Global Products Group Terms and Conditions

The following terms and conditions apply to the manufacture of products by Global Products Group (“GPG”) for you (the “Customer”). By ordering products and services from GPG, you agree to these terms and conditions (hereinafter referred to as the“Agreement”). GPG reserves the right, at any time, to modify or update the terms of this Agreement.

1. RESEARCH AND DEVELOPMENT; PURCHASE ORDERS; SUPPLY OF THE PRODUCTS
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1.1 Feasibility Review

(a) To the extent Customer desires that GPG develop or manufacture a new Product or a new flavor/SKU (each a “New Product”), Customer shall provide any existing formulas/specifications (if any) along with direction with respect to product characteristics (ie., size, flavor, color, ingredients, coating, certifications) along with a request for a price estimate. GPG will conduct a feasibility review to determine whether it can proceed with manufacture of the New Product or whether further review is required.

(b) Initial Product Order

Should GPG determine that it can proceed with production of the New Product, GPG shall, within fifteen (15) days of receipt of the characteristics and specifications, provide in writing a price estimate which shall include the estimated per unit price for the New Products and minimum order quantities (if any) and any other required terms in connection with the potential development and/or manufacture of the New Product (“New Product Estimate”). Unless revoked in writing by GPG, the New Product Estimate shall remain valid for a period of thirty (30) calendar days from issuance and thereafter shall no longer be in effect. Customer may, within such (30) day period, confirm that it wishes to proceed with the development or manufacture of the New Product by submitting (i) a purchase order ( “New Product Purchase Order”) for the New Product in an amount equal to at least the minimum order quantity (if any) at the per unit price set forth in the New Product Estimate; and (ii) an initial non-refundable deposit payment equal to fifty percent (50%) of the New Product Estimate.

(c) Further Review

Should GPG determine that the New Product requires research and development (“R&D”) prior to the New Product Purchase Order, and if Customer desires to proceed with such R&D, Customer shall submit a non-refundable New Product R&D fee of three thousand dollars ($3,000) (the “R&D Fee”). At the conclusion of GPG’s R&D process, GPG will provide to Customer an initial iteration of the New Product (the “First Iteration”) and Customer shall have five (5) business days to accept or reject the First Iteration by providing a detailed written notification for such rejection. If Customer rejects the First Iteration, then GPG shall continue the R&D process, and create a second iteration of the New Product (the “Second Iteration”) based on Customer’s rejection and comments and Customer shall have five (5) business days to accept or reject the Second Iteration by providing a detailed written notification for such rejection. If Customer rejects the Second Iteration, then GPG shall continue the research and development process, and create a third iteration of the New Product (the “Third Iteration”), based on Customer’s rejection and comments, and Customer shall have five (5) business days to accept or reject the Third Iteration by providing a detailed written notification for such rejection. Once the Third Iteration is delivered to Customer, Customer shall have five (5) business days to accept or reject the Third Iteration. If Customer rejects the Third Iteration, then, within five (5) business days, in Customer’s sole discretion, Customer may, by providing written notice: (i) pay GPG an additional amount of one thousand dollars ($1,000) for GPG to create an additional iteration (which shall be added to and considered the R&D Fee) for the New Product (collectively with the First Iteration, the Second Iteration and the Third Iteration, as applicable, the “Iterations”), which payment and process consistent with the Third Iteration may be continued at Customer’s discretion with GPG’s consent, or (ii) Customer may choose to terminate this Agreement.

(d) To the extent New Product is based substantially on the unique pre-existing formulas provided by Customer, such New Product shall be deemed Product IP (as defined in Section 9 hereof). To the extent the New Product is based on a formula provided or developed (including under this Section 1.1) by GPG, such New Product shall be deemed GPG IP (as defined in Section 9 hereof)

1.2 Purchase Orders:  If Customer chooses one of the Iterations presented by GPG or otherwise fails to timely reject any Iteration, the R&D for such New Product shall be deemed complete and such New Product shall be deemed a “Product” pursuant to this Agreement. Within five (5) business days of acceptance or deemed acceptance of an Iteration, GPG shall provide to Customer a revised and final pricing estimate (the “Price Quote”) and delivery date for the manufacture of the Products set forth in the applicable Purchase Order. Within five (5) business days after Customer receives the Price Quote, Customer shall have the option to either accept or reject such Price Quote, in writing. If Customer accepts the Price Quote, Customer shall submit a written order for the Products in an amount equal to at least the minimum order quantity (if any) as well as the per unit price and lead time set forth in the Price Quote (“Purchase Order”).  GPG shall be permitted to reject the Purchase Order for any reason by notifying the Customer of such rejection in writing within five (5) business days of GPG’s receipt of such Purchase Order. To the extent a Purchase Order is accepted in writing by GPG or otherwise not timely rejected as set forth in the preceding sentence, the Purchase Order shall be deemed a “Confirmed Purchase Order.”  It is acknowledged and agreed that a Confirmed Purchase Order may not be cancelled or postponed by Customer without GPG’s sole approval in its sole discretion.

The prices set forth for the Products in the Price Quote and in any Confirmed Purchase Order are exclusive of the costs for (i) any ingredients, packaging, labels, or other components or materials to be provided or supplied by Customer in connection with the manufacture of the Products as set forth on Schedule A or otherwise in the Price Quote or Purchase Order (collectively, the “Customer Materials”); (ii) delivery costs of shipping the Products from the Delivery Location (as defined herein); (iii) any VAT, sales or similar tax; (iv) storage fees (if any) as set forth herein; or (v) any additional development, testing, or other services not expressly set forth herein.

1.3 Each Purchase Order shall be made in writing and sent to Customer’s appointed GPG sales representative via email, or to such other address or EDI system as directed by GPG in the Price Quote or otherwise in writing. Each Purchase Order shall be duly executed by an authorized representative of Customer; and shall specify (i) the name, type and quantity of the Products including the Products’ SKU or other code numbers (as applicable), and (ii) the per unit Product price and total price for the Purchase Order. The pickup location (the “Delivery Location”) will be the GPG warehouse located at 2066 58th Ave. Cir. East, Bradenton, Florida 34203 (the “Warehouse”).  In the event that the terms of any Purchase Order amend or conflict with the terms set forth in this Agreement, the terms of this Agreement shall prevail.

2. MANUFACTURE, QUALITY AND PACKING

2.1 GPG shall manufacture, pack and supply the Products for each applicable Confirmed Purchase Order pursuant to the mutually agreed written Product specification which shall be maintained in GPG’s online portal (the “Specifications”), the Technical cGMP Responsibilities Guide set forth as Schedule A, and the terms of this Agreement.

2.2 Customer acknowledges and agrees that some product waste and/or excess are inherent in the manufacturing process. The final quantity delivered may be plus or minus ten percent (+/-10%) of the Confirmed Purchase Order quantity. Customer agrees to accept and pay for the actual quantity delivered within this range.

2.3 GPG shall not be responsible for supplying any Customer Materials, except as agreed by GPG in writing in its sole discretion. Customer is responsible for delivering all Customer Materials, including waste, if any, to be used for the Products no later than ninety (90) calendar days prior to the Delivery Date set forth in the Confirmed Purchase Order (the “Customer Materials Delivery Deadline”). Customer acknowledges and agrees that its failure to deliver the Customer Materials by the Customer Materials Delivery Deadline may delay the manufacture and delivery of the Products by GPG, which shall have no liability for the failure to deliver the Products by the Delivery Date. Further, in the event that Customer has not delivered the Customer Materials to GPG within thirty (30) calendar days after the Customer Materials Delivery Deadline, GPG shall have the right, but not obligation, to cancel the Confirmed Purchase Order without liability upon written notice to Customer.

2.4 Following delivery of the New Product, Customer shall provide in writing to GPG non-binding quarterly forecasts for the manufacture of Product(s) at least sixty (60) calendar days prior to the commencement of each calendar quarter during the Term.  Should Customer desire that GPG commit to a specific delivery interval (the “Guaranteed Delivery Date”) for future orders, Customer shall provide an annual commitment for the specified quantity of Products (the “Purchase Commitment.”) The Purchase Commitment shall be binding (to enable GPG to secure and fulfill its own annual commitments with its suppliers) and satisfied via quarterly Purchase Orders. Guaranteed Delivery Dates are contingent upon the fulfillment of the Purchase Commitment.

3. SHIPMENT, DELIVERY AND INSPECTION/ACCEPTANCE

3.1 Subject to Customer’s timely delivery of the Customer Materials, GPG shall make reasonable efforts to make the Products available for pickup by Customer or Customer’s logistics provider on the Delivery Date. Upon completion of the manufacture of the Products, GPG shall provide Customer with the date when the Products will be ready for pickup from the Delivery Location (the “Ready to Ship Date”). Customer shall be responsible for arranging for the pickup of the Products between 8:00 am and 3:30 pm Eastern time no more than five (5) calendar days after the Ready to Ship Date at its sole cost and expense. Under no circumstances may Customer pick up the Products prior to settling any and all outstanding payments and balances, in full.

3.2 Delivery of the Products in connection with a Confirmed Purchase Order shall be deemed complete when made available for pickup at the Delivery Location. Customer shall be responsible for all loading and unloading costs, and provide equipment and labor reasonably suited for the delivery of the Products at and to the Delivery Location. GPG shall deliver each order of Products to Customer’s designated carrier FOB the Warehouse with title and risk of loss passing to Customer upon the delivery of the Products at the Delivery Location.

3.3 If Customer fails to arrange for pickup of the Products no more than ten (10) business days of the Ready to Ship Date, GPG shall store the Products for the price of twenty five dollars ($25) per pallet per day stored, plus all related costs and expenses (including insurance) (the “Storage Cost”), provided that if Customer does not arrange for pickup of the Products within thirty (30) calendar days of the Ready to Ship Date, (i) GPG shall have the right to demand Customer’s immediate and full payment of any and all amounts due to GPG for the applicable Products, including any Storage Costs incurred; and (ii) GPG shall have the right to dispose of the Products in any manner in its sole discretion, without any liability to Customer for the same, which such disposal shall not excuse Customer’s full payment of amounts due pursuant to 3.3(i) above which shall remain due and owing by Customer.

3.4 Within ten (10) business days following delivery of the Products, Customer shall inspect and, if applicable, provide written notice to GPG of any Products that do not conform to the Confirmed Purchase Order or the Specifications where such non-conformities originated before such Products left the custody and control of GPG (the “Non-Conforming Products”). If written notice of such Non-Conforming Products is not received by GPG within such ten (10) day period, Customer shall be deemed to have accepted the Products without qualification; provided, however, that if any latent defect (i.e., a defect that could not reasonably have been discovered through reasonable care, reasonable inspection or reasonable due diligence by Customer) is discovered that renders the Products to be Non-Conforming Products, then notice within ten (10) business days of the earlier of such determination, or the date on which Customer should have reasonably been aware of such determination, shall be deemed a timely notification by Customer of the Non-Conforming Products. Notwithstanding the foregoing, Products shall not be deemed Non-Conforming Products, and GPG shall have no liability, to the extent any such non-compliance or defect arises from (i) the Customer Materials; (ii) label or marketing claims; (iii) normal wear and tear of the Products; or (iv) other acts or omission of Customer, its agents or any third parties, including but not limited to the shipping carrier designated by Customer. Provided that Customer has provided timely written notice of Non-Conforming Products, at the sole expense of GPG, Customer shall, upon GPG’s written request, return to GPG all Non-Conforming Products. GPG shall, upon the determination that certain Products are Non-Conforming Products, manufacture and ship conforming Products in accordance with the original Purchase Order, at GPG’s sole expense. Other than as set forth elsewhere in this Agreement, the foregoing shall be Customer’s exclusive remedy and GPG’s sole responsibility for any claim or cause of action relating to noncompliance of the Products with the applicable warranties or specifications contained in this Agreement or the applicable Purchase Order.

4. TERMS OF PAYMENT

4.1 In connection with any Confirmed Purchase Orders, Customer shall pay (a) fifty percent (50%) of the total price estimate for the Purchase Order upon the submission of the Purchase Order as set forth in Section 1.1, and (b) GPG shall invoice the balance of amounts due for such Confirmed Purchase Order on or before the Ready to Ship Date, and Customer shall make such balance payments prior to the shipment of the Products.

4.2 Invoices related to any applicable Storage Costs or other amounts due to GPG not set forth in Section 4.1 shall be delivered to Customer on a monthly basis and Customer agrees to pay such amounts within fifteen (15) calendar days of receipt of the invoice.

4.3 Payments shall be made to the bank account designated on each invoice by GPG. If Customer fails to timely make any payment due to GPG under this Agreement by the due date for payment, then, without limiting GPG’s remedies under this Agreement, Customer shall pay interest on the overdue amount at the rate of two percent (2%) per annum above prime base rate at the time such interest is assessed. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. Customer shall pay the interest together with the overdue amount. In relation to payments disputed in good faith, interest under this Section is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.

4.4 Any outstanding amounts due to GPG by Customer under this Agreement shall, notwithstanding any other terms, become due immediately on the termination of this Agreement. This Section is without prejudice to any right to claim for interest under the law or under this Agreement.

5. INDEMNITY

5.1 GPG shall release, indemnify and hold Customer and its successors, assigns, affiliates, officers, directors and employees (collectively, the “Customer Indemnified Parties”) harmless from and against all liabilities, costs, expenses, damages, and losses suffered or incurred by Customer arising out of or in connection with claims asserted by third parties directly caused by GPG’s breach of any representation or warranty set forth in this Agreement, and GPG shall assume the defense of any such claims, including outside attorney fees incurred by Customer in defense of such claims, in obtaining settlement, or in any alternative dispute resolution proceeding, except if and  to the extent such losses arise from any act or omission which would require Customer to indemnify the GPG Indemnified Parties (as defined below) pursuant to Section 5.2 below, including but not limited to losses resulting from the Customer Materials, the packaging and/or labeling of the Products, the formulas provided by Customer and used to manufacture the Products, and for the breach or nonperformance by Customer of any provision of this Agreement or from the act or omission of Customer or the Customer Indemnified Parties.

5.2 Customer shall release, indemnify and hold GPG and its successors, assigns, affiliates, officers, directors and employees, (collectively the “GPG Indemnified Parties”) harmless from and against all third party claims, damages, liabilities, losses and expenses arising out of, or in connection with: (i) any breach of any warranty by Customer hereunder; (ii) any negligent or intentionally wrongful act of Customer; (iii) any Product labels, claims, advertisements and marketing materials made by Customer about the Products or that may be on those certain Product labels or packaging supplied by Customer; (iv) infringement of any patent, trademark, or other intellectual property right of any third party or misuse of trade secrets or proprietary information of any third party, in any such case resulting from labels, advertising or other materials prepared or specified by Customer or from any specifications or formulas supplied to GPG by Customer; (v) product liability claims based on an actual or alleged design defects in the Products; (vi) any claim that Customer’s products are not compliant with any health or safety regulations, statutes or codes; (vii) any violation of any applicable laws resulting from the use of materials specified by Customer; (viii) the marketing, sale and distribution of the Products including but not limited to claims related to the packaging, packaging components, labels, label content or claims, formulas provided by Customer and used for the Products, or as a result of any negligent act or omission of Customer that affects the Products after delivery to Customer; and (ix) for the breach or nonperformance by Customer of any of its obligations, representations, or warranties set forth in this Agreement, except to the extent the losses resulted from the breach or nonperformance by GPG of any provision of this Agreement or from the grossly negligent act of GPG or the GPG Indemnified Parties. Customer shall assume the defense of any such claim or suit brought against GPG and its successors, assigns, allied, affiliated, parent, and associated companies, and their officers, directors, agents, attorneys, employees and servants. Customer shall also pay all outside attorney fees incurred by GPG in defense of such claims or suit, in obtaining such settlement, or in any alternative dispute resolution proceeding.

5.3 The provisions of this Section 5 shall survive the expiration or early termination of this Agreement in perpetuity.

6. LIMITATION OF LIABILITY

6.1 IN NO EVENT SHALL GPG BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST REVENUE, PROFIT, OPPORTUNITY OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ANY OTHER DAMAGES OF ANY KIND OR NATURE WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT GPG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. In addition, under no circumstances shall GPG be responsible for any liability arising from the incorrect, mistaken, mislabeling or misuse of any of the packaging and labels or other Customer Materials provided by Customer for the Products.

6.2 In no event shall GPG’s total liability arising under or in connection with this Agreement, whether arising in contract, tort (including negligence), or restitution, or for breach of statutory duty or misrepresentation, or otherwise, exceed the price paid to GPG for the particular Products or Order with respect to which such claim relates.

7. ASSIGNMENT

7.1 This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns, heirs and personal representatives. Customer may not assign, transfer, or subcontract its rights or obligations under this Agreement without the prior written consent of GPG.

8. CONFIDENTIALITY

8.1 Each party undertakes that it shall not at any time during this Agreement and after its termination disclose to any person any confidential information concerning the business, affairs, customers, clients, or suppliers of the other party, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities, and customers (“Confidential Information”), except as permitted by clause 8.2.

8.2 Each party may disclose the other party’s Confidential Information:

(a) to its employees, officers, agents, consultants, or subcontractors (“Representatives”) who need to know such information for the purposes of carrying out the party’s obligations under this Agreement provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Section 8 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Section 8; and

(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.3 Each party reserves all rights in its Confidential Information. No rights or obligations in respect of a party’s Confidential Information other than those expressly stated in this Agreement are granted to the other party or to be implied from this Agreement, except as stated herein.

9. INTELLECTUAL PROPERTY

9.1 GPG covenants and agrees that Customer is the owner of (a) all unique recipes and formulas provided by Customer for the Products; and (b) all trademarks and other intellectual property, in each case used in connection with the Products (collectively, the “Product IP”).

9.2 Customer covenants and agrees that GPG is the owner of (a) all recipes and formulas provided by GPG for the Products or otherwise incorporated into the Products including all new recipes and formulas created by GPG during the Term of this Agreement including but not limited to any recipes and formulas developed under a New Product Purchase Order to the extent not substantially based on a pre-existing formula provided by Customer (the “GPG Formulas”); (b) all trade secrets, proprietary processes, methods and know-how used to produce and manufacture the Products; and

(c) any discoveries, improvements, advancements, further developments, or other modifications to the Product IP in the performance of services hereunder (an “Improvement”)(all of the foregoing collectively referred to as “GPG IP”). The parties agree that such Improvement will be owned by GPG.

10. TERM; TERMINATION

10.1 This Agreement shall commence on the Effective Date and continue until terminated as provided in this Section or otherwise in this Agreement (the “Term”).

10.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement on giving not less than ninety (90) calendar days’ prior written notice to the other party.

10.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if: (i) the other party fails to pay any undisputed amount due under this Agreement on the due date for payment and does not cure such failure within fifteen (15) calendar days of written notice from the non-defaulting party; (ii) the other party commits a material breach of any other term of this Agreement, and fails to cure such breach within thirty (30) calendar days after being notified in writing to do so; or (iii) if the other party becomes the subject of a voluntary petition in bankruptcy, any proceeding relating to insolvency, receivership, liquidation or composition for the benefit of creditor and such petition or proceeding is not dismissed within thirty (30) calendar days of filing.

10.4 Upon the expiration or termination of this Agreement; (i) each party shall return to the other party all equipment, materials, and property belonging to the other party that the other party had supplied to it or a member of its group in connection with the supply of the Products under this Agreement; (ii) Customer shall (a) within fifteen (15) calendar days, pay all amounts due to GPG under this Agreement; and (b) within thirty (30) calendar days of invoice, reimburse GPG for all amounts for any unique ingredients, materials, material components, packaging, or packaging components purchased or created by GPG for the manufacture of the Products based on forecasts provided by Customer which GPG is unable to reasonably repurpose for other customers, provided that GPG makes such materials available for pickup by Customer.

10.5 Termination of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination.

11. FORCE MAJEURE

11.1 “Force Majeure Event” means any circumstance not within a party’s reasonable control including, without limitation (i) acts of God, flood, drought, earthquake, or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination; (v) any law or any action taken by a government or public authority, including, without limitation, imposing an export or import restriction, quota or prohibition, or failing to grant a necessary license or consent; or (vi) collapse of buildings, fire, explosion, or other serious accident.

11.2 Provided it has otherwise complied with this Agreement, if a party is prevented, hindered, or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event (the “Affected Party”), the Affected Party shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations, provided such Force Majeure Event does not prevent the Affected Party from fulfilling its obligations under this Agreement for more than ninety (90) consecutive days. The time for performance of such obligations shall be extended accordingly.

11.3 The Affected Party shall: (i) as soon as reasonably practicable after the start of the Force Majeure Event notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and (ii) use all reasonable efforts to mitigate the effect of the Force Majeure Event on the performance of its obligations.

12. RECALL

12.1 If either party voluntarily elects, or is requested or ordered by a court or government or regulatory agency, or is subject to action by a government or regulatory agency, to withdraw, discontinue, remove, seize, detain, or recall (collectively, a “Recall”) any Products, packaging, or labeling, or if any other products manufactured or packaged by GPG are subject to a Recall, due to any such Product, packaging, labeling or product being adulterated, misbranded, defective, harmful, or misleading in any way, such party immediately shall notify the other party by telephone and in writing. Notwithstanding the foregoing, GPG shall not have the right to initiate any Recall without Customer’s prior written consent. With respect to any Recall or potential Recall, each party agrees to provide to the other: (i) prompt and timely communication regarding any condition or event that does or may result in a Recall; and (ii) its reasonable cooperation. GPG agrees to give advance notice of any Recall to Customer, to cooperate with Customer in any investigation to determine the cause and extent of the Recall, to work with Customer to coordinate such Recall and, consistent with GPG’s responsibilities, to use commercially reasonable efforts to minimize the impact of any Recall on Customer and its customers.

12.2 GPG shall bear the cost of any Recall that arises as a result of any Non-Conforming Product solely due to GPG and, subject to the limitations set forth herein, shall indemnify Customer from and against any and all claims, demands, liabilities, costs, and expenses, including reasonable outside attorneys’ fees, directly resulting from or on account thereof. Except as set forth in the foregoing sentence, Customer shall bear the cost of any Recall that arises from the marketing, sale and distribution of the Products including but not limited to claims related to the packaging, packaging components, label content or claims, formulas used for the Products, and Specifications or as a result of any negligent act or omission of Customer that affects the Products after delivery to Customer, and, subject to the limitations set forth herein, shall indemnify GPG from and against any and all claims, demands, liabilities, costs, and expenses, including reasonable outside attorneys’ fees, directly resulting from or on account thereof. The parties will work together in good faith to determine the cause of any problems leading to a Recall. If the cause is attributable in part to each party, the parties shall bear the cost of any such Recall proportionally.

13. SEVERANCE

13.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal, and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this Section shall not affect the validity and enforceability of the rest of this Agreement.

13.2 If any provision or part-provision of this Agreement is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid, and enforceable and, to the greatest extent possible, achieves the intended commercial result of the original provision.

14. FURTHER ASSURANCE
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At its own expense, each party shall, and shall use all reasonable endeavors to procure that any necessary third party shall promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.

15. AMENDMENT
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No amendment or variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorized representatives).

16. WAIVER
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A waiver of any right or remedy under this Agreement or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy.

17. NOTICES

17.1 Any notice to be given under this Agreement shall be in writing and given to a party at such party’s address set forth below, or at such other address as a party hereafter may specify in a notice given in the manner required under this Section. Any notice hereunder shall be given only by and shall be deemed to have been received upon: (i) registered or certified mail, return receipt requested, on the date on which such notice or request is received as indicted in such return receipt; or (ii) electronic transmission upon actual electronic communication from the recipient acknowledging receipt of such electronic transmission.

18. ENTIRE AGREEMENT

18.1 This Agreement and any Confirmed Purchase Orders constitutes the entire agreement between the parties relating to its subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.

18.2 Each party acknowledges that in entering into this Agreement, it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, or warranty by the other party (whether made innocently or negligently) that is not set out in this Agreement.

18.3 Each party acknowledges that in entering into this Agreement, it does not rely on, and shall have no remedies in respect of any terms and conditions printed on the reverse of any Purchase Order or attached to any invoice.
18.4 Each party agrees that it shall have no claim against the other party for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

19. REPRESENTATIONS AND WARRANTIES

19.1 Each party represents and warrants that:

(a) it: (i) is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it is incorporated; and (ii) has full power and authority and the legal right to own and operate its property and assets, and to carry on its business as it is now being conducted;

(b) it: (i) has the power, authority and legal right to enter into this Agreement and to perform its obligations hereunder; (ii) has taken all necessary actions on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and (iii) this Agreement has been duly executed and delivered on behalf of each party, and constitutes a legal, valid, binding obligation, enforceable against such party in accordance with its terms;

(c) its execution and performance of this Agreement does not require any third-party consents or governmental approvals, filings, registrations, or permits that have not already been obtained, and further that its execution and performance of this Agreement does not and will not violate any contract or other arrangement between it and any third party, or any Applicable Laws;

(d) it will provide the other party with prompt notice of any notification from the Food and Drug Administration (“FDA”) or any other regulatory agency related to the Products;

(e) it will maintain appropriate amounts of product liability insurance and other necessary and/or applicable insurance policies as are reasonable, required, or otherwise in line with industry standards, or as otherwise may be requested by the other party; and

(f) it shall be responsible for those certain responsibilities and obligations assigned to it pursuant to that certain Technical cGMP Responsibilities Guide set forth on Schedule A of this Agreement.

19.2 GPG represents and warrants that:

(a) It shall be in compliance withal applicable laws with respect to the ownership and operation of the Facility and with respect to the processing, handling, manufacturing, testing, packaging, transportation and storage of the Products, in accordance with this Agreement; and

(b) at the time of delivery, all Products will be manufactured in accordance with and shall comply with all applicable laws, industry standards, this Agreement, and the applicable Confirmed Purchase Order, provided that GPG makes no representations or warranties with respect to the Customer Materials or any labeling or marketing claims made by Customer. If any failure to comply with the foregoing warranty is reported by Customer in writing prior to or within ten (10) days as Non-Conforming Product(s) following delivery of the Product(s), GPG will, at GPG’s option: (i) rework the Non-Confirming Product(s) free of charge to the Customer; or (ii) provide replacement Product(s) free of charge to the Customer; (the “GPG Warranty”). THE GPG WARRANTY IS EXPRESSLY LIMITED TO THE REMEDIES SET FORTH HEREIN. EXCEPT AS PROVIDED IN THIS AGREEMENT, GPG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

19.3 Customer represents and warrants that:

(a) any and all of the formulas, packaging, labels, components, and other Customer Materials provided by Customer to GPG: (i) are compliant with all applicable laws; (ii) are fit for their intended purpose; and (iii) do not and will not knowingly infringe or misappropriate any third party’s patent, trade secret, or other intellectual property rights;

(b) in providing any and all Product Specifications, ingredients, labels, packaging, and materials of any kind (including but not limited to the Customer Materials), Customer has the requisite authority to stipulate and provide such specifications, ingredients, labels, and packaging and that such materials, either individually or in combination, do not infringe any third-party rights of ownership or use, including, but not limited to, rights under U.S. or any other jurisdictions’ patent, trademark, or trade secret laws; and

(c) no governmental authority has alleged in writing or orally that any Customer Materials, Product, Product component, formula or other product designed, manufactured, sold, licensed, or delivered by Customer or any of its subsidiaries is defective or unsafe or fails to meet any product warranty or any standards promulgated by such governmental authority.

20. COUNTERPARTS
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This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed an original, but all the counterparts shall together constitute one contract.

21. GOVERNING LAW; JURISDICTION

21.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Florida.

21.2 Each party irrevocably agrees that the courts of Manatee County, Florida shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by certified or registered mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or any proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.

22. WAIVER OF JURY TRIAL
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EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

23. RELATIONSHIP OF THE PARTIES

‍The relationship of Customer and GPG shall be that of independent contractors and no agency, partnership, joint venture or employee-employer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party.