DISTRIBUTES ANY SWEETENER OR SWEETENED
PRODUCT THAT COMPETES DIRECTLY WITH ANY OF THE PRODUCTS OR THAT IS CONTROLLED BY
OR UNDER COMMON CONTROL WITH ANY PERSON THAT OWNS OR DISTRIBUTES ANY SUCH
SWEETENER OR SWEETENED PRODUCT.
MERISANT ACKNOWLEDGES THAT ACH MAY UTILIZE THE
SERVICES OF BROKERS IN THE PERFORMANCE OF ITS DUTIES AND OBLIGATIONS HEREUNDER,
AND THAT SUCH USE WILL NOT BE A BREACH OF THIS SECTION 11.4.
ALL OF THE TERMS,
AGREEMENTS, COVENANTS, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF THIS
AGREEMENT ARE BINDING UPON, AND INURE TO THE BENEFIT OF AND ARE ENFORCEABLE BY,
THE PARTIES AND THEIR RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
THERE ARE NO
THIRD PARTY BENEFICIARIES HAVING RIGHTS UNDER OR WITH RESPECT TO THIS AGREEMENT.
11.5
FORCE MAJEURE.
NEITHER PARTY WILL BE LIABLE TO
THE OTHER FOR ANY LOSS OR INJURY INCURRED OR DAMAGES SUSTAINED BY THE OTHER
PARTY DUE TO A FAILURE ON THE PART OF THE PARTY TO PERFORM UNDER THIS AGREEMENT
(EXCEPT FOR EITHER PARTY'S OBLIGATION TO MAKE A PAYMENT UNDER ANY PROVISION OF
THIS AGREEMENT), IF SUCH FAILURE TO PERFORM IS A RESULT OF WAR, ACT OF
TERRORISM, RIOT, LABOR STRIKE OR LOCK-OUT, SHORTAGES, FIRE, FLOOD, WIND, STORM
OR OTHER ACT OF GOD, GOVERNMENTAL CONTROL OR REGULATION OR OTHER SIMILAR
CONDITION BEYOND THE PARTY'S REASONABLE CONTROL.
11.6
ENTIRE AGREEMENT.
THIS AGREEMENT SETS FORTH THE
ENTIRE AND FINAL AGREEMENT AND UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER OF THIS AGREEMENT. ANY AND ALL PRIOR AGREEMENTS OR
UNDERSTANDINGS, WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SUBJECT MATTER OF
THIS AGREEMENT, ARE HEREBY TERMINATED.
THIS AGREEMENT MAY NOT BE MODIFIED OR
AMENDED EXCEPT BY AN INSTRUMENT IN WRITING EXECUTED BY THE PARTIES TO THIS
AGREEMENT. ANY TERMS OR CONDITIONS THAT MAY BE DIFFERENT FROM, OR IN ADDITION TO
THOSE AGREED TO AND SET FORTH IN THIS AGREEMENT, ARE EXPRESSLY OBJECTED TO AND
WILL NOT BE BINDING UPON EITHER PARTY UNLESS MUTUALLY AGREED TO IN WRITING.
11.7
EXTENSIONS; WAIVERS.
ANY PARTY MAY, FOR ITSELF
ONLY, (I) EXTEND THE TIME FOR THE PERFORMANCE OF ANY OF THE OBLIGATIONS OF ANY
OTHER PARTY UNDER THIS AGREEMENT, (II) WAIVE ANY INACCURACIES IN THE
REPRESENTATIONS AND WARRANTIES OF ANY OTHER PARTY CONTAINED HEREIN OR IN ANY
DOCUMENT DELIVERED PURSUANT HERETO AND (III) WAIVE COMPLIANCE WITH ANY OF THE
AGREEMENTS OR CONDITIONS FOR THE BENEFIT OF SUCH PARTY CONTAINED HEREIN.
ANY
SUCH EXTENSION OR WAIVER WILL BE VALID ONLY IF SET FORTH IN A WRITING SIGNED BY
THE PARTY TO BE BOUND THEREBY.
NO WAIVER BY ANY PARTY OF ANY DEFAULT,
MISREPRESENTATION OR BREACH OF WARRANTY OR COVENANT HEREUNDER, WHETHER
INTENTIONAL OR NOT, MAY BE DEEMED TO EXTEND TO
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ANY PRIOR OR SUBSEQUENT DEFAULT, MISREPRESENTATION OR BREACH OF WARRANTY OR
COVENANT HEREUNDER OR AFFECT IN ANY WAY ANY RIGHTS ARISING BECAUSE OF ANY PRIOR
OR SUBSEQUENT SUCH OCCURRENCE.
NEITHER THE FAILURE NOR ANY DELAY ON THE PART OF
ANY PARTY TO EXERCISE ANY RIGHT OR REMEDY UNDER THIS AGREEMENT WILL OPERATE AS A
WAIVER THEREOF, NOR