EXHIBIT 10.2
TRADEMARK LICENSE AGREEMENT
THIS TRADEMARK LICENSE AGREEMENT ("Agreement"), effective as of
March 5, 1999, is made by and between CARALOE, INC. ("Licensor"), a Texas
corporation, having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and FOR YOUR HEALTH, INC., ("Licensee"), a
Washington Corporation, having its principal place of business at ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Licensor and Licensee are entering into an non-exclusive Supply Agreement
of even date herewith (the "Supply Agreement") for the sale by Licensor
and purchase by Licensee of bulk aloe ▇▇▇▇ mucilaginous polysaccharide
(hereinafter referred to under the product name of "Manapol[R] Powder")
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] Powder
(the "▇▇▇▇") and has granted to Licensor a license to use the ▇▇▇▇ and to
license others to use it on an exclusive and/or 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 product
name Manapol[R] Powder (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 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 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 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.
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 Licensee's 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 trademark, "Manapol[R] Powder" pursuant to this
agreement is non-exclusive. Whenever the Licensee uses the trademark,
"Manapol[R] Powder", it shall also indicate that such name is the
registered trademark of Licensor 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) per ounce. 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 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] 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 Product, 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 Product 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 Product 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 Product 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 EXHIBIT 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 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
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 a three (3) year
period ending at midnight on March 4, 2002. 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) Licensee fails to purchase and/or to pay for
the quantities of 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 8.6 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 8.6 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/ ▇▇▇▇ ▇▇▇▇
General Manager
FOR YOUR HEALTH, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
President