Wholesale Standard Terms and Conditions

1. ACCEPTANCE

Any agreement, purchase order, Tier 1 or distributor letter agreement (“Agreement”) entered into by and between you (“Purchaser”) and Botanical Beverages, LLC, a Delaware limited liability company (“Seller”), is expressly limited to the terms and conditions set forth herein. These Standard Terms and Conditions, along with the Agreement, constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and shall not be affected in any way for any reason (including, without limitation, trade usage, past practice and/or prior agreement or dealings) not expressly set forth herein. This agreement covers all sales between Purchase and Seller (“Products”).

2. PRICES

Unless credit is granted, payment is due upon order. All payments for Products released and shipped on approved credit accounts shall be due in full thirty (30) days from date of invoice unless otherwise provided. Seller may cancel or delay delivery of Products in the event of an arrearage in Purchaser’s account. The prices to be paid by Purchaser hereunder are as set forth in Seller’s current Products and Pricing List. If payment is made after the due date, Seller may impose a monthly finance charge at the rate of the lesser of (a) 1.5% per month; or (b) the highest applicable rate set by law.

3. DELIVERY

Transportation will follow Purchaser’s shipping instructions, but Seller reserves the right to ship Products freight collect and to select the means of transportation and routing when Purchaser’s instructions are not provided. Risk of loss or damage shall pass to Purchaser F.O.B. Seller’s designated shipping point. Unless otherwise provided by Seller, title shall pass from Seller to Purchaser when Products are delivered to the transportation company at the location of Seller’s manufacturing plant from which the Products are shipped. Any time quoted for delivery is an estimate only unless specifically required in the applicable accepted purchase order. All Products delivered by Seller shall be suitably packed for shipment, pursuant to Seller’s standard packaging practices in a manner that will preserve their fitness for transport, sale, and consumption. Seller may make partial shipments of Products. Confiscation or destruction of, or damage to Products shall not release, reduce or in any way affect the liability of Purchaser therefore. Notwithstanding and defect or nonconformity, or any other matter, such risk of loss shall remain in Purchaser until the Products are returned at Purchaser’s expense to such place as Seller may designate in writing. Purchaser, at its expense, shall fully insure against all loss or damage until Seller has been paid in full therefore, or the Products have been returned, for whatever reason, to Seller. All Products must be inspected upon receipt and claims should be filed with the transportation company when there is evidence of damage, either concealed or external.

4. ACCEPTANCE

The furnishing by Seller of a Product to the Purchaser shall constitute acceptance of that Product by Purchaser, unless notice of defect or non-conformity is received by Seller in writing within five (5) days of receipt of the Product at Purchaser’s designated receiving address. Notwithstanding the forgoing, any use of a Product by Purchaser, its agents, employees, contractors or licensees, for any purpose after receipt thereof, shall constitute acceptance of the Product by Purchaser. Seller may repair or, at its option, replace defective or non-conforming Products after receipt of notice of defect or non-conformity.

5. WARRANTY

Seller warrants that the Products delivered hereunder will be manufactured in accordance with applicable Good Manufacturing Practices of the United States Food and Drug Administration and conform to the agreed upon specifications for the Products, in all material respects, at the time of delivery to Buyer. EXCEPT FOR THE WARRANTIES SET OUT UNDER THIS AGREEMENT, NEITHER SELLER NOR ANY PERSON ON SELLER’S BEHALF HAS MADE OR MAKES FOR DISTRIBUTOR’S BENEFIT ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, INCLUDING ANY WARRANTIES OF: (i) MERCHANTABILITY; (ii) FITNESS FOR A PARTICULAR PURPOSE; (iii) TITLE; OR (iv) NON-INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. DISTRIBUTOR ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF.

6. WARRANTY LIMITATIONS AND EXCLUSIONS

EXCEPT AS OTHERWISE PROVIDED HEREIN, THE PRODUCTS ARE PROVIDED “AS IS.” SELLER DOES NOT MAKE, AND HEREBY SPECIFICALLY EXCLUDES AND DISCLAIMS, ALL WARRANTIES NOT EXPLICITLY STATED, WHETHER EXPRESS, IMPLIED, OR ARISING BY TRADE USAGE OR COURSE OF DEALING, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND IMPLIED INDEMNITIES. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET FORTH ABOVE, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES CONCERNING QUALITY, PERFORMANCE OR ACCURACY OF THE SERVICES OR THE PROMOTION, THAT THE SERVICES OR THE PROMOTION WILL SATISFY GOBRANDS’ OR THE CUSTOMERS’ REQUIREMENTS OR NEEDS, AND DOES NOT ASSUME, AND EXPRESSLY DISCLAIMS, ANY LIABILITY TO ANY PERSON OR ENTITY FOR LOSS OR DAMAGE CAUSED BY ERRORS OR OMISSIONS IN THE SERVICES OR THE PROMOTION. EXCEPT AS OTHERWISE PROVIDED HEREIN, UNDER NO CIRCUMSTANCES WILL SELLER, ITS AFFILIATS, OR RESPECTIVE PERSONNEL, AFFILIATES OR REPRESENTATIVES BE LIABLE FOR ANY SPECIFIC PERFORMANCE OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL LOSS, EXPENSE OR DAMAGES OF ANY KIND OR NATURE, ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR THE PROMOTION, ANY AGREEMENT OR THIS AGREEMENT, WHETHER FOR LOST GOODWILL OR PROFITS, LOSS OF BUSINESS RELATIONSHIPS, LOSS OF DATA, WORK STOPPAGE OR IMPAIRMENT OF OTHER GOODS AND WHETHER BASED ON CONTRACT, TORT, OR OTHER THEORY OF LIABILITY, EVEN IF SELLER KNOWS OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, AND WHETHER OR NOT ANY EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

REASONABLE CARE MUST BE USED TO AVOID HAZARDS. SELLER EXPRESSLY DISCLAIMS RESPONSIBILITY FOR LOSS OR DAMAGE CAUSED BY USE OF ITS PRODUCTS OTHER THAN IN ACCORDANCE WITH PROPER OPERATING PROCEDURES. Statements made by any person, including representative of Seller, which are inconsistent or in conflict with the terms of these warranties shall not be binding upon Seller unless reduced to writing and approved by an officer of Seller.

7. LIABILITY LIMITATIONS

SELLER’S AGGREGATE LIABILITY IN DAMAGES OR OTHERWISE SHALL NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY SELLER FOR THE UNIT OF PRODUCT OR SERVICE FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF CLAIM OR DISPUTE. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGES OF ANY KIND, HOWSOEVER CAUSED.

8. CONFIDENTIAL INFORMATION

All non-public, confidential or proprietary information of each Party, including, but not limited to, specifications, recipes, formulas, samples, patterns, designs, plans, drawings, intellectual property, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller (“Discloser”) to the Purchaser (“Recipient”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Discloser in writing. Upon Discloser’s request, Recipient shall promptly return or destroy all documents and other materials received from Discloser. Discloser shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Recipient at the time of disclosure; or (c) rightfully obtained by Recipient on a non-confidential basis from a third party.

9. FORCE MAJEURE

Seller’s failure to perform its obligations hereunder, except any obligation to pay money, shall be excused to the extent and for the period such performance is prevented by fire, flood, earthquake, acts of God, epidemics, pandemics, pestilence, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, labor dispute, embargoes or blockades, international, national, or regional emergency, inability to obtain delivery of materials, failure of supplies of electrical power, violence, any new governmental law, order, regulation or ordinance, epidemic, pandemic, or any other act or condition beyond the reasonable control of Seller. In such case, the Seller shall give prompt, written notice to the Purchaser, and shall resume performance promptly once the foregoing condition has abated, but in no event longer than ninety (90) days after the initial failure to perform. If such condition has not abated within ninety (90) days after the initial failure to perform, the Seller may, by giving written notice to the Purchaser (1) cancel this purchase order in whole or in part as to any undelivered portion of the goods; or (2) suspend, in whole or in part, deliveries of goods during the continuance of and to the extent of such cause.

10. TERMINATION OR SUSPENSION FOR CONVENIENCE

Purchaser shall not cancel, terminate or reschedule any order accepted by Seller except by the prior written consent of Seller. In any such even, with or without Seller’s consent, Purchaser agrees to pay Seller a charge determined solely by Seller to cover the reasonable costs of processing, order handling, retesting, repackaging and Seller damages under the Uniform Commercial Code, or as determined in accordance with the published policies of Seller.

11. ADVERTISING; PRESS RELEASES AND ANNOUNCEMENTS

The parties agree that neither party may reference the existence of this Agreement in any marketing or advertising information that they may produce without the other party’s written permission. Each party agrees that it will not unreasonably withhold or delay consent to a press release by the other regarding their business relationship. Purchaser hereby agrees that all technical information contained in documents, drawings, publications, specifications, schedules and the like received from Seller for the performance of this Purchase Order is received in confidence and is the proprietary property of the Purchaser and that such information will not be transmitted, reproduced, used or disclosed to any person or organization by Purchaser without the express prior written approval of Seller.

12. ENTIRE AGREEMENT

This document and the Agreement, together with the attachments and exhibits hereto, constitutes the entire and exclusive agreement between the parties with respect to this subject matter, all oral agreements being merged herein, and supersedes all prior and contemporaneous discussions, communications and agreements with respect thereto. There are no representations, agreements, arrangements, or understandings, oral or written, between or among the parties relating to the subject matter of this Agreement that are not fully expressed herein. In the event of any conflict between the terms of this Agreement and the terms of any exhibit, the terms of such exhibit shall control.

13. AMENDMENT:

The Standard Terms and Conditions may be updated from time to time by Seller and future agreements shall be subject to such revisions.

14. WAIVER

No waiver of any right by any party under this Agreement shall be of any effect unless such waiver is express, in writing and signed by the waiving party. Any purported waiver not consistent with the foregoing shall be void.

15. SEVERABILITY

In the event that any provision of this Agreement becomes or is declared by a court of competent jurisdiction or other mutually agreed upon trier of fact to be illegal, unenforceable, void, or invalid under any applicable statute, rule or law, the parties agree that such invalidity shall not affect the validity of the remaining provisions of this Agreement, and further agree to substitute for the invalid provision a valid provision which most closely approximates the intent and economic effect of the invalid provision; provided that no such severability shall be effective if it materially changes the economic benefit of this Agreement to any party.

16. ASSIGNMENT

This Agreement shall not be assigned by Purchaser without Seller’s written consent.

17. TIME IS OF THE ESSENCE

All dates and times in this Agreement are of the essence.

18. INTERPRETATION OF TERMS AND REFERENCES

Whenever the context requires, all words used in the singular will be construed to have been used in the plural, and vice versa, and each gender will include any other gender. Numbered or lettered articles, sections and subsections herein contained refer to articles, sections and subsections of this Agreement unless otherwise expressly stated.

19. EXPENSES

Subject to Section 23 below, each party shall bear their own expenses and legal fees incurred on its behalf with respect to this Agreement and the transactions contemplated hereby.

20. INDEPENDENT CONTRACTORS

The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint undertaking or establish any fiduciary duties with respect to the subject matter hereof, or (iii) allow either party to create or assume any obligation on behalf of the other. All financial and other obligations associated with each party’s business are the sole responsibility of that party. Neither party nor any of its employees shall be eligible to participate in or receive any benefit from any benefit plan or program available to the other party’s employees.

21. GOVERNING LAW; JURISDICTION AND VENUE

This Agreement is subject to, and shall be construed in accordance with and governed by the laws of the State of Delaware. The state and federal courts of Delaware shall have exclusive jurisdiction over any action at law, suit in equity or judicial proceedings relating the enforcement of this Agreement or any disputes or claims arising out of or in connection with this Agreement, the interpretation, performance, breach, termination or invalidity thereof or of any provision contained herein.

22. ATTORNEYS’ FEES

If the services of an attorney are required to secure the performance of this Agreement or otherwise upon the breach or default of this Agreement, or if any judicial remedy or arbitration is necessary to enforce or interpret any provision of this Agreement or the rights and duties of any person in relation thereto, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, expert witness fees, accountant and consultant fees and other expenses, in addition to any other relief to which such party may be entitled. Any award of damages following judicial remedy or arbitration as a result of the breach of this Agreement or any of its provisions shall include an award of prejudgment interest from the date of the breach at the maximum amount of interest allowed by law. Subject to the foregoing, each party shall otherwise bear their own expenses and legal fees incurred on its behalf with respect to this Agreement and the transactions contemplated hereby.