ALEXANDER STEARNS, LLC
d/b/a MAX DISTRIBUTING
VENDOR SUPPLY AGREEMENT
TERMS AND CONDITIONS
Last Updated Date: July 10, 2023
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
BY ACCEPTING AN ORDER FOR PRODUCTS FROM MAX DISTRIBUTING, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
These terms and conditions (these “Terms” or this “Agreement”) apply to the sale and supply of products by you (“Company”) ordered by Alexander Stearns, LLC, d/b/a “MAX Distributing” (“Distributor,” “we, or “us”) through the submission of a purchase order from Distributor. These Terms are subject to change by Distributor without prior written notice at any time, in our sole discretion. Any changes to these Terms will be in effect as of the “Last Updated Date” referenced on the Distributor website. Company shall be deemed to have accepted these Terms upon acceptance of any purchase order and Distributor hereby expressly rejects any portion of any purchase order or other writing that attempts to modify these Terms. Purchase orders may only be supplemented by written agreement of the Parties. Distributor and Company are sometimes referred to in these Terms individually as, a “Party,” and collectively, the “Parties.”
Article 1 – Supply of Products
1.1 Products. The term “Products” shall mean those products set out in the purchase order.
1.2 Supply. Subject to the terms and conditions set forth herein, Company agrees to supply the Products to Distributor as ordered via a purchase order, and Distributor shall purchase from Company the Products so ordered. Company represents and warrants to Distributor that it has and will convey to Distributor good title to all Products it sells to Distributor hereunder and that such Products will be free and clear of all liens, claims, or encumbrances. Company represents and warrants that it is duly authorized to supply, sell, and ship Products.
1.3 Purchase Orders. The Parties agree that these Terms shall govern the purchase order. Unless otherwise set forth in the purchase order, (i) all Products shall be shipped freight prepaid, F.O.B. Shipping Point, (ii) shipments shall be routed or shipped as specified by Distributor, and (iii) in the event routing or shipping is not specified, Company shall ship the Products in the least expensive way reasonably calculated to meet Distributor’s delivery time and requirements. The purchase order will describe the Products ordered, and quantity and the desired delivery date. Distributor will use commercially reasonable efforts to provide at least 10 days of lead time prior to the requested delivery date.
1.4 Packaging, Advertising Claims. Company shall be solely responsible for product labelling, including but not limited to conformance with applicable laws. Liability related to deficiencies in product labelling and packaging shall be borne solely by Company. Company represents and warrants that all Products, including the Products’ packaging, advertising, and labelling, will comply with all applicable laws, including all FTC laws and regulations, the Federal Food, Drug and Cosmetic Act, as amended, the California Safe Drinking Water and Toxic Enforcement Act of 1986 (a/k/a Proposition 65), and all regulations, rules, declarations, interpretations, and orders issued thereunder. Company agrees to perform, at no cost to Distributor, all corrective action needed to fix any regulatory deficiencies in the Products, including the Products’ packaging and labelling. Neither Party will advertise the Products with product claims that would require FDA approval or be considered false or misleading advertising under FTC standards.
1.5 Product Specifications. Products supplied by Company shall strictly conform to its product, labelling, and packaging formulations, including the dimensions, weight, and other specifications, as well as product handling requirements (the “Specifications”). Company may make changes to the Specifications, provided the changes do not adversely affect the quality of the Products.
1.6 Non-Conforming Product. In the event any shipment does not conform to the ordered amount or Specifications or suffers other patent faults, defects, or damage, Distributor shall report such non-conformities to Company within 10 business days of discovery. Company shall bear all expenses and costs associated with handling, freight, and return of non-conforming Products. Final disposal of any non-conforming Products shall be the sole responsibility of Company.
1.7 Agreements with Suppliers. In the event Company is not the manufacturer of all or a portion of the Products, Company represents that it performs reasonable due diligence regarding its suppliers of the applicable Products or portions thereof, including manufacturers, to ensure that its suppliers are reputable and trusted to supply materials that conform to applicable laws and regulations. Company shall require its suppliers to have all Products or portions thereof tested, in accordance with standards set forth in Section 3.2 below.
1.8 Cancellation. Distributor may cancel a purchase order, or any portion thereof, by giving notice to Company at any time before the Products have been shipped to Distributor. Distributor shall have no liability with respect to any such cancellation if (i) Company has not ordered the necessary materials or commenced manufacturing of the Products in reliance on such purchase order, (ii) the materials can be restocked or used with another customer of Company, or (iii) the Products are being purchased by Company from a third party distributor or from Company’s existing inventory.
Article 2 – Pricing and Payment
2.1 Prices, Invoices. Distributor agrees to pay Company the respective prices (all of which are in U.S. dollars) listed on the purchase order. Distributor may sell Products purchased from Company hereunder at any prices and on any terms Distributor desires. Company will submit an invoice to Distributor for payment with or after delivery of the applicable Products. The invoice will include the purchase order number, a description of the Products delivered, unit prices, and total prices.
2.2 Payment Terms. Payments for each order shall be made in U.S. dollars from the later of (a) the date of delivery of the Products ordered to Distributor’s facility or (b) 45 days from the date of receipt by Distributor of a complete and accurate invoice for such order. Distributor shall pay Company when due all undisputed amounts and shall notify Company of any disputed amounts in writing. The Parties shall work in good faith to resolve any disputed amounts as quickly as practicable. Other than any applicable sales or use tax relating to the sale of Products by Company to Distributor, Company shall bear the cost of any taxes relating to the sale of the Products to Distributor, including any, customs, import, or excise tax.
2.3 Set-off. Distributor will have the right to set off and reduce the payment of any amount due under this Agreement and any purchase orders by the amount of (a) any claims that Distributor may have arising under this Agreement, (b) any claims that Distributor may have arising from other transactions with Company, or (c) any claims that are subject to the indemnification obligations of Company under this Agreement.
2.4 Most Favored Customer. Company agrees that the prices for the Products are no less favorable than the best prices offered to Company’s other customers for products the same as or substantially similar to the Products.
Article 3 – Compliance with Laws
3.1 In General. Company represents and warrants that it and all Products comply with applicable local, state, and federal laws, orders, regulations, and guidance.
3.2 Regulatory Rights and Obligations. Company represents and warrants that the Products are free from any contaminants or adulterants that could pose a risk of harm to consumers. In the event the Products shall contain hemp-derived CBD or Delta-8 THC, Company represents and warrants such Products contain less than 0.3% THC and meet the specified requirements of the Agriculture Improvement Act of 2018, as may be amended, or replaced by succeeding law. Company shall have all Products tested, or cause its suppliers to have the Products tested, as applicable, on at least an annual basis or at any time there is a change to the Products, by an independent third party laboratory to (i) ensure that the Products comply with applicable law, (ii) ensure the accuracy of any ingredients list published for the Products, and (iii) confirm whether the Products contain THC or contaminants, including but not limited to pesticides, solvents, microbials, and terpenes. All results of such testing shall be provided to Distributor upon request, including the results of testing conducted by Company’s suppliers, as applicable.
3.3 Licensure. Company represents and warrants that it holds and maintains all governmental (including state and local) approvals, consents, licenses, permits, authorizations, declarations, filings, and registrations required under applicable law to manufacture the Products. Company shall provide copies of all such licenses in advance of shipment of Products to Distributor.
3.4 Notice of Noncompliance. Company agrees to immediately notify of any inspection or investigation by any local, state, or federal body and non-compliance with applicable laws, including, but not limited to the receipt of an FDA untitled letter, warning letter, or inspectional observations.
3.5 Product Recalls. In the event of any corrective action, product correction, market withdrawal, or recall of any Products, Company will notify Distributor immediately. Company will immediately take all necessary corrective action or conduct any corrective action, product correction, market withdrawal, or recall, as applicable. Distributor will not be responsible for any costs associated with any recall or corrective action. Distributor will have the right to notify its customers of such actions and advise them of the remedy to be provided by Company. Company will immediately notify Distributor of all Distributor remedies by promptly providing instructions to Distributor to provide to its distributors for return of Products to Company for correction and/or modification. Company will be responsible for all costs and expenses incurred in affecting such a remedy including costs of notices, replacement, and shipping, as applicable. Company agrees to notify Distributor of any FDA inspection covering the Products, and the outcome of that inspection, including any corrective actions required.
3.6 Repurchase Obligation. Company shall provide a credit to be applied to any outstanding invoices or future invoices for the balance of Distributor’s inventory of any Products (inclusive of all in-stock and in-transit Product) that are the subject of a regulatory deficiency, corrective action, or recall at a price equal to the price paid by Distributor to Company for such Products and all delivery costs incurred by Distributor with or after the delivery of such Products. Distributor will submit an invoice to Company for the credit. In the event there are no outstanding invoices or future invoices, Company shall repurchase from Distributor the balance of Distributor’s inventory Products (inclusive of all in-stock and in-transit Product) at a repurchase price equal to the price paid by Distributor to Company for such Products and all delivery costs incurred by Distributor with or after the delivery of such Products. Company shall be responsible for all freight and other shipment and delivery costs relating to the delivery of the repurchased inventory Products from Distributor to Company. Distributor will submit an invoice to Company for the repurchase price, and Company shall pay such invoice immediately upon receipt thereof. Title and risk of loss to the repurchased inventory Products shall pass to Company upon delivery by Distributor of such inventory to the carrier.
Article 4 – Intellectual Property
4.1 Trademarks and Branding. Company hereby grants to Distributor the non-exclusive right to use Company’s name, logos, and trademarks (“Trademarks”) for the promotion, advertisement, and sale of the Products in accordance with the terms of this Agreement. Distributor shall not alter or make any addition to the labelling or packaging of the Products. Company shall promptly give notice in writing to Distributor if it becomes aware of: (a) any infringement or suspected infringement of the Trademarks or any other intellectual property rights relating to the Products; or (b) any claim that any Products or the manufacture, use, sale, or other disposal of any Products, whether under the Trademarks, infringes the rights of any third Party. Company, at the request and expense of Company, will provide any reasonable assistance to Distributor in connection with any action to be taken by Company with respect to such infringement or suspected infringement (including the use of its name in, or being joined as a Party to, proceedings), provided that that Distributor is given such indemnity as it may reasonably require against any losses, costs, and expenses it may incur as a result of, or in connection with, providing that assistance.
4.2 Confidential Information. During the performance this Agreement, each Party (“Receiving Party”) may be provided with, have access to, or otherwise learn confidential and proprietary information of the other Party (“Disclosing Party”) (including certain technical information and materials) that is of substantial value to the Disclosing Party, which is identified as confidential at the time of disclosure or which should reasonably be considered to be confidential to the Disclosing Party (“Confidential Information”). All Confidential Information remains the property of the Disclosing Party. The Receiving Party may disclose the Confidential Information of the Disclosing Party only to its employees and contractors who need to know the Confidential Information for purposes of performing under this Agreement and who agree to be bound by the confidentiality obligations set forth herein. The Receiving Party will not use the Confidential Information without the Disclosing Party’s prior written consent except in performance under this Agreement. The Receiving Party will take measures to maintain the confidentiality of the Confidential Information equivalent to those measures the Receiving Party uses to maintain the confidentiality of its own confidential information of like importance but in no event less than reasonable measures. The Receiving Party will give immediate notice to the Disclosing Party of any unauthorized use or disclosure of the Confidential Information and agrees to assist the Disclosing Party in remedying such unauthorized use or disclosure. The confidentiality obligations of this Section 4.2 do not extend to information which: (i) becomes part of the public domain without the fault of the Receiving Party, (ii) is rightfully obtained by the Receiving Party from a third Party with the right to transfer such information without obligation of confidentiality, (iii) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information, as evidenced by written records, or (iv) was lawfully in the possession of the Receiving Party at the time of disclosure, without restriction on disclosure, as evidenced by written records. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party as may be required by law, a court order, or a governmental agency with jurisdiction, provided that before making such a disclosure the Receiving Party first notifies the Disclosing Party in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party all tangible copies of Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and will erase from its computer systems all electronic copies thereof to the extent feasible.
Article 5 – Indemnification
5.1 Indemnification. In addition to any other indemnification obligations set forth in this Agreement, and to the extent permitted by law, Company, at Company’s sole cost and expense, shall defend, indemnify, and hold Distributor, its affiliated and subsidiary companies, and its and their agents, directors, officers, and employees, (“Distributor Group”) harmless from and against any and all product liability losses, liabilities, costs, damages, fees, or expenses (including reasonable attorney’s fees) arising out of or in connection with Company’s or any of its manufacturers’ or suppliers’ manufacture, marketing, packaging, use, distribution, transportation, or sale of any Products, including, but not limited to, any actual or alleged bodily injury, illness, damage, death, or other consequence occurring to any person arising from or related to, directly or indirectly, the purchase, possession, use, or consumption of any Products, whether claimed by reason of breach of warranty, negligence, product defect, violation of applicable law or regulation, or otherwise, and regardless of the form in which any such claim is made.
Article 6 – Insurance
6.1 General Terms.
6.1.1 Requirement to Procure and Maintain Coverage. Company represents and warrants that Company shall at all timesmaintain in full force and effect, sufficient insurance (i) as may be required by law, and (ii) to protect Distributer and Company from claims arising out of or connected with the Products provided. All such insurance shall be of the types, in the minimum amounts and meeting the requirements set forth below. The insurance requirements shall not restrict, limit, or modify the indemnification obligations and other provisions of this Agreement. The requirements herein as to the types and limits of insurance coverage to be maintained by Company and any approval of said insurance by Distributor or its insurance consultant(s) are not intended to and shall not in any manner limit or qualify the liabilities and obligations otherwise assumed by Company pursuant to this Agreement, including but not limited to the provisions concerning indemnification. It is Company’s responsibility to ensure that the coverage obtained comply with the requirements of this Agreement. Distributor’s acceptance of a Certificate of Insurance that purports to comply with the requirements of this Agreement does not indicate an acceptance of the insurance as procured and does not waive Distributor’s right to enforce this Agreement if it is later determined that the required insurance was not properly procured. Distributor’s failure to request a Certificate of Insurance shall not constitute a waiver of the insurance requirements herein. Any failure by Distributor to enforce in a timely manner any of the provisions of this Article shall not act as a waiver of any of such provisions.
6.1.2 Qualifying Insurers. All insurers and underwriters shall be satisfactory to Distributor, authorized to do business in the jurisdiction where the Products are to be provided, and have an A.M. Best rating of at least A- and a financial rating of at least VII.
6.1.3 Minimum Requirements. The types of coverage and minimum limits of insurance coverage described herein are a separate obligation of Company. Distributor reserves the right from time to time to require reasonable additions to or increases in such coverage that it deems necessary. Coverage under blanket policies may be extended by endorsements provided the insurers meet the requirement stipulated herein.
6.1.4 Evidence of Insurance Prior to Providing Products. Upon request, Company shall furnish Distributor with a Certificate of Insurance, policy copies including Additional Insured Endorsements, evidencing that the required minimum coverage is in effect and that such coverage comply with the requirements of this Article, and shall furnish replacement certificates and policy copies including Additional Insured Endorsements for all renewals of such insurance. Company shall provide complete copies of policies if requested by Distributor within 10 business days of such request.
6.1.5 Right to Withhold Payments. Distributor reserves the right to withhold payment to Company in the event of material noncompliance with the insurance requirements outlined in this Article.
6.1.6 Claims. Company shall report to Distributor as soon as practicable all accidents or occurrences resulting in injury, illness, or death to any person or entity, or damage to or loss of property of any person or entity, arising out of or during the course of Company providing Products to Distributor, and when requested shall furnish Distributor with copies of reports made by Company to Company’s insurer or to others of such accidents and occurrences. Distributor and its affiliates reserve the right to make a claim against Company and/or Company’s insurers for the account of themselves or others and shall be neither precluded nor denied the right to recover because of being named as additional insured under Distributer’s policies of insurance.
6.2 Coverage Types and Limits.
6.2.1 Minimum Limits. By requiring the insurance herein, Distributor does not represent that the required coverage and limits will necessarily be adequate to protect Company. The insurance requirements herein merely prescribe the minimum amounts and forms of insurance coverage that Company is required to maintain.
6.2.2 Commercial General Liability. Commercial General Liability insurance (“CGL”) written on an occurrence-based form including contractual liability, against claims for bodily injury, including without limitation sickness, disease, or death, broad form property damage, including loss of use resulting therefrom, personal and advertising injury, and products liability. The policy shall include coverage for cannabis goods, products, and accessories and shall not contain a vaping or health hazard exclusion. Cannabis shall include but not be limited to any good or product that consists of or contains any amount of Tetrahydrocannabinol (THC), Cannabidiol (CBD), or any other cannabinoid, regardless of whether any such THC, CBD, or cannabinoid is natural or synthetic. The CGL coverage minimum limits required shall be $5,000,000 each occurrence (bodily injury / property damage); $2,000,000 products/ completed operations aggregate; $1,000,000 personal and advertising injury (any one person); and $10,000,000 per occurrence aggregate (other than products / completed operations). The products and completed operations coverage under the CGL shall be maintained for the period of any applicable statute of limitations or five years following termination of this Agreement, whichever is longer.
6.2.3 Automobile Liability. Commercial Automobile liability insurance coverage for bodily injury and property damage arising out of the operation (including loading or unloading) of all owned, hired, borrowed, and non-owned vehicles used by Distributer, with minimum combined single limit of $1,000,000 each accident (bodily injury, death, or property damage). If Company transports by vehicle any hazardous waste, products, fluids, or materials that could damage the environment if released, this insurance shall also be endorsed to include coverage for claims under the Motor Carrier Act of 1980 (e.g., MCS-90 endorsement) and broadened pollution coverage (endorsement CA9948 or equivalent) resulting from the transportation of materials identified as hazardous during the performance of this Agreement.
6.2.4 Workers’ Compensation, Employers’ Liability. Workers’ Compensation insurance in the form and with limits prescribed by statutory law, and Employers’ Liability insurance with limits of at least $1,000,000 bodily injury each accident; $1,000,000 bodily injury each employee by disease; and $1,000,000 bodily injury each disease aggregate. All policies shall include “other states” coverage.
6.2.5 Umbrella/Excess Coverage. Umbrella or Excess Liability Insurance with minimum limit of $10,000,000. Coverage shall be excess of the required Commercial General Liability, Automobile Liability, and Workers’ Compensation and Employers’ Liability coverage required to be maintained herein.
Coverage shall include coverage at least as broad and on a following form basis in excess of the underlying minimum coverage required herein and shall specifically include Company’s contractual liability. Aggregate limits, if any, shall apply separately to each annual policy period to the extent applicable.
6.3 Coverage Terms and Conditions.
6.3.1 No Limitation. Notwithstanding anything in this Agreement to the contrary, Company agrees that should the insurance policies contemplated herein in any way (including, but not limited to, coverage for an “insured contract”) purport to limit Distributor’s coverage to any minimum limits or coverage amounts required by written contract, it is agreed that the minimum limits and/or coverage required in this Agreement shall automatically be amended to conform to the full and maximum limits and coverage of Company’s insurance policies.
6.3.2 Additional Insured. All Company’s insurance policies (except Workers’ Compensation) shall name the Distributor Group as an additional insured. The additional insured shall apply through the period of any applicable statute of limitations or five years following termination of this Agreement, whichever is longer.
6.3.3 Waiver of Subrogation. Company shall waive and cause its insurers to waive all rights of subrogation against Distributor, its affiliates, and insurers.
6.3.4 Primary and Non-Contributory. All insurance policies and coverage of Company shall, to the extent of the risks and liabilities assumed by Company in this Agreement, extend to and fully protect Distributor. The amount of such coverage, including excess and umbrella insurance, shall be primary to, and receive no contribution from, any other insurance or self-insurance programs maintained by or on behalf of or benefiting Distributor.
6.3.5 Cancellation of Insurance. Company shall provide Distributor at least 30 calendar days prior written notice by certified mail, return receipt requested, of any cancellation of, non-renewal, or material change as may adversely affect any insurance policy or coverage in force. If Company fails or neglects to obtain or renew the required insurance and furnish evidence thereof to Distributor with an acceptable Certificate of Insurance form, Distributor shall have the right (but not the obligation) without any notice and cure period to (a) procure such insurance and reduce any amount payable to Company by the cost thereof, or alternatively, collect such amount from Company, or (b) deem such failure or neglect on the part of Company as a material breach of the Agreement. Company shall not intentionally do, allow, or permit anything to be done that will affect, impair, or contravene any policies of insurance that may be in force hereunder. Company shall be solely responsible for and promptly pay when due, all premiums for all such insurance.
6.3.6 Self-Insurance and Retentions. Company shall be responsible to pay any deductibles or retentions, including Distributor’s deductibles or retentions, under any insurance policies maintained as required in this Article, and for all losses, damages, or liabilities resulting from Company’s failure to provide or maintain the insurance required in this Article. Deductible and self-insured retention amounts for all required insurance will be commercially reasonable and subject to Distributor’s reasonable approval. Deductibles and self-insured retention amounts shall be disclosed on the certificate of insurance and subject to Distributor’s approval.
Article 7 – Limitation of Liability
7.1 TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR LOST PROFITS, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL, EXEMPLARY, OR INDIRECT DAMAGES OF ANY KIND, EVEN IF THAT PARTY HAD BEEN ADVISED OF THESE TYPES OF DAMAGES IN ADVANCE OR IF THESE TYPES OF DAMAGES WERE FORESEEABLE. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL, CUMULATIVE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED ON CONTRACT, IN TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY DISTRIBUTOR DURING THE PREVIOUS TWELVE MONTHS PLUS REASONABLE ATTORNEY FEES AND COSTS. THE LIMITATIONS ON AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL NOT APPLY TO DAMAGES THAT ARISE FROM EITHER PARTY’S FRAUD, BAD FAITH, FAILURE TO COMPLY WITH APPLICABLE LAWS, OBLIGATIONS UNDER SECTION 4.2, AND ARTICLE 5 OF THIS AGREEMENT. THE LIMITATIONS ON AND EXCLUSIONS OF LIABILITY IN THIS SECTION ALSO WILL NOT APPLY TO ANY LOSSES COVERED BY THE INSURANCE THAT IS REQUIRED UNDER ARTICLE VI OF THIS AGREEMENT.
Article 8 – Dispute Resolution
8.1 Arbitration and Governing Law. The Parties agree that any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”). Any such controversy or claim shall be decided by a single arbitrator. Within 15 days of the filing of an arbitration claim, the Parties shall attempt to agree to an arbitrator. In the absence of an agreement within 15 days from the claim being filed, the arbitrator shall be selected pursuant to the AAA Rules. The Parties agree and stipulate that this agreement shall be exclusively governed by and interpreted under the Federal Arbitration Act. The arbitration proceeding shall be conducted in Little Rock, Arkansas and, unless pre-empted or controlled by federal law or regulations, including the Federal Arbitration Act, the law of Arkansas shall be applied by the arbitrator, without regard to principles of conflicts of laws. Judgment upon the award rendered by the arbitrator may be entered in any court having subject matter jurisdiction thereof. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant; provided, however, that the arbitrator shall have no authority to award consequential damages, punitive damages, or class action relief. It is expressly agreed by the Parties that arbitration shall be limited to individual claims and that there shall be no right or authority for any claims to be arbitrated on a class action or multi-plaintiff basis. The arbitrator shall not have the authority to fashion a proceeding as a class or collective action or to award relief to a group or class of employees in one arbitration proceeding. All fees and expenses of the arbitration shall be split equally between the Parties. Each Party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proof. Provided, however, that at the conclusion of the arbitration, the arbitrator shall award the prevailing Party such sums as shall be deemed proper for the expenses associated with the arbitration, including arbitration fees and attorneys’ fees. The Parties agree that the arbitrator shall decide all gateway questions of arbitrability, including whether the Parties have agreed to arbitrate, whether the arbitration agreement is valid and enforceable, and whether the Agreement covers a particular controversy.
Article 9 – Miscellaneous
9.1 Force Majeure. Neither Party shall be held liable or responsible to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in fulfilling or performing any term of this Agreement when such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including fire, floods, earthquakes, natural disasters, embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, acts of God, pandemic or epidemic, omissions or delays in acting by any governmental authority, provided that such Party promptly notifies the other Party and resumes performance as soon as possible.
9.2 Assignment. This Agreement and the rights and obligations hereunder shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Company may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of Distributor, provided Company may assign its rights hereunder without such consent to (a) any person or entity that acquires all or substantially all its business or assets or the business and assets of the applicable business division, or (b) an affiliate of Company. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve the assigning or delegating Party of any of its obligations hereunder. Except as set forth in Article 5, 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
9.3 Waiver. Except as specifically provided for herein, the waiver from time to time by either Party of any right or failure to exercise any remedy shall not operate or be construed as a continuing waiver of the same right or remedy or of any other of such Party’s rights or remedies provided under this Agreement. All waivers must be in writing.
9.4 Relationship of the Parties. The relationship of Distributor and Company under this Agreement is that of independent contractors, and neither Party nor its employees or agents shall be deemed to be employees or agents of the other for any purpose or under any circumstances. No partnership, joint venture, alliance, fiduciary, or any relationship other than that of independent contractors is created hereby, expressly or by implication. Neither Party has any authority under this Agreement 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.
9.5 Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void, or unenforceable, then such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
9.6 Entire Agreement. This Agreement (together with the purchase order) sets forth all the agreements and understandings between the Parties with respect to the subject matter hereof and supersedes and terminates all prior agreements and understandings between the Parties with respect to the subject matter hereof.
9.7 Construction. The provisions of this Agreement shall be construed and interpreted fairly to both Parties without regard to which Party drafted the same. Whenever the context requires, words used in the singular shall be construed to mean or include the plural and vice versa, and pronouns of any gender shall be deemed to include and designate the masculine, feminine, or neuter gender. The word “including” and words of similar import when used in this Agreement means “including without limitation. The headings are for convenience only and shall have no substantive meaning or shall not impact the meaning or interpretation of this Agreement.
9.8 Electronic Signatures and Affirmation. Each Party agrees that any purchase order may be affirmed by electronic signatures of the Parties, which are intended to authenticate any such writing and shall have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol, or process attached to or logically associated with a record and executed and adopted by a Party with the intent to sign such record, including facsimile or email electronic signatures.
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