Private Label Agreement
Private Label Agreement
This Private Label Agreement (the “Agreement”) is made as of the date of first purchase (the “Effective Date”) by and between Customer (as named in the Customer section on the Checkout page) and White Label Ops (the “Company”).
1. Purchase Orders/Sales Orders. Customer shall place all purchase orders/sales orders (PO/SO) in writing for products sold by the Company but to be packaged under a private label arrangement (the “Products”). SOs (which are created over the phone or online) shall qualify as being placed in writing (customer shall be responsible for the accuracy of their SO). The private label shall be referred to herein as the “Label”. Each PO/SO is subject to (i) acceptance in writing by Company and (ii) the terms and conditions of sale adopted by the Company and in effect as of the date of the Company’s receipt of such PO/SO (including but not limited to Company’s standard price list for the Products). The Company has the right to change any terms and conditions of sale from time to time by written notice to Customer. Customer shall identify in writing to the Company the individual or individuals who are authorized to submit POs/SOs, approve Labels and otherwise act on behalf of Customer and the Company will not take action on directions from any other individuals on behalf of Customer.
2. Products and Processing. Customer’s order for any one particular Product must be for at least twelve (12 or 24) bottles/ containers per Product. Other minimum quantities may apply depending on the Product and Company reserves the right to modify the minimum order quantities at any time. The Company reserves the right at any time to modify the Products or discontinue the sale of any or all Products. POs/SOs shall be processed, and Products shall be shipped, by Company in accordance with its standard processing, shipping, and handling procedures and practices.
3. Payment. Company reserves the right to request payment in advance or other payment arrangements at Company’s discretion. All sales are final, except in the case of Product recalls and withdrawals or defects caused by the Company. No returns will be accepted without prior written approval from the Company at its discretion. In the event of any late payment, Customer shall be responsible for paying interest on the past due amount at a rate that is the lower of 18% per annum or the highest amount allowed by applicable law, together with any collection and court costs and attorney fees incurred by Company.
4. Label. For purpose of creating the Label, Customer shall provide the following information and material in the form that Customer proposes to include them as part of the Label (the “Customer Material”): (i) The name and address of the Customer; (ii) the name of the Product; (iii) Customer’s proposed artwork; and (iv) any other information that Customer wishes to appear on the Label. Notwithstanding anything to the contrary, the Label and Customer Material shall be subject to Company’s review and approval in its sole and absolute discretion, and Company reserves the right to refuse to print any name, information or artwork provided by Customer. All Customer Materials must meet the Company’s graphic requirements (which shall be available to Customer upon request). In the event that additional graphic services are required, Customer agrees to pay the Company reasonable fees for such services. Company shall have the right and license, for the term of this Agreement, to use the Customer Materials to fulfill its obligations under this Agreement.
5. Custom Formulation. In the event that Customer requests that the Company manufacture and sell to Customer a Product for which the formulation is provided by Customer, the Company will determine in its sole and absolute discretion whether to manufacture and sell the customized Product. Company shall notify Customer of any additional terms and conditions applicable to the custom formulation, including but not limited to additional fees payable by Customer. Formulas supplied by the customer are the sole property of the customer and cannot be changed or duplicated without written agreement between customer and company. Any changes will only be made with prior notification and approval of the customer. Formulas supplied by the company are the property of the company.
6. Marketing and Promotion. Customer shall not use any of the Company’s logos, trade names, trademarks, service marks, copyrights, or other intellectual property (the “IP”) in any manner, including without limitation, in print or website advertising, without submitting such proposed use to the Company and obtaining written pre-approval from the Company in each instance, which approval may be withheld in the Company’s sole discretion. For any marketing or promotional use approved in advanced writing by Company, Company grants Customer the limited right to use such IP solely to the limited extent, scope, and purpose as pre-approved by Company in advanced writing. In order to be valid, such written pre-approval must set forth the IP being pre-approved, together with the details of the limited use right. Any depiction of Company IP that is inconsistent with Company’s written pre-approval is a material breach of this Agreement. Additionally, Company reserves the right to verify and audit all uses of its IP by Customer, and Customer shall promptly (i) comply with any such request by Company and (ii) alter its use of the Company IP if Company determines that Customer’s use is not consistent with Company’s trademark or IP usage policies or this Agreement. Customer gains no proprietary rights of any nature in any patent or IP owned or controlled by the Company as a result of this Agreement other than the limited use right and license set forth in this Section 6.
7. Representation and Warranty. Customer represents and warrants that: (i) it has the full right, title and authority to grant Company the license granted herein as to the Customer Materials and that the Customer Materials will not violate any law, rule or regulation, or infringe any third party intellectual property rights; (ii) Customer shall promote, market, and sell the Products in compliance with all laws, regulations, orders and rulings applicable to the storage, promotion, marketing and/or sale of the Products; (iii) it shall not disparage the name or products of Company; (iv) it shall conduct its business in a manner that reflects favorably at all times on Company and Company’s products, good name, goodwill and reputation; (v) it shall avoid deceptive, misleading or unethical practices; (vi) it shall not publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material; and (vii) if the Products shall be based on a custom formulation for Customer, the resulting customized Product will not infringe any patent or other intellectual property right of any third party or violate any law or regulation, or cause injury or harm to any consumer. OTHER THAN AS SET FORTH IN THIS AGREEMENT, (I) NEITHER PARTY PROVIDES ANY WARRANTY WITH RESPECT TO ITS PRODUCTS TO THE OTHER PARTY; (II) ALL PRODUCTS AND SERVICES ARE PROVIDED BY EACH PARTY ON AN “AS IS” BASIS, AND NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER; AND
(III) EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. Indemnity. Customer shall defend, indemnify and hold harmless Company and its directors, officers, employees, representatives, and agents from and against any and all actions, suits, demands, fines, judgments, penalties, claims, costs, charges, reasonable attorney fees, and expenses arising out of or relating to any claim which results from, or is alleged to have resulted from, (i) any Product formulation provided by Customer (including but not limited to product defects and recalls); (ii) any breach of Customer’s representations or warranties set forth in this Agreement; (iii) the promotion, marketing or sale of any Product by Customer; or (iv) any wrongful or negligent acts or omissions by Customer. Company shall defend, indemnify and hold harmless the Customer and its directors, officers, employees, representatives, and agents from and against any and all actions, suits, demands, fines, judgments, penalties, claims, costs, charges, reasonable attorney fees, and expenses which results from, or is alleged to have resulted from, (i) any Product formulation other than a formulation provided by Customer (including but not limited to product defects and recalls); (ii) any breach of Company’s representations or warranties set forth in this Agreement; or (iii) any wrongful or negligent acts or omissions by Company. Each party seeking indemnity hereunder shall give prompt written notice to the indemnifying party of any such claim, action, or demand. The indemnified party shall allow the indemnifying party to control the defense and related settlement negotiations and shall assist and cooperate in the defense of such claim, provided that the indemnifying party shall pay the indemnified party’s reasonable out-of-pocket expenses. Each party, as the indemnifying party, agrees not to settle any claim without the consent of the indemnified party, which consent shall not be unreasonably withheld.
9. Limitation Of Liability. EXCEPT WITH RESPECT TO A PARTY’S INDEMNITY OBLIGATIONS ARISING UNDER THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON OR ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, DAMAGES BASED ON LOSS OF PROFITS, BUSINESS OPPORTUNITY), AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
10. Compliance with Laws. At its own expense, each party shall comply with all applicable laws, regulations, rules, ordinances, and orders regarding its activities related to this Agreement. Each party agrees to cooperate with the other party to meet all applicable regulatory requirements.
11. Records, Investigations, and Recall. Customer will maintain records as may be necessary to permit a recall of any Products delivered to Customer. Customer will cooperate with the Company in developing any recall plan. Any recall of a Product that was manufactured in accordance with Customer’s custom formulation shall be at Customer’s expense. Customer is responsible for their own product investigations. As the Brand- Owner, Customer is responsible for communicating with their clients regarding complaints, investigating complaints, and the submission of Serious Adverse Event Reports as required by FDA. — see 21CFR part 111 Subpart O Product Complaints; see also MedWatch Form FDA 3500A (Serious Adverse Event Reporting.
12. Termination. Company may immediately terminate this Agreement for any reason or no reason by providing written notice to Customer. Customer may terminate this Agreement on not less than thirty (30) days advance written notice to the Company, provided that the Customer must purchase and pay for any Products previously ordered from Company, whether they are in production or in actual inventory. Sections 8, 9 and 12, and any other terms and conditions of this Agreement that by their nature or terms should survive termination of this Agreement shall survive any termination of this Agreement.
13. Independent Contractors. The parties are and at all times shall be independent contractors in all matters relating to this Agreement, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship between the parties.
14. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of Minnesota, without regard to conflict of laws principles. In the event that any dispute arises under this Agreement, the parties agree that proceedings will take place exclusively in Pinellas County, in the State of Florida.
15. Notices. Any notice required or desired to be given pursuant to this Agreement shall be deemed to have been given when such notice, in writing, is personally served, is delivered by Federal Express or a similar overnight courier with a confirmation of receipt, or three business days after said notice is placed in the United States mail by certified mail, postage fully paid, return receipt requested, addressed to the respective party at the following stated address or at any other address the respective party may designate by giving notice to the other in accordance with this Agreement: White Label Ops, ADDRESS Attention: Legal Counsel
16. Force Majeure. If a party is reasonably prevented from performing an obligation of this Agreement because of fire, flood, wind, earthquake, explosion or other disaster, acts of military authorities, acts of civil authorities unrelated to any violation of law by the party, war, riot, insurrection, act of terrorism or other cause beyond the party’s reasonable control, then that party shall not be in breach of this Agreement during the period that such party is prevented from performing that obligation.
17. Severability. If a court or other body of competent jurisdiction declares any term of this Agreement invalid or unenforceable, then the remaining terms shall continue in full force and effect. No right created by this Agreement shall be deemed waived unless specifically and expressly waived in a writing signed by the party possessing the right.
18. Assignment. Neither this Agreement nor any rights hereunder may be assigned, delegated, sold or transferred by Customer.
19. Counterparts. This Agreement may be executed and delivered by each party hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original and both of which taken together shall constitute one and the same instrument.
20. Entire Agreement. This Agreement constitutes the entire agreement and understanding of the parties regarding the subject matter of this Agreement and supersedes all prior written and oral agreements, representations, quotes, and understandings between the parties regarding the subject matter of this Agreement. No amendment or revision to this Agreement shall be made or be binding upon either party unless made in writing and signed by both parties.