SUPPLY AGREEMENT. SLA.doc 1

Transcription

1 SUPPLY AGREEMENT This Agreement ("Agreement") is entered into as of ("Effective Date"), between Nutratech, Inc., a New Jersey corporation having a place of business at 10 Henderson Drive, West Caldwell, New Jersey ("Nutratech"), and the Company identified on the signature page of this Agreement ("Company"). WHEREAS, Company desires to market and distribute finished product(s) that contain Citrus Aurantium Extract Product, bitter orange extract, orange peel extract, zhishi extract, citrus extract, synephrine from immature orange peel, etc. ("Purchased Product") obtained exclusively from Nutratech and which are identified in Schedule 1 attached to this Agreement ("Finished Products") pursuant to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of good and valuable consideration, the receipt of which is hereby acknowledged, including the mutual covenants herein expressed, the parties agree as follows: 1. USE OF TRADEMARKS - (a) Company shall not use, display or relate in any manner, either directly or indirectly, the Trademark ADVANTRA Z which is the subject of Trademark Registration No. 2,211,064 ("Trademark") in connection with any products including the Finished Products; and (b) Company agrees that during the term of this Agreement and after its termination, however occurring, that Company shall not: (i) use the Trademark or any other mark confusingly similar thereto in connection with any products or which would be likely to cause confusion between the parties or which would dilute the Trademark; or (ii) apply for or seek registration anywhere in the world, at any time, for the Trademark or any other mark confusingly similar thereto; or (iii) commit or do any act which might prejudice or adversely affect the validity of the Trademark or Nutratech's ownership thereof or dilute or diminish the value of the Trademark to Nutratech. 2. INSURANCE - Before selling or shipping any Finished Products, Company shall obtain, from a reputable insurance carrier acceptable to Nutratech, liability insurance in the minimum amount of $2,000,000 (U.S.) (combined single limit) in order to protect and insure Nutratech and Company against any claims or liabilities with which it or they may be charged because of personal or property damage or injuries suffered by any person or entity, resulting from the Finished Products and/or the Purchased Product or the use or sale thereof, whether during the term of this Agreement or thereafter. Nutratech shall be named in the policy of such insurance as a named insured, and such policy shall provide that the insurance cannot be cancelled without the insurer giving Nutratech written notice thereof at least thirty (30) days prior to the effective date of the cancellation and that the insurance covers the contractual liability of Company to Nutratech under the provisions of this Agreement. Within ten (10) days after the date this Agreement is executed and on the first day of each year thereafter, Company shall deliver to Nutratech a certificate of insurance evidencing that such insurance is in full force and effect and that it cannot be canceled without the insurer giving Nutratech written notice thereof at least thirty (30) days prior to the effective date of the cancellation. The insurance described herein is SLA.doc 1

2 understood to be primary, and is not subject to contribution by any other insurance which may be available to Nutratech. 3. PRODUCT INFORMATION AND MATERIALS - Nutratech may provide Company, in Nutratech's sole discretion, information and materials relating to Purchased Product, whether proprietary or non-proprietary, whether written, recorded or verbal, whether on, prior or subsequent to the date of this Agreement, whether prepared by Nutratech or by a third party, including, but not limited to, all Purchased Product sales and marketing materials, research data and other technical information ("Information" and "Materials" and "Market Information"). All such Information, Materials and Market Information is provided "As Is With All Faults", and Nutratech makes, and will make, no representations or warranties, express or implied, as to the usefulness, accuracy, completeness, feasibility, reliability or legality of the Information, Materials and Market Information. Company may use the Information, Materials and Marketing Information provided by Nutratech solely in connection with the marketing and distribution of Finished Products that contain Purchased Product purchased from Nutratech and not in connection with any products that do not contain Purchased Product and are not subject to this Agreement; provided that Company will maintain any Information, Material and Market Information designated as being confidential by Nutratech as proprietary and confidential to Nutratech and shall not disclose such Information, Material or Market Information to any third party. 4. UNDERTAKINGS BY COMPANY - (a) Product Changes - Upon written notice to Nutratech by Company, Company upon Nutratech's written approval may amend, add to, subtract from or otherwise change, from time to time, the list of Finished Products identified in Schedule 1, provided that all such changes and Finished Products shall comply with the terms and conditions of this Agreement; (b) Product Quality - Company shall (i) not blend nor formulate the Purchased Product or Finished Products with any other citrus aurantium extract powder, bitter orange extract, orange peel extract, zhishi extract, citrus extract, synephrine from immature orange peel, etc material other than the Purchased Product obtained from Nutratech, and (ii) not sell any Finished Products that are not manufactured in accordance with the requirements of the United States Federal Food Drug and Cosmetic Act, including all applicable good manufacturing practice regulations, or in the event Finished Products are manufactured or distributed in countries outside the United States, in accordance with all applicable laws and regulations of such countries; (c) Product Supply - Company agrees that it will not resell or supply any Purchased Product in bulk raw material form, either directly or indirectly, to any other third party, except for use in the manufacture of Company's Finished Products; (d) Third Party Compliance - Company shall assure compliance with this Agreement by any third-party manufacturer of Company's Finished Products, and guarantees performance of any payment under Nutratech's General Purchase Agreement by any manufacturer which has purchased Purchased Product from Nutratech for the manufacture of Finished Products under contract with Company; (e) Other Marks - Company may use its own trademarks, tradenames, logos, advertising slogans and other related marks to identify Company with respect to its distribution of Finished Products (collectively, "Other Marks") provided such Other Marks are not confusingly similar to the Trademark; SLA.doc 2

3 (f) Trademark Infringement - Company shall promptly bring to the attention of Nutratech any infringement or misuse of the Trademark which comes to Company's attention; (g) Compliance With Laws - Company will comply with all laws and regulations relating or pertaining to the marketing of Finished Products; (h) Expenses - Company will not create any expenses chargeable to Nutratech; (i) Indemnification - Except as expressly provided herein, Company indemnifies and holds Nutratech harmless from any claims arising out of any act under or in violation of this Agreement by Company and its manufacturers and/or distributors, including, but not limited to, the distribution, advertising and promotion of Company's Finished Products or use of the Information or Materials or Market Information; (j) Auditing Right - Company agrees to keep complete and accurate written records in sufficient detail to enable Nutratech and/or its representatives and agents to determine on a monthly basis the gross sales and quantity of all Purchased Product and/or Finished Products sold by Company. Company agrees to permit the aforesaid records to be examined at Nutratech's expense by any independent auditor at yearly intervals, during usual business hours during the life of this Agreement. Company agrees to provide Nutratech and/or its independent auditor with full cooperation in making available all records to conduct the inspection and examination pursuant to this provision. Should any inspection or examination reveal greater than a five percent (5%) deficiency in the difference between the quantity of Purchased Product and Finished Product sold by Company and the quantity of Purchased Product purchased from Nutratech, then, (1) the cost of the inspection shall be paid by Company and (2) Nutratech shall have the immediate right to terminate this Agreement and all rights granted to Company. In the event of termination of this Agreement, Company shall immediately cease and desist from any sale of the Purchased Product and/or Finished Products; (k) Company shall not, directly or indirectly, hold Nutratech out as a sponsor or endorser of Company's business or suggest or imply any connection or relationship between Company and Nutratech in any manner whatsoever; and (l) Company shall prominently mark its packaging, labels and advertising materials for the Finished Products with the designation(s) "U.S. Patent Numbers 6,224,873; 6,316,499; 6,340,481; 6,340,482." 5. TERM AND TERMINATION - This Agreement shall commence on the Effective Date and shall continue in full force and effect, unless and until terminated as follows: (a) this Agreement may be terminated by either party for any reason without cause upon thirty (30) days written notice to the other party; (b) Nutratech shall have the right to terminate this Agreement immediately upon written notice to Company if the Company shall fail to comply with or perform any term or condition of this Agreement and if such failure shall continue for a period of fifteen (15) days after written notice of such failure is sent by Nutratech to Company; (c) this Agreement shall terminate automatically if Company files a petition in bankruptcy, is adjudicated as bankrupt or files a petition or otherwise seeks relief under or pursuant to any bankruptcy, insolvency or reorganization statute or proceeding, or if a petition in bankruptcy is filed against it or it becomes insolvent or makes an assignment for the benefit of its creditors, or a custodian, receiver or trustee is appointed for all or a substantial portion of its business or assets, provided such circumstances are not cured within thirty (30) days of the commencement of the abovestated event; no assignment for the benefit of creditors, custodian, receiver, trustee in SLA.doc 3

4 bankruptcy, sheriff or any other officer of the court or official charged with taking over custody of Company's assets or business shall have any right to continue this Agreement if this Agreement terminates pursuant to this paragraph; and nothing contained herein shall be deemed to preclude or impair any rights which Nutratech may have as a creditor in any bankruptcy proceeding; and (d) upon termination of this Agreement for any reason, Company shall (i) immediately discontinue all use of Information, of Materials and of Marketing Information, except for information which is publicly available, (ii) all rights granted by Nutratech to Company, whether explicit or implicit, shall terminate, and (iii) Company shall immediately cease and desist from any sale of the Purchased Product and/or Finished Products. 6. REMEDIES - (a) In addition to any damages which may be awarded as a result of a breach of this Agreement by Company, Nutratech shall be entitled to injunctive relief. Company acknowledges that a remedy at law for any breach or threatened breach of this Agreement may be inadequate, and that accordingly, Nutratech shall be entitled to seek injunctive relief in addition to any other remedy it may have. Neither Nutratech's right to injunctive relief nor any other provision of this Agreement shall be construed as prohibiting Nutratech from pursuing any other legal or equitable remedy available to it for such breach or threatened breach, including the recovery of damages and attorney's fees; and (b) This Agreement shall be governed by and interpreted in accordance with the laws of the State of New Jersey without regard to conflict of laws and any proceedings pertaining to this Agreement shall be commenced and maintained in New Jersey. Each of the parties in any suit, action or proceeding arising out of or relating to this Agreement, irrevocably (i) submits to the jurisdiction of the State Courts of the State of New Jersey and the United States District Court for the district of New Jersey over any suit, action or proceeding arising out of or relating to this Agreement, (ii) waives to the fullest extent enforceable under applicable law any objection which it may now or hereafter have to the above venue of any such suit, action or proceeding and any claim that any such suit, action or proceeding brought in such Court has been brought in an inconvenient forum, (iii) waives to the fullest extent enforceable under applicable law any objection which it may now or hereafter have to the above mentioned Court having jurisdiction of the parties hereto and to the subject matter of this Agreement, and (iv) acknowledges that a final judgment in any such suit, action or proceeding brought in such Court, after all appropriate appeals, shall be conclusive and binding upon it. 7. GENERAL PROVISIONS - (a) Assignment - This Agreement is personal to Company. Company shall not assign or transfer any rights or obligations under this Agreement; (b) Assignment by Nutratech - This Agreement shall insure to the benefit of and be binding upon Nutratech and its successors and assigns; (c) Relationship - The relationship of the parties of this Agreement is determined solely by the provisions of this Agreement. The parties do not intend to create any agency, partnership, joint venture, trust or other relationship with duties or incidents different from those of parties to an arm's length contract; (d) Integration - This Agreement sets forth the entire understanding of the parties relating to the transactions it contemplates, and supersedes all prior understanding relating to them, whether written or oral. There are no obligations, commitments, representations or warranties relating to them except those expressly set forth in this SLA.doc 4

5 Agreement; (e) Attorney's Fees - If any action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees in addition to any other relief to which it may be entitled; (f) Severability - Should all or any portion of any provision of this Agreement be held unenforceable or invalid for any reason the remaining portions or provisions shall be unaffected; and (g) Waiver/Modification/Amendment - No amendment or supplement to or waiver of any obligations under this Agreement will be enforceable or admissible unless set forth in a writing signed by the party against which enforcement or admission is sought. No delay or failure to require performance of any provision of this Agreement shall constitute a waiver of that provision as to that or any other instance. Any waiver granted shall apply solely to the specific instance expressly stated. IN WITNESS WHEREOF the parties have executed this Agreement as of the date first written above COMPANY Company: Address: City, State, Zip: Signature: Name (Print): Title: NUTRATECH, INC. Signature: Name (Print): Title: SLA.doc 5

6 Schedule 1 - Finished Products Amended 1/25/ _1.DOC SLA.doc 6