VITAL LIVING, INC.
SCIENTIFIC ADVISORY BOARD AGREEMENT
This Scientific Advisory Board Agreement ("Agreement") dated May
16, 2002, (the "Effective Date") is made by and between Vital Living,
Inc., a Nevada corporation, whose address is 0000 X. Xxxxx Xxxx, Xxxxx,
XX 00000 ("Company" or "Vital Living"), (ii) Xxxxxx Xxxxxxx, PHD,
("Consultant"), an individual whose address is Mayo Clinic, 000 Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000-0000 and (iii) MAYO FOUNDATION
FOR MEDICAL EDUCATION AND RESEARCH, a Minnesota charitable corporation,
000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxx, 00000-0000 (called
"MAYO" in this Agreement)
1. INTRODUCTION
Vital Living is establishing a Scientific Advisory Board ("SAB") to
provide Vital Living the following services and advice in connection with its
strategy and plans for the development of its products and services
("Services"), including, :
Developing, manufacturing and testing of nutraceutical formulations
that are based on the best available scientific research, shown to
be safe and effective in appropriately designed and controlled
clinical trials, and proprietary to the Company ;
Assisting the Company in the design and development of compliance
and lifestyle programs intended to enhance patient compliance with
the Company's nutraceuticals;
Advising the Company on the needs of potential clients, partners,
and other users, including practicing physicians, academic
researchers, other health professional, and patients, and the
design of products, services and offerings to address those needs,
but not helping in any manner to market or endorse Company's
products or services to these individuals;
Working with other thought leaders and health professionals to
facilitate projects of mutual benefit to the Company and said
individuals: and,
Participating in scientific exchange with thought leaders and other
health professionals and academic researchers regarding potential
clinical benefits of Vital Living products.
Consultant desires to be a member of the SAB and perform such Services, and
Company desires to have Consultant become a member of the SAB and perform
such Services.
2. SERVICES COMPENSATION AND EXPENSE REIMBURSEMENT
2.1 Services. Consultant agrees to serve as a member of the SAB and to
endeavor to attend and participate in all SAB meetings. Vital Living
currently intends to convene one (1) in-person meeting and three (3)
teleconference meetings of the SAB per year. The Consultant shall be
available to consult for a period of up to, but not exceeding, four (4) days
during the term of this Agreement.
2.2 Compensation and Expense Reimbursement. As sole compensation
for the performance of the Services, Company will compensate
Mayo as set forth in Exhibit A. The Company shall not pay any
separate compensation to the Consultant for services under
this Agreement.
2.2 Method of Payment. Amounts due shall be paid by check within
thirty (30) days after each meeting is completed, made payable
to: MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH, and
directed to:
Xx. Xxxxxxx Xxxxx
Xxxxxx 204
Mayo Foundation
000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000.
PLEASE REFERENCE THIS CONSULTING AGREEMENT ON THE CHECK.
2.3 Expenses. The Company will reimburse Consultant for reasonable
out-of-pocket expenses incurred in the performance of the
Services, including Business Class travel to SAB Meetings;
provided, however, that (a) all such out-of pocket expenses
over an aggregate of $500 during any calendar month shall have
been previously approved in writing by an officer of the
Company; and (b) all such out-of-pocket expenses are supported
by reasonable documentation;
2.4 Records. The Consultant shall maintain reasonable time and
expense records concerning services under this Agreement. Such
records are subject to examination and audit until the
expiration of three (3) years after the Company's final
compensation or travel expense payment under this Agreement.
The terms of this paragraph survive the expiration or
termination of this Agreement
3. RELATIONSHIP OF PARTIES
3.1 Independent Contractor. Consultant is an independent contractor
and is not an agent or employee of, and has no authority to bind, Company.
Consultant will perform the Services under the general direction of Company,
but Consultant will determine the manner and means by which the Services are
accomplished. Consultant acknowledges that Vital Living shall not have any
obligation to follow the advice of Consultant or the SAB. Consultant will not
be entitled to receive benefits from or to participate in any plans designed
to provide benefits for Company's employees.
4. OWNERSHIP
The Company shall own all inventions, discoveries, and other
developments made solely by the Company using or incorporating information
received from the Consultant, if such inventions, discoveries, and
developments were made without any direct consultation with, or advice from,
the Consultant regarding such specific inventions, discoveries, or
developments. MAYO shall own all inventions, discoveries, and other
developments made solely by the Consultant, or solely by any other agent of
MAYO, relating to the subject area of this Agreement. If the Consultant and
the Company jointly make an invention or discovery, MAYO and the Company will
exert their best reasonable efforts in cooperation with each other to
investigate, evaluate, and determine, to the satisfaction of all parties to
this Agreement, the disposition of rights to the invention of discovery,
including whether, by whom, and where, any patent application shall be filed.
5. CONFIDENTIAL INFORMATION
Consultant acknowledges that Consultant may acquire information and
materials from Company and knowledge about Company including, , knowledge
about business, marketing plans, pricing practices, products, formulation,
ingredients, dosages, services, inventions, prototypes, cell lines, formula,
processes, programming techniques, experimental work, customers, clients and
suppliers of Company and that all such knowledge, information and materials
acquired, the existence, terms and conditions of this Agreement, may be the
trade secrets and confidential and proprietary information of Company
(collectively "Confidential Information"). The Consultant and MAYO agree to
use their best reasonable efforts to preserve the confidentiality of such
information which is designated in writing by the Company as confidential,
for a period of two (2) years from the effective date of this Agreement.
Confidential Information will not include, however, any information which is
or becomes part of the public domain through no fault of Consultant or that
Company regularly gives to third parties without restriction on use or
disclosure; or is already known to the Consultant; or which MAYO or the
Consultant receive from a party other than the Company, when to the best of
MAYO's knowledge and the Consultant's knowledge the disclosing party does not
have an obligation of confidentiality to the Company;
or which is required to be disclosed under law, legal process, subpoena,
warrant, or court order, in which case Company shall be promptly informed to
permit it to take steps at its expense to oppose or limit the required
disclosure; or is developed by Mayo or the Consultant independently of
Company's Confidential Information.
The terms of this Secrecy section survive the expiration or termination of
this Agreement.
Consultant and Mayo agree to hold all such Confidential Information in
confidence, not to disclose it to others, except in performing the Services
for a period of two (2) years.
6. TERM AND TERMINATION
This Agreement will commence on the Effective Date and terminate one year
thereafter. Either party may terminate this Agreement at any time, for any
reason or for no reason, upon thirty (30) days written notice to the other
parties before the effective date of termination. This Agreement terminates
upon the death of the Consultant, or any disability of the Consultant which
prevents the Consultant from substantially performing the services required
under this Agreement.
7. EFFECT OF EXPIRATION OR TERMINATION Upon the expiration or termination
of this Agreement for any reason, (a) each party will be released from all
obligations to the others arising after the date of expiration or
termination, except that expiration or termination of this Agreement will not
relieve any party of its obligations under Sections 3, 4, 5, and 9, nor will
expiration or termination relieve any party from any liability arising from
any breach of this Agreement; and (b) Consultant will notify Company of all
Confidential Information, in Consultant's possession and upon Company's
written request and expense will deliver to Company, or destroy at Company's
written request, all such Confidential Information.
8. WARRANTIES
Consultant represents and warrants to the Company that (a) Consultant's
service on the SAB does not conflict with, result in the breach of any
provisions of, or constitute a default under any agreement or other
obligation to which Consultant is a party, and (b) Consultant's principal
place of employment has received full disclosure as to the Consultant's
service on the SAB and that such employer consents to the Consultant's
participation.
9. GENERAL
9.1 Use of Name The Company shall not use the name of the Consultant,
or "MAYO," or "MAYO CLINIC," or any of MAYO's trademarks, trade names, or
names, or any contraction, abbreviation, simulation, or adaptation of such
names or marks, in any public announcement, news release, advertising,
publicity, or otherwise except internally within the Company, under any
circumstances whatsoever regardless of the medium employed, without the
prior, express, written consent of MAYO. Notwithstanding the foregoing use
of name restriction, Company may issue a limited press release that is
previously reviewed and approved by Mayo. MAYO may withhold such consent in
its absolute discretion. Violation of this paragraph is a material breach of
this Agreement, and entitles MAYO to seek both equitable and legal remedies.
The terms of this paragraph survive the expiration or termination of this
Agreement.
9.2 Assignment. No party may assign this Agreement or any of the
other parties rights or duties under this Agreement either in whole or in
part, without the prior written consent of the other parties. . Any
unauthorized attempted assignment will be void and of no force and effect.
9.3 Other Consulting. Nothing in this Agreement precludes the
Consultant from consulting in the same general subject area with other
parties, subject only to the confidentiality provisions of this Agreement.
9.4 Indemnification. The Company shall defend, indemnify, and hold
MAYO and the Consultant harmless from and against all liability, demands,
damages, expenses, and losses, including attorneys' fees, arising out of the
use by the Company of advice, opinions, or information furnished by the
Consultant under this Agreement, or arising from any breach of this Agreement
BY THE COMPANY. The terms of this paragraph survive the expiration or
termination of this Agreement.
9.5 Governing Law; Severability. This Agreement will be governed by
and construed in accordance with the laws of the State of Minnesota
excluding that body of law pertaining to conflict of laws. If any provision
of this Agreement is for any reason found to be unenforceable, the remainder
of this Agreement will continue in full force and effect.
9.6 Notices. Any notices under this Agreement will be sent by
certified or registered mail, return receipt requested, or a nationally
recognized overnight courier to the addresses as set forth below or such
other address as the party specifies in writing. Such notice will be
effective upon its mailing.
Vital Living, 0000 X. Xxxxx Xxxx, Xxxxx, XX 00000
Xxxxxx Xxxxxxx, M.D., Mayo Clinic, 000 Xxxxx Xxxxxx Xxxxxxxxx,
Xxxxxxxxx, XX 00000-0000;
Xxxxxx X. Xxxxx, Contract Administrator, Mayo Legal Department, 000
Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, XX 00000-0000.
9.7 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same document.
9.8 Complete Understanding; Modification. This Agreement constitutes
the complete and exclusive understanding and agreement of the parties and
supersedes all prior understandings and agreements, whether written or oral,
with respect to the subject matter hereof. Any waiver, modification or
amendment of any provision of this Agreement will be effective only if in
writing and signed by the parties hereto.
9.9 Limitation of Rights Created. This Agreement is intended only to
benefit the parties to it. They have no intention to create any interests
for any other party. Specifically, they have no intention to create any
interests for any persons who may be patients or research subjects in
connection with any activities or information exchanged under this Agreement,
or for any relatives, heirs, executors, administrators, or personal
representatives of such persons.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
VITAL LIVING, INC. CONSULTANT
By:/S/Xxxxxxx X. Xxxxx By:/S/Xxxxxx Xxxxxxx, PHD
Title:CEO
MAYO FOUNDATION FOR MEDICAL EDUCATION AND RESEARCH:
/S/Xxxxxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Secretary
Date
EXHIBIT A
COMPENSATION
FEES: Consultant will receive $1250 per S.A.B meeting that he attends.
Currently the Company estimates that there will be 4 meetings annually.
