Standard Terms and Conditions
These terms and conditions ("Standard Terms") apply to every shipment and sale of Goods from Seller to Don’t Run Out, Inc. d/b/a Public Goods, a Delaware corporation (“Buyer”), unless otherwise agreed in writing and signed by Seller and Buyer.
- Purchase Orders. Buyer shall issue Purchase Orders to Seller in written or electronic form via e-mail or other form of delivery as mutually agreed to by the Parties. Such Purchase Orders may, among other things, specify items such as (a) the Goods to be purchased, including UPC, SKU or other product identifier; (b) the quantity of each of the Goods ordered; (c) the Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location; in each case, including all terms and conditions attached to, or incorporated into, such purchase order.
- Acceptance, Rejection, and Cancellation of Purchase Orders. Seller shall confirm to Buyer the receipt of each Purchase Order issued pursuant to the Agreement within two (2) business days following Seller's receipt thereof in written form via e-mail or other form of delivery as mutually agreed to by the Parties. If Seller fails to issue a confirmation within the time set forth in the first sentence of this Section 1.2 or otherwise commences performance under such Purchase Order, Seller will be deemed to have accepted the Purchase Order. Buyer may withdraw any Purchase Order prior to Seller's acceptance thereof. Seller may only reject a Purchase Order if (a) Seller has sent Buyer a notice of termination under the Agreement or (b) the applicable Purchase Order includes terms and conditions that supplement those contained in the Agreement Documents, which Seller is unwilling to accept. Seller may not cancel any previously accepted Purchase Order hereunder.
Shipment, Delivery, Acceptance, and Inspection.
- Shipment and Delivery Requirements. Time, quantity, and delivery to the Delivery Location are of the essence under the Agreement. Seller shall procure materials for, fabricate, assemble, pack, mark, and ship Goods strictly in the quantities, by the methods, to the Delivery Locations, and by the Delivery Dates specified in the applicable Purchase Order. Delivery times will be measured to the time that Goods are actually received at the Delivery Location.
Transfer of Title and Risk of Loss.
- Title to Goods shipped under any Purchase Order passes to Buyer upon the earliest to occur of (i) delivery of the Goods to Buyer, (ii) Buyer's acceptance of the Goods and (iii) payment of the Price for such Goods by Buyer. Title will transfer to Buyer even if Seller has not been paid for such Goods, provided that Buyer will not be relieved of its obligation to pay for Goods in accordance with the terms hereof.
- Notwithstanding any agreement between Buyer and Seller concerning transfer of title or responsibility for shipping costs, risk of loss to Goods shipped under any Purchase Order passes to Buyer upon receipt and acceptance by Buyer at the Delivery Location according to the terms of Purchase Order, and Seller will bear all risk of loss or damage with respect to Goods until Buyer's receipt and acceptance of such Goods in accordance with the terms hereof.
Packaging and Labeling.
- Seller shall properly pack, mark, and ship Goods as instructed by Buyer and otherwise in accordance with applicable Law and industry standards, and shall provide Buyer with shipment documentation reasonably acceptable to Buyer.
- If so indicated on the applicable purchase order, Seller shall label the Goods in accordance with the specifications provided by Buyer, using only labels authorized by Buyer, which labels shall be and remain the property of Buyer and used by Seller exclusively for labeling of the Goods to be delivered to Buyer. Buyer hereby grants to Seller a non-exclusive, non-transferable right to use the Trademarks and any copyrighted material included on the labels solely on the Goods ordered by Buyer thereunder and associated packaging, if the applicable Purchase Order indicates that Seller shall label the Goods. Nothing in the Agreement Documents shall be construed to grant Seller any right, title, interest, or license in the Trademarks except to the limited extent necessary to meet its obligations under the Agreement Documents.
- Ingredients and Materials Disclosure. Upon Buyer's request, Seller shall promptly provide to Buyer, in such form and detail as Buyer requests, a list of all ingredients and materials incorporated in the Goods, the amount of such ingredients and materials, and information concerning any changes in or additions to such ingredients and materials.
- Inspection. Goods are subject to Buyer's inspection and approval or rejection notwithstanding Buyer's prior receipt of or payment for the Goods. Buyer shall have a reasonable period of time, not to be less than ten (10) days following delivery of the Goods to the Delivery Location ("Inspection Period"), to inspect all Goods received under the Agreement Documents and to inform Seller, in writing, of Buyer's rejection of any such Nonconforming Goods. Buyer may return to Seller any or all units of rejected Goods that constitute Nonconforming Goods because they exceed the quantity stated in the applicable Purchase Order. All returns of Nonconforming Goods to Seller are at Seller's sole risk and expense. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by Buyer; provided, however, that Buyer's acceptance of any Goods will not be deemed to be a waiver or limitation of Seller's obligations pursuant to the Agreement Documents (or any breach thereof), including those obligations with respect to Seller's Product Warranty and Seller's duty to indemnify Buyer.
Certain Obligations of Seller.
- Seller shall meet or exceed Buyer's quality standards for the Goods as adopted by Buyer from time to time, and which are provided by Buyer to Seller in writing. At Buyer's request, Seller shall furnish to Buyer test samples of Goods as reasonably required by Buyer to determine if their manufacture is in accordance with the specifications furnished by Buyer and Buyer's quality standards. Seller shall perform quality inspections of Goods before delivery and shall certify inspection results in the manner requested by Buyer.
- Seller shall provide reasonable support as requested by Buyer to address and correct quality concerns. In addition to its other rights and remedies, Buyer may hold Seller responsible for costs associated with quality-issue investigation and containment to the extent caused by Seller's acts or omissions.
- Duty to Advise. Seller shall promptly provide written notice to Buyer of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences: (a) any failure by Seller to perform any of its obligations under the Agreement; (b) any delay in delivery of Goods; (c) any defects or quality problems relating to Goods; (d) any deficiency in Buyer specifications, samples, prototypes or test results relating to the Agreement; or (e) any failure by Seller, or its subcontractors or common carriers, to comply with Law. In addition, Seller shall promptly notify Buyer in writing of any change in Seller's insurance coverage, or professional certifications.
- Seller shall promptly make any changes Buyer directs in writing with respect to the Goods, which may include changes in the design, drawings, specifications, processing, recipes, formulas, inspection, testing, quality control, methods of packing and shipping, or the date or place of delivery. Seller may increase the Prices thereof in a per-unit amount solely to the extent necessary to compensate Seller for such commercially reasonable cost increases as a result of such changes requested by Buyer (but not to allow for any additional margin). Nothing in this Section 3.3(a), including any disagreement with Buyer as to any adjustment in price or time for performance, will excuse Seller from proceeding with the Agreement as changed.
- Seller may not make any changes with respect to the Goods or scope of the Agreement without Buyer's advance written approval, which may be given or withheld in Buyer's sole discretion, including (i) the location at which Goods are manufactured, (ii) any subcontractors to Seller with respect to Goods, (iii) the processes or procedures used by Seller in the production of Goods, (iv) the composition, formula, recipe, fit, form, function or appearance of Goods, or (v) chemicals, raw materials or any components or ingredients used in the production of Goods.
Compliance with Laws.
- Compliance. Seller shall at all times comply with all Laws applicable to the Agreement Documents, Seller's operation of its business and the exercise of its rights and performance of its obligations thereunder. Without limitation of the foregoing, Seller shall ensure the Goods and any related packaging, conform fully to any applicable Law. Upon Buyer's request, Seller shall provide Buyer with (a) written certification of Seller's compliance with applicable Laws; (b) written certification of the origin of any ingredients or materials in the Goods; and (c) any additional information regarding the Goods requested by Buyer such that Buyer may comply in a timely manner with its obligations under Law. Seller shall at all times comply with the terms and conditions set forth in the Additional Vendor Terms attached to the Agreement.
- Permits, Licenses, and Authorizations. Seller shall obtain and maintain all Permits necessary for the exercise of its rights and performance of Seller's obligations under the Agreement, including any Permits required for the import of Goods or any raw materials and other manufacturing parts used in the production and manufacture of the Goods, and the shipment of hazardous materials, as applicable.
Representations and Warranties; Product Warranty.
- Seller's Representations and Warranties. Seller represents and warrants to Buyer that: (a) it is an entity duly organized, validly existing, and in good standing under the Laws of the state of its organization or formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of the Agreement; (c) it has the full right, power and authority to enter into the Agreement and to perform its obligations hereunder; (d) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement, and the delivery of the Agreement by Seller, have been duly authorized by all necessary action on the part of Seller; (e) the execution, delivery, and performance of the Agreement by Seller will not violate, conflict with, require consent under or result in any breach or default under (i) any of Seller's organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any material contract of Seller; (f) the Agreement has been executed and delivered by Seller and (assuming due authorization, execution, and delivery by Buyer) constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity; (g) it is in material compliance with all applicable Laws and Seller contracts relating to the Agreement, the Goods and the operation of its business (including the Additional Vendor Terms attached to the Agreement); (h) it has obtained all material licenses, authorizations, approvals, consents, or permits required by applicable Laws to conduct its business generally and to exercise its rights and perform its obligations under the Agreement ; and (i) it is not insolvent and is paying all of its debts as they become due.
- Buyer's Representations and Warranties. Buyer represents and warrants to Seller that (a) it is a corporation, duly organized, validly existing, and in good standing under the Laws of the State of Delaware; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of the Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under the Agreement; (c) it has the full right, power and authority to enter into the Agreement and to perform its obligations thereunder; (d) the execution of the Agreement by its representative whose signature is set forth at the end of the Agreement, and the delivery of the Agreement by Buyer, have been duly authorized by all necessary action on the part of Buyer; (e) the execution, delivery, and performance of the Agreement by Buyer will not violate, conflict with, require consent under or result in any breach or default under (i) any of Buyer's organizational documents or (ii) any applicable Law; and (f) the Agreement has been executed and delivered by Buyer and (assuming due authorization, execution, and delivery by Seller) constitutes the legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar Laws and equitable principles related to or affecting creditors' rights generally or the effect of general principles of equity.
- Product Warranty. Seller warrants to the Buyer Parties and any end users of the Goods that for a period of 2 years after delivery of the Goods or until the “Best by” date or date of expiration as printed on the product packaging (the "Product Warranty"), the Goods will (i) conform, in all material respects, to the specifications, standards, drawings, samples, descriptions, quality requirements, performance requirements, statements of work, and fit, form and function requirements furnished, specified or approved by Buyer for the Goods, (ii) be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials, and workmanship, (iii) not infringe upon, violate or misappropriate the Intellectual Property Rights of any Person, (iv) be fit and sufficient for the particular purpose intended by Buyer and its customers, of which the Seller is aware (and Seller acknowledges that it knows of Buyer's intended use of the Goods and that such Goods have been selected, designed, manufactured, or assembled by Seller based upon Buyer's stated use and will be fit and sufficient for the particular purposes intended by Buyer), (v) comply with all applicable Laws, and (vi) be new and conveyed by Seller to Buyer with good title, free and clear of all encumbrances.
- Additional Terms. The Product Warranty (a) is in addition to all other warranties, express, implied, statutory and common law, (b) extends to the Goods' future performance, (c) survives Seller's delivery of the Goods, Buyer's receipt, inspection, acceptance, use of the Goods and payment for the Goods, and the termination or expiration of the Agreement, (d) inures to the benefit of the Buyer Parties and the users of Buyer's or its customers' products, and (e) may not be limited or disclaimed by Seller. Buyer's approval of Seller's designs, materials, processes, drawings, Specifications or similar requirements will not be construed to relieve Seller of any warranties. Any applicable statute of limitations on Buyer's claims for breach of warranty will commence no earlier than the date on which Buyer discovers the breach.
- Indemnification. Subject to the terms and conditions of the Agreement, Seller (as "Indemnifying Party") shall indemnify, defend and hold harmless the Buyer Parties and their representatives, affiliates, successors, and permitted assigns (collectively, "Indemnified Parties") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under the Agreement Documents and the cost of pursuing any insurance providers, incurred by any Indemnified Party (collectively, "Losses"), any third-party claim or any direct claim against Indemnifying Party alleging (a) a material breach or non-fulfillment of any of Indemnifying Party's representations, warranties, or covenants set forth in the Agreement Documents; (b) any grossly negligent or more culpable act or omission of Indemnifying Party or any of its representatives (including any recklessness or willful misconduct) in connection with Indemnifying Party's performance under the Agreement; and (c) that any of Indemnifying Party's Intellectual Property used in the design or production of the Goods, or that is embodied in the Goods, infringes any Intellectual Property Right of a third party.
- Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in the Agreement, Indemnifying Party is not obligated to indemnify or defend any Indemnified Party against any claim or corresponding Losses resulting directly from Indemnified Party's or its personnel's (a) gross negligence or more culpable act or omission (including recklessness or willful misconduct) or (b) bad faith failure to materially comply with any of its obligations set forth in the Agreement.
- NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THE AGREEMENT DOCUMENTS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Ownership. Each of the Parties acknowledges and agrees that: (a) each Party retains exclusive ownership of its Background Intellectual Property Rights; (b) Buyer does not transfer to Seller any of its Background Intellectual Property Rights, and Seller may not use any of Buyer's Background Intellectual Property Rights other than to produce and supply Goods to Buyer hereunder; (c) Seller does not transfer to Buyer any of Seller's Background Intellectual Property Rights, except that Seller grants to Buyer and its customers the right to resell Goods or incorporate Goods purchased from Seller into finished goods and to sell such finished goods to its customers; (d) all Foreground Intellectual Property Rights will be owned by Buyer; (e) Seller assigns to Buyer all of Seller's right, title, and interest in and to all Foreground Intellectual Property Rights, and, to the extent that any Foreground Intellectual Property Rights are copyrightable works or works of authorship (including computer programs, technical specifications, documentation, and manuals), the Parties agree that such works are "works made for hire" for Buyer under the US Copyright Act; (f) Seller shall only use the Foreground Intellectual Property Rights to produce and supply Goods to Buyer; and (g) Seller grants to Buyer an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license, with the right to grant sublicenses, to use Seller's Background Intellectual Property Rights to produce, use, sell and to obtain, from alternate sources, products and services similar to the Goods (including related systems and components) following the expiration or earlier termination of the Agreement.
- Scope of Confidential Information. From time to time during the Term, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, third-party confidential information, and other sensitive or proprietary information. Such information, as well as the terms of the Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" constitutes "Confidential Information" hereunder. Confidential Information does not include information that at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 9 by the Receiving Party or any of its representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its representatives without an obligation of confidentiality prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or (e) is required to be disclosed pursuant to applicable Law.
- Protection of Confidential Information. The Receiving Party shall, for three (3) years from disclosure of such Confidential Information: (a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under the Agreement; and (c) not disclose any such Confidential Information to any Person, except to the Receiving Party's representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under the Agreement. The Receiving Party shall be responsible for any breach of this Section 9 caused by any of its representatives. At any time during or after the Term, at the Disclosing Party's written request, the Receiving Party and its representatives shall promptly return or destroy all Confidential Information and copies thereof that it has received under the Agreement.
- Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under this Section 9 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 9.3.
- Inspection and Audit Rights. Seller hereby grants to Buyer, and its authorized representatives, access to Seller's premises (including Seller's manufacturing operations used in production of the Goods) and all pertinent documents and other information, whether stored in tangible or intangible form, including any books, records, and accounts, in any way related to Seller's performance under the Agreement (including Sellers' processes and procedures), Goods or any payment or other transaction occurring in connection with the Agreement, for the purpose of auditing Seller's compliance with the terms of the Agreement, including Seller's charges for Goods, or inspecting or conducting an inventory of finished Goods, work-in-process or raw-material inventory. Seller agrees to cooperate fully with Buyer in connection with any such audit or inspection.
- Insurance. During the Term and for a period of two (2) years thereafter, Seller shall, at its own expense, maintain and carry in full force and effect, subject to appropriate levels of self-insurance, commercial general liability insurance (including product liability) in a sum no less than $5,000,000, all-risk property insurance covering all of Seller's property for its full replacement value, with financially sound and reputable insurers. Upon Buyer's reasonable request, Seller shall provide Buyer with a certificate of insurance evidencing the insurance coverage specified in this Section. The certificate of insurance shall name Buyer as an additional insured and loss payee. Seller shall provide Buyer with 30 days' advance written notice in the event of a cancellation or material change in such insurance policy. Seller waives and Seller shall cause its insurers to waive, any right of subrogation or other recovery against Buyer, its affiliates, and their insurers.
- Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to the Agreement Documents, or the breach, termination or invalidity hereof (each, a "Dispute"), shall be submitted for negotiation and resolution to an executive officer of each Party), by delivery of written notice (each, a "Dispute Notice") from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within 30 days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 11.3 hereunder.
- Governing Law. The Agreement Documents, including all exhibits, schedules, attachments and appendices attached thereto, and all matters arising out of or relating to the Agreement Documents, are governed by and construed in accordance with, the Laws of the State of New York, without regard to the conflict of laws provisions thereof.
- Choice of Forum. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to the Agreement Documents, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than a state or federal court located in the State of New York, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in a state or federal court located in the State of New York. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
- Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under the Agreement Documents, including any exhibits, schedules, attachments, and appendices attached thereto, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement Documents, including any exhibits, schedules, attachments, and appendices attached thereto, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) such Party has considered the implications of this waiver, (b) such Party makes this waiver voluntarily, and (c) such Party has been induced to enter into the Agreement by, among other things, the mutual waivers and certifications in this Section.
- Survival. Subject to the limitations and other provisions of the Agreement Documents: (a) the representations and warranties of the Parties contained in the Agreement Documents will survive the expiration or earlier termination of the Agreement; and (b) Sections 5.3, 6, 7, 8 and 10 these Standard Terms, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of the Agreement.
- No Third-Party Beneficiaries. The Agreement Documents benefit solely the parties to the Agreement and their respective permitted successors and permitted assigns, and nothing in the Agreement Documents, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement Documents. The Parties hereby designate each Indemnified Party as a third-party beneficiary of Section 6 hereof and each Buyer Party and any end users of the Goods as third-party beneficiaries of Section 5.3 hereof.
- Definitions. Capitalized terms used but not defined herein or in the Agreement have the meanings set forth or referred to in this Section 12.
“Agreement” means the Manufacturing Supply Agreement or similar agreement entered into the Buyer and the applicable Seller.
"Background Intellectual Property Rights" means Buyer's Intellectual Property or Seller's Intellectual Property, as applicable, except for any Foreground Intellectual Property Rights.
"Buyer Parties" means Buyer, its affiliates, customers, subcontractors and successors and assigns, and each of their respective representatives.
"Buyer's Intellectual Property" means all Intellectual Property Rights owned by or licensed to Buyer, including all Foreground Intellectual Property Rights and any of Buyer's Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.
"Delivery Date" means the delivery date for Goods ordered under the Agreement that is set forth in Schedule 1 thereto or in a Purchase Order.
"Delivery Location" means the street address for delivery of the Goods specified in the applicable Purchase Order.
"Foreground Intellectual Property Rights" means any and all of the Intellectual Property Rights developed with respect to, or for incorporation into, the Goods, that are either developed by Buyer alone, by Buyer and Seller jointly or by Seller alone as requested by Buyer in connection with the Agreement.
"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.
"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, packaging, formulas and recipes whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.
"Nonconforming Goods" means any goods received by Buyer from Seller that: (a) do not conform to the UPC, SKU and/or product listed in the applicable Purchase Order; (b) on visual inspection, Buyer reasonably determines are otherwise defective; or (c) exceed the quantity of Goods ordered by Buyer pursuant to the Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of the Agreement.
"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).
"Permits" means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained or required to be obtained, from any Governmental Authority.
"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.
"Seller's Intellectual Property" means all Intellectual Property Rights owned by or licensed to Seller, including any of Seller's Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.
"Trademarks" means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, symbols, trade dress, corporate names and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
"UCC" means the Uniform Commercial Code, as adopted in the State of New York.