may terminate this
Agreement upon not less than ninety (90) days' prior written notice, provided
that the breach has not been cured within thirty (30) days of receipt of notice
of such breach and provided further that the party terminating this Agreement is
not then in material breach of this Agreement.
Either party may terminate this
Agreement upon written notice to the other if there has occurred any event of
force majeure preventing performance by the other party and such event has
continued for a period of three (3) consecutive months or longer.
9.4
CONTINUING RIGHTS.
UPON EXPIRATION OR
TERMINATION OF THIS AGREEMENT FOR ANY REASON, THE PARTIES WILL HAVE NO FURTHER
RIGHTS, LIABILITIES, DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT FOR ANY
RIGHTS, LIABILITIES, DUTIES OR OBLIGATIONS UNDER SECTIONS 9.2, 9.4 AND 11.2 AND
ARTICLES VII, VIII AND X OF THIS AGREEMENT, AND ANY RIGHTS, LIABILITIES, DUTIES
OR OBLIGATIONS WHICH ARISE PRIOR TO SUCH EXPIRATION OR TERMINATION.
9.5
REPURCHASE OF INVENTORY.
UPON THE DATE OF
EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON, MERISANT SHALL
PURCHASE AT THE NET PRICE THE REMAINING INVENTORY OF PRODUCTS THAT ARE GOOD AND
SALABLE. PROMPTLY FOLLOWING EXPIRATION OR TERMINATION, PURSUANT TO MERISANT'S
REQUEST AND DIRECTION AND AT MERISANT'S COST, ACH WILL RETURN ALL PRICE LISTS,
CATALOGS, SAMPLES, ADVERTISING, PROMOTIONAL OR OTHER MATERIALS FOR THE PRODUCTS
IN ACH'S POSSESSION, EXCEPT FOR SUCH MATERIALS USED IN THE SALE OF REMAINING
INVENTORIES OF THE PRODUCTS NOT PURCHASED BY MERISANT.
ARTICLE X
CONFIDENTIALITY
10.1
CONFIDENTIALITY.
DURING THE TERM OF THIS
AGREEMENT AND FOR A PERIOD OF TWO YEARS AFTER THE TERMINATION OR EXPIRATION OF
THIS AGREEMENT, RECIPIENT AGREES THAT (I) IT WILL, AND WILL CAUSE ITS
REPRESENTATIVES TO, MAINTAIN IN CONFIDENCE ALL CONFIDENTIAL INFORMATION AND WILL
NOT DISCLOSE ANY CONFIDENTIAL INFORMATION TO ANY PERSON, EXCEPT AS EXPRESSLY
PROVIDED HEREIN, AND WILL PROVIDE THE SAME CARE TO AVOID DISCLOSURE OR
UNAUTHORIZED USE OF THE CONFIDENTIAL INFORMATION AS IT PROVIDES TO PROTECT ITS
OWN SIMILAR PROPRIETARY INFORMATION; AND (II) IT WILL NOT, AND WILL NOT PERMIT
ITS REPRESENTATIVES TO, USE THE CONFIDENTIAL INFORMATION FOR ANY COMMERCIAL OR
COMPETITIVE PURPOSE WHATSOEVER.
FURTHERMORE, EACH PARTY ACKNOWLEDGES AND AGREES
THAT THE CONFIDENTIAL INFORMATION WILL BE USED ONLY FOR THE PURPOSES OF THIS
AGREEMENT AND NOT IN ANY WAY DIRECTLY OR INDIRECTLY DETRIMENTAL TO THE
RECIPIENT.
RECIPIENT MAY, HOWEVER, DISCLOSE THE CONFIDENTIAL INFORMATION TO ITS
REPRESENTATIVES, BUT ONLY IF SUCH REPRESENTATIVES REASONABLY NEED TO KNOW THE
CONFIDENTIAL INFORMATION FOR THE PURPOSES OF THIS AGREEMENT.
RECIPIENT AGREES
TO (I) INFORM EACH OF ITS REPRESENTATIVES RECEIVING CONFIDENTIAL INFORMATION OF
THE CONFIDENTIAL NATURE OF THE CONFIDENTIAL INFORMATION AND OF THE EXISTENCE AND
THE TERMS OF THIS AGREEMENT; (II) DIRECT ITS REPRESENTATIVES TO TREAT THE
CONFIDENTIAL INFORMATION CONFIDENTIALLY AND NOT TO USE IT OTHER THAN IN
CONNECTION WITH THE DISCUSSIONS; AND (III) BE RESPONSIBLE FOR ANY IMPROPER USE
OF THE CONFIDENTIAL INFORMATION BY ANY OF ITS
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REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, THOSE REPRESENTATIVES WHO,
SUBSEQUENT TO THE FIRST DATE OF DISCLOSURE OF CONFIDENTIAL INFORMATION
HEREUNDER,