CUSTOMER PURCHASE ORDER TERMS AND CONDITIONS

1. 1. 1. 1. 1. 1. 1. Acceptance. The terms and conditions herein govern the agreement (this “Agreement”) formed between the parties when Vitaquest International, LLC (“Vitaquest”) acknowledges acceptance of a customer’s (“Buyer”) purchase order for products (the “Purchase Order”) by fax and/or electronic order processing (e.g. EDI). The acceptance of Buyer’s Purchase Order is specifically conditioned upon assent by Buyer to the terms of sale set forth herein, all of which are deemed to be incorporated by reference into each Purchase Order received and accepted by Vitaquest. Any provisions in Buyer’s Purchase Order which are different from the terms and conditions set forth herein are hereby rejected by Vitaquest, and such different or additional different terms and conditions shall not become a part of such Purchase Order unless and until Vitaquest expressly accepts the same in a separate writing in its sole discretion. Purchase Orders accepted by Vitaquest cannot be cancelled without Vitaquest’s written consent which may be delayed, conditioned or denied in its sole discretion. Vitaquest’s acceptance of a Purchase Order does not limit Vitaquest’s right to manufacture or sell, or preclude Vitaquest from manufacturing or selling, products which are similar to or competitive with the Buyer’s products.
                  2. Payment. Buyer shall pay invoices prior to the date of shipment. In the event Buyer fails to timely pay such invoices, the Buyer hereby agrees to pay interest of one and one-half (1.5%) percent per month (18% per annum) of the unpaid invoiced amount or, if such rate is prohibited under applicable law, interest at the maximum rate allowable under applicable law. Buyer shall not have a right to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Vitaquest against any other amount owed (or to become due and owing) to Vitaquest because of Vitaquest’s breach or non-performance. If Buyer has more than one pending Purchase Order and Buyer is in Default (as defined in Section 14 below), Vitaquest shall have the right, in its sole discretion, to modify payment terms, reject future Purchase Orders, cancel pending Purchase Orders, suspend, delay or withhold shipments of products, stop delivery of products in transit and cause them to be returned to Vitaquest, accelerate due dates for payments due from Buyer, and/or terminate any or all of such Purchase Orders, each to the maximum extent permitted under applicable law. As security for the full and prompt payment of all amounts now or hereafter owing by Buyer to Vitaquest, Buyer hereby grants to Vitaquest a present and continuing first priority, purchase money security interest in all products purchased by Buyer from Vitaquest. Buyer authorizes, names, appoints and directs Vitaquest as its true and lawful attorney-in-fact to sign, execute and file all UCC financing statements, continuation statements and any other documentation as Vitaquest deems to be reasonably necessary to effect, protect and continue Vitaquest’s security interest in the products.
                  3. Packaging/Shipping. Buyer shall provide to Vitaquest all labels (at Buyer’s sole cost and expense) to be applied to products. Vitaquest shall be responsible for the information and presentation of the supplement facts panel on the label, but Buyer shall be responsible for all other aspects of the label including without limitation names, logos, branding, content, product descriptions, warnings, disclaimers, disclosures and language. All products shall be prepared for shipment and packaged to prevent damage or deterioration under usual handling conditions and to comply with carrier tariffs, if applicable. All freight and shipping charges are the responsibility and liability of the Buyer. Vitaquest reserves the right to ship partial orders (at Buyer’s expense), and the portion of any order that is partially shipped may be charged at the time of shipment. Vitaquest reserves the right to over- or under-ship up to 10% of the Purchase Order amount in which event Buyer shall be responsible to pay for the actual amount of the shipment and related shipping charges. Orders which are not picked up by Buyer or its carrier within seven (7) days following completion may be shipped to a third-party warehouse selected by Vitaquest (with notification of such shipment sent to Buyer), in which event title and risk of loss and/or damages for such products passes to Buyer and Buyer is solely responsible for the cost of such shipping and third-party storage.
                  4. Risk of Loss. Delivery of the products shall be FCA (Incoterms 2020) West Caldwell, NJ or Parsippany, NJ. Title and risk of loss and/or damage to all products subject to a Purchase Order shall be upon Buyer upon delivery to Buyer’s carrier or Vitaquest’s delivery thereof to a third-party warehouse pursuant to Section 3.
                  5. Changes. Once Buyer’s Purchase Order has been accepted by Vitaquest, Buyer may not make changes thereto without Vitaquest’s express written consent. If the price of raw materials or packaging needed for a Purchase Order increases by up to three percent (3%) after Vitaquest has accepted a Purchase Order from Buyer, Vitaquest reserves the right to equitably increase the price of the pending Purchase Order without prior notice to Buyer, and Buyer shall be responsible for paying the increased amount. If the price of raw materials or packaging needed for a Purchase Order increases by more than three percent (3%) after Vitaquest has accepted a Purchase Order from Buyer, Vitaquest reserves the right to equitably adjust the price of such Purchase Order upon written notice to Buyer (the “Price Adjustment Notice”); however, in such event, Buyer shall have the right to terminate the Purchase Order upon written notice which is received by Vitaquest within seven (7) days following Buyer’s receipt of the Price Adjustment Notice. If Buyer does not so terminate the Purchase Order within said period, Buyer shall be responsible for paying the adjusted price. In any event, if Vitaquest has obtained raw materials or packaging which cannot be returned or used for other customers, and Buyer subsequently terminates the Purchase Order prior to shipment thereunder, Buyer shall be liable to Vitaquest for all non-cancelable or non-refundable costs incurred with respect to such raw materials and packaging. With respect to any such raw materials and packaging, Vitaquest shall, pursuant to Buyer’s directions (and subject to receipt of payment): (a) ship them to Buyer, at Buyer’s sole cost and expense; (b) dispose of or destroy them, at Buyer’s sole cost and expense; and/or (c) store them for future use for the Buyer’s benefit, in which case Buyer shall be responsible for the reasonable costs and expenses incurred in connection with such storage on a per-pallet basis.
                  6. Inspection and Rejection. Buyer will fully inspect the products within five (5) business days of delivery/receipt of the products (at the first ship-to location) to verify order fulfillment and the conformity of such products with the agreed-upon product specifications of the Purchase Order. If Buyer does not notify Vitaquest in writing within five (5) business days after delivery/receipt of the products (at the first ship-to location) of an incorrect Purchase Order fulfillment, including an over shipment, and/or defective products which do not conform to such product specifications (such writing to detail the specific nature of the incorrect fulfillment and/or defect), then such products will be deemed fully accepted by Buyer and Buyer will be deemed to have waived any and all rights and/or claims against Vitaquest related to such products to the maximum extent permitted under applicable law. Buyer’s sole and exclusive remedy for shipments containing defective products or which do not otherwise conform with the Purchase Order shall be for Vitaquest to, at its option, either: (i) provide replacement products which conform to the specifications of the Purchase Order at no additional cost, or (ii) terminate the affected portions of the Purchase Order and provide a refund of amounts paid by Buyer for the defective products. Vitaquest shall have the right upon notice to inspect all defect claims at Buyer’s premises, and Buyer agrees to make such premises reasonably available to Vitaquest and/or its designee for such purpose.
                  7. Warranty. Vitaquest warrants that it possesses sufficient right, title, and interest in and to the products to sell such and transfer such products to Buyer free and clear of any liens and encumbrances, such that full and clear title passes to Buyer (unless otherwise provided in writing) upon delivery to Buyer. EXCEPT AS SET FORTH IN THIS PARAGRAPH, THE GOODS DELIVERED HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. ALL EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY AS TO MERCHANTABILITY, DESIGN OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW AND ARE EXPRESSLY DISCLAIMED BY VITAQUEST. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE EXPRESS WARRANTY PERIOD. VITAQUEST DOES NOT AND SHALL NOT WARRANT PRODUCT COMPLIANCE WITH CALIFORNIA’S SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986 (“PROPOSITION 65”) UNLESS VITAQUEST ISSUES A SPECIFIC WRITTEN WARRANTY TO THAT EFFECT IN FAVOR OF BUYER AT THE TIME OF PRODUCT MANUFACTURE. The foregoing warranty disclaimers and exclusions shall apply even if the warranty set forth above fails of its essential purpose.
                  8. Important Notice. The information contained in this Agreement has not been approved, endorsed or reviewed by the Food and Drug Administration (“FDA”). By purchasing any products from Vitaquest, Buyer agrees that Buyer has read and understands all FDA recommendations and warnings that are related to the products sold by Vitaquest, including, but not limited to, Vitamins, Supplements, Topical and/or Ingestible Products. Buyer agrees that in purchasing Vitaquest’s products, Buyer is fully responsible for how Buyer decides to use the products, regardless of directions or instructions Vitaquest may provide to Buyer. Vitaquest does not take any responsibility regarding any possible damage, loss or injury allegedly resulting from exposure to any product supplied pursuant to this Agreement. Through the sale and distribution of products, Vitaquest does not intend to treat, diagnose or prevent ailments, diseases or conditions, nor does it intend to replace medical assistance, or provide any medical or other professional advice or opinion regarding the safety or suitability of any product for any therapeutic, nutritional, or medical purpose.
                  9. Compliance with Laws. Buyer agrees that it is solely and exclusively responsible for each product’s compliance with all laws and regulations of the various territories and jurisdictions where Buyer may distribute or offer each product for sale, including without limitation compliance with Proposition 65 and regulations promulgated thereunder. Buyer specifically agrees that it is responsible to determine whether a product requires a Proposition 65 warning label, and when a warning obligation is triggered. If required by law, Buyer has the obligation to provide a compliant Proposition 65 warning label to consumers in conjunction with Buyer’s sale of a regulated product. Buyer hereby expressly acknowledges that Vitaquest neither assesses products for compliance with Proposition 65 nor reviews the adequacy of warning labels.
                  10. Human Rights and Anti-Trafficking/Modern Slavery. Vitaquest and Buyer hereby agree to maintain compliance with Vitaquest’s Human Rights Policy and all laws and regulations applicable to their respective businesses.
                  11. Insurance. Vitaquest shall maintain comprehensive general liability insurance (including coverage for products liability) with limits of not less than US$1 million per occurrence and US$3 million in the aggregate and shall, upon written request, provide Buyer with a Certificate of Insurance evidencing such coverage. At Buyer’s written request, Buyer shall be named as an additional insured with respect to Vitaquest’s insurance policy. Buyer shall maintain comprehensive general liability insurance (including coverage for products liability) with limits of not less than US$1 million per occurrence and US$3 million in the aggregate and shall, on an annual basis (or more frequently, if requested by Vitaquest) provide Vitaquest with a Certificate of Insurance. If Buyer’s products liability coverage is on a ‘claims-made’ basis: (i) such ‘claims-made’ coverage must have a retroactive date on or prior to the start of work under the Purchase Order; and (ii) Buyer must purchase ‘tail coverage/an extended reporting period’ or maintain such claims-made coverage for a period of not less than three (3) years subsequent to Vitaquest’s completion of the Product for the relevant Purchase Order. Vitaquest shall be named as an additional insured with respect to Buyer’s insurance coverage.
                  12. Limitation of Liability. In no event shall Vitaquest be liable to Buyer for lost profits or for incidental, consequential, exemplary, punitive, indirect, or any other form or theory of damages other than direct damages in any claim, suit, or other proceeding brought between the parties in connection with the subject matter of the Agreement and/or any Purchase Order. Vitaquest’s liability for a claim of any kind or for any loss or damage arising from the terms and conditions herein, or from any performance or breach, shall in no case exceed the price set forth in the Purchase Order which is allocable to the products which directly give rise to the claim. The parties acknowledge that the exclusions and limitations of liability set forth in this paragraph constitute an essential basis of the transactions contemplated in the Agreement and each Purchase Order, and shall apply in full force to the maximum extent permitted under applicable law.
                  13. Indemnification. Buyer shall and does hereby agree to indemnify, defend and hold Vitaquest and its affiliates, members, managers, officers, employees, consultants, agents and other representatives) harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (i) Buyer’s breach of this Agreement, (ii) Buyer’s use, sale, marketing, or distribution of the products supplied by Vitaquest pursuant to Buyer’s Purchase Order, (iii) the gross negligence, willful misconduct, or violation of applicable law by Buyer or its employees or agents, (iv) the allegation that the products or any other proprietary material provided by Buyer to Vitaquest in connection with the Agreement infringes, misappropriates, or otherwise violates the personal or proprietary rights of any third party (including without limitation any intellectual property right), (v) use or storage of raw materials or packaging materials used in connection with the products and sourced by Buyer; (vi) product liability claims arising from the products which otherwise comply with (A) the warranties of Vitaquest set forth herein, or (B) Buyer’s product specifications; (vii) any marketing, promotion, distribution, advertising, or sales of products by Buyer or its agents; (viii) product non-compliance with Proposition 65 and/or any law, regulation, or guideline for which Buyer bears the responsibility of compliance under Section 9; and (ix) the enforcement of this indemnification.
                  14. Default. Vitaquest may, by notice to Buyer, terminate all or any part of Buyer’s Purchase Order, modify Buyer payment terms, or change its method of applying Buyer payments (whether such payments were previously received or are expected in the future) if: (i) Buyer fails to make timely payment of any invoices within the time specified herein; (ii) Buyer files a voluntary petition for bankruptcy, has filed against it an involuntary petition for bankruptcy, or commences proceedings under any law related to bankruptcy or the relief of debtors; (iii) Buyer becomes insolvent; (iv) Buyer is otherwise in breach of a Purchase Order; or (v) Vitaquest, in its sole judgment, determines that Buyer’s financial condition is such as to endanger Buyer’s performance hereunder (any of the foregoing shall constitute a “Default”). If a Default occurs, Vitaquest may exercise any and all rights to which it is entitled under applicable law, whether at law or in equity, to mitigate damages including without limitation selling off undelivered but completed Product in its finished state (i.e., including all branding, trademarks, patents, logos and packaging) and/or repackaging or re-branding completed Product or parts thereof, regardless of Buyer’s intellectual property rights, protections or restrictions. No waiver by Vitaquest of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default, nor shall any delay or omission on the part of Vitaquest to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
                  15. Terms and Termination. This Agreement commences as of the date of Vitaquest’s acceptance of the first Purchase Order issued by Buyer and made subject to these terms, and continues until terminated as set forth herein. Whether or not a Default has occurred, Vitaquest may terminate this Agreement or any part thereof by written notice at any time to Buyer, provided that the parties shall continue to perform in accordance with this Agreement for any Purchase Orders expressly accepted by Vitaquest prior to the date of such termination. Such notice shall state the extent and effective date of termination and upon the delivery thereof. If a Default has occurred, said termination shall be without liability of any kind by Vitaquest. In any event, if Vitaquest has obtained raw materials or packaging which cannot be returned or used for other customers, Buyer shall be liable to Vitaquest for all non-cancelable, non-refundable costs incurred with respect to such raw materials and packaging.
                  16. Remedy: Except as modified hereby, Vitaquest shall have all rights and remedies afforded by the Uniform Commercial Code in effect in the State of New Jersey. Whenever a term defined by the Uniform Commercial Code is used in Buyer’s Purchase Order or this Agreement, unless otherwise stated, the definition contained in the Uniform Commercial Code shall control.
                  17. Delivery; Force Majeure. Vitaquest may at any time postpone delivery of all or any of the products ordered herein for a reasonable time. Vitaquest reserves the right to suspend shipment of products, and shall be relieved of the performance of its obligations and have no liability for any delay or failure thereof which is directly or indirectly caused by circumstances beyond Vitaquest’s reasonable control, including but not limited to acts of God; acts, regulations or laws of any government enacted or adopted after the date hereof; war; embargoes; civil unrest; destruction of production or storage facilities or products by fire, earthquake or storm; unavailability of product ingredients, components or packaging; labor disturbances or strikes; pandemics, epidemics and the spread of contagious disease; shortages of public utilities, common carriers or raw materials; and the like.
                  18. Products. Vitaquest may revise and discontinue products offered at any time and shall have no liability for the unavailability or discontinuation of any product or quantity not expressly set forth in an accepted Purchase Order. Nothing in the Agreement shall be construed as any minimum or guarantee with respect to the availability or manufacture of any products or quantities not expressly set forth in an accepted Purchase Order. Vitaquest reserves the right to limit order quantity at any time without notice prior to the acceptance of any Purchase Order for specific quantities. Prices and promotions are subject to change without notice.
                  19. Unused Raw Materials, Printed Components and Packaging Components. If Vitaquest determines that it has excess (a) Buyer-supplied raw materials, printed components or packaging components, or (b) Vitaquest-supplied printed components, Vitaquest shall send written notice to Buyer which shall, within thirty (30) days thereafter, do one of the following: (i) remit a Purchase Order to Vitaquest to utilize such excess materials in a production run; (ii) send a truck (at Buyer’s sole cost and expenses) to pick up such materials and haul them away; (iii) direct Vitaquest to destroy such materials, at Buyer’s sole cost and expense; or (iv) request that Vitaquest send such materials to VQ Solutions, LLC. (an affiliate of Vitaquest) for storage, at Buyer’s sole cost and expense. Buyer’s failure to timely respond to Vitaquest’s written notice shall entitle Vitaquest to take any of the foregoing steps, in its sole discretion, at the sole cost and expense of Buyer.
                  20. Special Circumstances.
                      (a) If Buyer refuses Vitaquest’s recommendation of a stability test for a new Product, the Product fails (a “Failed Product”), and such failure likely would have been discovered during a stability test, Buyer shall be liable to Vitaquest for (i) the cost of raw materials, packaging and components used in such Failed Product or which are no longer usable, and (ii) manufacturing costs chargeable by Vitaquest in connection with such Failed Product.
                      (b) If Buyer supplies the raw material for a Failed Product, and such failure is attributable to such raw material, Buyer shall be liable to Vitaquest for (i) the cost of raw materials, packaging and components used in such Failed Product or which are no longer usable because of such raw materials, and (ii) manufacturing costs chargeable by Vitaquest in connection with such Failed Product.
                  21. Tolling. If Buyer engages Vitaquest to provide ‘toll’ manufacturing services, the following shall apply and shall supersede any conflicting terms and conditions set forth herein, unless otherwise agreed in writing by Vitaquest:
                      (a) Buyer shall provide and retain title to all raw materials to be used by Vitaquest to manufacture finished products for Buyer. Buyer shall bear the risk of loss for such raw materials.
                      (b) Prior to delivering the raw materials to Vitaquest, Buyer shall provide Vitaquest with evidence of insurance with respect thereto.
                      (c) Buyer represents and warrants that all raw materials provided by Buyer to Vitaquest: (i) shall be merchantable and fit for their intended purpose; (ii) shall be in compliance with applicable laws, including without limitation, not being adulterated, misbranded or unsafe within the meaning of the Federal Food, Drug and Cosmetic Act, as amended (the “Act”), or any substantially similar state law, and none of such raw materials shall be an article which may not under such Act or law be introduced into interstate or intrastate commerce; (iii) shall comply with Buyer’s product specifications. If any of the foregoing representations and warranties of Buyer with respect to furnished raw materials are incorrect or if the raw materials are otherwise defective, Buyer shall be liable for: (x) disposal costs associated with such raw materials; (y) the cost of raw materials, packaging and components used in such Failed Product or which are no longer usable because of such raw materials; and (z) manufacturing costs chargeable by Vitaquest in connection with such Failed Product.
                  22. Assignment. Buyer shall not sell and/or assign any of its rights or responsibilities arising under any of Buyer’s Purchase Orders without the prior written consent of Vitaquest.
                  23. Updates. Vitaquest retains the right to update these terms and conditions in writing at any time upon notice to Buyer, with such terms to become effective on all Purchase Orders issued and accepted following the date of such notice.
                  24. Governing Law. Any disputes arising from a Purchase Order or this Agreement shall be governed by the laws of the State of New Jersey, without regard to its conflict of law rules. Buyer submits to the exclusive jurisdiction of any state or federal court located within the State of New Jersey for any and all claims or disputes arising under or in connection with a Purchase Order or this Agreement. Buyer hereby expressly waives any claim or argument regarding the convenience, adequacy, or sufficiency of jurisdiction of such courts for hearing such matters.
                  25. Severability. If any term hereof is rendered unenforceable or invalid via court order or other operation of applicable law, such term shall be deemed severed or reformed to the minimum extent necessary to comply with said order or operation while preserving intended function of such term, and the remainder of the Agreement shall continue unchanged in full force and effect to the maximum extent permitted under applicable law.
                  26. Relationship of the Parties. The parties hereto are independent contractors and nothing herein shall be construed as creating any partnership, joint venture, agency relationship, or employment relationship.

                   

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                  Update: 05/28/2024

                  4850-2893-4289, v. 20 Rev.5/24