VITAL LIVING, INC.
SCIENTIFIC ADVISORY BOARD AGREEMENT
This Scientific Advisory Board Agreement ("Agreement") dated June 17,
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"), and (ii) Xxxxxx Xxxxxx, MD, ("Consultant"),
an individual whose address is 000 Xxxxxx Xxx., Xxxxxxxx, XX 00000.
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 and commercialization of its products
and services ("Services"), including, but not limited to:
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 to
directly market 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 2.1 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.
2.2 2.2 2.2 Compensation and Expense Reimbursement. As sole
compensation for the performance of the Services, Company will compensate
Consultant as set forth in Exhibit A. 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;
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. PROPERTY OF COMPANY
4.1 Definition. For the purposes of this Agreement, "Designs and
Materials" shall mean all designs, discoveries, inventions, products,
computer programs, procedures, improvements (whether or not patentable or
whether or not copyrightable), developments, drawings, notes, documents,
information and materials made, conceived, reduced to practice, written,
designed, discovered or developed by Consultant alone or with others whether
during normal business hours or otherwise which result from, relate to or are
derived from any work performed by Consultant for the Company.
4.2 Assignment of Ownership. Consultant hereby irrevocably transfers
and assigns any and all of its right, title, and interest in and to Designs
and Materials, including but not limited to all copyrights, patent rights,
trade secrets and trademarks, to Company. Designs and Materials will be the
sole property of Company, and Company will have the sole right to determine
the treatment of any Designs and Materials, including the right to keep them
as trade secrets, to file and execute patent applications on them, to use and
disclose them without prior patent application, to file registrations for
copyright or trademark on them in its own name, or to follow any other
procedure that Company deems appropriate. Consultant agrees: (a) to disclose
promptly in writing to Company all Designs and Materials; (b) to cooperate
with and assist Company to apply for, and to execute any applications and/or
assignments reasonably necessary to obtain, any patent, copyright, trademark
or other statutory protection for Designs and Materials in Company's name as
Company deems appropriate; and (c) to otherwise treat all Designs and
Materials as "Confidential Information," as defined below. These obligations
to disclose, assist, execute and keep confidential will survive any
expiration or termination of this Agreement. Consultant agrees that if the
Company is unable, after reasonable effort, to secure my signature on any
such papers, any executive officer of the Company shall be entitled to
execute any such papers as my agent and attorney-in-fact, and Consultant
hereby irrevocably designates and appoints each executive officer of the
Company as Consultant's agent and attorney-in-fact to execute any such papers
on Consultant's behalf, and to take any and all actions as the Company may
deem necessary or desirable in order to protect its rights and interests in
any Designs and Materials, under the conditions described in this sentence.
Consultant hereby waives and quit claims to the Company any and all claims,
of any nature whatsoever, which Consultant now or may hereafter have for
infringement of any proprietary rights assigned hereunder.
5. CONFIDENTIAL INFORMATION
Consultant acknowledges that Consultant will acquire information and
materials from Company and knowledge about Company including, without
limitation, 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, and the Designs and Materials, are and will be
the trade secrets and confidential and proprietary information of Company
(collectively "Confidential Information"). 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. Consultant agrees to
hold all such Confidential Information in strict confidence, not to disclose
it to others or use it in any way, commercially or otherwise, except in
performing the Services, and not to allow any unauthorized person access to
it, either before or after expiration or termination of this Agreement.
Consultant further agrees to take all action reasonably necessary and
satisfactory to protect the confidentiality of the Confidential Information.
6. TERM AND TERMINATION
This Agreement will commence on the Effective Date and terminate three
years thereafter. Either party may terminate this Agreement at any time, for
any reason or for no reason, upon thirty (30) days written notice.
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 other arising after the date of expiration or termination,
except that expiration or termination of this Agreement will not relieve
either party of its obligations under Sections 3, 4, 5, 6, 8 and 9, nor will
expiration or termination relieve Consultant or Company from any liability
arising from any breach of this Agreement; and (b) Consultant will promptly
notify Company of all Confidential Information, including but not limited to
the Designs and Materials, in Consultant's possession and promptly deliver to
Company, or destroy at Company's 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 Publicity. Consultant shall not publicize or advertise in any
manner that Consultant is performing the Services hereunder, without the
prior written consent of Company. Consultant hereby grants to Company the
right to use Consultant's name, likeness, and relationship with Company in
and in connection with technical materials, various reports, brochures or
other documents produced by or on behalf of Company.
9.2 Assignment. Consultant may not assign this Agreement or any of
Consultant's rights or delegate Consultant's duties under this Agreement
either in whole or in part, whether by operation of law or otherwise. Any
attempted assignment will be void and of no force and effect.
9.3 Equitable Remedies. Because the Services are personal and unique
and because Consultant will have access to Confidential Information of
Company, Company will have the right to enforce this Agreement and any of its
provisions by injunction, specific performance or other equitable relief
without prejudice to any other rights and remedies that Company may have for
a breach of this Agreement.
9.4 Attorneys' Fees. If any action is necessary to enforce the terms
of this Agreement, the substantially prevailing party will be entitled to
reasonable attorneys' fees, costs and expenses in addition to any other
relief to which such prevailing party may be entitled.
9.5 Governing Law; Severability. This Agreement will be governed by
and construed in accordance with the laws of the State of California
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 address set forth above or such other
address as the party specifies in writing. Such notice will be effective
upon its mailing.
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.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
Effective Date.
VITAL LIVING, INC. CONSULTANT
By: By:
Title: Title:
EXHIBIT A
COMPENSATION
FEES: Consultant will receive $1250 per S.A.B meeting that he or she attends.
Currently the company estimates that there will be 4 meetings annually.
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