EXHIBIT 10: Cross-License Agreement
Cross-License Agreement
This Agreement ("Agreement") is made and entered into as of May
15, 2001, by and between All American Pharmaceuticals, Inc., a
Montana corporation, with offices at 0000 Xxxx Xx., Xxxxxxxx,
00000 ("Manufacturer") and Body Art & Science, Inc., a Nevada
corporation, with offices at 0000 Xxxxxxxx, Xxxxx #0, Xxx Xxxxx,
Xxxxxx, 00000 ("BAS").
BACKGROUND AND PURPOSE
A. Manufacturer is a manufacturer and supplier of nutritional
and related health care products.
B. Manufacturer desires to produce and manufacture, and BAS
desires to grant Manufacturer the right to produce and
manufacture, certain nutritional and related health care products
and food supplements using proprietary formulas for which BAS
bass the exclusive right to use and license, and to use certain
proprietary trademarks for which BAS has exclusive right to use
and license in connection with the private labeling of certain of
the products, for supply back on an exclusive basis to BAS or
other distributors or retailers designated or approved by BAS.
C. BAS desires to become the exclusive distributor and
supplier, and Manufacturer desires to grant BAS the right and
license to become the Manufacturer's exclusive distributor and
supplier, of certain other nutritional and related health care
products using the proprietary formulas of Manufacturer, or
otherwise developed by Manufacturer, and to use certain
proprietary trademarks of Manufacturer in connection with the
distribution and supply of such products.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, Manufacturer and BAS agree as
follows:
1. Definitions
1.1. "B-Products" means nutritional and related health care
products and food supplements for which BAS holds the
exclusive right to use and license, made subject to this
Agreement and listed on the attached Exhibit A, or later
attached by Rider to Exhibit A. in their current
formulations and any alternative formulations.
1.2. "B-Product Information" means the proprietary
formulations, information and know-how related to the B-
Products, which is relevant to the manufacturing, bottling
or packaging, labeling, storage and supply of the B-
Products, for which BAS holds the exclusive right to use and
license, and which is licensed to Manufacturer by BAS
pursuant this Agreement.
1.3. "B-Trademarks" means BAS's proprietary marks "SRA,"
"Supplemental Research & Advancement" or "Body Art &
Science," or any other marks designated by BAS in Exhibit A
for use in connection. with. and the labeling of the B-
Products.
1.4. "M-Products" means Manufacturer's nutritional and
related health care products subject to this Agreement and
listed on the attached Exhibit A, in their current
formulations and any alternative formulations.
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1.5. "M-Product Information" means Manufacturer's
proprietary formulations, information and know-how related
to the M-Products, which is relevant to the distribution and
supply of the M-Products and which is licensed to BAS by
Manufacturer pursuant to this Agreement.
1.6. "M-Trademarks" means Manufacturer's proprietary marks
as may be listed in Exhibit A. for use in connection with
and the labeling of M-Products.
1.7 "Products" means the B-Products and the M-Products.
1.8 "Product Information" means the B-Product Information
and the M-Product Information..
1.9. "Territory" means worldwide.
2. License of Manufacturer
2.1. License. Pursuant to the terms of this Agreement, BAS
hereby grants Manufacturer the non-exclusive license to: (a)
produce and manufacture the B-Products and, in connection
therewith, to bottle or otherwise package, label, store and
supply the B-Products back to BAS or its designee, and (b)
to use the B-Product information in connection with
producing, manufacturing, bottling or packaging, labeling,
storage and supply of the B-Products. BAS shall have the
exclusive right to designate or approve the recipient of the
finished B-Products irrespective of the brand name or
trademark used to label such B-Products, which recipient
shall be BAS or a distributor or retailer designated or
approved by BAS. Manufacturer acknowledges that the B-
Products subject to this Agreement are not inclusive of all
of the nutritional and health care products and food
supplements, or formulations thereof, in which BAS may own
or hold the right to use and license, but only those
products and food supplements and formulations thereof which
the parties have expressly agreed are a part of this
Agreement.
2.2. Grant of Trademark License. BAS grants to Manufacturer
the non-exclusive right and license to use the B-Trademarks
and related goodwill in connection with the private labeling
of certain of the B-Products for exclusive license back to
and distribution by BAS or a distributor or retailer
designated or approved by BAS. Manufacturer shall use the B-
Trademarks in accordance with customary good trademark
practice, and shall not take any action that would in any
manner impair or detract from the value of the B-Trademarks
or the goodwill and reputation, of BAS. Manufacturer
acknowledges BAS's ownership of the B-Trademarks and related
goodwill. Manufacturer shall use the B-Trademarks only in
the form and manner and with appropriate legends as approved
from time to time by BAS, and shall not use any other
trademark or service xxxx in combination with the B-
Trademarks without prior written approval of BAS.
3. License of BAS
3.1. License. Pursuant to the terms of this Agreement,
Manufacturer hereby grants BAS the exclusive license to: (a)
distribute, on a wholesale or retail basis, and conduct
related marketing efforts for the M-Products; and (b) to use
the M-Product Information in connection with the
distribution of the M-Products. BAS acknowledges that the M-
Products subject to this Agreement are not all of the
nutritional and health care products and food supplements,
or formulations thereof, for which Manufacturer may own or
hold the right to use and license, but only those products
and food supplements, and formulations thereof which the
parties have expressly agreed are a part of this Agreement.
In the event Manufacturer, at any time during the term of
this Agreement develops any new nutritional food products,
food supplements or formulations thereof which are not
designated as M-Products and which are not then listed on
PAGE -2-
the attached Exhibit A, and in the event it is feasible to
involve BAS in the distribution and marketing of such new
product, food supplement or formulation, as in good faith
determined by Manufacturer after the use of reasonable due
diligence and after consulting with BAS, Manufacturer will
present the opportunity to distribute and market such
product to BAS and, upon the agreement of the parties, such
products, food supplements or formulations shall be added to
Exhibit A and shall be subject to this Agreement as if
originally made a part hereof. Once an M-Product has been
added to Exhibit A and made a part of this Agreement, BAS
shall have the exclusive right to designate or approve the
recipient of the finished M-Product, irrespective of the
brand name or trademark used to label such M-Product, which
recipient shall be BAS or a distributor or retailer
designated or approved by BAS.
3.2. Grant of Trademark License. Manufacturer grants to BAS
the exclusive right and license to use the M-trademarks and
related goodwill in connection with the distribution of
certain of the M-Products. BAS shall use the M-Trademarks
in accordance with customary good trademark practice, and
shall not take any action that would in any manner impair or
detract from. the value of the M-Trademarks or the goodwill
and reputation of Manufacturer. BAS acknowledges
Manufacturer's ownership of the M-Trademarks and related
goodwill. BAS shall use the M-Trademarks only in the form
and manner and with appropriate legends as approved from
time to time by Manufacturer, and shall not use any other
trademark or, service xxxx in. combination with the M-
Trademarks without prior written approval of Manufacturer.
4. Policies and Procedures
4.1. Product :Information. BAS shall from time to time
furnish Manufacturer with B-Product information as and to
the extent reasonably necessary to assist Manufacturer's
efforts to manufacture, bottle, package, label, store and
supply the B-Products. Manufacturer is not authorized to
use the B-Product Information in any manner not expressly
authorized by BAS. Manufacturer shall from time to time
furnish BAS with M-Product Information as and to the extent
reasonably necessary to assist BAS's efforts to distribute,
market and supply the M-Products. BAS is not authorized to
use the M-Product information in any manner not expressly
authorized by Manufacturer.
4.2. Packaging, Bottling, Labeling of Products. BAS shall
have the right to designate or approve the type, design and
content of the packages, bottles and labels used in
connection with the Products. BAS shall determine when
during the term of this Agreement the B-Trademarks or the M-
Trademarks shall be used for the private-labeling of certain
of the Products. BAS, at its option, may designate one or
more of the B-Trademarks or the M-Trademarks for use at any
one time in connection with the Products. If BAS is
producing and providing to Manufacturer the bottles,
packages or labels for a Product, BAS shall deliver the item
to Manufacturer at least 7 days prior to the date that the
Products are to be produced and delivered in accordance with
Section 4.2 of this Agreement.
4.3. Regulatory Compliance Responsibility. Manufacturer
shall be responsible for all decisions and actions regarding
regulatory matters relating to or involving its
manufacturing activities relative to the Products.
Manufacturer shall, with respect to any such regulatory
matters: (a) act as liaison with the FDA or other
governmental authority if necessary; (b) prepare and make
all submissions regarding any regulatory matter; (c) monitor
all studies pertinent to the regulatory matter; and (d)
obtain regulatory approvals, as reasonably deemed necessary
by Manufacturer. BAS shall promptly cooperate with
Manufacturer with respect to such regulatory matters by
providing data and information at Manufacturer's reasonable
request.
PAGE -3-
4.4. Notification of New Product Information. Each of the
parties shall promptly notify the other party in writing of
any technical or clinical advances, useful modifications,
side effects, or new government regulations relating to the
Products that shall come to its knowledge. Each party shall
promptly inform the other of all actions and communications
as become known to the party (even if believed to be without
foundation) by or threatened by a regulatory or other
governmental authority in the Territory relating to the
Products.
4.5. Formulations Held by BAS. To ensure ongoing
availability of the Products for distribution by BAS during
the term of this Agreement, Manufacturer shall, within 90
days of the date of execution of this Agreement, submit to
BAS for safekeeping all master copies of the final
formulations of the B-Products and the M-Products subject to
this Agreement. In the event of termination or expiration
of this Agreement, BAS shall promptly return or provide to
Manufacturer all M-Product Information and other similar
information regarding the M-Products which it holds, in
accordance with Section 10.3.2 of the Agreement; provided,
however, in the event Manufacturer during the term. of this
Agreement should for any reason be unable to produce the
Products in sufficient quantities to fill orders from BAS
and such inability: (1) continues for 15 days after the
scheduled delivery dates; or (2) occurs with respect to
three or more orders in any one calendar year, the formula
and processes for the Products may, upon written notice from
BAS to Manufacturer, be assigned to BAS for contract
manufacture with a third party of BAS's choice.
Manufacturer agrees to execute any and all documentation
necessary to fulfill its obligations hereunder.
5. Orders and Compensation
5.1. Pricing and Payment. During the term of this
Agreement, Manufacturer shall sell the Products to BAS or
another distributor or retailer designated or approved by
BAS, in accordance with the price or royalty list and
payment terms contained in the attached Exhibit B, entitled
Product Price, Payment and Delivery. Manufacturer shall
have the right to increase the price of the Products, such
price increase to become effective only upon.30 days prior
written notice to BAS, but only in the event and to the
extent the cost to Manufacturer of production of the
Products increases. BAS shall have the right in the event
of a proposed price increase to obtain from Manufacturer
reasonable, demonstrable evidence of the cost increase to
Manufacturer.
5.2. Delivery and Shipping. Manufacturer shall produce and
deliver Product units ordered by BAS no later than 15 days
after Manufacturer's receipt of the order, or within shorter
time frames as may be agreed to in advance between the
parties. The units shall be delivered on terms described in
Exhibit B. BAS, at its option, may designate that an order
be drop-shipped to a designated location via a carrier
chosen by BAS, in which case BAS shall be responsible for
all costs of shipping. Manufacturer shall notify BAS's
management prior to shipment of an order. Manufacturer will
ensure that Product orders will be properly, safely and
adequately packaged and readied for shipping.
5.3. Damaged or Defective B-Products. BAS may either (i)
deduct from any payment that portion of the purchase price
paid for any unit which is damaged or defective or which is
not delivered, or (ii) require the Manufacturer to refund
that portion of the purchase price paid for any such unit or
to replace the unit at Manufacturer's expense. BAS will
return to Manufacturer, at Manufacturer's expense, any
damaged or defective units or packaging, and BAS will
furnish Manufacturer with an affidavit by one of BAS's
executive officers as to any units that are not delivered.
PAGE -4-
Manufacturer will promptly replace at its expense any
damaged or defective packaging for any unit that is not
damaged or defective. If BAS can repair any damaged or
defective unit, BAS will advise Manufacturer; and BAS will
make the repair if BAS and Manufacturer agree in writing on
the terms including any reduction in the purchase price for
that unit.
6. Maintenance of Quality
6.1. Manufacturing Standards. Manufacturer shall be
responsible for maintaining commercially acceptable quality
control standards in all manufacturing relating to the
Products it delivers to BAS or BAS's designated. or approved
distributors or retailers. Unless BAS is at fault,
including but not limited to, because of a failure to take
reasonably prudent steps, or other steps reasonably
suggested by Manufacturer, to protect the delivered
Products, Manufacturer shall be responsible for and
compensate BAS for expenses incurred for any recall, and
when necessary for replacement of Products, failing to meet
commercially acceptable standards.
6.2. Modifications to Products. Manufacturer may not make
changes in the Products or in the formulations of the
Products subject to this Agreement without reasonable
written notice and a statement of justification for the
proposed changes sufficient for BAS to make a reasonable
analysis of the change and its impact upon BAS's marketing
and distribution efforts. Unless the change is necessary to
comply with laws or governmental regulations, BAS may elect
to not accept the change and continue to receive the current
formulation of the Product. Such an election will be made
within a reasonable time after receipt of all of the
aforementioned information.
7. Representations, Warranties, and Covenants
7.1. Manufacturer's Representations, Warranties, and
Covenants. Manufacturer hereby represents, warrants, and
covenants the following:
7.1.1. Manufacturer is a corporation duly organized,
existing and in good standing under the laws of Montana,
with full right, power and authority to enter into and
perform this Agreement and to grant all of the rights,
powers and authorities herein granted.
7.1.2. The execution, delivery and performance of this
Agreement do not conflict with, violate, or breach any
agreement to which Manufacturer is a party, or
Manufacturer's articles of incorporation or bylaws.
7.1.3. This Agreement has been duly executed and
delivered by, Manufacturer and is a legal, valid and binding
obligation enforceable against Manufacturer in accordance
with its terms.
7.1.4. Manufacturer shall comply with all applicable
laws, consent decrees, and regulations of any federal, state
or other governmental authority.
7.1.5. To the best of Manufacturer's knowledge and belief
as of the date of this Agreement, there are no pending
patent or trademark applications, or any regulatory
restrictions or directives from any government agency,
relating to the M-Products that would prevent BAS from using
or selling the M-Products in the Territory.
7.1.6. The Products and the packaging are and will be
safe for consumption, the units of the Products purchased
under this Agreement will be properly, adequately and safely
packaged and labeled; the Products meet and will meet
standards under all applicable laws, rules and regulations;
there is not any and there will not be any defect in the
Products purchased under this Agreement; the Products have
the properties and will have the properties described in the
Product Information and on any labels used in connection
with the Products; and the Products and the Product
Information do not and will not violate any patent,
copyright, trademark, service xxxx or other right and do not
and will not contain any item, part or material which
Manufacturer is not authorized to use.
PAGE -5-
7.1.7. Manufacturer shall farther ensure the quality of
the Products manufactured by testing units from each lot
produced prior to releasing any units of the lot for
delivery and shall maintain the units so tested in
restricted storage for a two-year period. If a bona fide
issue arises as to the quality of any particular lot, BAS
shall have the right, upon reasonable prior notice, to
inspect and to submit for further testing such units so
stored.
7.1.8. Manufacturer shall maintain and preserve, at its
principal office, complete and accurate books and records
pertaining to its production and sale of the Products and
Manufacturer shall allow BAS, at any time during business
flours, to inspect, audit and make photocopies or extracts
of such books and records, and Manufacturer shall fully
cooperate with any such inspection or audit.
7.2. BAS's Representations, Warranties, and Covenants. BAS
hereby represents, warrants, and covenants the following:
7.2.1. BAS is a corporation duly organized, existing and
in good standing under the laws of the State of Nevada, with
full right, power, and authority to enter into and perform
this Agreement and to grant all of the rights, powers, and
authorities herein granted.
7.2.2. The execution, delivery, and performance of this
Agreement do not conflict with, violate, or breach any
agreement to which BAS is a party, or BAS's articles of
incorporation or bylaws.
7.2.3. This Agreement has been duly executed and
delivered by BAS and is a legal, valid, and binding
obligation enforceable against BAS in accordance with its
terns.
7.2.4. BAS shall comply with all applicable laws, consent
decrees, and regulations of any federal, state or other
governmental authority.
7.2.5. The B-product Information will provide correct
formulations for the B-Products; any bottles or packages
supplied by BAS will be appropriate and safe for use in
connection with. the B-Products; any labels supplied by BAS
will correctly and properly describe the B-Products and
their proper purposes and uses; the B-Product Information
meets and will inset standards under all applicable laws,
rules and regulations; and the B-Product Information and any
bottles, packages or labels supplied by BAS do not and will
not violate any patent, copyright, trademark, service xxxx
or other right and do not and will not contain any item,
pail or material which BAS is not authorized to use and
license hereunder.
8. Indemnification and Insurance
8.1 Indemnification of Manufacturer. BAS shall at all
times during and after the term of this Agreement be
responsible for, and shall defend, indemnify, and hold
Manufacturer, and Manufacturer's officers, directors,
representatives and affiliated companies, harmless from and
against any and all losses, claims, suits, proceedings,
PAGE -6-
expenses, recoveries, and damages, including reasonable
legal expenses and costs including attorneys' fees, arising
out of any claim by a third party relating to any aspect of
BAS's performance of this Agreement to the extent such
liability results from the gross negligence or willful
misconduct of BAS, or from any breach of a representation or
warranty given herein by BAS; provided, however, that
Manufacturer shall give BAS prompt notice of. any such claim
or lawsuit that comes to its attention and, provided
further, that BAS shall have the right to compromise,
settle, or defend such claim or lawsuit, in its name and at
its expense.
8.2. Indemnification of BAS. Manufacturer shall at all
times during and after the term of this Agreement be
responsible for, and shall defend, indemnify, and hold BAS,
and BAS's officers, directors, representatives and
affiliated companies, harmless from and against any and all
losses, claims, suits, proceedings, expenses, recoveries,
and damages, including reasonable legal expenses and costs
including attorneys' fees, arising out of any claim by a
third party relating to the Products manufactured, or any
aspect of Manufacturer's performance of this Agreement to
the extent such liability results from. the negligence or
willful misconduct of Manufacturer or causes a personal
injury to another, or any breach of a representation or
warranty given herein by Manufacturer, or any regulatory
action related to, or retail of, the Products; provided,
however, that BAS shall give Manufacturer prompt notice of
any such claim or lawsuit that comes to its attention and,
provided further, that Manufacturer shall have the right to
compromise, settle, or defend such claim or lawsuit, in its
name and at its expense.
8.3. Insurance. Manufacturer shall maintain a Comprehensive
product liability insurance policy with respect to the
Products, in an amount not less than two million dollars
($2,000,000) per occurrence, with a deductible of not more
than one hundred thousand dollars ($100,000). Manufacturer
shall name BAS as an additional insured under such policy,
the terms of which shall be reasonable acceptable to both
parties. Manufacturer shall promptly provide BAS with a
certificate from the applicable insurance company verifying
the above and undertaking to notify BAS at least 30 days
prior to the expiration or termination of such coverage.
8.4. Confidentiality. Manufacturer and BAS understand and
acknowledge that the Product Information represents valuable
confidential information of the owner thereof, entitled to
protection as a trade secret. Each party shall keep
confidential, and shall protect from. unauthorized
disclosure by its employees and agents, the Product
Information and all copies of physical embodiments thereof
in its possession. Each party shall use the Product
Information only for the purposes of fulfilling its rights
and obligations under this Agreement, and each shall limit
PAGE -7-
access to the Product Information of the other to its
personnel who require such access in connection with use
thereof as permitted by this Agreement. Each party shall
secure and protect the Product Information of the other and
any and all copies and other physical embodiment thereof, to
satisfy its obligations hereunder. Promptly upon discovery
that any person has acquired possession, use or knowledge
of. any part of the Product Information of the other party,
other than as authorized by this Agreement, the discovering
party shall notify the other party of such fact and the
surrounding circumstances. The obligations of this Section
8.4 shall not apply to any information which is (a)
generally known to the public, or becomes so known other
than by reason of a breach by the receiving party of its
obligations hereunder; (b) was known to the receiving party
prior to its disclosure by disclosing party hereunder; (c)
is learned by the receiving party from a third party who is
not in breach of an obligation of confidentiality in making
such disclosure; or (d) is required to be disclosed pursuant
to an administrative, judicial. or government hearing.
9. Noncompetition
Manufacturer acknowledges that the B-Product Information is
commercially valuable information and the value of this
information is derived from the time, effort and money which
went into its research, development and compilation by BAS.
Therefore, except as authorized by this Agreement, neither
the Manufacturer nor any of the Manufacturer's officers,
directors, shareholders, members, managers or partners shall
during the term of this Agreement and for a period of three
(3) years thereafter: (a) have any direct or indirect
controlling interest as a disclosed or beneficial owner in a
"Competitive Business" as defiled below; (b) perform
services as a director, officer, manager, employee,
consultant, representative, agent or otherwise for a
Competitive Business; or (c) divert or attempt to divert any
business related to, or any customer or account of BAS, by
direct inducement or otherwise, or divert or attempt to
divert the employment of any employee of BAS to any
Competitive Business by any direct inducement or otherwise.
The term "Competitive Business" as used in this Agreement
shall mean any business directly or indirectly engaged in
the sale, manufacturing, producing, developing, marketing or
distributing of nutritional food products or food
supplements which are the same as the Products or which use
any of the B-Product Information, or which are
"substantially similar" to the Products if the formulations
or processes therefor .have been developed by BAS or by
Manufacturer with the joint participation of BAS, or any
business which in any manner provides consulting or contract
services to businesses which engage in such activities. For
the purpose of this Section 9, "substantially similar" food
products or food supplements shall mean any nutriceutical,
or sports performance-enhancing food products or food
supplement or formulations therefor which contain 50% or
more of the ingredients that comprise any of the Products
subject to this Agreement that have been developed by BAS or
by Manufacturer with the joint participation of BAS.
10. Term and Termination
10.1. Term. This Agreement shall commence as of the date
first written above (the "Effective Date"), and, unless
sooner terminated as provided herein, this Agreement shall
continue in force for twenty-five (25) years from the
Effective Date. This Agreement shall then automatically be
renewed for terms of ten years each, unless one party gives
notice of non-renewal to the other party at least 90 days
prior to the expiration of the then-current term.
10.2. Termination
10.2.1.Termination by Mutual Consent. This Agreement
shall terminate upon the mutual written agreement of the
parties.
10.2.2.Termination for Material Breach. If either party
breaches or defaults in the performance or observance of any
of the material provisions of this Agreement, and such
breach or default is not cured within 30 days after the
giving of notice by the other party specifying such breach
or default, the non-defaulting party shall have the right to
terminate this Agreement, effective with 10 days further
notice to the defaulting party.
10.2.3.Termination for Bankruptcy. Either party shall
have the right to terminate this Agreement upon 10 days
notice to the other party, if that other party becomes
involved in financial difficulties as evidenced:
PAGE -8-
(a) by that other party's commencement of a
voluntary case under any applicable bankruptcy code or
statute, or by its authorizing, by appropriate
proceedings, the commencement of such a voluntary case;
or
(b) by its failing to receive dismissal of any
involuntary case under any applicable bankruptcy code or
statute within 60 days after initiation of such action or
petition; or
(c) by its seeking relief as a debtor under any
applicable law of any jurisdiction relating to the
liquidation or reorganization of debtors or to the
modification or alteration of the rights of creditors, or
by consenting to or acquiescing in such relief; or
(d) by the entry of an order by a court of
competent jurisdiction finding it to be bankrupt or
insolvent, or ordering or approving its liquidation,
reorganization, or any modification or alteration of the
rights of its creditors or assuming custody of, or
appointing a. receiver or other Custodian for, all or a
substantial part of its property or assets; or
(e) by its making as assignment for the benefit of,
or entering into a composition with., its creditors, or
appointing or consenting to the appointment of a receiver
or other custodian for all or a substantial part of its
property.
The failure by a party to exercise its right to terminate
this Agreement pursuant to this Section 9.2.3 in. the event
of any occurrence giving rise thereto shall not constitute
waiver of the rights in the event of any subsequent
occurrence.
10.3. Surviving Provisions; Obligations Upon Termination
10.3.1. Surviving Provisions. The provisions of Sections 6.1,
6.2, 7.1 and 7,.2 shall survive any expiration or termination of
this Agreement.
1.0.3.2. Obligations Upon Termination. Upon any expiration or
termination of this Agreement in addition to other obligations as
may be described herein:
(a) All rights, privileges and licenses to use the B-
Trademarks shall immediately terminate and revert to BAS, and
Manufacturer shall not thereafter make any use whatsoever of
the B-Trademarks. All rights, privileges and licenses to use
the M-Trademarks shall immediately terminate and revert to
Manufacturer and BAS shall not thereafter make any use
whatsoever of the M-Trademarks.
(b) Manufacturer shall promptly return or provide to BAS
all B-Product Information and other similar information
regarding the B-Products and shall not thereafter use or
disclose the B-Product Information in any manner whatsoever
and shall not thereafter manufacture, bottle, package, label,
store or supply the B-Products;
(c) BAS shall promptly return or provide to Manufacturer
all M-Product Information and other similar information
regarding the M-Products and shall not thereafter use or
disclose the M-Product Information in any manner whatsoever
and shall not thereafter distribute the M-Products; provided,
however, BAS shall have 90 days to sell or otherwise dispose
of the M-Products omen in its inventory as of the date of
termination; and
(d) BAS shall promptly pay to Manufacturer all amounts
due to Manufacturer pursuant to the terms of this Agreement.
PAGE -9-
11. Excuse of Performance
11.1. Force Majeure. Neither party shall be liable for any
default or delay in such party's performance if such default
or delay is cause by any event beyond the reasonable control
of such party, including but not limited to: acts of God;
war or insurrection; civil commotion; destruction of
essential facilities or materials by earthquake, fire, flood
or storm.; labor disturbance; epidemic; or other similar
event; provided, however, that the party so affected will
give prompt notice of such event, and shall use its best
efforts to avoid, remove, or alleviate such causes of
nonperformance and shall continue performance hereunder with
the utmost dispatch whenever such causes are removed.
12. Miscellaneous
12.1. Entire Agreement - Modifications. This Agreement sets
forth and constitutes the entire agreement and understanding
between the parties with respect to the subject matter
hereof, and supersedes any and all prior agreements,
understandings, promises and representation, whether written
or oral, between the parties with respect to the subject
matter hereof This Agreement may not be released,
discharged, amended or modified in any manner except by an
instrument in writing, making specific reference to this
Agreement, and signed duly by authorized representatives of
both parties.
12.2. Relationship of the Parties. The relationship hereby
established between Manufacturer and BAS is solely that of
independent contractors. This Agreement shall not create an
agency, partnership, joint venture, or employer/employee
relationship, and nothing hereunder shall be deemed to
authorize either party to act for, represent or bind the
other except as expressly provided in this Agreement.
12.3. Severability. If and solely to the extent that any
provision of this Agreement shall be invalid or
unenforceable, or shall render this entire Agreement to be
unenforceable or invalid, such offending provision shall be
of no effect and shall not affect the validity of the
remainder of this Agreement or any of its provisions;
provided, however, the parties shall use their respective
reasonable efforts to renegotiate the unenforceable or
invalid provisions to best accomplish. the original
intentions of the parties.
12.4. Assignment. Neither party may assign any right or
obligation hereunder without the written consent of the
other party, except that BAS may assign this Agreement,
without the prior written consent of the Manufacturer, if
BAS's assignee undertakes to perform BAS's obligations
hereunder that shall have been so assigned, and upon, from
and after such assignment BAS shall have no further
liability, obligation or duty with respect to the right,
obligations, and duties so assigned. This Agreement shall
be binding upon and inure to the benefit of the parties'
respective successors and assigns. Any attempted assignment
in violation of this provision shall be void and of no
effect.
12.5 Arbitration. All controversies, disputes or claims
between BAS, or its officers, directors or shareholders
("BAS Affiliates"), and Manufacturer, or its officers,
directors or shareholders ("Manufacturer Affiliates")
arising out of or related to: (1) this Agreement or any
other agreement between such parties or any provision of
such agreements; (2) the relationship of the parties hereto;
(3) the validity of this Agreement or any other agreement
between such parties or any provision of such agreements; or
(4) any Product or the Product Information, shall be
submitted for arbitration to either the Denver, Colorado or
Las Vegas, Nevada office of the American Arbitration
Association ("AAA") on demand of either party. The
arbitration proceedings shall be conducted in Denver,
Colorado, and shall be heard by one arbitrator in accordance
with the then current Commercial Arbitration Rules of the
AAA.
PAGE -10-
12.6 Scope of Arbitration. The arbitrator shall have the
right to award or include in the award any relief which, he
deems proper in the circumstances, including, without
limitation, money damages (with interest on unpaid amounts
from the date due), specific performance, and attorneys'
fees and costs, in accordance with Section 11.9 of this
Agreement, provided that the arbitrator shall not award
exemplary or punitive damages. The award and decision of
the arbitrator shall be conclusive and binding upon BAS, BAS
Affiliates, Manufacturer and Manufacturer Affiliates and
judgment upon the award may be entered in any court of
competent jurisdiction. Each party waives any right to
contest the validity or enforceability of such award. BAS
and Manufacturer agree to be bound by the provisions of any
applicable limitation on the period of time by which claims
must be brought under applicable law or this Agreement,
whichever is less. The parties further. agree that, in
connection with any such arbitration proceeding, each shall
file any compulsory counterclaim (as defined by Rule 13 of
the federal Rules of Civil Procedure) within 30 days after
the date of the filing of the claim to which it relates.
This provision shall continue in full force and effect
subsequent to and notwithstanding the expiration or
termination of this Agreement.
12.7 Governing Law/Consent to Venue and Jurisdiction. All
disputes to be arbitrated by BAS and Manufacturer shall be
governed by the Federal Arbitration Act (the "FAA") and no
procedural arbitration issues are to be resolved pursuant to
any state statutes, regulations or common law. Except to
the extent governed by the .FAA, the United States Trademark
Act of 1946 (Xxxxxx Act, 15 U.S.C. Sections 1051 et seq.) or
other federal law, this Agreement shall be interpreted under
the laws of the state of Colorado and any dispute between
the parties shall be governed by and determined in
accordance with the substantive laws of the state of
Colorado, which laws shall prevail in the event of any
conflict of law. Manufacturer and BAS have negotiated
regarding a forum in which to resolve any disputes which may
arise between them and have agreed to select a forum in
order to promote stability in their relationship.
Therefore, if a claim is asserted in any legal proceeding
involving the Manufacturer or Manufacturer Affiliates and
the BAS or BAS Affiliates, the parties agree that the
exclusive venue for disputes between them shall be in either
the state and federal courts of Colorado or Nevada, or the
Denver, Colorado or Las Vegas, Nevada office of the AAA and
each party waives any objection they may have to the
personal jurisdiction of or venue in the state and federal
courts of Colorado or Nevada, or the Denver, Colorado or Las
Vegas, Nevada offices of the AAA. BAS, BAS Affiliates,
Manufacturer and Manufacturer Affiliates each waive their
rights to a trial by jury.
12.8. Injunctive Relief. Notwithstanding the above
arbitration provision, either party hereto shall be entitled
to seek in a court of competent jurisdiction any injunctive
relief, including interim, interlocutory or permanent
injunctions, against conduct or threatened conduct for which
an adequate remedy at law may not be available or which may
cause such party irreparable harm.
12.9. Costs and Legal Fees. The prevailing party in any
action or proceeding shall be entitled to be reimbursed by
the losing party for any acid all costs and legal fees,
including attorneys' fees, related to the action. Further,
the party prevailing in any judicial or arbitration
proceeding between the parties hereto shall be awarded costs
and expenses, including reasonable legal fees. BAS shall
pay to Manufacturer, on a monthly basis, one half of any and
all costs and legal fees, including attorneys' and expert
witness fees, incurred by Manufacturer, its subsidiaries,
affiliates or assignees, and their directors, officers,
employees and agents, arising out of any civil action,
administrative proceeding or other claim or proceeding by a
third party or by Manufacturer against a third party
relating to, in any manner, the Products, the Product
Information and the Trademarks including, without
limitation, the manufacture, advertisement, distribution,
sale and use of the Products and enforcement and defense of
the Trademarks. Manufacturer shall be entitled to offset
such costs and legal fees against Royalties dine and payable
to BAS. BAS'S obligation to pay one half of any and all
costs and legal fees under this Section 11.9, shall not
affect BAS's indemnification obligations pursuant to Section
7.1 of this Agreement.
PAGE -11-
12.10. Injunctive Relief. Either party hereto shall be
entitled to seek in a court of competent jurisdiction any
injunctive relief, including interim, interlocutory or
permanent injunctions, against conduct or threatened conduct
for which an adequate remedy at law may not be available or
which may cause such party irreparable harm.
12.11. Costs and Legal Fees. The prevailing party in any
action or proceeding shall be entitled to reimbursement from
the losing party for any and all costs and legal fees,
including attorneys' fees, related to the action. Further,
the party prevailing in any judicial or arbitration
proceeding between the parties hereto shall be awarded costs
and expenses, including reasonable legal fees.
12.12. Waiver. No waiver of any right under this Agreement
shall be deemed effective unless contained in writing and,
signed by the party charged with such waiver, and no waiver
of any right shall be deemed to be a waiver of any future
right or any other right arising under this Agreement. All
rights, remedies, undertakings, obligations, and agreements
contained in this Agreement shall be cumulative and none of
them shall be a limitation of any other remedy, right,
undertaking, obligation, or agreement.
12.13. Notice. Any notice, consent, or approval permitted
or required under this Agreement shall be in writing and
shall be sent by registered or certified mail, postage pre-
paid, or by overnight courier, or by facsimile or telex
(confirmed by mail), to the addresses set forth below or to
such other address in the United States that the parties may
hereafter specify:
__________________________________________________________________
If to Manufacturer: If to BAS.
All American Pharmaceuticals, Body Art & Science, Inc.
Inc.
Attention: Xxxx Xxxxxxx Attention: Xxx Xxx
0000 Xxxx Xxxxxx 0000 X. Xxxxxxxx, Xxxxx #0
Xxxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Fax: (000) 000-0000 Fax.: (000) 000-0000
__________________________________________________________________
All notices shall be deemed to be effective on the date of receipt.
IN WITNESS WHEREOF, the parties have executed this Agreement
effective as of the date and year first written above.
_________________________________________________________
MANUFACTURER: DISTRIBUTOR:
All American Pharmaceuticals, Body Art & Science, Inc.
Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxx, Jr.
Name: Xxxx Xxxxxx Name: Xxxxxx Xxx, Jr.
Date: 5/22/01 Date: 5/15/01
Title: President Title: President/co-CEO
_________________________________________________________
PAGE -12-
Exhibit "A"
ADDENDUM TO
CROSS-LICENSE AGREEMENT
THIS ADDENDUM ("Addendum") to the Cross License Agreement
dated May 15th, 2001 is made effective as of the same date, by
and between All American Pharmaceuticals, Inc. ("Manufacturer")
and Body Art & Science, Inc. ("BAS"), to supplement and amend
certain terns of the Agreement. To the extent not defined
herein, all initial-capitalized references in this Agreement
shall have the same meaning as defined in the Agreement.
1. Products. As of the effective date of the Agreement, the
B-Products subject to the Agreement and for which Manufacturer
will receive the B-product Information are:
________________________________________________________________
B-Product B-Trademark Bottling /
Packaging/Labeling
Thermogenic 10341 degree with ephedra
Activator
Thermogenic 10341 degree
Activator
IMH Ecdysterone 20 Hydroxy + Methoxy
Sublingual
M-Product M-Trademark Bottling /
Packaging/Labeling
Liquid Creatine Kre-Alkalyn
_________________________________________________________________
2. Future Products. All future Products which Manufacturer
and BAS agree will be produced and manufactured by Manufacturer
and distributed by BAS or other distributors or retailers
designated or approved by BAS under this Agreement, shall be
identified in a separate Rider to this Addendum, executed by both
parties, upon which such Product shall become subject to this
Agreement as if originally included herein.
Fully executed this 15 day of May, 2001.
__________________________________________________________
MANUFACTURER: DISTRIBUTOR:
All American Pharmaceuticals, Body Art & Science, Inc.
Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxx, Jr.
Name: Xxxx Xxxxxx Name: Xxxxxx Xxx, Jr.
Date: 5/30/01 Date: 5/15/01
Title: President Title: President/co-CEO
_________________________________________________________
PAGE -13-
Exhibit "B"
ADDENDUM TO CROSS-LICENSE AGREEMENT
PRODUCT PRICE, PAYMENT AND DELIVERY
THIS ADDENDUM ("Addendum") to the Cross License Agreement
dated May 15th, 2001 is made effective as of the same date, by
and between All American Pharmaceuticals, Inc. ("Manufacturer")
and Body Art & Science, Inc. ("BAS"), to supplement and amend
certain terns of the Agreement. To the extent not defined
herein, all initial-capitalized references in this Agreement
shall have the same meaning as defined in the Agreement.
1. Price.
Products Price Per Unit/Case
see attached
2. Payment Terms. BAS shall submit 50% of the purchase price
of the units it orders along with its purchase order. BAS shall
be billed the remaining amounts due for the Products only after
an order has been shipped. All shipments will be made at BAS's
direction, cost and responsibility. Payment is due to
Manufacturer within 30 days of the billing date.
3. Shipping and Delivery. Unless otherwise agreed to in
writing by BAS and Manufacturer, shipping and delivery shall be
FOB point of destination, if delivery is to BAS or if
Manufacturer is designating the carrier, or FOB the
Manufacturer's loading dock, if BAS is designating the carrier.
Title to and all risk of loss or damage to Product units ordered
shall remain with Manufacturer until delivery of the units at the
destination or, if BAS is designating the carrier, title to and
risk of loss shall pass to BAS at Manufacturer's loading dock.
Fully executed this 15 day of May, 2001.
________________________________________________________
MANUFACTURER: DISTRIBUTOR:
All American Pharmaceuticals, Body Art & Science, Inc.
Inc.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxxx Xxx, Jr.
Name: Xxxx Xxxxxx Name: Xxxxxx Xxx, Jr.
Date: 5/30/01 Date: 5/15/01
Title: President Title: President/co-CEO
_________________________________________________________
PAGE -14-
