurisdiction.
12.7 Force Majeure. Supplier and Distributor shall be excused for the period of any delay in theperformance of any obligations under this Agreement when substantially prevented from so doing by labor disputes,civil commotion, war, unforeseeable governmental regulations or controls, fire or other casualty, pandemics, terrorism,
acts of God or other events beyond such party’s reasonable control.
12.8 Severability. If a court of law holds any provision of this Agreement to be illegal, invalid orunenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible tothat provided by the original provision, and (b) the legality, validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
12.9 Waiver; Amendments. Failure by either party to enforce a provision of this Agreement shall notconstitute a waiver of that or any other provision of the Agreement. No modification or waiver of this Agreement or ofany covenant, condition or limitation contained herein shall be valid or effective unless it is (a) in writing and dulyexecuted by the parties hereto, or (b) electronically accepted by Supplier upon electronic offer from Distributor.Supplier’s continued use of Distributor’s services after notification of modifications of these Terms and Conditions by
Distributor will be deemed acceptance by Supplier hereunder.
12.10 Entire Agreement. This Agreement constitutes the final and exclusive agreement between the partieswith respect to the subject of this Agreement and supersedes all agreements regarding such subject matter, whether prioror contemporaneous, written or oral. It is specifically agreed that no printed standard terms that may appear on anyquotations, purchase orders, acceptance notes or invoices relating to the Products under this Agreement shall have any
effect.
End of Terms and Conditions