Your Nutraceutical Innovation Partner
Terms and Conditions of Sale
1. Applicability
These Terms and Conditions of sale (these “Terms”) govern the sale of goods by VIVA Manufacturing, LLC, a Florida corporation (“VIVA”). These Terms apply to any purchase order accepted by VIVA (each, a “Purchase Order”) from the Customer named on such Purchase Order (the “Customer”). Such Purchase Order and these Terms together comprise the entire agreement between Customer and VIVA (the “Contract”), and, unless otherwise agreed by Customer and VIVA, supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms; any such purchase order or terms submitted by Customer (including those attached to the Purchase Order or purportedly incorporated therein by reference to an external website hosting such terms and conditions) are hereby rejected by VIVA and shall not become part of the Contract. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these Terms. In the event of any conflict between a Purchase Order and these Terms, these Terms shall control.
2. Manufacture of Goods
(a) VIVA agrees that it will manufacture the nutraceuticals or other products (collectively, the “Goods”) specified on the applicable Purchase Order in accordance with written specifications provided by Customer and agreed to by VIVA (the “Specifications”) and current Good Manufacturing Practices (“cGMP”) of the United States Food and Drug Administration (“FDA”) applicable to the Goods. VIVA shall perform such manufacturing at VIVA’s facility in Tampa, Florida (the “Manufacturing Facility”)
(b) Customer represents and warrants that it has all rights and power necessary to authorize VIVA to manufacture the Goods under this Contract.
(c) VIVA will have no obligation to commence manufacture of any Goods unless (i) Customer and VIVA have agreed upon the Specifications and (ii) Customer has made any down payment, deposit, or advance payment specified in Section 12(a) or the applicable Purchase Order.
(d) Any completion dates, expected delivery dates, accepted receipt dates, or similar information included in a Purchase Order are estimates and shall not be binding on VIVA.
(e) Once the initial manufacturing process is complete, VIVA shall not be required to rework any finished Goods unless otherwise agreed by VIVA and Customer. In such an event, VIVA will advise Customer of the cost of any rework requested by Customer, and VIVA shall not commence any rework unless and until Customer agrees in writing (which may be by email) with such cost. Customer shall pay VIVA the cost of the rework in full upon completion, notwithstanding any other payment terms that apply to the original Purchase Order.
3. Labeling and Packaging
(a) Customer shall supply to VIVA all labels, artwork, and packaging materials required for the Goods (collectively, the “Packaging Materials”). If Customer does not supply artwork to VIVA within 3 weeks after the Purchase Order is accepted by VIVA and all other such items to VIVA within 8 weeks after the Purchase Order is accepted by VIVA, then VIVA shall be permitted to invoice Customer finished Goods with no labels or artwork in packaging determined by VIVA in its commercially reasonable discretion.
(b) Customer shall be solely responsible for compliance of all labels and packaging materials it supplies with applicable laws and regulations and FDA requirements. Any feedback provided by VIVA to Customer regarding such labels, including, without limitation, any label review checklist or similar document prepared by VIVA, shall be for Customer’s information only and shall not give rise to any liability of VIVA. Customer shall have the sole discretion to determine the content of its labels and shall bear all liability for such content. If VIVA determines that any Packaging Materials do not comply with applicable law, VIVA may reject non-compliant labels. If rejected, VIVA reserves the right to assess impact on the delivery schedule and make adjustments as needed.
(c) Except for its use of labels and packaging materials supplied by Customer, VIVA shall package Goods and prepare them for shipment using VIVA’s standard methods for packaging.
4. Product Documentation
Following completion of manufacture of the Goods, VIVA will provide Customer with one more document evidencing that the Goods were manufactured in accordance with Specifications and cGMP. Such documents may include, without limitation, Certification of Analysis, Master Product Specifications, Composition Analysis, Safety Data Sheet, Letter Guarantee, Certificate of Conformance, or Letter of Origin. If the Customer requests such documents before completion of manufacture, VIVA may assess a documentation fee as a condition to providing such documents before completion of manufacture.
5. Title and Risk of Loss
Notwithstanding anything in the Contract to the contrary, title and risk of loss of Goods shall pass to Customer immediately upon completion of manufacture, without the requirement of delivery of any specific documentation from VIVA to Customer. VIVA’s internal records regarding the time at which manufacture is completed shall be conclusive evidence of the passage of title.
6. Storage of Goods Until Shipment
(a) From the time that title to Goods passes to Customer in accordance with Section 5 until the time that Customer’s carrier picks up such Goods at the Manufacturing Facility, VIVA shall store the Goods at the Manufacturing Facility awaiting the arrival of Customer’s carrier. Customer shall bear all risk of loss to the Goods during such time. VIVA shall have no obligation to insure any Goods that are stored under this Contract. VIVA shall reasonably cooperate with Customer if Customer requests assistance with adding the Goods to Customer’s insurance policies following passage of title.
(b) If Customer’s carrier has not picked up the Goods from the Manufacturing Facility within two (2) business days after Customer has received notice from VIVA that manufacture of the Goods is complete, then VIVA may charge Customer a storage fee at VIVA’s then-current rates until the Goods are picked up.
(c) If Customer’s carrier has not picked up the Goods from the Manufacturing Facility within 60 days after Customer has received notice from VIVA that manufacture of the Goods is complete, then VIVA shall give notice of such failure to Customer and Customer shall have 30 days from the date of such notice to cause the Goods to be picked up from the Manufacturing Facility. If Customer does not cause such Goods to be picked up by the end of such 30-day period, VIVA reserves the right to deem the Goods abandoned by Customer. Any Goods deemed abandoned may be, at VIVA’s option, either stored by VIVA for a storage fee or destroyed by VIVA for a destruction fee and without liability to VIVA.
7. Shipping and Delivery
Customer shall be responsible for arranging shipment of the Goods from the Manufacturing Facility to a location designated by Customer. Shipping terms shall be F.O.B. the Manufacturing Facility unless otherwise agreed in a Purchase Order. Customer shall pay all shipping and handling expenses. VIVA shall not be liable for any delays, loss, or damage in transit. Notwithstanding the foregoing, if agreed by Customer and VIVA, VIVA will coordinate shipping of the Goods for a fee.
8. Non-Delivery
(a) The quantity of Goods as recorded by VIVA on dispatch from the Manufacturing Facility is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
(b) VIVA shall not be liable for any non-delivery of Goods unless Customer gives written notice to VIVA of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of VIVA for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the price paid by Customer respecting such Goods to reflect the actual quantity delivered.
(d) Customer acknowledges and agrees that the remedies set forth in Section 8(c) are Customer’s exclusive remedies for non-delivery of Goods.
9. Customer’s Acts or Omissions
If VIVA’s performance of its obligations under this Contract is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, VIVA shall not be deemed in breach of its obligations under this Contract or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
10. Inspection and Rejection of Nonconforming Goods
All Goods shall be deemed accepted by Customer unless VIVA delivers Goods that do not conform with this Contract and Customer provides VIVA with written notice specifying such non-conformance within 10 days after VIVA notifies Customer that manufacture of the Goods is complete. If VIVA delivers nonconforming Goods to Customer and Customer notifies VIVA within such 10-day period, Part 6 of Article 2 of the Uniform Commercial Code as adopted in Florida shall govern the rights and obligations of the parties with respect to such nonconforming Goods, subject to any agreement between the parties regarding the return or replacement of such nonconforming Goods. Customer’s sole and exclusive remedy for valid nonconformance claims is limited to replacement of the Goods or a price adjustment, at VIVA’s option.
11. Price
(a) Customer shall purchase the Goods from VIVA at the price (the “Price”) set forth on the face of the Purchase Order.
(b) All prices are stated exclusive of all sales, use, excise, or similar taxes, as well as tariffs, duties, or charges of any kind imposed by any governmental authority on amounts payable by the Customer. The Customer shall be solely responsible for the payment of all such taxes, tariffs, duties, and charges. Notwithstanding the foregoing, the Customer shall not be responsible for any taxes imposed on, or with respect to, VIVA’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
(c) In addition to the Price, Customer shall pay VIVA all applicable fees for services or other work performed by VIVA pursuant to the fee schedule attached hereto as Exhibit A and incorporated herein by reference. All such fees shall be due on demand unless otherwise agreed by VIVA.
12. Payment Terms
(a) Unless otherwise set forth in the Purchase Order and / or agreed by Customer and VIVA in writing, Customer shall pay 50% of the Price of the Goods within two (2) business days after VIVA accepts the Purchase Order. Any such payment is non-refundable unless VIVA cancels the applicable Purchase Order pursuant to Section 18.
(b) Unless otherwise set forth in the Purchase Order and / or agreed by Customer and VIVA in writing, the remaining balance of the Price is due after manufacturing of the Goods is complete. VIVA will send Customer an invoice after completion of manufacture that will specify the due date. If no due date is specified, payment will be due upon delivery of the invoice.
(c) All payments shall be made in US Dollars by ACH transfer. VIVA may accept other payment methods at the request of the Customer, provided that the Customer pays any reasonable charges assessed by VIVA in connection with VIVA’s acceptance of alternate payment methods.
(d) If Customer fails to make any payments when due, Customer shall pay interest on all past due payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse VIVA for all costs incurred in collecting any past due payments, including, without limitation, attorneys’ fees. VIVA may suspend further performance or delivery of any Purchase Order until all past due amounts are paid in full to VIVA.
(e) If a Customer payment is returned, dishonored, or otherwise insufficient, Customer shall Customer shall repay VIVA such amount plus an administrative fee of 10% of the returned amount within five (5) days after VIVA notifies Customer that the payment was insufficient.
(f) Customer shall not withhold payment of any amounts due and payable by reason of any set off of any claim or dispute with VIVA, whether relating to VIVA’s breach, bankruptcy, or otherwise.
(g) As collateral security for the payment of the Price, Customer hereby pledges and grants to VIVA a lien on and security interest in and to all of the right, title, and interest of Customer in, to, and under all finished Goods, 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 as such term is defined in the Uniform Commercial Code.
13. Compliance with Laws
Each party shall comply with all laws and regulations applicable to its performance of its obligations under this Contract.
14. Non-Exclusive Relationship
VIVA is manufacturing the Goods to the Customer on a non-exclusive basis. VIVA reserves the right to manufacture goods that compete with Customer’s Goods for parties other than Customer.
15. Warranties
(a) Customer represents and warrants that it owns all rights and title to any logos, tradenames, trademarks, designs, or other intellectual property included in any labels or packaging provided by Customer to VIVA.
(b) VIVA warrants that the Goods will be manufactured in accordance with cGMP and the Specifications. For the avoidance of doubt, VIVA is not responsible for natural variances in the color of Goods due to the use of natural ingredients.
(c) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 15(b), VIVA MAKES NO OTHER WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS, OR ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. ANY IMPLIED WARRANTIES ARE HEREBY DISCLAIMED BY VIVA.
16. Indemnification
(a) Customer shall defend, indemnify and hold harmless VIVA against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (i) all labels and packaging supplied by Customer to VIVA, including, without limitation, of any labels do not comply with any applicable laws or regulations or the requirements of the FDA, or (ii) Customer’s negligence, intentional omission, willful misconduct, or breach of this Contract.
(b) VIVA shall defend, indemnify, and hold harmless Customer against any and all losses arising out of or occurring in connection with (i) VIVA’s failure to comply with cGMP or Specifications when manufacturing the Goods, or (ii) VIVA’s negligence, intentional omission, willful misconduct, or breach of this Contract.
17. Limitation of Liability
(a) IN NO EVENT SHALL VIVA BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS, LOST REVENUES, OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY CUSTOMER OR COULD HAVE BEEN REASONABLY FORESEEN BY CUSTOMER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL VIVA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY SPECIFIC PURCHASE ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO VIVA FOR THE GOODS SOLD UNDER SUCH PURCHASE ORDER.
18. VIVA Cancellation of Purchase Orders
VIVA may cancel any specific Purchase Order at any time prior to commencement of manufacture of the applicable Goods without penalty by providing written notice of cancellation to Customer. If there has been an increase in material cost to VIVA to manufacture the Goods in accordance with the applicable Purchase Order occurring after acceptance of a Purchase Order, but before commencement of manufacture, VIVA may provide Customer with updated pricing and if Customer accepts will produce job. If VIVA cancels Purchase Order prior to ordering materials and Customer has paid a deposit, deposit will be returned by VIVA to Customer.
19. Customer Cancellation
(a) If no materials have been procured, the order may be cancelled without penalty.
(b) If materials have been procured but production has not commenced, the Customer shall pay a cancellation fee equal to 50% of the order amount, net 10 days. VIVA may utilize or dispose of the acquired materials at its sole discretion.
(c) If materials have been procured and production has commenced but not been completed, the Customer shall pay 80% of the order amount, net 10 days, and VIVA will issue a written cancellation order invoice to the customer upon acceptance. VIVA may utilize or dispose of the acquired materials and the partially completed production at its sole discretion.
(d) If production has been completed, the customer shall remain obligated to pay 100% of the order amount in accordance with the agreed payment terms.
20. Customer Delay Requests
(a) If customer delay request prior to material procurement after a formal authorization to manufacture has been received, and any applicable deposit has been paid, but materials and components have not yet been ordered, the customer may request a delay of the order. Such a delay shall be subject to VIVA’s approval and dependent on the current production capacity and schedule load. Upon reaching an agreed reschedule date, the order may be subject to re-costing, and a revised purchase order shall be issued by VIVA and signed by the customer or Customer to provide a revised PO, prior to commencement.
(b) If customer delay request prior to material procurement after a formal authorization to manufacture has been received, and any applicable deposit has been paid, and materials and components have been ordered, the customer may request a delay of up to 30 days beyond the original agreed target production completion date. In such case:
(1) If a 50% deposit has not yet been paid, customer shall remit such deposit immediately within 10 business days.
(2) VIVA may charge storage fees for the prolonged storage of procured materials.
(3) If the customer is not prepared to proceed after the 30-day extension, all deposit funds paid shall be forfeited, and VIVA may cancel the purchase order or agree at its options to extend to a mutually agreed upon date, to be determined. VIVA shall have the right to utilize or dispose of the acquired materials at its sole discretion.
(c) If customer delay request after commencement of manufacturing, a formal authorization to manufacture has been received, and any applicable deposit has been paid, and the manufacturing process has begun, no request to delay or halt work in progress will be accepted. Customer shall remain fully obligated to complete the manufacturing process of the order and to pay all invoices within the agreed terms of payment.
21. Stability Testing and Shelf-Life Responsibility
(a) It is the responsibility of the Customer, as the brand owner and distributor, to request or facilitate stability testing for finished products to verify shelf-life. VIVA maintains a stability program in accordance with applicable guidelines (21 CFR 211.166, CHPA Stability Guidelines, NSF/ANSI 455-2, and internal SOP 2019). However, VIVA is not responsible for establishing or maintaining a stability program for Customer’s products unless such testing is explicitly requested by the Customer in writing at the time of purchase order placement and accepted by VIVA in advance. If no stability testing is requested or contracted, VIVA shall not be held liable for claims related to product shelf-life, expiration dating (i.e., Best By Date, Expiration Date, or Use By Date), or stability performance.
(b) The Customer is responsible for establishing and supporting the stability, shelf life, expiration date, or “best by” date of any finished product, unless stability testing or shelf-life determination services are expressly included in a separate written agreement with VIVA Manufacturing LLC. In the absence of such an agreement, VIVA Manufacturing, LLC does not independently conduct stability studies or make shelf-life determinations and shall not be responsible for the accuracy or substantiation of any expiration or “best by” dating applied to the product.
(c) If stability testing or shelf-life determination is requested by the Customer and agreed to in writing, such services will be performed according to the defined scope of work and applicable fees and costs. Responsibility for labeling claims related to product dating remains with the Customer unless otherwise expressly stated.
22. Master Formulas / Quantitative Formulations
(a) The quantitative formulation and Master Formula used in the manufacturing of any Product are the exclusive intellectual property of VIVA and shall be treated as confidential trade secrets. The Buyer has rights only to the publicly disclosed label formula as it appears on the Supplement Facts or[RC9.1][RC9.2] Nutrition Facts panel and does not have access to the full quantitative or procedural details used in the internal Master Formula.
(b) VIVA shall prepare a Master Manufacturing Record (MMR) for each formula and batch size in accordance with 21 CFR Part 111 Subpart H. Each MMR is based on VIVA’s proprietary processes and formulation specifications and shall remain the sole property of VIVA.
(c)VIVA shall retain all records referenced in this section for the required regulatory timeframes and make them available to Buyer QA upon reasonable request, solely for the purposes of verifying compliance and product quality. Access shall not extend to proprietary formulation content or trade secret information unless otherwise agreed in writing.
23. New Dietary Ingredient (NDI) Responsibility
(a) The Customer acknowledges that, as the brand owner and distributor of the finished product, the Customer is responsible for compliance with applicable requirements related to New Dietary Ingredients (“NDIs”) under Section 413 of the Federal Food, Drug, and Cosmetic Act and 21 C.F.R. §190.6. This includes determining whether any dietary ingredient or finished product requires an NDI notification and, if applicable, ensuring that such notification is submitted to the U.S. Food and Drug Administration (FDA).
(b) VIVA Manufacturing LLC operates as a contract manufacturer and does not independently assess whether a product or ingredient requires an NDI notification. Responsibility for regulatory determinations related to NDIs remains with the Customer.
(c) At the Customer’s request, VIVA Manufacturing LLC may provide reasonable technical or documentary support to assist the Customer with regulatory evaluations. Any such support will be provided on an as-needed basis and billed at VIVA Manufacturing LLC’s then-current hourly consulting rates. Provision of support does not constitute a determination or certification of NDI compliance by VIVA Manufacturing LLC.
(d) The Customer agrees to hold VIVA Manufacturing LLC harmless from regulatory actions or claims arising from the Customer’s failure to meet NDI-related obligations.
21. Labeling, Claims, Advertising, and Regulatory Responsibility
VIVA acts as a contract manufacturer. Our primary responsibility is to manufacture products in according to agreed specifications and cGMP requirements. We are responsible for quality control, proper labeling application, and ensuring products are not released in violation of applicable manufacturing regulations.
The Customer, as the brand owner and distributor, is responsible for all product positioning, claims, marketing language, advertising content, and regulatory compliance related to how the product is represented in the marketplace. This includes compliance with FDA labeling rules, FTC advertising standards, and the policies of third-party sales platforms such as Amazon and TikTok.
While VIVA may provide feedback or general guidance regarding labeling or claims, final decisions regarding formula positioning, claim selection, substantiation, marketing content, and international regulatory compliance remain solely with the Customer. The Customer retains responsibility for ensuring that all claims are properly substantiated and compliant with applicable laws in every market where the product is sold.
(a) Labeling, Claims, Advertising, and Regulatory Responsibility
(1) Customer Responsibility for Claims and Marketing: Customer shall be solely responsible for all product claims, marketing representations, advertising content, and promotional materials related to the Goods, whether appearing on product labels, packaging, websites, social media, digital marketplaces (including but not limited to Amazon and TikTok), or other advertising channels. Customer acknowledges that under the Federal Food, Drug, and Cosmetic Act (“FD&C Act”), including but not limited to 21 U.S.C. §§ 331 and 343, a product is deemed misbranded if its labeling is false or misleading or otherwise fails to comply with applicable requirements. Customer further acknowledges that dietary supplement claims are governed by 21 U.S.C. § 343(r)(6) and applicable FDA regulations, including 21 CFR Part 101 and 21 CFR § 101.36. Customer represents and warrants that it possesses competent and reliable scientific evidence sufficient to substantiate all express and implied claims in accordance with applicable law, including but not limited to the FD&C Act and the Federal Trade Commission Act (“FTC Act”), 15 U.S.C. §§ 45 and 52.
(2) VIVA Role; No Legal or Advertising Advisory Services: VIVA Manufacturing, LLC (“VIVA”) acts solely as a contract manufacturer. Any comments, feedback, suggested edits, or observations provided by VIVA regarding labeling, structure/function claims, advertising language, or regulatory considerations are informational only and shall not constitute legal advice, regulatory certification, advertising approval, or claim substantiation review. Customer acknowledges that VIVA does not provide legal services or advertising substantiation review under the FTC Act (15 U.S.C. §§ 45 and 52), nor does VIVA certify compliance with FDA labeling regulations under 21 CFR Part 101, unless expressly agreed to in a separately executed written agreement.
(3) FDA cGMP and Label Control Responsibilities: VIVA shall perform its manufacturing, packaging, labeling, and release obligations in accordance with applicable dietary supplement current Good Manufacturing Practice (“cGMP”) regulations set forth in 21 CFR Part 111, including but not limited to label control, examination, review, and approval requirements under 21 CFR §§ 111.70, 111.127, 111.155, 111.410–111.460. VIVA reserves the right to reject labeling that is clearly non-compliant with applicable FDA regulations or that would render the product misbranded under 21 U.S.C. § 343.
Nothing herein shall be construed to shift VIVA’s independent regulatory obligations under 21 CFR Part 111; however, compliance review conducted by VIVA pursuant to cGMP requirements does not relieve Customer of its sole responsibility for claims, marketing representations, or advertising compliance.
(4) Platform Compliance: Customer shall be solely responsible for compliance with the policies, standards, and requirements of any third-party sales or marketing platforms, including but not limited to Amazon, TikTok, Meta, Google, or other marketplaces. VIVA makes no representations or warranties regarding platform approval, listing eligibility, content moderation decisions, or marketplace enforcement actions.
(5) International Regulatory Compliance: Unless expressly agreed to in writing, VIVA provides Goods solely for compliance with applicable United States laws and regulations. Customer is solely responsible for compliance with all international laws, regulations, labeling requirements, import/export controls, product registrations, and market-specific claim restrictions outside the United States.
(6) Formula Development and Allocation of Responsibility: The parties acknowledge that product formulas may originate under one of several models, including:
(i) formula provided by Customer;
(ii) formula provided by Customer with manufacturing recommendations by VIVA;
(iii) jointly developed formula; or
(iv) formula developed by VIVA and presented to Customer.
In all cases, Customer retains sole responsibility for final claim selection, marketing positioning, advertising content, and substantiation of any claims made regarding the Goods under 21 U.S.C. § 343(r)(6), 21 CFR Part 101, and the FTC Act.
(7) Indemnification for Claims and Advertising: Customer shall defend, indemnify, and hold harmless VIVA from and against any and all claims, investigations, enforcement actions, liabilities, damages, penalties, costs, or expenses arising out of or relating to:
(i) product claims or advertising representations;
(ii) alleged lack of substantiation under the FTC Act (15 U.S.C. §§ 45, 52);
(iii) alleged misbranding under 21 U.S.C. §§ 331 or 343;
(iv) regulatory enforcement by the U.S. Food and Drug Administration or Federal Trade Commission;
(v) platform suspension or listing removal; or
(vi) international regulatory non-compliance,
except to the extent directly caused by VIVA’s failure to manufacture the Goods in accordance with mutually agreed specifications and applicable cGMP requirements under 21 CFR Part 111.
25. Remedy for Breach
In addition to any other rights or remedies available to VIVA at law or in equity, if Customer breaches this Contract, VIVA may (a) cancel any open orders and return to Customer any amounts received by Customer for Goods not manufactured, less a reasonable administrative charge, or (b)refuse to deliver any Goods that Customer has ordered but that have not yet been shipped to Customer (in which case VIVA shall return to Customer any amounts paid by Customer for Goods not shipped by VIVA, less a reasonable administrative charge).
26. Waiver
No waiver by VIVA of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by VIVA. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
27. Force Majeure
VIVA shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of VIVA including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 90 days, Customer shall be entitled to terminate this Contract by providing written notice of termination to VIVA.
28. Assignment
Customer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of VIVA. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Contract.
29. No Third-Party Beneficiaries
This Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Contract.
30. Governing Law
All matters arising out of or relating to this Contract are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida. [
31. Jurisdiction
Any legal suit, action or proceeding arising out of or relating to this Contract shall be instituted in the federal courts of the United States of America or the courts of the State of Florida in each case located in the City of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
32. Notices
All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email (with confirmation of receipt), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
33. Severability
If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
34. Survival
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Contract, including, but not limited to, the following provisions: Limitation of Liability, Governing Law, Submission to Jurisdiction, and Survival. [
35. Amendment
This Contract may only be amended or modified in writing stating specifically that it amends this Contract and is signed by an authorized representative of each party.
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Exhibit A: Fee Schedule
Provided upon request by Customer’s account manager.
