EXHIBIT 10.91
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT ("Agreement"), effective as of
October 12, 1998 is made by and between CARALOE, INC. ("Licensor"), a
Texas corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and One Family, Inc., ("Licensee"),
having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Licensor and One Family, Inc., ("OFI") have previously
entered into a Supply Agreement (the "Supply Agreement") for the sale
by Licensor and purchase by OFI of bulk Aloe ▇▇▇▇ mucilaginous
polysaccharide including one particular product (hereinafter referred to
under the product name of Manapol[R] or Manapol[R] Powder) to be used as
one of the ingredients in a drink or drinks manufactured by OFI also
containing other ingredients and substances (the "OFI Manufactured
Products"):
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ Laboratories, Inc., a Texas corporation
("▇▇▇▇▇▇▇▇▇▇"), is the owner of the Trademark Manapol[R] (the "▇▇▇▇") and
has granted to Licensor a license to use the ▇▇▇▇ and to license others
to use it on a non-exclusive basis;
WHEREAS, Licensee is desirous of obtaining from Licensor, and
Licensor is willing to grant to Licensee, a license to use the Trademark
Manapol[R] (the "▇▇▇▇") in connection with the advertising and sale of
the OFI Manufactured Products subject to the terms, conditions and
restrictions set forth herein; and
WHEREAS, Licensor and Licensee are mutually desirous of insuring the
consistent quality of all products sold in connection with the ▇▇▇▇;
NOW, THEREFORE, in consideration of premises, the mutual covenants,
promises and agreement set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant, promise and agree as follows:
Article 1
LICENSE
1.1 Terms and Conditions. Licensor hereby grants to Licensee the
non-transferable right and non exclusive license to use the ▇▇▇▇ and
associated product (Manapol[R] powder), in connection with the labeling,
advertising and sale of the OFI Manufactured Products manufactured and
sold by OFI for Licensee during the term of this Agreement. During the
term of this Agreement, Licensee shall have the non exclusive right to
use the ▇▇▇▇ in connection with the OFI Manufactured Products containing
Manapol[R] powder in a drink or drinks that are intended for sale to the
ultimate consumer in the U.S.
1.2 License Coterminous With Supply Agreement. The license granted
by this Agreement shall run coterminously with the Supply Agreement, and
any actions or events which shall operate to extend or terminate the
Supply Agreement shall automatically extend or terminate this Agreement
simultaneously.
1.3 Sublicenses. Licensee shall not have the right without written
permission from Licensor to grant sublicenses with respect to the license
granted herein; however, Licensee may engage a third party or parties to
make and affix labels for the OFI Manufactured Products in compliance
with Articles 2,3, and 4 hereof, and/or to distribute and sell the OFI
Manufactured Products in compliance with the terms and conditions of this
Agreement. Licensee shall be expressly obligated to ensure full
compliance with all terms and conditions of this Agreement.
Article 2
CERTAIN OBLIGATIONS OF LICENSEE
2.1 Representations by Licensee. Licensee shall not represent in
any manner that it owns any right, title or interest in or to the ▇▇▇▇.
Licensee acknowledges that its use of the ▇▇▇▇ shall inure to the benefit
of Licensor and shall not create in Licensee's favor any right, title or
interest in or to the ▇▇▇▇.
2.2 Discontinuation of Use of ▇▇▇▇. Upon the expiration or
termination of this Agreement, Licensee will cease and desist from all
use of the ▇▇▇▇ in any manner and will not adopt or use, without
Licensor's prior written consent, any word or ▇▇▇▇ which is confusingly
or deceptively similar to the ▇▇▇▇, except that Licensee may continue to
use the ▇▇▇▇ under the terms and conditions of this Agreement in
connection with any remaining supplies of the Manapol[R] drink or drinks
purchased by Licensee from OFI until such supplies are exhausted.
2.3 Standards. All products on which the ▇▇▇▇ is used by Licensee
shall be of consistent quality and shall meet or exceed all standards set
by Licensor, in Licensor's sole discretion, from time to time. Licensee
shall have thirty (30) days from the receipt of written notice of any
change in the standards to comply with any new requirements.
2.4 Use of Trademark. Licensee shall not use the ▇▇▇▇ except as
specifically set forth herein. Without limiting the generality of the
preceding sentence, Licensee shall not use the ▇▇▇▇ in connection with
the sale or advertising of any products other than the OFI Manufactured
Products.
Article 3
MANUFACTURING AND SALE
3.1 Combination With Other Products. Licensee shall not combine or
cause to be combined Manapol[R] powder with any product or substance in
any manner which would violate any laws, rules or regulations of any
state, federal or other governmental body.
3.2 Compliance by Third Parties. Licensee shall take all steps
reasonably necessary to ensure that its distributors, if any, and any
other parties to whom it sells any of the OFI Manufactured Products for
resale do not relabel, repackage, advertise, sell or attempt to sell
Manapol[R] powder or any of the OFI Manufactured Products in a manner
that would violate this Agreement if done by Licensee.
3.3 Manapol[R] Content. The amount of Manapol[R] powder to be
contained in each of the OFI Manufactured Products shall be no less than
fifteen milligrams (15mgs) per ounce. The parties shall meet once each
year to determine and agree upon the Manapol[R] powder content for
existing and proposed OFI Manufactured Products.
Article 4
LABELS AND ADVERTISING
4.1 Regulatory Compliance of Labels and Advertising. All labels
and advertising relating to the OFI Manufactured Products offered in
connection with the ▇▇▇▇ must strictly comply with all applicable laws,
rules and regulations in the U.S. relating to product ingredients.
4.2 Mandatory Requirements. Licensee shall cause all labels,
packaging, advertising and promotional materials used by it in
advertising, marketing and selling any product manufactured by or on
behalf of Licensee that contains Manapol[R] powder to contain (i) the
▇▇▇▇, (ii) a statement setting forth the concentration of Manapol[R]
powder contained in such product, and (iii) the following legend:
Manapol[R] powder is a registered trademark of Caraloe, Inc.
4.3 Claims by Licensee. Licensee hereby agrees not to make, or
permit any of its employees, agents or distributors to make, any claims
of any properties or results relating to Manapol[R] or Manapol[R] powder,
unless such claims comply with the applicable laws, rules and regulations
of the U.S.
Article 5
ROYALTY
5.1 Licensee agrees to pay to Licensor a royalty of fifteen cents
($0.15) per product.
5.2 Licensee shall make the royalty payment to Licensor within
thirty (30) days of receipt of an invoice from OFI for products shipped
to Licensee.
5.3 All payments hereunder are to be paid in U.S. currency at the
address set forth at the beginning of this Agreement.
Article 6
NEGATION OF WARRANTIES, DISCLAIMER AND INDEMNITY
6.1 Negation of Warranties, etc. Nothing in this Agreement shall
be construed or interpreted as:
(a) a warranty or representation by Licensor that any OFI
Manufactured Products made, used, sold or otherwise disposed of under the
license granted in this Agreement is or will be free of infringement or
the like of the rights of third parties; or
(b) an obligation by Licensor to bring or prosecute actions or
suits against third parties for infringement or the like of the
Manapol[R] powder; or
(c) granting by implication, estoppel or otherwise any licenses or
rights other than those expressly granted hereunder.
6.2 Disclaimer. LICENSOR MAKES NO REPRESENTATIONS, EXTENDS NO
WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS AND FITNESS FOR A
PARTICULAR PURPOSE, AND ASSUMES NO RESPONSIBILITIES WHATSOEVER WITH
RESPECT TO THE USE, SALE OR OTHER DISPOSITION BY LICENSEE OR ITS
CUSTOMERS, VENDEES OR OTHER TRANSFEREES, WITH RESPECT TO THE ▇▇▇▇ OR ANY
PRODUCTS MADE OR SOLD BY LICENSEE.
6.3 Liability of Licensee for Products. As between Licensor and
Licensee, Licensee shall assume all financial and other obligations for
the OFI Manufactured Products made for it and sold by it under this
Agreement and Licensor shall not incur any liability or responsibility to
Licensee or to third parties arising out of or connected in any manner
with Licensee's products made or sold pursuant to this Agreement. In no
event shall Licensor be liable for lost profits, special damages,
consequential damages or contingent liabilities arising out of or
connected in any manner with this Agreement or the OFI Manufactured
Products made for or sold by Licensee under this Agreement.
6.4 Indemnity of Licensor. Licensee agrees to defend, indemnify
and hold Licensor, its officers, directors, employees and agents,
harmless against all claims, liabilities, demands, damages, expenses or
losses arising out of or connected with any use, sale or other
disposition of Licensee's or OFI s Manufactured Products by Licensee or
by any other party.
6.5 Trademark Infringement. Licensor shall, however, defend
Licensee against any claims of trademark infringement resulting from
Licensee s use of the trademark Manapol[R] in the U.S.
Article 7
TERM AND TERMINATION
7.1 Term. Unless terminated earlier as provided for herein, this
Agreement shall remain in full force and effect for a three (3)-year
period ending at midnight on October 12, 2006. This Agreement may be
extended or renewed as provided in Section 1.2, or otherwise by the
written agreement of the parties.
7.2 Breach of Agreement. Except as provided otherwise in Section
7.3, if either party breaches any material provision of this Agreement
and fails to cure the breach within thirty (30) days after receipt of
written notice from the nonbreaching party specifying the breach, then
the nonbreaching party may terminate this Agreement upon written notice
to the breaching party, which right of termination shall be in addition
to, and not in lieu of, all other rights and remedies the nonbreaching
party may have against the breaching party under this Agreement, at law
or in equity. Failure by Licensor to give notice of termination with
respect to any such failure shall not be deemed a waiver of its right at
a later date to give such notice if such failure continues or again
occurs, or if another failure occurs. A breach by either party of a
material provision of the Supply Agreement shall be deemed a breach by
such party of a material provision of this Agreement.
7.3 Immediate Termination. Licensor may immediately terminate this
Agreement, upon written notice to Licensee, upon the occurrence of any
one or more of the following events: (i) Licensee breaches any provision
of Articles 2, 3, or 4; (ii) OFI fails to purchase and/or to pay for the
Manapol[R] powder that it is obligated to purchase and pay for under the
Supply Agreement in accordance with the terms thereof; (iii) Licensee
voluntarily seeks protection under any federal or state bankruptcy or
insolvency laws; (iv) a petition for bankruptcy or the appointment of a
receiver is filed against Licensee and is not dismissed within thirty
(30) days thereafter; (v) Licensee makes any assignment for the benefit
of its creditors; or (vi) Licensee ceases doing business.
7.4 Survival of Provisions. In the event of termination,
cancellation or expiration of this Agreement for any reason, Sections
2.2, 6.1, 6.2, 6.3, 6.4, 6.5 and 8.1 hereof shall survive such
termination, cancellation or expiration and remain in full force and
effect.
Article 8
MISCELLANEOUS
8.1 Equitable Relief. A breach or default by Licensee of any of
the provisions of Articles 2, 3 and 4 hereof shall cause Licensor to
suffer irreparable harm and, in such event, Licensor shall be entitled,
as a matter of right, to a restraining order and other injunctive relief
from any court of competent jurisdiction, restraining any further
violation thereof by Licensee, its officers, agents, servants, employees
and those persons in active concert or participation with them. The
right to a restraining order or other injunctive relief shall be
supplemental to any other right or remedy Licensor may have, including,
without limitation, the recovery of damages for the breach or default of
any of the terms of this Agreement.
8.2 Amendment. This Agreement may be changed, modified, or amended
only by an instrument in writing duly executed by each of the parties
hereto.
8.3 Entire Agreement. This Agreement constitutes the full and
complete agreement of the parties hereto and supersedes any and all prior
understandings, whether written or oral, with respect to the subject
matter hereof.
8.4 No Waiver. The failure of either party to insist upon strict
performance of any obligation hereunder by the other party, irrespective
of the length of time for which such failure continues, shall not be a
waiver of its right to demand strict compliance in the future. No
consent or waiver, express or implied, by either party to or of any
breach or default in the performance of any obligation hereunder by the
other party shall constitute a consent or waiver to or of any other
breach or default in the performance of the same or any other obligation
hereunder.
8.5 Notices. All notices required or permitted to be made or
given pursuant to this Agreement shall be in writing and shall be
considered as properly given or made when personally delivered or when
duly deposited in the mails, first class mail, postage prepaid, or when
transmitted by prepaid telegram, and addressed to the applicable address
first above written or to such other address as the addressee shall have
theretofore specified in a written notice to the notifying party.
8.6 Assignment. This Agreement or any of the rights or obligations
created herein may be assigned, in whole or in part, by Licensor.
However, this Agreement is personal to Licensee, and Licensee may not
assign this Agreement or any of its rights, duties or obligations under
this Agreement to any third party without Licensor's prior written
consent, and any attempted assignment by Licensee not in accordance with
this Section 9.6 shall be void.
8.7 Relationship of Parties. Nothing contained herein shall be
construed to create or constitute any employment, agency, partnership or
joint venture arrangement by and between the parties, and neither of them
has the power or authority, express or implied, to obligate or bind the
other in any manner whatsoever.
8.8 Remedies Cumulative. Unless otherwise expressly provided
herein, the rights and remedies hereunder are in addition to, and not in
limitation of, any other rights and remedies, at law or in equity, and
the exercise or one right or remedy will not be deemed a waiver of any
other right or remedy.
8.9 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties and their
respective successors and assigns, provided, however, that the foregoing
shall not be deemed to expand or otherwise affect the limitations on
assignment and delegation set forth in Section 7.6 hereof, and except as
otherwise expressly provided in this Agreement, no other person or
business entity is intended to or shall have any right or interest under
this Agreement.
8.10 Governing Law. This Agreement shall be governed by and
interpreted, construed and enforced in accordance with the laws of the
State of Texas, excluding, however, any conflicts of law rules that would
require the application of the laws of any other state or country.
8.11 Headings. The headings used in this Agreement are for
convenience of reference only and shall not be used to interpret this
Agreement.
8.12 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original and all of which
will constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first
above written.
CARALOE, INC.
By: \s\ ▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇
Title: General Manager
ONE FAMILY, INC.
By: \s\ ▇▇▇▇▇▇ ▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Chief Financial Officer