EXHIBIT 10.1
SALES AND TRADEMARK LICENSE AGREEMENT
THIS SALES AND TRADEMARK LICENSE AGREEMENT ("Agreement"),
effective as of June 11, 1999, is made by and between CARALOE, INC.
("Licensor"), a Texas corporation, having its principal place of
business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and NUTRA VINE
("Licensee"), having its principal place of business at ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, Licensor desires to sell to Licensee and Licensee
desires to purchase from Licensor bulk aloe ▇▇▇▇ mucilaginous
polysaccharide (hereinafter referred to under the product name of
"Manapol[R] Powder"), to be purchased according to the specifications,
prices, and terms as set forth on the attached Schedule A and to be
used in product or products manufactured by Licensee (the
"Manufactured Products");
WHEREAS, ▇▇▇▇▇▇▇▇▇▇ Laboratories, Inc., ("▇▇▇▇▇▇▇▇▇▇") a Texas
corporation, claims the ownership of the trademark Manapol[R] (the
"▇▇▇▇") and has granted to Licensor an exclusive license to use the
▇▇▇▇ and to sub-license others to use it;
WHEREAS, Licensee is desirous of obtaining from Licensor, and
Licensor is willing to grant to Licensee, a license to use the ▇▇▇▇ in
connection with the advertising and sale of the 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 license to use the ▇▇▇▇ in connection
with the labeling, advertising and sale of Manufactured Products
manufactured and sold by Licensee in the United States 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
Manufactured Products containing Manapol[R] Powder that are intended
for sale to the ultimate consumer in the United States.
1.2 Sublicenses. Licensee shall not have the right to grant
sublicenses without the written permission of Licensor with respect to
the license granted herein; however, Licensee may engage a third party
or parties to make and affix labels for the Manufactured Products in
compliance with Articles 2,3, and 4 hereof, and/or to distribute and
sell the 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.
1.3 Quality Standards. Licensee agrees that the nature and
quality of all goods sold by Licensee under the ▇▇▇▇, and all
advertising, promotional and other related uses of the ▇▇▇▇ by
Licensee shall conform to standards set by and be under the control of
Licensor and ▇▇▇▇▇▇▇▇▇▇.
1.4 Quality Maintenance. Licensee agrees to cooperate with
Licensor and ▇▇▇▇▇▇▇▇▇▇ in facilitating control by Licensor and
▇▇▇▇▇▇▇▇▇▇ of the nature and quality of all Manufactured Products, to
permit reasonable inspection of Licensee's operation, and to supply
Licensor and ▇▇▇▇▇▇▇▇▇▇ with specimens of uses of the ▇▇▇▇ upon
request. Licensee shall comply with all applicable laws and
regulations and obtain all appropriate government approvals pertaining
to the sale, distribution and advertising of goods covered by this
License.
1.5 Form of Use. Licensee agrees to use the ▇▇▇▇ only in the
form and manner and with appropriate legends as prescribed from time
to time by Licensor, and not to use any other trademark or service
▇▇▇▇ in connection with the ▇▇▇▇ without prior written approval of
Licensor.
1.6 Infringement Proceedings. Licensee agrees to promptly
notify Licensor of any unauthorized use of the ▇▇▇▇ by others as it
comes to Licensee's attention. Licensor shall have the sole right and
discretion to bring infringement or unfair competition proceedings
involving the ▇▇▇▇, or to authorize Licensee to do so.
Article 2
CERTAIN OBLIGATIONS OF LICENSEE AND LICENSOR
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 Manapol[R]
Powder purchased by Licensee from Licensor until such supplies are
exhausted.
2.3 FDA Compliance of Products. All products on which the ▇▇▇▇
is used by Licensee shall be manufactured, packaged, labeled,
advertised, marketed and sold in compliance with the Federal Food,
Drug and Cosmetic Act and the rules and regulations promulgated
thereunder, as amended from time to time.
2.4 Inspection. Upon reasonable notice, Licensor reserves the
right to inspect the Manufactured Products bearing the ▇▇▇▇ and
Licensee's manufacturing facilities at all reasonable times to insure
Licensee's compliance with this Agreement.
2.5 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 Manufactured
Products. Any use of the ▇▇▇▇ pursuant to this agreement is non-
exclusive. Whenever the Licensee uses the ▇▇▇▇, it shall also
indicate that such name is the registered trademark of ▇▇▇▇▇▇▇▇▇▇ and
shall take all reasonable measures to assure that there is no
confusion of ownership of the ▇▇▇▇ or the substance which it
identifies, the same being the proprietary property of the Licensee.
Article 3
MANUFACTURING AND SALE
3.1 Manufacturing Facilities. All manufacturing of the
Manufactured Products shall be done in the Licensee's own facilities
or qualified contract manufacturing facilities.
3.2 Combination With Other Products. Licensee shall not combine
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. Licensee shall not combine Manapol[R] Powder
with any other substance in a Manufactured Product that is to be
advertised or sold for use or consumption by humans or animals if the
approval of the U.S. Food and Drug Administration (the "FDA") or the
U.S. Department of Agriculture ("USDA") for such use or consumption is
required and has not been obtained.
3.3 Compliance by Third Parties. Licensee shall take all steps
reasonably necessary to ensure that its distributors and any other
parties to whom it sells any of the Manufactured Products for resale
do not relabel, repackage, advertise, sell or attempt to sell
Manapol[R] Powder or any of the Manufactured Products in a manner
that would violate this Agreement if done by Licensee.
3.4 Manapol[R] Powder Content. The amount of Manapol[R] Powder
to be contained in each of the Manufactured Products shall be no less
than fifteen milligrams (15 mgs) of Manapol[R] Powder per ounce of
Manufactured Products. The parties shall meet once each year to
determine and agree upon the Manapol[R] Powder content for existing
and proposed Manufactured Products.
Article 4
LABELS AND ADVERTISING
4.1 FDA Compliance of Labels and Advertising. All labels and
advertising relating to the Manufactured Products offered in
connection with the ▇▇▇▇ must strictly comply with all applicable
rules and regulations of the FDA.
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 Manufactured Products, and (iii) the following
legend:
Manapol[R] is a registered trademark of ▇▇▇▇▇▇▇▇▇▇ Laboratories, 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] Powder or
any Manufactured Product which would violate any applicable law.
4.4 FDA or USDA Approval of Claims. If Licensee desires to seek
FDA or USDA approval as to any specific claims with respect to
Manapol[R] Powder or any Manufactured Products, Licensee hereby agrees
to (I) notify Licensor of the claims and the application prior to
filing and (ii) to keep Licensor informed as to the progress of the
application, including but not limited to sending Licensor copies of
all communications or notices to or from the FDA or USDA, as
applicable.
4.5 Right to Approve Labels, etc. If Licensor so requests,
Licensee shall not use any label, advertisement or marketing material
that contains the ▇▇▇▇ unless such label, advertisement or marketing
material has first been submitted to and approved by Licensor.
Licensor shall not unreasonably withhold its approval of any such
label, advertisement or marketing material.
Article 5
ROYALTY
5.1 Licensee agrees to pay to Licensor a royalty of $0.15 per
unit of Manufactured Products produced by or for the Licensee.
5.2 Within seven (7) days after the end of each calendar month
Licensee shall provide Licensor with a written report listing the
quantities of Manufactured Products produced during that month.
Accompanying each such report shall be sufficient evidence, such as
vendors invoices, batch records, or other such evidence of production,
to substantiate the quantities included in the report.
5.3 All royalties for Manufactured Products produced in a month
shall be due and payable within thirty (30) days of the end of such
month.
5.4 All payments hereunder are to be paid in U.S. currency at
the address set forth at the beginning of the 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 product
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 ▇▇▇▇
or of any registration that may subsequently be granted for such ▇▇▇▇;
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. THE FOREGOING NOTWITHSTANDING,
SELLER DOES REPRESENT THAT THE MANAPOL[R] POWDER DOES MEET THE
SPECIFICATIONS OUTLINED ON SCHEDULE A AND THAT IT IS A FOOD SUPPLEMENT
UNDER THE FDA RULES AND REGULATIONS.
6.3 Liability of Licensee for Products. Licensee shall assume
all financial and other obligations for the Manufactured Products made
for it or 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 the Manufactured
Products and/or 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
Manufactured Products made for Licensee 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 (a) the wrongful or
negligent use by Licensee of the ▇▇▇▇ or (b) any use, sale or other
disposition of the Manufactured Products and/or Licensee's products by
Licensee or by any other party.
6.5 Negation of Trademark Warranty. Licensee acknowledges that
Licensor makes no warranty, express or implied, with respect to its
ownership of any rights relating to the ▇▇▇▇.
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 one year
commencing on date first written above and shall end at midnight one
year from the date of this Agreement. This Agreement shall be renewed
for one year terms at the request of the Licensee, provided that such
notice is given to Licensor at least sixty (60) days prior to the
expiration of the then current term of the agreement and provided that
the Licensee has not made substantial and uncorrected violations of
this Agreement as provided for in Paragraph 7.2.
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.
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 1, 2, 3, or 4; (ii) Licensee voluntarily seeks
protection under any federal or state bankruptcy or insolvency laws;
(iii) a petition for bankruptcy or the appointment of a receiver is
filed against Licensee and is not dismissed within thirty (30) days
thereafter; (iv) Licensee makes any assignment for the benefit of its
creditors; or (v) 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, 8.3 and 9.1 hereof shall survive such
termination, cancellation or expiration and remain in full force and
effect.
Article 8
RIGHTS UPON DEFAULT
8.1 Licensor's Rights Upon Default. If Licensee (I) fails to
make a payment hereunder when due or (ii) otherwise breaches any term
of this Agreement, and such failure or breach is not cured to
Licensor's reasonable satisfaction within five (5) days (in the case
of a failure to make a payment) or thirty (30) days (in any other
case) after receipt of notice thereof by Licensee, or if Licensee
fails to perform or observe any covenant or condition on its part to
be performed when required to be performed or observed, and such
failure continues after the applicable grace period, if any, specified
in the Agreement, Licensor may refuse to make further deliveries
hereunder and may terminate this Agreement upon notice to Licensee
and, in addition, shall have such other rights and remedies, including
the right to recover damages, as are available to Licensor under
applicable law or otherwise. If Licensee becomes bankrupt or
insolvent, or if a petition in bankruptcy is filed by or against it,
or if a receiver is appointed for it or its properties, Licensor may
refuse to make further deliveries hereunder and may terminate this
Agreement upon notice to Licensee, without prejudice to any rights of
Licensor existing hereunder or under applicable law or otherwise. Any
subsequent shipment of Manapol[R] Powder by Licensor after a failure
by Licensee to make any payment hereunder, or after any other default
by Licensee hereunder, shall not constitute a waiver of any rights of
Licensor arising out of such prior default; nor shall Licensor's
failure to insist upon strict performance of any provision of this
Agreement be deemed a waiver by Licensor of any of its rights or
remedies hereunder or under applicable law or a waiver by Licensor of
any subsequent default by Licensee in the performance of or compliance
with any of the terms of this Agreement.
8.2 Licensee's Rights Upon Default. If Licensor fails in any
material respect to perform its obligations hereunder, and such
failure is not cured to Licensee's reasonable satisfaction within
thirty (30) days after receipt of notice thereof by Licensor, Licensee
shall have the right to refuse to accept further deliveries hereunder
and to terminate this Agreement upon notice to Licensor and, in
addition, shall have such other rights and remedies, including the
right to recover damages, as are available to Licensee under
applicable law or otherwise. Any subsequent acceptance of delivery of
Manapol[R] Powder by Licensee after any default by Licensor under this
Agreement shall not constitute a waiver of any rights of Licensee
arising out of such prior default; nor shall Licensee's failure to
insist upon strict performance of any provision of this Agreement be
deemed a waiver by Licensee of any of its rights or remedies hereunder
or under applicable law or a waiver by Licensee of any subsequent
default by Licensor in the performance of or compliance with any of
the terms of this Agreement.
8.3 Equitable Relief. A breach or default by Licensee of any of
the provisions of Articles 1, 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.
Article 9
CONFIDENTIALITY
9.1 During the term of this Agreement, Licensee may acquire from
Licensor or its affiliates technical, commercial, operating or other
proprietary information relative to the business or operations of
Licensor or its affiliates (the "Confidential Information"). Licensee
shall maintain the confidentiality, and take all necessary precautions
to safeguard the secrecy, of any and all Confidential Information it
may acquire from Licensor or its affiliates. Licensee shall not use
any of such Confidential Information for its own benefit or for the
benefit of anyone else. Licensee shall not publicly disclose the
existence of this Agreement or the terms hereof without the prior
written consent of Licensor.
Article 10
MISCELLANEOUS
10.1 Force Majeure. Licensor shall not have any liability
hereunder if it shall be prevented from performing any of its
obligations hereunder by reason of any factor beyond its control,
including, without limitation, fire, explosion, accident, riot, flood,
drought, storm, earthquake, lightning, frost, civil commotion,
sabotage, vandalism, smoke, hail, embargo, act of God or the public
enemy, other casualty, strike or lockout, or interference, prohibition
or restriction imposed by any government or any officer or agent
thereof ("Force Majeure"), and Licensor's obligations, so far as may
be necessary, shall be suspended during the period of such Force
Majeure and shall be cancelled in respect of such quantities of
Manapol[R] Powder as would have been sold hereunder but for such
suspension. Licensor shall give to Licensee prompt notice of any such
Force Majeure, the date of commencement thereof and its probable
duration and shall give a further notice in like manner upon the
termination thereof. Each party hereto shall endeavor with due
diligence to resume compliance with its obligations hereunder at the
earliest date and shall do all that it reasonably can to overcome or
mitigate the effects of any such Force Majeure upon its obligations
under this Agreement.
10.2 Amendment. This Agreement may be changed, modified, or
amended only by an instrument in writing duly executed by each of the
parties hereto.
10.3 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.
10.4 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.
10.5 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 mail, 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.
10.6 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 10.6 shall be void.
10.7 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.
10.8 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.
10.9 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 10.6
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.
10.10 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.
10.11 Headings. The headings used in this Agreement are for
convenience of reference only and shall not be used to interpret this
Agreement.
10.12 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/s ▇▇▇▇ ▇▇▇▇
General Manager
NUTRA VINE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
President & CEO
SCHEDULE A
NUTRA VINE
Manapol[R] Powder Product Specification
PRODUCT DESCRIPTION
PRODUCT: Manapol[R] Powder
CODE: C-200
SOURCE: Aloe barbadensis ▇▇▇▇▇▇
USES: The pure, stabilized Manapol[R] Powder is suitable for
use in pharmaceutical and beverage formulations
SPECIFICATION SHEET
Test Specification Method
------------------------------------------------------
Appearance Fine white to beige
powder
Complex > = 30 HPLC(SEC)
Carbohydrates
(wt. %)
Water, wt.% < = 14% TGA
Residue on Ignition < = 16% TGA
wt.%
Microbiological Meets USP Standard USP
Purity
Fiber, wt.% < = 60% TGA
Solubility approx. 240 Gel Point CARN
Gelization
pH Not Adjusted CARN
Fiber Enriched CARN
Viscosity (cP) approx. 40 CARN
4 mg/ml solution
Total Acid Value approx. 0.7 CARN
(As Malic Acid)
SCHEDULE A
NUTRA VINE
Territory
Licensee is permitted to market agreed upon products containing
Manapol[R] Powder in the United States.
Pricing Schedule for Manapol[R] Powder
Quantity Per Order Prices
1 to 25 kg $1,600.00 / kg
26 to 50 kg $1,500.00 / kg
51 to 100 kg $1,400.00 / kg
Terms are net/30 days with approved credit F.O.B., Irving, Texas
All pricing is subject to change with thirty (30) days written notice.