TERMS OF USE

ATTENTION: PLEASE READ THESE TERMS OF USE CAREFULLY BEFORE USING THIS WEBSITE.  USING THIS WEBSITE INDICATES THAT YOU AND YOUR COMPANY SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO BE BOUND BY THESE TERMS OF USE. 

BY USING THIS WEBSITE YOU WARRANT THAT YOU ARE TWENTY-ONE YEARS OF AGE OR OLDER.  IF YOU DO NOT ACCEPT THESE TERMS OF USE, AND IF YOU ARE YOUNGER THAN TWENTY-ONE YEARS OF AGE, YOU MAY NOT USE THIS WEBSITE.

Acceptance.  The following terms of use (“Terms of Use”) apply to all users of this website (the “Site”) and constitute a legal agreement between (a) Dana Distributors, Inc. (“Dana”) and (b) you, and if accessing the Site on behalf of your company, then also your company.  By using the Site you represent and warrant that: (i) you are twenty-one (21) years of age or older; (ii) you have, or if applicable, an appropriate representative of your company has read, understands and agrees to be bound by the Terms of Use and you have the power, authority and legal right to use the Site in accordance with these Terms of Use on behalf of yourself and if applicable, your company; (iii) if using this Site on behalf of your company, such use has been duly authorized by all requisite action, corporate or otherwise; and (iv) these Terms of Use are a valid, legal and binding obligation of you and your company, enforceable in accordance with its terms.  If you or, as applicable, your company do not agree to these Terms of Use, you cannot use the Site.  Dana may amend these Terms of Use from time to time, without notice, which amendments will be posted on the Site and will become effective upon posting.  It is your responsibility to review these Terms of Use to determine if there have been any changes, which will be indicated by a revision to the effective date posted above. Your continued use of the Site after posting shall constitute your, and if applicable your company’s, acceptance of and agreement to be bound by the amended Terms of Use.  Reference to the terms “you”, “your” or “yourself” in the remainder of these Terms of Use refers to both you and your company, collectively, unless otherwise expressly indicated. 

Scope of License.  The Site is intended solely for users who are 21 years of age or older.  If you are under the age of 21, you are not permitted to use the Site.  You acknowledge that all information (including, without limitation, text, layout, design elements, trademarks, images, product information, promotional information, and interactive software) published or otherwise made available on this Site (collectively, the “Information”) is protected in the United States and internationally by a variety of laws including, without limitation, copyright laws, trademark laws, patent laws, and other proprietary rights laws.  Accordingly, any unauthorized use of any such Information may violate any of such or other laws.  You acknowledge that Dana, its affiliates, or licensors are the sole and exclusive owners of all right, title, and interest in the Site and the Information.  The Information is provided by Dana as an accommodation to its customers, and may be used by you only to promote your purchase of the products distributed by Dana (the “Purpose”). This is a license, not a transfer of title.  You acknowledge that there may be situations where the Information is subject to change, qualifications, variations, adjustments or modifications without notice. Moreover, you acknowledge and agree that the Site and the Information contained thereon may contain errors, omissions, inaccuracies, mistakes or deficiencies. Accordingly, you hereby acknowledge and agree that these risks and exposures exist while utilizing this Site, that your use of this Site is subject to such risks and exposures, and that Dana will have no liability on account of any of the foregoing, and that this Site should be used as a guideline only. Dana reserves the right to change, suspend, remove, or disable access to the Site or any feature thereof, at any time without notice.  In no event will Dana be liable for any removal of or disabling of access to any portion of the Site. 

You may not: (a) modify, distribute, publish or transmit the Information for any public or (unless explicitly permitted) commercial purpose; (b) reproduce the Information in any form, or by any means, without Dana’s express permission; (c) remove any copyright or other proprietary notices from the Information or on any copy authorized by Dana; (d) allow or permit access to, or use of the Site, or any component thereof, by any unauthorized third parties (including without limitation any person under 21 years of age) or for any unlawful purpose; (e) engage in any conduct that in Dana’s sole and absolute discretion, restricts, inhibits or impacts any other authorized user from using the Site; (f) engage in any activities or practices that disrupt, circumvent or otherwise interfere with the operation of the Site; (g) access or attempt to access, without authorization, any password protected information on this Site or attempt to circumvent access restrictions or any other security measures; (h) perform any act or omission that would violate these Terms of Use; (i) use the Information to compete with Dana or otherwise in any way directly or indirectly detrimental to Dana; (j) use automated scripts to collect information from or otherwise interact with the Site; (k) use the Site to make available any content that is or may be harmful, threatening, false, inaccurate, misleading, unlawful, defamatory, disparaging, libelous, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically, or otherwise objectionable; (l) use the Site to make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, including but not limited to time bombs, Trojan horses, and worms; (m) use the Site to make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law, including without limitation providing any advice that requires a professional license or certification under applicable law; (n) impersonate any person or entity, or falsely state or otherwise misrepresent yourself, your age, or your affiliation with any person or entity; (o) express or imply that any statements you make are endorsed by Dana; (p) decipher, decompile, disassemble or reverse engineer any of the software comprising of, or in any way making up all or part of the Site; or (q) unless prior permission is granted by Dana, deep link, hot link, frame or otherwise make available content provided by the Site in any fashion so as to avoid the standard processes for viewing content through the Site. 

Without limiting Dana’s rights under the section titled “Downloading”, Dana may terminate this license at any time if you are in breach of these Terms of Use. 

User Provided Content.  This Site might include discussion forums or other interactive areas where users may post content, including, but not limited to, bulletin boards. All such forums and interactive areas shall be used only for non-commercial purposes. You are solely liable for any material you upload or make available in these interactive areas of this Site. You represent, warrant and agree that no materials of any kind submitted through your account or otherwise made available on or through the Site by you will misappropriate, violate, or infringe upon the rights of any third party, including copyright, patent, trademark, trade secret, privacy, publicity, or other personal or proprietary rights; or contain libelous, defamatory, or otherwise unlawful material; or contain material that otherwise violates these Terms of Use.  Further, any material you upload or make available in the interactive areas of the Site must comply with the National Beer Wholesalers Association Marketing & Communications Code, available at www.nbwa.org (“NBWA Code”).  By way of example and not limitation, material in compliance with the NBWA Code must not (i) encourage or endorse the illegal or irresponsible sale, purchase, or consumption of beer; (ii) suggest intoxication is acceptable or portray persons in a state of intoxication; (iii) contain material that has a primary appeal to people under the legal age to purchase alcohol; or (iv) refer positively to intoxicating effects of beer.  By submitting or posting content on the Site, you grant Dana, its parent, affiliates, subsidiaries, assigns, agents, and licensees the irrevocable, perpetual, worldwide, royalty-free right to reproduce, display, perform, distribute, adapt, and promote such content in any medium.

Copyright Policy.

• Dana is committed to complying with U.S. copyright law. It is our policy to terminate, in the appropriate circumstances and at Dana’s sole discretion, access to the Site for any user who has been found to have made content available on or through the Site in a way that in a way that infringes upon the intellectual property rights of others, irrespective of whether there has been repeated infringement by such user. 

• If you believe that your copyrighted work is made available on the Site in violation of your copyright rights, you may provide notice to us pursuant to § 512(c)(3) of the Digital Millennium Copyright Act (17 U.S.C. § 512(c)(3)) (“DMCA”). This DMCA notice should be sent to ____________, who is our “Designated Agent” and can be contacted as follows:

• By Mail: 52 Hatfield Lane, Goshen, NY 10924
• By Telephone: 845-294-4100

• Notice of Infringement. The DMCA notice to the Designated Agent should include the following:

1. Signature of Copyright Owner or Agent - A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

1. Identification of the Copyrighted Material - Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works.

• Identification of the Allegedly Infringing Material - Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material.

1. Contact Information - Information reasonably sufficient to permit us to contact the sender of the DMCA Notice, such as an address, telephone number, and, if available, an electronic mail address at which the sender may be contacted.

1. Good Faith Belief of Infringement - A statement that the sender of the DMCA Notice has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.

1. Accuracy and Authority - A statement that the information in the DMCA Notice is accurate, and under penalty of perjury, that the sender of the DMCA Notice is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Please note that a sender of a DMCA Notice may be liable for damages, including court costs and attorneys’ fees, if the sender materially misrepresents that content on the systems or networks offered or made available by Dana infringes upon the copyright of another.

Confidentiality.  You acknowledge that Information accessed through secure areas of the Site (i.e. areas requiring a user name and password) is confidential and proprietary to Dana (“Confidential Information”), and you agree:  (i) not to reveal, report, publish, copy, disclose or transfer Confidential Information to any third party without Dana’s prior written consent, or permit any third party to examine and/or make copies of any of the Confidential Information; (ii) not to use or copy the Information for any purpose except the Purpose; and  (iii) to hold the Confidential Information in strict confidence and to take all reasonable precautions to protect the Confidential Information.  Confidential Information shall not include any information that is or becomes generally available to the public. 

You acknowledge and agree that the Confidential Information is proprietary to and is the sole and exclusive property of Dana and that you have no right, title or interest therein.  You acknowledge and agree that the Confidential Information is a trade secret and is not readily accessible to competitors of Dana and that such Confidential Information has been acquired and assembled at significant expenditures of time and other resources.  You additionally acknowledge and agree that such Confidential Information: (i) provides Dana with a competitive advantage over those who do not know or use it; (ii) is kept in a safe place and Dana has taken and is taking all reasonable precautions to protect the secrecy of the Confidential Information and Dana’s legitimate interest in the Confidential Information; (iii) would be difficult for competitors of Dana or others to duplicate; and (iv) may be used by Dana in any manner it determines in order to aid in the marketing, sales and distribution of its products.

Acceptable Use.  You agree to:  (a) use the Site as an authorized user, only for the Purpose and only in accordance with the Terms of Use; (b) take all precautions necessary to maintain the secrecy and security of any passwords and user IDs that may be issued by you and be solely responsible for any use, misuse, theft or loss of any such passwords and user IDs, including unauthorized access by third parties; (c) comply with any and all applicable rules governing transactions on and through the Site; and (d) comply with all applicable laws and regulations that pertain to your use of the Site. In the event of any unauthorized use of the Site or should any unauthorized use of the Site be reasonably suspected by you or your company, you must notify Dana immediately by telephone and concurrently provide written notice of the circumstances surrounding the event.

Disclaimer.  THE Information CONTAINED IN THIS Site IS PROVIDED (AND THIS Site IS MADE AVAILABLE) “AS IS”, “WITH ALL FAULTS” AND WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND, ALL OF WHICH ARE HEREBY WAIVED.  Dana DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES AS TO WHETHER PRODUCTS, SOFTWARE OR THIS Site OR THE Information THEREIN ARE FREE FROM CLAIMS OF THIRD PARTIES CONCERNING INFRINGEMENT OR THE LIKE.  Dana DOES NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE Site OR Information, AND MAKES NO COMMITMENT TO UPDATE THE Site OR Information CONTAINED HEREIN. Dana CANNOT GUARANTEE OR WARRANT THAT THE Site IS FREE OF VIRUSES, TIME BOMBS, TROJAN HORSES, WORMS AND OTHER DAMAGING COMPUTER PROGRAMMING ROUTINES OR HARMFUL COMPONENTS. Dana CANNOT GUARANTEE OR WARRANT THAT THIS Site IS FREE OF SAME WHEN IT IS ACCESSED BY A USER, NOR DOES IT MAKE ANY SUCH REPRESENTATION OR WARRANTY, AND SAME ARE HEREBY WAIVED. USERS BROWSE AND USE THIS Site AND Information CONTAINED HEREIN AT THEIR OWN RISK.  Information CONTAINED IN THIS Site IS PROVIDED WITH THE EXPRESS UNDERSTANDING THAT Dana IS NOT RENDERING PROFESSIONAL ADVICE OR OPINIONS ON SPECIFIC FACTS AND MATTERS AND, ACCORDINGLY, Dana ASSUMES NO LIABILITY IN CONNECTION WITH THE USE OF THIS Site OR THE Information.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Dana BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, DIRECT, INDIRECT OR SPECIAL DAMAGES, OR LOST PROFITS OR EXPENSES OF WHATSOEVER KIND AND NATURE, IMPOSED UPON, INCURRED BY OR ASSERTED OR AWARDED AGAINST YOU, DIRECTLY OR INDIRECTLY ARISING OUT OF, RELATING TO OR RESULTING FROM: (I) THE Site; (II) YOUR USE, YOUR INABILITY TO USE, OR ANY RESULT OF YOUR USE OF THIS Site OR ANY WEBSITES THAT ARE LINKED TO OR FROM THIS Site; (III) YOUR USE (OR RELIANCE ON ANY) OF THE Information CONTAINED IN THIS Site OR ANY SITE LINKED TO OR FROM THIS Site; (IV) ANY BREACH OF WARRANTY, EXPRESS OR IMPLIED, UNDER THESE Terms of Use OR OTHERWISE; OR (V) ANY OTHER BREACH OF ANY OBLIGATION OR DUTY OWED BY Dana HEREUNDER OR UNDER APPLICABLE LAW, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH Dana KNEW OR SHOULD HAVE KNOWN OF.  THIS LIMITATION OF LIABILITY WILL APPLY TO ANY CLAIM WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, WARRANTY OR ANY OTHER LEGAL THEORY, AND REGARDLESS OF WHETHER Dana HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN THE EVENT THAT ANY TERM OF ANY AGREEMENT BETWEEN YOU AND Dana IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL NEVERTHELESS CONTINUE IN FULL FORCE AND EFFECT.

 

All Information relating to descriptions and characterizations of products contained on this Site (“Product Data”) are provided solely for purposes of identifying the products in question and for illustrative purposes and do not constitute a warranty that such products will conform to such Product Data, and Dana hereby waives any and all liability in connection therewith. 

Trademarks.  Any trademarks, logos, slogans, product designations, service marks, and trade dress (collectively “Marks”) displayed on this Site are the property of Dana or other third parties.  You are not permitted to use these Marks without the prior written consent of Dana or such third party that may own any such Mark.  This Site may contain information and disclosures of products which may be the subject of intellectual property protection owned by Dana.   Notwithstanding anything to the contrary herein contained, nothing on this Site is to be construed as granting any license whatsoever, by implication or otherwise, to any Marks.

Promotions.  From time to time, Dana may conduct promotions on or through the Site, including without limitation, contests, sweepstakes and other promotions (“Promotions”). Each Promotion may have additional terms and/or rules of participation (“Promotion Rules”), which will be posted or otherwise made available to you. The Promotion Rules for each Promotion in which you participate will be deemed incorporated into and form a part of these Terms of Use for each such Promotion. It is your responsibility to read the applicable Promotion Rules to determine whether or not your participation, registration, or entry will be valid or restricted, and to determine your participation requirements. 

Third Party Sites.  This Site may contain links to third party websites (“Third Party Sites”) or offer content from Third Party Sites.  Dana makes no representations about any Third Party Sites or the content thereof which you may access through this Site.  You acknowledge that Dana has not reviewed all these Third Party Sites, has no control over such Third Party Sites or the content thereof, and is not responsible for any of these sites or their content.  Accordingly, you acknowledge and agree that access to any Third Party Site, or content thereof, is at your own risk and Dana shall have no liability therefor. Dana is not responsible for the accuracy, reliability or completeness of any information, data, opinions, advice or statements made on these Third Party Sites.  Dana shall not be liable for any damages or injury arising out of or relating to the content of any Third Party Site, content from any Third Party Site, or your use thereof, and same are hereby waived.  Dana provides these links and content merely as a convenience and the inclusion of thereof does not imply an endorsement, sponsorship or recommendation by Dana of anything contained on Third Party Sites, or its products or services.  Dana reserves the right to terminate any Third Party Site link or content at any time. 

Moreover, a Third Party Site may provide a link to this Site (“Links”).  This does not indicate an endorsement, authorization, sponsorship, affiliation, joint venture or partnership by or with Dana.  In most cases, Dana is not aware that a third party has linked to this Site.  You acknowledge and agree that Dana shall not be liable for any damages or injury arising out of or relating to your use of this Site resulting from a Link to this Site from a Third Party Site, and same are hereby waived.

Dana cannot guarantee that any of the Third Party Sites, content thereof, or Links will be free from any viruses, time bombs, Trojan horses, worms or any other damaging computer programming routines or harmful components.  Moreover, Dana does not make, and you hereby expressly waive, any and all representations and warranties with respect to the availability, use, accuracy, reliability, or the results of the use of, the Third Party Sites, content thereof, and the Links, and same are hereby waived.  Accordingly, Dana hereby disclaims all warranties, express or implied, arising by operation of law or otherwise, including, but not limited to, the warranties of merchantability, fitness for a particular purpose and warranties concerning infringement or the like, all of which are hereby waived.

Downloading.  To access certain Information on this Site, you may need to download such Information onto your own computer.  You acknowledge and agree that your right to download Information from this Site is strictly limited to the Purpose and for no other purpose whatsoever.  Information which is downloaded may only be displayed by you for the Purpose, provided it is not modified in any way and that all notices are maintained without change including, without limitation, copyright notices.  As more particularly stated in the section titled “Acceptable Use”, Dana is not responsible for the completeness, accuracy and reliability of Product Data downloaded onto your systems or the use of such Information. You also acknowledge and agree that any Information downloaded from this Site is done at your own discretion and risk and you are solely responsible for any loss of data or damage to your computer that may result from the download of such Information.  You agree not to forward materials you download from the Site to persons who are under the age of 21.

Termination of Access.  Dana shall have the right to terminate, limit or suspend your access to all or any part of the Site at any time, with or without notice, for any reason or no reason, including without limitation, for any conduct that Dana believes is in violation of these Terms of Use or any applicable laws or is harmful to the interests of another user, any third party or the Site.  Moreover, Dana reserves the right to discontinue the availability of the Site or any portion thereof at any time, and you agree Dana will have no liability for doing so.

User Submissions.  By submitting any questions, comments, suggestions, ideas, feedback, reviews, images, videos, or other information or content (“Submissions”) to Dana, either online of offline, and whether or not solicited by Dana, you hereby grant to Dana, its parent, affiliates, subsidiaries, assigns, agents, and licensees, an irrevocable, nonexclusive, perpetual, worldwide, royalty-free right and license to use, display, publicly perform, modify, reproduce, publish, distribute, make derivative works of, sublicense, and otherwise commercially and non-commercially exploit your Submissions and all copyright, trade secret, trademark, or other intellectual property rights therein, in any manner or medium now existing or hereafter developed, without compensation or attribution of any kind to you or any third party.

You represent, warrant and agree that (i) you have all necessary right, power, and authority to grant the license set forth herein to your Submissions; (ii) your Submissions will be true and accurate; (iii) Submissions do not and will not violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity, or other personal or proprietary rights; and (iv) will not contain material that otherwise violates these Terms of Use, applicable laws, rules or regulations.  You agree to take, at Dana’s expense, any further action (including without limitation execution of affidavits and other documents) reasonably requested by Dana to effect, perfect, and confirm the license granted to Dana for your Submissions as stated herein.

Publication or use of any Submissions is at the sole discretion of Dana and Dana is under no obligation to publish or use any Submission. If your Submission is published, used and/or posted on the Site or otherwise used by Dana, we may include your name, likeness, photo or biographical information in conjunction with such publication, posting, or use. By submitting, disclosing, or offering a Submission, you hereby grant Dana the right to use your name in connection with the publication, use or posting of your Submission.

Miscellaneous. 

• This Site is administered by Dana from its offices in the state of New York. Dana makes no representation that Information in this Site is appropriate or available for use outside the United States. Access to this Site is prohibited in any territories where the content of this Site is illegal.

• Failure or delay by Dana to enforce compliance with any term or condition of these Terms of Use shall not constitute a waiver of such term or condition.

The Terms of Use supplements and is in addition to Dana’s standard terms below. In the event there is any conflict between these Terms of Use and Dana’s standard terms below, Dana’s standard terms shall govern and control.

 

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DISTRIBUTION TERMS

STANDARD TERMS

PART I

1.                Terms and Acceptance.    The offer contained in each purchase order (an “Order”) issued by our company (“Distributor”) shall be deemed to have been accepted by your company (“Supplier”) subject to the terms and conditions stated herein upon the occurrence of the earliest of: (i) Supplier’s written acceptance of the Order, (ii) Supplier’s confirmation of its acceptance of the Order via email, (iii) Supplier’s commencement of performance under the Order, (iv) Supplier’s shipment of the Products (as defined below) pursuant to the Order, or (v) Supplier’s acceptance of any payment from Distributor for the Products specified in the Order.   The offer contained in each Order is made on the terms and conditions stated herein, which incorporate by reference the Electronic Funds Transfer (EFT) [and Modification of Terms] Agreement signed by Supplier and Distributor (collectively, the “Order Terms”) and no others.  Any additional, inconsistent or different terms stated in any proposal, quotation, confirmation, sales order, invoice, acceptance document or other document issued by your company or contained in any Web Terms shall be of no force and effect.  Accordingly, your company’s acceptance of each Order is expressly subject and limited to these Order Terms.  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 these Order Terms shall be binding upon our company unless expressly accepted in writing by Distributor.  Notwithstanding the foregoing, to the extent any Order is considered a response to an offer made by your company based on previous documents or circumstances, then subject to the last sentence of this paragraph 1, acceptance of Supplier’s offer is subject to these Order Terms.  However, if these Order Terms would not otherwise become part of the contract between our companies under applicable law due to other documents or circumstances or Web Terms, then (i) acceptance of such offer is expressly made conditional on Supplier’s assent to these Order Terms; and (ii) if Supplier does not assent to such terms, there is no contract.

2.                Definitions.  (a)  The term “Person” means any natural person, corporation, division of a corporation, company, 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 beverages specified on the face of the applicable Order together with all 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 otherwise used to identify the Products (including, without limitation, those set forth herein) and any enhancements, modifications or derivatives thereof and changes thereto.

             (e) The term “Web Terms” means any click-wrap, browse-wrap, or other terms and conditions contained on Supplier’s website or web portal or any third party website or web portal used in connection with ordering Products or the transactions contemplated hereby, regardless of whether Distributor has indicated its assent thereto as a condition of using such website or web portal.

3.                Delivery, Risk of Loss and Related Matters.   (a) With respect to each Order, Supplier shall deliver conforming Products on the delivery dates specified therein.  Such delivery dates will comply with Supplier’s applicable lead time requirements made available for its most preferred wholesalers on the date such 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.  Any Order may be issued electronically or in writing.

             (b)  Should Distributor desire to cancel any Order submitted to Supplier, Distributor will notify Supplier and Supplier will make good faith efforts to redirect the Products covered thereunder to another distributor.  If Supplier is unable to do so despite such efforts, shipment of the Products pursuant to such Order will be made to Distributor who will make payment therefor in accordance with the provisions hereunder.

              

             (c)  Products ordered pursuant to an 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, or if not so set forth, f.o.b. Distributor’s applicable plant.   

4.                Purchase Price and Payment Terms.  (a) Subject to paragraph 14(b), the price payable for Products is set forth on the face of the applicable 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.

5.                Inspection.  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.

6.                Packaging.  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 designed to prevent damage to the Products and which are suitable for domestic or international shipment of the Products, as the case may be, with such containers numbered and labeled with the order number, stock number, contents, and weight and designed to prevent damage to Products in transit; 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 an Order, and upon the delivery and acceptance of the Products which are the subject of such Order:

• Supplier has obtained and holds all necessary federal, state and local licenses, authorizations and permits to operate its business and to sell the Products to Distributor pursuant to the terms and conditions herein;

• 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;

• Products delivered pursuant hereto are fit for human consumption, are merchantable, of good average quality, and are free from any and all defects and when delivered to the delivery point, have a remaining shelf life of at least 6 months for its bottled products and at least 2 months for its draught products;

• Products sold pursuant hereto will be free from any security interests, liens and 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;

• 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; and

• Supplier has all corporate authority to perform its obligations arising pursuant to these Order Terms and compliance with such terms will not conflict with or violate any other agreement or understanding to which Supplier is a party or is bound.

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 of these Order Terms (“Non-conforming Products”); (ii) Supplier’s breach of or failure to perform any of its obligations under these Order Terms; (iii) Supplier’s breach or misrepresentation of any representation or warranty made by Supplier under these Order Terms; or (iv) Supplier’s termination of the Distribution Relationship (as defined in Part II of these Order Terms), if applicable, other than in accordance with paragraph 15 hereof.

             (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 and 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 and 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, 16 and 17.  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, the entire Order in question, any other then pending Orders and, if applicable, the Distribution Agreement, so as to entitle Distributor to exercise any one or all of the remedies specified in these Order Terms and Supplier hereby waives its right to cure the default in question.

9.                Indemnification.  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) Supplier’s breach of any covenants made by Supplier under these Order Terms; (ii) the breach of any representation or warranty made by Supplier to Distributor under these Order Terms concerning the quality or attributes of the Products; (iii) Distributor’s use of the Marks in the Territory; (iv) the quality or condition of or inherent defect in the Products at that time of delivery to Distributor; (v) any injury or damage to person or property as a result of the consumption of the Products; and (vi) Supplier’s termination of the Distribution Relationship, if applicable, other than pursuant to and in accordance with paragraph 15 hereof.  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 therefor.  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 these Order Terms 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.  These Order Terms 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 these Order Terms, a modification includes, without limitation, a change in the competitive circumstances under which these Order Terms were entered into which is caused by Supplier without fault on the part of Distributor.

       (c)  Invalidity of Provision. Any term or provision of these Order Terms 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 these Order Terms or affecting the validity or enforceability of any of the terms or provisions of these Order Terms in any other jurisdiction.  Further, to the extent that any term or provision hereof is deemed invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.

             (d)  Governing Law.  Distributor and Supplier acknowledge and agree that these Order Terms and the Distribution Agreement are contracts made in the United States, State of New York and that same evidence a transaction involving interstate commerce.  All questions pertaining to the validity, construction, execution and performance of these Order Terms and, if applicable, the Distribution Relationship shall be construed and governed in accordance with the laws of the United States of America, State of New York, but subject to the qualifications specified in the arbitration provisions of Part II of these Order Terms, and without giving effect to the principles of (i) comity of nations or (ii) conflicts or choice of law provisions thereof, and these Order Terms shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods.  The Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings of the arbitration pursuant to this Order and, if applicable, the Distribution Relationship.  Both Distributor and Supplier further agree that service of process for any arbitration 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.  A waiver given in any case shall only apply with respect to that particular act, omission or breach, and shall not be effective as to any further or subsequent act, omission or breach, regardless of whether they be of the same or similar nature.

              (f)  Assignment.  Supplier may not assign or otherwise delegate any of its rights or obligations hereunder or under the Distribution Agreement, if applicable, and Distributor may not assign any of its rights hereunder or under the Distribution Agreement, if applicable, without the prior written consent of the other party, which consent will not be unreasonably withheld.   In the event Distributor seeks to assign any of its rights hereunder or under the Distribution Agreement, if applicable, Supplier will not unreasonably withhold 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 beverage products.  Supplier shall give Distributor written notice of its decision whether to give or withhold its consent within sixty (60) days after receipt of Distributor’s request to assign its rights under these Order Terms or under the Distribution Agreement, if applicable. If, within that time, Supplier gives written notice to Distributor of its decision to withhold its consent, then Distributor shall have the right and option to require Supplier, and Supplier will be bound, to purchase such rights, at the price, and on the terms and conditions set forth in the agreement between Distributor and the proposed assignee.  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 these Order Terms or under the Distribution Agreement, if applicable, will not be deemed to materially change the duty of the Supplier, or increase materially the burden or risk imposed upon the Supplier by these Order Terms or under the Distribution Agreement, if applicable, 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 these Order Terms or the Distribution Agreement, if applicable, 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.

• Survival. The terms of this paragraph 11(g) and paragraphs 7, 9, 10, 15, 16, 17 and 18 shall survive the termination of these Order Terms and termination of the Distribution Relationship, if applicable.     

• Headings. The headings in these Order Terms are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of these Order Terms.

• Entire Agreement. These Order Terms, the Distribution Agreement and the Distribution Relationship, 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. In that regard, any option or supplemental agreement between Supplier and Distributor to acquire distribution rights to the Products is hereby terminated and shall be of no further force or effect, except that any grant of any distribution rights contained therein shall continue to survive and remain unaffected by the termination of any such agreement pursuant hereto. No course of dealing, usage of trade or course of performance shall be relevant to explain, supplement or modify any express provision of these Order Terms.

• Independent Contractor Status and Related Matters. Distributor’s status hereunder shall at all times be that of an independent contractor.  Nothing in these Order Terms is intended, nor shall it be construed, to (i) make Supplier and Distributor partners or joint venturers nor grant a right in or to any business activity or investments of or to the income or proceeds disbursed therefrom; or (ii) create a relationship between Supplier and Distributor of principal and agent or employer and employee. Supplier is only concerned with the results to be accomplished by Distributor in its marketing, distribution and sale of Products pursuant hereto; the manner and means to be employed by Distributor in achieving such results are entirely within its own authority and control.  Distributor is free to schedule its own operations and truck routing.

PART II

In addition to the provisions set forth in Part I hereof, the provisions of this Part II are also applicable in the event any Order is issued pursuant to a Distribution Relationship.  For purposes of these Order Terms, the term “Distribution Relationship” means that (i) Supplier has granted Distributor the right to purchase Products from Supplier for the purpose of distributing the Products in a particular geographic territory, which grant may be verbal, in writing, pursuant to a signed agreement by and between Supplier and Distributor or through course of performance or otherwise (a “Distribution Agreement”); 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 distributing Products in such territory.  Notwithstanding anything to the contrary contained herein, these Order Terms shall supplement the terms of any Distribution Agreement, however, in the event of a conflict or inconsistency between the terms of these Order Terms, on the one hand, and a Distribution Agreement or Web Terms, on the other hand, these Order Terms will govern and control.

12.             Application of Governing Statute.  Supplier and Distributor acknowledge and agree that Distributor, through its distribution, marketing and promotion of the Products in the Territory, is building the brand recognition and goodwill of the Products, as contemplated and recognized under New York Alcoholic Beverage Control Law § 55-c (“ABC Law”).  Therefore, the parties agree that the provisions of ABC Law will govern and control the terms of these Order Terms and the Distribution Relationship whether or not the Products sold by Supplier to Distributor under these Order Terms or any Distribution Agreement are beer, except that the provisions of ABC Law § 55-c(2)(e)(i) and § 55-c(4)(c) shall not apply to these Order Terms or any Distribution Agreement to the extent concerning any Products that are not beer.  For the purposes of these Order Terms and the Distribution Relationship, (i) Supplier will be deemed to be a “brewer” within the meaning ABC Law; (ii) Distributor will be deemed to be a “beer wholesaler” within the meaning of ABC Law; (iii) the Distribution Agreement between Distributor and Supplier will be deemed to be an “agreement” within the meaning of ABC Law; (iv) the terms “beer”, “cider”, “liquor”, “spirits” and “wine” will have the meanings ascribed thereto in New York Alcoholic Beverage Control Law § 3; (v) subject to the provisions of this paragraph 12, the term “good cause” shall have the meaning ascribed thereto in ABC Law § 55-c(2)(e); and (vi) the following terms as used in ABC Law § 55-c(2)(e)(i)(A) will have the following meanings: “essential” means indispensable and of the utmost importance to the Supplier, without which the Supplier could not operate profitably; and “contiguous states” means New Jersey, Pennsylvania, Connecticut and Vermont. 

13.             Appointment; Exclusive Territory.  (a) By Supplier’s acceptance of any Order issued by Distributor pursuant to the Distribution Relationship, 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 Agreement 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.

      

14.             Supply.  (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 the Orders issued from time to time by Distributor pursuant to the Distribution Relationship.  Supplier will accept all Orders and fulfill Distributor’s requirements for Products pursuant to the provisions hereof.

            Supplier hereby acknowledges and agrees that Distributor’s requirements for Products may significantly increase relative to its prior requirements and that Supplier will supply such increased requirements of Distributor, even if same are substantially disproportionate from Distributor’s previous requirements.  Supplier further acknowledges and agrees that such increased requirements will be permissible even if the reason therefor is not currently contemplated by the parties hereto.

Supplier further acknowledges and agrees that Distributor shall have the right to reduce its requirements for Products at any time or from time to time for any bona fide business reason or none at all, even if such reduction in requirements is substantially disproportionate relative to Distributor’s previous requirements.

             (b)         Prices payable by Distributor for Products pursuant to the Distribution Agreement 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 Agreement constitutes, and will be deemed to constitute, an installment contract within the meaning of the New York Uniform Commercial Code and that the Orders shall be construed to be orders issued under an installment contract constituting the Distribution Agreement, and are not to be construed as individual unitary contracts. All amounts due from Distributor under any particular Order or the Distribution Agreement are subject to off-set by Distributor for any claim Distributor may have under such Order or any other Order or the Distribution Agreement. 

15.             Term; Termination.   (a)  The term of the Distribution Relationship will continue until terminated pursuant to paragraphs 15(b) or 15(c).

             (b)  Subject to paragraph 16, Supplier shall only have the right to terminate the Distribution Relationship pursuant to and in accordance with the ABC Law and these Order Terms except that the provisions of ABC Law § 55-c(2)(e)(i) and § 55-c(4)(c) shall not apply to any Distribution Relationship to the extent it concerns Products that are not beer.

             (c)  Subject to paragraph 16, Distributor shall have the right to terminate the Distribution Relationship as follows: (i) immediately upon the occurrence of an Event of Default 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.

(d)  If either party initiates a termination of the Distribution Relationship, then during any notice or cure period specified herein or in ABC Law, the parties will continue to perform their respective obligations hereunder.  Accordingly, the parties will do the following during any such notice or cure periods (the “Interim Period Obligations”):

(i)         Supplier will continue to supply Distributor’s requirements for Products and Distributor will continue to distribute same in the Territory;

(ii)        Distributor will pay for Products when due as provided herein; and

(iii)       in the event the Distribution Relationship is terminated, the parties will comply with the provisions of paragraph 16.

 

             (e)  Notwithstanding anything to the contrary contained herein, regardless of whether termination has been initiated or any relative cure or notice periods have expired, the Distribution Relationship may not be terminated prior to the payment by Supplier of the amounts due Distributor pursuant to paragraph 16(b) and the parties shall be obligated to continue to perform the Interim Period Obligations until such payment is duly made.   

16.             Post-termination Obligations. 

(a)         If either party terminates the Distribution Relationship pursuant to and in accordance with paragraph 15 then:

(i)         Supplier will purchase from Distributor and Distributor will sell to Supplier all of Distributor’s then saleable inventory and p.o.s. materials 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 of the Distribution Relationship and payment of the amounts due Distributor pursuant to paragraph 16(b).  “Saleable inventory” means undamaged Products having a remaining shelf life of at least 30 days pursuant to 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, net of any discounts, credits, allowances, or rebates, for the Products or p.o.s. materials 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. materials, as the case may be.  Supplier will pay for such inventory when delivered at Distributor’s warehouses; such payment will be by Supplier check; and

            

(ii)        Supplier will refund deposits on kegs returned by Distributor within six (6) months following the date of the termination of the Distribution Relationship.

(b)         (i) If Supplier terminates the Distribution Relationship other than for a proper termination for “good cause” in accordance with ABC Law, Supplier will immediately 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 termination of all or a portion of the Distribution Relationship; and that as reasonable compensation for such damages, Supplier shall pay Distributor liquidated damages for each Product covered by the Distribution Relationship (the “Liquidated Product Amount”).  The Liquidated Product Amount for each Product will equal the greater of (x) the amount set forth in any Distribution Agreement covering such Product, or (y) the product derived from the following formula: [To be provided by Ippolito Christon]. Supplier acknowledges that the Liquidated Product Amount is fair and reasonable and is intended to reflect and compensate Distributor for the increased investment of time and expense incurred by Distributor to penetrate the market and establish brand recognition for Products.   

• If Supplier terminates the Distribution Relationship for “good cause” under ABC Law § 55-c(2)(e)(ii), Supplier will immediately pay to Distributor a lump sum payment equal to the Liquidated Product Amount, less Supplier’s actual damages (the “Reduced Liquidated Product Amount”), but in no event shall the Reduced Liquidated Product Amount be less than fifty percent (50%) of the applicable Multiple times the Gross Profit of each of the particular Products in question, multiplied by the 12 Month Quantity.

• Supplier will be deemed to have terminated a portion of the Distribution Relationship for purposes of this paragraph 16 in the event Supplier terminates Distributor’s right to purchase a particular brand or brands of Products, as opposed to all of the Products. In such event (A) Supplier will be deemed to have terminated the Distribution Relationship only with respect to then terminated Products in question (the “Affected Products”); and (B) Supplier will then immediately pay to Distributor the Liquidated Product Amount 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 Distributor’s right to receive compensation pursuant to this paragraph 16(b), Distributor hereby reserves the right to pursue equitable remedies such as injunctive relief and specific performance in the event Supplier breaches any of the provisions of these Order Terms or the Distribution Agreement or otherwise attempts to terminate all or a portion of the Distribution Relationship.

• Supplier and Distributor acknowledge and agree that the Liquidated Product Amount and the reduced Liquidated Product Amount, as the case may be, consisting of liquidated damages, plus the amounts paid to Distributor for inventory under paragraph 16(a), are 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 Product Amount and the Reduced Liquidated Product Amount, as the case may be, is agreed upon as liquidated damages and not as a penalty.  Supplier shall promptly pay Distributor the amounts specified in this paragraph 16(b) when due and prior to terminating the Distribution Relationship as more particularly stated in paragraph 15(e) above.

• Notwithstanding the foregoing, if Supplier fails to pay the Liquidated Product Amount when due or if Supplier terminates or attempts to terminate the Distribution Relationship in a manner inconsistent with the provisions hereof, then Distributor shall have the right, at Distributor’s option, to set aside the Liquidated Product Amount specified in this paragraph 16(b) and seek all available rights and remedies available hereunder and under applicable law.

17.             Arbitration.

1. Any controversy or claim arising out of or relating to these Order Terms or the Distribution Relationship (including, without limitation the Distribution Agreement) or the breach hereof or thereof, including, without limitation, whether or not such dispute is subject to arbitration, shall be settled by binding arbitration before a panel of three (3) arbitrators (the “Panel”) administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (as modified hereby), at the offices of AAA in New York, New York.

1. Notwithstanding anything to the contrary contained under applicable law, the parties hereto hereby agree that the following provisions shall apply to any arbitration proceeding covered by these Order Terms or the Distribution Relationship.

1. Except in the case of a Supplier For Cause Termination (as defined below) and subject to paragraph 17(b)(ii) below, the Panel shall award liquidated damages in favor of Distributor in the amount of the Liquidated Product Amount, calculated pursuant to the provisions of paragraph 16(b) of these Order Terms, in the event Supplier attempts to implement or does implement a termination of all or a portion of the Distribution Relationship.

Subject to paragraph 17(b)(ii) below, in the event the Panel has entered a final award finding that the Supplier has the right to terminate the Distribution Relationship for “good cause” under ABC Law § 55-c(2)(e)(ii) (a “Supplier for Cause Termination”), then the Panel shall award liquidated damages in favor of Distributor in the amount of the Reduced Liquidated Product Amount, calculated in accordance with paragraph 16(b)(ii) of these Order Terms.

In determining the Liquidated Product Amount or the Reduced Liquidated Product Amount (as the case may be), the Panel shall not consider or determine whether or not the Liquidated Product Amount or Reduced Liquidated Product Amount is in the nature of a penalty or is otherwise not enforceable, and Supplier does hereby waive any and all rights to assert that any such amount is unenforceable for any reason.

1. At the option of Distributor, the Panel (or any emergency arbitrator appointed as set forth below) is authorized and empowered, and is hereby directed to issue an interim or final award, upon the request of Distributor, granting injunctive or mandatory injunctive relief and the Panel or emergency arbitrator (as the case may be) shall not consider or require the posting of any bond or proof of irreparable harm with respect thereto in the event that Supplier attempts to implement or does implement a termination of the Distribution Relationship without obtaining a final award in arbitration with the following findings and determinations, as applicable:

1. a finding (x) that a Supplier For Cause Termination has occurred, or (y) in the situation where the Products are beer, (1) that the Supplier has “good cause” under ABC Law §55-c(2)(e)(i) as clarified by these Order Terms, or that the provisions of ABC Law § 55-c(4)(c) apply and Supplier has the right to terminate the Distribution Relationship without “good cause”, (2) determining the amount of the Liquidated Product Amount (or in the case of a Supplier For Cause Termination, determining the amount of the Reduced Liquidated Product Amount), and (3) that payment of the Liquidated Product Amount or Reduced Liquidated Product Amount, as the case may be, by Supplier to Distributor has occurred; or

1. a finding (w) that a Supplier For Cause Termination has not occurred, (x) that Distributor has elected to receive payment of the Liquidated Product Amount due to Supplier’s actual or attempted termination of the Distribution Relationship, (y) determining the amount of the Liquidated Product Amount, and (z) that payment of the Liquidated Product Amount by Supplier to Distributor has occurred.

In the event Distributor requests injunctive or other preliminary relief prior to the appointment of the Panel, the AAA is hereby directed, upon written demand of Distributor, to appoint a single emergency arbitrator to rule on such application pursuant to the provisions of these Order Terms.  The appointment by the AAA shall be made within one (1) business day of receipt of written demand therefor. In addition to requesting the appointment of the emergency arbitrator, the demand shall attest that the Supplier has terminated or threatened imminent termination of the Distribution Relationship, and the applicable conditions set forth in paragraph 17(b)(ii) have not been satisfied.  A copy of the demand shall be delivered by Distributor to Supplier by e-mail, facsimile transmission or overnight mail.  Within two (2) business days of the appointment of the emergency arbitrator, Supplier shall serve upon the emergency arbitrator and Distributor its proofs, if any, that the applicable conditions set forth in paragraph 17(b)(ii) have been satisfied.  The failure by Supplier to timely submit such proofs to the emergency arbitrator shall be deemed to be an admission by Supplier that the applicable conditions set forth in paragraph 17(b)(ii) have not been satisfied and the arbitrator shall forthwith, but in no event later than five (5) business days after the appointment of the arbitrator, issue an interim award granting the requested injunctive or mandatory injunctive relief as the case may be.  Unless the arbitrator shall, based upon the Supplier’s timely submissions, find that the applicable conditions set forth in paragraph 17(b)(ii) have been satisfied, the arbitrator shall forthwith, but in no event later than five (5) business days after the appointment of the arbitrator, issue an interim award granting the requested injunctive or mandatory injunctive relief, as the case may be.

• Any award rendered by the emergency arbitrator or the Panel shall be conclusive and binding on the parties hereto, including interim awards with respect to injunctive or other preliminary relief, and judgment thereon may be entered in any court having jurisdiction to do so.

1. The AAA rules of Expedited Procedures; Optional Rules for Emergency Measures of Protection; and Procedures for Large, Complex Commercial Disputes shall not be applicable. Further, it is the express intent of the parties hereto that, notwithstanding anything to the contrary contained in any applicable laws, rules, or regulations, or rules of the AAA, (collectively “Laws”), the provisions and directives of these Order Terms shall be specifically enforced and any conflicts between these Order Terms and any Laws shall be resolved in favor of these Order Terms.

1. If either party fails to proceed with arbitration as provided herein or unsuccessfully seeks to stay such arbitration, or fails to comply with any arbitration award, or is unsuccessful in vacating or modifying the award pursuant to a petition or application for judicial review, the other party shall be entitled to be awarded costs, including reasonable attorneys’ fees, paid or incurred by such other party in successfully compelling such arbitration or defending against the attempt to stay, vacate, or modify such arbitration award and/or successfully defending or enforcing the award.

18.             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 the Confidential Information and all portions thereof are trade secrets and that (i) Distributor has taken and is taking reasonable steps to protect the confidentiality of, and its legitimate interests in, the Confidential Information, (ii) the Confidential Information is not readily accessible to competitors of Distributor, (iii) the Confidential Information has been assembled by Distributor through significant expenditures of time and other resources, and (iv) the Confidential Information would be very difficult for competitors of Distributor or others to duplicate. 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 and customer account level information.