Terms & Privacy

NUTRIX INTERNATIONAL TERMS AND CONDITIONS TO
DEVELOP AND/OR SUPPLY PRODUCT

1. Definitions

Unless the context otherwise requires, the following terms as used in these terms and conditions (this “Agreement”) shall have the following meanings:

“Affiliate” means any entity that controls, is controlled by, or is under common control with a party.

“Change of Control” means any transaction or series of transactions resulting in a change in the ownership of more than 50% of the equity interests, voting securities, or assets of a party.

“Component” means (i) any Formula, and (ii) any ingredient, material, logo, design, equipment, and other physical object involved in the development or mixing of a Formula, or the manufacture or packaging of a Product.

“Confidential Information” means information in any form, oral, graphic, written, electronic, machine-readable or hard copy consisting of (i) any non-public information provided by the Disclosing Party, including but not limited to, all of its inventions, designs, data, source and object code, customer lists, manufacturing and vendor information, pricing, program interfaces, know-how, trade secrets, techniques, ideas, discoveries, formulas, mixing instructions, marketing and business plans, pricing, financial information, and similar information; (ii) the terms of this Agreement; (iii) any information that the party disclosing such information identifies as confidential; and (iv) all other information that the party receiving such information should reasonably expect to be confidential.

Confidential Information does not include information that (x) was rightfully known by the receiving party prior to receipt of such information from the disclosing party, or is independently developed by the receiving party without use of, reference to or reliance on any Confidential Information of the disclosing party; (y) is or becomes generally known to the public without violation of this Agreement by the receiving party; or (z) is disclosed to the receiving party by a third party without breach of such third-party’s obligations to the disclosing party.

“Customer” means the customer identified in the Sales Order to which these Terms are attached.

“Customer Exclusion” means any failure of a Product to meet the Specifications that arises out of or relates to (i) a Customer Supplied Component; (ii) an act or omission of Customer; (iii) a modification of a Product by Customer; or (iv) artwork or labeling provided by Customer to Nutrix.

“Customer Formula” means any formula provided by Customer to Nutrix.

“Customer Directed Component” means any Component that Customer directs Nutrix to use or incorporate into a Formula or Product.

“Customer Supplied Component” means any Component that Customer supplies to Nutrix for use or incorporation into a Formula or Product.

“Facility” means Nutrix’s warehouse located at 810 N. 2200 W., Salt Lake City, Utah 84116, or such other warehouse as Nutrix may determine upon notice to Customer.

“Force Majeure Event” means any event beyond the reasonable control of a party, including but not limited to: (i) natural disasters, including flood, fire, earthquake or explosion; (ii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, revolution and other civil upheavals; (iii) requirements of law or action by any governmental authority (whether or not having the effect of law); (iv) actions, embargoes or blockades in effect on or after the date of this Agreement; (v) national or regional emergencies or epidemics or pandemics; (vi) strikes, labor stoppages or slowdowns, lock-outs or other labor troubles that interfere with the supply or transportation of a Component or Product; (vii) material supply chain disruptions, shortages of or delays in receiving Components, or prohibitions of the import/export of a Component or Product; and (ix) shortages of adequate power or transportation facilities.

“Formula” means the process by which Components are combined to produce a product, and includes Nutrix Formulas and Customer Formulas.

“Intellectual Property” means any invention, patent, design, copyright, trademark, service mark, database, commercial or confidential information, know how or trade secrets, and any other intellectual property, whether registered or not. With respect to Nutrix, Intellectual Property includes all rights and information relating to its process for mixing materials or ingredients to produce a Formula, regardless of whether the Customer provides any Components in connection with such Formula, and regardless of Customer’s involvement in developing the Specifications (“Mixing Instructions”).

“Intellectual Property Rights” means all rights to any Intellectual Property.

“Nutrix” means Nutrix, LLC, with a principal place of business at 810 N. 2200 W., Salt Lake City, Utah 84116.

“Nutrix Formula” means any formula that is not a Customer Formula, together with all improvements or modifications thereto.

“Product” means the product(s) identified on the Sales Order.

“Services” means Nutrix’s (i) supply or sourcing of Components for a Formula or Product, (ii) formulation of a Formula for Customer, (iii) mixing of a Formula for Customer, (iv) packaging of a Product, and (v) such other services as Nutrix may agree to provide.

“Specifications” means, collectively, the then-current Product bill of materials and Product quality control records, which shall be maintained and stored at Nutrix’s facility, in addition to all formulas, quality standards, and regulatory requirements, as agreed in writing by the parties and as may be amended from time to time in accordance with this Agreement.

1. Manufacture and Delivery

1. 1. Manufacture; Sales Orders.

1. 1. 1. Customer shall place orders for Services and Products using a purchase order (“Purchase Order”), provided that the final terms of the Parties’ transaction shall be governed by a sales order (“Sales Order”) provided by Nutrix to Customer. Nutrix shall attempt to reject a Purchase Order or provide a corresponding Sales Order within five (5) business days of receipt of a Purchase Order. Failure to respond to Customer’s Purchase Order within the five-day period shall be deemed rejection thereof. In the event of a conflict between the terms of this Agreement, the Sales Order, the Purchaser Order, and any price quote, the following order of priority shall apply: the terms of this Agreement shall govern, followed by the Sales Order, followed by the Purchaser Order, followed by any price quote.

1. 1. 1. Nutrix shall provide the Services and Products identified in the Sales Order, provided that Nutrix may deliver and invoice Customer for up to ten percent (10%) more, or to provide a credit for ten percent (10%) less, than the quantity of Products identified in the applicable Sales Order.

1. 1. 1. Customer may not cancel or modify a Purchase Order after Nutrix’s provision of a corresponding Sales Order without the written approval of Nutrix.  In the event Nutrix agrees to modify or cancel a Sales Order, Customer shall reimburse Nutrix for all losses (including loss of profits), costs (including the cost of all labor and Components, and the cost of disposal of any Products unusable in connection with the cancelled or modified Sales Order), damages, and any other expense incurred by Nutrix in the performance of this Agreement up to the time of modification or cancellation.

1. 1. Specifications; Quality and Technical Agreement.

1. 1. 1. Nutrix shall provide the Services and manufacture the Products in accordance with the Specifications, as the same may be updated from time to time. Nutrix may make reasonable changes to the Specifications to improve manufacturability, quality, and compliance without the consent of Customer.

1. 1. 1. All Formulas and Products shall comply with the Quality and Technical Agreement signed by the Parties, provided that Nutrix may make reasonable changes to the Quality and Technical Agreement. The Quality and Technical Agreement is incorporated herein by reference.

1. 1. 1. Nutrix shall implement, as soon as commercially reasonable, any change or modification to the Specifications that are requested by Customer. Notwithstanding the foregoing, Nutrix shall not be required to implement any such change or modification that is not feasible, would violate law or best practices, or would materially increase Nutrix’s costs or risk. Further, no change or modification will be effective unless the parties have separately agreed in writing that (i) Nutrix will implement such change or modification, (ii) Customer will reimburse Nutrix for all costs incurred as a result of such change or modification, and (iii) Nutrix may make any reasonably necessary adjustments to pricing, lead times, and delivery schedules in connection with the change or modification. Customer shall be responsible for all costs, including but not limited to Components and work in process rendered obsolete or unusable as a result of any change requested by Customer.

1. 1. Packaging and Labeling; Logos and Branding. Customer (not Nutrix) will be responsible for (i) making any filings required to protect Customer’s rights to the logos, marks, works, or other Intellectual Property relating to Customer’s label, artwork, and branding (“Branding IP”), (ii) compliance with third-party intellectual property rights in connection with Branding IP, and (iii) applicable laws, including the laws and rules administered and promulgated by the U.S. Food and Drug Administration and U.S. Federal Trade Commission, and laws governing any claims made on packaging. Nutrix will not be liable in any manner for intellectual property filings, non-compliance with intellectual property rights in connection with Branding IP, or violations of applicable laws arising from or relating to Customer’s labeling, artwork, or branding.

1. 1. Delivery.

1. 1. 1. Nutrix shall deliver the Products Ex Works (EXW) Facility. Customer shall pay all applicable freight and insurance charges, third party handling charges, and all applicable taxes, customs, duties, or other charges relating to the retrieval and/or delivery of the Product from the Facility. Risk of loss shall lie with the Customer upon delivery of the Products to the Facility. However, title to the Products shall remain with Nutrix until Nutrix receives full payment required hereunder.

1. 1. 1. Customer shall have 72 hours, from the time Nutrix delivers to Customer a Certificate of Analysis for the Products, to remove or have its carrier remove the Products from the Facility. If the Products are not removed within 72 hours, Nutrix has the right to ship the Products to Customer, with Customer bearing all applicable freight and insurance charges, third party handling charges, and all applicable taxes, customs, duties, or other charges relating to the delivery of the Product.

1. 1. 1. Nutrix shall deliver Products within the timeframe set forth in the applicable Sales Order. Nutrix shall not be deemed in breach of this Agreement for any delay in delivery caused by (i) a Customer request, including a request for modification of the Specifications, or (ii) delay in delivery of or any other issue with a Customer Supplied Component.

1. 1. Storage. Customer agrees to pay a $50 per pallet fee per month for storage of any raw or finished goods that Nutrix agrees to store on Customer’s behalf (“Stored Goods”). Customer will be invoiced monthly for its storage of Stored Goods.  The length and manner of storage of Stored Goods shall be at Nutrix’s sole discretion, except as otherwise described in writing between the Parties. Nutrix may demand that Customer pay to have Stored Goods removed, and may sell or otherwise dispose of Stored Goods, in Nutrix’s sole discretion, upon Customer’s refusal to remove such Stored Goods.

1. 1. Conformance; Inspection.

1. 1. 1. Nutrix shall provide Customer with a Certificate of Analysis for each Formula or Product upon request. Customer shall have ten (10) days from delivery of a Formula or Product, or from provision of the Certificate of Analysis if such Certificate is provided after delivery) to inspect the Formula or Product for compliance with the Specifications and to notify Nutrix in writing of any non-compliant Products (the “Testing Period”).

1. 1. 1. Non-substantive deviations from the Specifications (i.e, deviations that do not relate to a Product’s chemical integrity), shall not be deemed to render a Product non-compliant. Without limitation, a Product shall not be deemed non-compliant by virtue of its paneling, changes to packaging, and other aesthetic changes occurring during delivery.

1. 1. 1. A Formula or Product shall only be determined non-compliant (a “Non-Compliant Product”) if (i) Customer notified Nutrix of the non-conformity in writing within the Testing Period, (ii) the Formula’s or Product’s failure to meet the Specifications is confirmed by testing conducted by Nutrix, and (iii) such failure is not the result of a Customer Exclusion. In the event of a dispute regarding whether Formulas or Products are non-conforming, the parties shall jointly select an independent laboratory to test the Formulas or Products, and the determination of such laboratory shall be final and binding. The costs of such testing shall be borne by the non-prevailing party.

1. 1. 1. Upon confirmation that a Product is non-confirming, Nutrix shall, at its option, (i) replace or repair Non-Compliant Products, (ii) issue a refund, or (iii) issue a credit for future Sales Orders.

1. 1. 1. Acceptance of Formulas or Products shall be final and binding. Customer’s failure to give Nutrix notice of noncompliance within the Testing Period, or distribution of the Product or any other product containing a Formula for commercial sale, shall constitute acceptance by Customer of the Formula or Product and a waiver of any claims for non-compliance.

1. 1. “To Be Released” Agreements. If Customer signs a “To Be Released” agreement to receive a Product or Formula prior to Nutrix’s completion of testing and provision of a Certificate of Analysis, Customer will have sole responsibility for (i) ensuring non-contamination of the Product or Formula, and (ii) disposing of a Product or Formula that is non-conforming.

1. Payment, Breach and Termination

1. 1. Price. Subject to the terms and conditions of this Agreement, Customer shall purchase Services and Products from Nutrix at the prices set forth in a Sales Order, and as such prices are adjusted pursuant to this Agreement. Customer shall also pay Nutrix for all other services performed by Nutrix and agreed upon in writing by the parties.

1. 1. Price Adjustments.   Nutrix may make reasonable price adjustments at any time in the event of a change in the Specifications or a change in Nutrix’s costs and/or expenses associated with the Services, including as a result of increases in the cost of Components and labor, changes in tariffs and regulations applicable to the Services or Products, and Force Majeure Events.

1. 1. Breach; Remedies. Customer shall pay Nutrix in accordance with the payment terms set forth in the Sales Order. Late payment or non-payment shall be considered a material breach of this Agreement and Nutrix shall have the right to take any of the following actions: (i) charge interest at the annual rate of eighteen percent (18%) per year, one and one-half percent (1.5%) per month, calculated daily and assessed monthly; (ii) suspend or withhold all further deliveries of Formulas or Products to Customer under this Agreement or any other contract with Customer, (iii) require prepayment of the Services or Products, or a letter of credit or other financial assurances, if Nutrix reasonably believes Customer is or will be unable to perform its obligations hereunder; or (iv) terminate this Agreement and charge Customer for all losses (including loss of profits), costs (including the cost of all labor and Components and disposal of the Products), damages, charges, and any other expenses incurred by Nutrix in connection with its performance of this Agreement, breach by Customer, and termination of this Agreement. Nutrix’s remedies hereunder are cumulative and no exercise by Nutrix of any single remedy shall preclude it from exercising any other right it may have under this Agreement or applicable law.

1. 1. Term. This Agreement shall become effective at the time Nutrix issues a Sales Order and shall continue for a period of one (1) year after delivery.  This Agreement shall be automatically renewed for successive one (1) year terms, unless notice of non-renewal is provided in writing no less than ninety (90) days before the date of expiration.

1. 1. Termination.

1. 1. 1. Nutrix may terminate this Agreement or any Sales Order for convenience upon ninety (90) days’ written notice to Customer.

1. 1. 1. Either party may terminate this Agreement immediately upon written notice if the other party (i) becomes insolvent, files for bankruptcy, or has a receiver appointed, or (ii) commits a material breach that is not cured within thirty (30) days after written notice. Customer’s breach (A) of Sections 2.3, 3, 4, 5, 6, or 7, (B) of Customer’s confidentiality obligations under an effective non-disclosure agreement, and (C) Customer’s obligations under the Quality and Technical Agreement, shall all be considered a material breach. Additionally, Nutrix may terminate this Agreement if Customer undergoes a Change of Control without the prior written consent of Nutrix.

1. 1. 1. Upon cancellation of a Sales Order or termination of this Agreement:

1. The parties shall reasonably cooperate to transfer to Customer all Components (including those ordered but not yet delivered to Nutrix), finished goods, and inventory, related to the Services and Products.

1. Customer shall pay Nutrix for all Products delivered, work in process, and Components purchased or committed to by Nutrix in connection with this Agreement, plus any applicable storage, handling, and disposal costs incurred or committed to be incurred up to the date of cancellation or termination.

1. All obligations of both parties, including obligations of confidentiality, indemnity, and any accrued financial obligations hereunder which expressly or by their nature should survive the expiration or termination of this Agreement, shall continue in full force and effect.

1. Regulatory Matters; Insurance

1. 1. Product Clearances.  Customer shall obtain and maintain, at its sole cost, all regulatory approvals from any regulatory authorities necessary for the marketing, sale, and distribution of a Product, including but not limited to product labeling, packaging, and claims. Nutrix shall reasonably cooperate with Customer, at Customer’s expense, in obtaining applicable regulatory approvals; provided, however, that (i) Nutrix shall not disclose information deemed by Nutrix to be proprietary or confidential, and (i) Nutrix shall not be liable in any manner for any required filings or approval, or for any failures to obtain any required approvals.

1. 1. Recalls.  Customer shall be responsible for all costs and expenses related to a recall or market withdrawal of a Product or a product recalled or withdrawn because of its Formula, except to the extent such recall or market withdrawal is directly caused by the Formula’s or Product’s failure to meet the Specifications (so long as the failure is not attributable in any way to any Customer Exclusion). In the event of a recall, withdrawal, or field correction, the parties shall cooperate in good faith to investigate and resolve the issue.

1. 1. Insurance. Customer shall maintain product liability and recall insurance with limits of not less than [$10,000,000] per occurrence, naming Nutrix as an additional insured, and shall provide certificates of insurance upon request.

1. 1. Labeling.  Customer shall be responsible for ensuring that all labeling, content, artwork, and instructions for use comply with all applicable laws in the territories where Customer markets, sales, or otherwise distributes a Product. Nutrix shall not be liable for any violations of a Product with any such applicable laws.

1. Confidentiality

1. 1. Confidentiality. Each party agrees that the recipient of Confidential Information (the “Receiving Party”) will keep strictly confidential all Confidential Information provided by the other party (the “Disclosing Party”). The Receiving Party further agrees to use the Confidential Information of the Disclosing Party solely as permitted under this Agreement or for the purposes of fulfilling its obligations hereunder. The Receiving Party shall not disclose Confidential Information to any third party without the Disclosing Party’s prior written consent, given by an authorized representative.

1. 1. Prior Agreements. This Agreement incorporates by reference all prior confidentiality agreements, if any, executed by Nutrix and Customer, as though fully set forth herein.  In the event of a conflict between this Agreement and a prior confidentiality agreement, the provision that best protects Nutrix’s confidential information shall govern. Upon termination, each party shall promptly return or destroy all Confidential Information of the other party.

1. 1. Permitted Disclosure. Notwithstanding Section 5.1, if required by judicial or regulatory order, the Receiving Party may disclose Confidential Information of the Disclosing Party, provided that the Receiving Party (i) gives prompt prior written notice to the Disclosing Party sufficient to allow the Disclosing Party to seek a protective order or other remedy; (ii) discloses only such Confidential Information as it is required to disclose; and (iii) uses commercially reasonable efforts to obtain confidential treatment of any Confidential Information so disclosed.

1. 1. Survival. The confidentiality obligations under this Section 5 shall remain in full force and effect for a period of three (3) years following termination of this Agreement.

1. 1. Provision of Information. Non-confidential information related to the Specifications shall be made available to Customer upon request.

1. Intellectual Property

1. 1. Formulas.

1. 1. 1. As between the Parties, Customer Formulas shall remain the sole property of the Customer. Customer grants to Nutrix a worldwide, royalty-free, fully paid-up, non-transferable, non-exclusive and irrevocable license to use Customer Formulas to perform the Services hereunder. Any improvements or modifications to Customer Formulas made by Nutrix in performing this Agreement shall also be considered part of a Customer Formula, and Nutrix hereby assigns all right, title, and interest in and to such improvements and modifications to Customer.

1. 1. 1. Nutrix Formulas shall remain the sole property of Nutrix, regardless of whether a Nutrix Formula was developed using a Customer Supplied Component (other than Customer Formulas). Nutrix grants to Customer a worldwide, royalty-free, fully paid-up, non-transferable, non-exclusive and irrevocable license to use a Nutrix Formula in connection with the production and sale of the Product for which the Nutrix Formula is developed.

1. 1. 1. If the Parties determine to execute a Formula Purchase Agreement, the terms of that agreement will govern the Intellectual Property Rights relating to the Products and Formulas described therein.

1. 1. 1. If Nutrix adapts an existing Nutrix Formula to produce a new formula for Customer, the existing Nutrix Formula so adapted shall not be deemed part of the Customer Formula and shall continue to be the property of Nutrix.

1. 1. General License. If Customer engages Nutrix to provide packaging or labeling services, including ‘private label’ services, Customer hereby grants to Nutrix all such Intellectual Property Rights as may be required or appropriate for Nutrix to perform such services.

1. 1. Retention of Intellectual Property. Each party shall retain all Intellectual Property Rights not specifically addressed herein or required to fulfil the party’s obligations hereunder, and nothing herein shall be construed as a forfeiture of any such rights. Customer has no right, title, or interest in, and Customer shall not acquire any right, title or interest of any kind or nature whatsoever in or to, Nutrix’s Intellectual Property (including without limitation the Mixing Instructions). Customer shall not contest the rights of Nutrix or its Affiliates in respect of the Nutrix Intellectual Property, and hereby waives any claim Customer may have, arising under any law or in equity, with respect to the Nutrix Intellectual Property.

1. 1. Data. Nutrix may use anonymized and aggregated data derived from its manufacturing processes for the purpose of process improvement, benchmarking, and analytics. Nutrix shall retain all rights to such data, provided that such data does not identify Customer or its products specifically.

1. Representations and Warranties

1. 1. Nutrix Warranties.  The Formulas and Products shall comply with the Specifications at the time of delivery, other than to the extent any failure to meet the Specification is the result of a Customer Exclusion. EXCEPT FOR THE FOREGOING WARRANTY, NO OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY), WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, SHALL APPLY TO THE SERVICES OR PRODUCTS OR ANY OTHER SERVICES PERFORMED BY NUTRIX HEREUNDER. ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY NUTRIX, OR ANY OTHER PERSON ON, EXCEPT THOSE SPECIFICALLY PROVIDED HEREIN.

1. 1. Customer Warranties.  Customer represents and warrants that:

1. Customer has the requisite authority to enter into and perform this Agreement, Customer’s performance of this Agreement will not violate any obligation(s) owed by Customer to any third party, and this Agreement constitutes the legal, valid, and binding obligation of Customer and is enforceable against Customer in accordance with its terms.

1. Customer has and shall maintain an internal quality system that complies with all applicable laws in the territories where Customer markets, sells, or otherwise distributes the Product or any product containing a Formula.

1. Customer owns or controls all Intellectual Property Rights necessary for Nutrix to perform its obligations, including all rights associated with a Customer Formula or Customer Supplied Content. No Customer Formula or Customer Supplied Content infringes on the intellectual property rights of any third party.

1. Customer will comply with all laws applicable to it in performance of this Agreement. Customer has or will obtain in a timely manner the requisite licenses, authorizations, approvals, consents or permits required by applicable laws for Nutrix to perform the Services or manufacture the Products, or for Customer to distribute or sell the Products or any product containing a Formula. All Customer Formulas, packaging, labels, logos, or other items provided to Nutrix by Customer comply with all applicable laws, including applicable Food and Drug Administration and Federal Trade Commission rules.

1. Customer is not subject to any litigation or regulatory examination or action relating or similar to the Formulas or Products. Customer will notify Nutrix immediately of any legal claim, demand, or regulatory examination or action relating to the Formulas or Products.

1. Limitation of Liability; Indemnification

1. 1. Limitation of Liability.

1. 1. 1. The entire exclusive remedy of Customer for any and all damages arising from or relating to this Agreement, the Services, and the Products shall be limited to (i) replacement of the Product for which damages are claimed, (ii) return of the purchase price paid by Purchaser for such Product, or (iii) a credit applied to any future Sales Order. Nutrix’s total aggregate liability under this Agreement shall not exceed the amount paid by Customer for the Products or Services giving rise to Customer’s claim.

1. 1. 1. IN NO EVENT SHALL NUTRIX OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, ENHANCED, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE, DOWN TIME, BUSINESS INTERRUPTION, LOSS OF OPPORTUNITY, OR DIMINUTION OF VALUE), WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF NUTRIX HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OR SUCH DAMAGES.

1. 1. 1. Any action by Customer hereunder must be commenced within one (1) year of the events giving rise to the action or Customer’s knowledge of such events, whichever is later.

1. 1. Indemnification. 

1. 1. 1. Customer shall indemnify and defend Nutrix, its Affiliates, and its and their officers, directors, owners, parent companies and subsidiaries, agents and representatives from and against any and all causes of action, claims, disputes and proceedings (“Claims”) and all losses, liabilities, damages, costs, expenses (including attorneys’ fees) and judgments of any kind (“Damages”) arising out of or relating to (i) Customer’s use or sale of a Formula or Product, unless such Claims/Damages resulted directly from the Formula’s or Product’s nonconformance with the Specifications (other than to the extent any such failure is the result of a Customer Exclusion); (ii) the infringement of a Product or Customer Supplied Component on the Intellectual Property Rights of another party; (iii) Nutrix’s use of Customer Supplied Components; and (iv) Customer’s breach of this Agreement or applicable laws and rules, including those promulgated by the U.S. Food and Drug Administration or the Federal Trade Commission.

1. 1. 1. The Customer shall, at its own expense, defend any Claims against Nutrix. Nutrix shall have the right to participate in the defense with counsel of its own choosing at its own expense. In no event with the Customer settle any Claim without the prior written consent of Nutrix, such consent not to be unreasonably withheld.

1. Miscellaneous

1. 1. Force Majeure; Supply Chain Constraints.

1. 1. 1. A party (the “Impacted Party”) shall not 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, if such failure or delay is caused by or results from a Force Majeure Event after reasonable efforts to exercise such control. In the event of a Force Majeure Event, the Impacted Party shall promptly notify the other party in writing, describing the nature and expected duration of the event and the steps being taken to mitigate its effects. The Impacted Party shall use its best efforts to avoid and remove such causes of delay and minimize the impact of such events. The parties shall cooperate in good faith to minimize the impact of the Force Majeure Event on the performance of this Agreement.

1. 1. 1. In the event of significant supply chain constraints, Nutrix may allocate Components, Services, and Products among itself and its customers, in its sole discretion, and shall not be liable for any delay or shortfall resulting therefrom.

1. 1. Governing Law.  All questions of the validity, interpretation, or performance of the terms of this Agreement or of any rights or obligations of the parties related in anyway to this Agreement shall be governed by the laws of the state of Utah without regard to principles of conflict of laws. Any litigation seeking to enforce this Agreement must be brought exclusively in the state or federal courts located in Salt Lake County, Utah.  Each party expressly consents to the jurisdiction of the state or federal courts in the state of Utah and hereby irrevocably waives any objection to jurisdiction or venue based on lack of personal jurisdiction, place of residence, improper venue, or forum non conveniens in any such action. Any dispute arising out of or relating to this Agreement shall be resolved first by good faith negotiation between senior executives of the parties.

1. 1. WAIVER OF JURY TRIAL. The parties agree that this Agreement, the Services and the Products involve complex matters of law, and hereby waive their right to jury trial in any claim, action, proceeding or dispute arising out of or relating to this Agreement, Services, or the Products. Each party has consulted with their legal counsel regarding this provision and acknowledges that it forms an important part of this Agreement.

1. 1. Waiver. No waiver of any right by a party shall operate or be construed as a subsequent waiver of such right or as a waiver of any other right. No waiver will be valid unless in writing signed by the waiving party.

1. 1. Assignment. Neither party may assign or subcontract its rights or obligations hereunder without the prior written consent of the other party, except that Nutrix may assign this Agreement to an Affiliate or in connection with a merger, acquisition, or sale of substantially all of its assets.

1. 1. Independent Contractor. The parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, agency, or employment relationship between the parties.

1. 1. Audit. Nutrix shall have the right to audit Customer’s compliance with payment, regulatory, and insurance obligations under this Agreement upon reasonable notice.

1. 1. Entire Agreement.  Except as otherwise provided herein, this Agreement, the Sales Order, and the Quality and Technical Agreement contain the entire understanding among the Parties and supersede any and all prior agreements, understandings and arrangements whether written or oral among the Parties with respect to the matters contained in this Agreement.

1. 1. Amendments. No amendments, changes, modifications or alterations of the terms and conditions of this Agreement shall be binding upon any party, unless in writing and signed by an authorized representative of each party.

1. 1. Severability.  If any provision of this Agreement becomes wholly or partially invalid as evidenced by a ruling of a court of competent jurisdiction, the effectiveness of the remaining provisions shall not be affected.