Serves as our standard contract...
Vision Labs Beauty (Pty) Ltd
Tel: +27 33 3970147 Fax: +27 862 481099 Email: firstname.lastname@example.org
PRIVATE LABEL MANUFACTURING AGREEMENT
This Private Label Manufacturing Agreement is made and entered into as of:
DATE: Date of Tax Invoice/purchase
By and between:
Vision Labs Beauty (Pty) Ltd t/a Vision Labs Beauty 2014/078904/07
Tel: 0333970147 Fax: 0862481099 Email: email@example.com
South Africa, KwaZulu Natal, Pietermaritzburg, Willowton ,6 Cardiff Road, Unit 1
A South African limited liability company and hereafter called Vision Labs Beauty (Pty) Ltd
And: Customer details featured on Tax Invoice
(Hereafter called “Customer”).
Vision Labs Beauty and Customer may be referred to individually as the “Party”, or collectively, the “Parties”. Customer shall include all subsidiaries, affiliates, partners, and third party beneficiaries to the terms of this Agreement.
Vision Labs Beauty and Customer mutually acknowledge the following:
1. Vision Labs Beauty is in the business of:
a. Manufacturing and selling natural and organic stock and custom cosmetic bases for private label Contract packaging (the “Products and Services”);
b. Manufacturing and selling custom formulated cosmetic bases for private label contract packaging (the “Products” and “Services”); for Customers wishing to resell those products under their private label brand.
2. Customer wishes to purchase and sell cosmetic products provided by Vision Labs Beauty in combination with packaging and product specifications approved and authorized by Customer. In consideration of the mutual promises and conditions herein after contained, it is agreed between the Parties as follows:
1) PRODUCTS AND SERVICES
a. Pursuant to the terms of the Agreement, Customer hereby agrees to purchase certain of the Products and Services of Vision Labs Beauty and /or hire Vision Labs Beauty to prepare private label products as follows:
b. Customer acknowledges that Vision Labs Beauty shall formulate and may produce products based upon the proprietary formulas owned and controlled solely by Vision Labs Beauty. Customer acknowledges that all Resulting formulas, processes or property developed by Vision Labs Beauty under this agreement are s the sole property of Vision Labs Beauty. Certain Vision Labs Beauty supplied supplemental notices with terms and conditions regarding private labeling services, including but not limited to: production, scenting, containers, labels, and shipping are incorporated by this reference as integral parts of this Agreement.
c. Due to variations when combining natural and other ingredients and with regard to natural ingredient manufacturing, it is normal to see slight variations in colour, scent and viscosity from lot to-lot as the raw material ingredients may vary from production on lot-to-lot. A product shall be considered properly manufactured whether or not there is a colour, viscosity or scent variance of any degree.
d. Other natural considerations can be climate related and should be mitigated by the Customer.Vision Labs Beauty is not responsible for the effects of weather conditions during periods when the product is outside the control of Vision Labs Beauty. It shall be the Customer’s sole responsibility to mitigate the effects of temperature, humidity, and weather during shipment of products and subsequent storage of products at facilities other than Vision Labs Beauty.
e. As noted herein, Vision Labs Beauty is the sole owner of all base formulas or variations of base formulas and is not available for purchase.
f. If Customer requires and pays for a custom formulas, the formula is then property of the Customer. A sales agreement for formulation sales will be entered into.
2) FEES AND PRICING
a. The prices at which Vision Labs Beauty shall sell and Customer shall buy the Private Label Products as of the date of this Agreement are set forth in the Customer Quota on, Customer Invoice or as noted on the Vision Labs Beauty website. All required fees shall be paid in advance prior to the commencement of work. Unless otherwise agreed, all prices are subject to change from me to me, without prior notice, including but not limited to any increases in the actual cost to Vision Labs Beauty of the ingredients, packaging, labels and/or raw materials used in the manufacture of the Products.
b. All purchase orders, deposits or payments are subject to acceptance by Vision Labs Beauty and once accepted cannot be refunded, returned, credited, exchanged or cancelled for any reason. Acceptance is defined as the receipt by Vision Labs Beauty of an order, contract, nondisclosure agreement, private label manufacturing agreement and deposit by Customer.
c. Customer is required to purchase pre-production samples at a costs stipulated by Vision Labs Beauty (Pty) Ltd (for a set of 3 samples).
Before any private label work commences. Customer may not make any alterations, unless
otherwise agreed to in writing and signed by a Vision Labs Beauty duly authorized representative. The cost of the pre-production samples will be applied to the total order amount in the form of a credit. If an order is not placed within 30 days of acceptance of pre-production samples, Customer will be required to purchase additonal pre-production samples.
d. Customer agrees to pay in full for all private label products. Any remaining balance is due upon completion and prior to final shipment of order.
e. Payments shall be made in Rands ZAR or American USD only and shall be made payable only to Vision Labs Beauty (Pty) Ltd by the following forms of payment: cashier or bank check, PayPal, VISA/MasterCard or American Express.
f. Unless otherwise agreed to in writing, upon completion of an order, any unused customer supplied labels, packaging or ingredients shall be shipped back to Customer at Customer’s expense with the order.
g. Upon signature of a separate Customer Storage Agreement, arrangements can be made for Vision Labs Beauty to warehouse Customer property for a period not to exceed twelve (12) months on terms set forth by Vision Labs Beauty for a fee to be determined.
h. The fees and prices do not include any applicable sales, use, value-added, excise or any other tax, duty or charge which is now in effect or may be hereafter imposed by any federal, state or other authority. All applicable taxes, duties or other charges shall be paid by Customer in additional to all fees, prices, and expenses, invoiced by Vision Labs Beauty.
3) PRIVATE LABEL RESPONSIBILITIES (INGREDIENTS AND PACKAGING)
a. All Products sold by Vision Labs Beauty comply with the Regulation of the European Parliament and of the Council on cosmetic products (recast) 2008/0035 (COD) dated 10 November 2009 (finally as 1223/2009 on 30 November 2009) which replaces all other regulations, requirements including adherence to all GMP (Good Manufacturing Practices) and standards. Vision Labs Beauty shall make its best efforts to ensure that all products developed by Vision Labs Beauty will be safe for use under the Federal Food, Drug and Cosmetic Act of 1997 as of the date of manufacture. Testing services upon request and advance payment by Unless otherwise agreed, Vision Labs Beauty shall provide all selected packaging components and materials, including but not limited to caps, lids, jars, bottles, seals, leak prevention measures, etc. (collectively called the “Components”). Customer is solely responsible for verifying that the quality and delivery of all Components used by Vision Labs Beauty for the private label products meet the Customer’s standards and are appropriate for the product(s) selected by the Customer.
b. All additional steps including, but not limited to: master packing, tamper evident seals, shrink wrap, blister packing, safety discs, lot coding, extra capping, etc., will incur additional fees.
c. If the Customer is providing any ingredients to Vision Labs Beauty for use in any formula on whether stock or custom, Customer shall make available the current MSDS and Certificate of Analysis (COA) for each provided ingredient. Customer also accepts all financial and other responsibility for any negative effects and outcome when formulations are manufactured using the ingredients stipulated by Customer.
d. LABELING is available for an additional fee and unless specifically agreed otherwise, in the event that Customer requests Vision Labs Beauty to affix labels, information and instructions on notices or panels to containers and packaging for the Products, Customer shall be completely and solely responsible for all content, including but not limited to health, storage, safety, and use instructions and claims. All labels will be hand applied and may vary in application quality and acceptance is nonnegotiable and assumed accepted as is.
I. Customers providing their own labels must submit labels for per-approval and agrees to deliver at least 10% overage of all labels and packaging collectively known as Components prior to the start of Vision Labs Beauty services for any particular order.
Any delay in the Customer provided components will result in a project delay and could
incur additional storage fees for any previously delivered components per Sec on 2.8.
The application of clear label stock is subject to an additional application 10% fee. Some
restrictions apply. The application of front and back labels or labels of different stock will incur an additional 10% application fee. Slight labeling and height variances are normal for hand application and will not be redone, refunded or credited.
Vision Labs Beauty is not responsible for any quality issues that relate to labels and their
application, and Customer should allow for a 10% loss on labels.
Customer labels must comply with FDA and Vision Labs Beauty required specifications.
According to the Code of Federal Regulations (CFR), Title 21, Part 701.12, “The label of a
Cosmetic . . . shall specify conspicuously the name and place of business of the
Manufacturer, packer or distributor . . . Where the cosmetic is not manufactured by the
person whose name appears on the label, the name shall be qualified by a phrase that
reveals the connection such person has with such cosmetic, such as “Manufactured for
–“, “Distributed by –“, or any other wording that expresses the facts. The statement of
the place of business shall include the street address, city, state and zip code; however,
the street address may be omitted if it is shown in a current city directory or telephone
e. Time Estimates are provided by Vision Labs Beauty as a courtesy to Customers and Vision Labs Beauty reserves the Right to modify time estimates due to prevailing circumstances.
f. Testing – Unless otherwise specifically agreed in writing, Customer is solely responsible for testing of any product(s). With regard to product(s), mixing and combination of ingredients provided or stipulated by Customer, Vision Labs Beauty does not conduct any testing (including, for example, efficacy, stability and consistency) without specific authorization and payment by Customer. Furthermore, the only products represented as “safe for use” are Vision Labs Beauty products (original stock bases). Despite the above, Vision Labs Beauty offers a wide range of Custom Formulations.
4) SHIPPING TERMS
a. All fees and pricing as well as delivery of the Product(s) shall be FOB from Vision Labs Beauty shipping address to the extent that Customer requests delivery at any other specified destination, all charges, taxes, and assessments for shipping, insurance, and freight as well as all costs of risk of loss or damage to the Product(s) occurring while in transit from Vision Labs Beauty’s shipping docks to Customer’s delivery destination and a afterwards shall be solely Customer’s responsibility. Any insurance covering the Product(s) in transit shall be for an amount not less than the full invoice price of the items delivered, with Vision Labs Beauty named as loss payee or additional insured.
b. Vision Labs Beauty preferred shippers is UPS, DHL, Door To Door Couriers.
5) INTELLECTUAL PROPERTY
a. The Par es agree that Vision Labs Beauty is the exclusive owner of trademarks (including designs and logos), trade secrets, copyrights, specifications, formulas and other intellectual property rights relating to Vision Labs Beauty, the Product(s), Services and Custom Formulation(s), with the exception of any private label rights granted to Customer under this Agreement.
b. In addition, Customer acknowledges and agrees that the composition and formula on of the Product(s) including the chemical composition and all methods and instructions for their formulation, processing and production and all intellectual property, processes, know-how, trade secrets and other proprietary information therein (“Vision Labs Beauty Intellectual Property”) are the sole and exclusive property of Vision Labs Beauty, with the exception of any private label rights granted to Customer under this Agreement and excluding- any pre-existing rights of the Customer that the Customer provided to Vision Labs Beauty.
c. Customer shall not use Vision Labs Beauty Intellectual Property for any other purpose than to perform the terms of this Agreement. In the event that Customer wishes to purchase a custom formula on, such purchase shall be pursuant to a separate agreement and purchase terms and conditions.
d. Customer agrees to refrain from any ac on or to allow any ac on to be taken to damage Vision Labs Beauty interests and Intellectual Property rights in any juristic on where Customer does business. Therefore, Customer agrees, neither to register nor to assist in registering, any Vision Labs Beauty Intellectual Property rights or other rights (including Vision Labs Beauty’s Private Label system, patents, copyrights, trade secrets, trademarks, trade names or symbols) of Vision Labs Beauty or other marks or rights which may be confusingly similar to Vision Labs Beauty anywhere worldwide.
a. “Confidentiality and Proprietary Information” means (i) the ingredients, their relative concentrations and techniques for mixing and conditioning that comprise the Product(s) and/or Custom Formulation(s) and
(ii) all information about Vision Labs Beauty current or future business operations and business plans, pricing, research and development, future products, financial information, and all Intellectual Property rights and trade secrets developed by Vision Labs Beauty in conjunction thereof.
b. Protection of Confidential and Proprietary Information. Without Vision Labs Beauty written consent, Customer shall not provide, disclose, nor otherwise make available to any third party any of Vision Labs Beauty Confidential and Proprietary Information. Further, except as expressly provided herein, Customer will not use or disclose such Confidential and Proprietary Information without Vision Labs Beauty prior written consent, except to Customer’s employees or consultants on a need to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential and Proprietary Information that are at least as
restrictive as Customer’s obligations under this section. In addition to the foregoing nondisclosure obligations, Customer agrees to use at least the same care and precaution in protecting such Confidential and Proprietary Information as it uses to protect its own confidential and proprietary information and trade secrets, and in no event less than reasonable care. Customer shall return all confidential Information on promptly upon Vision Labs Beauty request or upon termination of this Agreement.
c. Customer acknowledges that Vision Labs Beauty has a valuable and proprietary interest in the formula on of its stock cosmetic bases, other Product(s) and the Custom Formula on(s).
7) REPRESENTATIONS AND WARRANTIES
a. Customer hereby represents warrants and covenants to Vision Labs Beauty as follows:
i. In providing to Vision Labs Beauty any and all Product specifications, ingredients, labels, packaging, and materials of any kind, Customer represents and warrants that it has the requisite authority to stipulate and provide such specifications, ingredients, labels, packaging, and materials and that such components, either individually or in combination shall not infringe any third party rights of ownership or use.
ii. Customer shall comply with all laws and regulations relating to the conduct of its business in all jurisdictions where it does business.
iii. Customer shall comply with all laws and regulations relating to the marketing, sale, and use of the Product in all jurisdictions where it does business.
b. Vision Labs Beauty represents and warrants to Customer:
I. At all times during the term of this Agreement, Vision Labs Beauty shall maintain Good
Manufacturing Practices and Procedures.
8) ACCEPTANCE AND LIMITED WARRANTY
a. Acceptance – For purposes of any time-sensitive project under this Agreement, Customer must give Vision Labs Beauty written notice of any products that Customer wishes to reject and not accept under the terms of this Agreement within ten (10) business days of receipt of such Product(s) by Customer. In the event that Customer does not reject the received Product(s) within the 10-day period, then the Product(s) shall be deemed to be accepted by Customer.
b. Warranty for Defects – In the event that Customer considers the Product(s) and/or Custom Formulation(s) provided by Vision Labs Beauty to be defective in either materials or workmanship, Customer must give Vision Labs Beauty notice in writing of such alleged defect(s) no later than ten (10) days from the date of delivery (the Warranty Period) of the Product(s) to Customer or Customer’s agent. Such written notice shall state with particularity in what respects the Product(s) is nonconforming or defective. Customer shall return to Vision Labs Beauty a sample of the Product(s) which it claims are nonconforming or defective at Customer’s expense and safeguard the remaining product pending resolution of the warranty claim. If Vision Labs Beauty, in its sole discretion, agrees
with Customer that the Product(s) are non-conforming or defective, and that the cause is
determined to be the fault of Vision Labs Beauty, then Vision Labs Beauty shall have a reasonable time to either (i) cure any nonconforming or defective tender by substituting conforming Product(s) at Vision Labs Beauty expense or (ii) refund Customer’s purchase price. Either remedy is subject to Vision Labs Beauty sole discretion. In the event that Customer does not inform Vision Labs Beauty in writing regarding any alleged defect in the Product(s) within- the ten day notice period, Customer waives all rights under any applicable law to raise a claim.
9) LIMITATION OF LIABILITY AND INDEMNITIES
a. Limitation of Liability – Under no circumstances shall either Party or its respective officers, directors, shareholders, employees or agents be liable to the other Party for indirect, incidental, consequential, special, exemplary or speculative damages, arising out of this Agreement, including but not limited to loss of revenue or profits, loss of use, or other consequential business opportunities, even if advised of the possibility of such damages.
b. EXCEPT AS STATED IN SECTION 8, Vision Labs Beauty DISCLAIMS ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, ESPECIALLY THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
c. Customer agrees to indemnify, defend and hold Vision Labs Beauty, its owners, directors, employees, and agents (“Indemnified Par es”) harmless against any claims, units, damages, liabilities, judgments, losses, costs and expenses (including a attorneys’ fees) made against or incurred individually or collectively by the Indemnified parties, as a result of any of the following: (i) any breach of this Agreement by Customer, Independent contractors or agents, (ii) any claim of infringement or for defects, related to any Specifications, ingredients, labels, packaging, and materials of any kind provided by or
stipulated by Customer under this Agreement, (iii) injury or death suffered by anyone related to the product(s), Services, or Custom Formula on(s) due to specifications stipulated or approved by Customer or occurring after the Product(s) leave the care, custody, and control of Vision Labs Beauty at the delivery destination under this Agreement.
10) TERM AND TERMINATION
a. Term and Termination. This Agreement shall supersede all previously signed agreements and will become effective upon the date first set forth pertaining to applicable paid tax invoice and shall continue for a period of two (2) years or unless all obligations here under have been completed, unless earlier terminated by either Party upon 30 days written notice or by fulfillment of all responsibilities of the Parties.
b. Either Party may terminate this Agreement (i) upon a material breach by the other that remains uncured for a period of thirty (30) days after receipt of written notice specifying the breach with particularity.
c. In the event of termination for any reason, such termination shall not affect Customer’s obligation to pay for the work and expenses performed while under this Agreement (at any stage of completion) at the me of termination. Nor shall the Limitations of Liability (Sec on 9) be affected by the termination of the Agreement for any reason.
a. Amendment. The Agreement may not be modified or amended unless in writing by mutual agreement of the Parties.
b. No Assignment. Customer may not assign, sell, or otherwise transfer any or all rights and
obligations under this Agreement to any third party without the prior written consent of Vision Labs Beauty.
c. Integration. This agreement is a complete and exclusive statement of the Agreement between the Parties and supersedes all prior and contemporaneous agreements, negotiations, discussions, and Proposals, oral or written, and any and all other communication relating to the subject matter of this Agreement.
d. Sever-ability. In the event of the invalidity of any provision of this Agreement, the parties agree that such invalidity shall not affect the validity of the remaining portions of this Agreement
e. Dispute Costs. In the event that either Party initiates dispute resolution on proceedings in any way related to this Agreement, the prevailing party shall be entitled to the award of dispute resolution costs and expenses, including but not limited to all reasonable media on, court, or arbitration costs, as well as a attorneys’ fees and expenses not to exceed the total cumulative liability (Sec on 9.4).
f. Notices. Any notice or other communication required shall be in writing.
12) FORCE MAJEURE
a. Neither Party shall bear responsibility for the complete or partial non-performance of any of its Obligations if the non-performance results from such unforeseeable circumstances as natural calamities, fire, changes of export/import regulations or law of any countries or territories with authority and jurisdiction, unavailability of supply or ingredients, failure of transport, or any other circumstances beyond the foreseeable control of either Party. The time stipulated for the fulfillment of the obligations shall be extended for a period equal to the duration of such circumstances. The Party for whom it has become impossible to meet its obligations under the Agreement shall
immediately advise the circumstances preventing the fulfillment of its obligations and shall take all reasonable actions to cure the force majeure event(s). If the above circumstances last more than 6 months, either Party shall have the right to seek modification of the Agreement or, alternatively, its termination. The other Party shall not unreasonably withhold its consent.
13) GOVERNING LAW AND DISPUTES
a. This Agreement shall be governed by the laws of South Africa to the exclusion of all other conflict of law alternatives. The Parties consent to the exclusive jurisdiction on and venue of the state and federal courts located in South Africa, for any mediation, arbitration, action, suit, or legal proceeding arising in connection with this Agreement.
b. Negotiation. Except for a request for injunctive relief or other provisional remedy which may be sought from a court, any dispute, controversy or claim arising out of or relating to this Agreement, or the breach hereof or thereof, including any claim based on contract, tort or statute, and including any controversy about whether a claim is subject to arbitration or whether this Sec on 13 is valid or enforceable (any such dispute, controversy or claim, a “Dispute”), shall be resolved in accordance with the procedures set forth in this Sec on 13. In the event any Dispute arises, each Party shall first promptly provide the other Party with a general written Dispute arising, each Party shall first promptly provide the other Party with a general written statement of its claim(s) and position(s).
This statement need not be complete and will not limit the claims of a Party in any further
procedure. The statement shall indicate that it is the first statement of a formal dispute resolution process under this Agreement. If the Parties cannot resolve the Dispute within 15 days of receipt of the first of these written statements, a claimant may proceed as set forth in Sec on 13.3 below. c. Mediation. If a dispute cannot be settled through negotiations contemplated under Sec on 13.2, the Parties agree to endeavor to settle the Dispute in an amicable manner by mediation administered by the Judicial Arbitration and Mediation Services under its Comprehensive Mediation Rules, before resorting to arbitration under Sec on 13.4. if for any reason, the Dispute is not settled by mediation within 30 days after a Party elects to proceed by media on (commencing upon the date a Party delivers notice to the other Party of its intention to proceed to media on), any unresolved dispute shall be settled by arbitration as contemplated under Sec on 13.4. d. Arbitration. Any dispute not resolved pursuant to sec on 13.2 or 13.3 shall be solely and finally settled by arbitration by one arbitrator in accordance with the then-existing Comprehensive Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services. Each Party agrees that the award of the arbitrator shall be final and non-appealable and shall be the sole and exclusive remedy between or among them regarding any and all claims, counterclaims, issues and accounting presented to the arbitrator, irrespective of the magnitude thereof. All arbitration proceedings shall be conducted pursuant to the Judicial Arbitration and Mediation Services rules in South Africa as modified pursuant to this Sec on 13.4. The number of arbitrators shall be one, which person shall be neutral, have sufficient business experience and not be a practicing attorney, and shall be mutually agreed upon by all Parties within 60 days after a written request for arbitration by one Party is delivered to all other parties. In the event that the Parties cannot agree on an arbitrator, the arbitrator shall be selected within 10 days thereafter by the Judicial Arbitration and Mediation Services from a list submitted by the Parties, with each Party having the right to propose two names, If a qualified arbitrator cannot be appointed from the initial list, the process will be repeated every five days thereafter until a qualified arbitrator is selected. Each party agrees to facilitate the
arbitration by: (i) making available to each other and to the arbitrator for inspection and extraction all documents, books, records and personnel under their control as the arbitrator shall determine to be relevant to the dispute; (ii) conducting arbitration hearings to the greatest extent possible on successive, contiguous days; and (iii) observing strictly the time periods established by the Judicial Arbitration and Mediation Services rules or by the arbitrator for the submission of evidence and
briefs. All papers, documents or evidence, whether written or oral, filed with or presented to the arbitrator shall be deemed by the parties and the arbitrator to be confidential information. No party, expert or arbitrator shall disclose in whole or in part to any other person any confidential information submitted by any other person in connection with any arbitration proceedings, except to the extent
(i) Required by law or regulation,
(ii) Reasonably necessary to assist counsel in the arbitration or preparation for arbitration of the dispute or
(iii) That such “confidential” information was previously or subsequently becomes known to the disclosing party without restrictions on disclosure, was independently developed by such disclosing party or becomes publicly known through no fault of the disclosing party. The arbitrator shall issue a written explanation of the reasons for the award and a full statement of the facts as found and the rules of law applied in reaching their decision to the parties. Such explanation of the award and the statement of facts shall be treated as confidential information. The arbitrator is empowered to render the following awards in accordance with any provision of this Agreement:
(i) enjoining a party from performing any act prohibited or compelling a party to
performing act required, by the terms of this Agreement and any order entered
pursuant to this Agreement or deemed necessary by the arbitrator to resolve disputes
arising under or relating to this Agreement or order;
(ii) (ii) where, and only where, violations of this Agreement have been found, shortening or
lengthening any period established by this Agreement or order; and
(iii) (iii) ordering such other legal or equitable relief (subject to the limitations on liability set
forth (herein and therein) or specifying such procedures as the arbitrator deems
appropriate, to resolve any dispute submitted to it for arbitration. The arbitration
proceeding and the arbitrator shall resolve in their award the extent to which of the
parties shall bear the arbitration costs. Each party hereby waives to the extent permitted by law all jurisdictional defences, objections as to venue and any rights to appeal or to
review of such award by any court or tribunal. Each party agrees that the arbitral award
may be found and that a judgment on the arbitration award may be entered in any court
having competent juristic on over the parties or their assets.