Section 1
Definitions
1.1 The following terms used in this Agreement shall have the meanings stated below:
(a) “Confidential Information” means any and all non-public, proprietary or confidential information, including, without limitation, trade secrets, know-how and proprietary information, formulas and formulations, data, designs, schematics, techniques, plans, procedures, processes or any other information relating to any research project, work in process, future development, scientific, engineering, manufacturing, marketing or business plans or financial or personnel matters relating to either Party or its services, products, sales, suppliers, customers, employees, investors or affiliates. Confidential Information includes (i) the terms and conditions of this Agreement; (ii) information disclosed in a written or other tangible form which is clearly marked with a “confidential” or “proprietary” legend or other comparable legend; (iii) information disclosed orally or visually which is identified as confidential at the time of disclosure; and (iv) any other information which a reasonable person would deem confidential under the context of disclosure or due to the nature of the information itself, provided that “Confidential Information” shall not include the items listed in Section 2.2 of these Standard Terms and Conditions.
(b) “Disclosing Party” means the Party disclosing, supplying or otherwise making available its Confidential Information to the other Party.
(c) “Indemnified Party” means the Party seeking indemnification pursuant to Section 4.1.
(d) “Indemnifying Party” means the Party responsible for indemnification pursuant to Section 4.1.
(e) “Receiving Party” means the Party receiving or otherwise being provided access to the Confidential Information from the other Party.
Section 2
Confidentiality
2.1 Each Receiving Party agrees to keep confidential the Disclosing Party’s Confidential Information subject to the terms and conditions of this Section 2. The Receiving Party will safeguard the Confidential Information of the Disclosing Party using the same degree of care as it uses to safeguard its own Confidential Information, but in no case less than a reasonable degree of care. The Receiving Party will limit (a) access to the Disclosing Party’s Confidential Information to those of its personnel and agents with a need to know such Confidential Information for the performance of obligations under this Agreement and (b) use of the Disclosing Party’s Confidential Information to the exclusive purposes set forth in this Agreement. Unless otherwise agreed to by the Parties in writing, the Confidential Information of the Disclosing Party is and will remain the sole and exclusive property of the Disclosing Party, and the Receiving Party will have no right in or to the Disclosing Party’s Confidential Information.
2.2 Confidential Information will not include information to the extent that the Receiving Party can show that (a) such information is or became publicly available other than through any act or omission of the Receiving Party in breach of this Agreement; (b) such information was received by the Receiving Party from a third party, which third party, to the Receiving Party’s knowledge, had no obligation of confidentiality to the Disclosing Party; (c) such information was in the possession of the Receiving Party at the time of the disclosure; or (d) such information was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
2.3 Notwithstanding the foregoing, in the event a subpoena or other legal process is served upon the Receiving Party that, pursuant to the requirement of a governmental agency or law with jurisdiction over the Receiving Party, compels disclosure of the Disclosing Party’s Confidential Information, the Receiving Party may disclose such portion of the Disclosing Party’s Confidential Information required to be disclosed, provided that the Receiving Party notifies the Disclosing Party promptly of such request (unless such notice is prohibited by law, rule or regulation), and cooperates with the Disclosing Party, at the Disclosing Party's expense, in the Disclosing Party’s efforts to contest the legal validity or scope of such subpoena or other legal process.
2.4 Each Party acknowledges that it would be difficult to fully compensate for damages that may result from the breach or threatened breach of the provisions of this Section 2 and, accordingly, the other Party shall be entitled to seek injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions (without the requirement to post an injunction bond or other surety), to enforce such provisions. This provision with respect to injunctive relief will not, however, diminish a Party's right to seek other legal, contractual or equitable remedies, or to claim and recover damages in the event of a breach of this Section 2.
2.5 Except when disclosure is permitted pursuant to this Section or as may otherwise be required pursuant to the requirement of a governmental agency or law with jurisdiction over the Receiving Party, neither Party will disclose the economic terms of this Agreement to any third party without prior written approval from the other Party, provided that both Vous and Affiliate may disclose during the Term that Affiliate is a marketing affiliate of Vous.
Section 3
Representations and Warranties
3.1 Vous represents and warrants to Affiliate that:
(a) Vous is validly existing and in good standing under the laws of the jurisdiction of its formation.
(b) Vous has all requisite company power and authority to execute and deliver this Agreement and any purchase agreement with a Prospect concerning the Products, and to perform its obligations under the terms of this Agreement and any agreement with a Prospect concerning the Products.
(c) Vous shall materially comply with applicable federal, state and local laws, rules and regulations applicable to its provision of the Products to Prospects.
(d) The VOUS VITAMIN® trademark and logo, when used by Affiliate in the manner permitted herein, shall not infringe the trademark rights of any other person or entity.
3.2 Affiliate represents and warrants to Vous that:
(a) Affiliate is validly existing and in good standing under the laws of the jurisdiction of its formation.
(b) Affiliate has all requisite power and authority to execute and deliver this Agreement and to carry out and perform its obligations under the terms of this Agreement.
(c) Affiliate shall materially comply with all applicable federal, state, and local laws, rules, and regulations applicable to its performance under this Agreement including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be prominently disclosed.
(d) Affiliate’s business name, trademarks and logos, when used by Vous in the manner permitted herein, shall not infringe the trademark rights of any other person or entity.
3.3 EXCEPT AS EXPRESSLY SET FORTH HEREIN, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY DISCLAIMS ALL, WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Section 4
Indemnification
4.1 Each Party shall indemnify, defend and hold the other and its employees, officers, directors, shareholders and agents harmless for any and all losses, damages, costs (including reasonable attorneys’ fees), settlements and liabilities resulting from third party claims, suits, actions or proceedings arising from or relating to the gross negligence, willful misconduct, or a violation of law of itself or its personnel or agents in connection with this Agreement. An Indemnifying Party’s obligations under this Section 4 shall not be subject to any exclusions or limitations on damages or liability with respect to amounts payable to an Indemnified Party.
4.2 Upon becoming aware of events giving rise to an indemnification claim under Section 4.1, the Indemnified Party shall provide prompt written notice of such claim, including a reasonable description of the basis thereof, to the Indemnifying Party and allow the Indemnifying Party to control the defense of such third party claim at the Indemnifying Party’s expense, provided that the failure to provide prompt notice shall only relieve an Indemnifying Party of its indemnification and defense obligations if, and only to the extent that, the Indemnifying Party is materially prejudiced by such failure. The Indemnifying Party shall not settle any claim without the Indemnified Party’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) if such settlement would result in injunctive relief against, or admission of wrongdoing by, the Indemnified Party. If the Indemnifying Party elects to control the defense of such third party claim, the Indemnified Party shall have the right to participate in such defense at its own expense. The Indemnified Party shall provide reasonable non-monetary assistance to the Indemnifying Party in connection with the defense and/or settlement of any third party claim.
Section 5
Limitations on Liability
5.1 APART FROM EACH PARTY’S INDEMNIFICATION AND DEFENSE OBLIGATIONS TO THE OTHER UNDER THIS AGREEMENT, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER FOR ALL CLAIMS OR LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND PRODUCT LIABILITY), STRICT LIABILITY, INFRINGEMENT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, OR RESULTING DIRECTLY OR INDIRECTLY FROM THIS AGREEMENT SHALL NOT EXCEED AN AMOUNT EQUAL TO THE AMOUNTS PAYABLE TO THE OTHER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM.
5.2 NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS OR REVENUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PRODUCTS, EVEN IF THE PARTIES HAD KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.
Section 6
Independent Contractor Relationship
6.1 The Parties acknowledge that their relationship is one of independent contractors in connection with this Agreement. This Agreement shall not create any relationship of employment, agency or partnership between the Parties nor shall it give either Party any authority to bind or commit the other Party.
Section 7
Miscellaneous Provisions
7.1 This Agreement may not be assigned by either Party without the prior written consent of the other Party, except that either Party may assign this Agreement without the other Party’s written consent to (i) an affiliate; (ii) any corporation or other entity resulting from merger or consolidation with such assigning Party or to any person or entity that acquires all or substantially all of the assets of such Party’s business to which this Agreement relates; and (iii) its financing sources as collateral. Any assignment in violation of this Section 7.1 shall be null and void and of no force and effect.
7.2 This Agreement sets forth the entire understanding and agreement of the Parties with respect to the subject matter hereof and supersedes all prior agreements, arrangements and communications, whether oral or written, between the Parties with respect to the subject matter hereof.
7.3 No amendment or modification of this Agreement shall be effective unless made in writing and signed by an authorized representative of each Party. No waiver of any breach of this Agreement shall be effective unless made in writing and signed by an authorized representative of the waiving Party.
7.4 If any phrase, clause or provision of this Agreement is declared invalid or unenforceable by a court of competent jurisdiction or arbiter, such phrase, clause or provision shall be deemed severed from this Agreement, but will not affect any other provision of this Agreement, which shall otherwise remain in full force and effect.
7.5 Vous and Affiliate intend that this Agreement shall not benefit or create any right or cause of action in favor of or for the benefit of any person or entity other than the Parties.
7.6 This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without giving effect to principles of conflict laws. Each of the parties irrevocably submits, in any legal action or proceeding relating to this Agreement, to the jurisdiction of the state and federal courts located in Cook County, Illinois, and consents that any such action or proceeding may be brought in such courts and waives any objection that it may now or hereafter have to the venue of such action or proceeding in any such court or that such action or proceeding was brought in an inconvenient forum.
7.7 The headings assigned to the articles, sections and subsections of this Agreement are for convenience only and shall not limit the scope and applicability of the articles, sections and subsections.
7.8 No terms or conditions of either Party’s invoice, purchase order, or other administrative document (unless signed by both Parties and expressly referencing that it amends this Agreement) will be effective as a modification of the terms and conditions of this Agreement, regardless of the other Party’s failure to object to such.
7.9 Neither Party shall be deemed to be the drafter of this Agreement and if this Agreement is construed in any court or arbitration proceeding, said court or arbiter shall not construe this Agreement or any provision hereof against either Party as the drafter hereof.
7.10 This Agreement may be executed in one or more counterparts (including by means of facsimile or PDF), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Electronic signatures shall be acceptable.
