THIS AGREEMENT SHALL NOT AFFECT ANY
RIGHTS OR OBLIGATIONS OF EITHER PARTY WHICH HAVE ACCRUED THROUGH THE DATE OF
TERMINATION OR EXPIRATION, OR WHICH OTHERWISE SURVIVE TERMINATION IN ACCORDANCE
WITH THEIR RESPECTIVE TERMS.
NOTHING HEREIN SHALL PREVENT EITHER PARTY FROM
SEEKING SPECIFIC PERFORMANCE OR DAMAGES FOR BREACH IN RESPECT OF ANY RIGHT OR
OBLIGATION CONTAINED IN THIS AGREEMENT.
THE RIGHTS AND REMEDIES SET FORTH IN
THIS SECTION 7 SHALL BE IN ADDITION TO ANY OTHER RIGHTS OR REMEDIES THAT MAY
OTHERWISE BE AVAILABLE AT LAW OR EQUITY.
5
9.
NONCONFORMING INGREDIENTS; RECALL.
9.1
INGREDIENT REPLACEMENT.
BUYER SHALL HAVE THE RIGHT BUT NOT THE
OBLIGATION TO INSPECT, ACCEPT OR REJECT NONCONFORMING INGREDIENTS.
IF SO
DIRECTED BY BUYER IN GOOD FAITH, SUPPLIER WILL REPLACE AT NO CHARGE TO BUYER ANY
INGREDIENTS THAT ARE NOT IN COMPLIANCE WITH THE SPECIFICATIONS AT THE TIME OF
DELIVERY TO BUYER.
SUPPLIER SHALL COMPLETE SUCH REPLACEMENT AS SOON AS POSSIBLE
USING ALL COMMERCIALLY-REASONABLE EFFORTS.
THE FOREGOING SHALL NOT LIMIT ANY
RIGHTS OR REMEDIES WHICH MAY OTHERWISE BE AVAILABLE TO BUYER, AND NO SUCH
INSPECTION OR ACCEPTANCE OF THE INGREDIENTS SHALL RELIEVE SUPPLIER OF ITS
OBLIGATIONS HEREUNDER.
9.2
RECALL OF INGREDIENTS.
BUYER SHALL HAVE THE RIGHT AT ANY TIME, IN
ITS COMMERCIALLY REASONABLE DISCRETION, TO ORDER A RECALL, IN WHOLE OR IN PART,
THAT RELATES TO ANY OF THE INGREDIENTS PURCHASED FROM SUPPLIER HEREUNDER.
BUYER
AND SUPPLIER AGREE TO PROMPTLY COMMUNICATE WITH EACH OTHER REGARDING ANY
CONDITION OR EVENT THAT COULD RESULT IN SUCH A RECALL.
SUPPLIER AGREES TO
COOPERATE FULLY WITH BUYER IN EFFECTING ANY SUCH RECALL OF INGREDIENTS THAT, AT
THE TIME OF DELIVERY BY SUPPLIER TO BUYER, DO NOT CONFORM TO THE SPECIFICATIONS
OR TO ANY OTHER REPRESENTATIONS OR WARRANTIES OF SUPPLIER SET FORTH HEREIN.
TO
THE EXTENT PRACTICABLE, BUYER AGREES TO GIVE SUPPLIER ADVANCE NOTICE OF ANY SUCH
RECALL, TO WORK WITH SUPPLIER TO COORDINATE SUCH RECALL AND, CONSISTENT WITH
BUYER'S RESPONSIBILITIES, TO MINIMIZE THE IMPACT OF SUCH RECALL ON BUYER AND
SUPPLIER.
SUPPLIER SHALL BEAR THE COST (INCLUDING THE REPLACEMENT COST OF
INGREDIENTS) OF ANY SUCH RECALL THAT ARISES AS THE RESULT OF ANY ACT, OMISSION
OR DEFAULT THAT OCCURS OR FAILS TO OCCUR IN RESPECT TO THE INGREDIENTS PRIOR TO
DELIVERY TO BUYER.
BUYER SHALL BEAR THE COST OF ANY RECALL THAT RESULTS FROM
ANY ACTION OR INACTION WHICH AFFECTS THE INGREDIENTS AFTER DELIVERY TO BUYER.
SUPPLIER SHALL MAINTAIN PRODUCTION RECORDS SUFFICIENT TO ENABLE BUYER TO CONDUCT
ACTUAL OR MOCK RECALLS, AS BUYER MAY DESIRE.
10.
INDEMNITY / INSURANCE / LIMITATION OF
LIABILITY.
10.1
INDEMNIFICATION.
EACH PARTY ("INDEMNIFYING PARTY") SHALL DEFEND,
INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY ("INDEMNIFIED PARTY") AGAINST AND IN
RESPECT OF ANY AND ALL LIABILITY, LOSS, DAMAGE, DEFICIENCY OR EXPENSE RESULTING
FROM ANY BREACH OF A REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT BY THE
INDEMNIFYING PARTY UNDER THIS AGREEMENT, AND ALL ACTIONS, SUITS, PROCEEDINGS,
CLAIMS, DEMANDS, ASSESSMENTS, JUDGMENTS, COSTS AND EXPENSES (INCLUDING
REASONABLE FEES AND EXPENSES OF COUNSEL) INCIDENT TO ANY OF THE FOREGOING.
10.2
INSURANCE.
FOR PURPOSES