CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
[***], HAS BEEN OMITTED BECAUSE IT IS NOT MATERIAL AND WOULD LIKELY CAUSE
COMPETITIVE HARM TO THE COMPANY IF PUBLICLY DISCLOSED.
Default and Termination: The following constitute defaults by either party (each a “Default” and several, “Defaults”):
(i) any misrepresentation or materially inaccurate misstatement by Customer;
(ii) failure by one party to pay any undisputed amounts owing to the other party, which failure to pay continues for a period of seven (7) days after receipt of notice from the other party regarding such non-payment; or
(iii) failure by one party to perform any obligations, duties or responsibilities arising under the Documents, which failure to perform continues for a period of 30 days after receipt of notice from the other party.
Upon the occurrence of a Default, the non-defaulting party may terminate the Master Sales Agreement upon written notice to the defaulting party, but any such termination shall be without prejudice to any other legal remedy the non-defaulting party may have on account of such Default.
Waiver: Notwithstanding any other provision to the contrary, the failure of any party to enforce at any time any of the provisions of the Master Sales Agreement or these Standard Terms and Conditions shall not be construed to be a waiver of any such provision, nor affect the validity of the Documents or any part thereof or the right of any party thereafter to enforce each and every such provision. No waiver of any breach or Default under the Master Sales Agreement or these Standard Terms and Conditions shall be held to be a waiver of any other or subsequent breach or Default.
Indemnification: Customer or Supplier, as applicable (the “Indemnifying Party”), will indemnify and hold Supplier or Customer, as applicable, harmless, respectively (the “Indemnified Party”), against any loss, injury, damage, and costs (including reasonable attorney fees) directly caused by the Indemnifying Party’s malfeasance, gross negligence, breach of contract or breach of warranty. The amount paid by the Indemnifying Party under the foregoing indemnification obligation shall be reduced by the amount of any proceeds to which the Indemnified Party has a right to claim and receive under any insurance policy. Notwithstanding anything in this Agreement to the contrary, neither Supplier nor its successors or assigns, subsidiaries, affiliates, or representatives shall have any liability or responsibility in any manner whatsoever to Customer or its successors or assigns, subsidiaries, affiliates or representatives, for costs, expenses, or liabilities (including but not limited to claims, losses, actions, suits, judgments, damages, payments, obligations, settlements and attorneys’ fees (whether or not any of the foregoing result from or arise out of third party claims)) arising in any manner from the consumption of tobacco and/or cigarettes and/or tobacco related products (including but not limited to electronic cigarettes) (including but not limited to the buying of such products, the use of such products, or the consequences or effects (whether to the consumer or other persons) from the use of such products).
Notwithstanding anything else in this Agreement or otherwise, neither party will be liable to the other party or any other person or entity with respect to any subject matter of this Agreement under any contract, negligence, strict liability or other legal or equitable theory for any (a) consequential, special, incidental or indirect damages, (b) lost profits, lost business, interruption of use or lost or corrupted or inaccurate data, or (c) cost of procurement of substitute products, goods, services or technology. Both parties acknowledge and agree that the amounts payable under this Agreement are based in part upon the limitations set forth in this “Indemnification” paragraph and further agree that such limitations shall apply even if the remedies provided for in this Agreement fail of their essential purpose and even if either party has been advised of the possibility or probability of such damages.
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