Orders and Sales Agreements.
Payment Terms.
Security Interest in Goods. Buyer hereby grants Seller a security interest in all Goods purchased by Buyer from Seller (including Goods and Non-Conforming Goods) and the proceeds therefrom to secure Buyer’s payment obligations under these Terms and Conditions. Seller may file a financing statement for such security interest and Buyer shall execute any such statement or other documentation necessary to perfect Seller’s security interest in such Goods.
No Buyer Right to Offset/Recoup. Buyer shall not, and acknowledges that it will have no right, under these Terms and Conditions, any Pre-Order or Sales Agreement, any purchase order, any other agreement, document or law, or any unexpired master supply agreement by and between Buyer and Seller, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller, whether under these Terms and Conditions or otherwise, against any other amount owed (or to become due and owing) to it by Seller, whether relating to Seller’s breach or non-performance under these Terms and Conditions, any Pre-Order or Sales Agreement, any purchase order, any other agreement, document or law, or any unexpired master supply agreement by and between Buyer and Seller.
Delivery and Shipping Costs.
Inspection and Rejection of Goods/Services. Buyer shall inspect the Goods and/or work product resulting from the Services within three (3) days of receipt (“Inspection Period”) of the Goods and/or work product resulting from the Services; Buyer will be deemed to have accepted the Goods and/or work product resulting from the Services unless it notifies Seller, in writing, during the Inspection Period, that Buyer believes some or all of the Goods and/or work product resulting from the Services (i) do not conform to the make/model number, SKU, or UPC listed in the Pre-Order or Sales Agreement or Buyer’s purchase order (as applicable) or (ii) do no fully conform to the design specifications provided for in the Pre-Order or Sales Agreement or Buyer’s purchase order (as applicable) (collectively, “Non-Conforming Goods/Services”). At the time of such notice, Buyer shall provide to Seller written evidence or other documentation to support the assertion that the Goods and/or work product resulting from the Services delivered are Non-Conforming Goods/Services. If Buyer timely notifies Seller of any Non-Conforming Goods/Services and provides such supporting evidence or documentation, Seller shall determine, in its sole discretion, whether the Goods and/or work product resulting from the Services are Non-Conforming Goods/Services. If Seller determines the Goods and/or work product resulting from the Services are Non-Conforming Goods/Services, it shall, in its sole discretion: (x) replace such Non-Conforming Goods/Services with conforming Goods and/or conforming work product resulting from the Services or (y) refund the invoiced price for such Non-Conforming Goods/Services, together with all shipping and handling expenses incurred by Buyer in connection therewith. Upon Seller’s request, Buyer shall ship at its expense and risk of loss, the Non-Conforming Goods/Services to the location specified by Seller. Seller shall not be obligated to refund or replace the Non-Conforming Goods/Services until it has received or inspected the Non-Conforming Goods/Services. All Goods and/or Services made or performed to special specifications in the Pre-Order or Sales Agreement or Buyer’s purchase order are deemed to be inspected and accepted before shipment is made and may not be canceled by Buyer. Seller shall not be responsible or liable for the adequacy or performance of design or specifications furnished by Buyer.
BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THESE TERMS AND CONDITIONS ARE BUYER’S EXCLUSIVE REMEDIES FOR DELIVERY OF NON-CONFORMING GOODS/SERVICES. EXCEPT AS PROVIDED HEREIN, BUYER HAS NO RIGHT TO RETURN GOODS OR SERVICES PURCHASED FROM SELLER.
Storage.
Taxes and Other Exclusions from Price. Unless otherwise specified on the Pre-Order or Sales Agreement (i) if the Goods are manufactured outside of the United States, all duties, import fees, tariffs, customs charges and related expenses of importing the Goods shall be charged separately to, and shall be for the account of Buyer and (ii) in any event, the amount of all present and future sales, revenue, excise, and other taxes applicable to the Goods shall be added to the purchase price and shall be paid by Buyer, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
Quantity Variations. Unless otherwise provided on a Pre-Order or Sales Agreement, overruns of up to ten (10%) percent and underruns of up to five percent (5%) of the total amount of printed material product designated on the Pre-Order or Sales Agreement shall conclusively be deemed to constitute fulfillment of the applicable Pre-Order or Sales Agreement, provided that Seller shall invoice Buyer for the amount of Goods actually received by Buyer. These standard and acceptable yield differentials should be taken into account by Buyer and its agents when placing printed material order quantities with Seller.
Cancellation of or Change to Pre-Order/Locked Order.
Seller’s Limited Warranties for Services. Seller warrants that it shall perform the Services: (i) in accordance with the terms and subject to the conditions set forth in the respective Pre-Order or Sales Agreement, as applicable; and (ii) in a timely and professional manner in accordance with generally recognized industry standards for similar services.
Manufacturer Warranties Only for Goods. Buyer acknowledges that Seller is an independent distributor or sales agent on behalf of various manufacturers and does not manufacture the Goods. Accordingly, the only warranty provided with respect to the Goods comes from the manufacturer, the terms of which may be obtained from Seller. At the request of Buyer, Seller may provide reasonable assistance to Buyer in processing warranty claims with respect to the manufacturer’s Goods.
Limitation of Warranties.
EXCEPT FOR AS EXPLICITLY STATED HEREIN, SELLER, FOR ITSELF, MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER AN IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE, WARRANTY OF TITLE OR OTHERWISE WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
NOTE: IT IS BUYER’S RESPONSIBILITY TO DETERMINE THE SUITABILITY OF THE GOODS AND/OR SERVICES FOR BUYER’S PRODUCT, AND THE ADEQUACY OF THE MANUFACTURER’S AND SELLER’S WARRANTIES. BUYER AGREES AND ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS EXPLICITLY PROVIDED HEREIN.
Notwithstanding anything to the contrary herein, Seller shall not be liable for a breach of the warranties forth herein if: (i) Buyer makes any further use of such Goods or Services after giving such notice; (ii) the breach arises because Buyer failed to follow Seller’s and the manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
Limitation on Damages. In no event shall Seller be liable to Buyer for consequential or incidental damages, loss of profit, loss of business, loss of business opportunity or damage to the goodwill or reputation of any party. Seller’s liability to Buyer, for any reason, whether for breach of contract, indemnity, tort (including negligence), or otherwise, shall not exceed the price of the Goods and/or Services or portion of such Goods and/or Services which gives rise to the claim and Buyer shall waive any claim for amounts in excess of that amount.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS OR SERVICES IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS OR SERVICES.
No legal action shall be brought by Buyer against Seller for any claim with respect to any Goods or Services sold by Seller to Buyer more than one (1) year after the performance of such Services or delivery of such Goods to Buyer. It is agreed that any cause of action with respect to such Goods will accrue on the date of delivery of such Goods and with respect to such Services will accrue on the date that the work product resulting from the Services is delivered to Buyer.
Indemnification by Buyer. Buyer shall indemnify, defend and save harmless Seller and its representatives, officers, directors, employees, agents, successors and permitted assigns from and against any and all actions, claims, loss, damages, deficiencies, liability (including personal injury claims), costs or expenses (including reasonable legal expenses and attorneys’ fees), judgments, settlements, interest, awards, penalties, fines, fees and costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers that relate to, arise out or result from either (a) the modification, alteration or decoration in any way of any Goods or work product resulting from the Services purchased as a result of the Pre-Order, Sales Agreement or purchase order, (b) the improper handling or storage of the Goods or work product resulting from the Services by Buyer or its employees, representatives, agents, assignees or subsequent users, (c) the use of the Goods or work product resulting from the Services for anything other than their accepted commercial purpose, (d) acts of negligence or misconduct or more culpable act or omission by Buyer or its agents, employees or subcontractors (including any recklessness or willful misconduct) in connection with the performance of its obligations under these Terms and Conditions, or (e) failure by Buyer or its agents, employees or subcontractors to comply with any applicable laws.
Sketches, Plates and Engravings. All designs, sketches and original work not provided by Buyer will remain the property of Seller or the manufacturer of the Goods reflected herein. Unless written arrangements are made to the contrary, all type may be distributed and lithographic, photogravure or other work effaced immediately after an order is executed. If arrangements are made to the contrary, they shall include rental payments unless another specific arrangement has been made.
Dies and Molds. Dies, molds, tools, printing plates, negatives, blocks and engravings provided by Seller or the manufacturer of the Goods covered by the Pre-Order or Sales Agreement shall remain the property of Seller, whether or not a charge is imposed on Buyer in respect of them. Seller shall advise Buyer of when normal wear and tear has made major maintenance or tool replacement necessary for continued satisfactory production. A charge may be made in connection with the cost of such maintenance or replacement and the tools concerned will remain the property of Seller.
Cans. All cans are sold on an “As Is” basis. Manufacturer and Seller are not responsible for the taste and smell of the product after the can has been filled. For printed cans, manufacturers require samples of the product that is going into the can for testing purposes. If manufacturer approves the liquid going into the can, any deviation from that formulation needs to be resubmitted for retesting. For cider, sour beer, certain carbonated soft drinks (CSDs) and beers that contain citrus, manufacturers will no longer provide a warranty. Please note that because of the fragile nature of cans and for the need for them to be handled and transported, there is a standard and acceptable 2% yield loss that should be taken into account when placing order quantities.
Brite Can and Sleeved Brite Can Waiver and Release. To the extent that any of the Goods supplied pursuant to the Pre-Order or Sales Agreement are aluminum, unlabeled beverage cans and can ends (collectively, “Brite Cans”) or sleeved Brite Cans (collectively, “Sleeved Brite Cans”), Buyer acknowledges that except as otherwise stated in the Pre-Order or Sales Agreement, Seller does not offer a warranty for the Brite Cans or Sleeved Brite Cans and Seller has not performed any testing on the suitability of the Brite Cans or Sleeved Brite Cans for packaging of Buyer’s fluids, as Seller cannot control the formula of Buyer’s fluids that will be placed into the Brite Cans or Sleeved Brite Cans, and that Seller has no duty to do so; rather, Buyer alone has the duty to determine the suitability of the Brite Cans or Sleeved Brite Cans to hold Buyer’s fluids. Buyer has evaluated any perceived risk and, except as otherwise provided for herein, Buyer expressly, knowingly and voluntarily waives any and all rights it may have against Seller with respect to loss or damage arising after the delivery and acceptance of the Brite Cans or Sleeved Brite Cans to Seller. Buyer hereby releases Seller from and agrees that Seller will not have any direct or indirect responsibility or liability for any physical or economic damage or bodily injury to Buyer, its employees or any such parties, including, but not limited to, the customers of the Buyer and the retail public, arising after the delivery of the Brite Cans or Sleeved Brite Cans to Buyer. Buyer further waives and releases any and all rights under Section 1542 of the California Civil Code, or any analogous state, local, or federal law, that Buyer may have with respect to Zion Packaging that are related in any way to or arising from the Brite Cans or Sleeved Brite Cans after the delivery of the Brite Cans or Sleeved Brite Cans to Buyer. Buyer understands that this means that Buyer is waiving unknown claims that are related in any way to or arising from the Brite Cans after the delivery of the Brite Cans or Sleeved Brite Cans to Buyer. California Civil Code Section 1542 reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
Buyer’s Requirements, Printing and Construction. Alterations from original copy on and after first proof, including alterations in style or construction will be charged extra. Proofs of all work may be submitted for Buyer’s approval and no responsibility will be accepted for any errors in proofs which may be approved by Buyer. Nor shall Seller be liable for any spelling, font, or content errors in work product produced by Services or the Goods if such errors were included in the specifications provided by Buyer for the respective Pre-Order, Sales Agreement or purchase order. Seller shall have no liability to Buyer nor shall it be a breach of any warranties herein in the event that Buyer’s artwork fails to meet applicable federal, state or local laws or regulations. For the avoidance of doubt, Buyer shall be wholly responsible (in respect of copyright, trademark, design, all common law and statutory right and otherwise whatsoever) for any matter of work which Buyer instructs Seller to print or perform and for any design, sketch, drawing, painting, construction work or other thing which Buyer supplies and or instructs Seller to supply or execute and for all claims by third parties arising therefrom and Buyer shall defend and keep Seller and the manufacturer of Goods covered by the Pre-Order, Sales Agreement or purchase order indemnified against all proceedings, claims, costs, expenses and liability whatsoever in respect thereof.
Pallets. Except as otherwise provided for on the Pre-Order or Sales Agreement, pallets supplied by Seller will be billed to Buyer and are non-returnable and non-refundable.
Materials. While Seller and the manufacturer of Goods covered by the Pre-Order, Sales Agreement or purchase order will make commercially reasonable efforts to supply material in accordance with the samples submitted or quoted for, there is no guaranty that the materials will be identical. If sample containers are submitted by Seller to Buyer for approval, Buyer should confirm dimensions by the actual packing thereof prior to the approval by Buyer.
Price. Prices are subject to change without notice. Seller reserves the right to correct prices made in error, with or without notice.
Buyer’s Property. Buyer’s property when supplied to Seller or the manufacturer of Goods covered by the Pre-Order, Sales Agreement or purchase order will be held or worked on at Buyer’s risk. While every care will be taken to secure the best results where materials are supplied by Buyer, Seller assumes no responsibility for imperfect work caused by defects in or unsuitability of materials so supplied by Buyer.
Marketing License. By Buyer’s submission of a Pre-Order or Sales Agreement or Buyer’s purchase order (or execution of a Separate Agreement with) to Seller, Buyer hereby irrevocably permits, authorizes, grants, and licenses on a non-exclusive basis to Seller and its affiliates, successors, and assigns, and their respective advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them, the rights to display, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, and otherwise use, Buyer’s name, logos, trademarks, testimonials and all materials created by or on behalf of Seller that incorporate any of the foregoing in perpetuity throughout the universe in any medium or format whatsoever now existing or hereafter created, including but not limited to, in and on magazines, brochures, and other print publications, electronic, magnetic, and optical media, display, point-of-sale, and other advertising and promotional materials, press releases, and the internet and other digital transmission or delivery methods, on any platform for advertising, public relations, publicity, packaging, and promotion of Seller and its affiliates and their businesses, products, and services, without further consent from or royalty, payment, or other compensation to Buyer.
Compliance with Laws. Buyer shall at all times comply with all laws applicable to these Terms and Conditions, Buyer’s performance of its obligations hereunder and Buyer’s use or sale of the Goods and/or work product resulting from the Services. Without limiting the generality of the foregoing, Buyer shall (i) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase or use of the Goods and/or work product resulting from the Services and (b) not engage in any activity or transaction involving the Goods and/or work product resulting from the Services, by way of shipment, use or otherwise that violates any law.
California Prop 65. It is Buyer’s responsibility to understand the requirements of California’s Proposition 65 if it has actual or potential distribution into California. Seller will, upon Buyer’s request, supply a beverage can and end with an internal liner that is BPA Non-Intent (“BPA-NI”) in compliance with California Proposition 65. Should Buyer elect to continue to purchase cans, bottles and ends for distribution into California which utilize an epoxy based internal liner that includes BPA, Seller will supply cans and ends in accordance with Buyer’s direction, however these purchases will be at Buyer’s sole risk and Seller expressly disclaims all warranties and assumes no liability arising with respect to Proposition 65 as a result of supply of these Goods. If Buyer intends to distribute Goods in the state of California, Buyer should refer to the guidelines for compliance with California Proposition 65.
Severability. If any term or provision of this Agreement shall to any extent be invalid, illegal or unenforceable, the remainder of this agreement shall not be affected thereby, and each term or provision of this agreement shall be valid and enforceable to the fullest extent permitted by law.
Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to be in breach of these Terms of Conditions, for any loss or damage of any kind resulting from delay or inability to deliver when and to the extent that such failure or delay is caused by or results from acts beyond its control, including but not limited to acts of God, acts of Buyer, acts of military or governmental authorities, fires, strikes, labor stoppages or slowdowns, other industrial disturbances, flood, storm, explosion, failure of power, epidemic, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, insurrection or other civil unrest, freight embargoes or blockades in effect on or after the date of the Pre-Order or purchase order or the “Effective Date” of the Sales Agreement, national or regional emergency, shortage or delays in transportation or availability of railcars, court injunction, domestic or foreign government order or requirement, law or actions, inability to obtain necessary labor, fuel, materials, components or services through Seller’s usual and regular sources at usual and regular prices or other similar events beyond the reasonable control of the Seller. Seller reserves the right to adjust prices due to delays, shortages or increased costs of materials or transportation.
Non-Assignment. Buyer may not assign any of its rights or delegate any of its obligations under the Pre-Order or Sales Agreement or purchase order without the prior written consent of Seller, which consent shall not be unreasonably withheld. Seller may assign any of its rights or delegate any of its obligations to any person acquiring all or substantially all of Seller’s assets. Any purported assignment or delegation in violation of these Terms and Conditions is null and void. No assignment or delegation relieves the assigning or delegating party of any of its obligations under these Terms and Conditions.
No Third-Party Beneficiaries. These Terms and Conditions and the Pre-Order or Sales Agreement benefits solely the parties to these Terms and Conditions and the Pre-Order, Sales Agreement or purchase order and their respective permitted successors and assigns and nothing in these Terms and Conditions or the Pre-Order, Sales Agreement or purchase order, express or implied, confers on any other person any legal or equitable right, benefit, remedy of any nature whatsoever under or by reason of these Terms and Conditions and the Pre-Order, Sales Agreement or purchase order; provided, that Seller’s representatives, officers, directors, employees, agents, successors and permitted assigns shall be designated as third-party beneficiaries of Buyer’s indemnity provisions contained herein having the right to enforce such indemnity provisions against Buyer.
Governing Law; Venue. THESE TERMS SHALL BE CONSTRUED UNDER CALIFORNIA LAW WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF CALIFORNIA. BUYER AND SELLER AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE SALE OF GOODS OR SERVICES BY SELLER UNDER THESE TERMS AND CONDITIONS. ANY ACTION BROUGHT TO ENFORCE OR INTERPRET ANY PART OF THE AGREEMENT BETWEEN SELLER AND BUYER OR THE RIGHTS OR OBLIGATIONS OF THE PARTIES SHALL BE BROUGHT EXCLUSIVELY IN THE SUPERIOR COURT OF THE COUNTY OF CONTRA COSTA, STATE OF CALIFORNIA, OR TO THE EXTENT FEDERAL JURISDICTION EXISTS, IN THE FEDERAL COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA. EACH OF THE PARTIES HEREBY CONSENTS TO THE PERSONAL JURISDICTION OF SUCH COURTS, AND WAIVES ANY OBJECTION BASED ON VENUE OR INCONVENIENT FORUM.
Dispute Resolution.
Mediation. If a dispute between the parties hereto is not resolved within thirty (30) days from the date that either party has notified the other that such dispute exists, then either party may give notice to the other party that the dispute shall be submitted to mediation with a mediator acceptable to both parties, and the parties shall, for a sixty (60) day period from the receipt of such notice, seek in good faith to resolve such dispute in mediation. If the parties are not able to resolve the dispute in mediation, then such dispute shall be referred to binding arbitration, except to the extent that injunctive relief is available to a party hereto.
Arbitration. Any dispute submitted to arbitration pursuant to this Section shall be determined by arbitration in accordance with the rules of the Judicial, Arbitration and Mediation Services (JAMS). The parties shall select a single arbitrator to hear the matter; provided that if the parties are unable to agree, the arbitrator shall be selected by JAMS. The arbitration shall be held in Contra Costa County, California. Any decision made by the arbitrator shall be final, binding and conclusive on the parties and each party to the arbitration shall be entitled to enforce such decision to the fullest extent permitted by law and entered in any court of competent jurisdiction.
Litigation Costs. If any party institutes any legal suit, action, or proceeding against the other party to enforce these Terms and Conditions and/or the terms of a Pre-Order or Sales Agreement, as applicable (or obtain any other remedy regarding any breach of the foregoing), including, but not limited to, contract, equity, tort, fraud, and statutory claims, the prevailing party in a final, non-appealable judgment regarding the suit, action, or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting or defending the suit, action, or proceeding, including reasonable attorneys’ fees and expenses, court costs, and costs of mediation, cost of arbitration, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post-judgment proceedings)..
Entire Agreement. This Agreement constitutes the entire contract between Buyer and Seller relating to the Goods or Services identified herein. No modifications hereof shall be binding upon Seller unless in writing and signed by Seller’s duly authorized representative and no modification shall be affected by Seller’s acknowledgement or acceptance of Buyer’s purchase order forms containing different provisions. Trade usage shall neither be applicable nor relevant to this Agreement, nor be used in any manner whatsoever to explain, qualify or supplement any of the provisions hereof. No waiver by either party of default shall be deemed a waiver of any subsequent default. Any waiver authorized on one occasion is effective only in that instance and only for the purpose(s) stated and does not operate as a waiver on any future occasion. Neither of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from these Terms and Conditions: (i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission or course of dealing between Buyer and Seller. All waivers shall be in writing and executed by authorized representatives of both Buyer and Seller to be effective. Unless superseded by modified terms and conditions or an unexpired master supply agreement (if any) by and between Buyer and Seller, the terms set forth herein shall apply to all purchases by Buyer.
Confidentiality. Seller and Buyer each agree that from time to time either party may disclose or make available to the other party Confidential Information. "Confidential Information" as used herein shall mean information about its business affairs, goods and services, forecasts, confidential information and materials relating to intellectual property rights, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as these Terms and Conditions, the Buyer’s purchase order (if applicable), the Pre-Order or Sales Agreement (as applicable) and the terms of the master supply agreement, if any, executed between the Buyer and the Seller, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential.”
Seller and Buyer each agree that they will (i) protect and safeguard the confidentiality of the other party’s Confidential Information with at least the same degree of care as the non-disclosing party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the disclosing party’s Confidential Information or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms and Conditions; and (iii) not disclose any Confidential Information to any person, except to the non-disclosing party’s representatives who need to know the Confidential Information to assist the non-disclosing party, or act on its behalf, to exercise its rights or perform its obligations under these Terms and Conditions. The non-disclosing party shall be responsible for any breach of these obligations caused by any of its representatives. At any time, pursuant to the disclosing party’s written request, the non-disclosing party and its representatives shall promptly return or destroy (as directed by the disclosing party in its sole discretion) all Confidential Information and copies thereof.