OK CAPSULE TERMS & CONDITIONS
THESE OK CAPSULE TERMS & CONDITIONS (the “Ts&Cs”) are agreed between the parties as of the date of Client’s first placement of an Order (the “Effective Date”), by and between OK Capsule, LLC, a Delaware limited liability company, with its principal place of business located at 725 Trademark Drive, Suite 104, Reno, Nevada 89521, on behalf of itself and its affiliates
(“OKC”) and the entity or individual placing any Order (“Client”). In consideration of the mutual promises contained herein, the parties agree as follows:
1. SERVICES & TECHNOLOGY
1.1 Services. OKC agrees to perform professional services as Client’s non-exclusive value-added contract packager fulfilling orders (each, an “Order”) of customized and/or pre-configured pouches and their associated packaging (collectively, the “Pouches”) of OKC’s standard offering of dietary supplements (the “Products”) selected from those available to Client (the “Formulary”) on OKC’s web-based administrative interface (the “Portal”) sourced from contract manufacturers (each, a “Manufacturer”) shipped individually, directly to Client’s customers located within the United States of America (the “Consumer”), all in accordance with the Product Packaging Guidelines available on the Portal and the applicable Tier (defined below) applicable to Client on the Portal as explained in Section 1.2 below. Such fulfillment, packing, and shipping shall constitute the “Services”. OKC may at any time, without notice or liability, modify the Formulary and/or the Product Packaging Guidelines described on the Portal.
1.2 Technology. OKC hereby grants Client access to the Portal (the “Technology”) based on the Tier (defined in Section 1.4) applicable to the Client within the Portal. Client’s access to the Technology is solely for the purposes contemplated herein. Client will not: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Technology; (ii) modify, translate, or create derivative works based on the Technology; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Technology; (iv) use the Technology for the benefit of any third-party other than Consumer; (v) remove or otherwise alter any proprietary notices or labels from the Technology; (vi) use the Technology to build any application or product that is competitive with the Services; (vii) interfere or attempt to interfere with the proper working of the Technology; (viii) bypass any measures which prevent or restrict access to the Technology; (ix) “crawl,” “scrape,” or “spider” any information, data, or content available through the Technology; or (x) use the Technology in violation of any applicable law. All Tiers include the Shopify App with Packbuilder. API and ERP integrations, and custom engineering are available to Clients as described for each Tier on the Portal.
1.3 Data Security & Privacy. Each party shall utilize and maintain industry-standard protocols to ensure the security of its electronic assets, operations, and all Client and Consumer data
uploaded to, or communicated through, the Technology (the “Data”). Each party shall promptly notify the other in the event that it becomes aware of any material compromise to the security of the Technology, Data, or its own network, that could reasonably impact the integrity of the other’s operations, or rights or responsibilities hereunder. Client shall at all times retain all right, title, and interest in and to the Data, and shall have sole responsibility for ensuring its accuracy, quality, integrity, legality, reliability, and appropriateness. Client acknowledges and agrees that OKC may use the Data internally, and in a secure and lawful manner, solely for the purpose of generating aggregated anonymous information for testing and improving the Services and Technology.
1.4 Tiered Service Structure. OKC offers a tiered service model, with each tier (“Tier”) defined by specific service features and pricing, as described on the Portal. Each Client is automatically assigned to a Tier based on the Client’s aggregate order volume over the immediately preceding thirty (30) calendar days. All Clients initially begin in Tier 1. Thereafter, Clients will be reviewed and reassigned automatically to the appropriate Tier in accordance with OKC’s then-current Tier assignment criteria. Clients may not manually select or request to upgrade or downgrade their Tier, although OKC may, in its sole discretion and with notice, permit adjustments under exceptional circumstances. The Portal will display the applicable Tier, as well as the features and pricing associated with that Tier. Access to the Services, Technology, and pricing is limited to the features available under the Client’s then-current Tier. Enterprise Tiers, if offered, require a separate Master Service Agreement (“MSA”).
2. QUALITY COMMITMENT
2.1 Product Manufacturers. OKC shall only supply Products sourced from Manufacturers having met or exceeded the OKC Quality Standards indicated on the Portal. Furthermore, OKC shall ensure that all Manufacturers conduct micro testing of all Products in accordance with industry standards and applicable law. Upon written request, OKC shall make available to Client a list of its Manufacturers, and such information shall be deemed confidential to OKC. To the extent that Client becomes aware (either through OKC’s disclosure, or otherwise) of the identity of any of OKC’s Manufacturers, Client hereby covenants that it shall not purchase, or otherwise obtain, without OKC’s prior express written consent, any Product directly from such Manufacturer while these Ts&Cs remain in effect, and for a period of six (6) months thereafter, except and unless Client can substantiate that it has purchased such Product directly from Manufacturer within the twelve (12) month period immediately prior to the Effective Date. This covenant represents an essential element of these Ts&Cs, and its breach would cause significant economic harm to OKC. Due to the difficulty of proof of actual damages, in the event of breach, Client agrees to immediately remit to OKC liquidated damages for the reasonable estimated amounts associated with OKC’s lost business opportunities, lost revenue and lost profits, in an amount equal to the Cost Client would have paid to OKC had Client made such purchases from OKC. Client acknowledges and agrees that such amount is reasonable, not a
penalty, and not disproportionate to the presumed investment OKC has made in its business relationships.
2.2 Product Certification. Upon written request, OKC shall make available to Client all Certificates of Analysis and other applicable documentation in its possession relevant to the Products, including any certification of Organic, Kosher, Halal, non-GMO, or otherwise, as may be provided to OKC by the Manufacturer. OKC shall facilitate and charge to Client the actual cost of any specific analyses requested by Client from Manufacturer.
2.3 Quality Inspection & Handling. OKC shall employ a combination of mechanical and human process to diligently inspect all Product and Pouches for quality prior to shipping. OKC shall store and handle all Product in a manner consistent with industry standards and best practices that minimizes cross-contamination, degradation, adulteration, or any other condition that could negatively impact quality. Client may audit OKC facilities, onsite or virtually, consistent with the Audit Policy and Guidelines available on the Portal.
2.4 Client-Supplied Packaging. In the event that Client elects to provide any custom packaging materials, including but not limited to outer boxes, labels, or inserts (collectively, “Client Packaging”), Client shall ensure that all such Client Packaging complies with the Product Packaging Guidelines and applicable law. Client shall bear all costs associated with the design, production, shipping, and delivery of Client Packaging to OKC’s facilities, as well as any storage fees incurred by OKC for excess or unused materials. OKC shall not be responsible for delays, damages, or additional costs arising from defective, non-compliant, or delayed Client Packaging.
2.5 Recalls. In the event of a Product recall, market withdrawal, or similar corrective action (“Recall”), whether initiated by OKC, a Manufacturer, Client, or a governmental authority, each party shall cooperate promptly and in good faith to address the Recall, including implementing any necessary notifications, product retrievals, or refunds. Client shall be responsible for all Recall costs and expenses to the extent the Recall arises from Client’s specifications, marketing claims, misuse of the Products, or other actions outside OKC’s control. OKC shall be responsible for all Recall costs to the extent the Recall arises from OKC’s gross negligence or willful misconduct.
3. CLIENT RESPONSIBILITIES
3.1 Compliance with Laws. Client is solely responsible for ensuring that its marketing, sale, and distribution of the Products and Pouches, including any claims made on packaging, websites, or promotional materials, comply with all applicable laws, rules, and regulations, including but not limited to those of the U.S. Food and Drug Administration (FDA) and the Federal Trade Commission (FTC). OKC shall have no responsibility for Client’s marketing claims, formulas, or representations.
3.2 Orders and Forecasting. Client shall submit Orders through the Portal in accordance with the procedures described therein. Client acknowledges that timely forecasting is critical to OKC’s ability to source and fulfill Orders. Client shall provide OKC with good-faith monthly forecasts of anticipated order volume to assist in inventory planning. OKC does not guarantee the availability of any specific Product or ingredient.
3.3 Payments. Client shall pay all fees, charges, and costs as set forth in the Portal or as otherwise agreed in writing. Unless otherwise stated, payments are due at the time of Order placement and shall be made via the payment methods accepted by OKC. Late payments shall accrue interest at the lesser of 1.5% per month or the maximum rate allowed by law. Client shall reimburse OKC for all reasonable costs of collection, including attorneys’ fees.
3.4 Taxes. Client is responsible for all applicable sales, use, excise, value-added, or similar taxes, duties, and government charges (collectively, “Taxes”) arising from the Services or the sale of Products, excluding taxes based on OKC’s net income. If OKC is required to collect Taxes on Client’s behalf, Client shall pay such Taxes in addition to all other amounts owed.
4. PRICING AND TIER ADJUSTMENTS
4.1 Pricing. Pricing for the Services and Products shall be as set forth in the Portal and may vary by Tier. OKC may adjust pricing upon thirty (30) days’ written notice to Client, provided that such adjustments shall not apply to Orders already accepted by OKC prior to the effective date of the change.
4.2 Tier Changes. As described in Section 1.4, Client’s Tier assignment may change automatically based on order volume. Pricing, features, and available services shall adjust accordingly. Client agrees to pay all fees applicable to its current Tier.
5. INTELLECTUAL PROPERTY
5.1 Ownership. OKC retains all right, title, and interest in and to the Technology, the Portal, all OKC trademarks, trade names, logos, and other intellectual property (collectively, “OKC IP”). Except as expressly granted herein, no rights or licenses are granted to Client.
5.2 Client Marks. Client grants OKC a limited, non-exclusive, royalty-free license to use Client’s trademarks, trade names, and logos (“Client Marks”) solely for the purpose of performing the Services. OKC shall comply with Client’s reasonable trademark usage guidelines provided in writing.
5.3 Feedback. Any suggestions, ideas, or feedback provided by Client to OKC regarding improvements to the Services or Technology may be used by OKC without restriction or obligation.
6. CONFIDENTIALITY
6.1 Definition. “Confidential Information” means any nonpublic information disclosed by one party (“Disclosing Party”) to the other party (“Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes but is not limited to business plans, pricing, formulas, customer lists, and technology.
6.2 Obligations. Receiving Party shall not disclose, use, or permit the use of any Confidential Information except as necessary to perform its obligations under these Ts&Cs. Receiving Party shall protect the Confidential Information using at least the same degree of care it uses to protect its own confidential information, but no less than reasonable care.
6.3 Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully known to the Receiving Party before disclosure; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is rightfully obtained by the Receiving Party from a third party without restriction.
6.4 Required Disclosure. Receiving Party may disclose Confidential Information to the extent required by law or court order, provided it gives Disclosing Party prompt written notice and cooperates with any efforts to limit disclosure.
7. REPRESENTATIONS AND WARRANTIES
7.1 Mutual. Each party represents and warrants that it has the full right, power, and authority to enter into these Ts&Cs and perform its obligations hereunder.
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, OKC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS.”
8. LIMITATION OF LIABILITY
8.1 Exclusion of Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 Cap on Liability. OKC’s total liability for any claim arising out of or related to these Ts&Cs shall not exceed the total amount paid by Client to OKC in the twelve (12) months preceding the claim.
9. TERM AND TERMINATION
9.1 Term. These Ts&Cs shall commence on the Effective Date and continue until terminated as provided herein.
9.2 Termination for Convenience. Either party may terminate these Ts&Cs for any reason upon thirty (30) days’ prior written notice.
9.3 Termination for Cause. Either party may terminate these Ts&Cs immediately upon written notice if the other party materially breaches these Ts&Cs and fails to cure such breach within fifteen (15) days after receipt of written notice.
9.4 Effect of Termination. Upon termination, all outstanding Orders shall be fulfilled or canceled as mutually agreed. Client shall pay all amounts due for Services performed or Products shipped prior to termination. Sections 2.3, 3.3, 5, 6, 7, 8, 9.4, and 10 shall survive termination.
10. GENERAL PROVISIONS
10.1 Independent Contractors. The parties are independent contractors. Nothing herein shall create any partnership, joint venture, or agency relationship.
10.2 Assignment. Client may not assign or transfer these Ts&Cs without OKC’s prior written consent. Any attempted assignment without consent shall be void. OKC may assign these Ts&Cs without consent in connection with a merger, acquisition, or sale of assets.
10.3 Force Majeure. Neither party shall be liable for delays or failures in performance caused by events beyond its reasonable control, including natural disasters, labor disputes, governmental actions, or internet failures.
10.4 Notices. All notices under these Ts&Cs shall be in writing and deemed given when delivered personally, sent by confirmed email, or sent by certified mail or reputable courier to the addresses set forth herein or as otherwise designated.
10.5 Governing Law. These Ts&Cs shall be governed by and construed in accordance with the laws of the State of Nevada, without regard to its conflicts of law principles. Any legal action shall be brought exclusively in the state or federal courts located in Washoe County, Nevada.
10.6 Entire Agreement. These Ts&Cs, together with any documents referenced herein, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements or understandings, whether written or oral. Any modifications must be in writing and signed by both parties.