VIACORE MANUFACTURING AGREEMENT

This Manufacturing Agreement (the “Agreement”) is by and between ViaCore Nutrition LLC, an Oklahoma corporation (“ViaCore,” “we,” “us,” or “our”) and the entity signing this Agreement below (“Client,” “you,” or “your”) (each a “Party” and collectively the “Parties”). This Agreement includes any applicable rider(s) entered into by the Parties, which are incorporated into this Agreement and made a part hereof.

1. Supply of Products. Pursuant to this Agreement, we will supply you with certain dietary or nutritional supplements (“Products”).

2. Term. The term of this Agreement will be one (1) year from the Effective Date, and it will automatically renew for consecutive one (1) year periods unless and until either Party terminates pursuant to Section 11.

3. White Label Products.  We produce certain Products that you may purchase and place your own label thereon (“White Label Products”). All White Label Products will be produced in accordance with our applicable specification sheets. We make no representation that the Custom Products will be accepted by any third party for sale.

4. Custom Products.  We may produce custom Products (“Custom Products”) using ingredients and amounts requested and specified by you and detailed in a specification sheet. We make no representation that the Custom Products will be accepted by any third party for sale.

You represent and warrant that (a) the Custom Products, including all ingredients and amounts are deemed safe under applicable laws; (b) you have the requisite approvals under applicable laws for any new ingredients that are used in the Custom Products; and (c) the formula for the Custom Products does not infringe on any third party’s intellectual property rights. You agree to indemnify, hold harmless, and defend us for, from, and against any claims arising out of your breach of any of the foregoing representations or warranties.

5. Product Labeling. We will provide a Supplement Facts Panel for all Products in the applicable specification sheet. The data contained in this panel is calculated using estimates from a database and is generated before Product manufacture. The specification sheet will disclose the ingredients and amount of active ingredients. We do not disclose amounts of inactive ingredients, such as sweeteners and flavors, nor do we disclose the source or vendors for either active or inactive ingredients.

You are solely responsible for the content of your Product labels, including, without limitation, any: (a) performance or function claims, (b) disease or drug claims, (c) Product warnings, (d) information or disclaimers required by the Food and Drug Administration (“FDA”). If you receive unlabeled Products, you are solely responsible for the accurate and lawful labeling of such Products. You represent and warrant that (a) the Product labels, packaging, and related marketing material do not infringe on any third party’s intellectual property rights; and (b) you have not relied on advice or information provided by us, other than the details on the applicable specification sheet, to produce content for Product labels, descriptions, or safety or performance claims. You agree to indemnify, hold harmless, and defend us for, from, and against any claims arising out of your breach of any of the foregoing representations or warranties.

6. Warranty. We warrant that all Products produced will conform to the applicable specification sheet. Except as specifically provided in this Agreement we disclaim all other warranties, express or implied.

7. Delivery; Shipment; Risk of Loss.  We will use commercially reasonable efforts to meet delivery dates; however, we assume no liability for our inability to timely deliver and will not be in default for such failure. Title and risk of loss pass to you at the time we transfer possession of the Products to the carrier. We assume no responsibility for damage in transit. Any discrepancies in shipment quantity must be noted on the carrier’s copy of the Bill of Lading, at delivery.

8. Fulfillment.  If requested, we can ship orders direct to your customers, upon terms and conditions that you and we mutually agree to. You assume all responsibility for such items and will indemnify us and hold us harmless from any claims relating to such items.

9. Testing.  Product testing is limited to tests listed on the applicable specification sheet, if any. It is your responsibility to request additional testing, including heavy metal testing as required by California’s Proposition 65, shelf-stability testing to support the affixed “best by” or expiration date.

10. Compliance.  You are solely responsible for your compliance with all applicable federal, state, and local laws and regulations including, without limitation, those administered or enforced by the Food and Drug Administration (“FDA”), the Drug Enforcement Administration (“DEA”), and the Federal Trade Commission (“FTC”), and California’s Safe Drinking Water and Toxic Enforcement Act of 1986, 27 CCR § 25102, et. seq. (“California’s Proposition 65”) (collectively, “Applicable Laws”).  We strongly recommend that you consult with legal counsel.

You must immediately notify us of any actual or potential government action related to a Product, including if you are contacted by the FDA, FTC, or any other federal, state, or local governmental entity about the Product.

11. Termination.  Either of us may terminate this Agreement for any reason by providing thirty (30) days’ written notice to the other Party. Either of us may terminate this Agreement if the other Party is in default and fails to cure such default within ten (10) days of receiving written notice thereof. Upon termination of this Agreement for any reason, you must pay all amounts outstanding. In the event the Client fails to pay all outstanding amounts, ViaCore has the right to pursue legal action for both the unpaid fees and the legal costs associated with collection efforts. Outstanding purchase orders may be filled at our option.

12. Limitation of Liability. To the maximum extent permitted by applicable law, under no circumstances will we be liable to you, whether under contract, negligence, strict liability, or other legal or equitable theory, for any indirect, special, incidental, or consequential damages (including but not limited to lost profits), for any punitive damages, or any amount that equates to, in the aggregate, more than the amount of the purchase order giving rise to the claim; provided, however, that the foregoing limitations shall not apply to damages resulting from our fraud, willful misconduct, or violation of law, whether willful or negligent.

13. General.

a. Entire Agreement; Amendment.  This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements or understandings between the Parties relating to the subject matter hereof. This Agreement may not be amended or modified except by in writing signed by both Parties.


b. Choice of Law; Venue.  This Agreement shall be governed by and construed in accordance with the laws of the State of Oklahoma, without regard to its conflict of laws rules.  If a legal action, suit, or proceeding arises out of or in connection with this Agreement, the Parties agree that may be brought in either the U.S. District Court for the Western District of Oklahoma or a state court located in Kingfisher County, Oklahoma. The Parties irrevocably accept and submit to the exclusive jurisdiction of these courts and waive any objections based on improper venue or forum non conveniens. Each Party is responsible for its own attorney fees and court costs.


c. Waiver of Jury Trial.  Each Party unconditionally and irrevocably waives its right to a jury trial in any action, proceeding, claim, counterclaim, demand, or other matter arising from this Agreement.


d. Severability.  If any provision of this Agreement is determined to be invalid or unenforceable, that provision will be struck and will not affect the validity or enforceability of the remaining provisions.