Terms & Conditions

PRIVATE LABEL AND CUSTOM MANUFACTURING

TERMS & CONDITIONS

These Terms and Conditions (“T&C”) are made and agreed by and between TRILOGY LABORATORIES, LLC, a Florida limited liability company (“TRILOGY”) and the customer (“CUSTOMER”). Terms become active upon placement of deposit or payment for any order.

WHEREAS, TRILOGY supplies private label and custom manufactures skin and body care products such as cleansers, lotions, serums and related products for its CUSTOMERS; and

WHEREAS, CUSTOMER wishes to engage TRILOGY to private label or custom manufacture the Products (defined below).

NOW, THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TRILOGY and CUSTOMER agree as follows:

1.1 BACKGROUND.

1.1 TRILOGY. TRILOGY develops and owns formulas (“TRILOGY Formulas”) and the manufacturing process (“Process”) for the manufacture of the private label or custom manufactured products now or hereafter agreed to by both parties (“Products”) manufactured by TRILOGY for sale to CUSTOMER at the request of CUSTOMER.

1.2 CUSTOMER. CUSTOMER intends to or currently purchases Products from TRILOGY and sells the Products and other goods at retail and/or wholesale in the United States and other markets under the CUSTOMER’s trade name(s).

1.3 CUSTOMER Formulas. If requested by CUSTOMER and agreed to by TRILOGY, the Products may be manufactured using CUSTOMER’s formulas (“CUSTOMER Formulas”). In such event, CUSTOMER represents and warrants to TRILOGY: (i) that CUSTOMER is the owner of the CUSTOMER Formulas and has the right to authorize TRILOGY to use the CUSTOMER Formulas in manufacturing the Products and engaging in the other activities agreed to under this Agreement; (ii) that the CUSTOMER Formulas comply with applicable United States federal laws and regulations (including Food and Drug Administration regulations); (iii) that TRILOGY’s sole responsibility with respect to any CUSTOMER Formulas is to manufacture Products in accordance with such CUSTOMER Formulas. If CUSTOMER Formula is reformulated by TRILOGY, said formula will become property of TRILOGY Laboratories.

1.4 Purposes of Agreement. The purposes of these Terms & Conditions are (i) to detail the rights, duties, and obligations of the parties with respect to the manufacture, purchase, and supply of the Products, and (ii) to establish the ownership rights and confidentiality obligations with respect to the Products, the Process, and the TRILOGY Formulas.

1.5 Relationship Between Parties. The relationship between the parties shall be that of CUSTOMER and seller; neither party shall be considered the agent, representative, partner or joint venturer of the other party and neither party shall have the right to bind the other contractually in any manner.

1.6 CUSTOMER’s Determination of Regulation of Products. CUSTOMER is aware that certain Products may be regulated by the United States Food and Drug Administration (“FDA”) as a drug, including Over-The-Counter drug products and veterinary drug products (“Regulated Drug Products”) or may be cosmetics or other products which are not Regulated Drug Products but are subject to other less stringent FDA regulation (“Non-Drug Products”). TRILOGY does not at present manufacture “Regulated Drug Products”. CUSTOMER agrees that TRILOGY does not have any control over the CUSTOMER’s labeling, label claims, retail distribution, or intended use by retail customers of any of the Products. CUSTOMER acknowledges that TRILOGY does not claim any special expertise and/or professional experience in the determination as to whether or not any Products manufactured for CUSTOMER and labeled, distributed and sold by CUSTOMER will be considered by CUSTOMER or the FDA as Regulated Drug Products or Non-Drug Products. CUSTOMER further agrees that with respect to each of the Products, CUSTOMER is solely responsible for: (i) labeling and all label claims (except for the specific ingredient names set forth on the ingredient list provided by TRILOGY for the Products); (ii) marketing, distributing and selling the Products to other wholesale and retail companies and all claims or representations made to any such parties; (iii) all marketing materials, representations, and advertising associated with the Products; (iv) compliance with all federal, state and other governmental laws and regulations in connection with the activities described in sub-parts (i), (ii), and (iii); (v) implementing and managing all CUSTOMER complaint and problem reporting and resolution processes associated with the Products in accordance with the appropriate FDA or other governmental regulations; (vi) notifying TRILOGY in the event the FDA claims or determines that any Products are Regulated Drug Products or Non-Drug Products and/or any regulatory action is threatened or asserted with respect to any of the Products; and (vii) CUSTOMER waives and releases TRILOGY from all claims, demands and liabilities arising from or related to CUSTOMER’s determination and designation of Products as either Regulated Drug Products or Non-Drug Products and CUSTOMER’s responsibilities under subparts (i) through (v) above.

2.0 PRICE AND TERMS FOR SUPPLY AND MANUFACTURE OF PRODUCTS.

2.1 Price and Terms.

2.1.1 General. TRILOGY, upon request of CUSTOMER, shall provide CUSTOMER with a written price (or email) quote for a designated production run of Products in the amounts requested in writing (or email) in accordance with these Terms & Conditions. If CUSTOMER desires to order Products, CUSTOMER shall initiate the order by submitting a written purchase order (or email) including all pertinent details of the order (quantity, item description, requested CUSTOMER Formulas, if any, price, ship-to location, purchase order number, requested ship date, signed by an authorized agent of the CUSTOMER.

2.1.2 Terms of Agreement Prevail. TRILOGY and CUSTOMER intend for the express terms and conditions contained in this Agreement to exclusively govern and control each of the parties’ respective rights and obligations regarding the manufacture, purchase and sale of the Products, and the parties’ agreement is expressly limited to such terms and conditions. It is expressly agreed that if any terms and conditions contained in a purchase order, order acknowledgment or confirmation or any other document or instrument of CUSTOMER or TRILOGY conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will control and prevail and such contrary terms will have no force or effect.

2.1.3    Payment: CUSTOMER shall pay TRILOGY the Purchase Price and the other amounts specified below in U.S. Dollars by way of ACH, Visa, MasterCard, American Express or other method acceptable to TRILOGY at its sole discretion as follows:

• 50% of the sum of the Purchase Price (based upon the entire quantity specified in the Order) immediately upon TRILOGY’s acceptance of the Order, as and by way of a non-refundable deposit (the “Deposit”); and,
• the balance thereof upon TRILOGY’s notifying CUSTOMER that Product is ready to be shipped (based upon the quantity ready for shipping).

Other payment terms may be negotiated by CUSTOMER and TRILOGY at TRILOGY’s sole discretion.

2.1.3.2 Shipping. Unless otherwise specified, TRILOGY will arrange shipping via a TRILOGY preferred carrier (such as UPS Ground or FEDEX Ground) depending on current contracts in place by TRILOGY. Shipping charges will be paid by CUSTOMER. All quantities large enough to warrant freight shipping will be arranged by CUSTOMER. CUSTOMER acknowledges and agrees to be responsible and pay for all shipping of Products and components thereof associated with a production run.

2.1.3.3 Art and Packaging. CUSTOMER shall pay and be responsible for all art charges, die plates, and other costs related to the production of labels or packaging for the Products, if contracted through TRILOGY. CUSTOMER can contract outside/third parties to design and/or purchase labels, packaging, inserts or any other component related to the product package. If packaging is purchased or designed by an outside/third party, TRILOGY’s responsibility will be solely to provide product ingredient list (INCI). TRILOGY will not be liable for any issues regarding package design or function.

2.1.4 Other Charges. If this Agreement is terminated by CUSTOMER or by TRILOGY for any reason, CUSTOMER shall pay and be responsible for all remaining manufactured Products, ingredients, components, fragrances, labels and packaging related specifically to CUSTOMER Products which are not used by TRILOGY in the production of other products.

2.1.5 Interest. Interest may be charged on all amounts owed, which are not received by TRILOGY when due until such amounts are paid at the rate equal to the lesser of 18% per annum (calculated and payable daily) and the maximum permitted by applicable law.

2.1.6 Discontinued Lines. If any of the Products are discontinued or changed at CUSTOMER’s request, then CUSTOMER shall pay for or be responsible for TRILOGY’s costs of all custom packaging materials, labels, ingredients, fragrances, components, and finished and unfinished Products.

2.1.7 Expired Ingredients and Raw Fragrances. CUSTOMER shall pay for or be responsible for TRILOGY’s costs of all expired unused ingredients and fragrances purchased by TRILOGY to manufacture the custom Products.

2.2 Order Processing and Shipment to CUSTOMER.

TRILOGY shall fill the orders of CUSTOMER which will factor a reasonable allowance for lead time. CUSTOMER agrees to submit orders as far as possible in advance of the required deliveries. Lead times may vary depending on work load and will be communicated to CUSTOMER.

2.2.1 Orders. Once an Order is accepted by TRILOGY it is final and binding and the CUSTOMER shall not be able to make any changes thereto without TRILOGY’s written agreement, which shall be at its sole discretion. CUSTOMER shall be responsible for, and shall forthwith reimburse TRILOGY for, all costs incurred by TRILOGY as a result of, or in connection with any Order changes requested by CUSTOMER.

2.2.2 Delivery and Shipping. TRILOGY will use commercially reasonable efforts to deliver the Product within 4 to 6 weeks of confirmation of receipt of the Deposit, or such later date as may be specified in the Order, subject to any delays resulting from or in connection with:

• unavailability of any raw materials or packaging, or any delays in the delivery thereof to TRILOGY;
• non-delivery or delayed delivery to TRILOGY of any CUSTOMER Supplies (defined below);
• any CUSTOMER requests for Order changes;
• any other event or matter reasonably beyond TRILOGY’s control which affects TRILOGY’s ability to complete the Order in a timely manner.

All deliveries shall be made and delivered to CUSTOMER’s point of shipment. Title to and risk of loss shall pass to CUSTOMER on TRILOGY’s placing the Products in the custody of a carrier for shipment to CUSTOMER or other location specified by CUSTOMER.

2.2.3 Quantity Delivered to CUSTOMER. All custom manufacturing orders shall ship within 10% over or under the requested quantity on each purchase order. If a production run yields within 10% less than the ordered quantity, the purchase order will be considered fulfilled and closed. In the event that the production yields up to 10% over the ordered quantity, additional quantity will ship to CUSTOMER and CUSTOMER will accept and be responsible for payment of quantity shipped.

2.3 Manufacture.

Subject to the terms and conditions of this Agreement, TRILOGY agrees to manufacture Products for CUSTOMER according to the Process and TRILOGY Formulas or, if agreed to by TRILOGY, the CUSTOMER Formulas.

2.3.1 Product Specifications.

TRILOGY shall deliver Products that upon Delivery (as defined above) shall meet the following criteria, subject to any Product Variations that may occur:

• TRILOGY supplied Products shall comply in all material respects to the Product specifications set out in the Order, subject to any Product Variations that may occur;
• Products shall meet or exceed the applicable standards imposed by the U.S. Food and Drug Administration in force at the time of delivery, including the Federal Food, Drug and Cosmetics Act of 1997, and the regulations thereunder, and
• TRILOGY supplied products shall be free from material defects, subject to any Product Variations that may occur, provided, however, that the foregoing shall not extend to, and TRILOGY shall have no responsibility or liability whatsoever in respect for: (i) Products incorporating, or packaged in CUSTOMER packaging or (ii) any change to the Products which may occur following Delivery.

2.3.2 Product Variations.

CUSTOMER acknowledges, agrees that:

• In the event that TRILOGY determines that any ingredients, materials or packaging specified in, or required to complete, an Order are not readily available at commercially reasonable costs, TRILOGY shall be entitled to use ingredients, materials or packaging, as the case may be which have reasonably similar properties and/or appearance in substitution thereof. TRILOGY shall use commercially reasonable efforts to notify the CUSTOMER of such substitutions, but its failure to do so shall not affect its right to make such substitutions.
• Due to variations when combining natural and other ingredients and with regard to natural ingredient manufacturing and processing, there shall be unavoidable variations in the Product’s color, scent and viscosity from batch to batch, as the raw ingredients may vary from lot-to-lot.
• Products packaged in containers that (i) are not of the type recommended by TRILOGY for such Products or (ii) are CUSTOMER-supplied or sourced containers, may not work as intended, (each of the foregoing, a “Product Variation”). CUSTOMER shall, and shall be deemed to, accept all Product Variations and, except as provided below, Product Variations shall not entitle CUSTOMER to refuse to accept any Products, cancel any Order, seek an abatement, set-off or seek any other recourse against TRILOGY, or otherwise affect the CUSTOMER’s obligations hereunder. In the event there are variations in volume, as stated above, there shall be a commensurate adjustment to the Purchase Price.

2.3.3 Defects.

CUSTOMER shall inspect the Products immediately upon receipt. In the event that the CUSTOMER determines that the Product does not comply with Section  2.3.1, the CUSTOMER shall forthwith provide details of such non-compliance (“Defects”) to TRILOGY by notice in writing and in any event within 10 days of such receipt. In the event that TRILOGY accepts at its sole discretion that such Defects may exist, TRILOGY shall, at its sole option:

• replace such Product at its own expense; or
• refund to the CUSTOMER the Purchase Price thereof, or offer a credit in the amount thereof against future Products.

Unless the CUSTOMER delivers notice to TRILOGY in the manner and within the time prescribed above, the Products shall be deemed to satisfy the requirements of Section 2.3.1, be otherwise satisfactory in all respects and accepted by the CUSTOMER, and the CUSTOMER shall be deemed to have waived all rights under any applicable laws to assert any claims for, or in respect of, defective or non-conforming Products. The foregoing constitutes the CUSTOMER’s sole recourse for all present and future direct or in direct, absolute or contingent claims for, or in respect of, any defective Products. Without limiting the generality of the foregoing, the CUSTOMER specifically waives any right to claim consequential damages or specific performance.

2.3.4 CUSTOMER- supplied materials.

The CUSTOMER represents, warrants and covenants that in respect of all ingredients, materials, packaging, formulations, designs, logos, names and other goods, intangibles and property supplied, sourced or specified by the CUSTOMER in connection with any Order or Product (other than for greater certainty TRILOGY – supplied ingredients, materials or packaging) (collectively “CUSTOMER Supplies”): it shall be free from defect and suitable for the intended purpose;

• CUSTOMER Supplies shall meet or exceed in all material respects the applicable standards imposed by the U.S. Food and Drug Administration in force at the time of delivery, including the Federal Food, Drug and Cosmetics Act of 1997, and the regulations thereunder.
• the CUSTOMER has the right to make available and to use the CUSTOMER Supplies in the manner contemplated in connection with the Order and/or Product, and such use shall not infringe upon any copyright, trademark, patent or other right, interest or claim, or breach any license or other right in respect thereof.

2.4 Ownership of TRILOGY Formulas and Process (Intellectual Property). It is expressly understood and agreed that TRILOGY is and shall remain the sole owner of all right, title and interest in the TRILOGY Formulas (whether existing, modified or developed for Products under this Agreement) and the Process (whether existing, modified or developed for Products under this Agreement) and that CUSTOMER shall not have any rights with respect to the TRILOGY Formulas (whether existing, modified or developed for Products under this Agreement) or Process (whether existing, modified or developed for Products under this Agreement). In this regard, if so requested by TRILOGY, CUSTOMER shall cooperate with TRILOGY in executing all such assignments, oaths, declarations and other documents as may be prepared by TRILOGY to effect the foregoing and evidence TRILOGY’s sole ownership to the TRILOGY Formulas and Process. CUSTOMER acknowledges that the TRILOGY Formulas and Process are the confidential, proprietary information and constitute the trade secrets of TRILOGY and, if disclosed to CUSTOMER, CUSTOMER agrees to hold the TRILOGY Formulas and Process in confidence and not to use them for any purpose or disclose or disseminate them to any other party unless TRILOGY gives express written consent defining the information disclosed, the information recipient, and the purpose of the disclosure.

2.5 Development and Testing. TRILOGY may consult with CUSTOMER regarding the development and manufacture of new Products to be governed by the terms of this Agreement. The parties shall separately agree in writing as to the nature and costs for TRILOGY’s development and testing services. As TRILOGY develops new Products for sale to CUSTOMER, it is understood and agreed that TRILOGY shall have a period of 90 days following final approval of the new Products by CUSTOMER to test the new Products for stability. If CUSTOMER requests TRILOGY to ship the new Products prior to completion of the testing period, then CUSTOMER hereby agrees to release, indemnify, defend, and hold TRILOGY (and its insurer) harmless from and against any and all claims or losses of any nature if a problem develops with the new Products.

2.6 Confidentiality. The CUSTOMER shall protect, and shall not provide, disclose, nor otherwise make available to any third party in any form:

• any information comprising or relating to TRILOGY Intellectual Property; or
• any information regarding the terms of any Order (including without limitation the Purchase Price, delivery terms or quantities provided for therein) or this Agreement, (together, the “Confidential Information”).

The CUSTOMER agrees to use at least the same care and precaution in protecting the Confidential Information as it uses to protect its own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The CUSTOMER shall return all Confidential Information, and permanently delete and destroy all copies thereof promptly upon TRILOGY’s request.

3.0 LIMITED WARRANTY AND CUSTOMER’S ACKNOWLEDGEMENT AND AGREEMENT.

3.1 Limited Warranty, Disclaimer and Limitation of Remedies. TRILOGY warrants that each of the Products will be free of defects in materials and workmanship, will conform to the TRILOGY Formulas developed or agreed upon, or if applicable, the CUSTOMER Formulas for such Products, and, at the time of manufacturing, the TRILOGY Formulas used for any of the Products will comply with applicable United States federal laws and regulations (including Food and Drug Administration regulations). The foregoing warranty does not apply if any Products are: (i) altered or modified by CUSTOMER or any other party following shipment; (ii) improperly stored, handled and/or damaged following shipment to CUSTOMER; or (iii) past the expiration date for the Products. Under no circumstances does the foregoing warranty with respect to the TRILOGY Formulas apply to any unauthorized use of the TRILOGY Formulas by CUSTOMER or any other party. Upon any failure of any of the Products to comply with the above warranty, TRILOGY’s sole obligation, and CUSTOMER’s sole remedy, is for TRILOGY, to promptly replace and reimburse CUSTOMER for the reasonable direct costs of the recall of any defective Products.

Except as provided above in Section 3.1, TRILOGY makes no other warranties with respect to the TRILOGY Formulas or Products express, implied, statutory, or in any other provision of these terms and conditions or communication with CUSTOMER, and TRILOGY specifically disclaims any implied warranty or condition of merchantability or fitness for a particular purpose without limiting the foregoing,  TRILOGY also specifically disclaims any warranty that Products are or were manufactured as “organic”, “natural”, “gluten free, “non-GMO”, or an y similar standard, it being agreed that CUSTOMER assumes all risk of compliance of the applicable TRILOGY Formulas or CUSTOMER Formulas and Products with any such standard(s) and any such claim(s) or representation(s) with respect to the Products.

CUSTOMER assumes all risks of and TRILOGY assumes no liability for compliance of  CUSTOMER Formulas with all applicable Federal, State and other governmental laws and regulations and TRILOGY shall have no legal responsibility or liability with respect to the compliance of any CUSTOMER Formula with any such applicable laws or regulations. CUSTOMER assumes all risks of and TRILOGY assumes no liability for compliance of labeling and label claims for the products with all applicable Federal, State and other governmental laws and regulations and TRILOGY shall  have no legal responsibility or liability with respect to the compliance of any customer labeling and label claims for the product with any such laws or regulations.

In no event shall TRILOGY be liable to the customer for any incidental, consequential, special or punitive damages of any kind or nature arising out of this agreement or the sale of Products, whether such liability is asserted on the basis of contract, tort (including the possibility of negligence or strict liability), or otherwise, even if customer has been warned of the possibility of any such loss or damage and even if any of the limited remedies in this agreement fail their essential purpose.

CUSTOMER agrees that TRILOGY’s liability arising out of contract, negligence, strict liability in tort or warranty shall not exceed any amounts payable by the CUSTOMER to TRILOGY for each of the Products subject to any claim.

CUSTOMER agrees to defend, indemnify and hold harmless TRILOGY from all costs, judgments and reasonable attorney’s fees arising from any claim that TRILOGY’s use of the CUSTOMER’s trade names or marks and any CUSTOMER Formulas with respect to the Products under this Agreement infringes any third party’s trade secret, patent, trademark, trade name or other similar legal rights.

4.0 GENERAL PROVISIONS.

4.1 Notices. All payments, notices, claims, requests and other communications under these Terms and Conditions (i) shall be in writing, and (ii) shall be addressed or delivered to the relevant address.

4.2 Attorney’s Fees and Costs. If a suit or action arising out of or related to this Agreement is instituted by any party to this Agreement, the prevailing party shall be entitled to recover its reasonable attorney fees, expert witness fees, and costs (i) incurred in any settlement negotiations, (ii) incurred in preparing for, prosecuting or defending any suit, action, or other proceeding, and (iii) incurred in preparing for, prosecuting or defending any appeal of any suit, action, or arbitration

4.3 Governing Law, Jurisdiction, and Venue. Any legal action, suit or proceeding in law or equity arising out of or relating to these Terms & Conditions or any of the transactions contemplated herein shall be instituted in any state or federal court in Florida, and each party agrees not to assert, by way of motion, as a defense or otherwise, in any such action, suit or proceeding, any claim that it is not subject personally to the jurisdiction of such court, that its property is exempt or immune from attachment or execution, that the action, suit or proceeding is brought in an inconvenient forum, that the venue of the action, suit or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. Each party further irrevocably submits to the jurisdiction of any such court in any such action, suit or proceeding.