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SUPPLY AGREEMENT
This Supply Agreement ("
Agreement") is made as of December 11, 2018 (the "
Effective Date") by and between
,
an individual with an address at
,
,
("
Party-1"), and
,
a company with an address at
,
,
("
Party-2").
BACKGROUND
This Agreement describes Party-1's purchase of Deliverables from Party-2.
NOW THEREFORE,
in consideration of the mutual promises and covenants contained in this
Agreement, the parties hereby agree to the following terms and
conditions:
1. DEFINITIONS.
(a) "Contract Year" means any twelve (12) month period during the Term beginning on January 1 and ending on December 31. [QR-65]
(b) "Copyrights" means copyrights in all artwork, copy, labels and packaging for the Deliverables.
(c) "Deliverables" means the products described in this Agreement.
(d) "Facility" means the facility located at this address: TEXTFIELD [QR-66]
(e) "Forecast" has the meaning assigned in the provision entitled "Forecasts and Purchase Orders".
(f) "Government Authority"
means any governmental authority or court, tribunal, agency,
department, commission, arbitrator, board, bureau, or instrumentality
of the United States of America or any other country or territory, or
domestic or foreign state, prefecture, province, commonwealth, city,
county, municipality, territory, protectorate or possession.
(g) "Law" means
all laws, statutes, ordinances, codes, regulations and other
pronouncements having the effect of law of any Government Authority.
(h) "Marks" means the names, trademarks, service marks, logos, trade dress and related designs or trade names of the Deliverables.
(i) "Materials" means all raw materials, components, and other items necessary for the manufacture of Deliverables.
(j) "Purchase Order" means a binding commitment in writing to purchase Deliverables.
(k) "Quarter" means any period of three consecutive calendar months ending March 31, June 30, September 30 or December 31.
2. DELIVERABLES. Party-1 agrees to provide the following Deliverables: [QR-70]
3. FORECASTS AND PURCHASE ORDERS.
(a) Forecasts and Purchase Orders Overview. No later than ninety (90) days before the end of each Quarter, Party-2 will advise Party-1 in writing of its estimated requirements for Products for each Quarter of the next succeeding Contract Year, and within thirty (30) days of receipt, Party-1 agrees to either confirm or reject the estimate by notice to Party-2 (once confirmed by Party-1, each such estimate is a "Forecast"). Forecasts do not constitute Purchase Orders or commitments to purchase Products. Party-2 may place Purchase Orders from time to time under the Forecast. Each Purchase Order must specify the quantity of Products ordered, the required delivery date and the shipping address. The delivery date must give Party-1 at least the following number of days after the date of Party-1's receipt of the Purchase Order to make delivery of the Products: [QR-98]
(b) Exclusivity. Party-2 agrees to purchase during the Term all of its requirements for Deliverables from Party-1 and not to buy any Deliverables from any third party. This commitment and restriction also applies to products similar to the Deliverables, which only and exclusively consist of products meeting the following requirements: [QR-100]
4. FINISHED GOODS. The Deliverables are for resale under Party-2's own labels, subject to the following instructions and guidelines for use of the Marks and Copyrights: TEXTFIELD [QR-103]
(a) License Grant and Restrictions. Party-2 grants Party-1 a limited, revocable, non-exclusive, non-transferable, and non-sublicenseable license, under which Party-1 may use the Marks and reproduce the Copyrights solely in connection with Party-1's preparation of the Deliverables and their labels and packaging. Party-2 reserves all rights in the Marks not expressly granted in this Agreement.
(b) Party-2's Ownership and Related Matters. As between the parties, Party-2 is the owner of all rights to the Marks and Copyrights. Party-1 is not acquiring any rights to the Marks or Copyrights apart from this license which terminates upon termination of this Agreement. All rights arising from Party-1's use of the Marks inure to the benefit of Party-2. Upon termination of this Agreement for any reason, Party-1 agrees to discontinue all uses of the Marks and Copyrights, and all rights granted in and to the Marks and Copyrights revert to Party-2. Party-1 agrees not to use any other word, trademark, service mark, brand name, trade name, design, logo, or the like, or register or obtain a license to any domain name, that is confusingly similar to the Marks. Party-1 agrees to not contest or deny the validity of or Party-2's proprietary interest in the Marks. If Party-1 learns of any infringement, simulation or imitation of the Marks by any entity or person that has not been granted the right to use the Marks by Party-2, Party-1 agrees to notify Party-2 in writing promptly after discovery.
(c) Provision of Artwork and Copy. Party-2 agrees to provide Party-1 with all artwork and copy needed for packaging and labeling the Deliverables.
5. QUALITY SYSTEM.
(a) Materials.
Within thirty (30) days of the Effective Date, Party-1 agrees to
provide Party-2 with notice of the following: a list of all Materials
used to manufacture Deliverables, the specifications, source and
location of manufacture for such Materials, and a description of the
manufacturing process for all such Materials. Party-1 agrees to
maintain all documentation/records regarding its purchase of each
Material for a period of seven (7) years.
(b) Facility. Party-1 agrees to manufacture all Deliverables under this Agreement at the Facility.
(c) Equipment.
Party-1 agrees, at its expense, to operate and maintain the Facility
and all equipment used to manufacture Deliverables and to maintain the
Facility and equipment in an acceptable state of repair and operating
efficiency required for Party-1 to comply with this Agreement. Party-1
must validate the manufacturing equipment (including, without
limitation, conducting installation, operational and performance
qualification), production, cleaning, packaging, process and any other
appropriate steps performed at the Facility. Validation procedures
used by Party-1 must: (i) meet applicable Laws; and (ii) be found
acceptable by Government Authority inspections.
(d) Certificates of Analysis.
Party-1 agrees to provide Party-2 with certificates of analysis for
each Deliverable. These certificates will document that each
Deliverable received by Party-2 conforms to the Agreement. A copy of
each certificate must be included with each Deliverable delivered to
Party-2. Party-1 agrees to also provide Party-2 with Government
Authority certification, for those countries in which the applicable
Government Authority is in the practice of requiring any such
certifications.
(e) Quality Control Tests.
Party-1 agrees to perform the quality control tests stated in the
Agreement (if any). Party-1 agrees to make the results of its quality
control tests available to Party-2 on or before the date of delivery of
the corresponding Deliverables. Party-1 agrees to not ship
Deliverables to Party-2 unless Party-1's quality control tests show the
Deliverables comply with the Agreement.
(f) Actions and Inspections.
Party-1 agrees to promptly notify Party-2 of any information Party-1
receives regarding any threatened or pending action or inspection by
any Government Authority, including, without limitation, any Government
Authority non-approval or regulatory action, or any filing
requirement. Upon receipt of any such information regarding the
Deliverables, Party-1 agrees to consult with Party-2 in an effort to
arrive at a mutually acceptable procedure for taking appropriate
action; provided, however, that either party is free to make a timely
report to any Government Authority or take other action that it deems
to be appropriate or required by applicable Law. Party-1 agrees to
permit one or more qualified representative(s) of Party-2 to be present
at any such inspections (if requested by Party-2). Party-1 agrees to
promptly (no later than ten (10) business days) furnish Party-2
summaries of all reports, documents or correspondence regarding any
Government Authority requests or inspections of the Facility regarding
the Deliverables, as well as a copy of each such report, document or
correspondence.
(g) Safety Issues Notice.
Party-1 agrees to promptly notify Party-2 of any information of which it is aware
concerning Deliverables which may involve health hazards or otherwise
affect the safety or efficacy claims regarding or the continued
marketing of the Deliverable. Upon receipt of any such information,
Party-1 agrees to consult with Party-2 in an effort to arrive at a
mutually acceptable procedure for taking appropriate action; provided,
however, either party is free to make a timely report of such matter to
any Government Authority or take other action that it deems to be
appropriate or required by applicable Law.
(h) Shelf Life.
Party-1 agrees to ensure that all Deliverables have an expiration date
that lasts at least for the following period after the date of delivery
of such Deliverable to the carrier for shipment to Party-1's designated
site: TEXTFIELD [QR-104]
(i) Customer Complaints.
Party-2 is responsible for coordinating any Customer Complaint that it
receives concerning any Deliverable. Party-1 agrees to transfer to
Party-2 any Customer Complaint that it receives concerning any
Deliverable. Party-2 is responsible
for communicating with Party-2's customers regarding any Customer
Complaint about any Deliverable. "Customer Complaint"
means any written, oral or electronic expression of dissatisfaction
relative to the use, identity, quality, durability, reliability,
safety, effectiveness or performance of a Deliverable, made by a
customer of Party-2, including, but not limited to, actual or suspected
Deliverable tampering, contamination, mislabeling, or wrong components,
and any of the foregoing regarding a Party-2 product incorporating a
Deliverable.
6. OWNERSHIP, TITLE AND RISK OF LOSS. Ownership of, title to, and risk of loss for the Deliverables passes to Party-2 upon Party-1's delivery of the Deliverables to a nationally reputable carrier, fully insured with a nationally reputable insurer (such insurance may be invoiced to Party-2 at cost). [QR-87]
7. FEES. Except as expressly stated in this Agreement, there are no additional fees, charges or expenses incurred. In consideration for Party-1 performing all obligations under this Agreement, Party-2 agrees to pay Party-1 a flat fee of: [QR-89] Party-1 shall invoice Party-2 for the entire overall flat fee in this Agreement on the date the Deliverables are accepted by Party-2. [QR-92] As a condition precedent to Party-1 charging the fees stated in this Agreement, Party-2 shall meet the following requirements: [QR-90] If Party-2 pays within ten (10) days of the date of Party-2's receipt of an invoice, then Party-1 will deduct from the next invoice a credit equal to two percent (2%) of the invoiced amount. [QR-91] [QR-88]
8. INVOICES AND TAXES. Party-2
agrees to pay to Party-1 all fees owed under this Agreement within
thirty (30) days after the date of Party-2's receipt of a complete
invoice. A complete invoice is one that contains the invoice number,
invoice date, description of the transaction, total invoice amount with
miscellaneous charges listed separately and payment terms consistent
with and not additional to any provisions under this Agreement. To the
extent that the transactions under this Agreement are subject to any
sales, use, value added or any other taxes, payment of these taxes, if
any, is Party-2's responsibility. Party-1 is liable for any and all
taxes on any and all income it receives under this Agreement.
9. WARRANTIES.
(a) Mutual Warranties. Each party represents, warrants and covenants to the other that:
(i) General. It: (a) is a company
duly organized and validly existing and in good standing under the Laws
of its jurisdiction of organization; (b) is qualified or licensed to do
business and in good standing in every jurisdiction where qualification
or licensing is required; and (c) has the corporate power and
authority to negotiate, execute, deliver and perform its obligations
under this Agreement.
(ii) Law Compliance. It complies with all applicable Laws.
(b) Warranties by Party-1. Party-1 represents, warrants and covenants to Party-2 that:
(i) Warranty Length. For a period of thirty (30) days after receipt, the Deliverables conform to the requirements of this Agreement, are free from any defect in material and workmanship, and are free of all liens, claims and encumbrances of any kind. [QR-83]
(ii) Infringement. The
Deliverables do not violate any patent, trade secret, or other
intellectual property or proprietary rights of any third party.
(iii) No Litigation. There is no
actual or threatened litigation: (a) that affects its ability to comply with this
Agreement, or (b) concerning the Deliverables.
(c) Disclaimer. EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT, PARTY-1 AND PARTY-2 EACH MAKE NO
REPRESENTATIONS AND EXTEND NO WARRANTIES OR COVENANTS OF ANY KIND,
EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. LIMITATION OF LIABILITY. THIS
LIMITATION OF LIABILITY PROVISION APPLIES IN THE AGGREGATE AND NOT ON A
PER CLAIM BASIS, WHETHER ANY DAMAGES ARE CHARACTERIZED IN TORT,
NEGLIGENCE, CONTRACT, OR OTHER THEORY OF LIABILITY, REGARDLESS OF
WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE
FORESEEN ANY DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF ESSENTIAL
PURPOSE OF A LIMITED REMEDY. THIS LIMITATION OF LIABILITY PROVISION
DOES NOT LIMIT A PARTY'S LIABILITY FOR GROSS NEGLIGENCE,
INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY REQUIREMENTS,
INTENTIONAL MISCONDUCT, INTENTIONAL TORTS AND INTENTIONAL VIOLATIONS OF
LAW. NEITHER PARTY IS LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER THIS
AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY,
OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RESULTING FROM THIS
AGREEMENT. [QR-33]
EACH PARTY'S LIABILITY SHALL NOT EXCEED THE AMOUNTS PAID UNDER THIS
AGREEMENT IN THE ONE (1) YEAR PERIOD PRIOR TO THE DATE THE CLAIM AROSE.
[QR-34]
11. INDEMNIFICATION.
The term "Claim" means any claim, suit or action by any
third party, and the term "Losses"
means any damages awarded and fines assessed in any Claim by a court of
competent jurisdiction or pursuant to an arbitration proceeding, any
amounts due under Claim settlement, and any other costs or expenses
incurred in complying with any injunctive or equitable relief or any
settlement requirements.
(a) Party
Indemnification.
(i) Indemnification
by Party-1. Upon receipt of notice from Party-2 requesting Party-1 to
do so, Party-1 agrees to indemnify, defend, and hold harmless Party-2
and its affiliates, subsidiaries, shareholders, members, directors,
officers, employees, agents, and parents, from and against any Claim,
and any associated Losses to the extent caused by violation of any
patent, copyright, trademark, trade secret, or other intellectual
property or proprietary right due to Party-1 providing the Deliverables
(except to the extent a Claim is caused by Party-2's internally created
specifications). [QR-79]
(ii)
Indemnification by Party-2. Upon receipt of notice from Party-1
requesting Party-2 to do so, Party-2 agrees to indemnify, defend, and
hold harmless Party-1 and its affiliates, subsidiaries, shareholders,
members, directors, officers, employees, agents, and parents, from and
against any Claim, and any associated Losses to the extent caused by
violation of any patent, copyright, trademark, trade secret, or other
intellectual property or proprietary right to the extent caused by
Party-2's internally created specifications or Party-2's use of the
Deliverables. [QR-77]
(b) Indemnification
Procedures. The term "indemnifying party" means the
party assuming indemnification obligations under this Agreement, and
the term "indemnified party" means all parties,
including any third parties, which the indemnifying party agrees to
indemnify under this Agreement.
(i) Notice.
The indemnified party must give the indemnifying party prompt written
notice of a Claim, provided, however, that failure of an indemnified
party to give prompt written notice does not relieve the indemnifying
party from its indemnification obligations under this Agreement except
to the extent the defense is materially prejudiced by the failure. When
the indemnifying party receives notice of a Claim from an indemnified
party, the indemnifying party agrees, at its sole cost and expense, to
assume the defense of the Claim by representatives chosen by the
indemnifying party. The indemnified party may participate in the
defense of the Claim and employ counsel at its own expense to assist in
the defense of the Claim, subject to the indemnifying party retaining
final authority and control over the conduct of the defense.
(ii) Conduct of Defense.
The indemnifying party's defense attorneys must be reasonably
experienced and qualified in the areas of litigation applicable to the
defense. The indemnifying party has the right to assert any defenses,
causes of action or counterclaims arising from the subject of the Claim
available to the indemnified party and also has the right to settle the
Claim, subject to the indemnified party's prior written consent to the
extent the settlement affects the rights or obligations of the
indemnified party. The indemnified party agrees to provide the
indemnifying party with reasonable assistance, at the indemnifying
party's expense, as may be reasonably requested by the indemnifying
party in connection with any defense, including, without limitation,
providing the indemnifying party with information, documents, records
and reasonable access to the indemnified party as the indemnifying
party reasonably deems necessary.
12. TERM AND TERMINATION.
(a) Term. The term of this Agreement (together with any renewals, the "Term") begins on the Effective Date and expires one (1) year [QR-24] later. Immediately
upon expiration this Agreement automatically renews on the same terms
and conditions for additional successive periods of one (1) year on
each anniversary of the Effective Date, unless either party gives the
other party notice that the Agreement does not renew at least thirty
(30) days before the end of the then applicable Term. [QR-18]
(b) Survival.
The following captioned sections survive any termination, expiration or
non-renewal of this Agreement: "Disclaimer", "Limitation of Liability", "Indemnification", "Survival" and
"General", as well as any other provisions expressly stating that they are perpetual or survive this Agreement.
(c) Termination for Insolvency.
If either party is adjudged insolvent or bankrupt, or upon the
institution of any proceedings by it seeking relief, reorganization or
arrangement under any Laws relating to insolvency, or if an involuntary
petition in bankruptcy is filed against a party and the petition is not
discharged within sixty (60) days after filing, or upon any assignment
for the benefit of a party's creditors, or upon the appointment of a
receiver, liquidator or trustee of any of a party's assets, or upon the
liquidation, dissolution or winding up of its business (each, an "Event of Bankruptcy"),
then the party affected by any Event of Bankruptcy must immediately
give notice of the Event of Bankruptcy to the other party, and the
other party may terminate this Agreement by notice to the affected
party.
(d) Termination for Breach.
If either party breaches any provision contained in this Agreement, and
the breach is not cured within thirty (30) days after the breaching
party receives notice of the breach from the non-breaching party, the
non-breaching party may then deliver a second notice to the breaching
party immediately terminating this Agreement.
[QR-17]
13. FORCE MAJEURE. Any failure or
delay by a party in the performance of its obligations under this
Agreement is not a default or breach of the Agreement or a ground for
termination under this Agreement to the extent the failure or delay is
due to elements of nature or acts of God, acts of war, terrorism,
riots, revolutions, or strikes or other factor beyond the reasonable
control of a party (each, a "Force Majeure Event"). The party failing
or delaying due to a Force Majeure Event agrees to give notice to the
other party which describes the Force Majeure Event and includes a good
faith estimate as to the impact of the Force Majeure Event upon its
responsibilities under this Agreement, including, but not limited to,
any scheduling changes. However, should any failure to perform or delay
in performance due to a Force Majeure Event last longer than thirty
(30) days, or should three (3) Force Majeure Events apply to the
performance of a party during any calendar year, the party not subject
to the Force Majeure Event may terminate this Agreement by notice to
the party subject to the Force Majeure Event.
14. GENERAL. Entire Agreement and Amendments. This Agreement is the entire agreement between the parties and supersedes all earlier and simultaneous agreements regarding the subject matter, including, without limitation, any invoices, business forms, purchase orders, proposals or quotations. This Agreement may be amended only in a written document, signed by both parties. Independent Contractors, Third Party Beneficiaries, and Subcontractors. The parties acknowledge that they are independent contractors under this Agreement, and except if expressly stated otherwise, none of the parties, nor any of their employees or agents, has the power or authority to bind or obligate another party. Except if expressly stated, no third party is a beneficiary of this Agreement. The parties may not subcontract any of their obligations under this Agreement. [QR-63] Governing Law and Forum. All claims regarding this Agreement are governed by and construed in accordance with the Laws of TEXTFIELD [QR-27], applicable to contracts wholly made and performed in such jurisdiction, except for any choice or conflict of Law principles, and must be litigated in TEXTFIELD [QR-28], regardless of the inconvenience of the forum, except that a party may seek temporary injunctive relief in any venue of its choosing. The parties acknowledge and agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Assignment. This Agreement binds and inures to the benefit of the parties' successors and assigns. Either party may assign, delegate, sublicense or otherwise transfer this Agreement, or any right or obligation under this Agreement, to a third party. [QR-46] No Waivers, Cumulative Remedies. A party's failure to insist upon strict performance of any provision of this Agreement is not a waiver of any of its rights under this Agreement. Except if expressly stated otherwise, all remedies under this Agreement, at Law or in equity, are cumulative and nonexclusive. Severability. If any portion of this Agreement is held to be unenforceable, the unenforceable portion must be construed as nearly as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect, and the unenforceable portion remains enforceable in all other contexts and jurisdictions. Notices. All notices, including notices of address changes, under this Agreement must be sent by registered or certified mail or by overnight commercial delivery to the address set forth in this Agreement by each party. Captions and Plural Terms. All captions are for purposes of convenience only and are not to be used in interpretation or enforcement of this Agreement. Terms defined in the singular have the same meaning in the plural and vice versa.
IN WITNESS WHEREOF, the parties execute this Agreement
as of the Effective Date. Each person who signs this Agreement below
represents that such person is fully authorized to sign this Agreement
on behalf of the applicable party.
PARTY-1
By: __________________________________
Print Name: ___________________________
Title: ________________________________
PARTY-2
By: __________________________________
Print Name: ___________________________
Title: ________________________________
