OUTCAST DISTRIBUTION LLC
DISTRIBUTOR TERMS AND CONDITIONS OF SALE
(a) These Distributor Terms and Conditions of Sale (these “Terms”) governs (i) the sale of Products by Outcast Distribution LLC, an California limited liability company (“Outcast”) to the buyer (“Distributor”) identified in that certain Product Supply and Distribution Agreement (“Supply Agreement”); and (ii) Distributor’s further sale and distribution of the Products in the Territory. As used in these Terms, “Product(s),” “Customer(s)” and “Territory” shall have the same definition as set forth in the Supply Agreement. Outcast and Distributor may be referred to herein individually as a “Party” and collectively, the “Parties.”
(b) Any Purchase Order confirmation, invoice, or other sales document issued by Outcast to Distributor relating to the Products, together with these Terms and the Supply Agreement, to which these Terms are incorporated (collectively, this “Agreement”), comprise the entire agreement between the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement shall prevail over any of Distributor’s general terms and conditions of purchase, regardless of whether or when Distributor has submitted its order or such terms. Outcast’s agreement to sell Products to Distributor is expressly conditioned on Distributor’s unqualified acceptance of this Agreement. If for any reason this Agreement or any sales acknowledgment issued by Outcast is deemed to be an acceptance of a prior offer made by Distributor, such acceptance is expressly conditioned on Distributor’s assent to only the terms and conditions contained in this Agreement. Fulfillment of Distributor’s order does not constitute acceptance of any of Distributor’s terms and conditions and does not serve to modify or amend this Agreement.
2. APPOINTMENT; OBLIGATIONS.
(a) Purchase, Sale and Use of Products by Distributor. Outcast hereby appoints Distributor, and Distributor hereby accepts the appointment, to act as a non-exclusive distributor of Products to Customers during the Term (as defined below) in accordance with the terms and conditions of this Agreement. Notwithstanding the foregoing, Outcast reserves the right to sell the Products to any person, including any Customers. By accepting this appointment, Distributor agrees to conform to all industry standards and quality standards established from time to time by Outcast for its distributors. These quality standards are subject to change by Outcast on thirty (30) calendar days' prior notice to Distributor.
(b) Distributor Obligations. During the Term of this Agreement, Distributor shall, at its own expense: (i) market, advertise, promote, and sell the Products to Customers in a manner that reflects favorably at all times on the Products and the good name, goodwill and reputation of Outcast, that complies with Outcast’s brand standards and is consistent with good business practices, in each case using its best efforts to maximize the sales volume of the Products; (ii) maintain an adequate sales force trained in the Products and other personnel as necessary to efficiently promote and sell the Products and service Customers in the Territory; (iii) maintain adequate facilities that comply with all federal, state and local legal requirements, including the U.S. Food and Drug Administration’s (“FDA”) current Good Manufacturing Practices for holders and distributors of dietary supplements and foods, as necessary to adequately hold, distribute, and sell the Products and service the Customers in the Territory; (iv) fully support the sale of the Products in the Territory, including responding to sales inquiries, warranty issues, product and technical issues, and Customer service; (v) provide any required training with respect to the Products; (vi) keep Outcast promptly informed in writing as to any pertinent developments in the sale and marketing of Products in the Territory; (vii) observe all directions and instructions given to it by Outcast in relation to the labeling, marketing, advertisement, and promotion of the Products, including Outcast's sales, marketing, brand, and merchandising policies as they currently exist or as they may hereafter be changed by Outcast; (viii) not make any false or materially misleading statements concerning Outcast or the Products that may render them misbranded, including any unsubstantiated disease or treatment claims, or engage in product disparagement or any unwanted product association (as determined by Outcast from time to time in writing); (ix) obtain and maintain all required federal, state and location certifications, credentials, licenses, permits, registrations, or authorizations including but not limited to FDA establishment registration as appropriate, necessary for Distributor to act as distributor of, and market, distribute, and sell, the Products in the Territory and otherwise conduct its business in accordance with this Agreement; (x) at all times comply with all applicable federal, state and local laws and regulations (including, without limitations, any FDA regulations) in performing its responsibilities hereunder; (xi) immediately notify Outcast of all Product-related complaints and adverse event reports received and to respond only as directed by a Outcast representative; (xii) immediately report to Outcast any legal or regulatory action, or any regulatory or administrative notice, facility inspection, complaint, enforcement action, cited noncompliance or violation, investigation, impound or quarantining, voluntary or mandated recall, seizure, injunction, ordered destruction or other action related to Distributor’s facility or involving Outcast’s Products; and (xiii) not make any therapeutic claims about the Products, including, but not limited to, claims that the Products are intended to diagnose, treat, cure, or prevent any medical condition or disease. Distributor further represents that it has or had the opportunity through independent counsel, confirm, verify, and represent to Outcast that the Product(s) purchased by Distributor are lawfully sold to, delivered, purchased, and possessed within all jurisdictions in which Distributor may have such Product(s) delivered prior to placing a Purchase Order, as defined below, for the Product(s) and that Distributor shall legal and actual possession of such Product(s) at Outcast’s Facility, as defined below, for any purpose whatsoever as it relates to possession of the Products.
3. ORDERING PROCEDURE. Distributor shall order Products in accordance with the terms and conditions of this Agreement. Orders for the purchase of Products (“Purchase Order(s)”) must be submitted to Outcast by a representative of Distributor in written form via facsimile, e-mail, or mail. Each Purchase Order shall specify: (i) the listed Products to be purchased; (ii) the quantity of Products desired; and (iii) the requested delivery date. The Parties agree that the terms of this Agreement shall prevail over any conflicting terms and conditions in any Purchase Order, or other instrument submitted by Distributor. Any additional or different terms or conditions in any Purchase Order, acknowledgement form, or other instrument or response from Distributor shall be deemed rejected by Outcast without need of any further or additional notice of rejection, and such additional or different terms shall be of no effect or in any way binding upon Outcast. Outcast shall have no liability for any delay in filling or shipping any Purchase Orders. Outcast may, in its sole discretion, accept or reject any Purchase Order. Outcast may accept any Purchase Order as provided in the Supply Agreement. No Purchase Order is binding on Outcast unless accepted by Outcast.
4. Price; Taxes.
(b) Taxes. Distributor shall be responsible for and pay when due all sales, use, value-added (VAT), excise and other taxes as well as all tariffs, duties and other charges imposed on or measured by Distributor’s sale of Products. Distributor shall hold Outcast harmless for any failure to collect or pay any taxes, duties, or charges imposed on or measured by Distributor’s sale of Products and shall indemnify and defend Outcast for any expense, fee, fine, sanction, damage, or cost of any kind related to any investigation, claim, action, or proceeding by a third-party, including any government entity, resulting from Distributor’s failure, error, or omission in collecting or paying such taxes.
(c) Resale Prices. Distributor may establish its own resale prices regarding the Products; provided, however, that Distributor shall not resell the Products at a price below the resale price from time to time specified by Outcast in writing nor shall it contract with or sell to any party who shall sell the Products below the resale prices specified by Outcast in writing.
5. Payment. Outcast shall send Distributor invoices via mail, email or facsimile for each accepted Purchase Order. Invoices are due and payable within thirty (30) calendar days from the date of invoice. Payments due to Outcast hereunder must be made by wire transfer, ACH, or check. Outcast reserves the right to change or modify payment terms upon thirty (30) calendar days’ notice to Distributor. Distributor shall have no right to offset or withhold under this Agreement. In the event Distributor disputes any portion of an invoice or objects to any specific order, Distributor shall nonetheless remain obligated to timely pay all undisputed amounts and all costs associated with accepted Purchase Orders or deliverables to which it does not object. Distributor’s obligation to continue performance and payment of non-contested amounts shall remain in full force and effect notwithstanding any dispute. Any amounts not paid by Distributor when due to Outcast shall be subject to late fees, from the date due until paid, at the rate of one- and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less), payable monthly. If Distributor fails to make any payments in accordance with this Agreement or is otherwise in default with respect to any non-monetary obligation to Outcast, Outcast may at its sole option: (i) defer shipments until Distributor re-establishes satisfactory credit; (ii) cancel the unshipped portion of any order and invoice Distributor for incurred costs and reasonable profit without any liability on the part of Outcast for failure to ship; or (iii) make shipment to Distributor on a C.O.D. or cash in advance basis. Each of the foregoing remedies shall be in addition to any other rights and remedies available to Outcast.
6. Delivery. Unless otherwise agreed to in writing by the Parties, Outcast shall ship all Products F.O.B. (as defined under the California Uniform Commercial Code) from Outcast’s Facility. Title to and all risk of loss or damage to the Products shall pass to Distributor upon delivery of the Products at Outcast’s Facility to the carrier for shipment, and Outcast shall not be liable for any delays, loss, or damage in transit. Unless Distributor provides written shipping instructions to Outcast in advance, Outcast is authorized to make shipping arrangements on Distributor’s behalf and Distributor shall be responsible for all costs and expenses associated therewith. Outcast will use reasonable commercial efforts to fulfil each Purchase Order by the delivery date stated in the Purchase Order but stated delivery dates are estimates only and Outcast shall not be liable for any losses or damages associated with Outcast’s inability to meet any such delivery dates or other deadlines. Further, Outcast reserves the right to re-adjust shipment schedules without liability. Outcast may, in its sole discretion, without liability or penalty, make partial shipments of Products, each of which constitutes a separate sale, and Distributor shall pay for the Products shipped, whether the shipment is in whole or partial fulfillment of a Purchase Order. Outcast shall have the right to deliver such quantities of the Products ordered within limits reasonable in trade practice and Distributor shall be obligated to accept and pay for the quantity actually delivered. For purposes of this Agreement, “Outcast’s Facility” means the facility located at 1312 W. Esther Street, Long Beach, CA 90813.
7. Quantity. If Outcast delivers to Distributor a quantity of Products of up to ten percent (10%) more or less than the quantity set forth in an accepted Purchase Order, Distributor shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products at the prices established in accordance with this Agreement, adjusted on a pro-rata basis.
8. Inspection and Rejection of Nonconforming Products AND NONCOMPLIANT PRODUCTS. Distributor shall inspect each shipment of Products within five (5) calendar days following its receipt (the “Inspection Period”). Distributor shall be deemed to have accepted such Products unless it notifies Outcast in writing of any Nonconforming Products during the Inspection Period and furnishes such evidence and documentation reasonably required by Outcast. Distributor’s written notice of rejection shall state, in reasonable detail, all reasons for rejection. If requested by Outcast, Distributor shall provide a representative sample of the Products which Distributor contends are Nonconforming Products. As used in this Agreement, “Nonconforming Products” means only the following: (a) the product shipped is different than identified in Distributor’s Purchase Order; or (b) the Product’s label or packaging incorrectly identifies its contents. If Outcast determines that such Products are Nonconforming Products, Outcast shall, in its sole discretion, either (i) replace such Nonconforming Products with conforming Products, or (ii) refund to Distributor the amount paid by Distributor for such Nonconforming Products. Distributor shall return, at Outcast’s discretion and cost, Nonconforming Products to such location or facility designated by Outcast or dispose of such Nonconforming Products in accordance with applicable laws, statutes, rules, regulations, and ordinances. If Outcast exercises its option to replace Nonconforming Products, Outcast shall ship replacement Products to Distributor in accordance with Section 6 above. Except as provided under this Section 8, Distributor has no right to return Products shipped to Distributor pursuant to this Agreement. THE REMEDIES SET FORTH IN THIS SECTION 8 ARE DISTRIBUTOR’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING PRODUCTS WITH RESPECT TO ANY SUCH PRODUCTS FOR WHICH DISTRIBUTOR HAS ACCEPTED DELIVERY UNDER THIS SECTION 8.
9. Specifications. Distributor acknowledges that the Outcast is a third-party distributor of the Products and is not responsible for any labeling, conditions of use, warranties, advertising, claims, condition, packaging, instructions, or other similar things are not the responsibility of Outcast unless otherwise specified in writing by Outcast.
10. Term; TERMINATION.
(a) Term. The term of this Agreement shall commence on the effective date of the Product Supply and Distribution Agreement and continue for a period of two (2) years, unless sooner terminated as provided under this Agreement or applicable law (the “Initial Term”). Thereafter, it shall renew for additional successive one (1) year terms unless and until either Party provides notice of its intent not to renew at least sixty (60) calendar days before the end of the then-current Term, or unless and until earlier terminated as provided under this Agreement (each a “Renewal Term” and together with the Initial Term, the “Term”). If 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 then-current Term.
(b) Termination Rights.
Notwithstanding anything to the contrary in this Agreement, Outcast may immediately terminate this Agreement (including all related Purchase Orders), upon written notice to Distributor if:
(i) Distributor is in breach of or default under any term or condition of this Agreement, and either the breach or default cannot be cured or, if the breach or default can be cured, it is not cured within fifteen (15) calendar days following Distributor’s receipt of written notice from Outcast of such breach or default;
(ii) Distributor: (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, receivership or insolvency law; (C) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts; (D) makes or seeks to make a general assignment for the benefit of its creditors; (E) applies for or has a receiver, trustee, custodian or similar agent appointed to take charge of or sell any material portion of its property or business; (F) sells all or substantially all of its assets outside of the ordinary course of business; or (G) undergoes a change in ownership of 20% or more of its equity interests, or the merger of Distributor with or into another entity; or
(iii) Distributor engaged in fraudulent conduct or substantial misrepresentation in any of its dealings with Outcast or with others concerning the Products.
Distributor may terminate this Agreement by providing written notice to Outcast:
(iv) if Outcast materially breaches any material provision of this Agreement and either the breach cannot be cured, or if the breach can be cured, it is not cured by Outcast within fifteen (15) calendar days following Outcast’s receipt of written notice from Distributor of such material breach; or
(v) in the event of a Force Majeure Event affecting Outcast’s performance under this Agreement for more than ninety (90) consecutive days.
(c) Termination Without Cause. To the maximum extent permitted by applicable law, either Party may terminate this Agreement at any time with or without cause by giving one hundred twenty (120) calendar days prior written notice . Such termination shall not relieve Distributor of its responsibility to receive and pay for Products under any accepted or filled Purchase Orders.
(d) Effect of Termination. Upon the expiration or earlier termination of this Agreement: (i) at Outcast’s election, all unperformed orders may be terminated; (ii) Distributor shall cease to represent itself as Outcast’s authorized distributor or seller regarding the Products, and shall otherwise desist from all conduct or representations that might lead the public to believe that Distributor is authorized by Outcast to sell the Products; and (iii) Distributor shall promptly return or destroy (pursuant to Outcast’s instructions) all (A) documents and tangible materials (and any copies) containing, reflecting, incorporating Outcast’s Trademarks; (B) goods or other materials that Outcast provided to Distributor that are not intended for resale; and (C) all Confidential Information of Outcast. Outcast shall not be liable to Distributor for any compensation or any damage of any kind (whether direct or indirect) incurred by the Distributor as a result of the expiration or termination of this Agreement, including compensation for loss of profits or goodwill.
11. Warranty DISCLAIMER. The products sold by Outcast to DISTRIBUTOR are sold “as is” without any representation and warranty. Outcast makes no REPRESENTATION, WARRANTY, OR GUARANTEE of any kind REGARDING THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, including, WITHOUT LIMITATION, any express or implied warranty of MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, non-infringement of proprietary or third-party rights, USAGE IN THE TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, ALL OF WHICH ARE HEREBY DISCLAIMED by Outcast. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DISTRIBUTOR ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS OR IN COMBINATION WITH ANY OTHER GOODS OR SERVICES, WHETHER IN TERMS OF GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY OUTCAST, TECHNICAL ADVICE OR OTHERWISE RELATING TO THE USE OF THE PRODUCTS. DISTRIBUTOR ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY OUTCAST OR ANY OTHER PERSON ON OUTCAST'S BEHALF.
12. Limitations of Liability. NOTWITHSTANDING ANYTHING IN THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES TO THE CONTRARY, IN NO EVENT SHALL OUTCAST BE LIABLE TO DISTRIBUTOR OR ANY THIRD PARTY FOR ANY STATUTORY, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS OR REVENUE, DOWN TIME, DIMINUTION IN VALUE OR LOSS OF OPPORTUNITY), WHETHER IN AN ACTION AUTHORIZED BY STATUTE OR CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF OUTCAST HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. OUTCAST’S CUMULATIVE LIABILITY FOR ALL CLAIMS, DAMAGES OR LOSSES RELATING IN ANY MANNER TO THIS AGREEMENT AND THE PRODUCTS FURNISHED HEREUNDER, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL BE LIMITED TO DISTRIBUTOR’S DIRECT ACTUAL DAMAGES NOT EXCEEDING THE TOTAL OF THE AMOUNTS PAID TO OUTCAST PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR THE ORDER FROM WHICH DISTRIBUTOR RECEIVED THE PRODUCT AT ISSUE, WHICHEVER IS LESS. OUTCAST HAS RELIED ON THE FOREGOING LIMITATION AND DISTRIBUTOR EXPRESSLY ACKNOWLEDGES THAT THIS PROVISION IS ESSENTIAL IN THE ESTABLISHMENT OF THE PRICING OF THE PRODUCTS AND ANY TRANSACTION BETWEEN OUTCAST AND DISTRIBUTOR. THE LIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SET FORTH IN THIS SECTION 12 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. Indemnification. Subject to the terms and conditions of this Agreement, Distributor shall indemnify, hold harmless, and defend (with counsel selected by Outcast in its sole discretion) Outcast and its parent, subsidiaries, related entities, officers, directors, partners, members, shareholders, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees, as well as the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, relating to any claim of a third party or Outcast arising out of or occurring in connection with: (a) Distributor's acts or omissions as Distributor of the Products, including breach of this Agreement; (b) Distributor’s use, marketing, packaging, sale, transportation, or labelling of the Products; (c) Distributor's advertising or representations that warrant performance of Products beyond that provided by Outcast's written warranty or based upon Distributor's business or trade practices; (d) any failure by Distributor or its personnel to comply with any applicable laws, regulations, ordinances, or court or administrative orders; (e) Distributor’s possession and use of the Outcast’s intellectual property; (f) Distributor’s further alteration or modifications made to the Products; or (g) allegations that Distributor breached its agreement with a third party as a result of or in connection with entering into, performing under, or terminating this Agreement.
14. Compliance With Laws. Distributor shall comply with all applicable laws, statues, rules, regulations, codes, ordinances, and orders including but not limited to the Federal Food, Drug, and Cosmetic Act and it’s implementing regulations found in Title 21 of the Code of Federal Regulations in the performance of this Agreement and its use, sale, distribution, disposition, and disposal of the Products. Distributor shall maintain in effect all licenses, registrations, permissions, authorizations, consents, and permits including FDA establishment registration with respect to the Products and necessary to carry out its obligations under this Agreement.
15. INTELLECTUAL PROPERTY. Outcast shall continue to own and retain all rights, title and interests in and to Outcast intellectual property, including all rights under any Product, patent, copyright, trademark, trade dress, Trade Secret (as defined by the California Trade Secrets Act and the US Defend Trade Secrets Act), Confidential Information, or other intellectual property rights owned by or licensed to Outcast and nothing in this Agreement shall be deemed or construed to be a transfer of any of Outcast’s intellectual property. Distributor covenants that it shall not take any action that interferes with Outcast’s intellectual property, or any rights or interests therein, including Outcast’s ownership or exercise thereof. Distributor acknowledges and agrees that the intellectual property provided to Distributor by Outcast, if any, are the sole and exclusive property of Outcast. Distributor shall not acquire any right, title, or interest under this Agreement in any Outcast intellectual property. Distributor shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of Outcast intellectual property or the goodwill associated therewith or that will tend to prejudice the reputation of Outcast or the sale of any Outcast Products. Distributor shall not use Outcast’s intellectual property to market, sell, or otherwise promote any other product or brand that is not a Outcast Product.
16. Confidential Information.
(a) Definition. “Confidential Information” means information (whether oral, written, recorded, magnetically or electronically or otherwise stored), which is possessed by or developed for Outcast and which relates to Outcast’s existing or potential business, which information is not reasonably ascertainable by Outcast’s competitors or by the general public through lawful means, and which information Outcast treats as confidential, including but not limited to: Trade Secrets, as defined by the as defined by the California Trade Secrets Act and the US Defend Trade Secrets Act; technical knowledge and other know-how; past, current and proposed or potential research; discoveries; patent applications; ideas; formulas and product formulations; data; materials; costs; tolerances; specifications; operational methods, plans and strategies; developments, inventions, improvements and innovations; processes; designs; marketing and business plans; customer information including but not limited to identities, demographics, complaints, provided personal health information; procurement and sales activities and procedures; promotions, pricing, credit and financial information. Further, Confidential Information shall include information acquired by Distributor in connection with any inspection or tour of Outcast’s Facilities, such as, without limitation, production and manufacturing processes, regulatory correspondence as well as all notes, analysis, studies and summaries prepared by Distributor containing or based on, in whole or in part, the Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information which Distributor can demonstrate (i) was publicly available as of the date of disclosure; (ii) becomes publicly available through no fault of Distributor; (iii) is lawfully obtained by Distributor from a third-party that is not subject to any obligation of confidentiality or restriction of use; or (iv) was independently developed by Distributor and was in Distributor’s possession prior to receipt thereof from Outcast.
(b) Additional Confidential Information. In addition to any other information defined as Confidential Information by this Agreement, Distributor agrees that the existence and terms of this Agreement shall also be treated as Confidential Information under the terms of this Section 16.
(c) Use of Confidential Information. Distributor shall, at all times:
(i) Protect and safeguard the confidentiality of Outcast’s Confidential Information with at least the same degree of care as Distributor would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
(ii) Not use Outcast’s Confidential Information, or permit them to be accessed or used, for any purpose other than to exercise Distributor’s rights or perform its obligations under this Agreement; and
(iii) Not disclose any of Outcast’s Confidential Information to any person, business or entity, except as permitted by Section 16(f) below.
(d) Disclosure to Distributor’s Employees. Distributor may disclose Outcast’s Confidential Information only to those employees of Distributor who need to know such information to enable Distributor to perform its duties and obligations under this Agreement, provided such employees are informed of contents of this Section 16 and have agreed in writing prior to disclosure to be bound by terms, conditions and limitations at least as restrictive as the requirements of this Section 16. In any event, Distributor shall be fully liable for any breach of this Section 16 by its employees.
(e) Return; Destruction of Confidential Information. Distributor shall, at Outcast’s election, return or destroy (and certify thereto) any Confidential Information in its possession when this Agreement expires or terminates or upon request of Outcast.
(f) Disclosures Required by Legal Process or Authority. In the event that Distributor is compelled by any law, order, subpoena or other legal process (“Legal Process”) to disclose any Confidential Information of Outcast, (i) Distributor shall resist disclosure to the greatest extent allowed by law at its own expense and shall provide prompt written notice of the Legal Process so that Outcast may seek a protective order limiting its disclosure; and (ii) Distributor shall provide reasonable assistance in seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Distributor remains subject to the Legal Process, Distributor (or other persons to whom such Legal Process is directed) shall disclose no more than that portion of the Confidential Information which, on the advice of Distributor’s legal counsel, such Legal Process specifically requires be disclosed and shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
(g) Remedies. The Parties agree that any breach or threatened breach of this Section 16 may cause irreparable harm for which monetary damages may be inadequate. Accordingly, in the event of any actual or threatened breach of this Section, the non-breaching Party shall be entitled to seek immediate injunctive relief, including a temporary restraining order or preliminary injunction, without the necessity of posting a bond or other security, and without objection from the breaching Party on the grounds of personal jurisdiction, venue, or forum non conveniens. The breaching Party hereby irrevocably consents to the jurisdiction of any court of competent jurisdiction selected by the non-breaching Party for purposes of enforcing this provision. This Section shall survive termination or expiration of this Agreement.
(h) Survival Period. Notwithstanding anything to the contrary herein, each Party’s rights and obligations under this Section 16 shall be effective as of the effective date of the Product Supply and Distribution Agreement and survive the expiration or termination of this Agreement, even after the return or destruction of Confidential Information by Distributor (the “Survival Period”), provided that for any and all trade secrets of Outcast, the Survival Period shall last for as long as such Confidential Information qualifies as a trade secret under applicable federal, state and/or local law.
17. INSURANCE. Distributor agrees to maintain in effect insurance coverage with reputable insurance companies covering workers’ compensation and employers’ liability, commercial general liability, including product liability and excess liability, all with such limits as are reasonable, sufficient and consistent with industry standards and available for similarly situated sellers of similar products. Distributor shall designate Outcast as an additional named insured under Distributor’s commercial general liability policy and shall provide Outcast with certificates evidencing the above-referenced coverages. All insurance must be placed with an insurance carrier acceptable to Outcast. Such carrier shall be licensed to do business in the United States and possess a Best’s rating of no less than “A.” On the Effective Date and at least annually thereafter, Distributor shall provide Outcast with satisfactory evidence (including, if requested, copies of such insurance policies and/or certificates of insurance) evidencing compliance with the insurance requirements of this Section. Each certificate of insurance shall state that Outcast be provided not less than thirty (30) calendar days prior written notice of any modification or cancellation of such insurance coverage. Each policy shall provide that the insurance afforded thereby is primary, and any insurance carried by Outcast is in excess and non-contributing and shall waive the insurer’s right of subrogation. The stipulated limits of coverage set forth above in this Section shall not be construed as a limitation of any potential liability to any Party, and failure to request evidence of this insurance shall in no way be construed as a waiver of either Party’s obligation to provide the insurance coverage provided.
18. RECALL. If Outcast or any governmental agency or authority having jurisdiction over the Products finds that a Product contains a safety hazard, an unsafe condition, a serious defect or deficiency making it necessary that the affected Products be recalled or withdrawn (collectively, a “Recall”), Outcast shall, in its sole discretion, determine the corrective actions to be taken, subject to the requirements of applicable law. If Distributor becomes aware of any information that may result in a Recall or if Distributor receives any inquiry from governmental authorities or agencies or the media relating to the Products or their distribution, Distributor shall: (a) immediately notify Outcast immediately in writing, and (b) except to the extent Distributor has a legal requirement to disclose information to a government authority or agency after resisting the government inquiry to the greatest extent allowed by law, Distributor agrees that Outcast shall have sole discretion with regard to all decisions relating to the execution of a Recall, as well as all decisions concerning any Recall strategy. Distributor will cooperate with Outcast in executing any Recall, including locating any Products subject to the Recall and coordinating with Outcast regarding any communication with foreign, federal, state, or local governmental authorities or agencies concerning a potential or actual Recall. Any Products Recalled and determined by Outcast not to be salvageable shall be disposed of by the Distributor in a manner approved by Outcast.
19. Excused Performance. Outcast shall not be in default of, or liable for any delay in the performance of, this Agreement by reason of any of the following: acts of God; flood, fire, explosion, or other natural or man-made disaster; epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental orders, laws, emergency proclamations, or quarantine restrictions; actions, embargoes or blockades in effect on or after the effective date of this Agreement; action by any governmental authority or agency; shortage or unavailability of materials; shortage or unavailability of labor, strikes, labor stoppages or slowdowns or other industrial disturbances; shortage or unavailability of adequate power facilities; shortage or unavailability of adequate transportation facilities, including, without limitation, any railway strike or train derailment; and/or other events (whether or not similar in type or nature to the previously listed events) beyond the control of Outcast (each a “Force Majeure Event”). In the event of a Force Majeure Event, (a) Outcast’s performance under this Agreement will be postponed by such length of time as may be reasonably necessary to compensate for the delay caused by or resulting from the Force Majeure Event, (b) Outcast may allocate its available inventory of Products to any persons, including Distributor, in any manner Outcast determines to be fair and equitable, and (c) subject to applicable Law, immediately terminate this Agreement and/or cancel any Purchase Order impacted by the Force Majeure Event without liability to Distributor.
20. Assignment. Distributor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Outcast. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Distributor of any of its obligations hereunder. Outcast may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Distributor's prior written consent.
21. GPS TRACKING AUTHORIZATION. Distributor acknowledges and agrees that certain Products supplied under this Agreement may be equipped with Global Positioning System (“GPS”) tracking technology (“Tracking Technology”) for the purposes of enhancing supply chain visibility, ensuring product security, monitoring usage, and improving operational efficiency. Distributor hereby consents to the use and activation of such Tracking Technology by Outcast or its authorized agents. Distributor further acknowledges and agrees that this consent satisfies the requirements of all applicable federal, state, and local privacy laws governing the use of GPS tracking, including but not limited to laws requiring notice and consent. Distributor shall not interfere with, disable, or attempt to remove the Tracking Technology from any Product without prior written authorization from Outcast. Distributor shall ensure that any third party to whom it transfers possession of the tracked Products is made aware of and consents to the presence of Tracking Technology and the terms of this Section 21.
22. Relationship of the Parties. The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or construed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Outcast and Distributor. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Except as provided otherwise in this Agreement, Distributor has the sole discretion to determine Distributor's methods of operation, Distributor's accounting practices, Distributor's personnel practices, Distributor's advertising and promotion, and its customers. The relationship created hereby between the Parties is solely that of a seller and distributor. If any provision of this Agreement is deemed to create a franchise relationship between the Parties, then Outcast may immediately terminate this Agreement upon seven (7) calendar days prior written notice to Distributor. In the event this Agreement is terminated by Outcast under this Section 22, both Parties agree to negotiate and enter into a future agreement to capture the original purpose and intent of this Agreement.
23. No Third-Party Beneficiaries. Except for the rights of indemnified parties pursuant to Section 13 above, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
24. 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. Notwithstanding the previous sentence, the Parties intend that Distributor's rights under Section 8 are Distributor's exclusive remedies for the events specified therein.
25. Attorneys’ Fees. In the event Outcast is required to retain legal counsel or to initiate any arbitration or litigation to enforce or interpret the terms and conditions of this Agreement or to collect any sums due Outcast under this Agreement, Distributor shall, upon demand, pay or reimburse Outcast for all reasonable attorneys’ fees and costs and expenses of litigation incurred by Outcast.
26. Survival. Except as otherwise specifically provided herein, all of the promises, agreements, representations, warranties, and indemnities made by the Parties in this Agreement shall survive the expiration or termination of this Agreement, subject only to the applicable statutes of limitation.
27. Governing Law/Venue. This Agreement, including all the exhibits attached hereto, 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 California without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. All actions or counterclaims regarding the enforcement or interpretation of this Agreement shall be initiated and prosecuted exclusively in the state and federal courts located in California and those courts hearing direct appeals therefrom. Distributor and Outcast both consent to the exclusive jurisdiction and venue of such courts and expressly waive objections based on the doctrines of personal jurisdiction or forum non conveniens. Outcast AND DISTRIBUTOR VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION RELATING TO THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY.
28. No Waiver. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by the Party waiving its rights. 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. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (b) any act, omission, or course of dealing between the Parties.
29. Amendment and Modification. This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.
30. Severability. If any arbitral body or court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the original intent of the Parties expressed in this Agreement.
31. Section Headings. The headings in this Agreement are included for convenience of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms or conditions hereof.