1.     Offer, Governing Provisions and Cancellation.  This document is an offer or counter-offer (“offer”) by Shamrock Foods Company, an Arizona corporation (“Shamrock”) to sell the products and/or services (collectively, the “Products”) described in the accompanying quotation, proposal, order acknowledgment, invoice or other document provided by Shamrock to customer (“Customer”) herewith (the “Shamrock Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by Customer, and is expressly conditioned upon Customer’s assent to these Terms.  If there is a signed supply agreement in effect between Customer and Shamrock that applies to the Products (such agreement, a “Supply Agreement”), then, to the extent that there is conflict or inconsistency between these Terms and the Supply Agreement, the terms of the Supply Agreement shall prevail.  Shamrock objects to any additional, conflicting, contrary or otherwise different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Customer to Shamrock (collectively, the “Customer Form Documents”), in each case whether submitted in writing, electronically, or posted on any website.  These Terms, together with the terms of the Supply Agreement (if any) as well as the consistent terms provided by Shamrock in the Shamrock Document, shall be referred to herein as the “Agreement” and will (a) be the entire agreement between Shamrock and Customer on the subject of the transaction described herein and therein and (b) prevail in the event of any conflict between the Agreement and the terms and provisions of any Customer Form Documents which purport to add to, vary, modify, are contrary to or conflict in any way with the terms and provisions of the Agreement, with all such terms and provisions of the Customer Form Documents to be deemed deleted and without any force or effect; there are no conditions to the Agreement that are not so contained or incorporated.  THE NEGOTIATION, PERFORMANCE, AND ENFORCEMENT OF THE AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF ARIZONA AND THE U.S. (WITHOUT REFERENCE TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANY OTHER STATE).  Customer and Shamrock each irrevocably and unconditionally agree that any controversy, claim or dispute arising out of or relating to the Agreement or the Products shall be brought in any court of competent jurisdiction in the state and federal courts located in Maricopa County, Arizona, and each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts.   TO THE EXTENT PERMITTED BY LAW, THE PARTIES HEREBY EXPRESSLY WAIVE THE RIGHT TO A TRIAL BY JURY.  Any action or suit against Shamrock in any way arising from or related to the Agreement or the Products must be commenced within one year after the cause of action has accrued. No accepted offer may be cancelled or altered by Customer except upon terms and conditions accepted by Shamrock in writing, and no changes to the Agreement will be binding unless set forth in writing and manually signed by Shamrock.  This offer or counteroffer may be revoked by Shamrock at any time before it is accepted by Customer, and will automatically expire 30 calendar days after its date if Customer has not accepted it before then.  Neither Customer’s acceptance of this offer or counteroffer nor any conduct by Shamrock (including but not limited to shipment of Products) will oblige Shamrock to sell to Customer any quantity of Products in excess of the quantity that Customer has committed to purchase from Shamrock at the time of such acceptance or conduct.

2.     Credit Approval; Payment Terms; Storage.  All payment terms set forth in this document are subject to Shamrock’s approval of Customer’s credit, in Shamrock’s discretion.  Except as otherwise provided in the Shamrock Document, payment is due COD (cash on delivery).  Shamrock may assess a minimum of a $25 fee for Customer payments returned for non-sufficient funds or other reasons.  Interest will be charged at the lesser of (a) 18% per year, or (b) the highest rate permitted by applicable law, on past-due accounts.  Customer agrees to pay Shamrock, upon Shamrock’s demand therefor, the outstanding invoice amount, plus interest as provided in the prior sentence, plus (i) if the account is referred for collection, Shamrock’s cost of collection equal to the greater of (x) Shamrock’s actual cost of collection, or (y) 35% (or, if lower, the maximum amount allowed by law) of the outstanding invoice amount, and (ii) if the account is referred to an attorney, all costs and expenses, including reasonable attorneys’ fees and court costs, incurred by Shamrock in connection with any demand, demand letter, suit, action, or legal proceeding instituted to collect any amounts due to Shamrock or in enforcing Shamrock’s rights under the Agreement. Unless Shamrock otherwise agrees in writing, all payments made must be made by electronic funds transfer. If production or shipment of completed Products, or other Shamrock performance, is delayed due to an act or omission of Customer, Shamrock may immediately invoice, and Customer will pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, Customer will compensate Shamrock for storage of completed Products or work in process during any such delay, whether stored at Shamrock’s facility or an independent storage company’s facility.  Shamrock may reduce and set off against amounts payable under the Agreement any indebtedness or other claim Shamrock may have against Customer, or its affiliated or related companies or Units (defined in Section 4 (Delivery and Claims)), under the Agreement or any other contract between the parties.

3. Prices, Taxes and Other Charges. Unless otherwise provided in the Agreement, prices shall be as quoted by Shamrock, and such quoted prices are subject to change by Shamrock without prior notice.  The pricing that Shamrock charges to Customer for Products that Shamrock has agreed in writing to supply under an agency billing program (including those for Coca-Cola, Pepsi Cola, and Ecolab) shall equal the pricing negotiated by Customer with the manufacturer or supplier participating in such agency billing program (each manufacturer or supplier, a “Supplier”), without any additional charge (except that Coca-Cola freestyle cartridges pricing is subject to minimum order quantities, and Customer shall be responsible for fees charged by Shamrock to Customer if minimum order quantities are not met).  Customer acknowledges and understands that Shamrock will receive agency payments directly from the Supplier as compensation for Shamrock’s distribution services for the Products supplied to Customer. In order to receive agency billing program pricing, Customer must ensure that Shamrock has received written authorization from the applicable Supplier for each delivery location.

If Shamrock incurs increased costs (including, but not limited to, one or more Force Majeure Events (defined in Section 5 (Force Majeure)), increases in costs caused by tariffs, inflation, transportation, raw material shortages, labor costs, and/or machinery costs), Shamrock may from time to time increase prices of Products in orders already accepted by Shamrock to recoup those costs plus Shamrock’s customary profit, whether before or after acceptance of a purchase order by Shamrock, by providing written notice to Customer at least two weeks prior to the expected shipment date of the Products (an “Equitable Price Change”). No later than five calendar days after Customer’s receipt of such notice, Customer shall have the right to notify Shamrock in writing of Customer’s objection to the Equitable Price Change (“Customer Objection”).  Unless a Customer Objection is received by Shamrock within such five-day period, then Customer shall be deemed to have accepted the Equitable Price Change.  Upon Shamrock’s receipt of timely written notice of a Customer Objection, Shamrock may, without bearing liability to Customer therefor, either (a) cancel the applicable purchase order immediately upon notice to Customer or (b) supply the Products to Customer in accordance with the purchase order without giving effect to the Equitable Price Change.

All prices listed in Shamrock’s publications (including on Shamrock’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Shamrock.  No order shall be binding upon Shamrock until received and accepted in writing by Shamrock in its sole discretion. All prices, and amounts payable, under the Agreement are in U.S. Dollars.  Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest, imposts or similar charges of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Shamrock and Customer will be paid by Customer in addition to the prices quoted or invoiced.  In the event Shamrock is required to pay any such taxes or other charges, Customer will reimburse Shamrock therefor on demand.

4.     Delivery and Claims.  Unless otherwise provided in the Shamrock Document, Products shall be delivered to Customer F.O.B. Shamrock’s loading dock (as defined in the Arizona Uniform Commercial Code).  Delivery of Products to the carrier will constitute delivery to Customer.  Shamrock reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments shall be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries.  If the Shamrock Document provides that Shamrock deliver to a unit specified by Customer (“Unit”), such delivery shall be F.O.B. Customer’s loading dock at the Unit (as defined in the Arizona Uniform Commercial Code) and shall be subject to Shamrock’s minimum order quantity policies in effect at the time of delivery.  Title to the Products will pass from Shamrock to Customer upon delivery set forth in this Section or as otherwise provided in the Shamrock Document.  Regardless of shipping terms or freight payment, Customer will bear all risk of loss or damage in transit. Delay in delivery of any installment will not relieve Customer of its obligations to accept remaining deliveries. All delivery dates are approximate.

Claims for shortages or other errors in delivery must be made in writing to Shamrock upon receipt of the Products and before the driver leaves the Unit, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Customer, provided that if Shamrock makes a Key Drop Delivery to a Unit, Customer will be conclusively deemed to have received and accepted the type and quantity of Products shown on Shamrock’s invoice or delivery list left with the Products (even if such invoice or list was not signed by the Unit). “Key Drop Delivery” means a delivery made by Shamrock to a Unit when none of the Unit’s employees in charge of receiving is present.  Claims for loss of or damage to Products in transit must be made to the carrier, and not to Shamrock.

5.     Force Majeure.  Shamrock shall be excused from and shall not have any liability for any delay in delivery, delay in performance, non-delivery, or other failure to perform any of its obligations under the Agreement where Shamrock’s delay, non-delivery, or failure to perform is caused, in whole or in part, by a Force Majeure Event. Without limiting the generality of the foregoing, if Shamrock is delayed in performing under the Agreement due to a Force Majeure Event, Shamrock will be entitled to extend the relevant delivery or performance date by the amount of time that Shamrock was delayed as a result of the Force Majeure Event, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If the Force Majeure Event limits Shamrock’s available supply of Products, Shamrock may allocate its available supply first to its own needs, and thereafter will allocate its available supply in any manner that Shamrock determines, in good faith.  A “Force Majeure Event” is a condition or event that is beyond the reasonable control of Shamrock, whether foreseeable or unforeseeable, foreseen or unforeseen, including without limitation, severe weather, storm, flooding, hurricane, tornado, seismic disturbance, act or omission of Customer, act or omission of any third party, natural disaster or other act of God, fire, explosion or other casualty, epidemic, pandemic, quarantine, disease, virus, condemnation, strike, slowdown, or other labor dispute or shortage, transportation interruption, theft, vandalism, riot or war, terrorism, power outage, interruption in electronic communications systems, change in law, act of government, government-mandated allocation requirements, issuance of executive order or government order, government-mandated shutdown, or unavailability of parts, materials or supplies at a commercially reasonable price.

6.     Changes.   Shamrock may, with consent from Customer (such consent not to be unreasonably withheld, conditioned, or delayed), furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or nonavailability of materials from suppliers.

7.     Intellectual Property.  All intellectual property rights (including, without limitation, patents, trademarks, registered designs and any rights to apply for the same, copyright, design rights, database rights, rights in and to confidential information and know-how) and any rights analogous to the same anywhere in the world and existing at any time in Products manufactured by Shamrock or arising out of or relating to the design or manufacture thereof or the provision of services shall belong to and remain vested in Shamrock.  Nothing in the Agreement grants to Customer any right, title or interest in or to Shamrock’s intellectual property or any intellectual property related to the Products.  Each party hereby agrees that it shall not, either while the Agreement is in effect or at any time thereafter, register, use (except in the performance of the Agreement), or attempt to obtain any right in or to the other party’s trademarks, trade name, trade dress or logos, or in or to any trademark, trade name, trade dress, or logo confusingly similar thereto.

8.     Returns.  Product returns shall be governed by Shamrock’s Credit & Returns policy for customers in effect at the time of sale.  In addition, to be eligible for return, all Products that are otherwise eligible for return must be returned to Shamrock by Customer in original packaging, free of any markings or damage, and in re-saleable condition.

9.     Warranties.  Shamrock warrants that the Products manufactured by Shamrock shall, as of the date of delivery, (a) not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”) or the Federal Meat Inspection Act; (b) not be an article which cannot be introduced into interstate commerce under the provisions of 404 and 505 of the Act; and (c) be in compliance with all applicable U.S. federal, state, and local laws.  If, as of the date of delivery, any such Products shall be proved to Shamrock’s satisfaction to be defective, Shamrock shall, at its option: (i) reprocess or replace the affected Product free of charge, at Shamrock’s expense and risk of loss, and send such replaced Product to Customer; or (ii) credit to Customer the price paid by Customer for such defective Products. Such reprocessing, replacement or credit (whichever Shamrock determines, in its discretion, to provide) shall be Shamrock’s sole obligation and Customer’s exclusive remedy for any deficiency in Products furnished hereunder and shall be conditioned upon Customer’s return of such Products to Shamrock or, in Shamrock’s sole discretion, inspected in the field by a Shamrock-authorized representative, in either case at Customer’s expense and risk of loss.  SHAMROCK MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER FOR PRODUCTS MANUFACTURED BY SHAMROCK.

For Products that are not manufactured by Shamrock, Shamrock assigns to Customer all of Shamrock’s rights against its suppliers of Products under the warranties (if any) received from such suppliers, to the extent the rights are assignable, provided that Shamrock reserves the rights to file a claim under and directly enforce any such warranties and indemnifications if Customer is named as a defendant or is otherwise liable under any suit or proceeding with regard to Products supplied by the Shamrock.  Other than the limited obligations set forth in this paragraph, SHAMROCK MAKES NO WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER FOR PRODUCTS NOT MANUFACTURED BY SHAMROCK.

Shamrock warrants that any services it provides hereunder will be performed in a manner consistent with customary practice in its industry.  Should a failure to conform to this warranty appear within 30 calendar days after Shamrock’s completion of any services, and, if promptly notified thereof in writing, Customer’s sole and exclusive remedy (and Shamrock’s sole and exclusive liability) for any breach shall be for Shamrock to either (A) re-perform the services, or (B) provide Customer with a credit of that portion of amounts paid by Customer to Shamrock for the defective services (whichever Shamrock determines, in its discretion, to provide). SHAMROCK MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER FOR SERVICES PROVIDED BY SHAMROCK HEREUNDER.

THE WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED.  SHAMROCK EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

10.   Limitation of Liability. SHAMROCK SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SHAMROCK WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Shamrock specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of data, down-time, lost good will, cost of capital, cost of substitute Products, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs or losses. Shamrock shall not be liable to Customer for any amount with respect to any order of Products that, in combination with all claims by Customer against Shamrock related to such order of Products, exceeds the total price for such order of Products. SHAMROCK WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SHAMROCK, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Shamrock to Customer, whether in contract, tort (including negligence or strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity.

11.   Customer’s Indemnity.  Customer shall indemnify, defend and hold harmless Shamrock and its officers, agents, and employees from and against any and all losses, damages (including damages arising from personal injury or death), liabilities, costs and expenses (including attorneys’ fees) arising out of or related to: (a) any breach by Customer of the Agreement; (b) any violation by Customer of any Law (for the purposes of this Section, “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement, or rule of law of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction); (c) any failure of a Product procured by Shamrock at the direction of Customer to comply with any applicable law, rule or regulation; (d) any use, resale, storage, handling, preparation, additions or modifications to or of the Products by Customer; (e) the consumption of Products, except to the extent caused solely by Shamrock’s negligence or willful misconduct; (f) any sources or specifications to be used for the Products that are designated by Customer; (g) any negligence or willful misconduct of Customer; (h) any action or inaction taken by Shamrock under the Agreement at Customer’s direction or otherwise related to Customer’s franchise or other relationship Customer has with any Unit; and/or (i) any claim of patent, trademark, copyright or trade secret infringement, or infringement of any other proprietary rights of third parties to the extent that any Products are manufactured in accordance with drawings, designs or specifications proposed or furnished by Customer. Shamrock shall give Customer written notice of any claim for which defense or indemnification is sought under the Agreement, provided that the failure to give such written notice shall not, however, relieve Customer of its defense or indemnification obligations, except and only to the extent that Customer forfeits rights or defenses by reason of such failure. Shamrock, may, at Shamrock’s option, assume and control the defense of the claim, and in such case, Customer shall indemnify Shamrock from and against losses, damages, costs and expenses (including attorneys’ fees, court fees, and other defense costs) incurred by Shamrock in defending such claims. If Shamrock decides not to assume the defense of a claim, then Customer shall assume and control the defense of such claim, at Customer’s expense and by Customer’s own counsel (which counsel shall be subject to the approval of Shamrock, which approval will not be unreasonably withheld or delayed); provided that Shamrock shall have the right to participate in the defense of any claims with counsel selected by it at Shamrock’s expense. Shamrock and Customer shall cooperate with each other in all reasonable respects in connection with the defense of any claims. Notwithstanding any other provision of the Agreement, Customer shall not consent to the entry of any judgement or enter into any settlement of any claims without the prior written consent of Shamrock.

12.   Food Safety; Notification; Recall. Customer agrees to follow any food or beverage Product preparation instructions provided by Shamrock or Shamrock’s suppliers when such Product relies upon the user, their employees, associates, agents, customers or others to control any known food safety hazards that may be present prior to Product service to the end consumer.  Customer shall notify Shamrock, within 36 hours after Customer obtains any knowledge of the occurrence of any illness, sickness, accident, or malfunction involving any Products which results in injury to or death of persons, or damage to property, or the loss of such Product use.  Customer shall cooperate fully with Shamrock in investigating and determining the cause of any such event.  If a governmental authority declares that any of the Products or any ingredient, packaging, or supplies used in connection with the Products, or if Shamrock at any time believes in good faith that any of the Products or any such ingredient, packaging, or supplies, (a) is or may be adulterated or misbranded or does not or may not conform with an applicable consumer or regulatory product safety standard, or (b) is or may be otherwise unsafe or unfit for the intended use of the Product, then, without limiting other rights and remedies that are available to Shamrock under the Agreement or applicable law, Shamrock will have the right to recall or withdraw all such Products from Customer, and cancel or not ship orders based on a recall, withdrawal, alert, or good faith decision.  Customer agrees to comply with appropriate disposition instructions with respect to all such Products, packaging, or supplies that Shamrock has previously delivered to Customer and to reasonably assist Shamrock in all aspects of a recall, including (i) developing a recall strategy and preparing and furnishing reports, records, and other information with respect to such recall, and (ii) notifying any of Customer’s customers or consignees who may be in possession of the recalled Products. If, in the absence of a formal recall, hold, or withdrawal of Product initiated by the supplier of a Product, or a government authority, Customer requests withdrawal of Products from Shamrock distribution centers, or directs Shamrock to take other action to hold, recall or otherwise remove Products from the stream of commerce, (A) Shamrock reserves the right to assess a reasonable handling charge, (B) Customer shall reimburse Shamrock for all fees and expenses incurred by Shamrock related to withdrawal of Products from Shamrock distribution centers, and (C) Customer shall pay or reimburse Shamrock for all expenses related to the purchase of such Products and the recall.

13.   Government Contracts. If the provision of Products by Shamrock under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Customer shall so notify Shamrock in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.

14.   Security Interest. If the Products are sold on credit terms, Customer acknowledges that Shamrock retains a purchase money security interest in the Products. To secure Customer’s obligations to Shamrock under the Agreement or any other agreement, Customer hereby grants to Shamrock a security interest in all the Products sold under the Agreement, whether now owned or hereafter acquired, and all products and proceeds thereof.  Shamrock may file any financing statements and send any notices necessary or appropriate to perfect or protect such security interest.

15.   PACA.  This Section is a notice required under federal law.  The Agreement may cover sales of perishable agricultural commodities as those terms are defined by federal law.  All fresh and frozen fruits and vegetables which have not been processed beyond cutting, combining, or steam blanching are generally considered perishable agricultural commodities.  All perishable agricultural commodities sold under the Agreement are sold subject to the statutory trust authorized by Section 5(c) of the Perishable Agricultural Commodities Act of 1930 (7 U.S.C. 499e(c)).  The seller of these commodities retains a trust claim over these commodities and all inventories of food or other products derived from these commodities, and any receivables or proceeds from the sale of these commodities until full payment is received.

16.   Confidential Information. This Section applies in the absence of any executed confidentiality agreement between Shamrock and Customer: Any and all information, whether in tangible or intangible form concerning Shamrock’s products; prices and pricing strategies; technology, software, supplies, systems, or services used; purchasing, accounting, marketing (including but not limited to customer lists, data and contacts), merchandising, selling, servicing, business methods and plans; techniques; marketing plans; strategies; forecasts; financial and cost information; concepts; know-how; improvements; projects; proposals; suppliers (including supplier lists and supplier contacts); employee lists; trade secrets; trademark and copyrighted information; and other similar information, items, documents and materials made available by Shamrock or its affiliates to Customer or its affiliates, or otherwise acquired, obtained or developed by Customer under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Shamrock. “Confidential Information” shall not include any item of information that Customer can demonstrate by tangible evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Customer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Customer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions.  During the Confidentiality Period, Customer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms, or (ii) disclose the Confidential Information to any third party.  The “Confidentiality Period” shall mean the period beginning on the date of disclosure to Customer and ending on the date that is 5 years after the date that Shamrock accepts the last purchase order submitted by Customer, provided that the parties’ obligations with respect to Confidential Information that constitutes trade secrets under applicable law will continue until the date on which such information no longer constitutes trade secrets under applicable law.  Customer acknowledges and agrees that money damages for any and all breaches of Customer’s obligations under this Section are both incalculable and insufficient and that any such breach would irreparably harm Shamrock. Therefore, in the event of an actual or prospective breach of any such obligation, Shamrock shall be entitled to seek a permanent and/or preliminary injunction without the need to post any bond to prevent or remedy such breach and shall have the right to specific enforcement of this Section against Customer in addition to any other remedies to which Shamrock may be entitled at law or in equity.

17.   Relationship of Parties.  Customer and Shamrock are independent contractors. Nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship.  Neither party has nor will have any power to bind the other, or to assume or create any obligation, express or implied, on behalf of the other party.

18.   Authorized Third Parties; Data Privacy. Notwithstanding anything to the contrary in Section 10 (Limitation of Liability) and Section 11 (Customer Indemnity) above, Customer agrees that if Customer or its representatives direct or instruct Shamrock to disclose or transmit data or information to a third party entity, including email service providers, payment processing companies or other Customer contractors (such third party entities, “Authorized Third Parties”), that Shamrock is not responsible for the privacy, security, or integrity of such data or information, and the treatment of such data or information shall be governed by Customer’s relationship or agreement with such Authorized Third Parties. Customer acknowledges that it is solely responsible for ensuring the accuracy of any information transmitted to the Authorized Third Parties and for promptly informing Shamrock of any changes to Authorized Third Parties, including the addition or removal of Authorized Third Party designations or changes in permissions granted to Authorized Third Parties. Shamrock assumes no responsibility or liability for the acts or omissions of Authorized Third Parties. Customer agrees to defend, indemnify and hold harmless Shamrock from and against any and all claims, losses, damages, costs, expenses, and liabilities arising from or related to Customer’s relationship or agreement with Authorized Third Parties.

19.   Attorneys’ Fees.  In the event of any action at law or in equity between the parties to enforce any of the provisions of the Agreement, the unsuccessful party to such action or proceeding shall pay to the successful party all costs and expenses, including reasonable attorneys’ fees, incurred by such successful party; and if such successful party shall recover a judgment in any such action or proceeding, such costs, expenses and attorneys’ fees may be included in and as part of such judgment.

20.   E-Discovery Limitation.  In the event litigation is commenced pursuant to the Agreement, the parties agree to the extent permissible under the then-applicable Federal Court Rules and Federal Rules of Civil Procedure, the provisions set forth in this Section shall apply.  The parties agree that in the event of a dispute, a legal hold notice shall be issued after receipt of a summons and complaint.  The legal hold notice shall apply to only those employees directly involved with the subject matter of the litigation or information technology professionals.  The employees in receipt of the legal hold notice shall preserve relevant electronic documents in their possession and information technology professionals shall preserve responsive electronic documents within their control.  While the parties may agree to the scope of document production in the course of the litigation, in no event will any party be required to preserve, collect or produce back-up tapes, server logs, information stored in volatile memory, and transient metadata. The parties stipulate to the entry of a protective order, case management order, or similar order governing preservation and discovery in general that is consistent with the terms of this Section.

21.   Cumulative Remedies.  Shamrock’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Shamrock at law or in equity.

22.   No Assignment.  Customer shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.

23.   Severability.  If any provision of the Agreement is held illegal, invalid or unenforceable, such provision will be deemed stricken from the Agreement and its illegality, invalidity or unenforceability will not affect the remainder of the provisions of the Agreement, which will remain in full force and effect.  The parties will endeavor in good faith negotiations to replace any illegal, invalid or unenforceable provision with a valid, legal and enforceable provision, the economic effect of which comes as close as possible to the economic effect of the illegal, invalid or unenforceable provision.

UPDATES. THESE TERMS MAY BE MODIFIED, AMENDED AND UPDATED FROM TIME TO TIME AT THE DISCRETION OF SHAMROCK UPON WRITTEN NOTICE TO CUSTOMER.

Updated June 2023