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 100 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:
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Pacific
Naturals
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