Nestlé Quality Assurance Center (Dublin) Standard Terms and Conditions

EFFECTIVE DATE
The effective date of this Agreement (defined below) shall be: Date of communication.

TESTING SERVICES
Pursuant to the terms and conditions outlined herein (the “Agreement”), customer (“Customer”) may submit food, ingredients, packaging, or other samples (individually, a “Sample” and collectively, “Samples”) to Nestlé USA, Inc., a Delaware corporation, d/b/a Nestlé Quality Assurance Center (“NQAC”) at its Nestlé Quality Assurance Center in Dublin, Ohio (“NQAC Dublin”) for analysis and testing (“Testing Services”). Customer and NQAC are individually referred to herein as a “Party” and collectively, as the “Parties”. To the fullest extent permitted by law, NQAC shall have the right to reject any Samples and/or refuse to provide Testing Services to Customer, at any time, for any reason, as determined in its sole discretion.

SAMPLE RETENTION
Unless an extended period is approved by NQAC in writing prior to, or at the time of, Customer’s Sample submission or before sample disposal, NQAC shall endeavor to retain Samples submitted for analysis and testing hereunder for a period of five (5) days after results have been reported (“Sample Retention Period”). Notwithstanding the foregoing, Customer acknowledges and agrees that the Sample Retention Period may be compromised by the stability of the Sample, the quantity of Sample, or other factors. In such event, NQAC shall have no responsibility or liability for any Samples that are not retained for the full Sample Retention Period. To the extent NQAC agrees, in its sole discretion, to provide Customer an extended Sample Retention Period, NQAC reserves the right to charge Customer additional fees. For clarity, NQAC shall have no obligation to provide Customer an extended Sample Retention Period.

QUALITY ASSURANCE AND DOCUMENTATION
Unless additional specifications are approved by NQAC in writing prior to the commencement of the Testing Services, all Testing Services provided by NQAC will be performed in accordance with the NQAC Quality Assurance Program, as may be amended NQAC from time to time. To the extent NQAC agrees, in its sole discretion, to provide the Testing Services in accordance with additional specifications or documentation provided by Customer, NQAC reserves the right to charge Customer additional fees. For clarity, NQAC shall have no obligation to provide the Testing Services in accordance with any additional specifications or documentation provided by Customer.

RAW DATA
NQAC maintains analytical raw data from the Testing Services for the current year, plus an additional three (3) years after Testing Services are complete. Copies of pertinent raw data will be provided upon Customer’s request, in a manner and format determined by NQAC in its sole discretion. NQAC reserves the right to charge Customer additional fees for extended storage and/or copies of raw data, duplicate reports, or other special reporting requirements.

CONFIDENTIALITY, RELIANCE AND REFERENCES TO NQAC
All services, analysis and reports provided to Customers pursuant to this Agreement are provided on a confidential basis. Customer will not disclose such confidential information to any third parties without the prior consent of NQAC. In addition, Customer will not identify NQAC as a service provider of Customer, or reference NQAC (or its affiliates) or use any trade name, trademark, trade dress, service mark or any intellectual property of NQAC or its affiliates in any press release, advertising or promotional materials in any media whatsoever, or represent that any sample has been tested, analyzed, endorsed or approved by NQAC or its affiliates, without NQAC’s prior written consent. NQAC will rely on information supplied by Customer in rendering the Testing Services. The Testing Service results assume the accuracy of such information and that Customer is entitled to share such information with NQAC. Any information provided by NQAC in the reports to Customer or in connection with the Testing Services is for the benefit of Customer only and no third party shall be entitled to rely thereon without the prior written consent of NQAC. Even if such written consent is given by NQAC, Customer (a) remains responsible for any consequences due to the divulgence of such results to a third party and any reliance of such third party on such results and (b) hereby agrees to indemnify NQAC against any liability which NQAC may incur as a result of such divulgence or any such third party reliance.

WARRANTY
NQAC warrants only that it will perform the Testing Services in a manner consistent with the level of care and skill ordinarily exercised by analytical laboratories currently practicing under similar conditions and circumstances and performing similar services. Because of numerous factors affecting results, NQAC makes no other warranty of any kind with regard to the Testing Services or the results set forth in the report generated in connection therewith, either express or implied. Statements made in the reports or in connection with the Agreement shall not be construed as representations or warranties or as inducements to violate any law, safety code or insurance regulation. ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE RELATED TO FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY OR COMPLETENESS OF RESULTS AND NONINFRINGEMEN ARE EXCLUDED.

INDEMNITY
To the fullest extent permitted by law, Customer agrees to indemnify, hold harmless and defend NQAC, its officers, directors, agents, representatives and employees from any and all claims, judgments, fines, penalties, liabilities, damages, and expenses, including, without limitation, reasonable attorneys’ fees and court costs, loss of earnings or profits, arising from or in connection with (i) any breach by Customer of the terms of this Agreement; or (ii) any defect related to a manufactured product where a sample of such product was tested hereunder.

LIMITATION OF LIABILITY
IN NO EVENT SHALL NQAC, ITS AFFILIATES AND THEIR DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES BE LIABLE FOR ANY NON-DIRECT DAMAGES, INCLUDING INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, OR LOSS OF BUSINESS REVENUES OR PROFITS OR LOSS OF OPPORTUNITY, RELATING IN ANY WAY TO ANY SERVICES PROVIDED UNDER THIS AGREEMENT, UNDER ANY THEORY OF LAW AND WHETHER OR NOT THE PARTIES ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. By receiving and/or using the data from Testing Services performed by NQAC in any manner, Customer acknowledges and agrees that the total liability of NQAC, its affiliates and their directors, officers, agents or employees to Customer arising out of or in connection with the Testing Services performed shall not exceed the invoiced amount for said Testing Services. The foregoing shall apply notwithstanding any provision to the contrary in any Customer purchase order or other order for work issued.
IN NO EVENT SHALL NQAC BE LIABLE FOR ANY INFORMATION PROVIDED OR OTHERWISE SET FORTH IN NQAC’S CUSTOMER DAY-TO-DAY OR MASS COMMUNICATIONS CORRESPONDENCE, INCLUDING WITHOUT LIMITATION, ANY ERRORS CONTAINED THEREIN.

PAYMENT
Customer will pay NQAC for the Testing Services and any additional fees incurred hereunder within thirty (30) days from the date of NQAC’s invoice therefor. In the event Customer fails to pay NQAC all or a portion of the fees due and owing hereunder, NQAC shall have the right, in addition to any other rights or remedies available at law or in equity, to immediately suspend or terminate all or a portion of any outstanding Testing Services, immediately suspend and/or withhold any and all Customer lab results, immediately reject any and all Customer requests for Testing Services (disposal fees of Samples and/or other penalties may apply), and review Customer’s credit account, until such time that NQAC has received Customer’s payment in full. Customer is solely liable for any transfer fees, excises, levies or taxes which NQAC may be required to pay or collect, under any existing or future law, upon or with respect to the Testing Service, and Customer agrees to pay the amount thereof on the same terms as it shall pay the fees. Approved methods of payment are check and bank transfer only.

TERM AND TERMINATION
This Agreement will commence as of the Effective Date and remain in full force and effect until the Testing Services are complete (the “Term”), unless sooner terminated as provided herein. A Party may terminate this Agreement immediately if the other Party commits any material breach and fails to cure such material breach within thirty (30) days after written notice thereof from the non-breaching Party; or (ii) the other Party enters bankruptcy proceedings, becomes insolvent, or otherwise becomes generally unable to meet its obligations under this Agreement. Additionally, NQAC may terminate this Agreement, in whole or in part, without cause or penalty, at any time by providing Customer at least thirty (30) days prior written notice of termination. If this Agreement is terminated pursuant to this Section, Customer agrees to pay NQAC any portion of the fees due to NQAC up to the date of termination.

FORCE MAJEURE
Except for any payment obligations hereunder, nonperformance by either Party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing Party. Any Party claiming that a force majeure condition has arisen will immediately notify the other Party of the same and will act diligently to overcome and remove the effects of the event of force majeure. Such Party will notify the other Party as soon as possible (no more than three (3) days) after such condition has ceased. This Agreement may be terminated upon written notice by the non-affected Party if the condition continues longer than thirty (30) days.

GOVERNING LAW/ATTORNEYS FEES
This Agreement will be governed by and construed under the laws of the State of Ohio, without regard to its principles of conflicts of laws. Any instruments executed pursuant to the terms of this Agreement will likewise be governed by the laws of the State of Ohio. All terms in this Agreement are only intended to apply to the maximum extent permitted by applicable law. In the event any legal action, suit or proceeding is brought by either Party by reason of any default or breach of this Agreement by the other Party, or to enforce a Party’s rights under this Agreement, the prevailing Party will be entitled to all of its costs and expenses of suit, including reasonable attorneys’ fees and court costs.

ASSIGNMENT AND SUBCONTRACTING
Customer may not assign, subcontract, or otherwise transfer this Agreement or any of its related rights or obligations without NQAC’s prior written consent. For purposes hereof, an assignment will be deemed to occur upon the sale or transfer of (i) a controlling interest in the stock of Customer or any entity which, either indirectly or directly, owns or controls Customer, or (ii) all, or substantially all, of Customer’s assets. Any attempted assignment, subcontracting or transfer of this Agreement by Customer will be null and void, and will be deemed a non-curable material default of this Agreement by Customer, entitling NQAC to exercise any right or remedy available to NQAC at law or in equity by virtue of such default. NQAC may freely assign, subcontract, or otherwise transfer this Agreement or any of its related rights or obligations.

SURVIVAL
Any provisions in this Agreement that by their nature extend beyond termination of this Agreement will survive any termination of this Agreement.

ENTIRE AGREEMENT
This Agreement and anything attached to or incorporated into it, constitutes the final, complete, and entire agreement between the Parties and supersedes all previous communications between the Parties, whether oral or written. All such previous communications are hereby abrogated and withdrawn.

MODIFICATION
No quotations, proposals, contracts, invoices, purchase orders, confirmation orders, work orders, or similar documents, regardless of when dated, will modify this Agreement. Any changes to this Agreement will only be binding on a Party if approved in writing by an authorized representative of that Party, and which specifically states that such writing constitutes an amendment to this Agreement.

01.30.18