Distribution Terms and Conditions
Revised effective July 31, 2020
These Distribution Terms & Conditions (“Distribution T&Cs”) are attached as Exhibit A to and incorporated into the H2know Distribution and Services Agreement between Conservation Labs and Distributor. All capitalized terms not defined herein shall have the meanings given to them in the Cover Sheet, Distributor Initial Order, and Terms of Service.
These Distribution T&Cs are based on the following facts:
A. Conservation Labs is in the business of developing, manufacturing and selling products for monitoring water usage in commercial and residential properties, including but not limited to its H2know™ water sensor, comprised of hardware and software (“Products”), and additional reporting and other software accessible over the internet (through one or more of Conservation Labs’ websites (“Sites”) or via software that may be downloaded to the End User’s smartphone or other mobile device) to access one or more Conservation Labs’ subscription services to be used with the Products (“Subscription Services”), and related products, services and any corresponding documentation (collectively with the Subscription Services, the “Services”). Conservation Labs desires to appoint Distributor as a distributor of certain Products and Services in the Territory and for the Market (each defined in the Distributor Initial Order).
B. Distributor is qualified and deeply experienced in distributing products generally in the Territory and to the Market. Distributor desires and is willing to market, promote, distribute, and sell the Products and other products, and solicit and sell subscriptions to use the Products and Subscription Services, in the Territory and Market during the Distributor Term, and represents it is capable of providing the necessary facilities and personnel for such sales of Products.
1. APPOINTMENT.
(a) Appointment. Subject to the terms and conditions of the Agreement, Conservation Labs hereby appoints Distributor for the Distributor Term (defined in the Distributor Initial Order), and Distributor hereby agrees to act for Conservation Labs during such Term, as Conservation Labs’ distributor of the Products in the Territory but only in the Market in the Territory, and whose Exclusivity is defined in the Distribution Initial Order. Except as expressly stated in the preceding sentence, nothing in this Agreement shall be construed as limiting in any manner Conservation Labs’ marketing or distribution activities or its appointment of other dealers, distributors, licensees or agents.
(b) Distributor Restrictions. Without limitation, Distributor agrees not to solicit directly or indirectly for orders from, and not to market, sell, or license any Products to, any subdistributors or customers outside of the Market or the Territory without Conservation Labs’ prior written consent. Distributor shall not have the right to use, manufacture, assemble or modify the Products, except as may be expressly permitted hereunder.
(c) Nature of Relationship. Distributor shall conduct its business in the purchase and resale of the Products as a principal for its own account, at its own expense and risk. This Agreement does not in any way create the relationship of principal and agent, joint venture, partnership, or any similar relationship, between Conservation Labs and Distributor. Distributor agrees not to act or represent itself directly or by implication as Conservation Labs’s agent and not to attempt to create any obligation, or make any representation, on Conservation Labs’ behalf or in its name.
(d) Use of Subdistributors. Distributor may not appoint subdistributors and/or agents for the promotion, distribution, lease, sale or resale of Products without Company’s prior written consent, which may be withheld in Company’s sole discretion. Distributor shall be entirely responsible for the performance of any permitted sub-distributors, suppliers, vendors, and/or agents. Products distributed by Distributor for further distribution may be distributed only through subdistributors who are bound in writing for Conservation Labs’ benefit to all the restrictions on Distributor contained in this Agreement.
2. SERVICES.
(a) Services. Subject to the Agreement and for the fees set forth in the applicable Distributor Purchase Order, Conservation Labs will provide one or more of the following: (i) Products, (ii) one or more Conservation Labs websites accessible at watermonitorapp.com or subdomains, or any other domain mutually agreed upon (each, a “Site”) for Distributor to create a user Account; (iii) services accessible through the Sites (“Web Apps”), (iv) software that may be downloaded to your smartphone or tablet to access services (“Mobile Apps”), and/or (v) certain Subscription Services that Distributor orders, including services that can be accessed by Distributor using the Account and the Web Apps and/or Mobile Apps and Subscription Services to be purchased by Product owners or End Users (defined in Section 2(d)) that can be accessed through their own Accounts, all for use in conjunction with Conservation Labs Products. Where Distributor shall ensure that
(b) Distributor’s Role. Distributor will receive instructions on how to establish subscriptions for and specific to each Product purchased by Distributor during the Distributor Term. Distributor will provide these instructions with their respective Products to Distributor’s dealers. Each End User shall use these instructions to set up an account to register the End User’s Product(s) and subscribe to the Subscription Services pursuant to Conservation Labs’ Terms of Service, as amended by Conservation Labs from time to time (“Terms of Service”), and as set forth at: https://www.conservationlabs.com/tos. Distributor may subscribe to have certain access and rights to certain aggregated Product Data, depending on the type of Subscription Services it purchases for Service Fees, all as set forth in the applicable Distributor Purchase Order. If Distributor incorporates Subscription Services into Distributor’s own applications, it shall purchase a separate SDK License from Conservation Labs in a Distributor Purchase Order, which SDK License shall be subject to the Terms of Service and any other applicable terms of agreement between the parties.
(c) Each Product will include a license granted to the Product owner or End User pursuant to the then current Conservation Labs’ End User License Agreement (“EULA”), as set forth at: https://www.conservationlabs.com/eula. For purposes of this Agreement, “End User,” in the case of a Conservation Labs’ Product, means the person, business, organization or other entity (“Person”) that purchases and installs the applicable Product(s) in facilities over which the Person has the exclusive right of possession; and in the case of Conservation Labs Subscription Services, means the Person or Persons who subscribe to such Services or whose water usage is being monitored by one or more Products in accordance with the Terms of Service.
(d) Subject to the terms of the Agreement, Conservation Labs grants to Distributor that subscribes to Subscription Services as set forth in the Order Form, a non-exclusive, non-transferable right during the applicable Subscription Services term, solely for Distributor’s internal business purposes and in accordance with the limitations set forth in the Terms of Service, the applicable Subscription Services documentation, Conservation Labs’ Privacy Policy, and these Distributor T&Cs to: (a) to access, use, perform, and digitally display for itself certain features and functionality of such Subscription Service, which may include Product Data in various levels of detail and aggregation, depending on the Subscription Services to which Distributor subscribes, and to provide Product Data specific to individual End Users to such End Users. In general, such Subscription Services for Distributors may include data management, analytics, and reporting related to Products sold by or through Distributor, and may include Product Data. For the avoidance of doubt, Distributors that incorporate Subscription Services into Distributor’s own applications, shall not provide Product Data about a specific End User to anyone other than the End User’s corresponding Authorized Users (as defined in the Terms of Service) without the express written consent (which may include electronic consent) of each such specific End User.
(e) Distributor may also purchase for the setup fee set forth in the Order Form, Services to help Distributor setup, configure and utilize the applicable Subscription Services. Such setup and remote training may include working with Distributor to prioritize the timing of implementing the specific Subscription Services subscribed to, developing interfaces with Distributor’s Product Data and third-party software, training, and building standard reports. Distributor may engage Conservation Labs to provide custom report writing for an additional fee at the rates set forth in the Order Form.
3. PURCHASE, PAYMENT AND SUPPLY
(a) Purchase and Sale. During the Distributor Term, Distributor shall order Products and Services in accordance with the terms and conditions of this Agreement and the Terms of Service. Each Purchase Order shall specify, without limitation: (i) the quantity of Products being ordered, (ii) Product prices, (iii) the type and quantity of any Subscription Services being purchased; (iv) any special payment terms granted in writing by Conservation Labs, and (v) all other information requested in the applicable form of Purchase Order attached to the Cover Sheet. Requested delivery dates for Products and other products of a tangible nature must be during the term of the Agreement, except that Conservation Labs may in its sole discretion elect to accept a Purchase Order with a requested delivery date after the expiration or termination of this Agreement, in which case the terms and conditions of this Agreement shall apply to such shipment, but under no circumstances should such shipment be deemed to be or construed as being a renewal or extension of this Agreement. The Parties agree that the terms of this Agreement shall prevail over any conflicting preprinted terms and conditions in any purchase order or other instrument prepared by Distributor and any such purchase order or instrument shall be deemed automatically rejected by Conservation Labs without need of any further or additional notice of rejection, and such additional or different terms shall be of no effect or in any way binding upon Conservation Labs. Conservation Labs shall have no liability for any delay in filling or shipping any Purchase Orders.
(b) Acceptance of Purchase Order by Conservation Labs. Purchase Orders submitted by Distributor shall not be binding on Conservation Labs until the earlier of written acceptance by an authorized representative of Conservation Labs or shipment of Products, and acceptance by shipment shall only be binding as to the portion of the Purchase Order actually shipped by Conservation Labs. Any automatic or computer generated response to a Purchase Order by Conservation Labs shall not be deemed acceptance of a Purchase Order. Conservation Labs reserves the unconditional right to reject any Purchase Order, in whole or in part, and to refuse, cancel or delay any Purchase Order placed by Distributor and accepted by Conservation Labs when Distributor is delinquent in payments or when Distributor has failed to perform any of its obligations under this Agreement.
(c) Invoices and Payment. Except where expressly specified in the Distributor Initial Order or Purchase Order, Conservation Labs shall send Distributor invoices via mail, email or facsimile for each shipment. Invoices are due and payable within fifteen (15) days from the date of invoice, provided that Conservation Labs has elected to provide Distributor a line of credit; otherwise, terms are cash in advance of shipment. Payments due hereunder must be made by wire transfer or certified check in available funds. Conservation Labs reserves the right to change or modify payment terms upon thirty (30) days’ notice to Distributor. Distributor shall have no right of offset or withholding under this Agreement. Any amounts not paid by Distributor when due to Conservation Labs shall be subject to administrative late fees, from the date due until paid, at the rate of one and one half percent (1.5%) per month, or the highest interest rate allowable by applicable law (whichever is less), payable monthly.
(d) Prices. Except as may be expressly set forth in Schedule A of the Distributor Initial Order, Conservation Labs will establish prices for Products and shall at all times have the right, which may be exercised in its sole discretion, to increase or decrease the prices of its Products, provided that Conservation Labs must give Distributor at least sixty (60) days written notice before such changes become effective. Announcement of such changes will not relieve Conservation Labs from obligations to furnish Products at pre-notification prices, provided that Distributor Purchase Orders are received by Conservation Labs prior to the effective date of the change and further provided that such orders are scheduled for delivery within thirty (30) days from the notification date. Prices do not include, and Conservation Labs shall not be responsible for, the cost of freight, insurance, or any required federal, state or local sales or other taxes, duties, export or custom charges, VAT charges, brokerage or other fees.
(e) Credit Terms. Conservation Labs may, but shall not be obligated to, grant credit terms to Distributor. In the event Conservation Labs does grant Distributor credit terms, Conservation Labs reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Distributor, either generally or with respect to a particular Purchase Order. Any withholding or delay of shipment of Products by Conservation Labs resulting from such credit limitation will not be construed as a cancellation or breach of this Agreement by Conservation Labs.
(f) Financial Information; Purchase Money Security Interest. Distributor agrees to provide Conservation Labs with financial statements and other evidence of corporate and financial standing as Conservation Labs may reasonably request from time to time to evaluate Distributor’s credit risk. Conservation Labs reserves and Distributor grants a purchase money security interest in all Products sold pursuant to this Agreement and proceeds thereof until payment in full is made for all Products provided in connection with the sale. Distributor agrees to execute any financing statement requested by Conservation Labs to perfect its security interest in the Products.
(g) Past Due Amounts. If any amount due Conservation Labs by Distributor, for any reason, becomes past due, Conservation Labs may at its option and without further notice withhold further shipments to Distributor or activation of Products until all invoices are paid in full. If any indebtedness shall be more than ten (10) days past due, in addition to those additional remedies set forth in this Agreement, Conservation Labs may at its election terminate this Agreement upon ten (10) days written notice to Distributor, and all sums owed by Distributor shall become immediately due and payable regardless of the payment terms set forth elsewhere in this Agreement.
(h) Taxes. Distributor shall be responsible for any applicable foreign, national, state or local sales, use, value added or other tax, tariff, duty, withholding, or assessment levied or imposed by the United States or any foreign governmental authority arising out of or related to any of the transactions contemplated by this Agreement (“Taxes”), other than taxes based upon Conservation Labs’ income. Distributor must pay directly, or reimburse, and hold harmless, Conservation Labs for the amount of such Taxes which Conservation Labs is at any time obligated to pay or collect.
(i) Past Audit Claims. Distributor shall, at Conservation Labs’ request, provide full and complete records which fully support any discrepancies Distributor may claim exist between any amounts Conservation Labs claims are due for Distributor and the amounts Distributor claims are owed to or are due from Conservation Labs. Any claim of discrepancies raised by Distributor shall be waived by Distributor if such claim is not made within six (6) months from the date of invoice on which such claim is based.
4. PRODUCT SHIPMENTS.
(a) Shipment Terms; Title and Risk of Loss. All Products purchased by Distributor under this Agreement will be suitably packaged for shipment in Conservation Labs’ standard containers, marked for shipment to Distributor at the address specified in the Purchase Order, and delivered to Distributor or the forwarding agent selected by Distributor within the Territory. If Distributor fails to designate a forwarding agent, Conservation Labs will make such designation in accordance with its standard shipping practices. Shipment of Products under this Agreement shall be F.O.B. Conservation Labs’ warehouse or any such other related facility. Title and risk of loss will pass F.O.B. Conservation Labs’ shipping point. Distributor will be responsible for and pay all freight, shipment, and insurance charges associated with shipment of the Products, even if the order is rejected upon delivery. Conservation Labs shall use commercially reasonable efforts to ship Products to Distributor on or before the requested receipt date designated in a Distributor Purchase Order. The Parties agree, however, that shipment of any Products ordered from Conservation Labs under this Agreement may be delayed for a period of time sufficient to allow it to manufacture and assemble or otherwise acquire the Products for Distributor, and the Parties further agree that Conservation Labs shall not be liable to Distributor or any other party for any delay in shipment of any Purchase Order. Any expense for any special packaging or any special delivery requested by Distributor shall be borne solely by Distributor. Should any Distributor Purchase Order for Products exceed Conservation Labs’ available inventory, Conservation Labs shall in its sole discretion determine how to allocate its available inventory without liability to Distributor on account of the method of allocation determined or its implementation.
(b) Acceptance of Shipments. Distributor shall have 5 days from the date of arrival of the shipment of the Products to the shipping location designated by Distributor to inspect the Products and notify Conservation Labs of any discrepancies with respect to shipments of Purchase Orders, including, but not limited to any discrepancies in the quantity or quality of the Products, and shall notify Conservation Labs of any such discrepancies within 5 days of its inspection. Unless a notice of a discrepancy is reported to Conservation Labs as required herein, all shipments of Products will be deemed accepted by Distributor.
(c) Product T&Cs. Distributor understands and agrees that in the process of each End User registering or in order to use the End User’s Products, in addition to subscribing to the Subscription Services as described in Section 2(a), above, the End User shall be required to: (i) answer a series of questions designed to determine if the Product is compatible with the End User’s system; (ii) pay the applicable Service Fees; and (iii) agree to the Terms of Service.
5. DISTRIBUTOR REPRESENTATIONS, WARRANTIES AND COVENANTS. Distributor represents, warrants and covenants as follows:
(a) Forecasts. During the Distributor Term, Distributor will provide Conservation Labs with quarterly nonbinding good-faith rolling written forecasts of its anticipated Product requirements and shipping dates for the six (6) month period following each forecast.
(b) Marketing. During the Distributor Term, Distributor shall use its commercially reasonable best efforts to:
(i) successfully advertise, market, distribute, sell, and support the Products, including but not limited to Subscription Services, on a continuous basis throughout the Market in the Territory;
(ii) meet the standards set by Conservation Labs from time to time for displaying, demonstrating and explaining the operation and use of the Products;
(iii) conduct all business diligently and represent Conservation Labs in a professional manner that brings credit to the Parties and enhances the reputation of Conservation Labs and the Products;
(iv) refrain from making claims or representations concerning the Products, other than as set forth in the applicable product specifications or other materials provided or published by Conservation Labs;
(v) refrain from discrediting either Conservation Labs or the Products;
(vi) include in all advertising and promotional materials all applicable copyright and trademark notices as they appear on the Products or as Conservation Labs reasonably specifies from time to time;
(vii) maintain an adequate staff of trained sales and support personnel to enable Distributor to develop and support the market for the Products in the Market and Territory in an effective manner;
(viii) consult with Conservation Labs regarding any advertising or trade practice that might affect the good name, trademarks, goodwill or reputation of Conservation Labs or the Products, and comply with all reasonable requests of Conservation Labs with regard to any such practice;
(ix) comply with Conservation Labs’ reasonable requests in facilitating the subscription of Conservation Labs’ corresponding Subscription Services; and
(x) as reasonably requested by Conservation Labs, assist Conservation Labs in improving the promotion, distribution and licensing of the Products.
(xi) Where Distributor incorporates Subscription Services into Distributor’s own applications, Distributor’s own terms of service shall provide equivalent protections, benefits and rights for Conservation Labs as, and not conflict with, the Conservation Labs Terms of Service, EULA and Privacy Policy. Without limiting the generality of the foregoing, Distributor shall ensure that each of its End Users, Service Users, and Authorized Users provides all necessary consents, acknowledgments, and authorizations to use the Products and Services included with Distributor’s products and services as contemplated by the Agreement.
(c) Breach by End User. Distributor shall advise Conservation Labs immediately if Distributor becomes aware of any breach by an End User of any material provision of a Purchase Order, or this Agreement or Distributor’s agreement with the End User.
(d) Compliance with Laws and Policies. During the Distributor Term, Distributor shall comply with good business practices and all applicable international, federal (U.S.), state, regional and local laws, rules and regulations (“Laws”), including without limitation, any applicable privacy and export control Laws, Conservation Labs’ Privacy Policy, Code of Conduct and other applicable policies published on the Sites, and shall diligently perform all other duties as mutually agreed upon herein. Distributor shall not employ any sales practice or conduct or display any advertising which in the reasonable opinion of Conservation Labs is detrimental to Conservation Labs’ interests, and Conservation Labs may at its option require Distributor to cease any such practice or withdraw any such advertising.
(e) Usage of Conservation Labs’ Marks. In its marketing efforts, except as the Parties may otherwise agree expressly in the Distributor Initial Order, Distributor will use Conservation Labs’ then-current names for the Products but will not represent or imply that Distributor is Conservation Labs or is a part of Conservation Labs.
(f) Notice of Problems. Distributor shall keep Conservation Labs informed of any problems encountered with the Products and of any resolutions of those problems, and shall communicate promptly to Conservation Labs any and all modifications, design changes or improvements of the Products suggested by any entity or person solicited by or making inquiries of Distributor or by any employee or agent of Distributor. Distributor further agrees that Conservation Labs shall have and is hereby assigned any and all right title and interest in and to any such suggested modifications, design changes or improvements of the Products, without the payment of any additional consideration therefor either to Distributor, its employees or agents, or to any customer of Distributor.
6. INTELLECTUAL PROPERTY.
(a) Intellectual Property Ownership. As between Distributor and Conservation Labs, Conservation Labs owns all right, title and interest in and to all Conservation Labs’ Products, including without limitation the Subscription Services, all software used to provide the Subscription Services and included in any Products, the Sites, any user guides and other Product documentation, and all updates and/or upgrades thereto and other derivative works of the Services that are provided by Conservation Labs, including any suggestions, ideas, enhancement requests, feedback, and recommendations provided by Distributor, and all Intellectual Property associated with or related to any of the foregoing. For Purposes of this Agreement, “Intellectual Property” means, on a world-wide basis, any and all now known or hereafter known tangible and intangible (A) rights associated with works of authorship including, without limitation, copyrights, moral rights and mask-works, (B) rights associated with trademarks, service marks, trade names and similar rights, (C) trade secret rights, (D) patents, designs, algorithms and other industrial property rights, (E) rights in domain names; (F) all other intellectual and industrial property rights of every kind and nature and however designated, whether arising by operation of law, contract, license or otherwise, and (G) all registrations, applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter existing, made or in force (including any rights in any of the foregoing). No implied license, patent, copyright or other Intellectual Property right of Conservation Labs is granted under this Agreement or otherwise. During and after the Distributor Term, Distributor shall not do anything that will in any manner infringe, impeach, dilute or lessen the value of the Intellectual Property of Conservation Labs or the goodwill associated therewith or that will tend to prejudice the reputation of the Conservation Labs or the sale of any Conservation Labs Products. All goodwill arising out of or associated with Distributor’s use of any Conservation Labs Marks will inure exclusively to the benefit of Conservation Labs.
(b) Product Data. As between Distributor and Conservation Labs, Conservation Labs owns all right, title and interest in and to all data received through the use of Products by End Users. Conservation Labs shall have the right to collect and analyze such data and other information relating to the provision, use and performance of Products (“Product Data”), and shall own all rights to Product Data derived from End Users’ use of Subscription Services, alone or as aggregated with usage data from Conservation Labs’ other customers for its own business purposes, including but not limited to support, operational planning, product innovation, improvements, enhancements, sales and marketing of Conservation Labs’ Products, and for other development, diagnostic and corrective purposes in connection with the Products and other Conservation Labs offerings.
(c) License of Conservation Labs’ Marks. During the Distributor Term and subject to the terms and conditions of this Agreement, Conservation Labs hereby grants to Distributor a revocable, non-transferable, non-exclusive, limited license to use Conservation Labs’ trademarks, logos, and trade names (collectively the “Conservation Labs Marks”), solely in connection with the marketing, advertisement and sale of the Products in the Territory. Such license shall immediately terminate upon the expiration or termination of this Agreement. Distributor shall strictly comply with all standards of use for the Conservation Labs Marks and must at all times display appropriate trademark and copyright notices as instructed by Conservation Labs. All advertisements and promotional materials used by Distributor for any Products shall be approved by Conservation Labs in writing in advance, which approval shall not be unreasonably withheld. Distributor will not otherwise use or register (or make any filing with respect to) any Conservation Labs Mark, name or other designation, or any confusingly similar trademark, logo, or trade name relevant to the subject matter of this Agreement anywhere in the world. Distributor will not contest anywhere in the world the use by or authorized by Conservation Labs of any trademark, name or other designation or application or registration therefor, whether during or after the Distributor Term.
(d) Distributor’s Marks. Subject to the terms and conditions of this Agreement, during the Distributor Term, Distributor hereby grants Conservation Labs a non-exclusive, royalty-free license to use Distributor’s logos, trademarks, and trade names (the “Distributor’s Marks”) on Conservation Labs’ Sites and marketing materials.
(e) Use Restrictions. Distributor will not, and will not allow any third party, to: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code of or trade secrets embodied in any Product or part thereof, (ii) modify, translate, or create derivative works of or based on any Product; (iii) copy, rent, lease, distribute, assign, grant sublicenses or otherwise transfer or encumber any software Products or any rights to any Subscription Service; (iv) use any Subscription Service for timesharing or service bureau purposes or otherwise for the benefit of a third party; (iv) knowingly use, or allow others to use, any Subscription Service to store or transmit Malicious Code, (v) interfere with or disrupt the integrity or performance of any Subscription Service or third-party data contained therein, or (vi) attempt to gain unauthorized access to any Subscription Service or their related systems or networks, (vii) remove any proprietary notices or labels from any Products or part thereof; (viii) use any Subscription Service in a manner in violation of any applicable Laws; or (ix) in any way access, use or copy any portion of any Subscription Service to, directly or indirectly, develop, promote, sell or support any product or service that is competitive with any Subscription Service. For purposes of this Agreement, “Malicious Code” means any software, hardware or other technologies, devices or means, the purpose or effect of which is to: (A) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use or operation of any data processed thereby; or (B) prevent Conservation Labs or any End User from accessing or using the Services or other Conservation Labs systems as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor or other malicious computer code and any time bomb or drop dead device.
(f) Changes in Specifications and Designs. Conservation Labs reserves the right at any time and from time to time to change the specifications or designs of the Products. Conservation Labs shall advise Distributor of any changes in specifications or designs no later than the date that such changes in specifications or designs are commercially released.
7. Confidentiality.
(a) Confidential Information. “Confidential Information” means: (i) all written, visual, oral and electronic data, information and ideas, both technical and non-technical, including product plans, product and market descriptions, designs, software (source code and object code), marketing plans and data, inventions (whether or not patentable), concepts, production data, business plans and opportunities, personnel, manufacturing processes and techniques, formulae, flow sheets, processes, financial information, sales, plans and projections, research, development or know-how; and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information.
(b) Distributor and Conservation Labs each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under or receive the benefits of this Agreement. During and after the Distributor Term, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except (i) where such disclosure is necessary for the performance of the receiving party’s obligations under this Agreement; or (ii) as may be required by applicable Law, provided that the party obligated to make the disclosure (A) shall give the other party advance notice of such requirement to the extent legally permitted, which shall include a copy of any applicable subpoena or order; (B) shall afford the disclosing party, at the disclosing party’s sole cost, a reasonable opportunity to oppose, limit, or secure confidential treatment for such required disclosure; and (C) shall not oppose any reasonable effort by the disclosing party to quash any such subpoena or other government process. If, notwithstanding any such effort by the disclosing party, the receiving party is obligated to disclose Confidential Information, the receiving party may disclose only that portion of the Confidential Information of the disclosing party that the receiving party is legally required to disclose in the reasonable opinion of its legal counsel. In the event that any Confidential Information is ordered produced in an action or proceeding, it shall not lose its confidential status through such use, and the receiving party shall, at the disclosing party’s sole expense, take all commercially reasonable and necessary steps to protect its confidentiality during such use. Each receiving party shall be responsible for compliance with this Section and applicable provisions of this Agreement by its employees, agents and contractors, and shall obtain the agreement by each employee, agent and contractor to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder. The receiving party’s right to use the Confidential Information of the disclosing party shall terminate upon expiration or termination of the Agreement pursuant to the Distributor Initial Order, Section 3(g), or Section 11 of these Distribution T&Cs, or at any time upon written request of the disclosing party.
(c) Upon termination of this Agreement or otherwise upon the request of the disclosing party, the receiving party shall return to the disclosing party all written materials and documents, software and other information and materials made available or supplied by the disclosing party to the receiving party that contain Confidential Information of the disclosing party, and all copies thereof, and the receiving party shall use all commercially reasonable efforts to destroy all notes, summaries, analyses, and reports made by the receiving party, including any copies thereof; provided, however, that subject to the terms and conditions of this Agreement, the receiving party shall be entitled to retain reasonable archival copies thereof, all of which will remain subject to the confidentiality obligations thereof.
8. Limited Warranty; Disclaimers of Warranties.
(a) General. Each party represents and warrants that it has the right and authority to enter into and perform its obligations under this Agreement.
(b) Product Restrictions. The Products offered by Conservation Labs have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, Subscription Services, mobile apps, and support services are provided only in English. The Products offered by Conservation Labs are not intended for use outside of the United States. Distributor is responsible for complying with all applicable Laws of any foreign country or jurisdiction, including but not limited to any privacy Laws, in the country or jurisdiction in which the Product may be destined, and shall defend, indemnify and hold harmless Conservation Labs for all claims, damages, suits, proceedings, judgments, settlements, fines, penalties, costs or expenses arising out of any breach of any such Law.
(c) Limited Hardware Warranty.
(i) Conservation Labs warrants to the original Distributor that upon sale the Product will be new, merchantable, and free of material defects in material and workmanship, and for a period of twelve months from date of purchase by the End User will meet its applicable specifications (“Limited Hardware Warranty”). Any replacement Products shall be warranted, commencing with the date upon which they are returned to Distributor, for the remainder of the unexpired period of the warranty or ninety (90) days, whichever is greater.
(ii) As a condition for the Limited Hardware Warranty to apply where the End User does not purchase the Product directly from Conservation Labs, such as where the End User purchases the Product from the Distributor or its subdistributor or reseller or retailer (whether or not as a value-added reseller), the Distributor (or its subdistributor or reseller or retailer) shall notify End User of the following Product features, limitations and requirements:
(1) the Products offered by Conservation Labs have been designed, marketed and sold for use by residents of the United States. All safety warnings, information, instructions, packaging, in-box materials, Mobile apps, and related Services are provided only in English. The Products offered by Conservation Labs are not intended for use outside of the United States. The End User is responsible for complying with all applicable Laws of the country for which the Product is destined. Conservation Labs is not liable or responsible for violations of any such Laws.
(2) Prior to the installation of a Product, the End User shall create an Account as described in the Terms of Service (or the Distributor’s terms of service, which shall include all applicable terms and conditions of the Terms of Service). As part of the registration process, the End User shall answer questions (“Compatibility Questions”) intended to elicit information to ensure the establishment of an environment (“Owner Environment”) at each installation site for use and operation of the Product by determining and verifying the compatibility of the Products the End User is acquiring with other equipment in the End User’s property, e.g., ensuring that the End User’s plumbing system and Wi-Fi is compatible with Conservation Labs Products. The End User shall acknowledge and confirm that the End User has truthfully answered all Compatibility Questions. The End User’s failure to answer each of the Compatibility Questions truthfully and completely may void the Limited Warranty provided with each Product if the Product, when installed, is incompatible with the other equipment in the End User’s property. The End User shall acknowledge that, except as otherwise expressly specified on an Order, Conservation Labs is not responsible for obtaining, licensing or selling any hardware, peripherals or third-party software or interfaces needed to prepare or maintain the Customer Environment. The End User shall be responsible for backing up its systems and data prior to providing Conservation Labs or the Distributor with access to the Owner Environment.
(iii) The Limited Hardware Warranty shall not apply to any Products that have: (A) been misused, damaged, or altered by Distributor or anyone else other than an authorized representative of Conservation Labs; (B) been marked as “sample”, “engineering sample” or “Not for Sale”, or sold “AS IS”; or (C) not been installed, tested, handled, used, maintained, stored or repaired in accordance with the applicable Conservation Labs User’s Guide or other published instructions, specifications or policies, or otherwise than in a reasonable manner. For the avoidance of doubt, the Products are not intended for, and the Limited Hardware Warranty does apply to, use of a Product on anything other than a potable water service line (for example, irrigation lines, well systems or water containing metallic sediments). The Limited Hardware Warranty further does not apply where the Product has been damaged or otherwise adversely affected by: (1) breakdowns, fluctuations, or interruptions in electric power, water provided to the home, or the telecommunications network; (2) Acts of God, including but not limited to lightning, flood, tornado, earthquake or soil movement (whether quick or over time), or hurricane; (3) use with any third-party provided products or services; or (4) any malfunctions, problems or damage caused by any non-Conservation Labs branded products.
(iv) The Limited Hardware Warranty does not cover consumable parts, including batteries, unless damage is due to defects in materials or workmanship of the Product, or software (even if packaged or sold with the Product). Unauthorized use of the Product (including its software) can impair the Product’s performance and may invalidate this Limited Warranty. Any descriptions, models, or samples of Products offered for sale are not part of the basis of the bargain.
(v) In order for Distributor to make a warranty claim under the Limited Hardware Warranty, the End User shall have followed the procedures and instructions described in Section 8(c)(ii)(2), and made a warranty claim to Distributor during the applicable warranty period. Distributor shall thereafter promptly (A) notify Conservation Labs of the intention to make a warranty claim by logging into the Site; (B) navigate to www.support.conservationlabs.com/support; (C) provide a description of the alleged failure, and (D) comply with Conservation Labs’ return shipping instructions, including receiving and using a Return Materials Authorization number (“RMA”) for each Product that is the subject of a Limited Hardware Warranty claim.
(vi) Distributor must return to Conservation Labs at Distributor’s expense any Products thought to be defective and still under warranty. Distributor shall bear the risk of in-transit loss or damage until delivered to Conservation Labs, and Conservation Labs shall bear the risk of in-transit loss or damage of repaired or replaced Products up to the point the Products are placed in the possession of the carrier, and shall bear the cost of transportation charges for return shipment of such Products to Distributor. If Conservation Labs determines in its sole judgment that the Products returned by Distributor are not defective or are not under warranty, it shall promptly notify Distributor in writing, and Distributor may elect to have the Products returned at Distributor’s expense and risk by so notifying Conservation Labs in writing within twenty (20) days or, if it does not so elect, Conservation Labs may discard or destroy such Products.
(vii) Distributor shall be fully responsible for any warranties and any warranty, repairs, refunds and handling between it and the End User. Provided that Conservation Labs performs its obligations under the Limited Hardware Warranty, Distributor shall defend, indemnify and hold harmless Conservation Labs from any warranty claims, suits, losses, judgments, costs and expenses (including attorneys’ fees) arising out of any End User warranty claim
(viii) EXCLUSIVE REMEDY. DISTRIBUTOR’S SOLE AND EXCLUSIVE REMEDY AGAINST CONSERVATION LABS ARISING OUT OF ANY BREACH OF THE LIMITED HARDWARE WARRANTY IS THE REPAIR OR REPLACEMENT OF ANY NONCONFORMING PRODUCTS, OR AT CONSERVATION LABS’S ELECTION, A REFUND OF THE PURCHASE PRICE.
(d) Conflict Minerals Warranty. Conservation Labs represents, warrants and covenants that no Conflict Minerals have been, and no Conflict Minerals will be, used in the production of any Products. “Conflict Minerals” has the meaning given in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder and without limitation includes: (i) columbite-tantalite (coltan, the metal ore from which tantalum is extracted), cassiterite (the metal ore from which tin is extracted), gold, wolframite (the metal ore from which tungsten is extracted) or their derivatives which originate in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo; and (ii) any other mineral or its derivatives determined by the Secretary of State of the United States of America to be financing conflict in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo.
(e) DISCLAIMERS OF WARRANTIES. EXCEPT ONLY AS CLEARLY AND EXPRESSLY SET FORTH IN THIS SECTION 8, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS,” AND CONSERVATION LABS AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF ACCURACY OF CONTENT, NON-INFRINGEMENT, NON-INTERFERENCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS IS WITH DISTRIBUTOR AND EACH END USER. NEITHER CONSERVATION LABS, NOR ITS LICENSORS, WARRANTS THAT ANY OF THE DATA OR OTHER INFORMATION AVAILABLE THROUGH THE SERVICE IS ACCURATE OR UP-TO-DATE. CONSERVATION LABS DOES NOT WARRANT THE PERFORMANCE OR RESULTS OF USING ANY PRODUCTS, OR AGAINST THE LOSS OF OR LOSS OF USE OF ANY DATA FOR ANY REASON.
(f) CONTRACTUAL LIMITATIONS PERIOD. ANY ACTION BY DISTRIBUTOR ARISING OUT OF THIS AGREEMENT MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
9. LIMITATIONS OF LIABILITY.
(a) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR ANY REPRESENTATION RELATED TO THE AGREEMENT, EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER CONSERVATION LABS, NOR ANY OF ITS SUPPLIERS, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES SHALL BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), STRICT LIABILITY, INDEMNITY OR OTHERWISE, FOR: (i) ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGE, LOSS, COST OR EXPENSE; (ii) ANY LOSS OF (1) USE, (2) PROFIT, (3) PRODUCTION, (4) COST OF PROCUREMENT OF SUBSTITUTE GOODS, (5) CAPITAL, (6) REVENUES, (7) CONTRACTS, (8) WATER, (9) BUSINESS, (10) GOODWILL, OR (11) ANTICIPATED SAVINGS; (iv) ANY COSTS OF REWORK, WASTED EXPENSES OR WASTED TIME; OR (v) ANY MATTER BEYOND CONSERVATION LABS’ REASONABLE CONTROL.
(b) EXCEPT FOR (i) A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS, OR (iii) A BREACH OF SECTIONS 6 OR 7, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABILITY OF A PARTY TO THE OTHER FOR ANY AND ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE), ARISING FROM THIS AGREEMENT OR DISTRIBUTOR’S OR END USERS’ USE OF ANY PRODUCTS OR SERVICES EXCEED IN THE AGGREGATE THE TOTAL FEES RECEIVED BY CONSERVATION LABS FROM DISTRIBUTOR UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. DISTRIBUTOR AGREES THAT CONSERVATION LABS HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. IN NO EVENT, HOWEVER, SHALL THE LIMITATIONS IN THIS SECTION APPLY TO DISTRIBUTOR’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT.
10. Indemnification.
(a) Except for claims arising from Distributor Data, Conservation Labs shall indemnify, defend and hold harmless Distributor, its officers, directors, employees, representatives, and agents against any third party claims (and resulting, to the extent payable to third parties: loss, damage or cost including reasonable attorney’s fees) alleging infringement by the Service of the intellectual property rights of a third party. The foregoing indemnity is conditioned upon Distributor providing Conservation Labs with prompt written notice of the claim, sole control of the defense and settlement of same, and all reasonable assistance in connection therewith. In the event a claim of infringement subject to indemnification is made, or Conservation Labs believes that such a claim is likely to be made, Conservation Labs shall, at its expense, either: (i) procure for Distributor the right to continue using the Services; or (ii) replace or modify the Service to make it non-infringing; or (iii) if neither (i) or (ii) above is commercially reasonable, terminate the Agreement and issue a refund equal for any prepaid but undelivered Services through the date of termination. This provision sets forth Distributor’s sole remedy for third party claims related to the infringement of intellectual property rights.
(b) Distributor hereby agrees to defend, indemnify and hold harmless Conservation Labs and its directors, officers, shareholders, employees, agents, assigns, and successors from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses (including without limitation attorneys’ and experts’ fees and expenses) incurred or suffered by it or any such indemnified person arising out of the use, distribution or sale by Distributor of any Products or Services. This indemnification shall survive delivery of Products and Services to Distributor and any subsequent transfer to a third party.
11. Term and Termination.
(a) Term. Unless terminated earlier or extended as provided herein, this Agreement shall have a term extending from the Effective Date until the first anniversary thereof (“Term”). The Term will be automatically renewed for successive one (1) year periods unless a Party provides written notice of non-renewal to the other not less than ninety (90) days prior to the end of the then current Term. Distributor understands that after the Term, for whatever reason, it shall have no right whatsoever to continue as a distributor of any of Conservation Labs’ Products regardless of any undocumented continuation of the relationship with Conservation Labs.
(b) Termination for Cause. This Agreement may be terminated by Conservation Labs for cause immediately if Distributor: (i) ceases to do business, or otherwise terminates its business operations or if there is a material change in control of Distributor; or (ii) fails to secure or renew any license, permit, authorization or approval for the conduct of its business in any significant area of the Territory, or if any such license, permit, authorization or approval is revoked or suspended; or (iii) breaches any provision of this Agreement and, except in the case of a compromise of Confidential Information where termination shall be effective immediately upon notice, fails to fully cure such breach within ten days (or such longer time as Conservation Labs may agree in writing) of written notice by Conservation Labs of the breach; or (iv) seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against Distributor.
(c) Termination for Convenience. Either Party may terminate this Agreement at any time, with or without cause, upon at least ninety (90) days’ prior written notice.
(d) Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever (“Termination Date”), Conservation Labs shall be obligated to fulfill only those orders that were accepted by Conservation Labs prior to the Termination Date, provided that Conservation Labs shall have no such obligation if Conservation Labs terminates this Agreement pursuant to Section 11(b). Within ten (10) days after the termination or expiration, Distributor shall provide to Conservation Labs all of Distributor’s most current versions of the following documents: sales records, training records, service records, warranty service reports, and End User agreements. Conservation Labs shall have the right, but not the obligation, to (i) purchase or (ii) broker the transfer to a distributor of Conservation Labs’ choosing any inventory of Products in Distributor’s possession on the Termination Date at the purchase prices paid by Distributor for such Products (“Remaining Inventory”). Distributor shall have the right for ninety (90) days after the Termination Date to continue to sell all or a portion of the Remaining Inventory that Conservation Labs chooses not to so purchase or broker, including to use Conservation Labs’ Marks in accordance with any license granted hereunder for such period solely for such purpose. Any Remaining Inventory that (x) Conservation Labs chooses to purchase or to broker or (y) Distributor has not sold within such ninety (90)-day period shall be shipped by Distributor at Conservation Labs’ direction and reasonable expense to a location designated by Conservation Labs. If requested by Conservation Labs in writing, Distributor shall continue to provide installation, warranty and other Product service to existing Customers with respect to the Products for a period designated by Conservation Labs of up to three (3) months after the Termination Date. Any such installation, warranty and other service rights will be on a non-exclusive basis and may be extended upon written agreement by Conservation Labs and Distributor. Except as set forth in this Section 11(d), Distributor shall cease providing service or otherwise interacting with Customers with respect to the Products as of the Termination Date. Distributor shall assign to Conservation Labs any Customer Agreements designated by Conservation Labs promptly upon its request in connection with any termination or expiration of this Agreement. In addition, Distributor shall immediately return to Conservation Labs at Distributor’s expense, all of Conservation Labs’ Confidential Information, and all Product promotional materials, except solely as needed for any applicable sell-off period. Conservation Labs shall incur no liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by Distributor arising from or incident to any termination of this Agreement by Conservation Labs which complies with the terms of the Agreement whether or not Conservation Labs is aware of any such damage, loss or expenses.
(e) Survival. All definitions and the provisions of Sections 1(b) and (c), 3(c) and 3(f)-(i), 6(a)-(b)and 6(e)-(f), 7, 8(b), 8(c)(vi) and 8(e), and 9-12 shall survive the termination or expiration of this Agreement for any reason. All other rights and obligations of the Parties shall cease upon termination of this Agreement; provided however, the terms of the Customer Agreements shall survive in accordance with their own terms. For the avoidance of doubt, any termination or expiration shall not relieve either Party of obligations incurred prior to the Termination Date.
12. General.
(a) Entire Agreement. This Agreement, including the Cover Sheet and the documents referenced therein and, if applicable, the EU Standard Contractual Clauses, constitutes the entire and exclusive agreement between the parties with respect to its subject matter, and may only be modified by a written amendment signed by the parties. This Agreement supersedes all prior or contemporaneous understandings of the parties related thereto including separate non-disclosure agreement between the parties relating to this subject matter as it relates to confidential information disclosed after the date of and pursuant to this Agreement. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly stated in this Agreement.
(b) Independent Contractors. Nothing in this Agreement will create any association, partnership, or joint venture between the parties.
(c) Governing Law And Venue. The Agreement shall be governed and construed in accordance with the laws of the State of Pennsylvania without regard to its choice of law principles. Subject to Section 12(i), below, the exclusive jurisdiction for any actions, arbitrations, or other proceedings arising out of or related to the subject matter of this Agreement or any Products or Services shall be the appropriate state and U.S. federal courts in Allegheny County, Pennsylvania.
(d) Export Restrictions. The Products and Services may be subject to export laws and regulations of the United States and other countries. Distributor shall comply with all applicable export laws and shall ensure that no Products or Services are used or accessed in violation thereof.
(e) Attorneys’ Fees. If any legal action is necessary to enforce the Agreement, Conservation Labs shall be entitled to its reasonable attorneys’ and experts’ fees, costs, and expenses in addition to any other relief to which it may be entitled.
(f) Notices. All notices required or permitted by this Agreement shall be deemed to have been given upon: (i) personal delivery, or (ii) the third business day after dispatch by certified or registered air mail, postage prepaid, or by overnight courier service. Notices to Distributor shall be sent to the contact name and address listed on the Order Form, or such other subsequent address as Distributor designates in writing to Conservation Labs in the manner provided herein. Notices to Conservation Labs shall be sent “Attn: Legal Department” to Conservation Labs at the address then listed for Conservation Labs’ corporate headquarters at https://www.ConservationLabs.com.
(g) Force Majeure. Conservation Labs’ performance hereunder shall be excused where it is prevented, substantially impeded, or delayed by war, actual or threatened act of terrorism, strike, embargo, riot, loss of power or connectivity, malfeasance or breach by third-party suppliers, explosion, machinery breakdown, equipment failure, accident, inability to obtain labor or materials beyond its reasonable control, new government restrictions or regulations, shelter-in-place orders, quarantines, epidemics and other widespread disease, government shutdowns, interruption or delay in transportation or travel, fire, flood, earthquake, act of God, or other causes or circumstances beyond its reasonable control, regardless of their dissimilarity to the foregoing.
(h) Publicity. Conservation Labs may identify Distributor as a Conservation Labs partner in Conservation Labs’ marketing materials, promotional presentations, customer lists, website and other written and electronic materials with Distributor’s consent. Any and all other uses of either party’s name shall be subject to the prior review and approval of the owning party, such approval not to be unreasonably withheld.
(i) Progressive Dispute Resolution. Any dispute between the parties arising out of or related to this Agreement (“Dispute”) shall be resolved as follows.
(i) Negotiations. In the event of a Dispute, the parties shall use their diligent good faith efforts to negotiate with one another to resolve it. Such efforts shall include, promptly upon notice by any party, at least one in-person meeting of the parties’ respective executive level officers with authority to settle the Dispute. At least five (5) business days prior to such meeting the parties shall exchange memoranda stating the issues in dispute and their positions, summarizing the negotiations that have taken place and attaching relevant documents. All communications and writings exchanged between the parties in connection with such discussions shall be confidential and shall not be used or referred to in any subsequent binding adjudicatory process between the parties.
(ii) Mediation. In the event the Dispute is not resolved through management negotiation within thirty (30) days after the initial notice of a Dispute is delivered, then either party may elect to have the Dispute attempted to be resolved by mediation in Allegheny County, Pennsylvania, under the auspices of JAMS, utilizing its then applicable procedures. Each party shall bear its own costs and expenses. The mediation must be completed within forty-five days after a party’s written notice to JAMS requesting mediation.
(iii) Arbitration. Except for unpaid invoices or other billed obligations owed by Distributor, any Dispute between the parties arising out of or related to this Agreement or any Products or Services shall be resolved by binding arbitration under the Commercial Arbitration rules then in force of JAMS, including its Appeal Procedures, or any other rules or organization upon which the parties may agree at that time (“Rules”), before a single arbitrator in Allegheny County, Pennsylvania. Distributor agrees that any arbitration shall be brought in its individual capacity only, and not as a plaintiff or class member of any purported class or representative or private attorney general, and the arbitrator shall have no jurisdiction over any such proceeding. All arbitration proceedings shall be conducted in English and shall be transcribed. If the parties are unable to agree on an arbitrator from the list provided by JAMS, they shall request from JAMS a list of five available arbitrators with experience in similar disputes, and each party may strike two names, leaving the remaining name(s) as the arbitrator. If more than one name remains, JAMS will make the selection from the remaining names based on the experience of the arbitrator with the type of Dispute. The arbitrator will allow reasonable discovery in the forms permitted by the Federal Rules of Civil Procedure, to the extent consistent with the purpose of the arbitration, including providing a relatively expeditious, informal, inexpensive, and fair forum. The arbitrator will have no power or authority under the Rules or the Federal Arbitration Act to amend or disregard any provision of this Section 12(i)(iii). The arbitration hearing shall be limited to not more than five (5) days, with each of Distributor and Conservation Labs being allocated one-half of the time for the presentation of its case (subject to minor adjustment as the arbitrator may decide is appropriate given the nature of the dispute). Unless otherwise agreed to by the parties and arbitrator, the arbitration hearing shall be conducted on consecutive business days. The arbitrator shall prepare in writing and provide to the parties an award including factual findings and the reasons on which his or her decision is based. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. The arbitration award may be enforced in any court of competent jurisdiction.
(iv) Remedies; No Waiver. All remedies available to Conservation Labs shall be cumulative and may be exercised separately or concurrently without waiver of any other remedies. The failure of Conservation Labs to act on a breach of this Agreement by Seller shall not be deemed a waiver of said breach or a waiver of future breaches, unless such waiver is in writing and is signed by Conservation Labs.
(v) Interpretation. Headings are for convenience only and are not to be used in the interpretation of this Agreement. No term of any Order shall be construed in favor of, or against, a party as a consequence of a party having had a greater role in the preparation or drafting thereof, but shall be construed as if the language were mutually drafted by both parties with full assistance of counsel.
(vi) Export Control. Distributor will comply with all applicable laws, including but not limited to export control laws and regulations, and will indemnify Conservation Labs for all damages, including reasonable attorneys’ fees, resulting from Distributor’s failure to do so.
(vii) Assignment. Neither this Agreement nor any right or obligation hereunder may be assigned, transferred, delegated, pledged or encumbered by Distributor (“Assignment”) without the prior written consent of Conservation Labs in its discretion. Any purported Assignment without such consent will be null and void ab initio. For purposes of the preceding sentence, a change in control of Distributor shall constitute an Assignment requiring Conservation Labs’ prior written consent; for this purpose, a “change in control” means a transfer, on a cumulative basis, of shares, voting rights or ownership interests which will result in a change in the identity of the person or persons exercising, or who may exercise, effective control of Distributor. Unless Conservation Labs expressly agrees in writing otherwise, no assignment by Distributor shall release it from its obligations hereunder. Conservation Labs may freely assign its rights and duties hereunder. This Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns (whether by operation of law, merger, change of control or otherwise) of the parties hereto.
(viii) Severability. If a court of competent jurisdiction finds any provision of this Agreement unenforceable, all other provisions will remain in full force and effect and the unenforceable provision will be replaced with an enforceable provision that most nearly achieves the intent and economic effect of the unenforceable provision.
[End of Distribution T&Cs]