Purchase Order Terms & Conditions

Purchase Orders

1. General. From time to time, iHerb may purchase certain Products from Vendor and Vendor hereby agrees to sell such Products to iHerb, subject to the terms and conditions of this Agreement. This Agreement does not impart any obligation on iHerb to purchase any Product from Vendor, nor on Vendor to sell any Product to iHerb until a purchase order is submitted by iHerb (“Order”) and accepted by Vendor via EDI, SAP Ariba SCC, email, and/or by shipping the Products, in accordance with the Order. iHerb may withdraw the Order at any time before it is accepted by Vendor or Vendor starts to perform. Vendor shall notify iHerb within 3 business days if any ordered Products are out of stock or if there is any discrepancy in information.
2. New Item Recap and Update Form
   1. iHerb’s Supplier Manual sections regarding New Item Recap and Update Form, Product Shelf Life, Product Returns, Product Recalls, EDI Requirements, Notification of Changes, Supplier Notification of Changes, and Production Changes are incorporated by reference and legally binding to the extent no such provision therein conflicts with this Agreement. For each Product which iHerb may want to purchase from Vendor, Vendor shall complete a “New Item Recap and Update Form.” Details of this form may be found in iHerb’s Supplier Manual and new vendor onboarding deck. For each new Product, Vendor shall provide at least two (2) finished samples, at Vendor’s expense, to iHerb for product compliance review and imaging.
   2. If there are any changes to the information for any Product on the New Item Recap and Update Form which had previously been provided to iHerb (such as changes to the formula, UPC code, label design, label information, product certifications, etc.), Vendor shall immediately inform their iHerb merchandiser and submit a new form to iHerb with such changes if required by iHerb. Vendor is prohibited from shipping any such Product unless and until Vendor receives written confirmation from iHerb of iHerb’s receipt and acceptance of the new form. If there are any changes to the New Item Recap and Update Form which require additional warnings, labeling, restrictions, or handling/shipping instructions which iHerb cannot accommodate, then iHerb will not accept the new form and may, at its discretion, discontinue, cancel, or delay the purchase or shipment of said Product without incurring any cost or liability.
3. Shipping and Delivery
   1. Vendor shall deliver the Products in the quantities and on the date(s) specified in an Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Time is of the essence as to the delivery of the Products. Any deviation from the Delivery Date must be requested by Vendor and approved by iHerb in advance. If Vendor fails to deliver the Products in full on the Delivery Date, iHerb may terminate any remaining part of the unfulfilled Order, not already in transit, immediately by providing written notice to Vendor. Vendor shall indemnify iHerb against any losses, claims, damages, and reasonable costs and expenses attributable to Vendor’s failure to deliver the Products by the Delivery Date. Unless otherwise specified in an Order, iHerb has the right to return any Products delivered prior to or after the Delivery Date at Vendor’s expense.
   2. All Products shall be delivered to the address specified in an Order (the “Delivery Location”) at the approved, scheduled time. Vendor shall give written notice of shipment to iHerb when the Products are delivered to a carrier for transportation. Vendor shall provide iHerb all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Products to iHerb no later than one business day after Vendor delivers the Products to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Order. Unless a specific Order specifies otherwise and only for that particular Order, title passes to iHerb upon delivery of the Products to the Delivery Location and Vendor bears all risk of loss and damage to the Products until delivery of the Products to the Delivery Location.
   3. If any Products are delivered pursuant to an Order designated as FOB Origin, possession is transferred to iHerb when the order is released to the assigned carrier. iHerb reserves the right to inspect the Products and raise any non-carrier related issues with the Products for any Order designated as FOB Origin. Any other shipping or delivery terms not referenced in this Agreement shall be subject to the terms or conditions noted on an Order.

Products

1. All Products shall be clearly marked with the lot number and expiration date as detailed in the Supplier Manual. The lot number and expiration date are required to be on the Products as well as electronically provided to iHerb in the EDI ASN 856 document and the UCC-128 label. If Vendor delivers more than the quantity of Products ordered, iHerb may reject any excess Products. Any such rejected Products shall be returned to Vendor at Vendor’s risk and expense. If iHerb does not reject the Products and instead accepts the delivery of Products at the increased quantity, the Price for the Products shall be adjusted on a pro-rata basis or at a discount as agreed between iHerb and the vendor.
2. Inspection and Rejection of Nonconforming Products. iHerb has the right to inspect the Products on or after the Delivery Date. iHerb, at its sole option, may inspect all or a sample of the Products, and may reject all or any portion of the Products if it determines the Products are nonconforming or defective. Examples of nonconforming Products include, without limitation, Products that do not meet the minimum shelf life specified in iHerb’s Supplier Manual, Products not listed on the Order, Products not matching the UPC code, and Products with damage or quality issues. If iHerb rejects any portion of the Products, iHerb has the right, effective upon written notice to Vendor, to: (a) reject the Product shipment in its entirety; or (b) accept a portion of the Products. Vendor shall, at its expense, pay for all related expenses, including, but not limited to, transportation charges, for the return of the defective Products. Any inspection or other action by iHerb under this Section shall not reduce or otherwise affect Vendor’s obligations herein, and iHerb shall have the right to conduct further inspections after Vendor has carried out its remedial actions.
   
   Additionally, iHerb may terminate an Order, in whole or in part, at any time with or without cause for undelivered Products by providing written notice to Vendor prior to shipment. In addition to any remedies that may be provided under this Agreement, iHerb may terminate an Order with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Products, if Vendor has not performed or complied with any of the terms of this Agreement or has delivered nonconforming Products, in whole or in part. If iHerb terminates an Order for any reason, Vendor’s sole and exclusive remedy is (i) payment for the Products received and accepted by iHerb prior to the termination or (ii) in the case of any Products which are custom and specifically manufactured for iHerb, iHerb shall remit costs to Vendor associated with any work in progress commenced prior to the termination (not to exceed the amount of the Order).
3. Returns. Any Products that are: damaged during shipment, incorrectly shipped (e.g. overage and/or incorrect Products/SKU, UPC Code), defective, dangerous, incomplete, infringing upon any third party intellectual property rights, not in compliance with applicable laws and regulations, or otherwise do not comply with iHerb policies and procedures will be returned or discarded, at Vendor’s expense, in accordance with iHerb’s Supplier Manual. Notwithstanding the foregoing, in the case of damage to Products caused during shipment, FOB Origin vendors will only be held responsible for such damage if it is determined that the damage was caused due to improper palletization of the Products inconsistent with iHerb policies set forth in the iHerb supplier manual.
4. Recalls. In the event of any recall of Products that is (i) agreed to by Vendor or iHerb, (ii) required by law, or (iii) deemed necessary in the commercially reasonable judgment of iHerb (for example, if iHerb believes that Products are defective, dangerous, incomplete, infringe upon intellectual property rights, or are not in compliance with applicable laws or regulations), the Products will be returned to Vendor or destroyed at Vendor’s expense as outlined in iHerb’s Supplier Manual. Upon Vendor’s knowledge of a recall, Vendor shall immediately notify iHerb in writing at [email protected] and include their assigned iHerb merchandiser. Upon receipt of Vendor’s notice, iHerb will ensure that all Product recalls are immediately actioned upon and communicated with applicable iHerb customers. At iHerb’s sole discretion, it may place a Product recall disclosure on its website.

Price. The price of the Products is the price stated in a particular Order (the “Price”). If no price is included in an Order, the Price shall be the price set out in Vendor’s published price list in force as of the date of the Order, or such lesser price as may have been agreed upon by iHerb and Vendor. Unless otherwise specified in an Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties, and fees and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of iHerb. Vendor shall provide iHerb with a minimum of 90 days advance written notice of price changes for any Products.

Payment Terms. Vendor shall issue an invoice to iHerb on or after the completion of delivery of the Products and in accordance with this Agreement. iHerb shall pay all properly invoiced amounts due to Vendor with payment terms of 2%/30, Net 60 from: (i) the date of receipt of the invoice, or (ii) the date the Products are received (iHerb and Vendor to agree on (i) or (ii) during the Vendor set up process). Prepayment, deposits, C.O.D, or procurement credit card payment requests will not be accepted. If there are any inconsistencies between the payment terms in this Agreement and an Order, the payment terms in that Order shall prevail for that particular Order only. All payments hereunder must be in U.S. dollars. Without prejudice to any other right or remedy available at law or in equity, iHerb reserves the right to set off, at any time, any amount due and owing to it by Vendor against any amount payable by iHerb to Vendor 30 days after submission of supporting documentation and multiple attempts to collect. Vendor is responsible for EDI enrollment and testing which are required prior to sending an invoice transmission and receiving payment from iHerb. Testing fees, as determined by iHerb’s then current service partner, will apply and shall be Vendor’s responsibility.

Term and Termination

1. Term. The term of this Agreement will be one (1) year, commencing on the Effective Date and will automatically renew for additional one (1) year periods unless and until it is terminated as provided herein.
2. Termination for Convenience. Either party may terminate this Agreement for convenience upon at least thirty (30) days’ prior written notice to the other party.
3. Termination for Bankruptcy Events. iHerb may terminate this Agreement immediately upon written notice if Vendor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

Vendor Insurance Requirements. Vendor shall provide iHerb with a valid Certificate of Insurance (“COI”) before Vendor ships any Products. COIs will be issued by an insurance company with A.M. Best ratings of “A-, VI” or better. During the term of this Agreement and for at least twelve months thereafter, Vendor shall maintain Commercial General Liability (“CGL”) insurance, including contractual liability, personal and advertising injury, broad form bodily injury and property damage, extended liability, and products liability at minimum coverage limits of:

• Per Occurrence $2,000,000
• General Aggregate $4,000,000
• Products Completed Operations Aggregate $4,000,000

The above coverage limitations may be met using a combination of primary and excess/umbrella policies on a following form primary or broader form.

Vendor shall provide a broad form Vendor’s endorsement naming iHerb as an additional insured on Vendor’s CGL insurance policy and the endorsement must be attached to the COI. Coverage afforded to iHerb must be primary and not contributory to any other insurance or self-insurance available. All liability insurance policies will provide that the insurance company waives all rights of recovery by way of subrogation against iHerb in connection with any matter covered by such policy. Vendor shall promptly notify iHerb of its intention to substantially modify its currently existing insurance coverage, including, without limitation, changes in coverage limits below the Coverage Minimums. If any of Vendor’s insurance policies lapse or are terminated, Vendor shall cease operations with iHerb until Vendor procures acceptable insurance. Vendor shall provide iHerb at least thirty (30) days prior written notice of any cancellation. Vendor’s indemnification obligation shall not be negated or reduced by virtue of denial of insurance coverage or refusal to defend iHerb for any occurrence or event which is subject to the said indemnity obligation. In no event shall the limits of any policy be considered as limiting the liability of the Vendor.

Grant of Rights. Throughout the term of the Agreement, Vendor shall provide to iHerb, free of charge, all current Product information, literature, descriptions, images, packaging and any warnings required by law to be disclosed in any sale, advertisement, or other promotion of the Products (collectively, “Product Information”). Vendor represents and warrants that Vendor owns, licenses, or has the authority to sublicense or grant the use of all right, title and interest in and to the Products and the Product Information. Vendor hereby grants to iHerb and its affiliates a non-exclusive, perpetual, irrevocable, and royalty-free license and right to: (i) distribute and sell the Products to customers, (ii) use, copy, display, perform, and/or distribute the Product Information in connection with the sale or marketing of the Products on any website or other online platform, mobile application, or other media owned or controlled by iHerb or its affiliates, (iii) use trademarks, trade names, logos or other intellectual property included in the Products and Product Information, and (iv) sublicense any of the foregoing rights to third parties in connection with iHerb’s programs or services (e.g., to advertise the Products). Nothing by virtue of the terms in this Agreement shall be deemed as granting a party the intellectual property rights of the other party unless explicitly set forth herein. Further, Vendor will not, without iHerb’s prior written consent, use any trademark, service mark, commercial symbol or other proprietary rights of iHerb.

Representations and Warranties.

Vendor represents and warrants a that:

1. the Products are genuine, free of defect, and have adequate warnings and instructions.
2. the Products: (i) conform to applicable specifications, (ii) are fit for their intended purpose, (iii) operate as intended, (iv) are merchantable, and (v) are free and clear of all liens, security interests, or other encumbrances.
3. the Product Information, Product packaging, labeling, and New Item Recap and Update Forms are true, accurate and complete.
4. iHerb’s marketing, sale, or distribution of the Products as permitted under this Agreement, including, without limitation, iHerb’s use of any Product Information, will not infringe upon any patent, trademark, trade dress, trade name, copyright or otherwise violate any third party’s rights.
5. Vendor is an authorized distributor or manufacturer of the Products it sells to iHerb and no consent of any third party is required for Vendor to sell and deliver the Products to iHerb for resale to customers, to grant the license and rights hereunder, or to enter into this Agreement.
6. the Products may be lawfully marketed, stored, sold, distributed and disposed of by iHerb or its affiliates without restriction other than any specific restrictions or prohibitions Vendor discloses in writing to iHerb and iHerb consents in writing in advance of shipment to iHerb.
7. no Product is, or contains ingredients that are: (i) regulated as a controlled substance or drug, (ii) listed as a regulated chemical, or (iii) regulated as a hazardous or dangerous product or material, unless: (a) Vendor specified such in the New Item Recap and Update Form which iHerb receives, (b) it qualifies as a “Dangerous Products in Excepted Quantity,” and (c) Vendor provides a valid SDS or exemption letter. Except for the “Dangerous Products in Excepted Quantity” that meet the requirements in the previous sentence, no other “Dangerous Products” (including “Dangerous Products in Limited Quantity”) will be accepted under any circumstances. Vendor is responsible for, and shall indemnify iHerb and the iHerb Indemnified Parties in accordance with Section “Indemnification” of this Agreement from and against, any and all claims arising from manufacturing defects, the transport or sale of such Products to iHerb facilities, and/or including any violations of any applicable U.S. rules or regulations of any governmental authority or international bodies, including without limitation, the IATA, DOT, IMDG, TDG, or ICAO.
8. Vendor, its subcontractors and suppliers and others in its supply chain are, and the Products were produced, manufactured, assembled, packaged, labeled, tested, certified, marked, weighed, inspected, shipped and sold, consistent with applicable industry standards and in compliance with all applicable laws, rules, regulations, and ordinances, including without limitation, (a) all laws, rules, regulations and ordinances relating to health, safety, environment, serial and identification numbers, labeling and country of origin designation; (b) all United States Federal Food, Drug, and Cosmetic Act Regulations, including but not limited to, cGMP and MoCRA standards, toxic substances, OSHA and EPA regulations, and any food, drug or supplement safety statutes; (c) all customs requirements; (d) all requirements pertaining to the California Safe Drinking Water and Toxic Enforcement Act of 1986 and its regulations, as may be amended from time to time (“Prop 65”); and (v) all applicable employment, labor, living conditions, working conditions, wage and hour laws, rules, regulations and ordinances, including national and international laws prohibiting slavery and human trafficking.
9. Vendor and its subcontractors, suppliers and others in its supply chain do not use any form of forced, prison and/or child labor.
10. Vendor is in compliance with all applicable laws, rules, and regulations in its performance under this Agreement.

California State Prop 65

1. Pursuant to Prop 65, Vendor is responsible for identifying Products that fall under Prop 65’s requirements and for complying therewith, including correctly label ing all Products (and/or packaging) with the warning information required by Prop 65 (“Prop 65 Warning”) and providing the requisite notice and warning materials to the authorized agent of iHerb. As an online retailer, iHerb will not determine if a warning is or is not needed for the Products or whether or not the warning materials provided by Vendor comply with Prop 65. As such, Vendor agrees that it shall provide iHerb with Prop 65 compliant Products and data/warning materials for display on iHerb’s website using iHerb’s new item form. . Vendor acknowledges that iHerb’s sole obligation under Prop 65 is to display the warning materials, if any, that iHerb receives from Vendor on iHerb’s website prior to the customer completing their online purchase. Necessary Prop 65 Warning language for Products must be provided to iHerb before the Products are shipped. If the Prop 65 Warning language needs to be changed at any time, Vendor shall furnish iHerb the new warning language either prior to shipping any new Products or within 48 hours of determining a new warning is needed for any Products iHerb has in stock, whichever comes first.
2. If Vendor provides iHerb a Prop 65 Warning that needs to be later modified or removed from the website, Vendor must (i) supply a list of lot numbers that have and still require the previous Prop 65 Warning, (ii) buy back or credit all stock from all warehouses that need the previous warning in which case Vendor is responsible for all costs and fees relating to destroying or returning the Products, and (iii) credit iHerb for all Product returns of the lot numbers that require the previous warning.

Age Restricted Products. Vendor is responsible for identifying, and notifying iHerb of, any Products that are subject to any consumer purchase age restrictions pursuant to New York State’s General Business Law Chapter 20, Article 6, SECTION 391-OO, or any other applicable United States Product purchase age restriction laws.

Anti-Corruption

1. VENDOR and IHERB each hereby represent, warrant, and covenant that, in connection with the performance of their obligations under this Agreement, it shall comply with all applicable laws and applicable industry codes of practice, including, but not limited to, the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, and all applicable laws related to anti-corruption.
2. No payment or gift of money, goods, services, or anything of value has been made, offered or promised or will be made, offered or promised, directly by VENDOR or IHERB, or indirectly through any third parties, to any individual for favorable treatment in obtaining, retaining, or directing business for, or to obtain any special concession on behalf of VENDOR or IHERB or their, its parent(s), subsidiary(ies), or affiliate(s). This includes, but is not limited to, a prohibition on any facilitation payments to any government official to expedite a routine government action, whereas the term "government official" (“Government Official”) shall be read broadly and includes not only (i) individuals acting on behalf of governments on a national, regional and local level (such as elected officials, customs officials, tax officials, etc.), but also: (ii) individuals acting on behalf of government-owned or government-controlled enterprises (such as staff of publicly owned / operated oil and gas entities like PEMEX, etc.), (iii) individuals acting for political parties or as or on behalf of candidates for public office, and (iv) individuals acting on behalf of public international organizations (such as the World Bank or OECD, etc.).
3. Neither Party nor any person or entity acting on either Party’s behalf has accepted, received or agreed to accept or receive or will accept, receive or agree to accept or receive, directly or indirectly, any payment or gift of money, goods, services, or anything of value from any individual for favorable treatment in obtaining, retaining, or directing business for, or to obtain any special concession on behalf of VENDOR or IHERB.
4. No person who both (a) holds an ownership interest, position, or title in VENDOR or IHERB or an ownership interest, position or title in any agent or affiliate of VENDOR or IHERB and is also (b) a Government Official, has used or will use his/her position as a Government Official to influence the award of business or regulatory approvals or any special concession to or for the benefit of VENDOR or IHERB. Any such person will recuse himself/herself from any government decision relating to VENDOR or IHERB or their businesses.
5. Compliance with Anti-Corruption Principles. VENDOR represents that it has received a copy of IHERB’s Anti-Corruption Policy and VENDOR understands the Anti-Corruption Policy and agrees to abide by it. The Anti-Corruption Policy may be amended from time to time in IHERB’s sole discretion, to maintain compliance with applicable laws, in IHERB’s sole discretion, and such amended Anti-Corruption Policy shall be provided to VENDOR.
6. Books and Records. Each Party agrees to maintain, throughout the course of this Agreement and for a period of five (5) years thereafter, books and records that completely and accurately describe in detail all services rendered, payments made, and costs and expenditures incurred by that Party in connection with this Agreement, and to maintain a system of internal accounting controls to ensure that all measures and transactions related to this Agreement are properly authorized. The use of false documents is prohibited, as is the making of inadequate, ambiguous or deceptive bookkeeping entries and any other accounting procedure, technique or device that could hide or otherwise disguise the nature of the transaction at issue. Such books and records will be made available upon request.
7. Certification. Upon request, each Party will, from time to time, at the other Party’s request, certify its compliance with the terms of this Agreement, including, but not limited to, this Anti-Corruption Section.
8. Duty to Advise and Monitor. Each Party agrees during the term of this Agreement (i) to advise all individuals and entities acting on its behalf in connection with the performance of this Agreement of the obligations contained in this Anti-Corruption Section, including the Anti-Corruption Policy, and (ii) to monitor such individuals and entities for compliance during the Term of this Agreement.
9. Duty to Report. Each Party agrees that if it becomes aware, or has reason to suspect, that any person or entity acting on its behalf has directly or indirectly, (a) provided, or offered to provide, anything of value to any individual, or (b) accepted, received or agreed to accept or receive, anything of value from any individual, in the hope or expectation of receiving favorable treatment in obtaining, retaining, or directing business for, or to obtain any special concessions on behalf of itself, it will immediately report such knowledge or suspicion to the other Party the other.
10. Verification Rights. VENDOR agrees to cooperate in any compliance investigation or audit that may be conducted by IHERB, its counsel, or its internal or external auditors, related to this Agreement. Upon notice of an intended compliance investigation or audit, VENDOR will, in a reasonable time, unless prohibited by law, make available to IHERB or a third party retained by IHERB (i) persons within the control of VENDOR who IHERB or the third party wants to interview, and (ii) documents and data relating to the issue(s) under review, including, but not limited to, invoices and requests for expense reimbursement, supporting receipts and substantiation, and original entry records for charges invoiced to VENDOR or to a third party in connection with the services, and all payments made to or benefits conferred by VENDOR on third parties in the course of VENDOR performance of Services under this Agreement or any related agreement.

Documentation and Certifications.

1. Upon iHerb’s reasonable request, Vendor will provide, at Vendor’s expense, all certifications and other documentation required to comply with the terms of this Agreement , including, but not limited, to any Safety Data Sheet required by OSHA regulations and Certificates of Origin (“CoA”) that fully substantiates the labeling of, and any claims made on, the Products.
2. The CoA shall include the Product’s: (i) name; (ii) lot number(s); (iii) expiration date; (iv) date tested; (v) results attesting the Product has undergone testing (specified by iHerb); (vi) confirmation that the Product adheres to its specifications, standards, and labeling; and (vii) physical and chemical properties.
3. For Products that are required by law to be considered dietary supplements (“Dietary Supplements”), Vendor shall provide an adequate CoA or CoA exemption letter that must be approved in writing by iHerb before Vendor ships any Dietary Supplements. iHerb reserves the right to reject shipments of Dietary Supplements if Vendor does not provide adequate documentation and receive iHerb’s written approval before shipment. Any such rejected Dietary Supplements shall be returned to Vendor at Vendor’s risk and expense.
4. iHerb may request Product certifications and documentation to substantiate claims on Product labels such as claims that a Product is Organic, Kosher, Halal, Non GMO, Gluten-Free, NSF Safe For Sport, Cruelty Free, and others prior to being listed on the site with those claims.

Indemnification. Vendor will defend, indemnify, and hold iHerb, its affiliates, and its and their respective officers, directors, employees, agents, successors and assigns (collectively, the “iHerb Indemnified Parties”) harmless from any and all claims, liabilities, fines, penalties, losses, damages, costs and expenses (including reasonable attorneys’ fees) (each a “Claim”) arising from or relating to (i) the death of or injury to any person or animal or other damage or loss due in whole or in part to any Products or any actual or alleged defect in such Products, whether latent or patent, including, but not limited to, any alleged failure to provide adequate warnings, labeling or instructions, (ii) any recall of the Products, (iii) any allegation or finding that any Products, any Product Information or other content or material provided by Vendor infringes or misappropriates any proprietary rights or other rights of any third party, (iv) Vendor’s failure to provide an accurate and up-to-date New Item Recap and Update Form, Product Information, CoAs, applicable certifications, Prop 65 Warning, or other adequate warnings or instructions, (v) any act, activity or omission of Vendor or any of its employees, representatives, or agents, (vi) iHerb’s reliance on any certification, Prop 65 Warning or documentation or instructions from Vendor, (vii) Vendor’s breach of the representations and warranties set forth in this Agreement, or (viii) Vendor’s actual or alleged violation of law, statute, rule, regulation, ordinance or any administrative order, rule or regulation relating to the Products or its manufacture, shipment, import, labeling, weights and measurements, use or sale, or Vendor’s failure to provide an SDS. Vendor will not be obligated to indemnify the iHerb Indemnified Parties to the proportional extent the liability for a Claim is caused by the negligence or intentional misconduct of the iHerb Indemnified Party.

In the event that iHerb receives notice that a Claim for which Vendor may be required to indemnify iHerb is asserted against or sought to be collected from iHerb, iHerb will provide prompt written notice to Vendor. iHerb will at all times have the right to fully participate in such defense at its own expense and will not be obligated, without its consent, to participate in any settlement. Vendor is prohibited from making any settlement of any claims that might give rise to liability unless such settlement includes a full, unconditional release of iHerb; moreover Vendor is prohibited from entering into any settlement which imposes any obligation, liability or admission of guilt on the part of iHerb, without the prior written consent of iHerb.

Confidential Information. Each party agrees that it will (i) maintain all Confidential Information (as defined below) which is disclosed to or otherwise observed by such party in strict confidence and take all reasonable precautions to protect such Confidential Information, (ii) not divulge any Confidential Information to any third party, and (iii) not make or authorize any use of any Confidential Information other than to the extent necessary for the performance of this Agreement, except with the prior written consent of the disclosing party or as required by law. All rights in and title to the Confidential Information remain in the disclosing party. “Confidential Information” means all information disclosed through any means of communication or by personal observation by or on behalf of the disclosing party to or for the benefit of the receiving party that relates to the disclosing party’s products, projects, productions, research and development, intellectual property, trade secrets, customers, employees, vendors, suppliers, technical know-how, policies or practices (and all creative, business and technical information relating thereto), and any other matter that the receiving party is advised or has reason to know is the confidential, trade secret or proprietary information of the disclosing party. Notwithstanding the foregoing, the term Confidential Information shall not include information which (i) is or becomes publicly available other than as a result of a disclosure by receiving party in violation of this Agreement; (ii) is or was independently developed by receiving party without the use of any Confidential Information (as defined without regard to this exception); (iii) is or becomes available to receiving party on a non- confidential basis from a source (other than disclosing party) which is not prohibited from disclosing such information to receiving party by any legal, contractual or fiduciary obligation; or (iv) is information that was already known by receiving party, so long as receiving party can demonstrate, by written records, that such information had been in receiving party’s possession prior to receipt of the Confidential Information by receiving party. To the extent the receiving party is legally compelled to disclose Confidential Information, then the receiving party shall notify the disclosing party as soon as reasonably practicable. Upon written request of the disclosing party, the receiving party shall return or destroy (at the discretion of the disclosing party) all Confidential Information within 30 days of receipt of said notice unless otherwise agreed to by the parties. If such Confidential Information is destroyed, the receiving party shall deliver to the disclosing party a certificate signed by a proper officer of the receiving party attesting to such destruction. The parties acknowledge and agree that due to the unique and sensitive nature of the Confidential Information, any breach of this Agreement would cause irreparable harm for which monetary and/or equitable relief may not be a sufficient remedy. Upon any actual or impending violation of this Agreement, the parties shall be entitled, without waiving any other rights or remedies, to injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Such remedies shall not be deemed to be the exclusive remedy for any breach of this Agreement but shall be in addition to all other remedies available at law or in equity.

Notices. All demands, notices, and other communications to be given hereunder, if any, shall be in writing and shall be sufficient for all purposes if sent by email, registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the respective party; if to iHerb: 17400 Laguna Canyon Road, Suite 400, Irvine, CA 92618 (Attn: Legal Department) with a copy to [email protected]; if to Vendor: at the address listed in the preamble above. Notice by mail shall be deemed effective and complete three (3) days after deposit in the United States mail.

Governing Law; Venue. This Agreement and any related documents shall be governed by and construed in accordance with the laws of the State of California. With the exception of injunctions other equitable relief for which the parties may seek remedies in court, any controversy or claim arising out of or relating to this Agreement or related documents, or any breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any such arbitration shall be held in Los Angeles County, California. The prevailing party shall be entitled to reimbursement from the non-prevailing party of all costs associated with the arbitration or court action, including the recovery of all reasonable attorneys’ fees and/or arbitrator’s fees.

Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, or embargoes. Notwithstanding the foregoing, Force Majeure Events expressly excludes the following: (a) any event that a party could reasonably have prevented by quality assurance, disaster recovery or other testing consistent with industry practices; and (b) any event where a party could have implemented a reasonable workaround to prevent such loss, damage, delay or failure in performing its obligations hereunder. If a Force Majeure Event prevents Vendor from carrying out its obligations under the Agreement for a continuous period of more than thirty (30) business days, iHerb may terminate this Agreement immediately by giving written notice to Vendor.

Communications. Neither party will make or issue, or cause to be made or issued, any announcement or statement regarding activities under this Agreement for dissemination to the general public or to any third party without the prior written consent and review of the other party. Communications include press releases, investor call scripts, white papers or case studies, as well as marketing collateral and speaking engagements. Any request for iHerb to be mentioned publicly must be sent to iHerb Corporate Communications for consideration at [email protected].

Miscellaneous. This Agreement constitutes the entire understanding of the parties hereto relating to the matters herein and may be amended or modified only by a written agreement duly executed by the parties hereto. Notwithstanding the foregoing, iHerb reserves the right at any time to issue a written change order or amendment to an unshipped Order concerning any of the following: (a) specifications and data incorporated in the Order where the Products to be furnished are custom and specifically manufactured for the iHerb; (b) quantity; (c) methods of shipment or packaging, (d) Delivery Location, (e) Delivery Date; or (f) any other matters affecting an Order. Vendor shall not assign, transfer, delegate, or subcontract any of its rights or obligations under the Agreement without the prior written consent of iHerb, which may be withheld in iHerb’s sole discretion. Any failure by either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. Nothing in this Agreement shall be construed to give rise to a relationship between the parties hereto as a joint venture or partnership or other relationship other than that of independent contractors. In the event that any portion of this Agreement is held invalid or unenforceable for any reason, said invalidity or unenforceability shall not affect the other portions of this Agreement, and the remaining portions thereof shall remain in full force and effect. The representations, warranties and other terms contained herein are for the sole benefit of the parties hereto and their respective successors and permitted assigns; and shall not be construed as conferring any rights on any other persons or parties. Provisions of this Agreement which by their nature should survive beyond the expiration or earlier termination of this Agreement will remain in force after such expiration.