3.1.
"SKU" means a stock keeping unit, or a separate, individual inventory item
differentiated by style, color, size or other characteristic.
"Territory" means the States of the United States of America, the District of
Columbia, and any territory that becomes a State of the United States of
America, subject in the latter case only to any agreement with Merisant or any
company controlled by or under direct or indirect common control with Merisant
that is in effect prior to such territory becoming a State.
"Trademark" has the meaning set forth in Section 5.1.
3
1.2
CONSTRUCTION.
THE PARTIES HAVE PARTICIPATED
JOINTLY IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT.
IF ANY AMBIGUITY OR
QUESTION OF INTENT OR INTENT ARISES, THIS AGREEMENT WILL BE CONSTRUED AS IF
DRAFTED JOINTLY BY THE PARTIES AND NO PRESUMPTION OR BURDEN OF PROOF WILL ARISE
FAVORING OR DISFAVORING ANY PARTY BECAUSE OF THE AUTHORSHIP OF ANY PROVISION OF
THIS AGREEMENT.
ANY REFERENCE TO ANY FEDERAL, STATE OR LOCAL LAW WILL BE
DEEMED ALSO TO REFER TO LAW AS AMENDED AND RULES AND REGULATIONS PROMULGATED
THEREUNDER, UNLESS THE CONTEXT REQUIRES OTHERWISE.
UNLESS THE CONTEXT REQUIRES
OTHERWISE, REFERENCES TO THE PLURAL INCLUDE THE SINGULAR; REFERENCES TO THE
SINGULAR INCLUDE THE PLURAL; THE WORDS "INCLUDE," "INCLUDES," AND "INCLUDING"
WILL BE DEEMED TO BE FOLLOWED BY THE PHRASE "WITHOUT LIMITATION" AND THE TERM
"OR" HAS, EXCEPT WHERE OTHERWISE INDICATED, THE INCLUSIVE MEANING REPRESENTED BY
THE PHRASE "AND/OR".
EACH REFERENCE TO "THIS AGREEMENT", "HEREOF",
"HEREUNDER", "HEREIN" AND "HEREBY" AND EACH OTHER SIMILAR REFERENCE CONTAINED IN
THIS AGREEMENT SHALL REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY
PARTICULAR SUBDIVISION UNLESS EXPRESSLY SO LIMITED.
THE PARTIES INTEND THAT
EACH REPRESENTATION, WARRANTY AND COVENANT CONTAINED HEREIN WILL HAVE
INDEPENDENT SIGNIFICANCE.
IF ANY PARTY HAS BREACHED ANY REPRESENTATION,
WARRANTY OR COVENANT CONTAINED HEREIN IN ANY RESPECT, THE FACT THAT THERE EXISTS
ANOTHER REPRESENTATION, WARRANTY OR COVENANT RELATING TO THE SAME SUBJECT MATTER
(REGARDLESS OF THE RELATIVE LEVELS OF SPECIFICITY) WHICH THE PARTY HAS NOT
BREACHED WILL NOT DETRACT FROM OR MITIGATE THE FACT THAT THE PARTY IS IN BREACH
OF THE FIRST REPRESENTATION, WARRANTY OR COVENANT.
1.3
SCHEDULES.
THE SCHEDULES AND OTHER
ATTACHMENTS IDENTIFIED IN THIS AGREEMENT ARE INCORPORATED HEREIN BY REFERENCE
AND ARE MADE A PART HEREOF.
1.4
EFFECTIVENESS.
THIS AGREEMENT SHALL BE
LEGALLY BINDING UPON THE PARTIES HERETO UPON ITS EXECUTION AND DELIVERY BY BOTH
PARTIES, BUT THIS AGREEMENT SHALL NOT BE DEEMED EFFECTIVE AND OPERATIVE UNTIL
THE EFFECTIVE DATE.
ARTICLE II
DISTRIBUTION SERVICES
2.1
EXCLUSIVE DISTRIBUTOR.
(a)
As of the Effective Date and subject to the
terms and conditions contained herein, Merisant appoints ACH, and ACH accepts
its appointment, as the exclusive distributor of the Products through the
Distribution Channels in the Territory.
Nothing contained in this Agreement
shall be construed to limit or restrict Merisant's right, in its sole
discretion, to discontinue the manufacture, sale or distribution of any Product
at any time, subject, however, to Merisant's obligation to repurchase from ACH
its entire inventory of