(Hereafter called the "Customer")
TEC and Customer may be referred to individually as the "Party", or collectively, the "Parties." Customer shall include all subsidiaries, affiliates, partners, and third party beneficiaries to the terms of this Agreement.
TEC and Customer mutually acknowledge the following:
1. TEC is in the business of formulating, cause for manufacturing, and selling digestive and systemic enzyme blends, probiotic, herbal, glandular, and whole food natural supplements for private label contract packaging (the "Products and Services") for Customers wishing to resell those products under their private label brand.
2. Customer wishes to purchase and sell dietary supplement products provided by TEC in combination with packaging and product specifications approved and authorized by Customer.
In consideration of the mutual promises and conditions hereinafter contained, it is agreed between the Parties as follows:
1) PRODUCTS AND SERVICES
a. Pursuant to the terms of the Agreement, Customer hereby agrees to purchase certain of the Products and Services of TEC and/or hire TEC to prepare private label products as follows:
i. Customer acknowledges that TEC shall formulate and may produce products based upon the proprietary formulas owned and controlled solely by TEC. Customer acknowledges that all resulting formulas, processes or property developed by TEC under this agreement are still the sole property of TEC.
b. Certain TEC supplied supplemental notices with terms and conditions regarding private labeling services, including but not limited to: production, containers, labels, and shipping are incorporated by this reference as integral parts of this Agreement.
c. Due to variations when combining natural and other ingredients and with regard to natural ingredient manufacturing, it is normal to see slight variations in color, scent, and taste from lot-to-lot as the raw material ingredients may vary from production lot-to-lot. A product shall be considered properly manufactured whether or not there is a color, taste, or scent variance of any degree.
d. Other natural considerations can be climate related and should be mitigated by the Customer. TEC is not responsible for the effects of weather conditions during periods when the product is outside the control of TEC. It shall be the Customer’s sole responsibility to mitigate the effects of temperature, humidity, and weather during shipment of products and subsequent storage of products at facilities other than TEC. e. As noted herein, TEC is the sole owner of all base formulas or variation of base formulas and are not available for purchase.
2) FEES AND PRICING
a. The prices at which TEC shall sell and Customer shall buy the Private Label Products as of the date of this Agreement are set forth in the Customer Quotation, Customer Invoice, or as noted on the TEC website. All required fees shall be paid in advance prior to the commencement of work. Unless otherwise agreed, all prices are subject to change from time to time, without prior notice, including but not limited to any increases in the actual cost to TEC of the ingredients, packaging, labels, and/or raw materials used in the manufacture of the Products.
b. All purchase orders, deposits, or payments are subject to acceptance by TEC and once accepted cannot be refunded, returned, credited, exchanged, or canceled for any reason. Acceptance is defined as the receipt by TEC of an order, contract, non-disclosure agreement, private label manufacturing agreement, and deposit by Customer.
c. Customer agrees to pay in full for all private label products. Any remaining balance is due upon completion and prior to final shipment of order.
d. Payments shall be made in U.S. dollars only and shall be made payable only to TEC by the following forms of payment: VISA/MasterCard or American Express, Cash, or cashier or bank check.
e. Unless otherwise agreed to in writing, upon completion of an order, any unused customer supplied labels, packaging, or ingredients shall be stored by TEC for future ordered.
f. Upon signature of a separate Customer Storage Agreement, arrangements can be made for TEC to warehouse Customer property for a period not to exceed six (6) months on terms set forth by TEC for a fee to be determined.
g. The fees and prices do not include any applicable sales, use, value-added, excise, or any other tax, duty, or charge which is now in effect or may be hereafter imposed by any federal, state, or other authority. All applicable taxes, duties, or other charges shall be paid by Customer in additional to all fees, prices, and expenses, invoiced by TEC.
3) PRIVATE LABEL RESPONSIBILITIES (INGREDIENTS AND PACKAGING)
a. All Products sold by TEC comply with the U.S. Food and Drug Administration requirements including adherence to all GMP (Good Manufacturing Practices) standards. TEC shall make its best effort to ensure that all products developed by TEC will be safe for use under the Federal Food, Drug and Cosmetic Act of 1997 as of the date of manufacture.
b. Unless otherwise agreed, TEC shall provide all selected packaging components and materials, including but not limited to caps, lids, jars, bottles, seals, leak prevention measures, etc (collectively called the "Components"). Customer is solely responsible for verifying that the quality and delivery of all Components used by TEC for the private label products meet the Customer’s standards and are appropriate for the product(s) selected by the Customer.
i. All additional steps including, but not limited to: master packing, tamper evident seals, shrink wrap, blister packing, safety discs, lot coding, extra capping, etc, will incur additional fees.
c. Labeling – TEC will facilitate labeling. Customer’s labels must be DSHEA and FDA compliant prior to affixing label to product. All labels will be printed by TEC unless otherwise agreed upon. TEC will use its pre-approved label template. Any and all modifications will need to be reviewed by our quality and regulatory department. Customer shall be completely and solely responsible for all content, including but not limited to health, storage, safety, and use instructions and claims. Labels may be hand or machine applied and may vary in application quality and acceptance is non-negotiable and assumed accepted as is.
i. Customers providing their own labels must submit labels for pre-approval and agrees to deliver at least 10% overage of all labels and packaging collectively known as Components prior to the start of TEC services for any particular order.
- Any delay in the Customer provided components will result in a project delay and could incur additional storage fees for any previously delivered components per Section 2.8.
- The application of labels of different stock will incur an additional 10% application fee.
- Slight label tilting and height variances are normal for hand application and will not be redone, refunded, or credited.
- TEC is not responsible for any quality issues that relate to labels and their application, and Customer should allow for a 10% loss on labels.
- Customer labels must comply with FDA and TEC required specifications.
- According to the Code of Federal Regulations (CFR), Title 21, Part 101.5, "The label of a dietary supplement . . . shall specify conspicuously the name and place of business of the manufacturer, packer or distributor . . . Where the dietary supplement is not manufactured by the person whose name appears on the label, the name shall be qualified by a phrase that reveals the connection such person has with such cosmetic, such as 'Manufactured for –', 'Distributed by –', or any other wording that expresses the facts. The statement of the place of business shall include the street address, city, state and zip code; however, the street address may be omitted if it is shown in a current city directory or telephone directory."
d. Time Estimates are provided by TEC as a courtesy to Customers and TEC reserves the right to modify time estimates due to prevailing circumstances.
e. Testing – All products will have a microbiological evaluation and Customer may request a Certificate of Analysis. Unless otherwise specifically agreed in writing, Customer is solely responsible for any additional testing of any product(s). TEC does not conduct any testing (including, for example, efficacy, stability, and consistency) without specific authorization and payment by Customer. TEC products (original stock bases) are represented as "safe for use." Despite the above, TEC offers a wide range of testing services upon request and advance payment by Customer.
4) SHIPPING TERMS
a. All fees and pricing as well as delivery of the Product(s) shall be FOB from TEC shipping address (Transformation Enzyme Corporation, 16203 Park Row Dr Ste 160, Houston, TX 77084). To the extent that Customer requests delivery at any other destination, all charges, taxes, and assessment for shipping, insurance, and freight as well as all costs of risk of loss or damage to the Product(s) occurring while in transit from TEC’s shipping dock to Customer’s delivery destination and afterwards shall be solely Customer’s responsibility. Any insurance covering the Product(s) in transit shall be for an amount not less than the full invoice price of the items delivered, with TEC named as loss payee or additional insured.
b. TEC preferred shippers are UPS, USPS, and FedEX.
5) INTELLECTUAL PROPERTY
a. The Parties agree that TEC is the exclusive owner of trademarks (including designs and logos), trade secrets, copyrights, specifications, formulas, and other intellectual property rights relating to TEC, the Product(s), and Services, with the exception of any private label rights granted to Customer under this Agreement.
b. In addition, Customer acknowledges and agrees that the composition and formulation of the Product(s) including the composition and all methods and instructions for their formulation, processing, and production and all intellectual property, processes, know-how, trade secrets, and other proprietary information therein ("TEC Intellectual Property") are the sole and exclusive property of TEC, with the exception of any private label rights granted to Customer under this Agreement and excluding any preexisting rights of the Customer that the Customer provided to TEC.
c. Customer shall not use TEC Intellectual Property for any other purpose than to perform the terms of this Agreement.
d. Customer agrees to refrain from any action or to allow any action to be taken to damage TEC interests and Intellectual Property rights in any jurisdiction where Customer does business. Therefore, Customer agrees, neither to register nor to assist in registering any TEC Intellectual Property rights or other rights (including TEC’s Private Label system, patents, copyrights, trade secrets, trademarks, trade names, or symbols) of TEC or other marks or rights which may be confusingly similar to TEC anywhere worldwide. Unless specifically granted by TEC, Customer disclaims any right to use or claim ownership of TEC Intellectual Property.
6) CONFIDENTIALITY
a. "Confidential and Proprietary Information" means (i) the ingredients, their relative concentrations, and techniques for processing that comprise the Product(s) and (ii) all information about TEC current or future business operations and business plans, pricing, research and development, future products, financial information, and all Intellectual Property rights and trade secrets developed by TEC in conjunction thereof.
b. Protection of Confidential and Proprietary Information – Without TEC written consent, Customer shall not provide, disclose, nor otherwise make available to any third party any of TEC Confidential and Proprietary Information. Further, except as expressly provided herein, Customer will not use or disclose such Confidential and Proprietary Information without TEC prior written consent, except to Customer’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential and Proprietary Information that are at least as restrictive as Customer’s obligations under this section. In addition to the foregoing nondisclosure obligations, Customer agrees to use at least the same care and precaution in protecting such Confidential and Proprietary Information as it uses to protect its own confidential and proprietary information and trade secrets, and in no event less than reasonable care. Customer shall return all confidential Information promptly upon TEC request or upon termination of this Agreement.
c. Customer acknowledges that TEC has a valuable and proprietary interest in the formulation of its stock enzyme bases and other Product(s).
7) REPRESENATIONS AND WARRANTIES
a. Customer hereby represents, warrants, and covenants to TEC as follows:
i. In providing to TEC any and all Product specifications, ingredients, labels, packaging, and materials or any kind, Customer represents and warrants that it has the requisite authority to stipulate and provide such specifications, ingredients, labels, packaging, and materials and that such components, either individually or in combination, shall not infringe any third party rights of ownership or use.
ii. Customer shall comply with all laws and regulations relating to the conduct of its business in all jurisdictions where it does business.
iii. Customer shall comply with all laws and regulations relating to the marketing, sale, and use of the Product in all jurisdictions where it does business.
b. TEC represents and warrants to Customer:
i. At all times during the term of this Agreement, TEC shall maintain Good Manufacturing Practices and Procedures.
8) ACCEPTANCE AND LIMITED WARRANTY
a. Acceptance – For purposes of any time-sensitive project under this Agreement, Customer must give TEC written notice of any products that Customer wishes to reject and not accept under the terms of this Agreement within ten (10) business days of receipt of such Product(s) by Customer. In the event that Customer does not reject the received Product(s) within the 10-day period, then the Product(s) shall be deemed to be accepted by Customer.
b. Warranty for Defects – In the event that Customer considers the Product(s) provided by TEC to be defective in either materials or workmanship, Customer must give TEC notice in writing of such alleged defect(s) no later than ten (10) days from the date of delivery (the Warranty Period) of the Product(s) to Customer or Customer’s agent. Such written notice shall state with particularity in what respects the Product(s) is nonconforming or defective. Customer shall return to TEC a sample of the Product(s) which it claims are nonconforming or defective at Customer’s expense and safeguard the remaining product pending resolution of the warranty claim. If TEC, in its sole discretion, agrees with Customer that the Product(s) are non-conforming or defective, and that the cause is determined to be the fault of TEC, then TEC shall have a reasonable time to either (i) cure any nonconforming or defective tender by substituting conforming Product(s) at TEC expense or (
ii) refund Customer’s purchase price. Either remedy is subject to TEC sole discretion. In the event that Customer does not inform TEC in writing regarding any alleged defect in the Product(s) within the 10n-day notice period, Customer waives all rights under any applicable law to raise a claim.
9) LIMITATION OF LIABILITY AND INDEMNITIES
a. Limitation of Liability – Under no circumstances shall either Party or its respective officers, directors, shareholders, employees, or agents be liable to the other Party for indirect, incidental, consequential, special, exemplary, or speculative damages arising out of this Agreement, including but not limited to loss of revenue or profits, loss of use, or other consequential business opportunities, even if advised of the possibility of such damages.
b. EXCEPT AS STATED IN SECTION 8, TEC DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ESPECIALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c. Customer agrees to indemnify, defend, and hold TEC, its owners, directors, employees, and agents ("Indemnified Parties") harmless against any claims, units, damages, liabilities, judgments, losses, costs, and expenses (including attorneys’ fees) made against or incurred individually or collectively by the Indemnified Parties as a result of any of the following: (i) any breach of this Agreement by Customer, independent contractors or agents, (ii) any claim of infringement or for defects related to any specifications, ingredients, labels, packaging, and materials of any kind provided by or stipulated by Customer under this Agreement, (iii) injury or death suffered by anyone related to the product(s) or Services due to specifications stipulated or approved by Customer or occurring after the Product(s) left the care, custody, and control of TEC at the delivery destination under this Agreement.
10) TERM AND TERMINATION
a. Term and Termination – This Agreement shall supersede all previously signed agreements and will become effective upon the date first set forth above and shall continue for a period of 2 years or until all obligations hereunder have been completed, unless earlier terminated by either Party upon 30 days written notice or by fulfillment of all responsibilities of the Parties.
b. Either Party may terminate this Agreement upon a material breach by the other that remains uncured for a period of 30 days after receipt of written notice specifying the breach with particularity.
c. In the event of termination for any reason, such termination shall not affect Customer’s obligation to pay for the work and expenses performed while under this Agreement (at any stage of completion) at the time of termination. Nor shall the Limitations of Liability (Section 9) be affected by the termination of the Agreement for any reason.
11) MISCELLANEOUS
a. Amendment – The Agreement may not be modified or amended unless in writing by mutual agreement of the Parties.
b. No Assignment – Customer may not assign, sell, or otherwise transfer any or all rights and obligations under this Agreement to any third party without the prior written consent of TEC.
c. Integration – This agreement is a complete and exclusive statement of the Agreement between the Parties and supersedes all prior and contemporaneous agreements, negotiations, discussions, and proposals, oral or written, and any and all other communication relating to the subject matter of this Agreement.
d. Severability – In the event of the invalidity of any provision of this Agreement, the Parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement.
e. Dispute Costs – In the event that either Party initiates dispute resolution proceedings in any way related to this Agreement, the prevailing party shall be entitled to the award of dispute resolution costs and expenses, including but not limited to all reasonable mediation, court, or arbitration costs, as well as attorneys’ fees and expenses not to exceed the total cumulative liability (Section 9).
f. Notices – Any notice or other communication required shall be in writing.
12) FORCE MAJEURE
a. Neither Party shall bear responsibility for the complete or partial non-performance of any of its obligations if the non-performance results from such unforeseeable circumstances as natural calamities, fire, changes of export/import regulations or law of any countries or territories with authority and jurisdiction, unavailability of supply or ingredients, failure of transport, or any other circumstances beyond the foreseeable control of either Party. The time stipulated for the fulfillment of the obligations shall be extended for a period equal to the duration of such circumstances. The Party for whom it has become impossible to meet its obligations under the Agreement shall immediately advise the circumstances preventing the fulfillment of its obligations and shall take all reasonable actions to cure the force majeure event(s). If the above circumstances last more than 6 months, either Party shall have the right to seek modification of the Agreement or, alternatively, its termination. The other Party shall not unreasonably withhold its consent.
13) GOVERNING LAW AND DISPUTES
a. This Agreement shall be governed by the laws of the State of Texas to the exclusion of all other conflict of law alternatives. The Parties consent to the exclusive jurisdiction and venue of the state and federal courts located in the State of Texas, USA, for any mediation, arbitration, action, suit, or legal proceeding arising in connection with this Agreement.
b. Negotiation – Except for a request for injunctive relief or other provisional remedy which may be sought from a court, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof or thereof, including any claim based on contract, tort or statute, and including any controversy about whether a claim is subject to arbitration or whether this Section 13 is valid or enforceable (any such dispute, controversy or claim, a "Dispute"), shall be revolved in accordance with the procedures set forth in this Section 13. In the event any Dispute arises, each Party shall first promptly provide the other Party with a general written statement of its claim (the other Party of its intention to proceed to mediation), and any unresolved dispute shall be settled by arbitration as contemplated under Section 13.
c. Mediate Arbitrate Clause – In the event of any controversy or claim arising out of or relating to this agreement, or a breach thereof, the Parties hereto shall first attempt to settle the dispute by mediation, administered by the [American Arbitration Association] under its [Mediation Rules]. If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved controversy or claim shall be settled by arbitration administered by the [American Arbitration Association / American Health Lawyers Association Alternative Dispute Resolution Service] under its [Commercial Arbitration Rules / Healthcare Payor Provider Rules / Rules of Procedure for Arbitration by the American Health Lawyers Association]. The number of arbitrators shall be [one or three]. The place of arbitration shall be Houston, Texas. Texas law shall apply. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
14) SURVIVAL
a. Despite the termination of this Agreement for any reason, the rights and obligations of the Parties pursuant to the following provisions shall survive termination of this Agreement and remain enforceable: Sections 2,3, 5, 6, 8, 9 11, 13, and 14.
IN WITNESS WHEREOF, wishing to be legally bound, the Parties have caused this Agreement to be executed by their duly authorized representatives below.
TRANSFORMATION ENZYME CORPORATION
NAME: Monica Diemert
TITLE: Corporate & Private Label Sales Executive
CUSTOMER
