Gummi World Release and Indemnity Agreement
This Release and Indemnity Agreement (“Agreement”), effective as of the Purchase Order execution date (the “Effective Date”), is entered into by and between the company or entity specified on the executed Purchase Order (“Customer”) and Compass Alpha, LLC d/b/a Gummi World, a Texas limited liability company, having its principal place of business at 1839 West Drake Drive, Tempe, Arizona 85283 and with its corporate headquarters at 1701 Directors Blvd., Suite 110, Austin, Texas 78744 (“Gummi World”) (together, the “Parties,” and each, a “Party”).
In connection with evaluating a potential business relationship between the Parties and potentially entering into a business relationship as more fully described in the Gummi World Manufacturing and Services Agreement, the Parties agree as follows:
1.1 IN CONSIDERATION OF THE COVENANTS, AGREEMENTS, AND UNDERTAKINGS OF THE PARTIES UNDER THIS AGREEMENT, EFFECTIVE ON THE DATE ABOVE, CUSTOMER, ON BEHALF OF ITSELF AND ITS RESPECTIVE PRESENT AND FORMER PARENTS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, SUCCESSORS, AND ASSIGNS (COLLECTIVELY, "RELEASORS") HEREBY RELEASES, WAIVES, AND FOREVER DISCHARGES GUMMY WORLD AND ITS RESPECTIVE PRESENT AND FORMER, DIRECT AND INDIRECT, PARENTS, SUBSIDIARIES, AFFILIATES, EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, MANAGERS, MEMBERS, AGENTS, REPRESENTATIVES, PERMITTED SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "RELEASEES") OF AND FROM ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, LOSSES, LIABILITIES, RIGHTS, DEBTS, DUES, SUMS OF MONEY, ACCOUNTS, RECKONINGS, OBLIGATIONS, COSTS, EXPENSES, LIENS, BONDS, BILLS, SPECIALTIES, COVENANTS, CONTRACTS, CONTROVERSIES, AGREEMENTS, PROMISES, VARIANCES, TRESPASSES, DAMAGES, JUDGMENTS, EXTENTS, EXECUTIONS, CLAIMS, AND DEMANDS, OF EVERY KIND AND NATURE WHATSOEVER, WHETHER NOW KNOWN OR UNKNOWN, FORESEEN OR UNFORESEEN, MATURED OR UNMATURED, SUSPECTED OR UNSUSPECTED, IN LAW, ADMIRALTY, OR EQUITY (COLLECTIVELY, "CLAIMS"), WHICH ANY OF SUCH RELEASORS EVER HAD, NOW HAVE, OR HEREAFTER CAN OR MAY HAVE AGAINST ANY OF RELEASEES FOR, UPON, OR BY REASON OF ANY MATTER, CAUSE, DISPUTE, OR ANYTHING WHATSOEVER FROM THE BEGINNING OF TIME THROUGH THE DATE OF THIS RELEASE AGREEMENT ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR THE FOLLOWING: (A) THE CONTENT OF ANY BOTTLE LABEL PROVIDED BY CUSTOMER TO GUMMY WORLD; (B) ALL ADVERTISING AND OTHER PUBLIC CLAIMS MADE BY CUSTOMER, WHETHER WRITTEN OR ORAL; AND INFORMATION CONTAINED IN CERTIFICATES OF ANALYSIS PROVIDED TO GUMMY WORLD BY A THIRD PARTY.
2.1 Customer’s Indemnification of Gummy World. Customer (as “Indemnifying Party”) must indemnify, hold harmless, and defend Gummy World and its managers, officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including professional fees and reasonable attorneys’ fees, that are incurred by Indemnified Party in a final, non-appealable judgment, administrative proceeding, or any alternative dispute resolution proceeding (collectively, “Losses”), arising out of any third-party claim alleging:
(a) material breach of this Agreement by Indemnifying Party;
(b) any or omission of Indemnifying Party (including any reckless or willful misconduct) in connection with the performance of its obligations under this Agreement or any Manufacturing and Supply Agreement;
(c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of Indemnifying Party); or
(d) any failure by Indemnifying Party to materially comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement or any Manufacturing and Supply Agreement.
2.2 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or defend Indemnified Party against any claim, whether direct or indirect, to the extent such claim or corresponding Losses arise out of or result from, in whole or in part, Indemnified Party’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 material obligations in this Agreement.
2.3 Notice of Third-Party Claims. Indemnified Party must give Indemnifying Party prompt written notice (“Claim Notice”) of any Losses. Indemnified Party’s failure to provide a Claim Notice to Indemnifying Party under this Section does not relieve Indemnifying Party of any liability that Indemnifying Party may have to Indemnified Party, but in no event will Indemnifying Party be liable for any Losses that result from a delay in providing a Claim Notice. Each Claim Notice must contain a description of the third-party claim and the nature and amount of the related Losses (to the extent that the nature and amount of the Losses are known at the time). Indemnified Party must furnish promptly to Indemnifying Party copies of all papers and official documents received in respect of any Losses.
Indemnifying Party’s duty to defend applies immediately, regardless of whether Indemnified Party has paid any sums or incurred any detriment arising out of or relating, directly or indirectly, to any third-party claim.
2.4 Indemnifying Party Control of Defense. Indemnifying Party may assume, at its sole option, control of the defense, appeal, or settlement of any third-party claim that is reasonably likely to give rise to an indemnification claim under this Section (“Indemnified Claim”) by sending written notice of the assumption to Indemnified Party on or before five business days after receipt of a Claim Notice to acknowledge responsibility for the defense of such Indemnified Claim and undertake, conduct, and control, through reputable independent counsel of its own choosing at Indemnifying Party’s sole cost and expense, the settlement or defense of the Indemnified Claim.
2.5 Indemnified Party’s Obligations Regarding Indemnifying Party’s Control of Defense. If Indemnified Party assumes control of the defense under this Section, Indemnifying Party must:
(a) fully cooperate with Indemnifying Party in connection with the Indemnified Claim; and
(b) may employ, at any time, separate counsel to represent it; provided that Indemnified Party is solely responsible for the costs and expenses of any such separate counsel.
2.6 Indemnified Party Control of Defense. Notwithstanding anything to the contrary in this Section, Indemnified Party may defend an Indemnified Claim with counsel of its own choosing and without the Indemnifying Party’s participation if:
(a) the Indemnified Claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice under this Section and Indemnifying Party fails to assume the defense or refuses to defend the Indemnified Claim;
(b) the Indemnified Claim seeks only an injunction or other equitable relief against Indemnified Party; or
(c) Indemnified Party reasonably believes:
(i) that there are one or more legal or equitable defenses available to it that are different from or in addition to those available to Indemnifying Party; and
(ii) counsel for Indemnifying Party could not adequately represent the interest of Indemnified Party because such interest could be in conflict with those of Indemnifying Party; or
(iii) such action or proceeding involves, or could have a material effect on, any material matter beyond the scope of the indemnification or defense obligations of Indemnifying Party.
2.7 Indemnifying Party’s Obligations Regarding Indemnified Party’s Control of Defense. If Indemnified Party assumes control of the defense under this Section, Indemnifying Party must:
(a) reimburse Indemnified Party promptly and periodically for the reasonable costs properly incurred in defending against the Indemnified Claim (including reasonable attorneys’ fees and expenses); and
(b) remain responsible to the Indemnified Party for any Losses indemnified under this Section.
2.8 Settlement of Indemnified Claims by Indemnifying Party. Indemnifying Party will give prompt written notice to Indemnified Party of any proposed settlement of an Indemnified Claim. Indemnifying Party may not, without Indemnified Party’s prior written consent, which Indemnified Party shall not unreasonably withhold, condition, or delay, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought under this Section unless such settlement, compromise, or consent:
(a) includes an unconditional release of Indemnified Party from all liability arising out of such claim;
(b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnified Party; and
(c) does not contain any equitable order, judgment or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Indemnified Party or any of Indemnified Party’s affiliates.
2.9 Settlement of Indemnified Claims by Indemnified Party. Indemnified Party may not settle or compromise any claim or consent to the entry of any judgment regarding which it is seeking indemnification under this Section without the prior written consent of Indemnifying Party, which Indemnifying Party may not unreasonably withhold, condition, or delay, unless:
(a) if the Indemnified Claim is one for which Indemnified Party properly gave Indemnifying Party a Claim Notice under this Section and Indemnifying Party fails to assume the defense or refuses to defend the Indemnified Claim; or
(b) such settlement, compromise, or consent:
(i) includes an unconditional release of Indemnifying Party from all liability arising out of such claim;
(ii) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of Indemnifying Party; and
(iii) does not contain any equitable order, judgment, or term (other than the fact of payment or the amount of such payment) that in any manner affects, restrains, or interferes with the business of Indemnifying Party or any of Indemnifying Party’s affiliates.
3. Representations and Warranties.
3.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, GUMMY WORLD MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
4.1 This Agreement commences on the Effective Date and continues for five years from the Effective Date or five years from the date Customer ceases to do business with Gummy World, whichever is longer (“Term”).
4.2 The rights and obligations of the Parties set forth in Sections 1 and 2, and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
5.1 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, a court of proper jurisdiction may modify this Agreement to affect the original intent of the parties as closely as possible so that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.
6.1 No waiver by either Party of any of the provisions of this Agreement is effective unless explicitly set forth in writing, signed by the Party so waiving, and attached to this Agreement as Appendix 1. No waiver by either Party may operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise or delay in exercising any right, remedy, power, or privilege arising from this Agreement may operate or be construed as a waiver of such; nor may any single or partial exercise of any right, remedy, power, or privilege under this Agreement preclude any other or further exercise of such or the exercise of any other right, remedy, power, or privilege.
7. Entire Agreement.
7.1 This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to this Agreement’s subject matter. The Parties have not relied on any statement, representation, warranty, or agreement of the other Party or of any other person on such Party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
8.1 No amendment to this Agreement is effective unless it is in writing, signed by an authorized representative of each Party, and attached to this Agreement as Appendix 2.
9.1 Each Party must deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other Party at the addresses set forth on the first page of this Agreement (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Each Party must deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party; and (b) if the party giving the Notice has complied with the requirements of this Section.
10. Governing Law, Jurisdiction, and Venue.
10.1 This Agreement, all related documents, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, for all purposes are be governed by and construed in accordance with the laws of the State of Arizona, including its statutes of limitations and applicable state choice of law statutes, without giving effect to any conflict of laws principles that would cause the laws of any other jurisdiction to apply. Any action or proceeding by either of the Parties to enforce this Agreement shall be brought only in any state or federal court located in the State of Arizona, County of Maricopa. The Parties irrevocably submit to the exclusive jurisdiction of these courts and waive the defense of inconvenient forum to the maintenance of any action or proceeding in such venue.
10.2 Captions and headings of the sections and paragraphs of this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the caption or heading of any section or paragraph.
11.1 This Agreement may be executed in counterparts, each of which is deemed an original, and all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission has the same legal effect as delivery of an original signed copy of this Agreement.