PRIVATE LABEL MANUFACTURING AGREEMENT
THIS AGREEMENT made this 14th da of September, 1999, by and between Whole
Living, Inc. d/b/a Brain Garden, a corporation organized under the laws of the
State of Nevada, having officers at 0000 X. Xxxx Xxxxx Xxxxxx, Xxxxx, Xxxx
00000 (hereinafter called "Whole Living") and Future 500 Corporation, a Utah
corporation, by and trough its subsidiary FoodSolutions, Inc. a Utah
corporation, having offices at 0000 X. Xxxxxxxx Xxxx Xxxxx, Xxxx, Xxxx 00000
(hereinafter called "FoodSolutions"),
WITNESSETH:
WHEREAS, FoodSolutions is a food processor and has been processing and
supplying certain food products for Whole Living; and
WHEREAS, FoodSolutions and Whole Living desire to enter into an agreement
whereby FoodSolutions will continue to process and package certain food
products for Whole Living under Whole Living's private label;
NOW, THEREFORE, for and in consideration of the mutual covenants
contained herein and other valuable consideration, the parties hereto agree as
follows:
1. General. FoodSolutions agrees to manufacture and package on behalf
of Whole Living and Whole Living agrees to purchase the Products described in
Schedule A hereto, which will be updated from time to time, as mutually agreed
upon.
2. Consideration. In consideration for the Product produced by
FoodSolutions for Whole Living, Whole Living shall pay FoodSolutions in accord
with the terms and conditions set forth in Whole Living's Purchase Order at
the prices agreed to between the parties by a separate agreement, except that
if such terms and conditions are different from those in this Agreement, the
terms and conditions of this Agreement shall apply.
a. Time of delivery is of the essence and shall be governed by the
purchase orders of Whole Living. FoodSolutions agrees to pay a penalty to
Whole Living in the amount of 2% of each delivery of Product that is more than
7 days ahead or behind the agreed-upon delivery time for such delivery,
subject to the lead times set forth in Schedule A.
3. Purchasing, Shipment & Delivery. Whole Living will issue its
purchase order to FoodSolutions for the Products ordered and FoodSolutions
shall then produce the Products ordered and deliver the Products ordered on
Whole Living's purchase order within the lead times for production of each of
the Products listed on Schedule A.
4. Payment. Payment for the Products shall be made by Whole Living to
FoodSolutions as follows: 25% shall be paid on placement of the purchase
order, 50% shall be paid on delivery of the Products and the final 25% shall
be net 30 days after receipt of shipment of the Product.
5. Specifications.
a. Unless otherwise agreed to in writing, the Specifications for
Products listed on Schedule A hereto, shall be in accord with Whole Living's
own formulas for the manufacture of the Products, which formulas have been
supplied to FoodSolutions and may be changed by agreement from time to time as
necessary.
b. Whole Living shall have the right to inspect and reject for
cause, consistent with good faith standards, Product and packaging supplies.
c. Specifications, quantities product type, and product mix for the
manufacture of certain of Whole Living's Products are proprietary and
confidential information, belonging solely to Whole Living, including the
Product formulas and concepts and trademarks and nontrademarked product names,
and FoodSolutions agrees not to use such formulas, concepts and trademarks and
nontrademarked Product names and trade secrets relating thereto for any
purpose other than the fulfillment of this Agreement and any extensions, and
will not sell product with the same ingredients and a similar appearance to
any other person during or after the term of this Agreement. FoodSolutions
agrees to keep such information confidential, disclosing it only to those who
have a need to know, under a confidential disclosure agreement suitable to
Whole Living. FoodSolutions agrees not to use the same ingredients and a
similar appearance in any commercial activity, excepting the manufacture of
Products for Whole Living. FoodSolutions agrees that at the termination or
expiration of this Agreement, all copies of all Specifications shall be made
by FoodSolutions or any affiliate, except for one file copy. FoodSolutions
shall have the right to not manufacture a product requested by Whole Living if
a proposed product conflicts with a product being manufactured for another
customer.
d. Either party may disclose or reveal to the other party
proprietary and confidential information, including, but not limited to the
Specifications, cost and expense data, manufacturing techniques, standard
samples, specifications and other information relevant to the production of
Whole Living Products. Any such disclosures shall be subject to the following
terms and conditions:
1) Neither party shall disclose the disclosed information, nor
shall access thereto be allowed, to any persons except such employees as are
directly involved with production of the Products. All employees so involved
shall preserve the confidential nature of the information disclosed.
2) Each party shall not do or omit to do anything with regard to the
disclosed information whereby it may become known to any unauthorized party;
at all times proper and appropriate steps shall be taken and maintained by
each party to protect the confidentiality of such disclosed information.
3) Nothing shall be considered to be confidential in the disclosed
information which (a) is in the public domain prior to disclosure; (b) is
lawfully in one party's possession prior to its receipt from the other; (c)
becomes part of the public domain through no fault of the receiving party; or
(d) is required to be disclosed by a court or governmental authority, provided
that the party requested to disclose the disclosed and confidential
information gives the other party advance written notice of the intended
disclosure and uses its best efforts to obtain confidential treatment by the
authority to whom the disclosure is made.
4) All documents containing the disclosed and confidential
information required to be maintained in confidence under this Agreement,
shall remain the property of the disclosing party, and all such documents and
copies thereof shall be returned to the disclosing party upon the request of
the disclosing party, except, that the receiving party may keep one copy of
any such document in the files of its legal department for record purposes
only. Documents prepared by the receiving party using such disclosed and
confidential information need not be returned, but shall, upon the disclosing
party's request, be destroyed, except for one record copy for the legal
department's file.
5) With respect to manufacturing techniques, it is expressly
acknowledged and understood that FoodSolutions has designed, developed, and
implemented the proprietary processes or the production of Whole Living
Products. No disclosure of such information shall be made by Whole Living to
another party regardless of purpose without prior written authorization of
FoodSolutions.
6. Quality Control. Quality control procedures shall be taken by
FoodSolutions as follows:
a. FoodSolutions shall have personnel who shall monitor the
manufacture, processing, and packaging of the Products under this Agreement
for quality, compliance with the Specifications, sanitation and product
safety, to the satisfaction of Whole Living.
b. FoodSolutions shall set aside 2 samples from each product run of
4,000 pieces or more, one of which shall be retained by FoodSolutions for
future testing for a period of 2 years from the date of production and the
other sample shall be submitted to an independent laboratory of testing and
analysis for toxic or harmful organisms, bacteria, toxicity, mold, botulism
and any other content harmful to humans and a report will be provided to Whole
Living on a monthly basis commencing within 30 days after the date of this
Agreement, but if any harmful content is found, Whole Living shall be notified
immediately.
c. Whole Living shall have the right at any time, without notice,
to inspect the production facilities of FoodSolutions and all of its outside
suppliers on reasonable notice, a reasonable number of visits, during normal
business hours.
7. Insurance, Risk of Loss.
a. FoodSolutions hereby warrants to Whole Living that it shall
neither encumber, cause to be encumbered, or allow any third party in any way
encumber Products or packaging supplies belonging to Whole Living.
b. Title to the Product shall pass to Whole Living when the Product
is delivered to Whole Living. However, should Whole Living's representative
reject any of the Product for cause, title will revert to FoodSolutions.
"Cause" for purposes of this Agreement shall mean a material deviation from
the specifications or sample used at the time of the initial order, including
torn bags, visible damage.
c. Risk of loss to Product in all cases shall remain with
FoodSolutions until FoodSolutions delivers the Product to Whole Living and the
product is accepted by Whole Living in the event of a dockside pickup or
delivery to Whole Living for pickup by its own trucks. Following either of
these occurrences, excluding FoodSolutions' negligent or wrongful acts or
omissions and manufacturing defects, FoodSolutions shall be relieved of risk
of loss.
d. During the time in which risk of loss remains with
FoodSolutions, FoodSolutions shall procure an insurance policy equal to the
value of the shipment. Such insurance coverage shall include any loss to
Whole Living's Product which is shipped on FoodSolutions' own carriers.
Further, FoodSolutions shall evidence to Whole Living that FoodSolutions has
$1 million in product liability insurance to protect Whole Living's interests
as they may appear under this Agreement.
8. Government Intervention. In the event of a Product Recall of any
Whole Living Product manufactured hereunder, FoodSolutions agrees to provide
Whole Living all requested production information which can reasonable be made
available relating to such Products.
9. Indemnification-FoodSolutions.
a. FoodSolutions agrees to hold Whole Living harmless and indemnify
it against liability and damages, including all costs any attorney's fees,
resulting from damage caused by the Product package by FoodSolutions under
this Agreement. FoodSolutions' hold harmless and indemnification obligations
shall be limited to those claims which pertain to manufacturing defects and to
Product which is contaminated at the time of delivery to Whole Living.
FoodSolutions agrees to notify Whole Living in the event a product should be
or may be required to be recalled, and shall assist and cooperate with Whole
Living in carrying out any recall of Product for which FoodSolutions may have
some responsibility.
b. FoodSolutions' hold harmless and indemnification obligations
under
Section 7(a) above shall be conditioned upon Whole Living's timely
notification to FoodSolutions of any third party claim or action against Whole
Living which might result liability for which FoodSolutions has hereto agreed
to hold harmless and indemnify.
10. Indemnification-Whole Living.
a. Whole Living agrees to hold FoodSolutions harmless and indemnify
it against liability and damages, including all costs and attorney's fees,
resulting from damage caused by Whole Living's Specifications for products or
for selling the Products for use beyond their shelf life.
b. Whole Living's hold harmless and indemnification obligations
under this Section 10 shall be conditioned upon FoodSolutions' timely
notification to Whole Living of any third party claim or action against
FoodSolutions which might result in such liability for which Whole Living has
hereto agreed to hold harmless and indemnify.
11. Warranty-FoodSolutions. FoodSolutions warrants and represents that
it has received or is in the process of obtaining all required approvals for
manufacture and processing of the Product, including the National Institute
for Banking and that it is in substantial compliance with and is actively in
process of obtaining approvals under and will have passed and will continue to
be able to pass the AIB inspections and any other similar government and
industry required inspections. FoodSolutions warrants and represents that all
of the Product will be human food grade quality, and shall be free from any
and all toxic chemicals, pesticides and herbicides, as required to meet
applicable FDA standards. FoodSolutions shall purchase organic produce as
ingredients whenever reasonable possible when pricing of such products meets
commercial pricing. All foreign products shall also comply with all applicable
standards under this Agreement. FoodSolutions warrants that no Products sold
to Whole Living under this Agreement will be adulterated or misbranded within
the meaning of the Federal Food, Drug or Cosmetic Act or any amendments
thereto or otherwise in violation of any statute, law, ordinance or regulation
of the United States Department of Agriculture or any state or local governing
body. However, FoodSolutions does not warrant against Product becoming
adulterated or misbranded within the meaning of said Act after shipment by
reason of causes beyond FoodSolutions' control. Further, FoodSolutions'
liability for misbranding under Whole Living's labels shall be limited to that
resulting from the failure of Product to conform to labels designed for use by
Whole Living. Each shipment 4000 pounds or more of all finished Products shall
be preceded by, accompanied by, or followed within two weeks by a Certificate
of Manufacture, Certificate of Origin and Certificates of Analysis on all
finished Product and where reasonably possible, on a ingredients.
12. Shelf Life. The parties will cooperate with each other regarding
development of an analysis of shelf life for the product with a goal of having
the product have a shelf life of 9 months after delivery to Whole Living. The
Products should have a shelf life of not less that 6 months.
13. Labeling and Printing Plates. FoodSolutions agrees to assist Whole
Living to comply with all applicable labeling requirements under federal and
state law. FoodSolutions agrees that upon termination of this Agreement, that
it will deliver to Whole Living all Products printing plates and labels in its
possession, upon payment by Whole Living for all Products plates, which is
attached hereto as Schedule C.
14. Governing Law. This Agreement shall be governed and construed in
accord with the laws of the State of Utah.
15. Term. The term of this Agreement shall be one (1) year from the
date written above. This Agreement shall be automatically renewed for
additional one year terms unless written notice of nonrenewal is given by one
party to the other thirty (30) days before the expiration of the Agreement,
however, it may be terminated immediately for cause in the event of a material
breach of this Agreement, and it may be terminated on 30 days notice upon
default which has not been cured within such 30 day notice period. Cause ( a
material breach) shall include the shipment of Product, the majority of which
does not meet the Specifications which have been established and agreed to.
Upon termination of this Agreement other that for cause brought about by
FoodSolutions, which has not been cured within 30 days, Whole Living shall, at
the option of FoodSolutions, purchase any unused inventory of Products meeting
the standardsof quality established by this Agreement for such Products, and
shall also purchase any labels, packaging and the printing plates then
currently being used, failing which, within a reasonable time, notwithstanding
any other provisions of this Agreement, FoodSolutions shall have the right to
dispose of such inventory, packaging and plates in any commercially reasonable
manner.
16. Force Majeure. Should FoodSolutions be prevented or delayed in the
performance of obligations pursuant to this Agreement by reason of acts of
God, strikes, lockouts, picketing, wars, explosions, or any other cause,
whether or not of the kind enumerated herein, and not with the reasonable
control of the party affected, such party's duty of performance shall be
delayed until such events subside, or the parties otherwise modify such duty.
In the event such Force Majeure continues, the parties shall endeavor to
perform their obligations to the best of their ability.
17. Guarantee. Furture 500 Corporation has assigned all of its rights
to enter into this Agreement to its wholly-owned subidiary FoodSolutions and
guarantees to Whole Living that all of the obligations of FoodSolutions under
this Agreement will be fulfilled.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound,
have executed this Agreement on the date firse above written.
Whole Living, Inc. FoodSolutions, Inc.
By /s/ Xxxxx Xxxxxx III By /s/ Xxxxx X. Card
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Name: Xxxxx Xxxxxx III Name: Xxxxx X. Card
Title: C.O.O.
Future 500 Corporation
By /s/ Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: President and CEO
