NULIV SCIENCE USA, INC.
(Standard Terms and Conditions)
1.1 PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCESSING OR USING THIS SITE IN ANYWAY, INCLUDING USING THE SERVICE, CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, ORDERING PRODUCTS AND/OR MERELY BROWSING THE SITE, CUSTOMER REPRESENTS (1) HAVING READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS OF THE FOLLOWING AGREEMENT; AND (2) TO HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT AND TO BIND THE CUSTOMER TO THE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THIS SITE OR THE SERVICES.
1.2 This is an agreement (“Agreement”) between NuLiv Science USA, Inc. (“Company”), a California Corporation, the owner and operator of nulivescience.com (the “Site”), and NuLiv’s online ingredient ordering platform service (collectively the “Services”), and you as the customer (“Customer”) for the purchase by Customer of proprietary dietary supplement ingredients manufactured, produced and distributed by Company in accordance with the terms and conditions set forth herein.
2.1 “Company” – NuLiv Science USA, Inc. and its subsidiaries and affiliates.
2.2 “Conditions” – The standard terms and conditions of purchase as set out in this Agreement and any special terms and conditions agreed in writing between Customer and Company.
2.3 “Contract” – The Order to purchase Product from Company and Company’s acceptance of the Order.
2.4 “Customer” – You or any subsidiary or associated company which purchases Products from Company pursuant to this Agreement.
2.5 “Order” – The Customer’s written instructions to Company to supply the Product pursuance to this Agreement.
2.6 “Product” – The dietary supplement ingredients manufactured, produced and distributed by Company pursuant to this Agreement.
3.1 The Order constitutes an offer by Customer to purchase the Products in accordance with this Agreement.
3.2 The Order shall be deemed accepted and the Contract shall come into existence on the earlier of Company issuing written acceptance or doing any act which is consistent with acceptance or fulfillment of the Order.
3.3 Only Orders placed on Company’s official order form and accepted by Company within the appropriate time period, if any, as stated on the Order shall be binding on Company.
3.4 All Orders are subject the following Trademark Licensing Agreement (TLA) and incorporated by reference.
3.4.1. License Grant. Company hereby grants to Customer, for the term of this Agreement, a non-exclusive, non-transferable, right and license to use the Marks as part of the formulation, manufacturing, production, marketing and sales of Customer’s branded dietary supplements in the United States (the “Territory”) in accordance with the terms and conditions of this TLA and as subject to and incorporated in the standard terms and conditions for the purchase of dietary supplement products from the Company. Customer acknowledges that it will not have the right to grant any sub-license of the Marks to any third-party without the express, prior, written permission and authorization of the Company. For the avoidance of any doubt, Company retains all rights in the Marks as used in any logo, design, name or otherwise created by Customer so long as the use of the Marks is consistent with the terms of this TLA. Customer retains all rights associated with any logo or design mark beyond the Marks or other intellectual property owned by Company.
a. This TLA is royalty free.
b. Audit. During the term of this TLA and for a period of three (3) years thereafter, (i) Customer will keep and maintain at its principal place of business complete and accurate records of all transactions which relate to or affect this TLA together with any supporting documentation, including but not limited to the terms of conditions of the Company for the purchase of dietary supplement products from the Company (collectively, “Records”); and (ii) the Company or its authorized representatives will have the right to audit, inspect and copy the Records at Customer’s premises during regular business hours and upon reasonable notice.
3.4.3. Quality Control.
a. Quality. Customer acknowledges the high standards of quality and excellence established by Company with respect to the Marks. Customer agrees that its use of the Marks in connection with the formulation, manufacturing, production, marketing and sales of Customer’s branded dietary supplements will be of such quality, style and appearance so as to maintain such high standards and to reflect well upon the Company and to further comply with all standards, provisions, specifications, and applicable laws and regulations.
b. Approval. Before using, publishing, releasing, selling or distributing any material in any format or medium using or referencing the Marks, Customer will first submit such material to Company for examination, review and approval within ten (10) days. Company will not unreasonably disapprove any item(s) so long as it conforms to Company’s standards of quality, appearance, taste and content. Customer agrees to bring all disapproved items into compliance with Company’s directives before use, publication, release, sale or distribution thereof.
c. Marking of Licensed Property. A statement signifying Company’s ownership of the Marks shall appear on permanently affixed and reasonably prominent labeling on each branded dietary supplement product formulated, manufactured, produced, marketed and sold by Customer.
3.4.4. Company’s Rights.
a. Ownership. Customer acknowledges and agrees that Company is the sole and exclusive owner of all right, title and interest in and to the Marks. Other than the license granted herein, no other right, title or interest is granted to Customer with respect to the Marks or any other trademark or intellectual property owned by Company. Customer will keep the Marks free from all liens, mortgages or other encumbrances, and will not take any action which might invalidate the Marks or adversely affect the goodwill associated with the Marks. Customer will not attack or otherwise challenge the title, validity, or any other rights of Company in and to the Marks, will not claim any ownership rights in the Marks other than the license granted herein and will not file any application to register or obtain registration for the Marks.
b. Enforcement and Protection of Marks. Customer acknowledges and agrees that Company will have the sole right to file applications to register and to obtain registration for the Marks, for use in connection with any goods or services whatsoever. Customer agrees to cooperate fully with Company to protect, enforce and defend the Marks, as well as to file any applications or documents necessary to maintain the Marks. Customer agrees to notify Company in writing of any infringements, imitations, claims or other problems with respect to the Marks which may arise or otherwise come to Customer’s attention. Company shall have the sole right, but not the obligation, to take any action on account of any such infringement, imitation, claim or problem.
c. Goodwill. Customer recognizes the value of the goodwill associated with the Marks and agrees that its use of the Marks and any goodwill arising therefrom, will inure to the benefit of the Company.
3.4.5. Sponsorship or Affiliation. Customer will not take any action that would imply that Company sponsors, endorses or approves of Customer or its products, or that Customer is in any way affiliated with Company.
3.4.6. Term; Termination.
a. Term. The term of this TLA is for twelve (12) months from the latest date of purchase of dietary supplement products by Customer from Company, unless terminated earlier in accordance with this TLA. Following the expiration of the term, the TLA may only be renewed upon further negotiated and agreed upon written agreement of the Parties at least sixty (60) days before the end of the current term.
b. Termination. The TLA may be terminated as follows: (i) by mutual agreement of the parties; or (ii) by Company for Customer’s breach of any provision of this TLA, as well as the terms and conditions for purchase of dietary supplement products from Company, if such breach is not cured within thirty (30) days after written notice from Company.
c. Effect of Termination. Upon expiration or termination of this TLA for any reason (i) the license granted herein will immediately terminate and all rights granted to Customer will revert to Company; (ii) Customer will immediately cease and desist from any further use of the Marks. At the termination of this TLA, Company may require that Customer return any materials provided to Customer by Company and destroy any products or materials that use the Marks that Customer still has on hand.
4. Quality and Defects.
4.1 Company warrants that the Products shall:
(a) be of the best available design, quality, material and workmanship;
(b) conform in all respects with the Order and any specification supplied by Customer;
(c) comply with all applicable federal and state laws and regulations related to the manufacturing, marketing, and distribution of the Products, including any applicable Good Manufacturing Practices; and
(d) be free from any adulteration or contamination.
4.2 Company shall maintain and implement quality, specification control, testing and inspection procedures to enable compliance with its obligations under this Agreement, as well as, all applicable federal and state laws and regulations, and at the request of Customer, shall supply Customer with full details of such procedures and associated reports.
4.3 Customer shall have the right to inspect and test the Products and Customer’s expense. If Customer is of the opinion that the Products do not or are unlikely to conform with the Order or to any specification supplied or agreed to by Customer, Customer shall inform Company and Company shall take such action necessary to ensure conformity.
4.4 Company shall comply with all applicable regulations and legal requirements and the terms of the Order concerning the production, packaging, and delivery of the Products.
5.1 Company shall indemnify and hold Customer harmless against all direct, indirect and consequential liability, loss, damages, injury, costs and expense arising from or in connection with defective Products or infringement of intellectual property rights in conjunction with the Products.
6. Delivery and Performance.
6.1 Unless otherwise stated in the Order, the Products shall be delivered to Customer’s place of business specified in the Order.
6.2 The date for delivery of the Products shall be specified in the Order, or if not date is specified, then delivery shall take place within ___ days of the Order.
6.3 The date(s) for performance by Company shall be specified in the Order or as otherwise agreed in writing by the parties.
6.4 Time for delivery of the Products and for performance of the Services by Company shall be of the essence.
6.5 Customer acknowledges and understands that all Orders are subject to the requirement of prepayment unless the Customer has previously established credit terms with the Company.
7.1 The price of the Products shall be stated in the Order, unless otherwise agreed in writing by the Company.
7.2 Prices are quoted FOB Brea, California meaning that Customer is responsible for all costs of freight, arranging for transportation and insurance from Company to the destination desired by Customer.
8.1 The parties understand, acknowledge and agree that each may provide the other from time to time with confidential information regarding the products, the ingredients or manufacturing methods used for the products, our respective businesses, and other matters. Each of us agrees not to disclose any of such information to any third party for any reason, and not to use such information for any purpose other than the manufacture of the products by us for sale to you. The obligations under this section shall continue for so long as the information remains confidential and shall survive the termination of our relationship for any reason.
9. Amendments; Waivers.
9.1 Entire Agreement. This Agreement constitutes the entire agreement of the parties related to the subject matter of this Agreement, supersedes all prior or contemporary agreements, representations, warranties, covenants and understandings of the parties. This Agreement may not be amended, nor shall any waiver, change, modification, consent or discharge be effected, except by any instrument in writing executed by or on behalf of the party against whom enforcement of any amendment, waiver, change, modification, consent or discharge is sought.
9.2 No Waiver. Any waiver of any term or condition of this Agreement, or of the breach of any covenant, representation or warranty contained herein, in any one instance, shall not operate as or be deemed to be or construed as a further or continuing waiver of such term, condition, or breach of covenant, representation or warranty, nor shall any failure at any time or times to enforce or require performance of any provision hereof operate as a waiver of or affect in any manner such party’s right at a later time to enforce or require performance of such provision or of any other provision hereof; and no such written waiver, unless it, by its own terms, explicitly provides to the contrary, shall be construed to effect a continuing waiver of the provision being waived and no such waiver in any instance shall constitute a waiver in any other instance or for any other purpose or impair the right of the party against whom such waiver is claimed in all other instances or for all other purposes to require full compliance with such provision.
10. Assignment, Successors and Assigns.
10.1 No Assignment. This Agreement shall not be assignable by any party without the prior, express, written consent of the other party.
10.2 Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
11.1 Severability. If any provision or provisions of this Agreement shall be, or shall be found to be, invalid, inoperative, or unenforceable as applied to any particular case in any jurisdiction or jurisdictions, or in all jurisdictions or in all cases, because of the conflict of any provision with any constitution, statute or rule of public policy or for any other reason, such circumstance shall not have the effect of rendering the provision or provisions in question invalid, inoperative or unenforceable in any other jurisdiction or in any other case or circumstance or of rendering any other provision or provisions herein contained invalid, inoperative, or unenforceable to the extent that such other provisions are not themselves actually in conflict with such constitution, statute, or rule of public policy, but this Agreement shall be reformed and construed in any such jurisdiction or case as if such invalid, inoperative or unenforceable provision had never been contained herein and such provision reformed so that it would be valid, operated and enforceable to the maximum extent permitted in such jurisdiction or in such case.
12.1 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and in pleading or proving any provision of this Agreement it shall not be necessary to produce more than one such counterpart.
13. Section and Other Headings.
13.1 Section and Other Headings. The headings contained in this Agreement are for reference purposes only and shall not in any way effect the meaning or interpretation of this Agreement.
14.1 Notices. All notices, requests, demands and other communications hereunder shall be in writing and shall be deemed to have been duly given if delivered or mailed, postage prepaid, certified mail, return receipt requested or via electronic mail as follows:
15. Governing Law and Jurisdiction.
15.1 Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the law of the State of California.
15.2 Jurisdiction. Any action to enforce, arising out of, or relating in any way to, any of the provisions of this Agreement shall be brought and prosecuted in the federal and state courts of the State of California The parties hereto consent to the jurisdiction of such courts and to service of process by certified mail, return receipt requested or in any other manner provided by law.
16. Further Assurances.
16.1 Further Assurances. The parties agree to perform any further acts and execute and deliver any further documents reasonably required or requested by the other or by counsel for either of them or that may be necessary to reflect the transaction contemplated by this Agreement and to cooperate with each other for the fulfilment of the terms of this Agreement.
IN WITNESS WHEREOF, Company and Customer have caused this Agreement to be executed as of Effective Date:
NULIV SCIENCE USA, INC _____________________________________
By: ____________________________ By: _______________________________
Name: ____________________________ Name: _______________________________
Title: ____________________________ Title: _______________________________
TRADEMARK LICENSING AGREEMENT
This Trademark Licensing Agreement (“TLA”) is entered into as of ___________________ by and between NuLiv Science USA, Inc. (“Company”), a California Corporation, and you as the customer (“Customer”). The parties acknowledge, understand and agree that this TLA is subject to and incorporated by reference into the standard terms and conditions for the purchase of dietary supplement products from NULIV SCIENCE USA, INC.
WHEREAS, the Company is the sole and exclusive owner of the following trademarks and service marks, both registered and unregistered (collectively, the “Marks”):
AstraGin®, Acteolin™, Astrion®, InnoSlim® OsteoSine™, Senactiv®, Verbasnol™, Zylaria™
WHEREAS, Customer is purchasing certain dietary supplement products from Company for use in connection with the formulation, manufacturing, production, marketing and sales of Customer’s branded dietary supplements;
WHEREAS, in connection therewith, Company desires to grant, and Customer desires to receive, a limited, non-exclusive license to Customer for the use of the Marks under the terms of this TLA.