Vendor Terms & Conditions
1. Terms and Acceptance
Only the occurrence of one of the following events shall constitute acceptance of the terms and conditions hereof by your company (“Supplier”): (a) Supplier’s execution of this purchase order (“Order”) and the receipt thereof by our company (“Distributor”); or (b) Supplier’s commencement of performance on account of this Order (including, without limitation, a promise to ship or the shipment of conforming or non-conforming Products); provided, however, that in the event Distributor does not receive notice of Supplier’s commencement of such performance within a reasonable time, Distributor may treat its offer made hereunder as having lapsed before acceptance. The offer contained in this Order is made on the terms and conditions stated herein and no others. Accordingly, Supplier’s acceptance of this Order is expressly limited to the terms and conditions hereof. Notice of objection is hereby given to any proposed term or condition or any alteration whether perceived as major or minor in nature. No additions, subtractions, or other modification of the terms and conditions of this Order shall be binding upon Distributor unless expressly accepted in writing by Distributor.
(a) The term “Person” means any natural person, corporation, division of a corporation, Supplier, Alternate Supplier, brewer, partnership, proprietorship, joint venture, association, trust, estate, foundation or any other entity, whether or not incorporated, and any governmental authority, unit or agency. (b) The term “Products” means (i) the brands of beverages specified on the face of this Order together with all brand extensions, enhancements and modifications to, and changes in ingredients of, any of such beverages, irrespective of whether or not the term “new” or “improved” or words of similar import are added thereto or if Supplier uses a different product code or name therefor; and (ii) any existing products and new products in any way associated with any of the Marks to the extent Distributor agrees to distribute those products. (c) The term “Territory” means the geographical area within which Distributor distributes the Products, or as otherwise mutually agreed in writing between Supplier and Distributor. (d) The term “Marks” means those trademarks, trade names, copyrighted materials, logos, slogans, designs and distinctive bottles, advertising and packaging which are used, at any time during the term hereof, in connection with the production, sale, marketing or distribution of Products or to otherwise identify the Products (including, without limitation, those set forth herein) and any enhancements, modifications or derivatives thereof and changes thereto.
3. Delivery, Risk of Loss and Related Matters
(a) With respect to this Order, Supplier shall deliver conforming Products on the delivery dates specified herein. Such delivery dates will comply with Supplier’s applicable lead time requirements made available for its most preferred wholesalers on the date this Order is issued. Products will not be delivered sooner than three (3) days prior to the stated delivery date or more than five (5) days thereafter. This Order may be issued electronically or in writing. (b) Should Distributor desire to cancel this Order or any other purchase orders submitted to Supplier, Distributor will notify Supplier and Supplier will make good faith efforts to redirect the Products covered hereunder to another distributor. If Supplier is unable to do so despite such efforts, shipment of the Products pursuant to this Order will be made to Distributor who will make payment therefor in accordance with the provisions hereunder. (c) Products ordered pursuant to this Order shall be tendered by Supplier in a single delivery. Deliveries will be made in accordance with the mercantile symbol or trade term, as the case may be, set forth on the face hereof.
4. Purchase Price and Payment Terms
(a) Subject to paragraph 14(b), the price payable for Products is set forth on the face of this Order. Distributor shall pay each invoice within thirty (30) days after receipt, at Distributor’s warehouse, of the Products to which such invoice pertains. Distributor may make such payment by company check. (b) The wholesale price charged for Products pursuant to paragraph 4(a) is not subject to increase and includes all transportation and shipping charges, crating, packaging, insurance premiums and all federal, state and local sales, use, excise and other taxes, duties and governmental charges imposed on or with respect to the sale or transport of such Products to Distributor.
Within sixty (60) days after Supplier duly tenders delivery of the Products ordered pursuant hereto, Distributor shall have the right, but not the obligation, to inspect the Products before accepting them. Inspections performed by Distributor will not constitute acceptance nor relieve Supplier of its obligation to tender conforming Products in accordance herewith.
All Products delivered pursuant hereto shall (i) be placed in containers conforming to Distributor’s requests, or in the absence of such requests, in recognized commercial containers suitable for the Products for domestic or international shipping, as the case may be, with such containers numbered and labeled with the order number, stock number, contents, and weight; and (ii) contain an itemized packing slip. Distributor’s count or weight shall be final and conclusive on shipments of Products not accompanied by appropriate packing slip.
7. Representations and Warranties of Supplier
Supplier hereby represents and warrants to Distributor that on the date of the issuance of this Order, and upon the delivery and acceptance of the Products which are the subject of this Order: (a) all Products sold by Supplier to Distributor shall be manufactured, bottled, packaged and labeled in conformity with all applicable federal, state and local laws, rules and regulations of the United States (including, without limitation, the Territory) and the country in which each Product is produced; (b) Products delivered pursuant hereto are fit for human consumption, are merchantable, of good average quality, and are free from any and all defects; and (c) Supplier owns or has the right to use all intellectual property rights relating to the Products, including, without limitation, all Marks, free from any claims concerning infringement or the like, has the right to grant a license to Distributor to use the Marks, and the use of such intellectual property in connection with the sale of the Products by Distributor will not subject Distributor to any such infringement claims.
8. Non-Conformities; Remedies; Waivers and Related Matters
(a) The occurrence of any one or more of the following events shall constitute an “Event of Default”: (i) tendering delivery of any Products which fail to conform in all respects to any of the provisions hereof (“Non-conforming Products”); (ii) Supplier’s breach of or failure to perform any of its obligations under this Order; or (iii) Supplier’s breach or misrepresentation of any representation or warranty made by Supplier hereunder. (b) Upon the occurrence of an Event of Default, Distributor shall be entitled, but shall not be required, to exercise all, any one or any number of the following rights and remedies: (i) with respect to late deliveries, Distributor may extend the time for delivery, in which case such Products shall be shipped in the manner specified by Distributor, including, without limitation, shipment by air. Any additional expenses incurred for expedited shipping shall be paid by Supplier; (ii) with respect to Non-conforming Products, Distributor shall have the right to obtain replacement Products from Supplier. Such Products shall be replaced with Products which are in strict compliance with the provisions hereof; (iii) reject or revoke acceptance, as the case may be, of all or any portion of the shipment of Products containing any Non-conforming Products; and (iv) exercise any other rights and remedies specified in paragraphs 10, 15 and 16. Distributor shall exercise any one or more of the foregoing rights and remedies by giving written notice to Supplier of its intention to do so. Distributor shall not be liable to Supplier on account of exercising any such rights or remedies. Supplier hereby acknowledges and agrees that the occurrence of an Event of Default shall constitute a substantial impairment of value to Distributor of the particular shipment in question, this entire Order, any then pending Other Orders and, if applicable, the Distribution Relationship, so as to entitle Distributor to exercise any one or all of the remedies specified in this Order and Supplier hereby waives its right to cure the default in question.
Supplier hereby agrees to indemnify, protect and hold harmless Distributor, its directors, officers, shareholders, employees, agents and affiliates (Distributor and each such persons being collectively referred to as the “Indemnified Parties”), from and against any and all liabilities, losses, claims, obligations, damages, actions, proceedings, costs, expenses (including, without limitation, reasonable legal fees) and judgments (collectively, “Damages”) of whatsoever kind and nature, imposed upon, incurred by or asserted, threatened or awarded against any of the Indemnified Parties directly or indirectly arising out of, relating to, or resulting from: (i) the breach of any representation or warranty made by Supplier to Distributor under this Order concerning the quality or attributes of the Products; (ii) Distributor’s use of the Marks in the Territory; (iii) the quality or condition of or inherent defect in the Products at that time of delivery to Distributor; and (iv) any injury or damage to person or property as a result of the consumption of the Products. Such indemnity shall include, but shall not be limited to, reasonable expenses, attorneys’ fees, court costs, investigations, proceedings, litigation and the settlement of any such claim, provided, however, that Supplier shall not be liable pursuant to the foregoing indemnification provision in respect of Damages that a court of competent jurisdiction shall have determined by final judgment (not subject to further appeal) to be primarily and directly the result of the willful misfeasance or gross negligence of any of the Indemnified Parties.
Any and all amounts due for indemnity hereunder shall be promptly paid by the Supplier as Damages are incurred, and in any event within thirty (30) days after demand therefore. Payments will be made in accordance with the instructions of the Indemnified Party in question at the time.
10. Cumulative Remedies
Subject to paragraph 16, all of Distributor’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law. Failure by Distributor to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by Distributor will be effective unless it is in writing and signed by Distributor, and then only to the extent specifically stated.
11. Miscellaneous Provisions
(a) Notices. All notices permitted, required or provided for by this Order shall be made in writing, and shall be deemed adequately delivered if delivered by hand or by the mailing of the notice in the U.S. mail, pre-paid certified or registered mail, return receipt requested, or by facsimile or by a recognized courier service that regularly maintains records of its pick-ups and deliveries, to the parties at their respective addresses set forth above or to any other address designated by a party hereto by written notice of such address change. Notices delivered by mail shall be deemed given when deposited in a U.S. mailbox or delivered to a U.S. post office and it will be deemed received two (2) days thereafter, where the recipient’s address is located in the United States. Notices sent by courier service will be deemed given when deposited with the courier service and it will be deemed received the next day, where the recipient’s address is located in the United States, and three (3) days thereafter, where the recipient’s address is located outside the United States. (b) Modification or Amendment. This Order may not be modified or amended except by an instrument in writing signed by the party or parties against whom enforcement is sought. For purposes of this Agreement, a modification includes, without limitation, a change in the competitive circumstances under which this Agreement was entered into and is performed which is caused by Supplier without fault on the part of Distributor. (c) Invalidity of Provision. Any term or provision of this Order which is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this Order or affecting the validity or enforceability of any of the terms or provisions of this Order in any other jurisdiction. (d) Governing Law. All questions pertaining to the validity, construction, execution and performance of this Order shall be construed and governed in accordance with the laws of the United States of America, State of New York, without giving effect to the principles of (i) comity of nations or (ii) conflicts or choice of law provisions thereof, and this Order shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods. Any actions or proceedings commenced in connection with this Order shall be brought in a federal or state court located in the State of New York, New York County, and to the extent not otherwise subject to the jurisdiction of such courts, each of the parties agrees to waive any objection to such jurisdiction and to subject itself to the jurisdiction of such courts. Both Distributor and Supplier further agree that service of process for any such action or proceeding shall be made by either a recognized courier service that regularly maintains records of its pick-ups and deliveries or by certified mail, return receipt requested, addressed to the parties at their respective addresses set forth on the face hereof. In addition, a party may at its option, elect to use any other method of service of process authorized by applicable law. (e) Waiver of Breach. Any waiver of any of the provisions herein, or of any inaccuracy in or non-fulfillment of any of the representations, warranties or obligations hereunder or contemplated hereby, shall not be effective unless made in writing and signed by the party against whom the enforcement of any such waiver is sought. (f) Assignment. Supplier may not assign or otherwise delegate any of its rights or obligations hereunder, and Distributor may not assign any of its rights hereunder, without the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned. In the event Distributor seeks to assign any of its rights hereunder, Supplier will not unreasonably withhold, delay or condition its consent and will give its consent if the proposed assignee is in reasonably sufficient financial condition to perform its obligations hereunder and has experience distributing alcoholic beverages. Supplier shall give Distributor written notice of its decision whether to give or withhold its consent within thirty (30) days after Distributor’s request to assign its rights under this Agreement. If Supplier fails to give such written notice to Distributor within that time, Supplier shall be deemed to have given its consent to Distributor. The parties acknowledge and agree that if the proposed assignee satisfies the aforementioned criteria, then the assignment of Distributor’s rights under this Agreement will not be deemed to materially change the duty of the Supplier, or increase materially the burden or risk imposed upon the Supplier by this Agreement or impair materially the Supplier’s chance of obtaining return performance. Notwithstanding anything to the contrary contained herein, Distributor shall have the right to assign this Agreement without Supplier’s consent to an affiliate of Distributor upon giving Supplier at least thirty (30) days prior written notice of Distributor’s intention to do so. For purposes hereof, an “affiliate” of Distributor is any Person directly or indirectly controlling, controlled by or under common control with Distributor. Any attempted assignment in violation of this paragraph 11(f) shall be null and void, without legal force or effect. (g) Survival. The terms of this paragraph 11(g) and paragraphs 7, 9, 10, 16, and 17 shall survive the acceptance of this Order. (h) Entire Agreement. This Order, the Other Orders and the Distribution Relationship as expressly specified in this Order constitute and contain the entire agreement and understanding between the parties, and supersedes and replaces all prior negotiations and all agreements, proposed or otherwise, whether written or oral, concerning the subject matter hereof. No course of dealing, usage of trade or course of performance shall be relevant to explain, supplement or modify any express provision of this Order. (i) Governing Language. The parties hereto agree that all written documents between them be prepared in the English language only and such language shall be the governing language.
In addition to the provisions set forth in Part I hereof, the provisions of this Part II are also applicable in the event this Order is issued pursuant to a Distribution Relationship. For purposes of this Order, the term “Distribution Relationship” means that (i) Supplier has granted Distributor the right to purchase Products from Supplier for the purpose of offering, selling or distributing the Products in a particular geographic territory; and (ii) Distributor has issued, or in the contemplation of the parties will issue, multiple purchase orders for Products under circumstances where Supplier knows or should know that said purchase orders are being issued for the purpose of offering, selling or distributing Products in such territory.
12. Application of Governing Statute
Supplier and Distributor acknowledge and agree that Distributor, through its offering, selling, distribution, marketing and promotion of the Products in the Territory, is building the brand recognition and goodwill of the Products. Moreover, Supplier and Distributor acknowledge and agree that Distributor has through its efforts built the brand recognition and goodwill of the Products and as a result has developed equity in the brands and the Products. Therefore, the parties agree that the provisions of New York Alcoholic Beverage Control Law §55-c (“§55-c”) will govern and control the terms of this Order and the Distribution Relationship, and that Distributor will be deemed to be a Wholesaler as such term is defined under §55-c.
13. Appointment; Exclusive Territory
a) By Supplier’s acceptance of (i) this Order; (ii) any previous order issued by Distributor pursuant to the Distribution Relationship; or (iii) any Other Order, and as a result of the Distribution Relationship, Supplier hereby appoints Distributor as the exclusive distributor of Products within the Territory, and hereby grants to Distributor the related distribution rights to do so. Accordingly, Supplier will not directly or indirectly sell or otherwise distribute Products to any Person located within the Territory or authorize or permit any other Person to do so, other than Distributor. b) Supplier agrees that it will not directly or indirectly sell or otherwise distribute to an authorized distributor of Supplier located outside of the Territory, Products (i) that Supplier knows or has reason to believe are destined for sale or have been sold, directly or indirectly, to Persons within the Territory; or (ii) in quantities that Supplier knows or has reason to believe are in excess of reasonable sales expectancies within that distributor’s specific assigned market or territory. Supplier will also use commercially reasonable efforts to protect Distributor’s exclusive rights to sell Products in the Territory including, without limitation, discontinuing sales to infringing resellers. c) Distributor may market, sell and otherwise distribute Products to any Person located or taking delivery within the Territory in any reasonable commercial manner not inconsistent with Distributor’s licenses and permits. However, Distributor has the right to sell Products to another authorized distributor of Supplier located outside of the Territory for the purpose of eliminating Product shortages or inventory imbalances. d) Notwithstanding anything to the contrary contained herein or under applicable law, Distributor’s obligation to market, distribute, sell or otherwise promote the sale of Products pursuant to the Distribution Relationship will be based on reasonable commercial efforts, and no greater. It is acknowledged that in addition to Supplier’s right to market, promote and advertise the Products in the Territory, Distributor will market, advertise or promote the Products at such times, and in such manner, as is mutually agreed, in writing, between Distributor and Supplier. In addition, Supplier hereby acknowledges that Distributor is currently, and will be in the future, engaged in the business of marketing, selling, promoting and distributing other beverage products, some of which are or may be competitive with, or constitute substitutes for, Products. As such, it is specifically understood and agreed that such activities shall not be deemed improper or violative of any obligation of Distributor hereunder, under the Distribution Relationship or under applicable law. Supplier will periodically provide Distributor with reasonable contributions toward the costs to be incurred by Distributor in any mutually agreed upon promotion, marketing or other support of the Products. e) Supplier hereby grants to Distributor the right and license to use the Marks (i) for purposes of marketing, selling, promoting and otherwise distributing Products within the Territory; and (ii) for purposes of manufacturing and distributing promotional materials in connection with the promotion and sale of the Products.
(a) During the term of the Distribution Relationship, Supplier hereby agrees to sell to Distributor, and Distributor agrees to purchase from Supplier, Distributor’s requirements for Products to be distributed to Persons located or taking delivery within the Territory. Distributor’s requirements for Products are as set forth in this Order, and as set forth in other purchase orders subsequently issued from time to time by Distributor pursuant to the Distribution Relationship (such other subsequent orders are collectively “Other Orders”). Supplier will accept this Order and the Other Orders and fulfill Distributor’s requirements for Products pursuant to the provisions hereof and thereof. (b) Prices payable by Distributor for Products pursuant to the Distribution Relationship will be Supplier’s established wholesale prices for the Products, effective at the time Distributor issues the purchase order in question. If Supplier has more than one (1) wholesale price, the wholesale price to be paid by Distributor will be the lowest wholesale price being offered to any other wholesale customer or distributor in the State of New York at the time of Distributor’s issuance of such purchase order. c) Supplier will use its reasonable efforts to advertise and promote the sale of the Products in the Territory under the Marks. Supplier will provide Distributor with display, merchandising and point of sale materials for placement in on-premise and off-premise accounts. d) It is understood and acknowledged by Supplier and Distributor that the Distribution Relationship constitutes, and will be deemed to constitute, an installment contract within the meaning of the Connecticut Uniform Commercial Code and that this Order and Other Orders, shall be construed to be orders issued under an installment contract constituting the Distribution Relationship, and are not to be construed as individual unitary contracts.
15. Term; Termination
a) The term of the Distribution Relationship will continue until terminated pursuant to paragraphs 15(b), 15(c) or 15(d). b) Supplier shall only have the right to terminate the Distribution Relationship (i) pursuant to paragraph 15(c); or (ii) in the event Distributor breaches any material provision contained herein or in any of the Other Orders and fails to cure same after receiving written notice thereof and an opportunity to cure pursuant to the provisions of this paragraph 15(b). Supplier shall initiate such termination procedure by providing written notice to Distributor of such breach which shall state with particularity the basis for Supplier’s determination of noncompliance and Supplier’s intent to terminate the Distribution Relationship. Upon Distributor’s written request within ten (10) days of receipt of said notice, Supplier will supplement said notice by submitting to Distributor, in writing, Supplier’s recommended plan of corrective action to cure the claimed defaults or deficiencies in a manner satisfactory to it. Subject to extensions that Supplier may grant, Distributor shall then have fifteen (15) days after receiving such notice to submit a plan of corrective action and an additional seventy-five (75) days to cure such noncompliance in substantial conformity with such plan. If Distributor fails to cure on a timely basis, Supplier shall have the right to terminate the Distribution Relationship by giving Distributor an additional ten (10) days written notice of its intention to do so (the “Ten Day Notice”). Should Distributor dispute the termination in writing within the ten (10) day period following the giving of the Ten Day Notice, the parties will continue to perform their respective obligations under this Order until the dispute is finally adjudicated by a court of competent jurisdiction. c) If any of the following events occur, Supplier shall have the right to terminate the Distribution Relationship by giving at least thirty (30) days prior written notice to Distributor: i) Distributor makes a general assignment for the benefit of creditors, or consents to the appointment of a receiver, liquidator or similar official of all or substantially all of its assets, or if a receiver is appointed for all or a substantial portion of Distributor’s assets and such appointment is not discharged for a period of ninety (90) days; or ii) Distributor commences an action or proceeding or takes advantage of or files under any federal or state insolvency statutes including, without limitation, the United States Bankruptcy code, seeking to have an order of relief entered with respect to it, or seeking adjudication as a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, liquidation, dissolution or other relief with respect to its debts; iii) there shall be commenced against Distributor any action or proceeding of the nature referred to in the immediately preceding sub-paragraph which is not stayed or dismissed within ninety (90) days; iv) in the event of a conviction or plea of guilty or no contest to a felony by Distributor or a principal owner of Distributor which in the reasonable judgment of the Supplier may adversely affect the goodwill or interests of Products in the Territory; or v) court established fraudulent conduct on the part of Distributor in its dealings with the Supplier. d) Distributor shall have the right to terminate the Distribution Relationship as follows: (i) immediately, upon the occurrence of an Event of Default. Distributor shall exercise such right by giving Supplier written notice of its intention to do so; or (ii) at any time, for any reason or no reason at all, by giving at least thirty (30) days prior written notice of its intention to do so (the “Convenience Termination Period”). e) If Supplier initiates termination procedures or otherwise exercises its right to terminate under paragraph 15(b), then during any notice or cure period specified in paragraph 15(b), the parties will continue to perform their respective obligations hereunder and under the then pending Other Orders and under the Distribution Relationship. Likewise, if Distributor terminates the Distribution Relationship pursuant to paragraph 15(d)(ii), the parties shall be obligated to continue to perform their respective obligations hereunder during the Convenience Termination Period.
16. Post-termination Obligations
(a) In the event Supplier attempts to cancel all or a portion of the Distribution Relationship other than pursuant to paragraphs 15(b) or 15(c), such event will be deemed to constitute a practice on the part of Supplier that: (i) without necessarily having been previously considered unlawful, offends public policy as it has been established by statutes, the common law, or otherwise; (ii) unlawful and in violation of §55-c. Therefore, as a condition to any such termination, or if Distributor terminates the Distribution Relationship pursuant to paragraph 15(d)(i), Supplier will pay to Distributor a lump sum payment equal to reasonable compensation for damages sustained by Distributor as a result of such termination including future lost profits and the value of Distributor’s distribution rights associated with distributing the Products in the Territory. Both parties agree that it would be difficult to determine the reasonable compensation for damages sustained by Distributor as a result of the cancellation of the Distribution Relationship; and that as reasonable compensation for such damages, Supplier shall pay Distributor, within ten (10) days after the termination of the Distribution Relationship, liquidated damages for each type of Product covered under this Order and the Distribution Relationship.
[ALT 1: The amount of such liquidated damages payable to Distributor hereunder for each type of Product will be equal to six (6) times the Gross Profit of the particular type of Product in question, multiplied by the quantity of that Product sold by Distributor during the Last 12 Month Period (such quantity is hereinafter referred to as the “12 Month Quantity”). For purposes of this paragraph 16 (a), the following terms shall have the following meanings: the term “Last 12 Month Period” means the twelve (12) consecutive complete calendar months immediately preceding the date of notice of termination. The term “Gross Profit” means, for each particular Product, twenty-five (25%) percent of the Selling Price for that Product during the Last 12 Month Period, as reasonably determined by Distributor. The term “Selling Price” means, for each particular Product, one hundred twenty-five percent (125%) of the average Laid-in-Cost for that Product during the Last 12 Month Period.] [Notwithstanding the foregoing, in the event that the Distribution relationship for a particular Product is less than twelve (12) consecutive, complete calendar months, the Total Gross Profits for that Product will be determined on a pro-rated, annualized basis calculated by multiplying the gross profits realized from the Product actually sold during the Lesser Period by a fraction where the numerator is 12 and the denominator is the Lesser Period. The term “Lesser Period” means the number of complete calendar months the Product in question was subject to this Agreement immediately prior to the date of the notice of termination. By way of illustration, and not by way of limitation, if the Lesser Period is four (4) calendar months and the gross profits realized from the Product sold during the Lesser Period is $100,000, then the Total Gross Profits will be equal to two (2) times $300,000 ($100,000 multiplied by 12/4), for a total of $600,000.00.] Supplier and Distributor acknowledge and agree that such liquidated damages plus the amounts paid to Distributor for inventory under paragraph 16(b)(i), is a reasonable forecast of the probable loss as a result of such termination because of the inconvenience and difficulty of estimating with exactness the damages which may result. Accordingly, the liquidated amount specified in this paragraph 16(a) is agreed upon as liquidated damages and not as a penalty. Supplier will be deemed to have cancelled a portion of the Distribution Rights for purposes of this paragraph 16 in the event Supplier cancels only a particular brand or brands of Products, as opposed to all of the Products. In such event (i) Supplier will be deemed to have cancelled the Distribution Relationship only with respect to the cancelled Products in question (the “Affected Products”); and (ii) Supplier will then immediately pay to Distributor liquidated damages specified in this paragraph 16(a) calculated in the manner set forth above for the Affected Products only. Thereafter, the Distribution Relationship will continue in full force and effect for the remainder of the brand or brands of Products not so terminated, all in accordance with the terms and conditions hereof. Notwithstanding anything contained herein to the contrary, in the event Supplier attempts to terminate all or a portion of the Distribution Relationship, Distributor hereby reserves the right to pursue equitable remedies such as injunctive relief and specific performance. (b) If either party terminates the Distribution Relationship for any reason whatsoever, then: (i) Supplier will purchase from Distributor and Distributor will sell to Supplier all of Distributor’s then saleable inventory at Laid-in-Cost, f.o.b. Distributor’s warehouse. Such purchase and sale of inventory will be consummated within ten (10) days following the effective date of termination. “Saleable inventory” means undamaged Products within Supplier’s then published date code or freshness policies, and that are free from any and all liens, security interests and encumbrances. “Laid-in-Cost” means the price paid by Distributor for the Products or P.O.S. in question for delivery at the applicable f.o.b. shipping point plus freight charges incurred by Distributor in transporting same from such shipping point to its warehouse, plus all federal, state and local taxes paid by Distributor with respect to the purchase of such Product or P.O.S., as the case may be plus Distributor’s cost of capital which, for the purpose of this section will be fixed at fifteen percent (15%). Supplier will pay for such inventory when delivered at Distributor’s warehouses; such payment will be by Supplier check; and (ii) On and after the termination date Supplier will continue refund deposits on all kegs sold by Distributor as they are returned by Distributor or its agent.
17. Confidential Information
During the course of Distributor’s performance under the Distribution Relationship, Distributor may disclose Confidential Information (as defined below) to Supplier. Supplier agrees not to disclose any Confidential Information or any portion thereof to any Person and to only use such information to promote the Distribution Relationship between Supplier and Distributor, it being understood that since such information is not generally known in the trade, such information provides Distributor with a competitive advantage in its market area. In that regard, Supplier acknowledges and agrees that Distributor has taken and is taking reasonable steps to protect the confidentiality of, and its legitimate interests in, the Confidential Information. The term “Confidential Information” means information concerning Distributor’s business, financial and marketing plans, intellectual property rights (including, without limitation, patents, trademarks, copyrights and trade secrets), forecasts, strategies and statements, and customer related information.