Terms and Conditions — Canworks - Digital Aluminum Can Printing in Austin, TX

Canworks, Inc. – Warranty, Terms and Conditions of Sale

These Warranty, Terms and Conditions of Sale (these “Terms”) apply to and govern all sales of Products (as defined below) by Canworks, Inc., a Delaware corporation (“Canworks”), to you (“Buyer”). If Buyer does not understand or agree to these Terms, Buyer should not place an Order (as defined below) or otherwise buy any Products from Canworks.

1. Scope of Agreement. These Terms govern Buyer’s purchase of any beverage cans, ends or any other goods (“Products”) from Canworks. If Canworks tenders these Terms to Buyer before Buyer tenders a purchase order or similar document to Canworks, then these Terms are in lieu of any terms Buyer may later submit and Canworks rejects all of Buyer’s additional or different terms and conditions, whether confirmatory or otherwise. If Canworks tenders these Terms after Buyer tenders other terms (whether as part of a purchase order or otherwise), then Canworks’s acceptance of Buyer’s offer to purchase Products associated with Buyer’s terms is expressly conditioned upon Buyer’s acceptance of these Terms exclusively and to the exclusion of Buyer’s proffered terms or conditions, regardless of whether these Terms contain any terms additional to, or different from, any of Buyer’s proffered terms. Buyer’s purchase of any Products from Canworks constitutes Buyer’s agreement to be bound by these Terms. Notwithstanding the above, if Buyer and Canworks have entered into a separate written agreement signed by Buyer and a Canworks officer that covers the sale of the Products (a “Separate Agreement”), such Separate Agreement will govern to the extent it is inconsistent with these Terms.

2. Modifications. Canworks and Buyer expressly agree that Canworks may modify these Terms from time to time. The version of these Terms in effect at the time Buyer places an Order shall apply to such Order.

3. Orders.

a. Buyer may place orders for Products (“Orders”) by submitting a signed Order Form and Acknowledging Artwork Approval (each, a “Canworks Order Form”). By submitting an Order, Buyer is making an offer to Canworks to purchase the selected Products on these Terms. Canworks has the right, in its sole discretion, to accept or reject any such offer. Canworks’s acceptance of an Order only occurs when Canworks confirms receipt and acceptance of the customer’s Order, at which time Buyer and Canworks will have a binding contract. Canworks may refuse an Order for any reason or no reason, and will have no liability to Buyer for refusing an Order.

b. Please note that because of the fragile nature of Products and for the need for them to be handled and transported, there is a standard and acceptable two percent (2%) yield loss that should be taken into account when placing Order quantities.

4. Prices. The price of each Product sold to Buyer will be either (a) the price set forth in a quotation Canworks delivers to Buyer, which quotation will expire 30 days after the date of the quotation, (b) the then-current price for such Product at the time Canworks accepts the Order (Canworks’s current price lists are available on the then-current Canworks Order Form, if there is uncertainty of which form is current, Buyer will request confirmation from Canworks), or (c) if applicable, the agreed-upon price set forth in a Separate Agreement. Canworks reserves the right to change prices without notice; however, prices in effect at the time of Order acceptance will prevail. Quoted and stated prices do not include shipping and handling costs (“Shipping Costs”) or any applicable sales, use, privilege or export taxes, custom duties, or any other tax, fee or charge of any kind imposed by any government authority on or measured by the Order (collectively, “Taxes”). If Buyer is tax-exempt, Buyer must provide Canworks with a tax-exemption certificate that the relevant taxing authorities accept. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Canworks shall be made without Canworks’s prior, express written approval.

5. Payment Terms. Buyer must pay for the Products and related Shipping Costs (if any) in full based upon terms agreed to. If no specific terms were agreed to, terms default to full payment prior to shipping or pick-up. If Canworks does not accept an Order or later cancels an Order, Canworks will refund any payments Buyer has made related to such Order in full. Should Buyer contest any charge on an invoice, Buyer must notify Canworks in writing (with reasonably a detailed description of the dispute) prior to the due date for the invoice. The uncontested balance of any invoice must be paid for on or prior to the invoice’s due date.

6. Title and Risk of Loss. Title to Products and risk of loss will pass to Buyer upon (i) if Buyer elects to have the Products shipped to Buyer, receipt by Buyer at their elected location or (ii) upon Canworks making the Products available to Buyer for pick up at Canworks’s pick-up point located at 800 Interchange Blvd., Suite 106, Austin TX 78721.

7. Delivery. Buyer agrees that Canworks shall not be held liable to Buyer or any other party for any losses, damages, penalties, or expenses for any delay in delivery of the Products. Canworks’s only obligation with respect to delivery dates specified in an Order shall be to use its reasonable efforts to meet same. All such delivery dates for the Products are estimates only. To the extent that Buyer elects Canworks to arrange for shipping and handling of any Products, such Shipping Costs shall be paid prior to shipping and the charge for this service will be added to the invoice. Neither Shipping Costs nor Taxes are subject to any discounts. If Buyer elects to have Products shipped via a common carrier, then (a) damage incurred in transit or before receipt is Buyer’s responsibility, (b) Buyer must immediately bring all damage, concealed or otherwise, to the Canworks’s attention at the time of delivery, and (c) Canworks is responsible for filing all claims against the carrier and collecting any related damages from the carrier to the extent that such damages are confirmed by the parties to have been caused by the carrier or occurred during shipment.

8. Buyer Pick-Up. The parties agree that Canworks is not responsible for any damage to Buyer or any other party for the losses, damages, penalties, or expenses to the Products as a result of Buyer’s decision to forego shipping and pick-up the Product from Canworks’s location at 800 Interchange Blvd., Suite 106, Austin TX 78721. Furthermore, Canworks is not responsible for any damage to Buyer or any other party for the losses, damages, penalties or expenses directly or indirectly incurred by Buyer to Buyer’s property, vehicles or employees during pick-up. Canworks will not be responsible for any delays, breakage, loss or damage during transport of the Products if Buyer elects to pick-up the Products. If Buyer elects to pick-up the Products itself or through an agent, Buyer must do so within the later of ten (10) days after (i) Buyer’s “need- by” date and (ii) the date the Products were produced by Canworks (the “Pick-Up Date”). Notwithstanding the foregoing, in the event that Buyer fails to pick-up the Products within thirty (30) days of the Pick-Up Date, Seller may, in its sole discretion and upon written notice to Buyer, scrap the Products that have not been picked-up by Buyer.

9. Inspection and Acceptance; Patently Defective/Damaged Products; Nonconforming Products.

a. Inspection; Acceptance. Buyer is responsible for inspecting all Products promptly upon receipt, but in any event within ten (10) days of Buyer’s receipt (the “Delivery Inspection Period”) for material and patent defects or damage of over two percent (2%) of the applicable sku of the Products (“Patently Defective/Damaged Product”) and, if Buyer discovers any such damage or defects, Buyer is responsible for bringing such damage or defects to Canworks’s attention within the Delivery Inspection Period. Notwithstanding the foregoing, Buyer will be deemed to have accepted any delivered Products unless Buyer notifies Canworks in writing of any Nonconforming Product (as defined below) within three (3) days of delivery (or date of Buyer’s pick-up). For purposes of these Terms, a “Nonconforming Product” means only the following: (i) a delivered item that is different than the Product identified in Buyer’s Order, or (ii) packaging or labeling that incorrectly identifies its contents. If Buyer fails to notify Canworks within the time periods specified above, Buyer shall forego any of its rights and remedies against Canworks for Patently Defective/Damaged Product and/or Noncomforming Product, including, but not limited to those set forth in Section 9(b) below and the enforcement of the warranties set forth in these Terms.

b. Remedies for Patently Defective/Damaged Products and Nonconforming Products. If Buyer timely notifies Canworks of any Patently Defective/Damaged Products and/or Nonconforming Products and returns such Patently Defective/Damaged Products and/or Nonconforming Products to Canworks as required in Section 9(c), Canworks will either, in its sole discretion, (i) replace such Patently Defective/Damaged Products and/or Nonconforming Products with conforming Products, or (ii) credit or refund the price Buyer paid for such Patently Defective/Damaged Products and/or Nonconforming Products. Buyer acknowledges and agrees that the remedies in this Section 9(b) are Buyer’s exclusive remedies for the delivery of Patently Defective/Damaged Products and/or Nonconforming Products.

c. Returning Patently Defective/Damaged Products and/or Nonconforming Products. Buyer will not be entitled to either of the remedies described in Section 9(b) unless and until Buyer returns the Patently Defective/Damaged Products and/or Nonconforming Products to Canworks. Buyer must include a statement with the returned Patently Defective/Damaged Products and/or Nonconforming Products detailing the specific reason for any return.

d. Defects Discovered During Buyer’s Filling Process. Buyer shall immediately notify Canworks in writing (e-mail to suffice) in the event that during Buyer’s filling of the Products, through no fault of Buyer or its agents, over two percent (2%) of the applicable sku of the Products filled by Buyer (or its agents) develops material and patent aesthetic defects/damage that would not have otherwise been discovered by a reasonable person during the Delivery Inspection Period (the “Filling Defects”). If Buyer or its agents or employees observe Filling Defects during the filling process, Buyer shall, and shall instruct its agents and/or employees to, immediately stop the filling process. Buyer shall notify Canworks of the Filling Defects within ten (10) days of Buyer’s or Buyer’s agent’s discovery of the Filling Defects, and, upon Canworks’s confirmation that the Filling Defects are not otherwise attributable to Buyer or its agent’s acts or omissions, Canworks will either, in its sole discretion, (i) replace such Products affected by the Filling Defects with conforming Products, or (ii) credit or refund the price Buyer paid for such Products. Notwithstanding anything to the contrary herein, if Buyer fails to timely notify Seller of the Filling Defects or Buyer or its agents or employees continue to fill the affected Products after the Filling Defects are discovered, Seller shall only be responsible for refunding the Price(s) Buyer paid to Seller for such affected Products; provided further if Buyer fails to notify Canworks within the time period specified above, Buyer shall forego any of its rights and remedies against Canworks for Filling Defects, including, but not limited to those set forth in Section 9(b) below and the enforcement of the warranties set forth in these Terms.

10. Limited Warranty and Warranty Terms.

a. Limited Warranty. Subject to Section 9 herein, Canworks warrants to Buyer that the artwork, designs, graphics, or depictions that Canworks prints on any Product will substantially match the artwork, designs, graphics, or depictions Buyer instructed Canworks to print on such Product (the “Limited Warranty”) for a period of sixty (60) days after such date the risk of loss shifts to Buyer under Section 6 above (the “Warranty Period”). Canworks makes the Limited Warranty only to the original Buyer of a Product; the Limited Warranty is not transferable. Buyer must have the original purchase receipt for a Product and proof of identity for the Limited Warranty to be effective. THE LIMITED WARRANTY DOES NOT COVER ANY BREACH OF WARRANTY CAUSED BY OR RESULTING FROM (i) BUYER’S FAILURE TO COMPLY WITH THESE TERMS, THE PRODUCT MANUFACTURER’S RECOMMENDATIONS OR INSTRUCTIONS, OR CANWORKS’S RECOMMENDATIONS OR INSTRUCTIONS; (ii) DAMAGES FROM SHIPPING, IMPROPER HANDLING, OR STORAGE; (iii) ANY ALTERATION OR MODIFICATION TO THE PRODUCTS MADE BY ANYONE OTHER THAN CANWORKS; (iv) USE OF THE PRODUCTS FOR A PURPOSE, IN A MANNER, OR WITH A SUBSTANCE THAT HAS NOT BEEN APPROVED BY CANWORKS OR FOR WHICH THE PRODUCT WAS NOT INTENDED; (v) A FORCE MAJEURE EVENT; (vi) VANDALISM, CONTAMINATION, THEFT, MISUSE, ABUSE, ACCIDENT OR NEGLIGENCE OR ACTS OR OMISSIONS OF A THIRD PARTY; (vii) BUYER’S FURTHER USE OF PRODUCTS AFTER BUYER DISCOVERS A BREACH OF THE LIMITED WARRANTY; (viii) FAULTY FILLING OR CLOSURE OF PRODUCTS; OR (viii) NORMAL WEAR AND TEAR. Furthermore, the Limited Warranty will only apply if (a) Buyer promptly notifies Canworks in writing of the alleged breach in the warranty prior to the expiration date of the Warranty Period; (b) Buyer returns the Product allegedly in breach of the warranty within the Warranty Period to Canworks, accompanied by with a statement detailing the purported breach of warranty and (c) subject to the exclusions set forth above, Canworks confirms that the Product is in breach of the warranty. For the avoidance of doubt, Canworks will not be liable for any spelling, font, or content errors on the Products if such errors were included in the specifications provided by Buyer for the respective Order. Canworks shall have no liability to Buyer nor shall it be a breach of the Limited Warranty in the event that Buyer’s artwork fails to meet applicable federal, state or local laws or regulations. For the avoidance of doubt, Buyer shall be wholly responsible (in respect of copyright, trademark, design, all common law and statutory right and otherwise whatsoever) for any matter of work which Buyer instructs Canworks to print and for any design, sketch, drawing, painting, construction work or other thing which Buyer supplies and or instructs Canworks to supply.

b. Buyer acknowledges that Seller does not manufacture the Products. Accordingly, the only warranty provided with respect to the Products comes from the manufacturer, the terms of which may be obtained from Seller. At the request of Buyer, Seller may provide reasonable assistance to Buyer in processing warranty claims with respect to the manufacturer’s Products

c. Buyer acknowledges that Seller does not offer a warranty for the Products and Seller has not performed any testing on the suitability of the Products for packaging of Buyer’s fluids, as Seller cannot control the formula of Buyer’s fluids that will be placed into the Products, and that Seller has no duty to do so; rather, Buyer alone has the duty to determine the suitability of the Products to hold Buyer’s fluids. Buyer has evaluated any perceived risk and, except as otherwise provided for herein, Buyer expressly, knowingly and voluntarily waives any and all rights it may have against Seller with respect to loss or damage arising after the delivery and acceptance of the Products. Buyer hereby releases Seller from and agrees that Seller will not have any direct or indirect responsibility or liability for any physical or economic damage or bodily injury to Buyer, its employees or any such parties, including, but not limited to, the customers of the Buyer and the retail public, arising after the delivery of the Products to Buyer. Buyer further waives and releases any and all rights under Section 1542 of the California Civil Code, or any analogous state, local, or federal law, that Buyer may have with respect to Saxco that are related in any way to or arising from the Products after the delivery of the Products to Buyer. Buyer understands that this means that Buyer is waiving unknown claims that are related in any way to or arising from the Products after the delivery of the Products to Buyer. California Civil Code Section 1542 reads as follows:

“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

d. Exclusive Remedies. Buyer agrees that Canworks’s sole liability and Buyer’s sole and exclusive remedy arising out of or relating to any confirmed breach of the Limited Warranty will be, at Canworks’s option, to (i) repair or replace the defective Product(s), or (ii) credit or refund to Buyer the price Buyer paid for such defective Product(s).

e. Disclaimer. CANWORKS MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED (INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSES), OR STATUTORY, OTHER THAN THE LIMITED WARRANTY IN SECTION 10(a). THERE ARE NO OTHER REPRESENTATIONS OR WARRANTIES REGARDING THE PRODUCTS. THE REMEDIES SET FORTH IN SECTION 10(d) ARE THE EXCLUSIVE REMEDIES AVAILABLE TO BUYER FOR BREACH OF THE LIMITED WARRANTY. CANWORKS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY WILL UNDER NO CIRCUMSTANCES EXCEED THE ACTUAL AMOUNT BUYER PAID CANWORKS FOR THE DEFECTIVE PRODUCT.

11. Cancellation and Changes. No cancellations of an executed Canworks Order Form or changes to the Products shall be effective without Canworks’s prior written consent. Without such consent, a cancellation of or change to the Products shall entitle Canworks to all remedies available by law or equity, including cancellation costs or increased prices. Further, Canworks reserves the right to refuse, cancel or delay any Order placed by Buyer and accepted by Canworks if Buyer is or becomes delinquent in payments or if Buyer fails to perform any of its material obligations under these Terms.

12. Waiver. This waiver and release is given by Buyer in favor of Canworks regarding Canworks’s sale of Products consisting of printed aluminum beverage cans and can ends (the “Cans”) to Buyer, and is an expressed, material inducement and condition to Canworks’s agreement to sell such Cans to Buyer. Buyer acknowledges and agrees that, by placing an Order with Canworks for printed Cans, Canworks will not perform and is not responsible for performing any tests on such Cans or confirming their suitability for packaging any particular fluids. Buyer is solely responsible for determining the suitability of Cans to hold specific fluids. Buyer has evaluated any perceived risk and, except as otherwise provided for herein, Buyer expressly, knowingly and voluntarily waives any and all rights it may have against Canworks with respect to loss or damage Buyer incurs that arises after Buyer’s acceptance of the Products. Buyer hereby releases Canworks from and agrees that Canworks will not have any direct or indirect responsibility or liability for any physical or economic damage or bodily injury to Buyer, its employees or any such parties, including, but not limited to, the customers of the Buyer and the retail public, arising after the acceptance of the Products by Buyer. Buyer further waives and releases any and all rights under Section 1542 of the California Civil Code, or any analogous state, local, or federal law, that Buyer may have with respect to Canworks that are related in any way to or arising from the Products after the delivery of the arising after Buyer’s acceptance of the Products. Buyer understands that this means that Buyer is waiving unknown claims that are related in any way to or arising from the Products after the acceptance of the Products by Buyer. California Civil Code Section 1542 reads as follows:

13. Indemnification. BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS CANWORKS, CANWORKS’S SUPPLIERS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUBSIDIARIES, REPRESENTATIVES, SUCCESSORS AND PERMITTED ASSIGNS (THE “CANWORKS INDEMNITEES”) FROM AND AGAINST ANY AND ALL ACTIONS, CLAIMS, DEMANDS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), LOSSES, DAMAGES, JUDGMENTS, SETTLEMENTS, PENALTIES, FINES, FEES, LIABILITY AND COSTS OF ENFORCING ANY RIGHT TO INDEMNIFICATION, DIRECTLY OR INDIRECTLY ARISING OUT OF OR RESULTING FROM ANY (i) INJURY OR DEATH TO ANY PERSON, OR (ii) ANY DAMAGE, LOSS OR DESTRUCTION OF ANY PROPERTY, IN EITHER CASE, THAT RESULTS FROM BUYER’S SALE OR USE OF ANY PRODUCTS OTHER THAN SUCH DAMAGES THAT RESULT FROM CANWORKS’S SOLE NEGLIGENCE OR WILLFUL MISCONDUCT.

14. Liability Limitation.

a. Buyer’s recovery from Canworks for any claim will not exceed Canworks’s purchase price for the Product(s) giving rise to such claim, regardless of the nature of the claim (whether in agreement, tort, warranty, or otherwise). Buyer will never be entitled to, and Canworks will never be liable for, indirect, special, incidental, or consequential damages of any kind, including, without limitation, business interruption costs, loss of profit or revenue, or injury to reputation, even if Buyer has advised Canworks of the possibility of such damages. By submission of an Order with Canworks, Buyer waives any claim for amounts in excess of the purchase price for the Product(s) giving rise to such claim.

b. No legal action shall be brought by Buyer against Canworks for any claim with respect to any Products sold by Canworks to Buyer more than one (1) year after the earlier of (i) the delivery or (ii) Pick-Up Date of such Products to Buyer. It is agreed that any cause of action with respect to such Products will accrue on the earlier of (i) the delivery or (ii) Pick-Up Date of such Products to Buyer.

15. INTELLECTUAL PROPERTY RIGHTS. TO THE EXTENT BUYER PROVIDES ANY ARTWORK, DESIGNS, GRAPHICS OR OTHER DEPICTION FOR INCORPORATION INTO OR PLACEMENT ONTO THE PRODUCTS (“BUYER ARTWORK”), BUYER REPRESENTS AND WARRANTS THAT CANWORKS’S PRINTING OF SUCH BUYER ARTWORK ON ANY PRODUCTS ORDERED BY BUYER SHALL NOT CONSTITUTE INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET, KNOWHOW, TRADEMARK OR OTHER PROPRIETARY OR INTELLECTUAL PROPERTY RIGHT (COLLECTIVELY, “INTELLECTUAL PROPERTY RIGHTS”) OF ANY PERSON OR ENTITY. BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE CANWORKS INDEMNITEES, FROM AND AGAINST ANY SUIT, PROCEEDING, CLAIMS, DEMANDS, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), AND LIABILITY ARISING OUT OF AN ALLEGATION THAT BUYER ARTWORK INFRINGES ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS (AN “INFRINGEMENT CLAIM”). BUYER SHALL PAY ALL DAMAGES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES, WITH EACH CANWORKS INDEMNITEE RETAINING THE RIGHT TO CHOOSE ITS OWN ATTORNEYS, AND THE COST OF EXPERTS) INCURRED OR SUFFERED BY ANY CANWORKS INDEMNITEES PURSUANT TO ANY INFRINGEMENT CLAIM. CANWORKS MAY PARTICIPATE (AT ITS OWN COST) IN THE DEFENSE OF ANY INFRINGEMENT CLAIM TO THE EXTENT IT, IN ITS SOLE DISCRETION, DEEMS APPROPRIATE. BUYER SHALL NOT SETTLE ANY INFRINGEMENT CLAIM, EXCEPT ON TERMS AGREED TO IN WRITING IN ADVANCE BY THE APPLICABLE CANWORKS INDEMNITEES.

16. Default; Termination. In the event Buyer fails to make payment to Canworks, or any affiliate of Canworks, of any amounts due and owing to Canworks or such affiliate (including any applicable surcharge or shipping and handling charge) by the date on which such payment is due, Canworks shall have the right to terminate any Order or any unfulfilled portion thereof, and Canworks may charge interest on the outstanding balance at an annual rate of 18% or the highest rate allowed by law, whichever is less. Canworks shall have the right to employ an attorney to collect the balance due, and Buyer agrees to pay all collection costs incurred by Canworks, including its reasonable attorneys’; fees. If Buyer shall become insolvent or if a petition in bankruptcy or insolvency is filed by or against Buyer under state or federal law, Canworks reserves the right to terminate and cancel any unfulfilled Order(s) previously placed by Buyer at the time of the aforementioned act. Notwithstanding anything to the contrary contained herein, Buyer will be deemed to be in material breach of these Terms upon the occurrence of any of the following events: (i) Buyer’s dissolution, termination of existence, insolvency or bankruptcy; (ii) the appointment of a receiver of any part of the property of Buyer; (iii) an assignment for the benefit of creditors by Buyer; (iv) the filing by Buyer of a petition in bankruptcy or under any insolvency laws or any laws related to the relief of debtors, readjustment of indebtedness or reorganization of Buyer; (v) Buyer’s failure to make repayment of its obligations for borrowed money; or (vi) Buyer’s failure to comply with any law with respect to conduct related to these Terms, or engaging in any practice with respect to the Products determined to be illegal or an unfair trade practice.

17. Confidentiality. Each party (the “Receiving Party”) acknowledges that in connection with the transactions hereunder, it may come into contact with Confidential Information (as defined below) of the other party (the “Disclosing Party”). The Receiving Party shall protect any and all of the Disclosing Party’s information that is not generally known to third persons, including, but not limited to, all specifications, designs, operating conditions, memoranda, reports, financial information, correspondence and information relating to products, specifications, costs, customer information, supplier information, development efforts, purchasing, manufacturing, employees, business and contractual relationships, business forecasts, sales and merchandising, services, prospective products and services, projections, marketing plans, and packaging processes, and methods relating thereto (collectively, “Confidential Information”), from unauthorized access, disclosure and use using the same methods it uses to protect its own Confidential Information, but in any event, commercially reasonable measures. The Receiving Party shall not (i) use Confidential Information for any purpose other than as required to perform its obligations under these Terms, nor (ii) disclose or permit the disclosure of any Confidential Information to any third party, except the Receiving Party may disclose Confidential Information to its employees and contractors with a bona fide need to know the Confidential Information in connection with the transactions hereunder and who agree to receive such information subject to the confidentiality provisions equivalent to those in these Terms. The Receiving Party shall be liable to the Disclosing Party for a breach of the confidentiality provisions of this Section 17 by its employees and contractors.

18. Force Majeure. Canworks shall not be liable hereunder for any failure or delay in the performance of its obligations under these Terms if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accidents, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or labor disputes, terrorism, pandemics, acts of God, or other similar or different occurrences beyond the reasonable control of the Canworks (collectively, a “Force Majeure Event”), for so long as such Force Majeure Event is in effect and for a reasonable period thereafter. Canworks will notify Buyer within a reasonable time following the occurrence of a Force Majeure Event.

19. Miscellaneous.

a. Entire Agreement. These Terms, together with any Separate Agreement, contain Canworks’s and Buyer’s entire agreement related to the Products and Canworks’s sale of the Products to Buyer, and supersede any prior negotiations, discussions, or agreements related to the Products or Canworks’s sale of the Products to Buyer. As between Buyer and Canworks, these Terms may be modified only by an amendment signed by a Canworks officer.

b. Governing Law; Venue; Litigation Costs. Texas law will govern the validity, interpretation, and performance of these Terms and any Separate Agreement, without regard to any conflicts of law principles. Buyer and Canworks agree that the state and federal courts in Travis County, Texas, will have exclusive jurisdiction over any disputes between Buyer and Canworks related to the Products or arising out of these Terms and any Separate Agreement, except that Canworks may bring suit against Buyer to enforce Canworks’s rights under these Terms and any Separate Agreement in any jurisdiction in which Canworks seeks Buyer’s action or inaction or in which Buyer’s assets are located. If any party institutes any legal suit, action, or proceeding against the other party to enforce these Terms and/or the terms of an Order or Separate Agreement, as applicable (or obtain any other remedy regarding any breach of the foregoing), including, but not limited to, contract, equity, tort, fraud, and statutory claims, the prevailing party in a final, non- appealable judgment regarding the suit, action, or proceeding is entitled to receive, and the non-prevailing party shall pay, in addition to all other remedies to which the prevailing party may be entitled, the costs and expenses incurred by the prevailing party in conducting or defending the suit, action, or proceeding, including reasonable attorneys’ fees and expenses, court costs, and costs of mediation, cost of arbitration, even if not recoverable by law (including, without limitation, all fees, taxes, costs, and expenses incident to appellate, bankruptcy, and post- judgment proceedings).

c. Dispute Resolution. If a dispute between Canworks and Buyer is not resolved within thirty (30) days from the date that either party has notified the other that such dispute exists, then either party may give notice to the other party that the dispute shall be submitted to mediation with a mediator acceptable to both parties, and the parties shall, for a sixty (60) day period from the receipt of such notice, seek in good faith to resolve such dispute in mediation. If the parties are not able to resolve the dispute in mediation, then such dispute shall be referred to binding arbitration, except to the extent that injunctive relief is available to a party hereto. Any dispute submitted to arbitration pursuant to this Section shall be determined by arbitration in accordance with the rules of the Judicial, Arbitration and Mediation Services (JAMS). The parties shall select a single arbitrator to hear the matter; provided that if the parties are unable to agree, the arbitrator shall be selected by JAMS. The arbitration shall be held in Travis County, Texas. Any decision made by the arbitrator shall be final, binding and conclusive on the parties and each party to the arbitration shall be entitled to enforce such decision to the fullest extent permitted by law and entered in any court of competent jurisdiction.

d. Notices. All notices, consents, approvals, and other communications in connection with these terms (“Notices”) must be in writing. Canworks may send Notices to Buyer by sending an email to the email address Buyer provides in connection with the related Order, and such Notices will be effective when Canworks sends such email. Buyer must deliver Notices to Canworks by personal delivery, overnight courier, or registered or certified mail to Canworks, Inc., 800 Interchange Blvd., Suite 106, Austin, TX 78721 and such Notices will be effective upon receipt.

e. Waivers. Canworks’s failure to enforce any right or provision under these Terms will not constitute a waiver of that right or provision. No waiver by Canworks will be effective unless signed by a Canworks officer.

f. Assignments. Buyer has no right to transfer, assign, or delegate any rights or obligations under these Terms, by operation of law, merger, or otherwise, without Canworks’s prior written consent. Any attempted or purported assignment in violation of this Section 19(f) will be ineffective. Canworks may transfer, assign or delegate any rights, duties, agreements, or obligations under these Terms by operation of law, merger, assignment, or otherwise.

g. California Prop 65. It is Buyer’s responsibility to understand the requirements of California’s Proposition 65 if it has actual or potential distribution into California. Canworks will, upon Buyer’s request, supply a Product with an internal liner that is BPA Non-Intent (“BPA-NI”) in compliance with California Proposition 65. Should Buyer elect to continue to purchase Products for distribution into California which utilize an epoxy based internal liner that includes BPA, Canworks will supply Products in accordance with Buyer’s direction, however these purchases will be at Buyer’s sole risk and Canworks expressly disclaims all warranties and assumes no liability arising with respect to Proposition 65 as a result of supply of these Products. If Buyer intends to distribute Products in the state of California, Buyer should refer to the guidelines for compliance with California Proposition 65.

h. No Third-Party Beneficiaries. These Terms and the Order or Separate Agreement (as applicable) benefits solely the parties to these Terms and the Order or Separate Agreement (as applicable) and their respective permitted successors and assigns and nothing in these Terms, express or implied, confers on any other person any legal or equitable right, benefit, remedy of any nature whatsoever under or by reason of these Terms; provided, that the Canworks Indemnitees shall be designated as third-party beneficiaries of Buyer’s indemnity provisions contained herein having the right to enforce such indemnity provisions against Buyer.

i. Marketing License. By Buyer’s submission of an Order to (or execution of a Separate Agreement with) Canworks, Buyer hereby irrevocably permits, authorizes, grants, and licenses on a non-exclusive basis to Canworks and its affiliates, successors, and assigns, and their respective advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them, the rights to display, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, and otherwise use, Buyer’s name, logos, trademarks, testimonials and all materials created by or on behalf of Canworks that incorporate any of the foregoing in perpetuity throughout the universe in any medium or format whatsoever now existing or hereafter created, including but not limited to, in and on magazines, brochures, and other print publications, electronic, magnetic, and optical media, display, point- of-sale, and other advertising and promotional materials, press releases, and the internet and other digital transmission or delivery methods, on any platform for advertising, public relations, publicity, packaging, and promotion of Canworks and its affiliates and their businesses, products, and services, without further consent from or royalty, payment, or other compensation to Buyer.