TERMS AND CONDITIONS TO AGREEMENT FOR CONSULTING, FDA COMPLIANCE REVIEWS AND NUTRITION LABELING SERVICES

ARTICLE 1. SERVICES.

FOOD LAB, INC. dba Brooker Laboratories (hereinafter “FOOD LAB”) will:

1.1  Perform agreed upon services for you the client (the “CLIENT”), which may include nutritional analysis, label artwork review and other services described on https://www.foodlab.com/services (hereinafter the “SERVICES”) in a professional manner, using a degree of care and skill ordinarily exercised by and consistent with the standards of the profession and practice in the field of nutrition analysis and package labeling.

1.2  The SERVICES may include work done by third party laboratories, companies or agencies (the “THIRD PARTIES”). Any work done by THIRD PARTIES is subject to the THIRD PARTY’s terms and conditions. Client agrees that FOOD LAB shall not be responsible for any errors, mistakes, or inaccuracies of the information, data, reports and/or analysis that is provided by the THIRD PARTIES. FOOD LAB explicitly disclaims all obligations and liability for any work or services done by the THIRD PARTIES.

1.3  Retain all pertinent records relating to the SERVICES for a period of at least one year after CLIENT provides FOOD LAB with such records. CLIENT shall have the right to view these records upon reasonable notice to FOOD LAB.

ARTICLE 2. CLIENT REPRESENTATIONS AND WARRANTIES.  

CLIENT represents and warrants that:

2.1  The signatory for CLIENT has the full authority to execute this Agreement on CLIENT’s behalf, and has the full authority to transmit instructions, receive information and data, and to order, at CLIENT’s expense, additional SERVICES.

2.2 CLIENT shall pay all invoices and amounts due to FOOD LAB pursuant to Article 3, below.

2.3  The information and data CLIENT supplies to FOOD LAB shall be accurate to the best of CLIENT’s knowledge. CLIENT acknowledges and agrees that CLIENT is solely responsible for the accuracy of the information and data provided to FOOD LAB, including but not limited to data related to CLIENT’s formulas, recipes, measures & weights of ingredients, production yields, the additional data pertaining to the other ingredients such as nutrition information for specific ingredients used by CLIENT in the recipe, and any other information supplied to FOOD LAB. CLIENT further understands and agrees that the accuracy of any information provided to CLIENT by FOOD LAB is based on the accuracy of the data supplied by CLIENT.

ARTICLE 3. PAYMENT.

3.1  FOOD LAB shall invoice CLIENT for the SERVICES (the “INVOICE”), and CLIENT shall pay the amount stated in the INVOICE upon receipt of the INVOICE.

3.2  Any balance on an INVOICE that remains unpaid after 15 days is subject to a service charge of 1.5%. FOOD LAB shall be entitled to recover reasonable attorney’s fees and costs for the collection.

ARTICLE 4. LIMITATIONS ON THE SERVICES AND THIS AGREEMENT.

4.1  FOOD LAB, by the performance of the SERVICES, does not in any way assume, abridge or abrogate any duties, responsibilities or authorities with regard to the CLIENT’S products.

4.2  The SERVICES, and the data, reports and analysis resulting from the SERVICES, are made and prepared based upon the information provided by CLIENT.  CLIENT specifically acknowledges and agrees that FOOD LAB assumes no responsibility for variations in quality, composition, appearance, or any similar feature of items audited over which FOOD LAB has no control.

4.3  Nothing in this Agreement shall grant or imply the right of either party to commit the other party for any obligations or to act as agent for the other party, or otherwise, on its behalf. This Agreement does not create a joint venture, partnership, or employee/employer relationship.

ARTICLE 5. TERMINATION AND TRANSFER.

5.1  This Agreement may be terminated by either party if the other party breaches this Agreement and fails to cure the breach after ten (10) days receipt of written notice of the breach. In the event this Agreement is terminated, FOOD LAB shall be paid in full for all SERVICES performed through the termination date.

5.2  CLIENT shall not delegate, assign, sublet or transfer CLIENT’S duties or interest in the Agreement without the prior written consent of FOOD LAB.

ARTICLE 6. USE OF REPORTS AND INTELLECTUAL PROPERTY.

6.1  CLIENT acknowledges and agrees that any information, report, analysis and/or data furnished by FOOD LAB is furnished solely for the benefit of CLIENT. CLIENT further acknowledges and agrees that such information, report, analysis and/or data may not be reproduced or published in full or in part, or altered, amended, made available to or relied upon by any other person, firm or entity without FOOD LAB’s prior written consent except where the SERVICES CLIENT purchases includes nutrition label preparation, ingredient list preparation, and/or allergen statement creation. In this case, CLIENT may reproduce and publish the nutrition label panel, ingredient lists, and allergen statements that were prepared by FOOD LAB on the CLIENT’s product.

6.2  CLIENT shall not, without obtaining the prior written consent of FOOD LAB, use FOOD LAB’s name or logo, or the information, report, analysis and/or data prepared by FOOD LAB in connection with any marketing or advertising or in any publication concerning or relating to CLIENT or CLIENT’s products.

6.3  CLIENT shall not misrepresent the substances or effect of or any material fact, conclusion or finding contained in any report or other information received from or relating to FOOD LAB and/or the SERVICES FOOD LAB provided to CLIENT.

6.4  FOOD LAB acknowledges that CLIENT is the owner of valuable trade secrets, formulas, inventions, technology, know-how, and/or other data, concepts or information, which are not public and are proprietary or confidential (the “CONFIDENTIAL INFORMATION”).  For the maximum period permitted by applicable law, FOOD LAB shall hold the CONFIDENTIAL INFORMATION in secrecy and confidence and shall use the CONFIDENTIAL INFORMATION solely for the purpose of carrying out the SERVICES.  Food Lab shall not disclose, divulge, provide or otherwise make available any Confidential Information, or any portion or summary thereof, to any person, firm, corporation or other entity, other than to Food Lab’s employees, consultants, accountants, attorneys, successors, assigns, advisors, and agents on a need-to-know basis, and such persons shall be bound by confidentiality obligations and contained in this Agreement, in order to permit those people to assist Food Lab in performing the SERVICES.

6.5  All notes, memoranda, reports, drawings, manuals, materials, data and any papers or records of every kind which are supplied to FOOD LAB by CLIENT (which are now in FOOD LAB’s possession or shall come into FOOD LAB’s possession at any time during FOOD LAB’s performance of the SERVICES for the CLIENT) relating to CONFIDENTIAL INFORMATION, shall remain the sole property of CLIENT.

6.6  The technology, marketing materials and software underlying FOOD LAB’s SERVICES are the property of FOOD LAB and FOOD LAB’s affiliates (the “FOOD LAB TECHNOLOGY”). CLIENT acknowledges FOOD LAB is the owner of the FOOD LAB TECHNOLOGY, and agrees not to use the FOOD LAB TECHNOLOGY without FOOD LAB’s prior written consent. In addition, FOOD LAB’s name and logos are trademarks and service marks of FOOD LAB (collectively the “FOOD LAB TRADEMARKS”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the FOOD LAB TRADEMARKS, and CLIENT may only use the FOOD LAB TRADEMARKS if CLIENT obtains prior written consent from FOOD LAB.

6.7 CLIENT agrees that FOOD LAB may use the name and logo of CLIENT and any statements by the CLIENT about the SERVICES to promote FOOD LAB’s business.

ARTICLE 7. WARRANTIES AND DISCLAIMERS.

7.1  Nutritional analysis information provided by FOOD LAB is based on the estimated database analysis using available standard USDA ingredients or specific brand name ingredients that are contained within FOOD LAB’s computer database programs. CLIENT acknowledges and agrees that because some nutritional values may vary depending on the exact ingredients and specific brand name ingredients used by CLIENT, FOOD LAB is not responsible for any damage, loss, fees or penalties caused by these variances in the nutritional values.

7.2  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FOOD LAB, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM FOOD LAB’S PERFORMANCE OF THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOOD LAB ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF THE INFORMATION, DATA, REPORTS AND/OR ANALYSIS THAT RESULTS FROM FOOD LAB’S OR ANY THIRD PARTY’S PERFORMANCE OF THE SERVICES; (II) PERSONAL INJURY, INCLUDING DEATH, INCLUDING BUT NOT LIMTIED TO PERSONAL INJURY OR DEATH CAUSED BY ERRORS, MISTAKES, OR INACCURACIES OF THE INFORMATION, DATA, REPORTS AND/OR ANALYSIS THAT RESULTS FROM FOOD LAB’S PERFORMANCE OF THE SERVICES (III) CLIENT’S GOVERNMENT FEES, FINES AND/OR PENALTIES; (IV) CLIENT’S COMPLIANCE WITH FEDERAL, STATE OR LOCAL LAWS AND REGULATIONS; (V)  CLIENT’S DATA, INFORMATION, AND COMMUNICATIONS STORED ON THIRD PARTY DATABASES OR IN COMPANY’S SYSTEM; AND (VI) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH FOOD LAB. IN NO EVENT SHALL FOOD LAB, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO CLIENT FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT CLIENT PAID TO FOOD LAB. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN THE EVENT THAT FOOD LAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. ADDITIONALLY, FOOD LAB EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. FOOD LAB MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES WILL BE TIMELY OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, AND (IV) THE QUALITY OF THE SERVICES AND/OR MATERIAL OBTAINED BY CLIENT THROUGH THE SERVICES WILL MEET CLIENT’S EXPECTATIONS.

PLEASE NOTE SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THESE TERMS GIVE YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THESE TERMS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7.3  FOOD LAB expressly assumes no liability or responsibility for CLIENT’s products, and provides no warranties or assurances regarding CLIENT’s products or business.

7.4  CLIENT acknowledges and agrees that CLIENT shall not send samples or shipments to us without (i) signing a contract with us and (ii) following our shipping instructions.  Food Lab, Inc. is not responsible for lost, broken or compromised shipments or samples. CLIENT specifically acknowledges and agrees that CLIENT will not hold Food Lab, Inc. responsible for any lost, broken or compromised shipments or samples.

ARTICLE 8. INDEMNITY, CHOICE OF LAW/VENUE, NOTICES AND ENFORCEMENT.

8.1  CLIENT agrees to defend, indemnify and hold harmless FOOD LAB and its employees, officers, directors, shareholders and independent contractors against all liability, claims, demands, damages, costs and expenses of claims arising out of the conduct of CLIENT, CLIENT’s products, or any violation by CLIENT of this Agreement (the “CLAIMS”), including but not limited to attorneys’ fees, costs and reasonable hourly charges of employees of FOOD LAB. FOOD LAB agrees to notify CLIENT promptly of any such CLAIM.  The obligations set forth in this paragraph shall survive the termination of this Agreement.

8.2  This Agreement will be construed in accordance with the laws of the State of California. The parties (a) hereby irrevocably and unconditionally submit to the jurisdiction of the state and federal courts located in San Diego, California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the courts located in San Diego, California, and (c) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.

8.3  Any notice pertaining hereto shall be in writing. Any such notice and payment due hereunder shall be served by delivering the notice or payment personally or by sending it by email or mail with postage prepaid, to the address listed on the signature line of this Agreement (or as subsequently designated in writing).

8.4  In the event that any term of this Agreement is held by a court to be unenforceable, such provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement may be executed in counterparts, each of which shall represent an original, and all of which, when taken together, shall constitute one and the same instrument.  Signatures transmitted by facsimile, e-mail, or other comparable means shall be deemed an original.

8.5  This Agreement represents the entire agreement between CLIENT and FOOD LAB, and supersedes all prior negotiations, representations or agreements, written or oral. The Agreement may be amended only by written instrument signed by CLIENT and FOOD LAB. In the event of a conflict between this Agreement and the terms contained within any INVOICES or documents prepared by FOOD LAB, the terms of this Agreement shall govern.