EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT
THIS EXCLUSIVE SUPPLY AND DISTRIBUTION AGREEMENT, ("Agreement") is
entered into as of this 1st day of July, 2002 by and between Imagenetix, Inc.
a California corporation ("Imagenetix"), whose principal place of business is
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000 and ChiRx,
Inc. a Colorado corporation ("ChiRx") whose principal place of business is 00
Xxx Xxxx Xxxxx, Xxxxxxxxx Xxxxx, Xxxxxxxx, 00000.
WHEREAS, Imagenetix has developed and manufactures a proprietary
dietary supplement and cream known as Celadrin (hereinafter the "Product", as
defined below); and
WHEREAS, ChiRx is engaged in the business of marketing and
distributing dietary supplements and desires to market, sell and distribute
the Product;
NOW, THEREFORE, in consideration for the mutual agreements contained
herein, the parties agree as follows:
1. Definitions. When used in this Agreement, each of the terms set forth in
this Section 1 shall have the meanings indicated below:
1.1 "Product" shall mean the uniquely efficacious, proprietary
Celadrin products developed by Imagenetix.
1.2 "Licensed Territory" shall be worldwide.
1.3 "Chiropractor Market" means that channel of distribution of
products and services that involves selling to Chiropractors.
2 Supply and Sale. Imagenetix shall supply and sell to ChiRx pursuant to
the terms and conditions described herein.
2.1 Exclusive Supplier. During the term of this Agreement and any
renewals hereof, Imagenetix will supply ChiRx for the purpose of
having the exclusive rights to sell Celadrin products in the
chiropractor market. Any inquiries to Imagenetix from Chiropractors
or distributors to Chiropractors will be referred by Imagenetix
to ChiRx.
3. Price. Prices and applicable discounts for all Product ordered
hereunder shall be in accordance with attached "Exhibit A" which is
incorporated herein by reference. Except as otherwise set forth herein, all
prices and discounts specified in Exhibit A shall be firm for the term of this
Agreement.
3.1 The Product purchased hereunder are purchased for resale, therefore,
the prices specified herein are exclusive of sales, use or similar
taxes.
3.2 Any and all taxes, excises, assessments, levies, imports, duties,
costs, charges, and penalties, which may be assessed, levied,
demanded, or imposed by any governmental agency in connection with
this Agreement, shall be paid by the party upon which they are
imposed and shall be the sole obligation of such party.
4. Record Keeping.
4.1 Imagenetix shall keep all records relating the manufacturing of
Product for a minimum of seven (7) years.
4.2 Imagenetix shall maintain retained samples of no less than two (2)
units of Product from each lot of Product produced under the terms
of this Agreement for a period of at least four (4) years beyond
the units' dates of expiration.
4.3 Imagenetix shall maintain vendor supplied Certificates of Analysis
with full traceability to Products lots produced by Imagenetix for
ChiRx under this Agreement for a period of seven (7) years beyond
date of manufacture.
4.4 Imagenetix shall maintain results of all assays conducted on raw
material components utilized in the Production of Product for a
period of seven (7) years.
4.5 Notification. Imagenetix agrees to notify ChiRx within thirty (30)
calendar days of Imagenetix's recognition of any problem, anomaly,
defect or condition (planned or unplanned) that would reasonably
cause ChiRx concern relative to instability, interchangeability,
availability, reliability, maintainability, form, fit, function,
or quality of the Product.
4.6 Formula Physical Stability. Imagenetix is fully responsible for
any formula physical stability issues arising from the materials
used in the formula(s), the manufacturing process, reaction with
bulk shipping containers, or formula reactions with final
packaging material.
5. Term and Renewal. This Agreement shall commence upon the date first
written above and shall continue for five (5) years thereafter, unless sooner
terminated pursuant to the provision herein. This Agreement may be
automatically renewed for additional terms of two (2) years each, unless
either party notifies the other in writing of its intent not to renew, which
notice must be provided within one hundred twenty (120) days of renewal
period.
6. Indemnity.
6.1 Against Product Liability. Imagenetix agrees to indemnify and
hold ChiRx and its affiliates harmless against any and all claims, l
losses, damages, injuries, liabilities or expense, including
reasonable attorneys fees and costs of investigation and suit to
defend such claims, arising out of any allegation, claim
or assertion by a governmental agency or any third party that any
of the Products resold by ChiRx is adulterated, misbranded, unsafe
or otherwise constitutes Defective Product. The foregoing indemnity
shall include, without limiting its generality, losses, damages,
liabilities and expenses arising out of governmental agency recall
of Defective Product, and the consequential damages proximately
caused thereby, such as loss of business, profits, and reputation
and refunds which ChiRx is obligated to make to its customers as a
consequence thereof. ChiRx agrees to give Imagenetix prompt notice
of any and all claims made against it in connection with allegedly
Defective Product, and to cooperate with Imagenetix in defending
against such claims. The foregoing warranty and indemnification
shall be binding upon Imagenetix and its successors and shall inure
to the benefit of ChiRx and it successors in connection with Product
delivered pursuant to this
Agreement.
7. Confidential Information.
7.1 Confidential Information, as used herein, means any and all plans,
data, inventions, products, machines, improvements, designs,
discoveries, know-know, concepts, methods, algorithms, programs,
trade secrets, processes, formulas, techniques, data, supplier
lists, distributor lists, genealogies, customer lists, phone logs,
marketing and business plans, financial information (including but
not limited to information, whether actual, estimated or
projected), technical or scientific and all other work products or
proprietary information of any kind or nature, whether patentable
or copyrightable or not, pertaining to the other party, its
business or its products, which are not found in the public
domain; and includes any and all records, reports, manuals,
drawings, schematics, diskettes, notes, memoranda, print-outs,
graphs, writings of any kind or nature, tape films and either
electronic, visual or audio recordings of any kind or nature
containing in whole or in part Confidential Information, whether
originals or copies.
7.2 Imagenetix and ChiRx hereby agree not to disclose Confidential
Information to any person(s) or entity, except to employees or
agents who require the same for purposes of the manufacture of the
Products.
8. Termination. In addition to the other provisions contained elsewhere in
this Agreement, this Agreement may be terminated on occurrence of any of
the following events, and in the following manner:
8.1 By the non-breaching party at any time if the other party has
breached a material provision contained in this Agreement and has
not cured the breach within thirty (30) days of receipt of written
notice thereof.
9. Imagenetix Warranties.
9.1 Imagenetix warrants that all units of the Product sold and
delivered to ChiRx are safe and efficacious when taken in the
recommended dosages.
9.2 Imagenetix warrants that all units of the Product sold and
delivered to ChiRx shall, as of the date of delivery to ChiRx, not
be misbranded within the meaning of any laws or regulations.
9.3 Imagenetix warrants that all Products sold and delivered to ChiRx
shall be free from adulteration, impurities, defects or any other
material unsafe for human consumption.
9.4 In addition to any and all other remedies provided for herein, or
at law, Imagenetix agrees, at its sole cost, to recall and replace
all Defective Product and replace the same with an equal amount of
Product that is conforming and not Defective Product.
10. Insurance. Imagenetix agrees to carry product and contractual
liability insurance for ChiRx's benefit, at Imagenetix's expense, with
liability limits of $1,000,000.00 aggregate and $1,000,000.00 per incident, to
name ChiRx as an additional insured on all such policies and to deliver to
ChiRx evidence of such insurance and of Imagenetix's compliance with the
provisions of this section promptly following the execution hereof and upon
each annual renewal hereof.
11. General Provisions.
11.1 Complete Agreement. This Agreement shall become binding on the
parties when signed by authorized representatives of the parties,
and shall constitute the entire and sole agreement of the parties
pertaining to the subject matter of this Agreement mutually
withdrawing any and all oral, written, expressed, or implied
agreements or understandings not set forth in full herein. All
exhibits identified herein are specifically made a part of this
Agreement. Any modifications, additions to, or waiver of any of the
terms and conditions herein, shall not be effective unless in
writing and signed by a duly authorized office of the party against
whom the same is ought to be enforced. This Agreement shall not be
modified or altered by and subsequent course of performance
between parties.
11.2 Governing Contract. The terms and conditions herein shall govern
all purchase orders placed thereunder, and shall override all
printed terms and conditions contained on the purchase order or
acknowledgement form issued by either ChiRx or Imagenetix.
11.3 Notices. Any notices required to be given under the terms of
this Agreement shall be given in writing at the address of the other
party first above written, or such other address as may be specified
in writing from time to time.
11.4 Enforceability. If any provision(s) of this Agreement shall be
held to be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way
be affected or impaired thereby.
11.5 Governing Law. This Agreement shall be deemed to have been
entered into in the state of California, and shall be construed in
accordance with California law.
IN WITNESS WHEREOF, the parties hereto execute this Agreement as
of the date first above written.
IMAGENETIX, INC. ChiRx, Inc.
/s/Xxxxxxx X. Xxxxxxx /w/Xxxx Xxxxx
_________________________
By: Xxxxxxx X. Xxxxxxx By: Xxxx Xxxxx
Its: President Its: President
