Terms of Service VITAQUEST INTERNATIONAL, LLC

CUSTOMER PURCHASE ORDER TERMS AND CONDITIONS

1. Acceptance: The terms and conditions herein will become the exclusive agreement (this “Agreement”) between the parties when Vitaquest International, LLC (“Vitaquest”) acknowledges acceptance of the buyer’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 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 and shall be at Buyer’s risk unless and until Vitaquest expressly accepts same in writing. 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 a service charge 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, a service charge at a 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, 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.  
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 liable for the supplement facts panel on the label, but Buyer shall be liable for all other aspects of the label including without limitation names, logos, branding, warnings 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 liable for the actual amount of the shipment.  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, in which event Buyer shall be liable to Vitaquest for such products and 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 shall be upon Buyer upon delivery to Buyer’s carrier. 
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 3% after Vitaquest has accepted a Purchase Order from Buyer, Vitaquest shall have the right to equitably increase the price of the pending Purchase Order without notice to Buyer.  If the price of raw materials or packaging needed for a Purchase Order increases by more than three (3%) percent after Vitaquest has accepted a Purchase Order from Buyer, Vitaquest shall have 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.  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 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 liable for 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 quality of such products.  If Buyer does not notify Vitaquest in writing within seven (7) business days after delivery/receipt of the products (at the first ship-to location) of an incorrect order fulfillment, including an over shipment, and/or defective products (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.  With the prior written consent of Vitaquest and in its sole discretion, defective products may be returned to Vitaquest for equivalent replacement or refund of amounts paid by Buyer. Vitaquest retains the right to inspect all defect claims at Buyer’s premises. 
7. Warranty: Vitaquest warrants that it is the owner of the products, free and clear of any liens and encumbrances, and that full and clear title passes to Buyer (unless otherwise provided in writing) upon delivery to Buyer. Otherwise, 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 of products, Vitaquest does not intend to treat, diagnose or prevent ailments, diseases or conditions, nor does it intend to replace medical assistance. Vitaquest strongly encourages Buyer and any user of Vitaquest’s products to consult a physician for any medical advice or need and before using any of Vitaquest’s products.  
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.  At Buyer’s written request, Buyer shall be 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 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 or any other damages except as otherwise provided herein.  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 allocable to the products which directly give rise to the claim. 
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 or willful misconduct by Buyer or its employees or agents, (iv) any third-party claims for infringement of Buyer’s intellectual property, (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, 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 (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, 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, 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. These terms shall remain effective 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.  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. If no Default has occurred when Vitaquest terminates this Agreement, Buyer shall use best efforts to mitigate damages under this paragraph. In any event, Vitaquest shall not be liable in any event for incidental, consequential, indirect or any other special damages of Buyer, including but not limited to lost profits.  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 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 liable for such storage on a per-pallet basis 
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, for 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 at any time and is not responsible for typographical errors or misprints. Vitaquest reserves the right to limit order quantity at any time without notice. Prices and promotions are subject to change without notice. 
19. 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 one-half (1/2) of the cost of raw materials, packaging and manufacturing costs incurred in connection with such Failed Product.  (b)  If Buyer supplies the raw material for a Failed Product, and such failure is likely attributable to such raw material, Buyer shall be liable to Vitaquest for one-half (1/2) of the cost of raw materials, packaging and manufacturing costs incurred in connection with such Failed Product. 
20. Assignment. Buyer shall not sell and/or assign Buyer’s Purchase Orders without the prior written consent of Vitaquest. 
21. Updates. Vitaquest retains the right to update these terms and conditions in writing at any time.  
22. 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 acknowledges and agrees that such forums are convenient for hearing such matters. 

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Update: 02/20/2024

4850-2893-4289, v. 17 Rev.11/23