Rev. 2 – Updated: 02/19/2021
This Manufacturing and Supply Agreement is executable upon the “Processing” of an Emerald Nutraceutical Invoice on the “Effective Date”. The agreement is between the customer who has processed said invoice (the “Buyer”) and Emerald Nutraceuticals LLC. with its principal place of business located at 48 Mall Drive, Commack, New York 11725 (the “Supplier”) (hereinafter referred to individually as a “Party” and collectively as “the Parties”).
WHEREAS, Buyer is in the business of the purchasing of Consumer Packaged Goods and is seeking a manufacturer to produce units of a specific product; and
WHEREAS, Supplier is in the business of contract manufacturing, packaging and fulfillment of various Consumer Packaged Goods including but not limited to Dietary Supplements, Personal Care Products, Cosmetics, Candy or Baked Goods; and
WHEREAS, Buyer desires to have Supplier produce units of the said product and supply them to Buyer and Supplier is willing to manufacture and supply such product units to Buyer.
NOW, THEREFORE, the Parties hereby agree as follows:
1. Definitions
In this Agreement, the following terms shall have the following respective meanings:
(a) “Agreement” means this Manufacturing and Supply Agreement, Exhibit A and any applicable change orders, invoices or signed product specifications to which this document is referenced.
(b) “Business Day” means Monday through Friday except for public holidays. A public holiday is a day that is a public holiday in the United States.
(c) “Confidential Information” means any and all information that is disclosed by one Party to the other Party and that relates to the Parties’ business relationship hereunder, including, but not limited to, information relating to the manufacturing, testing, labeling, packaging, storing or supply of Product and any and all information exchanged between the Parties pursuant to Article 12 (c) hereof. Any Confidential Information disclosed in tangible form shall be marked as “CONFIDENTIAL” or “PROPRIETARY” or by a similar legend by the disclosing Party prior to disclosure. Any Confidential Information disclosed orally or visually shall be identified as such prior to, concurrent with or following disclosure and summarized in writing by the disclosing Party to the receiving Party within thirty (30) calendar days of the disclosure. Confidential Information shall not include information which (i) is in or comes into the public domain without breach of this Agreement by the receiving Party; (ii) was in the possession of the receiving Party prior to receipt from the disclosing Party and was not acquired by the receiving Party from the disclosing Party under an obligation of confidentiality or non-use; (iii) is acquired by the receiving Party from a third party not under an obligation of confidentiality or non-use to the disclosing Party; or (iv) is independently developed by the receiving Party without use of any Confidential Information of the disclosing Party.
(d) “Effective Date” means the date first written above.
(e) “General Terms and Conditions of Sale” means the Supplier’s General Terms and Conditions of sale, which are attached under Exhibit A hereto.
(f) “Product” means the product that is fully described in the Specifications. Additional products may be added to the Specifications upon the mutual agreement of Buyer and Supplier.
(g) “Raw Materials” means any and all raw materials and components needed by Supplier to manufacture, label or package Product according to the terms and conditions of this Agreement.
(h) “Products Specifications” means the specifications for the Product, including, but not limited to, product specifications, manufacturing, testing, labeling, packaging and storing instructions, and standards of quality. Product Specifications will be presented to the customer for approval in a separate document that will reference this agreement.
(j) “Deposit” means a minimum of 50% of invoice total described in Exhibit A.
(k) “Processing” means the receipt and acceptance of your first Emerald Nutraceuticals Invoice in which this agreement is referenced by a direct link in the comment section. An invoice is considered accepted upon receipt of the Deposit and the agreement will apply to all subsequent invoices that are processed thereafter.
(l) “Effective Date” means the date that funds are received for the Deposit.
(m) “Stock Items” means any item and item variation that is listed on www.emeraldnutra.com/products or www.theemeraldcorp.com/products. A Stock Item is limited to the exact specification that is outlined within the product pages.
(n) “Custom Items” means any item that is not listed on www.emeraldnutra.com/products or www.theemeraldcorp.com/products .
This includes items that are similar to Stock Items but with changes including but not limited to; Active or base ingredients, bottle type, lid type,
packaging requirements or any other variation that is not mentioned inside of the
products pages on www.emeraldnutra.com/products or www.theemeraldcorp.com/products
(o) “R&D” means Research and Development associated with the creation of Custom Items during the sampling process.
(p) “Grace Period” means the three (3) business days that the Buyer has the ability
to cancel an order and receive a full refund.
2. Scope of Agreement
On and subject to the terms and conditions of this Agreement, including the General Terms and Conditions of Sale and the Specifications, Supplier shall manufacture, test, label, package, store and supply the Product to Buyer and Buyer shall purchase the Product from Supplier.
3. Specifications
Supplier shall manufacture, test, label, package and store the Product in accordance with the Specifications and in compliance with all applicable laws, rules and regulations. Buyer shall deliver to Supplier written notice of any required changes to the Specifications, and Supplier will accommodate such Specification changes unless doing so would adversely affect Supplier’s business in Supplier’s reasonable judgment. If any Specification change requested by Buyer affects Supplier’s costs of manufacturing, testing, labeling, packaging or storing Product adversely, the Parties will negotiate, in good faith, an adjustment to the pricing set forth in Article 6 hereof. Any changes to the Specifications shall be incorporated in this Agreement as a written amendment to Exhibit B hereto.
4. Compliance
(a) Product shall be manufactured in Supplier’s facilities located in Commack, Hauppauge or Brooklyn New York unless otherwise agreed by the Parties. Supplier shall, at its expense, maintain its facilities used for the manufacture of Product in compliance with all applicable laws, rules and regulations, including, but not limited to, any applicable environmental, health and safety laws.
(b) Supplier shall, at its expense, be responsible for obtaining and maintaining any permits or approvals from government authorities which are required in connection with the performance of its obligations hereunder.
(c) Supplier shall permit representatives of Buyer to visit Supplier’s facilities for the purpose of observing the manufacturing, testing, labeling, packaging and storing of Products. Buyer agrees to give Supplier reasonable notice of any proposed visit to the facilities. Any such visits shall be during normal business hours on work days and any information gathered during such visits shall be kept confidential in accordance with the provisions of Article 12 hereof.
5. Price & Quantities
Supplier shall charge Buyer, and Buyer shall pay for Product, as specified in the Specifications. Such prices shall be fixed during the Term except that Supplier may pass through and otherwise charge Buyer for any cost increases for Raw Materials, labor or as a result of changes in the Specifications or applicable laws, rules and regulations. Buyer agrees and acknowledges that Supplier may provide quantities that may vary plus/or/minus Three (3) percent from the Buyer Specifications, as a result of manufacturing throughput yields. Supplier shall charge Buyer, and Buyer shall pay for Product, at the yield amount unless otherwise agreed by the Parties.
6. Intellectual Property Rights
(a) Representation and Warranty. Buyer represents and warrants that it owns or controls all the intellectual property rights necessary to manufacture, test, label, package, store and supply the Product in accordance with the terms of this Agreement and that, to the best of its knowledge, the Supplier’s fulfillment of the terms of this Agreement will not infringe the intellectual property rights of any third party.
(b) License. Buyer hereby grants to Supplier a license for the Term to use the intellectual property rights required for Supplier to fulfill the terms of this Agreement.
7. Insurance
During the Term and for a period of two (2) years after delivery of the last Product to Buyer hereunder, the Supplier shall maintain an adequate insurance program which is sufficient to adequately protect against the risks associated with its ongoing business, including the risks which might possibly arise in connection with the transactions contemplated by this Agreement.
8. Independent Contractors
It is understood that both Parties hereto are independent contractors and engage in the operation of their own respective businesses. Neither Party hereto is to be considered the agent of the other Party for any purpose whatsoever and neither Party has any authority to enter into any contract or assume any obligation for the other Party or to make any warranty or representation on behalf of the other Party. Each Party shall be fully responsible for its own employees, servants and agents, and the employees, servants and agents of one Party shall not be deemed to be employees, servants and agents of the other Party for any purpose whatsoever.
9. Non-Publicity
Each of Buyer and Supplier agree not to disclose the existence or contents of this Agreement to any third party without the prior written consent of the other Party except: (i) to its advisors, attorneys or auditors who have a need to know such information, (ii) as required by law or court order, (iii) as required in connection with the reorganization of a Party, or its merger into any other corporation, or the sale by a Party of all or substantially all of its properties or assets, or (iv) as may be required in connection with the enforcement of this Agreement.
10. Indemnification
Buyer shall indemnify and hold Supplier harmless from and against any and all losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising from: i) a claim brought by any third party that the Buyer’s label design or any product formula provided by the Buyer infringes any patent, utility model, design, copyright, trademark or other intellectual property right of such third party.
11. Force Majeure
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
12. Confidentiality
13. Term and Termination
(a) Term. This Agreement shall commence on the Effective Date and shall continue until terminated under Article 13 (b) hereof.
(b) Termination. This Agreement may be terminated by either Party (i) in the event of a material breach by the other Party by giving ten (10) calendar days written notice of such termination to the other Party. “Material breach” shall include: (i) any violation of the terms of Articles 4, 7, 12 or Exhibit A (ii) any other breach that a Party has failed to cure within thirty (30) calendar days after receipt of written notice by the other Party, (iii) an act of gross negligence or willful misconduct of a Party, or (iv) the insolvency, liquidation, or bankruptcy of a Party.
(c) Effect of Termination. Upon the effective date of termination of this Agreement, all legal obligations, rights and duties arising out of this Agreement shall terminate except for such legal obligations, rights and duties as shall have accrued prior to the effective date of termination and except as otherwise expressly provided in this Agreement. Applicable refunds will be given in accordance with Exhibit A within thirty (30) calendar days of the effective date
of the termination.
14. Injunctive Relief
Each of Buyer and Supplier acknowledge that a violation of Article 13 would cause immediate and irreparable harm for which money damages would be inadequate. Therefore, the harmed Party will be entitled to injunctive relief for the other Party’s breach of any of its obligations under the said Article without proof of actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for such violation but shall be in addition to all other remedies available at law or in equity.
15. Entire Agreement
This Agreement constitutes the entire agreement of the Parties on the subject hereof and supersedes all prior understandings and instruments on such subject. In the event of any discrepancy between the provisions of the Manufacturing and Supply Agreement and the provisions of Exhibit A or any signed Product Specifications or Change Orders that the terms and conditions of the Manufacturing and Supply Agreement shall prevail. This Agreement may not be modified other than by a written instrument executed by duly authorized representatives of the Parties.
16. Severability
All agreements and covenants contained herein are severable, and in the event any of them shall be held to be invalid by any competent court, this Agreement shall be interpreted as if such invalid agreements or covenants were not contained herein. However, before serving any such legal provisions, such court may modify it to the extent necessary to render it enforceable at law or in equity. All the rights of the parties hereunder shall be cumulative and not alternative, and a waver or indulgence on the part of either party of any rights or entitlements hereunder shall not be constructed as waiver of any other rights or entitlements hereunder by the other.
17. Waiver
The failure of either party to enforce any provision or provisions of this Agreement shall not in any way be construed as a waiver of any such provision or provisions as to any future violations thereof, nor prevent that party thereafter from enforcing each and every other provisions of this Agreement. The rights granted the parties herein are cumulative and the waiver of any single remedy shall not constitute a waiver of such party’s right to assert all other legal remedies available to it under the circumstances.
18. Attorney’s Fees
In the event it is necessary for either party to retain the services of an attorney to enforce any of its rights under this Agreement, to defend any action or proceeding relating to this Agreement, the parties agree that the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney’s fees, court costs and other expense incurred therein.
19. Advice of Counsel
The parties acknowledge that, in executing this Agreement, each party has been advised to seek the advice of independent counsel, has had the opportunity to seek the advice of independent legal counsel, and have read and understood all the terms and provisions of this Agreement. This Agreement shall not be constructed against any party by reason of the drafting or preparation hereof.
20. Binding Effect
This Agreement shall be binding upon and insure to the benefits of Supplier, its successors, and assigns, and to Representative, its successors and assigns.
21. Miscellaneous
Each of the undersigned individuals, warrants, represents and affirms under penalty of perjury that he or she has the power and authority to execute this Agreement on behalf of the party on whose behalf such undersigned individual purports to execute this Agreement, and each of the undersigned individuals warrants, represents and affirms under penalty of perjury that he or she, by subscribing his or her name to this Agreement, duly binds the party on whose behalf he or she is executing this Agreement.
23. Counterparts
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original provided both partied have executed a counterpart of this Agreement, and all such counterparts shall together constitute one and the same instrument. Any signatures delivered by a party by facsimile transmission of electronic mail will be deemed to be an original signature.
24. Survival of Provisions
The following provisions shall survive the termination of this Agreement: Articles 5 final sentence, 8, 11, 13, 14 (c) and 29 of this Agreement, and all other provisions of this Agreement including all exhibits hereto that by their nature extend beyond termination.
*ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS UPON THE PROCESSING OF AN EMERALD NUTRACEUTICAL INVOICE*
EXHIBIT A
General Terms and Conditions of Sale
1. Payment Terms
Buyer agrees to pay supplier a minimum of fifty percent (50%) of the total amount described in the Emerald Nutraceutical invoice (the ”Deposit”) and the remaining balance upon completion of the order and prior to shipment.
2. Sampling – Stock Items
At Buyer’s request, Supplier can provide samples of Stock Items for the Buyer’s approval prior to or upon receipt of Deposit. Supplier agrees to present samples in a timely manner and agrees to notify Buyer of any and all delays in the sampling process within fourteen (14) days of the Effective Date. If Buyer does not approve the samples, Buyer can request additional R&D under the terms of Article 3 of Exhibit A. If the Buyer chooses not to continue the sampling process, the Buyer reserves the right to cancel the order in accordance with Article 5 of Exhibit A.
3. R&D/Sampling – Custom Items
At Buyer’s request, Supplier can provide samples of Custom Items for the Buyer’s approval upon receipt of Deposit. Supplier will produce up to three (3) rounds of sample revisions at no additional cost to the Buyer. If Buyer does not approve any of the three rounds of samples, additional samples can be provided upon request. Additional samples will incur an additional cost that will be accessed and agreed upon by both parties before the continuance of the sampling process. If Buyer chooses to not continue the sampling process, the Buyer reserves the right to cancel the order in accordance with Article 5 of Exhibit A.
4. Title/Risk of Loss
Title to and risk of loss of goods shall pass to the Buyer upon delivery F.O.B. at the Supplier’s facility to an agent of the Buyer including a common carrier, notwithstanding any prepayment or allowance of freight by the Supplier.
5. Cancellations
a. Cancellations are accepted under the following conditions: (i) Cancellation within Grace Period. Buyer has the right to cancel orders for any reason within three (3) business days of the Effective Date (the “Grace Period”) and Buyer will receive a full refund of their Deposit. (ii.) Cancellation of an order pursuant to Article 3 of Exhibit A (for Custom Items). When cancelling a Custom Item order after discontinuing the sampling process, Buyer will be responsible for all incurred charges by the Manufacturer including but not limited to; Raw Material cost, Packaging Cost, R&D, Non-refundable deposits or any applicable shipping and receiving costs. R&D is billed at a rate of two hundred and fifty dollars ($250) per hour. Supplier agrees to provide proof of purchase for all items billed within thirty (30) days of the cancellation. After the deduction of all incurred costs, Buyer can receive a refund for the remaining funds in form of Company check or product credit. (iii.) Cancellation for any reason after the Grace Period. Buyer reserves the right to cancel the order any time before the production of the order begins. Cancellation by the Buyer for any reason not pursuant to Article 3 of Exhibit A will result in the forfeiture of the Deposit. Supplier will reserve the right to offer the Buyer a credit redeemable for product.
b. All refunds from accepted Cancellations will be processed and refunded within thirty (30) days from the written acceptance of the cancellation. Refunds are issued in the form of company check or product credit.
6. Delivery
Supplier will arrange shipping at the Buyers expense. Buyer has the option to arrange pick up by a carrier of their choice at the Buyers expense.
7. Warranties
Supplier warrants that the Products shall be free of substantive defects in material and workmanship and in conformance with industry standards.
8. Inspection
Upon receiving possession of the Products, Buyer shall have a reasonable opportunity to inspect the Products to determine if the Products conform to the requirements of the Agreement.
If Buyer, in good faith, determines that all or a portion of the Goods are non-conforming, Buyer may return the Products to Supplier at Supplier’s expense. Buyer must provide written notice to Supplier of the reason for rejecting the Products within ten (10) business days. Supplier will have sixty (60) days from the return of the Products to remedy such defects under the terms of this Agreement.
*ALL SALES ARE SUBJECT TO THESE TERMS AND CONDITIONS UPON THE PROCESSING OF AN EMERALD NUTRACEUTICAL INVOICE*
