Customer Terms of Purchase

Effective Date: October 1, 2026

1. Applicability.

(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the processing, manufacturing, packaging, loading, and sale of nutritional supplement products (the “Products”) by Western Botanicals FL, LLC (“Western Botanicals”) to the buyer named on applicable Order Confirmations (as defined below) (“Buyer”). Collectively Buyer and Western Botanicals are referred to as the “Parties” and individually as “Party.”

(b) The accompanying order confirmation (the “Order Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral; provided, however, that if a written co-packing agreement (“Co-Packing Agreement”) or a quality agreement (a “Quality Agreement”), signed by both Parties, is in existence covering the sale of the Products, Specifications, or other similar terms, then the Co-Packing Agreement or Quality Agreement (as applicable) shall prevail to the extent of any inconsistency with these Terms. Other than a signed Co-Packing Agreement or Quality Agreement, this Agreement supersedes any other general terms and conditions of purchase regardless of source and regardless of whether or when Buyer submitted its purchase order or such terms, including any general terms and conditions of purchase and fulfillment of Buyer. Acceptance of the Order Confirmation by Buyer (which shall be deemed accepted should Buyer not object in writing within two (2) business days of receipt of the Order Confirmation) is a prerequisite to the purchase of the Products and shall operate as an acceptance of these Terms which are expressly incorporated into the Order Confirmation. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions.

2. Orders

Buyer’s purchase of Products hereunder shall be made pursuant to purchase orders that comply with all the terms and conditions set forth in this Agreement and which are in a form reasonably acceptable to both Parties (a “Purchase Order”). Buyer shall submit Purchase Orders to Western Botanicals (a) with sufficient and reasonable detail of products, quantities, formulae, desired capsulation, characteristics, and other relevant specifications sufficient to permit Western Botanicals’ production of the Products (the “Specifications”), and (b) pursuant to such procedures as may be mutually and reasonably agreed upon in writing by the Parties, including procedures to be utilized for canceling or modifying any such Purchase Orders after submittal, and Western Botanicals will, in return, issue an Order Confirmation confirming the Products accepted for processing, manufacturing, packaging, and loading. All Purchase Orders shall clearly indicate the desired ship date and the amount, kind and size of Products subject to such Purchase Order.

3. Production and Delivery

(a) The Products will be produced and delivered within a reasonable time after the receipt of Buyer’s purchase order and the issuance of an Order Confirmation, subject to availability of ingredients and Western Botanicals’ production backlog. Western Botanicals will use reasonable efforts to process, manufacture, package, and load Products pursuant to the delivery dates provided in applicable Order Confirmations. Notwithstanding the foregoing, Buyer acknowledges and agrees that all delivery dates are estimates only and are subject to delay and time is not of the essence with respect to any delivery date, ship date, or production schedule under this Agreement or any Order Confirmation.

(b) Unless otherwise agreed in writing by the parties in the Order Confirmation, all Products are delivered FOB Western Botanicals’ facility located at 768 East 1950 North, Spanish Fork, UT 84660 (the “Delivery Point”), using Western Botanicals’ standard methods for packaging and shipping such Products. Buyer shall take delivery of the Products within fourteen (14) days of Western Botanicals’ written notice that the Products are ready for delivery at the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point. If Buyer does not take delivery within such fourteen (14)-day period, title and risk of loss shall pass to Buyer, the Products shall no longer be covered by Western Botanicals’ insurance, and Buyer shall pay storage fees of $25.00 per pallet per week (or the prevailing industry rate, as determined in Western Botanicals’ reasonable discretion). If Buyer does not take delivery within six (6) months of such notice, Western Botanicals may, in its sole discretion, transport the Products to a third-party warehouse or destroy the undelivered Products, and Buyer shall be responsible for the cost of such transport or destruction.

4. Quantity

Western Botanicals may, at its option, manufacture and deliver an overage of up to ten percent (10%) of the quantity of Products set forth in the Order Confirmation, and Buyer shall pay for and take delivery of all such overage at the price set forth in the Order Confirmation adjusted pro rata. Western Botanicals’ production and delivery of at least ninety percent (90%) of the quantity of Products set forth in the Order Confirmation shall constitute full performance of the applicable order, and Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall, provided that the purchase price shall be adjusted pro rata to reflect any shortfall.

5. Title and Risk of Loss

Title and risk of loss pass to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Western Botanicals a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Utah Uniform Commercial Code.

6. Amendment and Modification

These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each Party.

7. Inspection

(a) Buyer shall inspect the Products within seven (7) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Western Botanicals in writing of any Non-Conforming Products (as defined below) during the Inspection Period and furnishes such written, photographic, or other evidence or documentation as required by Western Botanicals to determine whether the Products are Non-Conforming Products. “Non-Conforming Products” means only Products that do not materially conform to the Specifications.

(b) If Buyer timely notifies Western Botanicals of any Non-Conforming Products, Western Botanicals shall, in its sole discretion, (i) replace such Non-Conforming Products with conforming Products, or (ii) credit or refund the Price for such Non-Conforming Products, together with any reasonable third-party shipping and handling expenses actually incurred and paid by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Non-Conforming Products to Western Botanicals’ facility located at 1401 North 300 West, Spanish Fork, Utah 84660 or such other location as designated by Western Botanicals. If Western Botanicals exercises its option to replace Non-Conforming Products, Western Botanicals shall, after receiving Buyer’s shipment of Non-Conforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for Non-Conforming Products. Except as provided under Section 7(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to Western Botanicals.

8. Price

(a) Buyer shall purchase the Products from Western Botanicals at the prices (the “Prices”) set forth in the applicable Order Confirmation or, if not stated therein, in Western Botanicals’ published price list in force as of the date of the Order Confirmation. Western Botanicals may adjust its published Prices at any time upon at least thirty (30) days’ prior written notice to Buyer; any such adjustment shall not affect the Price for orders already accepted by Western Botanicals.

(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Western Botanicals’ income, revenues, gross receipts, personnel, or real or personal property or other assets. The Prices exclude transportation and insurance costs which are the responsibility of the Buyer.

9. Payment Terms

(a) Buyer shall pay Western Botanicals all invoiced amounts due within the time stated in the applicable Order Confirmation or, if not stated, within thirty (30) days after the date of Western Botanicals’ invoice. Unless the Order Confirmation provides otherwise, Buyer shall pay fifty percent (50%) of the purchase price of an order at the time the order is placed, with the remaining balance due within thirty (30) days after the date of Western Botanicals’ invoice issued upon delivery at the Delivery Point. All payments hereunder shall be in US dollars. Western Botanicals reserves the right, in its sole discretion, to require pre-payment of the purchase price set forth in an Order Confirmation.

(b) Buyer shall pay interest on all late payments at the lesser of the rate of one percent (1%) per month or the highest rate permissible under applicable law. Buyer shall reimburse Western Botanicals for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under this Agreement or at law (which Western Botanicals does not waive by the exercise of any rights hereunder), if Buyer fails to pay any amounts when due hereunder, Western Botanicals shall be entitled to (i) suspend the delivery of any Products; (ii) reject Buyer’s future purchase orders or cancel any accepted order; (iii) modify Buyer’s payment terms; and/or (iv) terminate this Agreement. Buyer shall not withhold payment of any amounts due and payable, and shall not take any deduction, set-off, or recoupment, by reason of any claim or dispute with Western Botanicals, whether relating to Western Botanicals’ breach, bankruptcy, or otherwise, unless specifically authorized in writing by Western Botanicals.

10. Limited Warranty.

Western Botanicals warrants to Buyer that :

(a) for a period equal to the shelf-life (code date) period stated in the applicable Specifications from the date of shipment of the Products (the “Warranty Period”), the Products will materially conform to the Specifications in effect as of the date of manufacture under the corresponding Order Confirmation; and

(b) Buyer will receive good and valid title to the Products, free and clear of all encumbrances and liens.

The warranties in this section do not apply, and Western Botanicals shall have no liability, where the alleged nonconformity arises from or relates to: (i) any Labeling Elements (as defined below), formulas, Specifications, ingredients, components, or materials provided, selected, or specified by Buyer; (ii) abuse, misuse, neglect, negligence, accident, abnormal physical stress or environmental conditions, use contrary to any instructions issued by Western Botanicals, or improper testing, storage, handling, or maintenance; (iii) reconstruction or alteration by anyone other than Western Botanicals or its authorized representative; or (iv) storage, handling, distribution, or sale of the Products after title or risk of loss has passed to Buyer.

11. Buyer’s Exclusive Remedy for Breach of Warranty.

During the Warranty Period:

a) Buyer shall notify Western Botanicals, in writing, of any alleged warranty claim within thirty (30) days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim (but in any event before the expiration of the applicable Warranty Period);

(b) Buyer shall ship the relevant Products within thirty (30) days of the date of its notice to Western Botanicals, at its expense and risk of loss, to Western Botanicals’ facility located at 768 East 1950 North, Spanish Fork, UT 84660 for inspection and testing by Western Botanicals;

(c) If Western Botanicals’ inspection and testing reveals, to Western Botanicals’ reasonable satisfaction, that such Products do not conform with the limited warranty set forth herein, Western Botanicals shall in its sole discretion, and at its expense (subject to Buyer’s compliance with this Section 11), either (i) replace such Products, or (ii) credit or refund the Price of such Products less any applicable discounts, rebates, or credits; and

(d) If Western Botanicals exercises its option to replace, Western Botanicals shall, after receiving Buyer’s shipment of such Products, ship to Buyer, at Buyer’s expense and risk of loss, the replacement Products to the Delivery Point.

(e) Buyer has no right to return for repair, replacement, credit, or refund any Products except as set forth in this Section 11. In no event shall Buyer reconstruct, repair, alter, or replace any Products, in whole or in part, either itself or by or through any third party.

(f) THIS SECTION 11 SETS FORTH THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.

12. WARRANTIES DISCLAIMER

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER INDIVIDUAL OR ENTITY ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 10 OF THIS AGREEMENT.

13. LIMITATION OF LIABILITY

(a) IN NO EVENT SHALL SELLER OR ANY OF ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.

(b) SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THIS LIMIT.

14. Compliance with Law

Buyer shall at all times comply with all laws applicable to the operation of its business, this Agreement, Buyer’s performance of its obligations hereunder, and Buyer’s use, distribution, and sale of the Products. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase, use, distribution, or sale of the Products and (b) not engage in any activity or transaction involving the Products, by way of shipment, use, or otherwise, that violates any law.

15. Labeling; Intellectual Property; License

(a) All labels used in connection with the Products, including their design, content, wording, artwork, and Marks (as defined below) (collectively, “Labeling Elements”), shall be determined by Buyer, and Buyer shall be solely responsible for the Labeling Elements, including their compliance with all applicable federal, state, and local laws, rules, and regulations, and for any erroneous or misleading labels and any failure to warn. Buyer represents and warrants that (i) all Labeling Elements comply with all applicable federal, state, and local laws, rules, and regulations, including any Claim (as defined below) that a product is “free” of a particular ingredient, “all natural,” or any similar claim, and (ii) Buyer is the exclusive owner of, or holds an enforceable license or right to use, any and all designs, logos, trademarks (registered or unregistered), service marks, trade names, and trade dress (collectively, the “Marks”) included within the Labeling Elements, and that Western Botanicals’ use of the Labeling Elements will not violate or infringe any copyright, trademark, or other proprietary right of any third party. Buyer shall timely provide Western Botanicals, at Buyer’s expense, with all Labeling Elements necessary for manufacturing and packaging the Products in accordance with the Specifications.

(b) Buyer grants Western Botanicals a non-exclusive, royalty-free license to use the Labeling Elements (including the Marks contained therein), and Buyer’s patents, Specifications, and formulas, solely in connection with manufacturing, packaging, and selling the Products to Buyer in accordance with these Terms. Buyer shall provide, at Buyer’s expense, all artwork and other materials necessary to manufacture and package the Products.

16. Stranded Inventory

(a) Western Botanicals manufactures and packages the Products in accordance with the Specifications and using the Labeling Elements, formulas, ingredients, components, and materials provided, selected, or specified by Buyer. Buyer is solely responsible for, and bears all risk associated with, the Specifications and any Buyer-supplied or Buyer-specified formulas, ingredients, components, and materials, including their condition at the time of delivery to Western Botanicals. Any change to the Specifications, a Product’s formulation, pack size, configuration, package construction or design, or any label or artwork (a “Revision”) is subject to the Parties’ mutual written agreement, including any resulting price adjustment, and Buyer shall pay for any packaging, ingredients, or materials rendered obsolete by a Revision.

(b) In order to fulfill Buyer’s orders, Western Botanicals may need to purchase ingredients, packaging, and other materials in quantities exceeding those required for a particular order. If Buyer ceases ordering a Product, Buyer shall reimburse Western Botanicals for the cost of any ingredients, packaging, or materials that are unique to Buyer’s formulas or Labeling Elements and are not commodity items usable for other customers (“Stranded Inventory”). Western Botanicals may also charge storage fees of $50.00 per pallet per week for Stranded Inventory and for any Buyer-supplied materials unallocated to an order.

17. Cancellation and Change Orders.

Buyer may cancel or modify an order only in accordance with procedures reasonably established by Western Botanicals, and any accepted order is subject to the following cancellation charges: (a) orders cancelled within the first week after confirmation are subject to a charge of thirty percent (30%) of the order price; (b) orders cancelled after the first week but prior to three weeks after confirmation are subject to a charge of fifty percent (50%) of the order price; and (c) orders cancelled three weeks or more after confirmation are subject to a charge of seventy percent (70%) of the order price. At Western Botanicals’ option, any such charge may be satisfied by retention of any deposit or down payment paid by Buyer, and any balance not so covered shall be paid by Buyer within seven (7) business days of cancellation. Modifications to orders may incur additional service charges. Any fee(s) not covered by a down payment shall be paid by Buyer within seven (7) business days of cancellation or modification (as applicable).

18. Recall

If any governmental or regulatory authority requests, demands, or orders, or if either Party otherwise determines in good faith, that any Products, packaging, or labeling be withdrawn, removed, or recalled (a “Recall”), each Party shall notify the other in writing as promptly as practicable and shall reasonably cooperate in connection with the Recall. Buyer shall bear all costs of, and shall indemnify Western Botanicals for, any Recall arising out of or relating to any act or omission of Buyer, any Labeling Elements, any Buyer-supplied or Buyer-specified formulas, ingredients, components, or materials, or the handling, storage, distribution, or sale of the Products after title or risk of loss has passed to Buyer. Western Botanicals’ responsibility for any Recall is limited to Recalls arising solely from Western Botanicals’ failure to manufacture the Products in conformity with the Specifications, and in all events remains subject to Section 13.

19. Indemnification

Buyer shall indemnify, defend, and hold harmless Western Botanicals and its officers, members, employees, agents, and representatives from and against any and all claims, demands, causes of action, damages, losses, liabilities, judgments, costs, fees, and expenses (including reasonable attorneys’ fees and costs of investigation and settlement) to the extent arising out of or relating to: (a) any breach by Buyer of these Terms or of any representation, warranty, covenant, or obligation hereunder; (b) the condition of any ingredients, components, or materials provided by Buyer at the time of delivery to Western Botanicals; (c) the Specifications or any Buyer-supplied or Buyer-specified formula; (d) the handling, storage, distribution, sale, advertisement, or transportation of the Products after title or risk of loss has passed to Buyer; (e) any Labeling Elements, including any claim of infringement, erroneous or misleading labeling, or failure to warn; and (f) any allegation that the Products, their labeling, or Buyer’s conduct fails to comply with any applicable law, including the Federal Food, Drug, and Cosmetic Act, the Federal Trade Commission Act, the Fair Packaging and Labeling Act, the Consumer Product Safety Act, and the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65). This Section survives the expiration or termination of this Agreement.

20. Insurance

During any period in which Buyer purchases Products and for two (2) years thereafter, Buyer shall, at its own expense, procure and maintain commercial general liability insurance (including product liability, completed operations, contractual liability, and, where applicable, product recall coverage) on an occurrence basis, with minimum limits of $1,000,000 per occurrence and $2,000,000 in the aggregate, issued by carriers with an A.M. Best rating of at least A- (VII) or otherwise reasonably acceptable to Western Botanicals.

(a) Buyer’s commercial general liability policy shall name Western Botanicals and its officers, members, employees, agents, affiliates, successors, and assigns as additional insureds automatically and without any requirement of request, notice, or endorsement fee, and such additional insured status shall be continuous throughout the period in which coverage is required under this Section. Such coverage shall apply to Western Botanicals as an additional insured with respect to liability arising out of the Products or Buyer’s acts or omissions, including ongoing and completed operations.

(b) Buyer’s insurance shall be primary and non-contributory, and any insurance or self-insurance maintained by Western Botanicals shall be excess of, and shall not contribute with, Buyer’s insurance.

(c) Buyer, on behalf of itself and its insurers, waives all rights of subrogation against Western Botanicals and the other additional insureds, and Buyer’s policies shall include or permit such waiver.

(d) Upon the earlier of Buyer’s first Purchase Order or Western Botanicals’ request, and thereafter upon each policy renewal and promptly upon Western Botanicals’ request, Buyer shall deliver to Western Botanicals certificates of insurance (together with the additional-insured, primary-and-non-contributory, and waiver-of-subrogation endorsements) evidencing the coverage required by this Section. Buyer shall provide Western Botanicals at least thirty (30) days’ prior written notice of cancellation, non-renewal, or material reduction of any required coverage (ten (10) days’ notice for cancellation due to non-payment of premium).

(e) Buyer’s insurance obligations under this Section are independent of, and do not limit, Buyer’s indemnification and other obligations under this Agreement, and the minimum limits required are not a cap on Buyer’s liability.

21. Termination

In addition to any remedies that may be provided under these Terms, Western Botanicals may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

22. Waiver

No waiver by Western Botanicals of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Western Botanicals. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement by Western Botanicals operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder by Western Botanicals precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege by Western Botanicals.

23. Confidential Information

All non-public, confidential, or proprietary information of a Party, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by such Party to the other Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing Party in writing. Upon the disclosing Party’s request, the receiving Party shall promptly return all documents and other materials received from the disclosing Party. Each disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is:

(a) in the public domain;
(b) known to the receiving Party at the time of disclosure; or
(c) rightfully obtained by the receiving Party on a non-confidential basis from a third party.

The obligations in this Section 23 continue during the term of this Agreement and for a period of three (3) years after the later of the last delivery of Products or the termination or expiration of this Agreement; provided, however, that with respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations in this Section continue for so long as such information remains a trade secret.

24. Force Majeure

(a) Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) reasonable control, including, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) order or action by any governmental authority or requirements of law; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other events beyond the reasonable control of the Impacted Party.

(b) If a Force Majeure Event affecting Western Botanicals continues for a period of thirty (30) consecutive days or more, Western Botanicals may terminate this Agreement and/or any affected Order Confirmation, in whole or in part, upon written notice to Buyer, without liability to Buyer for such termination. Termination under this Section does not relieve Buyer of its obligation to pay for Products already delivered or for costs incurred by Western Botanicals prior to termination, including amounts payable under Section 16 (Stranded Inventory).

25. Assignment

Buyer’s rights, interests, or obligations hereunder may not be assigned, transferred, or delegated by Buyer without the prior written consent of Western Botanicals. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

26. Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Western Botanicals may perform any of its obligations under this Agreement, including the processing, manufacturing, blending, capsulation, packaging, loading, testing, and storage of the Products, through one or more affiliates, subcontractors, or third-party suppliers of its choosing. Western Botanicals remains responsible for the performance of its obligations under this Agreement notwithstanding any such delegation.

27. No Third-Party Beneficiaries

This Agreement benefits solely the Parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

28. Governing Law; Jurisdiction

This Agreement is governed by, and construed in accordance with the laws of the State of Utah without giving effect to any conflict of laws provisions thereof that would result in the application of the laws of a different jurisdiction. Subject to the Dispute Resolution section below, any legal proceeding permitted hereunder (including any proceeding to compel mediation, to enforce a mediation agreement, or to obtain injunctive or other equitable relief) shall be instituted exclusively in the state or federal courts located in Salt Lake City, Utah, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts.

29. Dispute Resolution

Any dispute or controversy arising out of or relating to this Agreement that is not resolved within sixty (60) days after one Party gives the other written notice of the dispute shall first be submitted to confidential mediation before a single mediator, administered by the American Arbitration Association (“AAA”) at its office nearest Western Botanicals’ principal place of business, to take place within thirty (30) days of notice of mediation. The Parties shall share the cost of the mediation equally and shall keep the mediation confidential.

30. WAIVER OF JURY TRIAL

EACH PARTY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

31. Notices

All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Order Confirmation or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested).

32. Severability

If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

33. Survival

The provisions of this Agreement that by their nature should survive termination or expiration of this Agreement shall so survive, including the following Sections: 5 (Title and Risk of Loss, as to the security interest), 9 (Payment Terms, as to amounts accrued or payable), 10–12 (Limited Warranty, Buyer’s Exclusive Remedy, and Warranties Disclaimer), 13 (Limitation of Liability), 15 (Labeling; Intellectual Property; License), 16 (Stranded Inventory), 18 (Recall), 19 (Indemnification), 20 (Insurance), 23 (Confidential Information), 26 (Relationship of the Parties), 27 (No Third-Party Beneficiaries), 28 (Governing Law; Jurisdiction), 29 (Dispute Resolution), 30 (Waiver of Jury Trial), 31 (Notices), 32 (Severability), this Section 33, and Sections 34–37. Termination or expiration of this Agreement does not affect any right, obligation, or liability of either Party that accrued before the effective date of termination or expiration.

34. Western Botanicals’ Intellectual Property

(a) As between the Parties, Western Botanicals exclusively owns and retains all right, title, and interest in and to (i) its formulations, recipes, blends, and product compositions developed, owned, or used by Western Botanicals other than formulas or Specifications provided by Buyer; (ii) its manufacturing, processing, capsulation, blending, packaging, and quality-control methods, know-how, processes, protocols, and trade secrets; and (iii) its equipment designs, software, tooling, and standard operating procedures (collectively, “WB Background IP”). Nothing in this Agreement, and no Order Confirmation, transfers to Buyer any ownership of, or (except as expressly stated in Section 34(c)) any license to, any WB Background IP.

(b) All improvements, modifications, derivatives, and enhancements to WB Background IP that are conceived, developed, or reduced to practice by Western Botanicals in connection with this Agreement are and shall be owned exclusively by Western Botanicals, even if developed in the course of manufacturing Products for Buyer, and even if funded in whole or in part by amounts paid by Buyer. This Section 34(b) does not apply to Buyer’s formulas, Specifications, or Labeling Elements, which remain Buyer’s property pursuant to Section 15(b).

(c) Western Botanicals grants Buyer a non-exclusive, non-transferable, non-sublicensable license to use the WB Background IP solely to the extent embodied in the finished Products purchased by Buyer, and solely for Buyer’s resale and distribution of those finished Products. Buyer shall not, and shall not permit any third party to, reverse engineer, deconstruct, analyze, or attempt to derive the composition, formulation, or manufacturing process of any Product, except to the extent this restriction is unenforceable under applicable law.

(d) Buyer shall not challenge, or assist any third party in challenging, Western Botanicals’ ownership of the WB Background IP. To the extent Buyer acquires any right, title, or interest in any WB Background IP or any improvement described in Section 34(b), Buyer hereby assigns all such right, title, and interest to Western Botanicals.

35. Product Claims; Substantiation; FDA Notification

(a) Buyer is solely responsible for selecting, approving, and substantiating all statements, claims, and representations made on or in connection with the Products, including all structure/function claims, nutrient-content claims, and any “free of,” “all natural,” or similar claims (collectively, “Claims”). Western Botanicals has no responsibility for the selection, legality, or substantiation of any Claim.

(b) Before any Claim is disseminated, Buyer shall possess and maintain competent and reliable evidence substantiating that the Claim is truthful and not misleading, consistent with applicable U.S. Food and Drug Administration (“FDA”) and Federal Trade Commission standards. Buyer shall retain such substantiation for so long as the Claim is used and for the period required by applicable law thereafter, and shall provide it to Western Botanicals promptly upon request.

(c) Buyer shall not cause any Product to bear any Claim that the Product diagnoses, cures, mitigates, treats, or prevents any disease, or any other Claim that would cause the Product to be regulated as a drug.

(d) Buyer is responsible for ensuring that the Labeling Elements include the disclaimer required for structure/function claims under applicable FDA requirements (as such requirements may be amended, modified, or subject to FDA enforcement discretion from time to time).

(e) Buyer, as the manufacturer, packer, or distributor making the Claim, shall be solely responsible for submitting to the FDA, no later than 30 days after the first marketing of a Product bearing a structure/function Claim, the notification required by 21 U.S.C. § 343(r)(6) and 21 C.F.R. § 101.93, including the required certification that Buyer has substantiation that the Claim is truthful and not misleading. Buyer shall provide Western Botanicals with evidence of such notification upon request.

(f) Buyer’s obligations under Section 19 (Indemnification) extend to any breach of this Section 35 and to any claim, demand, or proceeding arising out of or relating to any Claim.

36. Adverse Event Reporting

(a) The Parties intend that Buyer, as the manufacturer, packer, or distributor whose name appears on the label of the Products under 21 U.S.C. § 343(e)(1), is the “responsible person” for purposes of serious adverse event reporting under 21 U.S.C. § 379aa-1. Buyer shall maintain the domestic address or domestic telephone number required to appear on the Labeling Elements and shall be responsible for receiving, evaluating, reporting, and maintaining records of all adverse events associated with the Products.

(b) Buyer shall submit to the FDA each serious adverse event report, accompanied by a copy of the label, no later than 15 business days after receipt, shall submit related new medical information within the time required by law, and shall maintain records of all adverse event reports (serious and non-serious) for at least 6 years, in each case as required by 21 U.S.C. § 379aa-1.

(c) If Western Botanicals receives any complaint or report of an adverse event associated with a Product, Western Botanicals shall forward it to Buyer within five (5) business days. Buyer shall direct to Western Botanicals any adverse event report that Buyer reasonably determines relates to Western Botanicals’ manufacture of the Product, to the extent Western Botanicals’ cooperation (including batch and lot records) is needed for investigation. Each Party shall reasonably cooperate with the other in investigating adverse events.

(d) Nothing in this Section makes Western Botanicals the responsible person, and Western Botanicals does not assume Buyer’s reporting obligations unless the Parties expressly agree otherwise in a signed writing that satisfies 21 U.S.C. § 379aa-1(b)(2).

37. Party of Record

Buyer shall be identified on the Labeling Elements as the manufacturer, packer, or distributor of the Products and shall include on the label the name and place of business and the domestic address or domestic telephone number required under 21 C.F.R. § 101.5 and 21 U.S.C. § 343(y). Buyer shall not identify Western Botanicals as the manufacturer, packer, or distributor of record, and shall not use Western Botanicals’ name, address, or marks on the Labeling Elements, without Western Botanicals’ prior written consent. Buyer acknowledges that Western Botanicals remains independently subject to applicable current good manufacturing practice requirements (21 C.F.R. Part 111) for the manufacturing operations it performs, and that this Section does not relieve Buyer of its responsibility, as the party placing the Products into commerce, to ensure the Products are not adulterated or misbranded.

38. Contact Us

Questions about these Terms? Reach out:

WB Blends, a Division of Western Botanicals
Address : 585 W 1000 N, Spanish Fork, UT 84660, United States

Phone : 1 (800) 651-4372

Website : wbblends.com
Email : marketing@wbblends.com

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