Customer Purchase Order Terms and Conditions

 

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. Vitaquest has the right to reject any Purchase Order, with or without reason, in its sole discretion. 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. Notwithstanding anything to the contrary contained herein, Vitaquest shall have the right to charge Buyer for tariffs incurred by Vitaquest with respect to imported raw materials and/or components used to manufacture and/or package the finished product.
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. Buyer shall pay Vitaquest in advance for unique raw materials and/or packaging which, if Buyer terminates a Purchase Order in accordance herewith, cannot be returned or used for other customers. 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. If Buyer fails to pay any amount when due, Buyer shall reimburse Vitaquest for all costs of collection, including reasonable attorneys’ fees and court costs, in addition to the interest set forth hereinabove.
3. Packaging/Shipping: Buyer shall provide to Vitaquest all labels (at Buyer’s sole cost and expense) to be applied to products. Vitaquest’s responsibility with respect to the nutrition or supplement facts panel shall be limited to the accuracy of quantitative values (including potency per serving, amounts per serving, serving size, and percent daily value) as derived from Vitaquest’s manufacturing records and testing. Buyer shall be responsible for all other aspects of the nutrition or supplement facts panel, including without limitation ingredient nomenclature, common or usual names, chemical form descriptions, part-of-plant declarations, proprietary blend structures, the order and grouping of ingredients, “other ingredients” listings, and the format and layout of the panel. 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. Buyer may request up to 9 samples per batch (pulled from beginning, middle and end) and have them shipped to Buyer or one 3rd party Recipient, as a courtesy. If Buyer requests more than 9 samples per batch or shipments to multiple recipients, Buyer will be responsible for the cost of the samples and the cost of the shipping. If Buyer requests Finished Good Samples after the finished product has been packaged for shipping, Buyer will be charged $500 per pallet as well as the cost of shipping for the samples that have been pulled. 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. Buyer shall review and approve all labels (including the nutrition or supplement facts panel) prior to printing or application by Vitaquest. Buyer’s approval shall not relieve Vitaquest of its responsibility for the accuracy of quantitative values generated by Vitaquest. Vitaquest’s printing or application of labels approved by Buyer shall not relieve Buyer of its responsibility for any content, nomenclature, claims, or formatting that Buyer directed or specified.Buyer shall be solely responsible for ensuring that all packaging specifications provided or approved by Buyer comply with applicable laws, including without limitation Consumer product Safety Commission (“CPSC”) child-resistant packaging requirements, state packaging material restrictions or bans, recyclability or compostability requirements (including without limitation EPR Laws), packaging statements required by California SB 646, California Proposition 65 warnings, and any other packaging-related laws or regulations applicable in any jurisdiction in which the products are marketed, distributed, or sold by Buyer or any other person or entity. Vitaquest’s obligation with respect to packaging shall be limited to executing Buyer’s packaging specifications, and, as with all of Vitaquest’s obligations under this Agreement, is subject to Vitaquest’s good faith Right to Refuse. Buyer shall be solely liable for all costs, penalties, fines, settlements, judgments, attorneys’ fees, and other amounts arising from or relating to any non-compliance attributable to the content or adequacy of Buyer’s packaging specifications. If Buyer declines to provide Vitaquest with packaging specifications, Buyer shall be solely liable for all costs, penalties, fines, settlements, judgments, attorneys’ fees, and other amounts arising from or relating to any non-compliance attributable to the packaging Vitaquest provides.For the avoidance of doubt, Buyer acknowledges and agrees that it is solely responsible for complying with all applicable extended producer responsibility (“EPR”) and per- and polyfluoroalkyl substance (“PFAS”) laws, regulations, and obligations relating to the products supplied under this Agreement, in any and all jurisdictions in which such products are sold, distributed, or otherwise supplied by Buyer (collectively, “EPR Laws”). Upon Buyer’s reasonable written request, Vitaquest shall provide Buyer with all information and documentation in Vitaquest’s possession and control that is reasonably necessary to assist Buyer in complying with EPR Laws relating to the products supplied under this Agreement. Vitaquest does not warrant or represent that such information or documentation is sufficient for Buyer’s compliance purposes, and Buyer remains solely responsible for determining its compliance obligations.
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. If, at Buyer’s request, Vitaquest arranges for product pick-up and delivery using a common carrier, then (i) delivery of the products shall be FCA (Incoterms 2020) West Caldwell, NJ or Parsippany, NJ, as the case may be, (ii) the risk of loss with respect to such products is on the Buyer as of such pick-up, and (iii) Buyer shall ensure that it has sufficient insurance coverage in the event that such products are damaged, destroyed or lost in transit.
5. Changes: Once Buyer’s Purchase Order has been accepted by Vitaquest, Buyer may not terminate or modify it except in accordance with Schedule A attached hereto. If the price of raw materials or packaging needed for a Purchase Order increases by up to five percent (5%) 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 five percent (5%) 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 and transfer such products to Buyer free and clear of any liens and encumbrances. EXCEPT AS SET FORTH IN THIS PARAGRAPH, THE GOODS DELIVERED HEREUNDER ARE PROVIDED “AS IS” AND WITHOUT OTHER 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.   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 or any other person or entity may distribute or offer each product for sale, including without limitation compliance with Proposition 65 and regulations promulgated thereunder and California’s SB 646.  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. Buyer specifically agrees that it is responsible to determine whether a product is subject to California SB 646, which imposes certain requirements on products that meet the law’s definition of “prenatal multivitamin” and the persons who manufacture, distribute, or sell such products.Except with respect to stock or white-label products for which Vitaquest developed the Product Formula, Buyer shall be solely responsible for determining and ensuring the regulatory status of all ingredients specified by Buyer in the Product Formula, including without limitation compliance with the Dietary Supplement Health and Education Act of 1994 (“DSHEA”), new dietary ingredient notification requirements under 21 U.S.C. § 350b, state ingredient bans or restrictions, and any applicable novel food, food additive, or ingredient approval requirements in any jurisdiction in which Buyer markets or sells the products. Buyer shall be solely liable for all costs, penalties, fines, settlements, judgments, attorneys’ fees, and other amounts arising from or relating to any claim, investigation, enforcement action, warning letter, or proceeding challenging the regulatory status of any ingredient specified by Buyer.Buyer shall be solely responsible for all claims, statements, representations, and descriptions relating to the products, including without limitation structure/function claims, health claims, nutrient content claims, “free from” claims, allergen statements, marketing language, advertising copy, and compliance with the Federal Trade Commission Act, state consumer protection laws, and any other applicable laws governing product claims or advertising. Without limiting the foregoing, Buyer shall be solely responsible for determining whether any claim made in connection with a product is a permissible structure/function claim under 21 U.S.C. § 343(r)(6) or an impermissible disease claim under 21 CFR 101.93, and for filing any required notification with the U.S. Food and Drug Administration pursuant to 21 CFR 101.93(a). Vitaquest shall have no obligation to evaluate, verify, or advise on the permissibility of any product claim.Once Buyer has approved any label, packaging material, or other printed component for use with the products, Buyer shall be solely responsible for the compliance of such approved materials with applicable laws and shall indemnify, defend, and hold harmless Vitaquest from and against any and all claims, losses, damages, liabilities, penalties, fines, costs, and reasonable attorneys’ fees arising from or relating to any defect in, or non-compliance of, such approved materials, except to the extent such claim arises from Vitaquest’s failure to accurately state quantitative values on the supplement facts panel or Vitaquest’s failure to execute Buyer’s approved specifications. This indemnification obligation is in addition to, and not in limitation of, Buyer’s indemnification obligations under Section 13.Vitaquest shall provide Buyer with complete and accurate allergen information for each product, including: (1) identification of all major food allergens (as defined under 21 U.S.C. § 343(w) (“FALCPA”) and the Food Allergy Safety, Treatment, Education and Research Act, 21 U.S.C. sec. 301 et.seq. (the “FASTER Act”) present in the product formula; (2) identification of all major food allergens present in any processing aids, excipients, capsule materials, or other materials used in manufacturing; and (3) disclosure of cross-contact risks arising from shared equipment, shared facilities, or manufacturing lines. Vitaquest shall update such allergen information promptly upon any change. Buyer shall be solely responsible for accurately declaring all allergens on the product label in compliance with FALCPA, the FASTER Act, and applicable state allergen labeling requirements. Buyer shall not make “free from” allergen claims unless independently verified through Buyer’s own testing or third-party certification. Vitaquest’s allergen disclosure is not a warranty that the product is free from any particular allergen absent a specific written warranty. Vitaquest shall bear liability for allergen-related claims to the extent caused by Vitaquest’s failure to provide complete and accurate allergen information. Buyer shall bear liability for allergen-related claims to the extent caused by Buyer’s failure to accurately declare allergens based on information provided by Vitaquest.
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 naming Vitaquest as an additional insured 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.
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; (ix) the Buyer’s (A) failure to comply with applicable EPR Laws, and (B) use of or reliance upon information or documentation provided by Vitaquest pursuant to this Agreement with respect thereto; (x) Buyer’s failure to comply with its obligations under Sections 3, 9, or 22, including without limitation any costs, fees, penalties, fines, liabilities, or reasonable attorneys’ fees incurred by Vitaquest as a result of Buyer’s failure to satisfy its regulatory compliance, labeling, packaging, ingredient, or product claims obligations thereunder; (xi) any FALCPA violation, undeclared allergen claim, allergen-related product recall, or allergen-related misbranding to the extent caused by Buyer’s failure to accurately declare allergens on the product label based on allergen information provided by Vitaquest, Buyer’s failure to include appropriate precautionary allergen advisories, or Buyer’s making of allergen-free claims without adequate independent verification; and (xii) 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) directly or via third parties and in any sales channel 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. If any event described in this Section 17 continues for more than thirty (30) days, Vitaquest may, in its sole discretion, allocate its available production capacity and materials among its customers on any reasonable basis and/or terminate or suspend any affected Purchase Order without liability, and Buyer shall remain responsible for all products completed and all non-cancelable or non-refundable costs incurred prior to such termination or suspension.
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. Buyer hereby represents and warrants that any formula submitted by Buyer for use in a product, whether originated by Buyer or devised, in whole or in part, by Vitaquest (the “Product Formula”) is owned by Buyer or Buyer otherwise has appropriate rights and/or licenses necessary to use and sell such formula. Flavors and flavoring systems developed by Vitaquest and manufactured by flavor manufacturers for use in Buyer’s product are proprietary and owned by Vitaquest.
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 Inc. (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. Downstream Regulatory Cost Allocation. 
    (a) Anti-Identification. Buyer shall not identify Vitaquest as the “producer,” “obligated producer,” “brand owner,” “steward,” “responsible party,” “manufacturer,” “importer,” or other obligated person under any law or regulation and shall not use Vitaquest’s name, registration number, data, or information in connection with Buyer’s compliance obligations under any such provision, except with Vitaquest’s prior written consent.
    (b) Reimbursement. If Vitaquest is required by any governmental authority, producer responsibility organization, regulatory agency, or other third party to register, report, pay any fee, assessment, penalty, fine, tax, charge, or other amount, or take any other action with respect to any law, regulation, or requirement arising from or relating to the products or Buyer’s Product Formula, labeling, packaging, sale, marketing, distribution, importation, or supply thereof, Buyer shall promptly reimburse Vitaquest for all costs, fees, expenses, liabilities, penalties, fines, and reasonable attorneys’ fees incurred by Vitaquest in connection therewith.(c) Regulatory Inquiries. If Vitaquest receives any regulatory inquiry, information request, subpoena, civil investigative demand, or other communication from any governmental authority or third party relating to or arising from Buyer’s obligations, Vitaquest shall promptly notify Buyer thereof. Buyer shall, at its sole cost and expense, direct and control the response to any such inquiry and shall reimburse Vitaquest for all reasonable internal and external costs incurred in responding thereto. If Buyer fails to assume direction and control within ten (10) business days following notice, Vitaquest may respond in its sole discretion and Buyer shall reimburse all costs incurred.(d) Right to Refuse. Notwithstanding any other provision of this Agreement, Vitaquest shall have the right, but not the obligation, to refuse to manufacture, package, label, or ship any product if Vitaquest reasonably and in good faith determines that doing so would cause Vitaquest to violate applicable law or would expose Vitaquest to material regulatory liability. Such refusal shall not constitute a breach of this Agreement or any Purchase Order, and Buyer shall reimburse Vitaquest for any costs incurred in connection with work already performed on the affected Purchase Order prior to such refusal.(e) Survival. Buyer’s obligations under this Section 22 shall survive expiration or termination of this Agreement and shall be in addition to, and not in limitation of, Buyer’s indemnification obligations under Section 13.
23. Assignment. Neither party shall assign all or any part of its obligations under this Agreement without the prior written consent of the other party; however, either party shall have the right to assign this Agreement without the consent of the other party in connection with a sale of all or substantially all of its assets or the portion of its business associated with the performance of this Agreement. Notwithstanding the foregoing, Buyer’s obligations and performance under this Agreement shall not be excused as a result of such assignment unless and until (i) Buyer’s assignee has assumed the Buyer’s performance hereunder in a writing, the form and substance of which is acceptable to Vitaquest in its sole discretion, and (ii) Vitaquest has consented to such assignment in its sole and unreviewable discretion. Vitaquest shall have the right to utilize subcontractors in connection with Vitaquest’s performance hereunder.  Vitaquest covenants and warrants that it shall be liable hereunder for the acts and omissions of its subcontractors. 
24. 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.
25. Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of New Jersey, without regard to the principles of conflicts of laws thereof.  The parties hereto irrevocably consent to the exclusive jurisdiction of the Superior Court located in Essex County, New Jersey, or to the Federal District Court of New Jersey located in Newark, New Jersey, in connection with any action or proceeding arising out of or relating to this Agreement and agree that venue shall be proper in such courts to the exclusion of the courts in any other state or country.  The parties further agree that such designated forums are proper and convenient.  The United Nations Convention for the International Sale of Product shall not apply to this Agreement.  The parties hereto agree that the Uniform Commercial Code in effect from time to time in the State of New Jersey shall apply to this Agreement.EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO A PURCHASE ORDER OR THIS AGREEMENT.
26. Equitable Remedies. Each party acknowledges and agrees that (i) a breach or threatened breach by a party of any of its obligations under this Agreement would give rise to irreparable harm to the other party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by a party of any such obligations, the other party shall, in addition to any and all other rights and remedies that may be available to such party at law, at equity or otherwise in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each party agrees that the other party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 26.
27. Prevailing Party Attorneys’ Fees. In the event a party reasonably retains counsel for the purpose of enforcing or preventing the breach of any rights under this Agreement, including instituting any action or proceeding to enforce any provision hereof, for damages by reason of any alleged breach of any provision hereof, for a declaration of such party’s rights or obligations hereunder, or for any other remedy, then, if said matter is settled between the parties or resolved through judicial or alternative dispute resolution forum (as applicable), the prevailing party (whether in settlement, at trial or on appeal) shall be entitled, in addition to such other relief as may be agreed upon or granted, to be reimbursed by the other party for all costs and expenses incurred in connection therewith, including all reasonable attorneys’ fees and costs.
28. Severability. Should any provision contained in this Agreement be held to be unenforceable or invalid, the remaining provisions shall be given full effect, and the parties agree to negotiate, in good faith, a substitute valid provision which most nearly approximates the parties’ intent.  The failure of either party in any instance to enforce any of the terms of this Agreement shall not be construed as a waiver of future enforcement of that or any other term.
29. Relationship of the Parties. The parties hereto are independent contractors of each other and nothing herein shall be construed as creating any partnership, joint venture, agency relationship, or employment relationship.
30. Product Recalls. Following consultation (or reasonable attempts to consult) with Vitaquest, Buyer shall have sole responsibility for, and shall control and bear all costs and expenses of, any recall, withdrawal, field correction, or market action (each, a “Recall”) involving the products, including without limitation any Recall initiated by Buyer, required by any governmental authority, or arising from Buyer’s labeling, claims, marketing, distribution, or Product Formula. Vitaquest shall have no obligation to conduct or fund any Recall. To the extent a Recall is caused solely by Vitaquest’s breach of the limited express warranty set forth in Section 7, Vitaquest’s liability shall be subject to Buyer’s exclusive remedy under Section 6 and the Limitation of Liability under Section 12. The parties shall reasonably cooperate in connection with any Recall, and Buyer shall reimburse Vitaquest for all reasonable costs incurred in providing such cooperation.
31. Taxes. Buyer shall be responsible for and shall pay all sales, use, excise, value-added, gross receipts, and other similar taxes, tariffs, duties, and governmental charges of any kind imposed on or measured by the manufacture, sale, delivery, or use of the products, exclusive only of taxes based on Vitaquest’s net income. If Vitaquest is required to collect or pay any such amount, Buyer shall promptly reimburse Vitaquest therefor. This Section is in addition to Vitaquest’s right to charge Buyer for tariffs under Section 1.
32. Confidentiality. Buyer shall keep confidential and shall not use, except in connection with its purchase and resale of the products, any non-public information disclosed by or on behalf of Vitaquest, including without limitation pricing, formulations developed by Vitaquest, manufacturing processes, methods, techniques and know-how (collectively, “Vitaquest Confidential Information”). Buyer shall protect Vitaquest Confidential Information using no less than a reasonable degree of care and shall not disclose it to any third party without Vitaquest’s prior written consent. The terms of this Agreement constitute Vitaquest Confidential Information. This Section shall not apply to information that is or becomes publicly available other than through Buyer’s breach.
33. Intellectual Property; Manufacturing Know-How. As between the parties, Vitaquest exclusively owns and retains all right, title, and interest in and to its manufacturing processes, methods, equipment configurations, formulations it develops, flavors and flavoring systems (as set forth in Section 18), and all know-how, improvements, and intellectual property conceived, developed, or reduced to practice by Vitaquest, whether or not in connection with any Purchase Order. Nothing in this Agreement grants Buyer any license or other right in the foregoing, whether by implication, estoppel, or otherwise. Buyer’s rights in the Product Formula are as set forth in Section 18.
34. Notices. Except as otherwise permitted hereunder, all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement and outside the ordinary course of business (each, a “Notice”) must be in writing and addressed to the other party at its address set forth in the accepted Purchase Order (or to such other address that the receiving party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (e.g., Federal Express), email (with receipt acknowledged by the intended recipient) or certified mail (return receipt requested and postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
35. Entire Agreement; Order of Precedence. This Agreement, together with each Purchase Order accepted by Vitaquest and Schedule A attached hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, negotiations, and communications, whether written or oral. In the event of any conflict, the following order of precedence shall govern: (i) these terms and conditions (including Schedule A); and (ii) the Purchase Order, provided that any term in a Purchase Order that is different from or additional to these terms and conditions shall have no effect unless expressly accepted by Vitaquest in a separate writing in accordance with Section 1. No modification or amendment of this Agreement shall be binding on Vitaquest unless in a writing signed by an authorized representative of Vitaquest, without limiting Vitaquest’s right to update these terms under Section 24.
36. No Third-party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
37. Limitation of Actions. To the fullest extent permitted by applicable law, any claim or cause of action by Buyer arising out of or relating to this Agreement or any Purchase Order must be commenced within one (1) year after the cause of action accrues, failing which such claim or cause of action shall be permanently barred.
38. Survival. The provisions of this Agreement that by their nature should survive expiration or termination shall so survive, including without limitation Sections 2, 7, 8, 9, 12, 13, 16, and 22, together with Buyer’s accrued payment and reimbursement obligations.
39. Cumulative Remedies. Except as otherwise expressly provided herein (including Buyer’s exclusive remedy under Section 6), all rights and remedies of Vitaquest under this Agreement are cumulative and in addition to, and not in lieu of, any other rights and remedies available at law or in equity. 

 

Schedule A

Purchase Order Terminations or Modifications

“PO” = Purchase Order “RM” = Raw Material

PO Terminations:

(a) If Buyer terminates a PO within 1 week of Vitaquest’s acceptance of a PO, there is no termination fee

(b) If Buyer terminates a PO thereafter and prior to the start of blending, Buyer shall pay Vitaquest a termination fee equal to 50% of the PO price

(c) If Buyer terminates a PO once the blending process has begun, Buyer shall pay Vitaquest a termination fee equal to 75% of the PO price

(d) If Buyer terminates a PO following blending process completion and until the product has been packaged, Buyer shall pay Vitaquest a termination fee equal to 100% of the PO price

PO Modifications:

(1) PO Quantity Change – Decrease:

a. A PO quantity decrease received within 1 week of Vitaquest’s acceptance of a PO is acceptable

b. A PO quantity decrease received thereafter and prior to the start of blending is subject to Buyer’s payment of 50% of the PO price

c. A PO quantity decrease received once the blending process has begun is subject to Buyer’s payment of 75% of the PO price

d. A PO quantity decrease received following blending process completion and until product is packaged is subject to Buyer’s payment of 100% of the PO price

(2) PO Quantity Change – Increase:

a. A PO quantity increase received within 1 week of Vitaquest’s acceptance of a PO is acceptable

b. A PO quantity increase received thereafter and prior to the start of blending will result in a new line to be added to the PO

c. A PO quantity increase received once the blending process has begun will result in a new line to be added to the PO

d. A PO quantity increase received following blending process completion and until product is packaged will result in a new line to be added to the PO

(3) PO Date Change – Push Out

a. A request to push out the product delivery date within 1 week of Vitaquest’s acceptance of a PO is acceptable

b. A request to push out the product delivery date received thereafter and prior to the start of blending is subject to Buyer’s payment of 50% of the PO price

c. A request to push out the product delivery date received once the blending process has begun is subject to Buyer’s payment of 75% of the PO price

d. A request to push out the product delivery date received following blending process completion and until product is packaged is subject to Buyer’s payment of 100% of the PO price

(4) PO Date Change – “Pull In”

a. A request to pull in the product delivery date within 1 week of Vitaquest’s acceptance of a PO is subject to RM availability

b. b. A request to pull in the product delivery date received thereafter and prior to the start of blending is subject to Vitaquest scheduling

c. A request to pull in the product delivery date received once the blending process has begun is subject to Vitaquest scheduling

d. A request to pull in the product delivery date received following blending process completion and until product is packaged is subject to Vitaquest scheduling

(5) PO Physical Change — Formulation

a. A request to change product formulation received within 1 week of Vitaquest’s acceptance of a PO is acceptable

b. A request to change product formulation received thereafter and prior to the start of blending is subject to Vitaquest approval and payment of a 5% change fee

c. A request to change product formulation received once the blending process has begun cannot be honored

d. A request to change product formulation received following blending process completion and until product is packaged cannot be honored

 

(6) PO Physical Change – Components, Artwork

a. A request to change components or artwork received within 1 week of Vitaquest’s acceptance of a PO is acceptable

b. A request to change components or artwork received thereafter and prior to the start of blending is subject to Buyer’s payment of 50% of the PO price plus a 5% change fee

c. A request to change components or artwork received once the blending process has begun is subject to Buyer’s payment of 75% of the PO price plus a 5% change fee

d. A request to change components or artwork received following blending process completion and until product is packaged cannot be honored.

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VITAQUEST INTERNATIONAL llc 

Updated: 08/19/2026

4850-2893-4289, v. 39  Rev.7/26