EX-10.26 35 ex10-26.htm

Exhibit 10.26

[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.

Date: | October 9, 2009 |  | Vendor A/P No. |
|  |  | Dept. No |

COSTCO WHOLESALE

BASIC VENDOR AGREEMENT

United States (2004)

Factor Nutrition Labs LLC | (“Vendor”) and Costco
Wholesale Corporation (referred to as “Costco Wholesale”) agree that: |

A. | Agreement Documents. All sales and deliveries of all merchandise by Vendor to Costco Wholesale (or other purchaser under paragraph C below), and all purchase orders by Costco Wholesale (or other purchaser under paragraph C below) to Vendor, will be covered by and subject to the terms of each of the following documents (collectively the “Agreement Documents”):

| ● | This Basic Vendor Agreement;
| ● | The attached Costco Wholesale Standard Terms United States (2004), as they may be amended in writing by Costco Wholesale from time to time (“Standard Terms”); and
| ● | Each Vendor Purchase Program Agreement, Item Agreement, or any other agreements (such as warehouse displays, promotions or rebates) that have been or will be signed between Vendor and Costco Wholesale.

B. | Inconsistency. The above Agreement Documents collectively are an agreement between us, are part of this Basic Vendor Agreement and are incorporated herein by reference. In case of any inconsistency among any Agreement Documents, the lowest such document in the above list will take priority over any document higher on the list.
C. | Purchaser. Each purchase will be made in the name of “Costco Wholesale,” but may be for the account of its affiliates or licensees.
D. | Insurance. The insurance requirements are set forth in Section 16 of the Standard Terms.
E. | Disputes. Disputes shall be resolved under Sections 20 and 21 of the Standard Terms.
F. | Relationship of the Parties. The relationship between Costco Wholesale and Vendor is that of an independent contractor and Vendor agrees that it has not and shall not hold itself out as, nor shall Vendor be deemed to be, an agent of Costco Wholesale.

Page 1

G. | Vendor Code of Conduct. Vendor agrees to comply with Costco Wholesale’s Vendor Code of Conduct (December 2003), as it may be amended in writing by Costco Wholesale from time to time.
H. | Other Forms. The Agreement Documents supersede all terms in Vendor’s invoices and other forms, and all prior oral or written communications between us. No party is entering into these Agreement Documents in reliance on any oral or written promises, representations or understandings other than those in the Agreement Documents.

COSTCO WHOLESALE CORPORATION | VENDOR:
By |  | By | /s/ Annie L Hodgdon
| (Buyer) |  | (Signature of Owner, Officer or other Authorized Employee)
By |  |  | Annie L. Hodgdon Retail Coordinator
| (GMM) |  | (Print Name and Title

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|  |  | Vendor A/P No. __________________________________________
Date: |  | Sept. 23, 2009 | Dept. No. ____________________________________________________

COSTCO.COM DROP-SHIP VENDOR AGREEMENT

United States (2004)

Factor Nutrition Labs LLC (“Vendor”) and Costco Wholesale Corporation (referred to hereinafter as “costco.com” unless specifically stated otherwise agree that:

1. Agreement Documents. All sales and deliveries of all Merchandise by Vendor to costco.com’s Customers purchased by costco.com from Vendor, and sold through the Internet e-commerce site(s) of costco.com or its Affiliate Purchasers (as defined below), will be covered by and subject to the definitions in the Drop-Ship E-Standard Terms and the terms of each of the following documents (collectively the “Drop-Ship Agreement Documents”):

(a) | This costco.com Drop-Ship Vendor Agreement;
(b) | The attached costco.com Drop-Ship E-Standard Terms (United States 2004), as they may be amended in writing by costco.com from time to time (the “Drop-Ship E-Standard Terms”); and
(c) | Each Vendor Purchase Program Agreement, costco.com E-Item Agreement or any other agreement that has been or will be signed between Vendor and costco.com.

2. Inconsistency. The above Drop-Ship Agreement Documents collectively are an agreement between us, are part of this costco.com Drop-Ship Vendor Agreement and are incorporated herein by reference. In case of any inconsistency among any Drop-Ship Agreement Documents, the lowest such document on the list in Section 1 above will take priority over any document higher on the list.

3. Purchaser. Each purchase will be made in the trade name of “costco.com,” but may be for the account of Costco Wholesale or of its affiliates or licensees that operate online e-commerce sites and for whom Costco Wholesale acts as purchasing agent (“Affiliate Purchasers”).

4. Insurance. Vendor shall comply with the insurance requirements set forth in Section 27 of the Drop-Ship E-Standard Terms.

5. Disputes. Disputes shall be resolved as provided in Sections 32, 33 and 34 of the Drop-Ship E- Standard Terms.

6. Relationship of the Parties. The relationship between costco.com and Vendor is that of an independent contractor and Vendor agrees that it has not and shall not hold itself out as, nor shall Vendor be deemed to be, an agent of costco.com.

7. Assigned Numbers. Vendor acknowledges that the Vendor A/P number and department number referenced on page 1 of this costco.com Drop-Ship Vendor Agreement, as well as any vendor number assigned to Vendor by costco.com, are included for the sole benefit of costco.com and may be changed by costco.com at any time and from time to time. Costco.com will notify Vendor of any such change(s) and Vendor will thereafter use the revised number(s) as and when required by costco.com.

8. Vendor Code of Conduct. Vendor agrees to comply with Costco Wholesale’s Vendor Code of Conduct (December 2003), as it may be amended in writing by Costco Wholesale from time to time.

9. Other Forms. The Agreement Documents supersede all terms in Vendor’s invoices and other forms, and all prior oral or written communications between us. Costco.com shall not be bound by, and specifically objects to, any term, condition or other provision that is different or in addition to the provisions of the Agreement Documents and is offered by Vendor and otherwise appears in any email, invoice, receipt, acceptance, confirmation, correspondence or otherwise, unless costco.com specifically agrees to such provision in a writing signed by costco.com. No party is entering into these Agreement Documents in reliance on any oral or written promises, representations or understandings other than those in the Agreement Documents.

Costco. com : | Vendor:
Costco Wholesale Corporation | Factor Nutrition Labs LLC
Signature of GMM: _____________________________ | Signature: | /s/ Annie L Hodgon
Printed Name: _____________________________ | Printed Name: | Annie L. Hodgdon
Signature of Buyer: _____________________________ | Title: | Retail Coordinator
Printed Name: _____________________________ |  |