SUPPLY AGREEMENT (the “Agreement”)
(the
“Agreement”)
THIS AGREEMENT , is entered
into as of this 5 day of May, 2010 (the “Effective Date”), by and between Havaya Corp. , a Delaware
company with its principal place of business at 00 Xxxxxxx Xxxxxxx Xx., Xxxx
Xxxx, 00000, Xxxxxx (the “Buyer”), and Pacific Naturals , a
California company with its principal place of business at 0000 X. Xxxxxxx
Xxxxxx, Xxxxxxx XX, 00000 (the “Supplier”). The Buyer and the
Supplier are each a “Party” and collectively the “Parties”).
WHEREAS, the Buyer intends to
market and sell teeth whitening kits under its own private label and the
Supplier manufacturers teeth whitening kits, which the Supplier has agreed to
manufacture under the Buyer’s private label (the “Private Label Products”);
and
WHEREAS , the Buyer is
interested in purchasing from the Supplier, and the Supplier in interested in
supplying the Buyer with, the Private Label Products, all in accordance with the
terms and conditions of this Agreement.
NOW, THEREFORE , in
consideration of the mutual promises contained herein, the parties agree as
follows:
1.
Priority of
Terms . The Preamble and Exhibits to this Agreement constitute
an integral part thereof. In the event of a conflict, the terms
contained in this Agreement supersede the terms and conditions set forth in any
purchase order or purchase order approval document.
2.
Purchase of
Products . Subject to the terms and conditions of this
Agreement, the Supplier agrees to sell to the Buyer, and the Buyer agrees to
purchase from the Supplier, the Private Label Products listed in Exhibit A at
the prices listed in Exhibit A, for exclusive distribution of the particular
private label and sale to end customers by the Buyer. In addition,
Supplier shall provide the Buyer with the order fulfillment services listed in
Exhibit A at the prices listed in Exhibit A.
3.
Labeling and
Packaging . The Supplier shall label and package the Private Label
Products pursuant to the Buyer’s Instructions.
4.
Regulatory
Approvals . The Supplier shall ensure that all Private Label
Products sold to the Buyer shall be manufactured, labeled, packaged, and shipped
in conformity with all applicable governmental laws and regulations, and the
Supplier shall obtain and maintain throughout the term of this Agreement all
necessary regulatory and compliance certifications and approvals.
5.
Purchase Orders
.. >From time to time as needed and at Buyer’s sole discretion,
Buyer shall provide the Supplier with purchase orders for the Private Label
Products. Upon execution of this Agreement the Buyer shall provide the Supplier
with a purchase order for the purchase of its Private Label
Products.
6.
Exclusivity
.. During the Term of this Agreement, the Supplier shall not, directly
or indirectly, distribute or sell the Private Label Products to any third party
without the advanced written consent of the Buyer.
7.
Payment Terms
.. The Buyer shall make payment on delivery or as mutually agred
between the parties each order within current month plus fifteen (15) days after
delivery, against presentation of an invoice.
8.
Warranties
.. The Supplier warrants that the Private Label Products will be free
of defects in manufacture, materials, and workmanship. The Supplier
further warrants that the Private Label Products do not infringe any patent,
copyright, or trade secret of any third party. Upon the Buyer
notifying the Supplier of a defect in any Private Label Product, the Supplier
will promptly correct such defect or replace the defective Private Label
Product, at no cost to the Buyer.
9.
Term
.. The term of this Agreement shall commence on the Effective Date,
and shall extend for a period of three (3) years, unless otherwise terminated
pursuant to this Section 8. Upon completion of the initial three-year
term and every year thereafter, the term of the Agreement shall be automatically
renewed for an additional one year unless one Party gives the other Party sixty
(60) days advanced written notice of termination; provided, however, that as
long as Buyer purchases twenty thousand (20,000) Private Label Products in the
first year, Supplier may not terminate the Agreement.
10.
Termination
.. Notwithstanding anything to the contrary, a Party may terminate
this Agreement if (a) the other Party materially breaches this Agreement and
continues in such breach for thirty (30) days after the non-breaching Party has
given written notice thereof to the other Party, or, subject to Section 8 above,
for convenience with ninety (90) days prior written notice.
11.
Confidentiality
.. The receiving party shall maintain in confidence and protect the
secrecy of all confidential information of the other Party, and agrees that it
shall not disclose, transfer, use in an unauthorized manner, copy, or allow
access to any such confidential information to any employees, agents, or third
parties, except for those who have a need to know such confidential information
to fulfill the purposes of this Agreement, and who are bound by contractual
obligations of confidentiality and limitation of use sufficient to give effect
to this Section 10. The provisions of this Section 10 shall survive
the expiration or termination of this Agreement.
12.
Indemnification
.. The Supplier shall indemnify the Buyer for any and all costs and
expenses incurred by the Buyer, directly or indirectly, (including without
limitation, attorney’s fees, settlement costs, court expense, and payments made
in connection with any proceeding brought against the Buyer), as a result of (a)
any product liability claim relating to, or any action by any third party in
connection with, the Products, provided that the Private Label Products, or use
thereof, are alleged to be the cause of the injury allegedly suffered; or (b)
any claim that the Private Label Products infringe the intellectual property
rights of a third party.
13.
Limitation of
Liability.
13.1 IN
NO EVENT SHALL THE EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CLAIM OR CLAIMS
ARISING OUT OF THIS AGREEMENT IN AN AMOUNT EXCEEDING THE AGGREGATE PROCEEDS PAID
BY BUYER TO SUPPLIER UNDER THIS AGREEMENT.
13.2 EXCEPT
FOR CLAIMS OF INFRINGEMENT, BREACH OF CONFIDENTIALITY, FRAUD OR WILFULL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INDIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST BUSINESS PROFIT) SUSTAINED
BY SUCH PARTY OR ANY OTHER INDIVIDUAL OR ENTITY FOR ANY MATTER ARISING OUT OF OR
PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY HEREBY
EXPRESSLY ACKNOWLEDGES THAT THE FOREGOING LIMITATION HAS BEEN NEGOTIATED BY THE
PARTIES AND REFLECTS A FAIR ALLOCATION OF RISK.
14.
Governing Law
.. This Agreement shall be governed by and construed under the laws of
the State of California.
15.
Miscellaneous
.. The terms and conditions of this Agreement comprise the entire
understanding of the Parties in connection with the Products, and they shall
prevail over any oral or written understanding, commitment, representation, or
undertaking entered into prior to the signing of this
Agreement. Neither Party may assign any of its respective
rights and obligations under this Agreement, in whole or in part, without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld; provided, however, that the Buyer may in its sole
discretion and without the consent of the Supplier, assign the Buyer’s rights
and obligations under this Agreement to any affiliate of the Buyer. This
Agreement may be executed any number of counterparts, each of which shall be an
original, but such counterparts shall together constitute but one and the same
instrument.
IN WITNESS WHEREOF, the
Parties hereto have executed this Agreement:
|
Pacific
Naturals
|
|||
|
/s/
Xxxxxxx Xxxxxxxx
|
/s/
Xxxxxxxxxxx Xxxxxxxx
|
||
|
Name:
|
Name: Xxxxxxxxxxx
Xxxxxxxx
|
||
|
Title:
|
Title: COO
|
||
|
Date:
|
Date: 5/05/10
|
EXHIBIT
A
PRODUCTS, SERVICES, AND
PRICES
1. The
teeth whitening kits will cost $3.20 per kit and will include:
|
|
·
|
1 mouth for gel to be filled at
home (containing lip guards and breathable
holes);
|
|
|
·
|
1 x 10cc gel tube for 20
applications (the gel tube has a shelf life of 12
months).
|
|
|
·
|
1x travel case (white box) to
store the tray.
|
|
|
·
|
instructions.
|
2. Order
Fulfillment Services:
|
Service
|
Price
|
|
|
Packing
and Handling
|
$*
per shipment
|
|
|
Shipping:
|
At
cost
|
|
|
Storage:
|
$*
per pallet
|
|
|
RMA:
|
$*
per returned product
|
|
|
Packaging
(including putting the syringe, mouth tray and the case into a zip bag and
into the Private Label boxes):
|
$*
per unit
|
|
| Custom Box: |
5,000
- $* per box
20,000 - $* per box
100,000 - $* per box
|
|
|
Zip
Bag:
|
$*
per bag
|
|
|
Merchant
account:
|
$
|
|
|
Call
Center
|
||
|
1-800
number
|
$*
per month
|
|
|
Minutes
|
$*
per minute for 1,000 minutes
$*
per minute for 5,000 minutes
$*
per minute for 10,000 minutes
|
|
|
Incoming
calls
|
$
|
|
|
Greeting
|
$*
per
minute
|
[*
Material marked by an asterisk has been omitted pursuant to a request for
confidential treatment and this material has been filed separately with the
SEC.]
When the
Buyer places orders at a rate of over 500 units per day, the prices will be
reduced.
3. Any
other products and services will be added to this exhibit as needed upon
agreement of the Parties.
