YETI Coolers, LLC

CORPORATE PURCHASING TERMS AND CONDITIONS


These Corporate Purchasing Terms and Conditions (“Terms and Conditions”) govern all sales of Products (as hereinafter defined) by YETI Coolers, LLC (“YETI”) to corporate customers (each, a “Buyer” ). Buyer and YETI are sometimes referred to herein individually as a “Party” and collectively as the “Parties” in these Terms and Conditions.


    1. BLANK PRODUCTS | BUYER PRODUCTS | 3rd PARTY PRODUCTS
    1. Blank Products. Buyer may place Purchase Orders with YETI for standard YETI products (“Blank Products”), subject to the provisions of these Terms and Conditions. Buyer must obtain YETI’s prior written approval to use the Blank Products in any manner other than for internal, promotional or fundraising use.

    2. Buyer Products. In the event Buyer places Purchase Orders for customized YETI products, Buyer grants to YETI the non-exclusive, royalty-free right and license to use one or more of the trademarks, service marks, logos, or copyrights owned by or licensed to Buyer (“Buyer Marks”) to design, manufacture, and sell to Buyer YETI products customized with the Buyer Marks (“Buyer Products”) . Buyer may place Purchase Orders with YETI for Buyer Products, subject to the provisions of these Terms and Conditions. YETI reserves the right to reject in its sole discretion any design or order for any reason. Buyer must obtain YETI’s prior written approval to use the Buyer Products in any manner other than for internal, promotional or fundraising use.

    3. 3rd Party Products. In addition, Buyer may from time to time contact or be contacted by third parties (collectively, “3rd Parties” and individually a “3rd Party”) who would like to purchase YETI products that have been customized by co-branding them with one or more trademarks, service marks, slogans, logos, or copyrights owned or licensed by such 3rd Parties (“3rd Party Marks”) (such products are referred to herein as “3rd Party Products” ). Buyer may place Purchase Orders with YETI for 3rd Party Products subject to these Terms and Conditions.

      4. Buyer Products and 3rd Party Products shall collectively be referred to as “Customized Products.” Blank Products and Customized Products shall collectively be referred to as the “Products.”


    2. REPRESENTATIONS AND WARRANTIES
    1. Representations and Warranties. Buyer represents and warrants that (a) it has the full right and authority to grant the rights and licenses it is granting herein; and (b) these grants do not and will not violate or contravene any third-party intellectual property rights or any agreement, bylaw, policy, law, regulation or order to which Buyer is a party or by which Buyer is bound.

    2. Fundraising. In the event Buyer is a 501(c)(3) organization and is purchasing Products for its internal business and fundraising purposes, Buyer additionally represents and warrants that (a) it will utilize the Products purchased under these Terms and Conditions only for internal business and fundraising purposes; (b) it will not otherwise sell such Products at wholesale or retail, transfer them, or utilize them for personal or other non-charitable purposes; (c) it will comply with all laws and regulations applicable to its status as a 501(c)(3) organization and fundraising activities; and (d) it will not advertise or promote the Products in an illegal or deceptive manner.

    3. RESALE | TRANSFER OF PRODUCTS
    1. Intentionally omitted.

    2. Before agreeing to sell 3rd Party Products to Buyer, YETI may require Buyer to provide a Letter of Certification completed by the 3rd Party (“Certification Letter”). Under the Certification Letter, the 3rd Party will license to YETI the right to use specified 3rd Party Mark(s) to design, manufacture, market, and sell to Buyer 3rd Party Products, which Buyer will then resell to the 3rd Party. The 3rd Party may also be required to acknowledge certain restrictions on use of the 3rd Party Products. Buyer shall not place Purchase Orders for 3rd Party Products to be sold to a particular 3rd Party until that 3rd Party has signed a Certification Letter and provided it to YETI. Buyer shall only sell, resell, transfer, distribute, or otherwise give possession of 3rd Party products to the 3rd Party that ordered such 3rd Party Products.
      3. 4. PURCHASE ORDERS | LEAD TIMES | MINIMUM ORDER QUANTITIES | NCNR
      1. Quotes. Following a request from Buyer for a price quotation for the Products, YETI will provide to Buyer a selling price quote for the requested Products (“Quote”). The Quote will set forth, amongst other things, the quantity and type of Products to be delivered by YETI, the approximate date by which said Products would be delivered if the Quote is accepted, and the location of the delivery. Buyer is responsible for reviewing and confirming the accuracy of Buyer’s information in a Quote.

      2. Purchase Orders. “Purchase Order” shall mean an oral or written offer, submitted by Buyer or on its behalf, to purchase those models of Products in the quantities and in accordance with the requested delivery dates set forth in the Purchase Orders. All Purchase Orders are subject to acceptance or rejection by YETI, in its sole discretion. Acceptance will be deemed to occur only upon execution by YETI of an invoice or other specific written confirmation of sale in respect of the Purchase Order in question.

      3. Lead Times | Order Minimums. YETI will use commercially reasonable efforts to accept and fulfill all Purchase Orders received by YETI with the then applicable lead times; provided, however, that a Purchase Order shall be accepted by YETI only if the net invoice value, less taxes, shipping, handling, discounts and other similar items, such Purchase Order meets the minimum order requirements for Products then in effect.

      4. Non-Cancelable, Non-Returnable. All Purchase Orders for Customized Products are “NCNR” (non-cancelable, non-returnable); once a Purchase Order for Customized Products is accepted by YETI, Buyer shall not be permitted to cancel that Purchase Order or return any such Customized Products. Buyer shall also make 3rd Parties aware of the lead times, minimum order quantities, and NCNR provisions that apply to Customized Products.

      5. DELIVERY
      1. Shipment | Risk of Loss | Title. YETI uses a ground shipping carrier of its choice. Subject to these Terms and Conditions, unless otherwise agreed in writing by Buyer and YETI, all Purchase Orders will be shipped on YETI’s account with the applicable carrier. For all Purchase Orders that are shipped to Alaska, Hawaii, any U.S. territory or outside the United States, the Buyer is responsible, and shall pay or reimburse YETI, for all freight charges. For all Purchase Orders that meet or exceed the applicable order minimum that are shipped to a single Buyer location (excluding shipments to Alaska, Hawaii, any U.S. territory or outside the United States), freight charges shall be omitted entirely from the applicable invoice if that invoice is paid in accordance with its terms. If that invoice is not paid in accordance with its terms, any applicable freight charges will be invoiced separately. Unless otherwise agreed in a writing signed by both YETI and Buyer, all Purchase Orders are shipped F.O.B. Origin YETI’s loading dock (as the term F.O.B., is used in the Uniform Commercial Code) or, for ultimate destinations outside of the United States, EXW YETI’s loading dock (Incoterms 2020). Title to the Products and risk of loss or damage transfer to Buyer upon delivery to the carrier at YETI’s loading dock.

      2. Delivery Dates | Delays. YETI will ship Products as promptly as reasonably possible in accordance with the shipment date requested in the accepted Purchase Order, subject to the then applicable lead times. However, all delivery dates are approximate. YETI will not be liable for any losses or damages as a result of any delay or failure to deliver due to any cause beyond YETI’s reasonable control, including but not limited to any act of God, act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, act of terrorism, riot, delay in transportation, theft, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery will be extended for a period equal to the time lost because of the delay. Buyer’s exclusive remedy for any other delays, and for YETI’s inability to deliver for any reason, will be rescission of Buyer’s agreement to purchase the delayed Products.

        3. 6. EXPORT SALES

        All sales will be invoiced and payable in US dollars. Unless otherwise agreed in a writing signed by both YETI and Buyer, YETI will not be the exporter of record from the United States nor importer of record for any shipments outside the United States and will not be responsible for any compliance or customs broker fees, freight forwarder fees, freight expenses, customs duties, import fees, goods, services, or goods and services taxes (GST) or other value added taxes (collectively, “Import Costs and Fees”) associated with shipments outside the United States. Unless otherwise agreed in a writing signed by both YETI and Buyer, in case of any such export sales, Buyer shall be the importer of record in the destination country and shall be solely responsible, at its sole expense, for satisfying all formalities that may be required to import the Product into the applicable jurisdiction and for complying with applicable import laws and regulations, including, but not limited to, labeling requirements and applicable related product regulatory laws and regulations. Unless otherwise agreed in a writing signed by both YETI and Buyer, Buyer shall also be solely responsible for all Import Costs and Fees.


        7. PRICES | PAYMENT TERMS

        The prices for Products will be YETI’s applicable list prices for Products in effect on the date of shipment of such Products. Buyer is responsible for all applicable taxes, including taxes applicable in the territory to which the Products are sent. Each unit of Customized Product is subject to the applicable marking fee, then in effect. Each unique design for customized YETI coolers is subject to the one-time set up fee, dependent on the number of colors in the design, then in effect. Such prices may be modified by YETI from time to time on written notice to Buyer. Payment may be made using a credit or debit card (Visa, Mastercard, American Express, Discover). Orders may be made on other terms after Buyer returns a completed credit application to YETI and obtains written approval from YETI, in its discretion. If credit is extended, the terms of payment hereunder are net cash thirty (30) calendar days from the date of the invoice without deduction or setoff of any kind other than qualifying freight discounts, if applicable. YETI reserves the right to decline credit card payments for any or all Net Term invoices. YETI may issue its invoice to Buyer at any time after the Products are shipped by YETI. YETI may, in its discretion, not ship Product to and may cancel orders placed by any Buyer with a past due account. For any past due invoices, Buyer will be charged a delinquency and service fee of 1.5% per month or the highest rate permitted under applicable law, whichever is less, on amounts due to YETI while payment remains in arrears. Any Buyer payment rejected by the financial institution from which it is drawn for any reason, including, but not limited to, insufficient funds or closing of account, are subject to a $50.00 processing fee due to YETI plus any other fees due to third-party services in accordance with the payment terms described in this Section 6. Buyer shall pay or reimburse YETI for any and all costs and expenses incurred by YETI in the collection of any amounts due hereunder including, without limitation, the costs of any court proceedings and arbitration and attorneys’ fees and expenses.


        8. TAXES AND OTHER CHARGES

        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 or charge of any nature whatsoever imposed by any governmental authority on or measured by the transactions between YETI and Buyer will be paid by Buyer in addition to the prices quoted or invoiced. In the event YETI is required to pay any such taxes or other charges, Buyer will reimburse YETI therefor on demand.


        9. INDEMNIFICATION
        1. By YETI. YETI shall defend, indemnify, and hold harmless Buyer from and against any and all allegations, demands, claims, losses, damages, liabilities, obligations, costs and expenses, including without limitation reasonable attorneys’ fees and legal expenses (collectively, “Claims”), incurred by Buyer to the proportionate extent they arise out of or are caused by (a) the negligence or willful misconduct of YETI or its employees or agents; (b) YETI’s failure to comply with any applicable law, rule, regulation or ordinance or failure to obtain or maintain any permit or license YETI is required to hold thereunder; or (c) any infringement of any valid United States patent, trademark, copyright or other intellectual property right by the Customized Products, except to the extent such infringement arises from or relates to Buyer Advertisements or specifications provided by Buyer, including any Buyer Mark or 3rd Party Mark.

        2. By Buyer. Buyer shall defend, indemnify, and hold harmless YETI, its parent, subsidiaries, affiliates, officers, directors, and employees (collectively, the ) from and against any and all Claims incurred by any of the YETI Indemnitees to the proportionate extent they arise out of or are caused by (a) the negligence or willful misconduct of Buyer or its employees or agents; (b) Buyer’s failure to comply with any applicable law, rule, regulation or ordinance or failure to obtain or maintain any permit or license Buyer is required to hold thereunder; (c) a breach by Buyer of these Terms and Conditions or any other contract between Buyer and YETI; (d) any infringement of any United States patent, trademark, copyright or other intellectual property right by the Customized Products to the extent such infringement arises from or relates to specifications provided by Buyer, including the Buyer Marks or 3rd Party Marks; (e) any unauthorized modification or alteration of the Products; or (f) any Buyer Advertisements for the Products that are false, misleading, or deceptive.

        3. Procedures. In the event of any third-party Claim for which one party may be obligated to indemnify the other hereunder, the indemnifying party shall have the right, upon written notice to the indemnified party, to assume responsibility for the defense of such third-party Claim; provided, that the indemnified party shall have the right to participate in any such proceeding with counsel of its choice and at its expense. The indemnifying party shall not enter into a settlement of any such Claim without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld (it being understood that the indemnified party shall not withhold consent if such settlement requires no more than a monetary payment for which the indemnified party is fully indemnified by the indemnifying party). In the event the indemnifying party does not, within fifteen (15) days after it receives written notice of such Claim from the indemnified party, agree in writing to accept the defense of, and assume all responsibility for such Claim, then the indemnified party shall have the right to defend against, negotiate, settle or otherwise deal with the Claim in such manner as the indemnified party deems appropriate, in its sole discretion, and the indemnified party shall be entitled to indemnification therefor.

        10. BACKORDERS

        If YETI cannot completely fill a Purchase Order, the order will be rejected and Buyer will be required to submit a new Purchase Order.

        11. WARRANTIES | DISCLAIMER | LIMITATION OF LIABILITY

        If Buyer submits a valid warranty claim for Products purchased under these Terms and Conditions in accordance with YETI’s Product Warranty guide, a copy of which is available at www.yeti.com/warranty-information, YETI agrees to repair or replace the Products that YETI determines to be defective under normal use in its sole discretion. THE WARRANTIES SET FORTH HEREIN OR IN YETI’S WARRANTY DOCUMENTS WITH RESPECT TO THE PRODUCTS ARE THE ONLY WARRANTIES MADE BY YETI IN CONNECTION WITH THE PRODUCTS AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF A SALE. YETI MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, AND YETI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY YETI IN WRITING. YETI’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON- CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. Buyer shall refer and extend to each end-user the applicable Product Warranty, and shall not extend or make any other warranty or representation with respect to Products. Buyer shall be responsible for any and all representations, warranties and statements made by Buyer or its employees or agents that were not specifically authorized in writing by YETI, and Buyer shall defend, indemnify, and hold harmless YETI, its parent, subsidiaries, affiliates, officers, directors, and employees from and against any and all allegations, demands, claims, losses, damages, liabilities, obligations, costs and expenses, including without limitation reasonable attorneys’ fees and legal expenses, arising from or relating in any way to any such representation, warranty, or statement not specifically authorized by YETI in writing.


        UNDER NO CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, ITS OWN NEGLIGENCE, SHALL YETI OR ITS MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, SUBSIDIARIES, SUPPLIERS, OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, TRANSMITTING, OR DISTRIBUTING YETI'S PRODUCTS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF YETI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS OR SERVICES PURCHASED. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.


        EXCEPT FOR LIABILITY UNDER THE INDEMNIFICATION PROVISIONS OF THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY REPROCUREMENT COSTS, LOST REVENUE OR L O S T PROFITS, OR FOR ANY OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING OR ARISING FROM THIS AGREEMENT, ANY PRODUCT, ANY MATTER RELATING TO THIS AGREEMENT, OR ANY PURCHASE ORDER, EVEN IF SUCH PARTY HAS BEEN INFORMED OF SUCH POTENTIAL LOSS OR DAMAGE.


        12. SHORTAGE | DAMAGED ITEMS | RETURNS

        Any claim for shortage or damaged or nonconforming Products with respect to a shipment must be made within 72 hours of Buyer’s receipt of the shipment by providing written notice thereof to YETI. Claims for damage or loss occurring during shipment must be made to the carrier, and not to YETI. Products may not be returned without prior written authorization from YETI and after Buyer has obtained a Return Material Authorization (“RMA”) number. Freight charges shall be pre-paid and borne by Buyer. Buyer bears the risk of loss or damage during shipment of the returned Products until the Products are received at YETI’s designated loading dock. If an RMA number is generated and the Product is not received by YETI within a reasonable timeframe, YETI may close out the RMA number without notice to Buyer. If an RMA number is closed by YETI, Buyer may request a new RMA number.


        13. INTELLECTUAL PROPERTY | MARKETING MATERIALS | MODIFICATIONS
        1. Intellectual Property. All trademarks, service marks, trade dress, trade names, slogans, and logos of YETI or that identify Products, including without limitation YETI®, (collectively, the “Trademarks”), and all patents, copyrights, trade secrets, and moral rights of YETI, are and shall remain the sole and exclusive property of YETI. YETI grants to Buyer a limited, revocable, nonexclusive, nontransferable license to use the Trademarks; provided, however, that (a) Buyer receives YETI’s prior written approval before any and all use of the Trademarks; and (b) Buyer uses the Trademarks in accordance with these Terms and Conditions and all applicable policies, instructions, and guidelines provided by YETI from time to time. All benefits from use of the Trademarks by Buyer, including without limitation the goodwill associated therewith, shall inure to the exclusive benefit of YETI. Buyer shall not, at any time, adopt or use without YETI’s prior written consent, any word or mark which is similar to, or is likely to cause confusion with respect to, any of the Trademarks. Except for the foregoing limited license to use the Trademarks, nothing in these Terms and Conditions shall be construed as granting to Buyer any license or other right under any patent, patent application, copyright, trade secret, or any other intellectual property right owned by YETI or any of its affiliates. Buyer shall not use any of the Trademarks as part of Buyer’s trade or business name, or in any other way that YETI considers misleading or objectionable. The Trademarks shall not be (x) distorted, modified, manipulated, or altered in any way, or (y) used in any marketing materials, advertisements, promotions or campaigns without the prior written consent of YETI.

        2. Marketing Materials | Advertisements. Only marketing materials which include, but are not limited to, copy, print, brand statements, Advertisements, licensed materials, web product images, and Trademarks (collectively, “Marketing Materials”), which have been provided by YETI to Buyer or that are approved in writing by YETI, may be used for displaying, advertising, or marketing the Products. The term “Advertisements” shall mean all materials that promote or advertise the Products, including, without limitation, print or digital ads, news releases, brochures, pamphlets, videos, web pages, signs, tags, labels, packaging, contracts, letterhead, invoices, and manuals. Buyer is not allowed to copy content directly from the YETI website, including, without limitation, Product descriptions, articles, or testimonials. Buyer shall not: (a) associate “quarts” or other units of volume to a specific YETI cooler, including the product title; (b) use, advertise, or promote the Products in any manner that is illegal or deceptive; or (c) sell Products that are or may be seen as counterfeit Products or imitations of Products.

        3. Modifications. Buyer shall not apply or add any trademark, trade name, marking, or logo to any Products without the prior written authorization of YETI in each instance. Unless Buyer has YETI’s prior written authorization allowing otherwise, Buyer is prohibited from altering, customizing, or modifying any Product, including, without limitation, by coating (hydrographic printing, hydrodipping, painting, etc.), etching, embossing, engraving, or marking any Product, or taking any other action that would cause the remedies set forth in the Product Warranty to not be available to the applicable warranty holder.

        14. COMPLIANCE | APPLICABLE LAWS | PRODUCT RECALL
        1. Compliance. YETI and Buyer represent and warrant that each are respectively not: (a) a Specially Designated National ( “SDN”), blocked person, and/or restricted party (collectively, “Denied Parties”) as determined by the U.S. Department of Treasury’s Office of Foreign Assets Control ( “OFAC”) or U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) or equivalent regulatory agencies around the world; (b) owned or controlled by, or acting for or on behalf of, directly or indirectly, any Denied Parties; (c) directly or indirectly owned or controlled by the government of any country (or its agencies or instrumentalities) that is itself subject to an embargo or sanctions administered by OFAC or BIS (“Embargoed Country”); or (d) acting on behalf of a government (or its agencies or instrumentalities) of any Embargoed Country. Buyer also undertakes and agrees not to engage in any business, deal with, or in any way be associated with SDNs, blocked persons, denied parties and/or Embargoed Countries (including Cuba, North Korea, Iran, Syria, Venezuela, and the Crimean region) for or on behalf of YETI.

        2. Applicable Laws. In the event Buyer is purchasing Products for promotional use, Buyer shall comply with any and all applicable federal, state and local laws, rules or regulations, including but not limited to those that pertain to any such contests, sweepstakes or other promotions, and its obligations to clearly and conspicuously disclose all material terms, restrictions, or conditions of any contest, sweepstake or other promotion that references the Products or YETI. Buyer agrees these Terms and Conditions are not intended and shall not be construed as either an express or implied endorsement or sponsorship of the promotion by YETI and that the promotion is in no way sponsored, endorsed or administered by, or associated with YETI, regardless of any permissions or approvals agreed to by YETI in accordance with these Terms and Conditions.

        3. Product Recall. In the event (i) any government authority issues a request, directive or order that Products be recalled; (ii) a court of competent jurisdiction orders such a recall; or (iii) YETI reasonably determines that Products should be recalled, YETI shall consult with Buyer and the Parties shall take all appropriate corrective actions and shall fully cooperate in the recall. Buyer shall take all reasonable steps (including, without limitation, those measures prescribed by YETI) to ensure that all recipients of the Products are advised of every applicable recall campaign of which the Buyer is notified by YETI. Should Buyer fail to perform any of the actions required under this section, YETI shall have the right to obtain the names and addresses of the Buyer’s recipients of the Products and shall be entitled to get into direct contact with such recipients. Any costs associated with any such recall shall be allocated and agreed upon by YETI and Buyer.

        15. CONFIDENTIALITY

        The term “Confidential Information” means all inventions, technical information, processes, trade secrets, know-how, designs, formulations, certificates of analysis, specifications, plans, drawings, blueprints, samples, models, prototypes, catalogs, service manuals, data sheets, bulletins, customer lists, sales and marketing programs, price lists, cost data, sales aids (such as videos and recordings) and all other information, whether or not reduced to writing, relating to the design, manufacture, use, marketing, or sale of the Products, as well as any other information relating to the business or finances of YETI that (a) may be divulged or made available to Buyer in connection with YETI’s performance of these Terms and Conditions or any other Terms and Conditions between YETI and Buyer, and (b) is generally not known in the trade. Confidential Information shall not include, however, any information disclosed by YETI hereunder that Buyer can demonstrate by clear and convincing documentary evidence is (i) generally available to the public on the date it is disclosed to Buyer or becomes generally available to the public after the date it is disclosed to Buyer (other than as the result of disclosure by Buyer or its employees or agents in violation of this confidentiality obligation), (ii) already known to Buyer and which Buyer had in its possession in written or physical embodiment prior to the disclosure from YETI, unless such Confidential Information was previously disclosed by YETI to Buyer, or (iii) rightfully received by Buyer in the routine course of business from a third party who acquired such information, and the right to disclose same, from YETI. During the Confidentiality Period (as hereinafter defined), Buyer shall hold the Confidential Information in strict confidence, and shall not use any Confidential Information except as required to perform its obligations under any agreement between YETI and Buyer, and shall not disclose any Confidential Information to any person or entity except to those of its employees who have a definable need to know the same in order to allow Buyer to perform its obligations under an agreement between it and YETI, and who are bound by substantially similar confidentiality obligations. The “Confidentiality Period” shall mean, for all Confidential Information that constitutes a ‘trade secret’ under applicable law, the period beginning on the date of disclosure to Buyer and ending on the later of (x) the date such Confidential Information is no longer a trade secret under applicable law, or (y) the date that is 3 years after the expiration or termination of the applicable agreement between YETI and Buyer; and shall mean, for all other Confidential Information, the period beginning on the date of disclosure to Buyer and ending 3 years after the expiration or termination of the applicable agreement between YETI and Buyer. Buyer acknowledges that it may provide YETI with comments, suggestions, statements, or other feedback ( “Feedback” ) on YETI’s Product offerings and other materials. Buyer agrees that any and all Feedback is given completely voluntarily with no expectation of confidentiality, and all ideas, improvements, and discoveries that YETI may derive from Feedback are and shall remain the sole and exclusive property of YETI. Buyer hereby conveys and assigns to YETI, all of Buyer’s right, title, and interest in such Feedback, ideas, improvements, and discoveries. Buyer agrees not to copy, disassemble, decompile or otherwise reverse-engineer any prototypes or other Confidential Information.


        16. ENTIRE AGREEMENT AND AMENDMENTS

        All Purchase Orders and purchases of Products shall be subject to these Terms and Conditions. The terms contained here will be the entire agreement between YETI and Buyer on the subject matter hereof; there are no conditions to that are not so contained or incorporated. No additional or different terms or conditions set forth in any request for proposal, purchase order, acknowledgement, manual, Buyer owned or operated portal or website, or other communication previously or hereafter provided or made available by Buyer to YETI will be of any force or effect, even if, in the case of the portal or website, use thereof requires an affirmative “acceptance” of such terms before access is permitted. No change or modification to these Terms and Conditions shall be effective unless it is in writing and signed (electronically or manually) by both parties.


        17. GOVERNING LAW | JURISDICTION

        These Terms and Conditions shall be enforced and construed in accordance with the laws of the State of Texas, without regard to any conflicts of law principles in the State of Texas that would require application of any other law. Venue and jurisdiction for any action based upon any dispute between YETI and Buyer or violation or enforcement of any term herein shall be exclusively in Travis County, Texas. YETI AND BUYER AGREE THAT THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY.


        18. ASSIGNMENT

        These Terms and Conditions may not be assigned by Buyer, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of YETI. Any such attempted assignment without such consent shall be null and void and without legal effect. In appointing Buyer pursuant to these Terms and Conditions, YETI is relying on the unique qualifications of Buyer’s principal owners and, accordingly, for purposes of this Section, any change in the controlling ownership of Buyer shall constitute an assignment that is subject to the restrictions contained in this Section. These Terms and Conditions, or any of YETI’s rights hereunder, may be assigned by YETI upon notice to Buyer.


        19. INJUNCTIVE RELIEF

        Buyer’s obligations under these Terms and Conditions and any other contract between Buyer and YETI are of a unique character that gives them particular value. Buyer’s breach of Sections 3 (Resale | Transfer of Products), 13 (Intellectual Property | Marketing Materials | Modifications), and/or 15 (Confidentiality) shall result in irreparable and continuing damage to YETI for which there is no adequate remedy at law; and, in the event of such breach, YETI shall be entitled to injunctive relief and/or a decree for specific performance without posting of a bond, proof of damages, or other similar requirements, and such other and further relief as may be proper (including monetary damages if appropriate).


        20. PERFORMANCE | NO WAIVER

        YETI reserves the right to discontinue servicing any Buyer that does not abide by these Terms and Conditions. In the event YETI does not insist on strict performance of any terms of these Terms and Conditions, such shall not be deemed a waiver of the rights or remedies that YETI shall have to insist upon strict performance of any of term in the future.


        21. NOTICES

        Except as specifically provided otherwise herein, any notice required or permitted under these Terms and Conditions shall be in writing and will be effective as noted when sent by any of the following methods: (i) upon delivery if by personal delivery; (ii) the next business day if sent by reputable overnight courier (e.g., UPS) or first-class, priority, air or express mail, with postage prepaid and confirmation of receipt requested; or (iii) upon sender’s receipt of an acknowledgement if by e-mail, such acknowledgement being a response to the email. If such acknowledgement to the email is not received within one (1) day, the notice shall be delivered by another method under subparts (i) or (ii). All notices sent to Buyer shall be sent to the address included in the Purchase Order. All notices sent to YETI shall be sent to the address set out below.

        If to YETI:

        YETI Coolers, LLC

        7601 Southwest Parkway

        Austin, Texas 78735

        Attn: Sales

        CC: General Counsel

        Email: legal@yeti.com


        22. MISCELLANEOUS

        In the event a court of competent jurisdiction determines any one or more of the provisions contained in these Terms and Conditions or any other contract between YETI and Buyer to be invalid, illegal or unenforceable, these Terms and Conditions and any other such contract shall be construed so that the remaining provisions shall not in any way be affected thereby but shall remain in full force and effect, and any such invalid, illegal or unenforceable provision(s) shall be deemed, without further action by any person or entity, to be modified and/or limited to the minimum extent necessary to render the same valid and enforceable in such jurisdiction. Buyer is an independent contractor, not an agent, partner or employee of YETI, and these Terms and Conditions shall not be deemed to create a partnership, joint venture or principal-agent relationship between the parties. Buyer is not authorized to assume or create any obligation or responsibility, including but not limited to obligations based on warranties or guarantees or other contractual obligations, on behalf or in the name of YETI. Buyer shall not misrepresent its status or authority and shall be solely responsible for all of its own expenses, employees, agents, actions and omissions.


        BY ACCEPTING THE QUOTE PROVIDED BY YETI, BUYER ACKNOWLEDGES RECEIPT AND ACCEPTS THESE TERMS AND CONDITIONS. YETI’S OFFER TO SELL PRODUCTS TO BUYER IS EXPRESSLY CONDITIONED UPON BUYER’S ACCEPTANCE OF THESE TERMS AND CONDITIONS.